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EXHIBIT 10.62
LEASE AGREEMENT
THIS AGREEMENT, dated the 8th day of August, 1996.
BETWEEN RTI INC., a New York corporation having a mailing address c/o
Xxxx Xxxxxx, 00 Xxxxx Xxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000
("Landlord");
AND STERIGENICS EAST CORPORATION, a wholly owned subsidiary of
STERIGENICS INTERNATIONAL, a California corporation having a
place of business at 0000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx
00000-0000 (" Tenant");
CONTENTS
Section Topic Page
------- ------ ----
1 Basic Terms 1
2 Leasing Provisions 3
3 Rent Provisions 6
4 Tenant and Landlord Work Provisions 9
5 Insurance Provisions 14
6 Condemnation Provisions 17
7 Default and Remedies 18
8 Environmental Provisions 21
9 Miscellaneous 23
10 Defined Terms: Interpretations 26
W I T N E S S E T H:
1. BASIC TERMS. The following terms are the basic business terms and
conditions of this lease. The capitalized terms used in this lease shall have
the meanings set forth below in this and the following sections of this lease,
including section 10. See section 10 for definitions and rules of
interpretation. The provisions of this section 1 are subject to the more
detailed, specific provisions contained elsewhere in this lease.
1.1 Premises. That certain tract of land of approximately 62 acres and
the improvements located thereon in the Township of Rockaway, County of Xxxxxx,
State of New Jersey, as more particularly described in the attached Exhibit A.
The Premises includes all trade and other fixtures located at the Premises.
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1.2 Term. The Term of this lease is for a period of 6 years (plus any
fractional month at the beginning of the Term). The "Commencement Date" is
August 8, 1996, and the "Termination Date" is August 31, 2002, or the last day
of be month in which the 6th anniversary of the Commencement Date occurs, or
upon such earlier date as may be provided in this lease whether following an
extension or renewal hereof or otherwise. The lease is subject to extension as
provided in the annexed extension rider for one (1) five (5) year term.
1.3 Base Rent. The Annual Base Rent for the Term is $77,386.00 per year,
payable in monthly installments of $6,486.00. Base Rent shall be absolutely net
and Tenant shall be responsible for all normal and extraordinary costs arising
out of or in connection with the use and operation of the Premises.
1.4 Permitted Use. Tenant may use the Premises for contract irradiation
services and other related businesses, and for any other lawfully permitted use.
1.5 Security Deposit. None.
1.6 Landlord Notices Address:
RTI Inc.
c/o Xxxx Xxxxxx
00 Xxxxx Xxxx Xxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
With Courtesy Copy to Counsel:
Xxxxxxx Xxxxxxxx Xxxxx Xxxxxxxxxxx Kuh, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxx
Telecopier No.: (000) 000-0000
1.7 Tenant Notices Address:
Sterigenics International
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx
Telecopier No.: (000)000-0000
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With Courtesy Copy to Counsel:
Gunderson, Dettmer, Stough, Villeneuve, Franklin & Xxxxxxxxx
000 Xxxxxx Xxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopier No. (000) 000-0000
2. LEASING PROVISIONS.
2.1 Leasing. For and in consideration of the Rents, covenants and
agreements hereinafter mentioned, reserved and contained, to be paid, kept and
performed by Tenant, Landlord does hereby demise and lease unto Tenant, and
Tenant does hereby lease and hire from Landlord, the Premises more particularly
described on Exhibit A annexed hereto subject to the matters disclosed by
Exhibit 6.5(a) of the Agreement ("Title Report") and the ALTA survey
contemplated by section 6.5 of the Agreement ("Survey"). Tenant shall be
responsible for obtaining any certificate of occupancy or other permits,
agreements and approvals in connection with its use or occupancy of the
Premises. From and after the date hereof, Tenant shall have the right and
obligation to maintain and care of Premises in order to preserve, maintain and
prevent any waste or deterioration thereof The parties shall not record this
lease, but at the expense of Tenant shall cause a memorandum of this lease to be
recorded in the form of Exhibit 2.1 hereto.
2.2 Subordination. Tenant's rights under this lease shall have the
priority set forth in the Title Report. Landlord shall discharge (a) exceptions
5(a) through and including 5(f) in Schedule B Section 2 of the Title Report,
along with any encumbrances not disclosed in the Title Report, on or before one
year from the date hereof, and (b) any lien under the Spill Act, any lien,
restriction or encumbrance in connection with the Administrative Consent Order
dated December 7, 1992, as amended, and any listing as a "Superfund Site" under
CERCLA prior to any closing pursuant to section 9.7 hereof
2.3 Term. The Term of this lease shall commence on the Commencement Date
and end on the Termination Date without the necessity of any notice from either
Landlord or Tenant to terminate the same. Tenant hereby, waives notice to vacate
the Premises and agrees that Landlord shall be entitled to the benefit of all
provisions of law respecting the summary recovery of possession from a tenant
holding over to the same extent as if statutory notice had been given. For the
period of 12 months prior to the expiration of the Term, Landlord shall have the
right to show the Premises and all parts thereof to prospective tenants and
purchasers during normal business hours, provided Landlord shall comply with
Tenant's security requirements, not unreasonably interfere with Tenants business
and furnish at least 24 hours advance written notice to Tenant before showing
the Premises.
2.4 Use. Tenant shall use the Premises solely for the Permitted Use and
for no other purpose whatsoever. Tenant shall not use the Premises or permit
anything to be done in or
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about the Premises which will in any way materially conflict with any law,
statute, ordinance or governmental rule or regulation now in force or which may
hereafter be enacted or promulgated.
2.5 Tenant's Operation.
2.5.1 General Conduct. In regard to its use and occupancy of the
Premises, Tenant will at its expense: (a) comply in all material
respects with all laws, ordinances, rules and regulations of
governmental authorities and all recommendations of the Fire
Underwriters Rating Bureau and insurers now or hereafter in effect and,
in no event fail to comply with any laws which impose any civil or
criminal liability on Landlord; (b) conduct its business in all respects
in a dignified manner in accordance with high standards of operation
consistent with the quality of operation of similar properties within
Northern New Jersey; (c) not use or permit the use of any portion of the
Premises for any unlawful purpose; and (d) not place a load upon any
floor which exceeds the floor load which the floor was; designed to
carry or which is allowed by law.
2.5.2 Utility Services. Tenant shall, at its own cost and
expense, arrange for or provide utility connections and service to the
Premises and shall pay all utility meter, connection and service charges
allocable to the Term, including those for gas, sewer, electricity,
water and standby sprinkler and any deposits required by utility
suppliers. Tenant's use of electric energy in the Premises shall not at
any time exceed the capacity of any of the electrical conductors and
equipment serving the Premises. It is the intention of the parties that
Tenant will pay in full the costs and charges of all utilities and
services directly or indirectly charged or billed hi connection with the
Premises during the Term so that the Base Rent provided herein shall be
absolutely net to Landlord, except as expressly provided herein or in
the Agreement.
2.6 Right of Entry.
2.6.1 Inspection. Landlord, its employees and agents shall have
the right to enter the Premises at all reasonable times during normal
business hours upon at least 24 hours advance written notice, and at any
time without notice in case of an emergency, for the purpose of
examining or inspecting the same, showing the same to prospective
mortgagees, making such alterations, repairs, improvements or additions
to the Premises as Landlord may deem necessary or desirable.
2.6.2 Remediation. Landlord and its agents, contractors and
subcontractors shall be entitled to enter the Premises, from time to
time for the purpose of effecting any remediation required to comply
with the Administrative Consent Order or other Remedial Orders. Landlord
shall provide reasonable advance notice to Tenant each time it or any of
its agents, contractors or sub-contractors proposes to enter the
Premises to conduct remediation activities. Landlord and Tenant shall
cooperate in the scheduling of all remediation activities to avoid undue
interference with access by Tenant to the Premises or disruption to
Tenant's business. If any remediation activities are expected to
substantially interfere with all access to the Premises or prevent
Tenant from conducting
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substantially all of its business for a period in excess of seven
consecutive days in any calendar year, Landlord shall provide not less
than 90 days advance written notice to Tenant. If any interference or
disruption exceeds seven consecutive days, Landlord shall be liable to
Tenant for all damages suffered after such seven consecutive day period
in consequence of the disruption.
2.7 Sublease and Assignment. Tenant may not sublet all or any part of
the Premises or assign its interest in this lease without Landlord's consent.
Upon Tenant's notice to Landlord of any such proposed subletting or assignment,
Landlord shall not unreasonably withhold, delay or condition its consent to such
sublease or assignment if Tenant's business will continue to be conducted at the
Premises after such sublease or assignment. If this lease be assigned or if the
Premises or any part thereof be sublet to or occupied by anybody other than
Tenant, Landlord may collect rent from the assignee, sublessee or occupant and
apply the net amount collected to the Rent payable hereunder. Notwithstanding
any such assignment or subletting, the Tenant named herein shall remain
primarily liable for the payment of Rent reserved hereunder and for the
performance of all obligations imposed upon Tenant by this lease with respect to
the Term.
2.8 Surrender. Tenant will surrender possession of the Premises and
remove all goods and chattels and other personal property in the possession of
Tenant, by whomsoever owned, at the end of the Term or at such other time as
Landlord may be entitled to re-enter and take possession of the Premises
pursuant to any provision of this lease, and shall leave the Premises in as good
order and condition as they were at the beginning of the Term, ordinary wear and
tear and damage by the elements and by casualty excepted. In default of such
surrender of possession and removal of goods and chattels, Tenant will pay to
Landlord 150% of the monthly installments of Annual Base Rent together with any
Additional Rent reserved by the terms of this lease for such period as Tenant
holds over in possession of the Premises. If Tenant fails to remove all goods
and chattels and other personal property, by whomsoever owned, at the end of the
Term or at such other time as Landlord may be entitled to re-enter and take
possession of the Premises pursuant to any provision of this lease, Tenant
hereby irrevocably makes, constitutes and appoints Landlord as the agent and
attorney-in-fact of Tenant to remove all goods and chattels and other personal
property, by whomsoever owned, from the Premises to a place of storage, such
moving and storage to be at the sole cost and expense of Tenant. Tenant
covenants and agrees to pay to Landlord all reasonable expenses which Landlord
incurs for the removal and storage of all such goods and chattels. Alternatively
or additionally, at the option of Landlord, Tenant shall be deemed to have
abandoned any or all of such goods, chattels and other personal property and all
or any portion thereof may be disposed of at Tenant's sole cost and expense, in
any manner selected by Landlord. No act or thing done by Landlord shall be
deemed an acceptance of the surrender of the Premises unless Landlord shall
execute a written release of Tenant. Tenant's liability hereunder shall not be
terminated by the execution by Landlord of a new lease of the Premises.
2.9 Quiet Enjoyment. Landlord covenants that Tenant, on paying the Rent
and performing its obligations under this lease, shall and may peaceably and
quietly have, hold and enjoy the Premises for the Term, subject to the
provisions of this lease.
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2.10 Performance of Tenant's Obligations. Tenant covenants and agrees to
perform all obligations herein expressed on its part to be performed, and to
promptly, upon receipt of written notice specifying the action desired by
Landlord in connection with any such obligation (excluding the covenant to pay
Rent which shall be complied with without prior notice), comply with such
notice. If Tenant shall not commence and proceed diligently to comply with such
notice to the reasonable satisfaction of Landlord within 30 days after delivery
thereof, except in the event of an emergency, in which event compliance shall
commence forthwith, Landlord may (but shall have no obligation to do so) enter
upon the Premises and do the things specified in said notice. Landlord shall
have no liability to Tenant for any loss or damages resulting in any way from
such action by Landlord, and Tenant agrees to pay promptly upon demand any
reasonable expense incurred by Landlord in taking such action.
3. RENT PROVISIONS.
3.1 Rent. Tenant covenants and agrees to pay to Landlord, as rental for
the Premises, the Base Rent and any and all Additional Rent not otherwise
payable directly to third parties in accordance with the various sections of
this lease. Annual Base Rent shall be payable in equal monthly installments in
advance on the Commencement Date and on the first day of each calendar month
thereafter during the Term. Additional Rent payable by Tenant shall include the
following charges allocable to the Term:
(a) all Taxes and all utility charges, costs and fees; and
(b) all premiums on insurance policies required to be
maintained by Tenant on, or in connection with the use
off, the Premises pursuant to this lease; and
(c) all costs and expenses of maintaining, repairing and
operating the Premises; and
(d) except as expressly provided herein or in the Agreement,
all other expenses and charges which, from the
Commencement Date until the end of the Term, shall arise,
be levied, assessed or imposed upon or against the
Premises as an incident of the ownership thereof and which
are the kind customarily paid by owners of land and
buildings by reason of such ownership, including the full
cost of complying with all laws and regulations, and the
cost of all repairs required to maintain the Premises in
good repair and condition and to comply with all
applicable provisions of law, it being the intention
hereof that, from the date hereof until the end of the
Term of this lease, Tenant shall be chargeable with and
shall pay all such above sums which an owner of the
Premises would pay.
3.2 Apportionment of Taxes and Other Additional Rent. All Taxes, sewer
and water charges and other governmental charges imposed against or levied upon
the Premises shall
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be apportioned as between Landlord and Tenant at the Commencement Date and the
Termination Date. If single Tax bills attributable to a larger lot of which the
Premises are only a part are submitted during the Term by the municipal or other
authorities having jurisdiction, Landlord shall remit payments to such
authorities and Tenant shall be responsible for (a) that part of the land
portion of such Tax bills determined by multiplying such land portion by a
fraction, the numerator being the total square footage of the land comprising
the Premises and the denominator being the total square footage of the land
comprising the entire lot, plus (b) the amount of Taxes attributable on such Tax
bills to the buildings and improvements located within the entire lot multiplied
by the percentage ratio of building floor space in the Premises to the total
building floor space in the entire lot, which ratio the parties agree for the
purpose of this lease is 100% ("Tenant's Percentage Share"), plus (c) Tenant's
Percentage Share of any bills for general or special assessments. In the event
of a dispute regarding the amount of Taxes attributable to buildings and
improvements, the parties agree that the attribution contained in the records of
the municipal tax assessor shall control. The allocation of Taxes hereunder
shall be done on a tax lot by tax lot basis. Each of the items payable as
Additional Rent to third persons shall be paid by Tenant on or before the date
when each becomes due. If the Landlord collects governmental charges hereunder,
Landlord shall pay the charges to the applicable entity and, at Tenant's
request, it shall provide Tenant with proof of payment to the taxing or other
governmental authority as the case may be. Landlord agrees to elect to pay any
future assessments which may be levied against the Premises in the maximum
number of installments permitted by law. Tenant shall furnish to Landlord,
within 30 days after the date upon which any charge is payable by Tenant as
hereinabove provided, copies of official receipts of the appropriate taxing or
governmental authority, or other proofs satisfactory to Landlord, evidencing the
payment of any Taxes or such other payment obligations of Tenant hereunder. If
Tenant shall fail to make any payment or do any act required of it by any
provision of this lease, Landlord may make such payment or do such act and the
amount of such payment, or the cost of doing such act, together with interest
thereon at an annual rate equal to the Default Rate shall be Additional Rent
payable by Tenant upon demand by Landlord. The making of any such payment or the
doing of any such act by Landlord shall not constitute a waiver by Landlord of
any right or remedy provided by this lease upon Tenant's default in the making
of such payment or the doing of such act. Tenant shall have the right to contest
or review by appropriate proceedings or in any other manner permitted by law, at
Tenant's sole cost and expense, in Tenant's name and/or in Landlord's name
(whenever necessary), any Taxes (including the lowering of any assessed
valuation) or any legal requirements relating to the Premises, and Landlord
shall, without expense or charge to it, cooperate with Tenant and execute any
documents or pleadings required for such purposes. If required by Landlord,
Tenant shall furnish a surety company bond or other security reasonably
satisfactory to Landlord, against any liens by reason of such contest. The
aforesaid contest by Tenant may include appeals from any judgments, decrees or
orders until a final, nonappealable determination shall be made by a court or
governmental department or authority having jurisdiction in the matter.
3.3 Setoff. Tenant covenants to pay all Rent when due and payable,
without any setoff, recoupment, deduction or demand whatsoever, except as
hereinafter provided. Any monies paid or expenses incurred by Landlord to
correct defaults in any of Tenant's obligations hereunder shall be payable to
Landlord as Additional Rent. Any Additional Rent payable to Landlord as provided
for in this lease shall become due with the next installment of Annual Base
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Rent due after Tenant's receipt of notice of the Additional Rent from Landlord,
or on demand if so stated in Landlord's notice. Rent shall be paid or delivered
to Landlord at Landlord's Notice Address unless otherwise directed by Landlord.
Neither the receipt and acceptance by Landlord of any Annual Base Rent or
Additional Rent with knowledge of Tenant's default under any covenant or
condition of this lease, nor the acceptance of any such payment made subject to
conditions imposed by Tenant, whether under a restrictive endorsement, tendered
as payment in full or otherwise, shall be deemed a waiver of such default.
Tenant has provided to NJDEP one or more irrevocable letters of credit,
or any substitute or replacement thereof, in the aggregate amount of $500,000
("Tenant's L/C") to secure certain obligations of Landlord in connection with an
Administrative Consent Order dated December 7, 1992, as amended ("In the Matter
of RTI Inc. Site and RTI Inc. and THIOKOL CORPORATION") ("Landlord's
Environmental Obligations"). Tenant agrees to maintain Tenant's L/C in the
maximum aggregate amount of $500,000, subject to reductions permitted by the
NJDEP and reductions as contemplated by this section 3.3. Landlord agrees to use
Us reasonable efforts and to diligently proceed with and complete Landlord's
Environmental Obligations and to apply from time to time to the NJDEP for
permission to reduce the aggregate amount of Tenant's L/C. Tenant obligation to
maintain Tenant's L/C shall be reduced by $40,000 (per year) commencing on
August 1, 1998 and on August 1 of each year of the lease Term thereafter. The
parties agree to negotiate in good faith with respect to their obligations to
maintain letters of credit during the lease extension, if any, PROVIDED,
HOWEVER, that if the parties are unable to agree, Landlord and Tenant shall be
obligated to maintain letters of credit in the amount of Tenant's L/C and
Landlord's L/C then in effect. Simultaneously with the reduction of $40,000 (per
year) in Tenant's L/C, Landlord agrees that on August 1, 1998 and on August 1 of
each year of the lease Term thereafter, Landlord shall provide to the NJDEP one
or more irrevocable letters of credit in the amount of $40,000 (per year) in
form and substance satisfactory to the NJDEP, PROVIDED, HOWEVER, that if the
NJDEP reduces the aggregate amount of Tenant's L/C required to secure Landlord's
Environmental Obligations, Landlord's L/C shall be equal to an amount, not to
exceed $40,000 (per year), which when added to Tenant's L/C will fully secure
Landlord's Environmental obligations ("Landlord's L/C"). Upon Landlord's default
under this section 3.3, Tenant shall have a right to offset against any Base
Rent and Additional Rent then or thereafter coming due under this lease the
amount of any outstanding Tenant's L/C or Landlord's Substitute L/C (as
hereafter defined) at the time of Landlord's default, up to the amount drawn
upon by the NJDEP. In the event of Landlord's default through Landlord's failure
to provide Landlord's L/C as required in this section 3.3, Tenant shall
undertake to perform Landlord's L/C obligation, in any manner and at the sole
discretion of Tenant ("Landlord's Substitute L/C"), and set off against Base
Rent and Additional Rent the reasonable costs, including attorney's fees, if
any, of undertaking to provide Landlord's Substitute L/C, as well as the full
amount of Landlord's Substitute LIC as calculated hereunder, whether or not the
NJDEP has drawn upon Landlord's Substitute L/C. If Landlord provides Landlord's
L/C subsequent to Landlord's default though its failure to provide Landlord's
L/C and Tenant providing Landlord's Substitute L/C, Landlord shall have the
right to regain the amount offset by Tenant, minus the reasonable costs incurred
by Tenant in providing Landlord's Substitute L/C, PROVIDED, HOWEVER, that no
provision in this section 3.3 shall be construed to require Tenant to return to
Landlord any offset by Tenant for any amount drawn upon by the NJDEP (for
example, if on
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August 1, 1998, the NJDEP has not reduced the amount of Tenant's L/C from
$500,000, and Landlord fails to provide Landlord's L/C, instead of replacing its
$500,000 Tenant's L/C with one $460,000 letter of credit and one $40,000 letter
of credit, Tenant may opt to retain it's $500,000 Tenant's L/C, with $40,000 of
Tenant's LIC becoming Landlord's Substitute L/C. Tenant may then set off $40,000
from Base Rent and Additional Rent. If Landlord later fulfills its obligation to
provide Landlord's L/C, Landlord is entitled to receive the amount set off from
Landlord's Substitute L/C, minus any costs, including attorney fees, and minus
any amount drawn upon any letter of credit in place). Landlord's default under
section 3.3 shall mean and consist of (a) any draw upon Tenant's L/C, (b)
Landlord's failure to comply with Landlord's Environmental Obligations,
reflected by a written notice from the NJDEP, and Landlord's failure to
diligently contest in good faith or comply with Landlord's Environmental
Obligations, or (c) Landlord's failure to provide Landlord's L/C hereunder, TIME
BEING OF THE ESSENCE. If the NJDEP refuses to accept any Landlord's L/C in
partial substitution for Tenant's L/C, then Landlord shall be obligated to
provide cash collateral or make other arrangements satisfactory to NJDEP so that
NJDEP does permit the annual reduction in the aggregate amount of Tenant's L/C
contemplated by this section 3.3. Landlord's obligations under this section 3.3
shall continue through any lease extension. In the event of a default under
section 3.3(b) above, Tenant's setoff shall be limited to a period of six (6)
months of Base Rent and Additional Rent, after which time Tenant's tight to set
off under section 3.3(b) shall cease, PROVIDED, HOWEVER, that a default under
any other provision of this section 33 has not occurred. On the date twelve (12)
months after Tenant commences setoff under section 3.3(b), if Landlord is not
otherwise in default under section 3.3(a) or section 3.3(c), and no additional
event of default under section 3.3(b) has occurred, Tenant shall return to
Landlord the amount setoff under section 3.3(b).
If the lease Term terminates on August 31, 2002, the Landlord shall
provide a letter of credit or such other security as may be required by the
NJDEP, in the amount of the difference between (a) $200,000 and (b) the amount
of the Landlord's LIC in existence on August 31, 2002, which amount shall be
provided in two (2) equal annual installment commencing on August 31, 2002. Upon
the exercise of Landlord's. Put Option as set forth in section 9.7 or upon the
exercise of Tenant's Purchase Option as set forth in section 9.6, Landlord shall
be released from its obligation to provide Landlord's L/C.
3.4 Late Charges; Interest on Late Payments. Without limiting any other
right of Landlord hereunder, there shall be due and owing from Tenant a late
charge and an interest charge on any Annual Base Rent and Additional Rent
provided for hereunder which is not paid by Tenant when due. The late charge
shall be equal to 3% of any amount not paid when due and the interest charge
shall be calculated at the Default Rate, each such calculation to be made from
the date when due, Both charges shall be payable on demand of Landlord with
respect to any Annual Base Rent. not received by the 10th day of each month and
with respect to any other Additional Rent not received within 10 days after its
due date.
4. TENANT AND LANDLORD WORK PROVISIONS.
4.1 Landlord's Work Landlord shall deliver the Premises on the
Commencement Date in the condition contemplated by the Agreement.
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4.2 Tenant Work and Repairs. Tenant shall keep and maintain, or care to
be kept and maintained, the buildings and other improvements now or in the
future constructed on the Premises in good repair and condition. To fulfill the
foregoing obligation and its other covenants under this lease, including Section
4.8, Tenant shall make or cause to be made all reasonably required repairs and
replacements of every kind and character, interior and exterior, structural and
nonstructural, ordinary and extraordinary, including the roof, walls, plumbing,
heating, ventilation, air conditioning, electrical equipment and other systems
on or supplying the Premises, fights and lighting, all glass including plate
glass, stanchions and fences, roadways (other than public streets), sidewalks,
parking lots and other paved areas, and such other public areas the maintenance
and repair of which public areas are the responsibility of the property owner by
law. Tenant will not call upon Landlord, during the Term of this lease, for the
making of any repairs, replacements, alterations or other work whatsoever. All
Tenant's Work, shall (a) be performed in a good and workmanlike manner, and (b)
be at least substantially equal in quality and usefulness to the original work.
4.3 No Liens. If any mechanics' or construction lien shall at any time
be filed against Landlord's or Tenant's interest in any part of the Premises by
reason of work, labor, services or materials performed directly or indirectly
by, through or under or furnished directly or indirectly to Tenant or to anyone
holding the Premises through or under Tenant, Tenant shall forthwith cause the
same to be discharged of record or bonded to the reasonable satisfaction of
Landlord. If Tenant shall fail to cause the lien to be so discharged or bonded
after being notified of the filing thereof, then in addition to any of its other
rights or remedies Landlord may discharge the same by paying the amount claimed
to be due, and the amount so paid by Landlord together with interest thereon at
the Default Rate and all costs and expenses, including reasonable attorneys'
fees, incurred by Landlord in procuring the discharge of such lien shall be due
and payable by Tenant to Landlord as Additional Rent upon demand of Landlord.
Landlord's consent to or acquiescence in any Tenant's Work shall not constitute
an approval by Landlord of Tenant's contracts for such work.
4.4 Trade Fixtures. All trade fixtures and apparatus (as distinguished
from leasehold improvements) owned by the Tenant and installed in the Premises
shall remain the property of Tenant and shall be removable at the expiration of
the Term, provided Tenant repairs and restores any damage to the Premises
relating to such installation or removal. In no event shall Tenant be
responsible for restoration of Tenant's Work or for repairing floor, wall or
ceiling finishes.
4.5 Tenant Alterations.
4.5.1 General. The Tenant shall have the right to make
improvements, alterations and additions to the Premises so long as it
gives Landlord at least 30 days prior written notice thereof and obtains
Landlord's consent and otherwise complies with this section 4.5. No
consent by Landlord shall be required if the cost of the work is less
than $175,000 in any instance or series of related instances. The cost
of such improvements, alterations or additions shall be the sole
responsibility of the Tenant. Tenant may, at
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cost and expense, paint or decorate any part of the interior of the
Premises. Any improvements, alterations or additions to the Premises
shall upon their completion become part of the Premises and the property
of the Landlord and shall be surrendered with the Premises upon
termination of this lease without any compensation being due therefor by
Landlord. However, Tenant shall be entitled to remove any trade fixtures
or other alterations or additions, so long as it repairs any damage to
the improvements on the termination of this lease. If Tenant plans to
make any improvements, alterations or additions to the Premises that are
not consistent with the present use or reasonable continuing use of the
Premises and which is a Permitted Use, Landlord may, prior to the
commencement of an improvement, alteration or addition, give notice to
Tenant that Landlord may require Tenant to remove any such improvement,
alteration or addition at the end of the Term and require Tenant to
restore the Premises to its condition immediately before the
improvement, alteration or addition was made, and require Tenant to
repair any damages such improvement, alteration, or addition may have
caused. Landlord's consent where required in this section 4.5 shall not
be unreasonably withheld, delayed or conditioned.
4.5.2 General Standards. Whenever Tenant makes any alterations
or repairs or does any other Tenant's Work in, to, on or about the
Premises as provided for in this lease:
(a) Tenant shall do the work in a good and workmanlike
manner and in compliance with all applicable laws, ordinances and codes,
and all applicable governmental rules, regulations and requirements, and
in accordance with the standards, if any, of the Board of Fire
Underwriters or other organization exercising the functions of a board
of fire underwriters whose jurisdiction includes the Premises;
(b) Tenant will pay for all work promptly and in a manner
consistent with good business practices and Tenant will, prior to the
commencement thereof, provide Landlord with reasonable assurances of
Tenant's ability to pay for Tenant's work and in the absence of such
proof Tenant shall provide payment and performance bonds in form and
substance reasonably satisfactory to Landlord covering such work;
(c) before commencing any work Tenant shall notify
Landlord of its intention to do so, and shall (i) obtain, provide
Landlord with copies of all permits and authorizations therefor that may
be required by law for doing the work; and (ii) execute, acknowledge and
deliver to Landlord in a form reasonably approved by Landlord an
agreement under which Tenant shall indemnify Landlord against any claims
arising from the work, including the removal of any lien filed against
the Premises, or Landlord's or Tenant's interest therein, or the threat
or notice of any claim, as a result of such work;
(d) the work shall be commenced as promptly as is
practicable under then existing circumstances and once commenced shall
be pursued diligently to
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completion, subject to delays arising out of causes beyond the
reasonable control of Tenant, and upon completion Tenant shall deliver
to Landlord a copy of "as built" plans;
(e) the casualty and comprehensive general liability
insurance provided for in section 5 shall be extended, if necessary, to
apply to the work during the course of construction and after
completion, and a certificate naming Landlord as additional insured
shall be provided to Landlord;
(f) Tenant shall carry or cause its contractors, if any,
to carry worker's compensation insurance as required by law in
connection with the work and provide certificates thereof to Landlord
prior to the commencement of any work;
(g) Tenant shall at all times maintain in full force and
effect all permits and authorization required for such work and obtain
an official final certificate of occupancy or amended certificate of
occupancy upon completion of the work in each instance if, under local
practice, such certificates are issued by a governmental department or
officer having jurisdiction; and
(h) thereafter during the Term, Tenant shall bear the
entire risk of loss, repair, replacement and compliance with law
responsibilities for such alterations.
4.6 Casualty Loss. If any building or any other improvement on the
Premises or any part thereof shall be damaged or destroyed by fire, explosion,
lightning, vandalism or by any other casualty or cause ("Casualty") Tenant shall
(a) give prompt notice thereof to Landlord and (b) at Tenant' s own cost and
expense, and whether or not insurance proceeds shall be sufficient for the
purpose, cause to be repaired, restored, replaced and/or rebuilt such building
or other improvement to substantially the same condition and character as
existed immediately prior to the Casualty; provided, however, that Tenant may
make such changes as it may elect in conformance with and subject to the
provisions of this lease, provided the building shall, in the reasonable opinion
of Landlord after the completion of such changes, have substantially the same
commercial utility and value as it had prior to the Casualty. Such restoration,
repair replacement rebuilding or alteration shall be commenced promptly and
prosecuted with reasonable diligence. All insurance proceeds payable on account
of any such Casualty, less the actual cost, fees and expenses, if any, incurred
in connection with adjustment of the loss ("Net Insurance Proceeds") shall be
payable to a bank, trust company or other entity as shall be designated by
Landlord, to hold as trustee (the "Insurance Trustee") for disposition
hereunder. Provided that Tenant complies with the requirements of section 4.6(a)
and (b), Tenant shall have the right to adjust all losses, provided that, with
the respect to any losses exceeding $175,000, the Landlord's consent shall be
obtained. All Net Insurance Proceeds shall be applied to the payment of the cost
of the demolition, restoration, repair, replacement, rebuilding or alteration,
including the costs of temporary repairs or for the protection of property
pending the completion of permanent restoration, repairs, replacements,
rebuilding or alterations (all of which temporary and permanent repairs,
replacement, rebuilding or alterations are hereinafter collectively referred to
as "Restoration"), and shall be paid out from time to time as Restoration
progresses upon the written request of Tenant which shall be accompanied by the
following:
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(a) A certificate signed by Tenant, dated not more than 30 days
prior to such request, and if the Restoration cost is expected to exceed
$175,000, signed by a licensed architect, setting forth the following:
(i) That the sum then requested either has been paid by
Tenant or is justly due to contractors, subcontractors,
materialmen, engineers, architects or other persons who have
rendered services or furnished materials for the Restoration
therein specified, the names of such persons, a brief description
of such services and materials, the several amounts so paid or
due to each of said persons in respect thereof, that no part of
such expenditures has been made the basis, in any previous or
then pending request, for the withdrawal of insurance money or
has been made out of the proceeds of insurance received by
Tenant, and that the sum then requested does not exceed the value
of the services and materials described in the certificate.
Tenant shall, from time to time, upon request provide proof of
payment of all sums previously requisitioned by Tenant;
(ii) That except for the amount, if any, stated pursuant
to the foregoing clause (a) (i) in such certificate to be due for
services or materials, there is no outstanding indebtedness known
to the persons signing such certificate, after due inquiry, which
is then due for labor, wages, materials, supplies or services in
connection with such Restoration which, if unpaid, might become
the basis of a vendor's, mechanic's, laborer's, contractor's or
materialman's statutory or similar construction lien upon such
Restoration, the Premises or any part thereof or upon Landlord's
or Tenant's interest therein; and
(iii) That the cost, as estimated by the persons signing
such certificate, of the Restoration required to be done
subsequent to the date of such certificate in order to complete
the same, is not expected to exceed the insurance money; plus any
amount which either has been deposited by Tenant to defray such
cost and remaining in the hands of the Insurance Trustee after
payment of the sum requested in such certificate, plus the
unexpended or undisbursed portion of any amount which has been
committed in writing to Tenant by a third party lender for
purposes of Restoration. Tenant will provide Landlord with
reasonable assurances of Tenant's ability to pay for Tenant's
work and in the absence of such proof Tenant shall provide
payment and performance bonds in form and substance reasonably
satisfactory to Landlord covering such work
(b) Evidence reasonably satisfactory to Landlord to the effect
that there has not been filed with respect to the Landlord's interest in
the Premises or any part thereof any construction, vendor's, mechanic's,
laborer's, materialman's, contractor's or other lien, or any notice
thereof, which has not been discharged of record or bonded, except such
as will be discharged by or concurrently with the payment of the amount
then requested. Upon compliance with the foregoing provisions of this
section, the Insurance Trustee shall, out of such remaining Net
Insurance Proceeds, pay or case to be paid to
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Tenant or the persons named in such certificate the respective amounts
stated therein to have been paid by Tenant or to be due to such other
persons, as the case may be. If the Net Insurance Proceeds at the time
held by the Insurance Trustee shall be insufficient to pay the entire
cost of Restoration, Tenant will pay the deficiency or provide a
lender's commitment to fund the deficiency as needed. Upon receipt by
Landlord of satisfactory evidence required by clauses (a) and (b) of
this section that the Restoration has been completed and paid for in
full, that all requirements of this lease relating to the Restoration
have been complied with and that there are no liens of the character
referred to herein, any balance of the Net Insurance Proceeds at the
time held by the Insurance Trustee shall first be paid to Tenant to the
extent of amounts deposited by Tenant pursuant to clause (a)(iii) above,
with any balance then paid to Landlord.
4.7 No Abatement of Rent. No destruction of or damage to the Premises or
any part thereof by fire or any other casualty shall permit Tenant to surrender
this lease or shall relieve Tenant from its obligations to pay all Base Rent and
Additional Rent under this lease or from any of its other obligations under this
lease. Tenant waives any rights now or hereafter conferred upon it by statute or
otherwise to quit or surrender this lease or the Premises or any part thereof,
or to any suspension, diminution, abatement or reduction of Rent on account of
any such destruction or damage. Each party expressly waives any rights now or
hereafter conferred upon it pursuant to N.J.S.A. 46:8-6, 46:8-7, or otherwise to
quit or surrender this lease or the Premises or any part thereof, or to
terminate this lease, or to any suspension, diminution, abatement or reduction
of rent, on account of any such damage or destruction. If there is a Casualty
during the last two years of the Term, the Tenant may terminate this lease,
provided that Tenant's notice of termination shall be accompanied by an
assignment of the proceeds of the casualty insurance required by section 5.1
relating to the Premises.
4.8 Compliance with Laws. Tenant shall suffer no waste or injury in or
about the Premises and shall comply with or cause to be complied with all laws
applicable to the use and occupancy of the land, buildings and other
improvements upon the Premises, including the making of any structural or other
repairs or alterations that may be required in order to comply with said laws.
In addition, Tenant shall effect or cause to be effected the correction,
prevention and abatement of nuisances, violations or other grievances in, upon
or connected with the Premises, including the land, buildings and other
improvements thereon, and shall also promptly comply with or cause to be
complied with all rules, orders, requirements and regulations of the Board of
Fire Underwriters or persons exercising such powers and all insurers of the
Premises.
5. INSURANCE PROVISIONS.
5.1 Casualty Insurance. Tenant shall keep the buildings and other
insurable improvements on the Premises insured under permanent policies and/or
"builder's risk" policies, as the case may be, against loss or damage by fire
and risks embraced within "all risk coverage" available in the locality where
the Premises are located, in an amount sufficient to prevent Landlord or Tenant
from being a coinsurer under the applicable policy, but in any event in an
amount not less than 100% of the full insurance value. The term "full insurance
value" as used herein means the actual replacement cost (excluding foundation,
footings and excavation costs) as
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defined in the standard "replacement cost" provision or endorsement. Tenant
shall also maintain in effect boiler explosion and casualty insurance and plate
glass insurance in amounts reasonably acceptable to the Landlord and rental
insurance covering at least one year's Rent.
5.2 Liability Insurance. Tenant shall obtain and maintain comprehensive
general liability insurance with coverage of not less than $1,000,000.00
combined single limit, for each occurrence and in the aggregate, for bodily
injury to or death of persons, and for property damage. Tenant shall also obtain
and maintain independent contractors and blanket contractual liability
endorsements, as well as such other and additional insurance and endorsements as
reasonably prudent owners of comparable facilities generally maintain and as
reasonably requested from time to time by Landlord.
5.3 Additional Insurance. Landlord and Tenant shall, at the request of
Landlord, consult with each other as to the scope of coverage and adequacy of
the policy limits of the insurance required by the provisions of this section 5
from time to time during the Term and Tenant shall increase the scope of
coverage and/or the policy limits to the extent reasonably required by Landlord
after such review. Tenant will obtain additional coverage and in such amounts as
reasonably required by Landlord provided that such coverage (and in such
amounts) is customarily obtained by owners and operators of similar properties.
5.4 Certificates. On or prior to the date hereof or after any request by
Landlord and at least 30 days prior to the expiration date of any insurance
policies, Tenant shall deliver to Landlord certificates evidencing that the
insurance required by this lease is in effect. Prior to commencement of
construction of any of any alterations or improvements, Tenant shall deliver to
Landlord certificates evidencing the insurance required by sections 4 and 5 is
then in effect. All insurance policies shall provide for 30 days advance notice
in writing to Landlord prior to cancellation.
5.5 Endorsements. All such policies shall name Landlord as an additional
insured mid as loss payee, as applicable, as its interest under this lease may
appear. All insurance obtained by Tenant shall be deemed "primary" over any
other collectible insurance maintained by Landlord. All policies of insurance
shall be issued by insurers authorized to conduct that type of insurance
business in New Jersey, and having at all times a policyholders rating of "A" or
better and a financial rating of "AAA" or better in the then-current edition of
Best's Insurance Guide. If Tenant shall not comply with this section and without
waiving any Event of Default, Landlord may cause insurance as aforesaid to be
issued, and in that event Tenant agrees to pay the premiums for such insurance
upon Landlord's demand as Additional Rent, together with interest at the Default
Rate until the premium cost is reimbursed to Landlord.
5.6 Indemnity. Tenant shall defend, indemnify and save harmless Landlord
and Landlord's owners, principals, directors, officers, representatives, agents
and employees ("Indemnified Persons") against and from losses, liabilities,
obligations, damages, penalties, claims, costs, charges and expenses (including
reasonable attorney's fees) which may be suffered by any Indemnified Person or
asserted by third persons against any Indemnified Person relating to
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the Term or any time that Tenant may have been given access to all of or any
portion of the Premises, out of or in connection with any or all of the
following:
(a) The activities of Tenant or any of its agents, contractors,
subcontractors, servants, employees, assigns, subtenants,
licensees or invitees in or about the Premises;
(b) Any negligent or otherwise wrongful act or omission on the part
of Tenant or any of its agents, contractors, subcontractors,
servants, employees, assigns, subtenants, licensees or invitees;
(c) Any work or thing done in, on or about the Premises by or at the
instance of Tenant or any of its agents, contractors,
subcontractors, servants, employees, assigns, subtenants,
licensees or invitees, including the assertion of any
construction liens or claims relating thereto; and
(d) Any failure on the part of the Tenant to perform or comply with
any of the covenants, agreements, terms, provisions, conditions
or limitations contained in this lease on its part to be
performed or complied with.
If any action or proceeding is brought against any Indemnified Person by reason
of any such claim, upon written notice from any Indemnified Person, Tenant shall
at Tenant's expense resist or defend such action or proceeding by counsel
approved by the Indemnified Person in writing, which approval the Indemnified
Person shall not unreasonably withhold. The provisions of this Section 5.6 shall
survive the Termination Date.
5.7 No Liability of Landlord. Except as provided in the Agreement or
under section 8 hereof, Landlord, whether as landlord, owner, contractor or in
any other capacity, shall not be liable for any damage or injury which may be
sustained by Tenant or any other person claiming under or through Tenant as a
consequence of the failure, breakage, leakage or obstruction of the water,
plumbing, steam, gas, sewer, waste or soil pipes, root drains, leaders, gutters,
valleys, down spouts or the like, or of the electrical, ventilation,
air-conditioning, gas, power, conveyer, refrigeration, sprinkler, heating or
other systems, elevators or hoisting equipment, if any, or any other condition
relating to the Premises; or by reason of the elements; or resulting from acts,
conduct or omissions on the part of Tenant or of Tenant's agents, employees,
guests, licensees, invitees, assignees, subtenants or successors, or on the part
of any other tenant, person or entity.
5.8 Increase in Insurance. Tenant will not do or suffer to be done, or
keep or suffer to be kept, anything in, upon or about the Premises which will
contravene Tenant's or Landlord's policies, if any, insuring against loss or
damage by fire or other hazards (including public liability) or which will
prevent Tenant or Landlord from procuring such policies from companies
acceptable to Landlord. If anything done, omitted to be done or suffered by
Tenant to be done or kept in, upon or about the Premises shall cause the rate of
fire or other insurance on
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the Premises to be increased beyond the minimum rate from time to time
applicable thereto for the customary uses thereof, Tenant will pay the amount of
any such increase as Additional Rent.
5.9 Waivers of Subrogation. Tenant shall include in each of its policies
insuring against loss, damage or destruction by fire or other insured casualty
either (a) a waiver of the insuror's right of subrogation against the other
party (and, in case of Tenant's policies, against any additional insured) or (b)
should such waiver be unobtainable, (i) an express agreement that such policy
shall not be invalidated if the insured waives or has waived before the casualty
the right of recovery against any party responsible for a covered casualty or
(ii) any other form of permission from the insuror for the release of such
responsible party and, in such event the insured shall so waive its right of
recovery or release the responsible party. If such waiver, agreement or
permission shall not be obtainable without additional charge or at all, the
insured party shall so notify the other party promptly. If such waiver,
agreement or permission shall be obtainable at additional charge, then the
Tenant agrees to pay such charge. The provisions of this paragraph shall not by
implication require Landlord to purchase any insurance. If Landlord purchases
insurance of the type described in this Section 5.9, the provisions of this
section shall apply.
6. CONDEMNATION PROVISIONS.
6.1 Awards to Landlord. If the Premises shall be acquired, taken or
condemned by any authority having the power of eminent domain or conveyed under
a threat of eminent domain (a "Taking"), Landlord shall be entitled to collect
the entire award that may be made as a result of the Taking, with the award to
be payable to Landlord pursuant to the following provisions of this section 6.
Tenant agrees to execute any and all further documents that may be required in
order to facilitate collection of the award.
6.2 Total Taking. If at any time during the Term of this lease there
shall be a Taking of the whole of the Premises, or of such major part that the
remaining portion of the Premises is not capable, in Tenant's opinion, of being
used for the Permitted Use (a "Total Taking"), this lease shall terminate and
expire on the date of the Taking and all Base Rent and Additional Rent payable
by Tenant under this lease shall be apportioned and paid to the date of the
Total Taking. In the event of a Total Taking, Landlord shall have the exclusive
right to the proceeds of any award.
6.3 Partial Takings. If at any time during the Term there shall be a
Taking of the Premises other than a Total Taking (a "Partial Taking"), this
lease shall continue in full force and effect as to the Premises not Taken.
Tenant shall repair or replace the building or other improvements affected by
the Partial Taking, and the portion of any award relating to the value of any
Land so taken which shall, for purposes of such valuation, be considered vacant,
unencumbered and unimproved, shall belong to Landlord and the balance of the
award shall be payable to the Insurance Trustee and shall be applied to the cost
of any required Restoration of the buildings and other improvements on the
Premises, substantially in the same manner and subject to the same conditions as
apply to the use of Casualty insurance proceeds. If the costs of Restoration
shall exceed the net award available to Tenant, Tenant shall pay the deficiency.
Any balance remaining in the hands of the Insurance Trustee idler payment of the
costs, of Restoration
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as aforementioned, or if Tenant does not elect to apply the award to Restoration
as set forth above, the entire net award of the Partial Taking, shall be paid to
Landlord as if a Total Taking had occurred.
6.4 Adjustment of Rent. In the event of a Partial Taking, this lease
shall continue but the Base Rent shall be recalculated from the date of the
Partial Taking by multiplying the Base Rent by a fraction, the numerator of
which is equal to the fair market value of the Premises immediately after the
Taking and the denominator is the fair market value of the Premises immediately
prior to the Taking. Any Base Rent becoming due and payable hereunder between
the date of any the Partial Taking and the date of determination of the amount
of the Rent reduction, if any, to be made in respect thereof shall be paid at
the rate theretofore payable hereunder, or the reduced rate, if any, which
Landlord has offered or stated to be the reduced Rent rate under this section.
6.5 Temporary Taking. If the temporary use of the whole or any part of
the Premises shall be taken by any lawful power or authority, by the exercise of
the right of condemnation or eminent domain, or by agreement between Tenant and
those authorized to exercise such right, Tenant shall give prompt notice thereof
to Landlord, the Term of this lease shall not be reduced or affected in any way,
Tenant shall continue to pay in full the Base Rent and Additional Rent herein
reserved, without reduction or abatement, and Tenant shall be entitled to
receive for itself any award or payment made for such use.
6.6 Definitions. The terms "Taking," "condemnation" or similar terms as
herein used shall mean, the acquisition by a public or quasi-public authority
having the right to take the same by condemnation or by power of eminent domain
or otherwise, regardless of whether such taking is the result of actual
condemnation or voluntary conveyance.
7. DEFAULT AND REMEDIES.
7.1 Events of Default. If before or during the Term there shall occur
any of the following events ("Events of Default"):
(a) if Tenant shall make a general assignment for the benefit of
creditors, or shall admit in writing its inability to pay its
debts as they become due, or shall file a petition in bankruptcy
or shall have an order for relief entered against it or be
adjudicated a bankrupt or insolvent or shall file a petition
seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under
any law, or shall file an answer admitting or not contesting the
material allegations of a petition against it in any such
proceeding, or shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or
any material part of its assets; or
(b) if, within 60 days after the commencement of any proceeding
against Tenant seeking any reorganization, arrangement,
composition,
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readjustment, liquidation, dissolution or similar relief under
any law, such proceeding shall not have been dismissed, or if,
within 60 days after the appointment without the consent or
acquiescence of Tenant of any trustee, receiver or liquidator of
Tenant, or of any material part of its assets, the appointment
shall not have been vacated; or
(c) if the interest of Tenant in the Premises shall be sold under
execution or other legal process; or
(d) if Tenant shall fail to pay any installment of Annual Base Rent
or Additional Rent on its due date and the failure continues for
10 days after Landlord gives Tenant written notice thereof; or
(e) if Tenant shall fail to perform or observe any requirement,
obligation, agreement, covenant or condition of this lease,
other than the payment of any installment of Annual Base Rent or
Additional Rent, and the failure shall continue for 30 days
after Landlord gives Tenant written notice thereof (if the
failure is of a nature such that it cannot be remedied within 30
days, then there shall not be an Event of Default if Tenant
diligently commences to remedy the failure within the 30-day
period and prosecutes the same to completion with diligence, and
in any event within 90 days);
THEN AT ANY TIME FOLLOWING ANY OF SUCH EVENTS OF DEFAULT, Landlord, without
waiving any other rights herein available to Landlord at law or in equity, may
either (i) give Tenant notice of termination of this lease or (ii) without
terminating this lease, give Tenant notice of Landlord's intention to re-enter
and take possession of the Premises. The giving of either of such notices to
Tenant shall terminate Tenant's right to possession of the Premises under this
lease, without prejudice to the rights of Landlord to exercise all other
available legal remedies and without discharging Tenant from any of its
liabilities hereunder.
7.2 Damages. If Landlord elects to terminate Tenant's right to
possession of the Premises under section 7.1 following an Event of Default,
Landlord may re-enter and take possession of the Premises, with or without legal
process, whether by force or otherwise, and Tenant shell be obligated to pay to
Landlord as damage upon demand, and Landlord shall be entitled to recover of and
from Tenant (a) all Annual Base "Rent and Additional Rent payable to the date of
termination of Tenant's right to possession, plus (b) the cost to Landlord of
all reasonable legal and other expenses and costs (including attorney's fees)
incurred by Landlord in obtaining possession of the Premises, in enforcing any
provision of this lease, in preserving the Premises during any period of
vacancy, in making any repairs as Landlord may reasonably deem necessary or
advisable in operating and maintaining the Premises, and in reletting the
Premises, including all reasonable brokerage commissions therefor, plus (c)
either (i) in the event of Landlord's giving notice of its intention to re-enter
and take possession without terminating this lease, damages (payable in monthly
installments, in advance, on the first day of each calendar month following the
giving of such notice and continuing until the date originally fixed herein for
the expiration of the then current Term of this lease) in amounts equal to the
Base Rent and
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Additional Rent herein reserved, less the net amount of rent, if any, which may
be collected and received by Landlord from the Premises for and during the
balance of the Term; Landlord may relet the Premises, or any part or parts
thereof (but in no event shall Landlord be obligated to do so), for a term or
terms which may at Landlord's option be less than or exceed the period
constituting the balance of the Term hereof, and Landlord may grant concessions
or charge a rental in excess of that provided in this lease (Tenant shall have
no right to any excess); or (ii) in the event of Landlord's giving notice of
termination of this lease, an award for liquidated damages in an amount which,
at the time of the termination, is equal to the excess, if any, of the
installments of Base Rent and the aggregate of all sums payable hereunder as
Additional Rent (for such purpose considering the annual amount of Additional
Rent to equal the amount thereof payable for the 12 months immediately preceding
the termination, or the annualized portion of Additional Rent payable from the
Commencement Date to the date of the termination if this lease then shall have
been in effect for less than 12 months) reserved hereunder for the period which
would otherwise have constituted the unexpired portion of the then current Term
of this lease, plus the value of all other considerations to be paid or
performed by Tenant during such period, over the fair rental value of the
Premises, as of the date of such termination, for such unexpired portion of the
then current Term of this lease, said liquidated damage amount to be discounted
at the then "generic" prime rate of interest as set forth in the most recently
published Wall Street Journal to determine its present value at the time of the
award. If the Entire Premises or any part thereof be relet by Landlord for the
unexpired Term or any part thereof before presentation of proof of liquidated
damages to any court, commission or tribunal, the amount of rent reserved upon
such reletting shall be deemed to be the fair and reasonable rental value for
the part or the whole of the Premises so relet during the term of the reletting.
Prior to Tenant's full payment of any liquidated damages awarded to Landlord,
Tenant shall continue to pay punctually to Landlord all Base Rent and Additional
Rent to the same extent and at the same time as if this lease had not been
terminated and receive full credit for such payments against the award for
liquidated damages. If Landlord shall elect to re-enter and take possession
without terminating this lease, Landlord shall have the right at any time
thereafter to terminate this lease for the previous default, whereupon the
provisions of this subsection with respect to termination will thereafter apply
7.3 Multiple Actions. Landlord may xxx for and collect any amounts which
may be due pursuant to the provisions of section 7.2 from time to time as
Landlord may elect, but no such suit shall bar or in any way prejudice the
rights of Landlord to enforce the collection of amounts due at any time or times
thereafter by like or similar proceedings. All legal fees and expenses incurred
by Landlord in enforcing its rights under this lease shall be deemed Additional
Rent and due and payable by Tenant upon demand. If Landlord brings any summary
action for dispossession of Tenant for failure to pay Rent, Landlord's
attorney's fees and legal expenses shall be added to and included as part of the
Rent due and owing by Tenant with respect to the periods hi default. Tenant
expressly waives service of any notice of intention to re-enter that may be
required by law, and waives any and all rights to recover or regain possession
of the Premises, or to reinstate or to redeem this lease, or other right of
redemption as permitted or provided by or under any law now or hereafter in
force and effect.
7.4 No Remedy Exclusive; No Waiver. No remedy conferred upon or reserved
to Landlord in this lease is intended to be exclusive of any other remedy herein
or by law provided,
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but each shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law, in equity or by statute.
The receipt and acceptance by Landlord of Annual Base Rent or Additional Rent
with knowledge of the default by Tenant in any of Tenant's obligations under
this lease shall not be deemed a waiver by Landlord of the default. Nothing
contained in this lease shall limit or prejudice the right of Landlord to prove
for and obtain in proceedings for bankruptcy or insolvency an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, the damages are to be proved, whether or
not the amount be greater than, equal to, or less than the amount of the loss or
damages referred to above. No waiver by Landlord of any Event of Default or any
default by Tenant in any covenant, agreement or obligation under this lease
shall operate to waive or affect any subsequent Event of Default or default in
any covenant, agreement or obligation hereunder, nor shall any forbearance by
Landlord to enforce a right or remedy upon an Event of Default or any such
default be a waiver of any of its rights and remedies with respect to such or
any subsequent default or in any other manner operate to the prejudice of
Landlord.
8. ENVIRONMENTAL PROVISIONS.
8.1 Additional Definitions. The terms "Environmental Laws," "Hazardous
Substances," "Material," "Person," "Release," "Environmental Approvals,"
"Governmental Authorities" and "Remedial Orders" defined in Article IV of the
Agreement shall have the same meanings when used in this lease. Remedial Orders
shall include the "Administrative Consent Order" referred to in section 9.9
hereof.
8.2 Landlords Responsibility. Landlord shall be and remain in full
compliance with the Remedial Orders and Environmental Laws and otherwise be
fully responsible for the existence and remediation of any Hazardous Substances
affecting the Premises as of the Commencement Date ("Existing Conditions").
8.3 Landlord Indemnity. Except for matters for which Tenant is
responsible pursuant to Section 8.4 below, Landlord hereby agrees to save,
defend with counsel reasonably satisfactory to Tenant, indemnify and hold
harmless Tenant and its principals, officers, directors, trustees, agents and
employees, from and against any and all claims, losses, liabilities, damages and
expenses (including reasonable cleanup costs and attorneys fees arising under
this indemnity) which may arise directly or indirectly from any use or any
Release of Hazardous Substances by Landlord on or under the Premises, and losses
of and claims against Tenant resulting from (i) Landlord's failure to comply
strictly with the provisions of this section 8, with respect to Existing
Conditions, including the Remedial Orders and the Administrative Consent Order
and (ii) any negligence or misconduct by Landlord, its employees, agents or
contractors, including any negligence in carrying out required remediation
activities.
8.4 Tenant's Responsibility. The Premises shall not be used and/or
occupied to generate, manufacture, refine, transport, treat, store, handle,
dispose, transfer or process Hazardous Substances, except for the use, in
accordance with law, of such substances as are customary in connection with the
Permitted Use. Tenant shall comply with all applicable Environmental Laws in
connection with its use of the Premises. The Tenant shall not permit
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during the Term any intentional or unintentional action or omission of the
Tenant or any other occupant, user and/or operator of the Premises, resulting in
the Release of Hazardous Substances into the waters or onto the lands of the
State of New Jersey, or into the air or the waters outside the jurisdiction of
the State of New Jersey where damage may result to the air, lands, waters, fish,
shellfish, wildlife, biota, air or other resources owned, managed, held in trust
or otherwise controlled by, or within the jurisdiction of, the State of New
Jersey. In addition, Tenant shall be liable for any losses, damages or claims,
including claims arising from personal injury, caused by or resulting from (i)
any excavation activities conducted by Tenant at the Premises, and (ii) any use
by Tenant, its employees or invitees of any water on the Premises, including
well water, ground water or tap water.
8.5 Tenant Indemnity. Tenant hereby agrees to save, defend with counsel
reasonably satisfaction to Landlord, indemnify and hold harmless Landlord and
its principals, officers, directors, trustees, agents and employees, from and
against any and all claims, losses, liabilities, damages and expenses (including
reasonable cleanup costs and attorneys fees arising under this indemnity) which
may arise directly or indirectly from (i) any use or any Release by Tenant of
Hazardous Substances on or under the Premises, (ii) any excavation activities
undertaken by Tenant at the Premises, (iii) any use by Tenant, its employees or
invitees of any water on the Premises, including well water, ground water or tap
water, (iii) the negligence or misconduct of Tenant, its employees, agents or
contractors and (iv) losses of and claims against Landlord resulting from
Tenant's failure to comply strictly with the provisions of this section 8,
including claims for personal injury, but in any event only with respect to the
Term of this lease and any other period of possession of the Premises by Tenant.
8.6 ISRA Compliance. In connection with the termination of this lease or
Tenant's operations hereunder or the change of ownership or other status of
Tenant or other person acting by, through or under Tenant or Landlord, or the
sale of the Premises by Landlord, the Tenant shall obtain ISRA clearance, which
for the purpose of this lease means that Tenant shall either (a) obtain from the
NJDEP a "Letter of Non-Applicability, " or (b) submit to and obtain the approval
by the NJDEP of a "Negative Declaration" or (c) obtain the issuance by NJDEP of
a "No Further Action Letter" pursuant to ISRA and applicable regulations,
guidance and guidelines implementing ISRA ("ISRA Requirements") and the
Environmental Requirements. As part of its obligation to obtain either a "Letter
of Non-Applicability," a 'Negative Declaration" or a "No Further Action Letter"
("ISRA Compliance"), Tenant shall prepare and submit to NJDEP a General
Information Notice and performance and report to NJDEP on, as appropriate, a
Preliminary Site Assessment, a Site Investigation, a Remedial Investigation and
a Remedial Action Workplan. Tenant shall also, as part of its compliance with
ISRA Requirements, obtain and maintain a remediation funding source in form and
amount acceptable to NJDEP. The Tenant agrees not to submit any Remedial Action
Workplan (or its regulatory equivalent) which would return the Premises to the
Landlord at the end of the Term in a condition which includes the presence of
Hazardous Substances which were not Existing Conditions. In any event and
notwithstanding any provision to the contrary herein, with respect to Existing
Conditions the Landlord shall have the sole and exclusive responsibility to
comply at its own cost and expense with any Environmental Laws, including ISRA,
in connection with the Premises, the termination of this lease, any sale or
other change in status of Landlord or Tenant, the cessation of Tenant's
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operations on the Premises or in connection with a change in ownership of
Landlord's interest in the Premises.
8.7 Other Laws' Survival. Whenever the terms ISRA and similar terms and
regulatory and statutory references are used in this lease, they shall be deemed
to include any similar, predecessor, future or successor regulatory and
statutory references and/or terms under past or future laws as may apply to the
Premises and its use and occupancy under this lease. Landlord's and Tenant's
obligations under this section 8 shall survive the termination of this lease.
9. MISCELLANEOUS.
9.1 Bind and Inure. This lease and the covenants and conditions herein
contained shall (a) inure to the benefit of and be binding upon Landlord, its
successors and assigns, and (b) inure to the benefit of Tenant and only such
successors or assigns of Tenant whose subletting or assignment has been carried
out in accordance with this lease.
9.2 Notices. All notices from Tenant to Landlord shall be directed to
Landlords Notice Address. All notices from Landlord to Tenant shall be directed
to Tenant's Notice Address. Either party may designate in writing a substitute
address for notices, and thereafter notices shall be directed to the substitute
address. Every notice shall be deemed to have been given or served at the time
that the same shall be telecopied, hand-delivered, deposited with a nationwide
overnight courier service or deposited in the United States mails, by registered
or certified mail, postage prepaid, return receipt requested, in the manner
aforesaid.
9.3 Broker. Except as disclosed in the Agreement, Landlord and Tenant
respectively represent and warrant to each other that no broker has been
involved in connection with the consummation of this lease or the granting of
the purchase option or the put option and that no commission shall be paid to
any broker in consequence of the lease, the purchase option or the put option,
or the exercise of the foregoing options. Each party agrees to indemnify the
other from and against any loss, damage or expenses (including litigation costs
and reasonable attorneys' fees) by reason of any claim for compensation or
commission by any broker based upon an allegation of relations or negotiations
between the claimant and the indemnitor inconsistent with the representations
and warranties herein made. This representation, warranty and covenant shall
survive the Termination Date.
9.4 Integration. This writing is intended by the parties as a final
expression of their agreement and as a complete and exclusive statement of the
terms thereof, all negotiations, considerations and representations between the
parties having been incorporated herein. No course of prior dealings between the
parties or their affiliates shall be relevant or admissible to supplement,
explain or very any of the terms of this lease. Acceptance of or acquiescence in
a course of performance rendered under this or any prior agreement between the
parties or their affiliates shall not be relevant or admissible to determine the
meaning of any of the terms of this lease. No representations, understandings,
or agreements have been made or relied upon in the making of this lease other
than those specifically set forth herein. This lease can only be modified by a
writing signed by all of he parties hereto or their duly authorized agents.
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9.5 Authority. If Landlord or Tenant is a corporation, partnership or
limited liability company, the undersigned officer, partner, member or manager
hereby warrants and certifies to the other party that such party is an entity in
good standing and duly organized under the laws of the state of its organization
and is authorized to do business in New Jersey. The undersigned officer, partner
member or manager hereby further warrants and certifies to the other party that
he or she, as such officer, partner, member or manager is authorized and
empowered to bind the entity to the terms of this lease by this or her signature
thereto.
9.6 Tenant's Purchase Option. Tenant shall have the option to purchase
the Premises from Landlord. If the option is exercised on or after the 1st
anniversary of the Commencement Date, the purchase price shall be equal to
$405,039.00; if exercised on or after the 2nd anniversary of the Commencement
Date, the purchase price shall be equal to $358,913.00; if exercised on or after
the 3rd anniversary of the Commencement Date, the purchase price shall be equal
to $309,905.00; if exercised on or after the 4th anniversary of the Commencement
Date, the purchase price shall be equal to $256573.00; if exercised on or after
the 5th anniversary of the Commencement Date, the purchase price shall be equal
to $200,357.00; and if exercised on the 6th anniversary of the Commencement
Date, the purchase price shall be equal to $138,376.00. Tenant may exercise its
option to purchase the Premises only by delivering to Landlord a written notice
of its intention to exercise the option ("Tenant Exercise Notice") at least 60
days prior to the closing date desired by Tenant. The Tenant Exercise Notice
must be accompanied by an updated Title Report and Survey, together with written
notice of any title objection disclosed thereby or otherwise known to Tenant and
which Tenant believes it is not required to take title "subject to." If Tenant
exercises its option hereunder, Landlord shall deliver insurable title, subject
only to the exceptions as set forth in the Survey and Title Report, not
including any exceptions which Landlord agrees to discharge as set forth in
section 2.2 hereof Landlord shall take no action after the date hereof which
would create any encumbrance or title question. Notwithstanding Tenant's
exercise of its option hereunder, this lease shall remain in full force and
effect until the closing of title. Tenant may not exercise this option it either
at the time of the Tenant Exercise Notice or at the time of closing of title,
there exists any Event of Default or any event which would become an Event of
Default after the giving of notice and/or the lapse of time. The closing of
title shall terminate this lease and the date thereof shall be deemed the
Termination Date. TIME IS OF THE ESSENCE WITH RESPECT TO THE GIVING OF THE
TENANT EXERCISE NOTICE HEREUNDER STRICTLY IN ACCORDANCE WITH THE PROVISIONS OF
THIS SECTION 9.6. If this lease shall terminate for any reason prior to Tenant's
exercise of its option to purchase hereunder, the Tenant's option shall also
terminate.
9.7 Landlords "Put" Option. Landlord shall have the option to require
that Tenant purchase the Premises from Landlord on the 6th anniversary of the
Commencement Date for a purchase price equal to $138,376.00. Landlord may
exercise its option only by delivering to Tenant a written notice of its
exercise of this right ("Landlord Exercise Notice") at least 60 days prior to
the Termination Date, accompanied by proof that environmental remediation of the
Premises has been completed to such an extent that Tenant would not have any
material liability for further environmental remediation and the Premises has
been removed from the National
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Priorities List established under CERCLA. The Landlord Exercise Notice must be
accompanied by an updated Title Report and Survey showing no changes except for
the discharge of the exceptions set forth in section 2.2 hereof. If Landlord
exercises its option hereunder, Landlord shall deliver insurable title, subject
only to the exceptions as set forth in the Survey and Title Report, not
including any exceptions which Landlord agrees to discharge as set forth in
section 2.2 hereof Landlord shall take no action after the date hereof which it
knows or should know would create any encumbrance or title question.
Notwithstanding Landlord's exercise of its option hereunder, this lease shall
remain in full force and effect until the closing of title. Landlord may not
exercise this option if, either at the time of the Landlord Exercise Notice or
at the time of closing of title, there exists any default by Landlord hereunder,
under any Remedial Orders or under the Agreement. The closing of title shall be
on the Termination Date. TIME IS OF THE ESSENCE WITH RESPECT TO THE GIVING OF
THE LANDLORD EXERCISE NOTICE HEREUNDER STRICTLY IN ACCORDANCE WITH THE
PROVISIONS OF THIS SECTION 9.7. If this lease shall terminate for any reason
prior to Landlord's exercise of its Landlord's option hereunder, the option
shall also terminate.
9.8 Tenant Right to File Applications. Tenant shall have the right to
file site plan and other land use applications with respect to the Premises
prior to the expiration of the purchase option, provided that no such activities
by Tenant shall impose any present or future financial or other burdens,
conditions or other encumbrances on the Premises or Landlord. Tenant shall bear
the entire cost of any such applications and Landlord shall provide any
necessary consent thereto.
9.9 Remedial Order Restriction. This lease and any sublease, assignment,
sale or other transfer of any interest in the Premises is and shall be subject
to the following provisions, each of which is set forth in an Administrative
Consent Order dated December 7, 1992, as amended, affecting the Premises and
shall be included in the recorded memorandum of this lease:
(a) At least ninety (90) calendar days prior to the date of any
alienation, Landlord shall notify the NJDEP in writing of the proposed
alienation, the name of the grantee, the extent of the alienation, and a
description of the grantor's continuing obligations, if any, which grantee has
agreed to perform.
(b) At least ninety (90) calendar days prior to transfer of ownership of
the Premises, Landlord shall verify to the NJDEP that such notice of alienation
has been given.
(c) Any contract to alienate the Premises shall require the grantee to
allow the implementation and continuation of all activities and obligations
pursuant to the Administrative Consent Order and to allow Landlord, the NJDEP
and its authorized representatives access to the Premises for purposes of such
activities and obligations. No alienation shall affect Landlord's obligations
under the Administrative Consent Order.
(d) Landlord shall include in any instrument of conveyance, including a
deed, title, lease, easement or license of or for the Premises, a written notice
that the Premises is the subject of the Administrative Consent Order. Any such
instrument of conveyance shall be subject
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to the requirements set forth in the Administrative Consent Order regarding the
use of the Premises and deed restrictions.
The Administrative Consent Order shall be binding, jointly and severally, on the
Landlord, its successors, assignees and any trustee in bankruptcy or receiver
appointed pursuant to a proceeding in law or equity. The use and access
restrictions set forth in the Administrative Consent Order shall run with the
land and be for the benefit of and enforceable by the NJDEP and any citizen
which is or may be damaged as a result of violations of the use and access
restrictions. The use and access restrictions shall provide actual and
constructive notice to any subsequent grantee of the locations and
concentrations of all contaminants which remain at the Premises and of the use
and access restrictions imposed. Within thirty (30) calendar days after
Landlord's receipt of a written request from the NJDEP, Landlord shall record
the restrictions with the Xxxxxx County Clerk, Xxxxxx County, State of New
Jersey, and provide the NJDEP with a copy of this Administrative Consent Order
stamped "Filed" by the Xxxxxx County Clerk.
9.10 Cross-Estoppel Certificate. Each party agrees that at any time and
from time to time at reasonable intervals, within 10 days after written request
by the other party, the party will execute, acknowledge and deliver to the other
party and/or to its assignee, mortgagee or other secured party as may be
designated, a certificate stating: (i) that this lease is unmodified and in full
force and effect (or if there have been modifications, that this lease is in
full force and effect as modified, and identifying the modification agreements,
or if this lease is not in full force and effect the certificate shall so
state); (ii) the date to which Rent has been paid under this lease; (iii)
whether or not there is any existing default by Tenant in the payment of Rent or
other sum or money under this lease, and whether or not there is any other
existing default by either party under this lease with respect to which a notice
of default has been served, and if there is any such default, specifying the
nature and extent thereof, (iv) whether or not there are any set-offs, defenses
or counterclaims against enforcement of the obligations to be performed by the
party under this lease; and (v) such other matters relating to this lease as may
be reasonably requested by the other party or any of its designees.
9.11 Tenant's Recourse. Except for claims which Tenant may have against
Landlord arising under Section 2.6.2, Article 8 or Section 9.6 of this lease,
Tenant shall look solely to the Premises and Landlord's equity therein for the
payment of any damages or satisfaction of any liabilities or obligations of
Landlord, and no judgment obtained by Tenant shall be enforceable against
Landlord or any property of Landlord, other than the Premises.
10. DEFINED TERMS: INTERPRETATIONS.
10.1 Defined Terms: Terms identified in the heading, recitals and in
other provisions of this agreement shall have the meanings assigned to them
either wherever initially capitalized in this agreement or as set forth below:
Additional Rent. Any and all charges or amounts other than Base
Rent payable by Tenant, whether to Landlord or directly to other persons, under
the various sections of this lease.
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Agreement. The Asset Acquisition Agreement between the parties
dated as of February 26, 1996.
Annual Base Rent or Base Rent. The Base Rent, payable in monthly
installments in accordance with section 1.3.
Default Rate. A fluctuating rate of interest per annum equal to
the Prime Rate plus 4%.
Events of Default. Events of Default shall have the meanings
assigned in section 7. 1.
Force Majeure. Any cause beyond a party's reasonable control,
including acts of God, strikes, labor troubles, shortage of materials or
services, governmental pre-emption in connection with a national or local
emergency or by reason of any rule, order or regulation of any governmental
agency or by reason of the conditions of supply and demand which have been or
are affected by war, hostilities or similar emergency.
Permitted Use. Permitted Use shall have the meaning set forth in
section 1.4.
Premises. The Premises commonly known as 000 Xxxx Xxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxxxx, as shown on the site map annexed as Exhibit A hereto. The
Premises includes the buildings, driveways, parking areas and other improvements
located thereon. The Premises includes all trade and other fixtures located at
the Premises on the date hereof
Prime Rate. A fluctuating rate of interest per annum as published
from time to time by The Wall Street Journal as the generic "prime rate" of
interest.
Rent. All Base Rent and Additional Rent provided for herein.
Rental Year. The first Rental Year for the Premises shall
commence on the Commencement Date and shall end at the close of the 12th full
calendar month following the Commencement Date; thereafter each Rental Year
shall consist of successive periods of 12 calendar months. Any portion of the
Term remaining at the end of the last full Rental Year shall constitute the
final Rental Year and Rent shall be apportioned therefor. Landlord reserves the
right to change the Rental Year from time to time.
Taxes. Any real estate tax, special or general assessment real
estate rental receipt or gross receipt tax, unforeseen and foreseen, including
any other charge imposed with respect to the Premises or leases or rents payable
with respect thereto, by federal, state or local authorities. If at any time
during the term of this lease under the laws of the State of New Jersey or any
political subdivision thereof a tax or excise on rents is levied or assessed
against Landlord or the Base Rent as it substitution in whole or in part for or
as an addition to taxes assessed or
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imposed on land and buildings or on land or buildings, such substitute tax shall
be calculated as if the Premises were the only real property owned by the
Landlord, and the same shall be deemed to be included within the term "Taxes."
In no event shall Taxes include inheritance, estate or transfer taxes. Landlord
agrees to pay any special or general assessments in the maximum number of
installments permitted by the taxing authority and Taxes shall only include
those installments which are allocable to the Term.
Tax Year. Tax Year means each 12 month period (deemed for the
purposes of this section to have 365 days) established as the tax year by the
taxing authorities having lawful jurisdiction over the Premises.
Termination Date. The date provided in this lease for the end of
the Term, whether as a result of the expiration of this lease, an Event of
Default or otherwise.
10.2 Interpretations. Unless otherwise specified, the following rules of
construction shall be applicable for all purposes of this lease and all
documents or instruments supplemental hereto:
10.2.1 All references herein to numbered sections, subsections,
schedules or exhibits are references to the sections and subsections
hereof, and the schedules and exhibits attached hereto.
10.2.2 The terms "include," "including" and similar terms shall
be construed as if followed by the phrase "without being limited to."
10.2.3 The terms "Premises" and "improvements" and like terms
shall be construed as if followed by the phrase "or any part thereof."
10.2.4 Singular words include the plural and plural words include
the singular.
10.2.5 The term "person" shall include natural persons, firms,
partnerships, trusts, corporations, limited liability companies and any
other public and private legal entities.
10.2.6 The term "provisions," when used with respect hereto or to
any other document or instrument, shall be construed as if preceded by
the phrase "terms, covenants, agreements, requirements, conditions
and/or."
10.2.7 The terms "hereto," "herein," "hereof," "hereunder" and
similar terms shall refer to this agreement in its entirety, unless the
context clearly indicates otherwise.
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10.2.8 Any table of contents or section, subsection, schedule and
exhibit captions are used for convenience and reference only and in no
way define, limit or affect the construction of the provisions hereof.
10.2.9 No inference in favor of any party shall be drawn from the
fact that any other party has drafted any portion hereof.
10.2.10 All recitals set forth in, and all schedules and exhibits
to, this agreement are incorporated in this agreement.
10.2.11 The terms "lease" or "sublease" shall mean "lease,
sublease, tenancy, subtenancy, letting, subletting, license or
sublicense" and the term "Tenant" or "tenant" shall mean "subtenant,
lessee, sublessee, licensee, sublicensee or occupant."
10.2.12 Words importing any gender or number shall be deemed to
refer to the masculine, feminine, neuter, singular or plural as the
identity of the person or item requires.
10.2.13 This lease shall be construed, governed, and enforced
under the laws of the State of New Jersey.
10.2.14 If any provision of this lease shall to any extent be
invalid or unenforceable, the remainder of this lease, or the
application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each term and provision of this lease shall be
valid and be enforced to the fullest extent permitted by law.
10.2.15 The term "date hereof" shall mean the date a completely
executed copy of this lease has been delivered to the Landlord or its
attorney. All time periods hereunder shall commence and be measured
starting on the first calendar day following the date hereof which is
not a Saturday, Sunday or holiday on which national banks are closed for
business within the State of New Jersey.
10.2.16 The term "law" shall mean and include any present or
future statute, ordinance, rule, regulation, code, order, opinion or
similar governmental action or directive, including any executive, court
or administrative order or decision enforcing or interpreting any of the
foregoing. References to any particular statutes, ordinances, rules or
regulations shall be deemed to include any predecessor, successor or
replacement statutes, ordinances, rules or regulations.
10.2.17 The submission of this agreement for examination does not
constitute an offer, reservation of or option for the Premises, and this
agreement shall become binding and effective only upon execution and
delivery by all parties.
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10.2.18 This agreement is intended by the parties as a final
expression of their agreement and as a complete and exclusive statement
of the terms hereof. All negotiations, considerations and
representations between the parties have been incorporated herein. No
course of prior dealing between the parties or their principals, agents
or affiliates, shall be relevant or admissible to supplement explain or
vary any of the terms of this agreement. Acceptance of or acquiescence
in a course of performance rendered under this or any prior agreement
between the parties or their principals, agents or affiliates shall not
be relevant or admissible to determine the meaning of any of the terms
of this lease. No representations, understandings or agreements have
been made or relied upon in the making of this agreement other than
those specifically set forth herein. This agreement cannot be modified
orally, but only by a writing signed by all of the parties hereto or
their duty authorized agents.
10.2.19 This agreement may be executed in any number of
counterparts (and by facsimile signature pages), all of which taken
together shall constitute the original hereof. When counterparts have
been executed by and delivered to all parties hereto, or their counsel,
they shall have the same effect and if the signatures were all on the
same copy hereof.
IN WITNESS WHEREOF, the undersigned have caused their duly
authorized representatives to set their hands and affix their seals as of the
date first above written.
RTI INC., Landlord
By: /s/ XXXX XXXXXX
----------------------------------------
Xxxx Xxxxxx, President
STERIGENICS LAST CORPORATION,
Tenant
By: /s/ XXXXXX X. XXXXXX
----------------------------------------
Xxxxxx X. Xxxxxx, Vice-President
LIST OF EXHIBITS
Exhibit A - Description of Premises
Exhibit B - Extension Option Rider
Exhibit 2.1 Form of Memorandum of Lease
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EXHIBIT A
[Description of Premises]
32
EXHIBIT B
EXTENSION OPTION RIDER
The lease dated August 8, 1996 ("Lease") between RTI INC. ("Landlord")
and STERIGENICS EAST CORPORATION ("Tenant") is modified as RAW:
1. All defined terms and interpretations set forth in the Lease shall
be fully applicable to this Rider.
2. Tenant shall have one (1) option, exercisable by notice to Landlord
at least 12 months prior to the expiration of the then remaining Term, to extend
the Term for a period of 5 years upon the same terms and conditions as are
contained in the Lease. No option shall be exercisable by Tenant unless at the
time of exercise and a the beginning of the renewal Term (a) the Lease is then
in full force and effect, (b) there has been no Event of Default thereunder
during the Term (whether or not waived by Landlord or cured by Tenant) and (c)
there is no event which, upon a lapse of time or the giving of notice, or both,
would become an Event of Default. TIME IS OF THE ESSENCE for the exercise of any
option hereunder.
RTI INC., Landlord
By: ____________________
Xxxx Xxxxxx, President
STERIGENICS EAST CORPORATION,
Tenant
By: _____________________
Xxxxxx X. Xxxxxx, Vice-President
33
EXHIBIT B
GUARANTY
In order to induce RTI, Inc., ("Landlord") to enter into a lease dated
August 8, 1996, ("Lease") with STERIGENICS EAST CORPORATION ("Tenant") for the
Premises located in the Township of Rockaway, County of Xxxxxx, State of New
Jersey, and as more particularly described on Exhibit A to the Lease
("Premises"), the undersigned ("Guarantor") in consideration of the sum of Ten
($10.00) Dollars and other good and valuable consideration, the receipt and
sufficiency whereof is hereby acknowledged, irrevocably and unconditionally
guarantees to Landlord the due, prompt and punctual payment and the prompt
performance by the Tenant of all of its obligations pursuant to the Lease,
including, without limitation, Tenant's obligations, if any, under Section 9.7
of the Lease ("Obligations"), all irrespective of the validity, binding effect,
legality or enforceability of the Lease or whether the Lease shall have been
duly executed by Tenant, any other circumstance which might now or hereafter or
otherwise constitute a legal or equitable discharge or defense of a guarantor.
Guarantor shall, upon demand, pay, perform or observe any term, covenant or
condition of the Lease in the same place and stead as Tenant. Capitalized terms
defined in the Lease and not defined herein shall have the same meanings when
used herein.
Guarantor is the parent corporation of Tenant and acknowledges that the
lease of the Premises to Tenant will provide substantial direct and indirect
benefits to Guarantor.
Guarantor agrees further that this Guaranty and Guarantor's liability
hereunder shall not be impaired or affected by any assignment, subleasing,
modification, supplement, extension or amendment of the Lease, nor by any
modification, release or other alteration of any of the Obligations hereby
guaranteed, nor by any other agreements or arrangements whatever with the Tenant
or anyone else. This Guaranty is an absolute, unconditional and irrevocable
guaranty of payment and performance (and not merely of collection). The
liability of Guarantor, as set forth above, is co-extensive with that of Tenant
and this Guaranty shall be enforceable against Guarantor without the necessity
of any suit or proceedings on Landlord's part of any kind or nature whatsoever
against Tenant and without the necessity of any notice of non-payment,
nonperformance or non-observance, or any notice of acceptance of this Guaranty,
or any other notice or demand to which Guarantor might otherwise be entitled,
all of which Guarantor hereby expressly waives.
Guarantor hereby expressly waives any right of contribution from or
indemnity against Tenant, whether at law or in equity, arising from any payments
made by Guarantor pursuant to the terms of this Guaranty and Guarantor
acknowledges that Guarantor has no right whatsoever to proceed against Tenant
for reimbursement of any such payments. In connection with the foregoing,
Guarantor expressly waives any and all rights of subrogation or otherwise to any
rights of Landlord against Tenant, and Guarantor hereby waives any rights to
enforce any remedy which Landlord may have against Tenant. In addition to and
without any way limiting the foregoing, Guarantor hereby subordinates any and
all indebtedness of Tenant now or hereafter owed to Guarantor to all Obligations
of Tenant to Landlord, and agrees with Landlord that Guarantor shall
34
not demand or accept any payment of principal or interest from Tenant and shall
not claim any offset or other reduction of Guarantor's obligations hereunder
because of any such indebtedness.
Guarantor hereby expressly agrees that this Guaranty shall be a
continuing guaranty and that the validity or this Guaranty and the obligations
and liability of Guarantor hereunder shall in no way be terminated, affected,
diminished or impaired by reason of (a) the assertion of or the failure by
Landlord to assert against Tenant any of the rights or remedies reserved to
Landlord pursuant to the terms, covenants and conditions of the Lease, (b) any
assignment of the Lease or subletting of the Premises, (c) any renewal or
extension of the Lease or any modification thereof, whether pursuant to the
Lease or by subsequent agreement of Landlord and Tenant, (d) any extension of
time that may be granted by Landlord to Tenant, (e) any consent, indulgence or
other action, inaction or omission under or in respect of the Lease, or (f) any
dealings or transactions or matter or thing occurring between Landlord and
Tenant, (g) any bankruptcy, insolvency, reorganization, arrangement, assignment
for the benefit of creditors, receivership or trusteeship affecting Tenant or
Tenant's successors or assigns whether or not notice thereof is given to
Guarantor, (h) any modification, amendment, revision, supplement or other change
to the Lease, whether or not made with the consent of Guarantor, or (i) any
matter or thing whatsoever, whether or not specifically mentioned herein, other
than full payment and performance of all of the Obligations.
Guarantor also agrees to indemnify Landlord and hold Landlord harmless
against all obligations demands and liabilities, by whomever asserted, and
against all losses in any way suffered, incurred or paid by Landlord as a result
of or in any way arising out of, or following, or consequential to a breach by
Tenant of any of its Obligations and to pay all costs and expenses, including
reasonable attorneys' fees, of any proceeding by Guarantor to enforce the Lease
or this Guaranty.
Guarantor expressly waives the following: notice of acceptance hereof,
presentment and protest of any instrument and notice thereof notice: of default;
and all other notices to which such Guarantor might otherwise be entitled.
Guarantor represents and warrants to Landlord as follows:
A. The execution, delivery and performance by Guarantor of this
Guaranty have been duly authorized by all necessary corporate action.
B. Guarantor is not in material default in the terms and conditions of
any material agreement to which it is a party or by which it is bound, such as
would materially and adversely affect its ability to carry out the terms,
covenants and conditions of this Guaranty.
C. Guarantor has the full power, authority and legal right to execute
and deliver, and to perform and observe the provisions of, this Guaranty
including the payment of all moneys hereunder. This Guaranty constitutes the
legal, valid and binding obligation of Guarantor enforceable in accordance with
its terms, except as enforcement thereof may be limited by (a) bankruptcy,
insolvency, moratorium, reorganization or other similar laws affecting
creditors'
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35
rights generally or (b) the nonavailability of equitable or legal remedies which
are discretionary with the courts.
D. Guarantor is not in violation of any decree, ruling judgment, order
or injunction applicable to it, nor any law, ordinance, rule or regulation of
whatever nature which taken alone or in the aggregate, would materially and
adversely affect its ability to carry out any of the terms, covenants, and
conditions of this Guaranty. There are no actions, proceedings, or
investigations pending or, to the best of Guarantor's knowledge, threatened
against or affecting Guarantor (or any basis therefor known to Guarantor) before
or by any court, arbitrator, administrative agency or other governmental
authority or entity, which, taken alone or in the aggregate, if adversely
decided, would materially and adversely affect its ability to carry out any of
the terms, covenants and conditions of this Guaranty.
E. Tenant is a wholly-owned subsidiary of Guarantor and accordingly
Guarantor has a substantial financial interest in Tenant and its performance
under the Lease.
No failure or delay on the part of Landlord in exercising any right,
power or privilege under this Guaranty shall operate as a waiver of or otherwise
affect any such right, power or privilege, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
Guarantor agrees at any time and from time to time during the Term,
within 10 days after written request from Landlord, to execute, acknowledge and
deliver to Landlord or to a third party a statement in writing certifying that
this Guaranty is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications). Landlord and any such third party shall have the right to
rely upon the contents of any such written statement of Guarantor.
Guarantor acknowledges and agrees that all disputes arising directly or
indirectly, out of or relating to this Guaranty, and all actions to enforce this
Guaranty, may be dealt with and adjudicated in the state courts of New Jersey or
the Federal courts sitting in New Jersey; and hereby expressly and irrevocably
submits the person of Guarantor to the jurisdiction of such courts in any suit,
action or proceeding arising, directly or indirectly, out of or relating to this
Guaranty. So far as is permitted under applicable law, this consent to personal
jurisdiction shall be self-operative and no further instruction or action, other
than service of process in one of the manners specified in this Guaranty, or as
otherwise permitted by law, shall be necessary in order to confer jurisdiction
upon the person of Guarantor in any such court.
Provided that service of process is effected upon Guarantor in one of
the manners hereafter specified in this Guaranty or as otherwise permitted by
law, Guarantor irrevocably waives, to the fullest extent permitted by law, and
agrees not to assert, by way of motion, as a defense or otherwise, (a) any
objection which it may have or may hereafter have to the laying of the venue of
any such suit, action or proceeding brought in such court as is mentioned in the
previous paragraph, (b) any claim that any such suit, action or proceeding
brought in such a court has been brought in an inconvenient forum, or (c) any
claim that it is not personally subject to the
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36
jurisdiction of the above-named courts. Provided that service of process is
effected upon Guarantor in one of the manners hereafter specified in this
Guaranty or as otherwise permitted by law, Guarantor agrees that final judgment
from which Guarantor has not appealed or may not appeal or further appeal in any
such suit, action or proceeding brought in such a court of competent
jurisdiction shall be conclusive and binding upon Guarantor and may, so far as
it is permitted under applicable law, be enforced in the courts of any state or
any Federal court and in any other courts to the jurisdiction of which Guarantor
is subject, including, without intending any limitation, as to the Guarantor,
the courts of New Jersey by a suit upon such judgment and that Guarantor will
not assert any defense, counterclaim, or set off in any such suit upon such
judgment.
Guarantor agrees to execute, deliver and file all such further
instructions as may be necessary under the laws of the State of New Jersey, in
order to make effective the consent of Guarantor to jurisdiction of the state
courts of New Jersey and the Federal courts sitting in New Jersey.
Guarantor hereby consents to process being served in any suit, action
or proceeding of the nature referred to in this (Guaranty by the mailing of a
copy thereof by registered or certified mail, postage prepaid, return receipt
requested to Sterigenics International, 0000 Xxxxxxx Xxxxx, Xxxxxxx, XX
00000-0000, Attn: Xxxxx X. Xxxxxxx, or to any other address of which Guarantor
shall have given written notice to Landlord (said notice being actually
received). Provided that service is made in accordance with this Section or
otherwise as permitted by law, Guarantor irrevocably waives, to the fullest
extent permitted by law, all claim of error by reason or any such service and
agrees that such service (a) shall be deemed in every respect effective service
of process upon Guarantor in any such suit, action of proceeding and (b) shall,
to the fullest extent permitted by law, be taken and held to be valid personal
service upon and personal delivery to Guarantor.
Should Landlord be obligated by any bankruptcy or other law to repay to
Tenant or Guarantor or to any trustee, receiver or other representative of
either of them, any amounts previously paid, then this, Guaranty shall be
reinstated in the amount of such repayment, Landlord shall not be required to
litigate or otherwise dispute its obligation to make such repayments if it in
good faith and on the advice of counsel believes that such obligation exists.
In the event that this Guaranty shall be held ineffective or
unenforceable by any court of competent jurisdiction, Guarantor shall be deemed
to be a tenant under the Lease with the same force and effect as if Guarantor
were expressly named as a joint tenant therein with joint and several liability.
All remedies afforded to Landlord by reason of this Guaranty are
separate and cumulative remedies and it is agreed that no one of such remedies,
whether exercised by Landlord or not, shall be deemed to be in exclusion of any
other remedy available to Landlord and shall not limit or prejudice any other
legal or equitable remedy which Landlord may have.
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37
If any provision of this Guaranty or the application thereof to any
person or circumstance shall to any extent be held void, unenforceable or
invalid, then the remainder of this Guaranty or the application of such
provision to persons or circumstances other than those as to which it is held
void, unenforceable or invalid shall not be affected thereby and each provision
of this Guaranty shall be valid and enforced to the fullest extent permitted by
law.
As a further inducement to Landlord to make and enter into the Lease
and in consideration thereof, Guarantor hereby waives trial by jury and the
right thereto in any action or proceeding of any kind or nature, arising on,
under or by reason of or relating to, this Guaranty or any agreement collateral
hereto.
No waiver or modification of any provision of this Guaranty nor any
termination of this Guaranty shall be effective unless in writing and signed by
Landlord, nor shall any waiver be applicable, except in the specific instance
for which it is given.
If the Guarantor is a corporation or partnership, attached hereto is a
true, certified copy of corporate resolutions of the Guarantor pursuant to which
its entering into this Guaranty has been authorized by all requisite corporate
or partnership action. If this Guaranty is signed by more than one party, the
parties' liabilities, shah be joint and several.
Each individual signing below represents and warrants to Landlord that
he is authorized to execute this Guaranty on behalf of Guarantor or other entity
for which he signed and that said corporation or entity is bound thereby.
This Guaranty, all acts and transactions hereunder, and the rights and
obligations of the parties hereto shall be binding upon successors and assigns
of Guarantor, may not be changed or modified orally, and shall inure to the
benefit of Landlord's successors and assigns.
STERIGENICS INTERNATIONAL, INC.
(Guarantor)
BY: /s/ XXXXXX X. XXXXXX
--------------------------------
Xxxxxx X. Xxxxxx, Vice President
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00
XXXXXXXXX XXXXXXXXXXXXXXX
XXXXX XX XXX XXXX:
ss:
COUNTY OF New York
BE IT REMEMBERED, that on this 8th day of August, 1996, before me, the
subscriber, a notary public of the State of New York, personally appeared Xxxxxx
X. Xxxxxx, who, being by me duly sworn on his oath, deposed and made proof to my
satisfaction that be is the, Vice President of Sterigenics International, and
the person who has signed the within instrument; and I having first made known
to him the contents thereof, he did acknowledge that he signed and delivered the
same as such officer on behalf of the corporation as its voluntary ad and deed,
made by virtue of authority from its board of directors, for the uses and
purposes therein expressed.
/s/ XXXXXXX X. XXXXXXX
--------------------------
Xxxxxxx X. Xxxxxxx
Notary Public
(Apply Raised Seal and Stamp indicating expiration
date of Commission)
XXXXXXX X. XXXXXXX
Notary Public, State of Now York
No. 00-0000000
Qualified in New York County
Commission Expires September 30, 199
