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EXHIBIT 10.24
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XXXXX MOUNTAIN INDUSTRIES, INC.
Landlord,
and
SLEEPMASTER PRODUCTS COMPANY, L.P.
Tenant
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LEASE
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Premises:
0000 Xxxxx Xxxx Xxxxxx, Xxx Xxxxxx
240,154 Square Feet
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TABLE OF CONTENTS
ARTICLES PAGE
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1 - DEFINITIONS...............................................................2
2 - DEMISE AND TERM...........................................................5
3 - RENT......................................................................6
4 - USE OF DEMISED PREMISES...................................................7
5 - PREPARATION OF DEMISED PREMISES...........................................7
6 - TAX AND OPERATING EXPENSE PAYMENTS........................................8
7 - SECURITY..................................................................9
8 - SUBORDINATION............................................................10
9 - QUIET ENJOYMENT..........................................................12
10 - ASSIGNMENT, SUBLETTING AND MORTGAGING...................................12
11 - COMPLIANCE WITH LAWS....................................................15
12 - INSURANCE AND INDEMNITY.................................................15
13 - RULES AND REGULATIONS...................................................18
14 - ALTERATIONS AND SIGNS...................................................18
15 - LANDLORD'S AND TENANT'S PROPERTY........................................19
16 - REPAIRS AND MAINTENANCE.................................................20
17 - UTILITY CHARGES.........................................................21
18 - ACCESS, CHANGES AND NAME................................................22
19 - MECHANICS' LIENS AND OTHER LIENS........................................22
20 - NON-LIABILITY AND INDEMNIFICATION.......................................23
21 - DAMAGE OR DESTRUCTION...................................................24
22 - EMINENT DOMAIN..........................................................25
23 - SURRENDER...............................................................26
24 - CONDITIONS OF LIMITATION................................................27
25 - RE-ENTRY BY LANDLORD....................................................28
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26 - DAMAGES.................................................................29
27 - AFFIRMATIVE WAIVERS.....................................................31
28 - NO WAIVERS..............................................................32
29 - CURING TENANT'S DEFAULTS................................................32
30 - BROKER..................................................................32
31 - NOTICES.................................................................33
32 - ESTOPPEL CERTIFICATES...................................................33
33 - ARBITRATION.............................................................33
34 - MEMORANDUM OF LEASE.....................................................34
35 - MISCELLANEOUS...........................................................34
EXHIBITS
Exhibit A - Description of Land
Exhibit B - Site Plan
Exhibit C - Work and Installation to be Performed and Furnished in Demised
Premises
Exhibit D - Rules and Regulations
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LEASE, dated October 13, 1993, between XXXXX MOUNTAIN INDUSTRIES, INC.,
a New York corporation, having an office at 000 Xxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000-0000 ("Landlord"), and SLEEPMASTER PRODUCTS COMPANY, L.P., a
Delaware limited partnership, having an office at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxx
Xxxxxx 00000 ("Tenant").
ARTICLE 1 - DEFINITIONS
1.01. As used in this Lease (including in all Exhibits and any Riders
attached hereto, all of which shall be deemed to be part of this Lease) the
following words and phrases shall have the meanings indicated:
A. Advance Rent: 60,038.50
B. Additional Charges: All amounts that become payable by Tenant to
Landlord hereunder other than the Fixed Rent.
C. Architect: Xxxxxxx Xxxx Xxxxx, or as Landlord may designate.
D. Broker: Xxxxxx & Zuckerbrot
E. Building: The building or buildings located on the Land and known as
0000 Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000.
F. Business Days: All days except Saturdays, Sundays, days observed by
the federal or state government as legal holidays.
G. Business Hours: Generally customary daytime business hours, but not
before 9:00 A.M. or after 6:00 P.M.
H. Calendar Year: Any twelve-month period commencing on a January 1.
I. Commencement Date: The earlier of (a) the date on which both: (i)
the Demised Premises shall be Ready for Occupancy, and (ii) actual possession of
the Demised Premises shall have been delivered to Tenant by notice to Tenant, or
(b) the date Tenant, or anyone claiming under or through Tenant, first occupies
the Demised Premises or any part thereof for any purpose other than the
performance of Tenant's Work.
J. Demised Premises: The Building and the Land in Linden, New Jersey
depicted as lot 7 Block 581 on the site plan attached hereto as Exhibit B, which
includes a Building containing approximately 240.154 square feet of Floor Space,
K. Expiration Date: The date that is the day before the tenth (10th)
anniversary of the Commencement Date if the Commencement Date is the first day
of a month, or the tenth (10th) anniversary of the last day of the month in
which the Commencement Date occurs if the Commencement Date is not the first day
of a month. However, if the Term is extended by Tenant's effective exercise of
Tenant's right, if any, to extend the Term, the "Expiration Date" shall be
changed to the last day of the latest extended period as to which
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Tenant shall have effectively exercised its right to extend the Term. For the
purposes of this definition, the earlier termination of this Lease shall not
affect the "Expiration Date."
L. Fixed Rent: Commencing on the Commencement Date through the date
which is the day before the fifth anniversary of the Commencement Date, an
amount at the annual rate of Three and 00/100 ($3.00) Dollars multiplied by the
Floor Space; and from the fifth (5th) anniversary of the Commencement Date
through the Expiration Date, an amount at the annual rate of Three and 50/100
Dollars ($3.50) multiplied by the Floor Space of the Demised Premises.
M. Floor Space: As to the Demised Premises, the sum of the floor area
stated in square feet bounded by the exterior faces of the exterior walls. Any
reference to Floor Space of a building shall mean the floor area of all levels
or stories of such building, excluding any roof, except such portion thereof
(other than cooling towers, elevator penthouses, mechanical rooms, chimneys and
staircases, entrances and exits) as is permanently enclosed, and including any
interior basement level or mezzanine area not occupied or used by a tenant on a
continuing or repetitive basis, and any mechanical room, enclosed or interior
truck dock, and areas used by Landlord for storage, for housing meters and/or
other equipment or for other purposes. Any reference to the Floor Space is
intended to refer to the Floor Space of the entire area in question irrespective
of the Person(s) who may be the owner(s) of all or any part thereof.
N. Guarantor: None.
O. Insurance Requirements: Rules, regulations, orders and other
requirements of the applicable board of underwriters and/or the applicable fire
insurance rating organization and/or any other similar body performing the same
or similar functions and having jurisdiction or cognizance over the Land and
Building, whether now or hereafter in force.
P. Land: The land described on Exhibit A, upon which the Building is
located.
Q. Landlord's Work: The materials and work to be furnished, installed
and performed by Landlord at its expense in accordance with the provisions of
Exhibit C.
R. Legal Requirements: Laws and ordinances of all federal, state,
county, and municipal governments, and rules, regulations, orders and directives
of all departments, subdivisions, bureaus, agencies or offices thereof, and of
any other governmental, public or quasi-public authorities having jurisdiction
over the Land and Building, whether now or hereafter in force, including, but
not limited to, those pertaining to environmental matters.
S. Mortgage: A mortgage and/or a deed of trust.
T. Mortgagee: A holder of a mortgage or a beneficiary of a deed of
trust.
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U. Operating Expenses: The cost and expense (whether or not within the
contemplation of the parties) for the insurance and operation of the Building
and Land. The "Operating Expenses" shall include, without limitation, the
following: (i) the cost for rent, casualty, liability, boiler and fidelity
insurance, if not purchased directly by Tenant pursuant to Section 12.01; (ii)
reasonable legal, accounting and other professional fees, plus (iii) 5% of the
resulting total of all of the foregoing items making up "Operating Expenses" for
Landlord's home office administration and overhead cost and expense. All items
included in Operating Expenses shall be determined in accordance with generally
accepted accounting principles consistently applied.
V. Permitted Uses: Light manufacturing of bedding (mattresses), and
warehouse storage and distribution of bedding (mattresses) and related items in
connection with Tenant' business, and ancillary office use in not more than
10,000 square feet of Floor Space.
W. Person: A natural person or persons, a partnership, a corporation,
or any other form of business or legal association or entity.
X. Ready for Occupancy: The condition of the Demised Premises when for
the first time the Landlord's Work shall have been substantially completed and a
temporary or permanent Certificate of Occupancy shall have been issued
permitting use of the Demised Premises for the Permitted Uses. The Landlord's
Work shall be deemed substantially completed notwithstanding the fact that minor
or insubstantial details of construction, mechanical adjustment or decoration
remain to be performed, the noncompletion of which does not materially interfere
with Tenant's use of the Demised Premises.
Y. Real Estate Taxes: The real estate taxes, assessments, special
assessments, sewer rents, water charges, and all other similar charges and
impositions imposed upon the Building and Land by any federal, state, municipal
or other governments or governmental bodies or authorities, and any expenses
incurred by Landlord in contesting such taxes or assessments and/or the assessed
value of the Building and Land, which expenses shall be allocated to the period
of time to which such expenses relate. If at any time during the Term the
methods of taxation prevailing on the date hereof shall be altered so that in
lieu of, or as an addition to or as a substitute for, the whole or any part of
such real estate taxes, assessments and special assessments now imposed on real
estate there shall be levied, assessed or imposed (a) a tax, assessment, levy,
imposition, license fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom, or (b) any other such additional or
substitute tax, assessment, levy, imposition or charge, then all such taxes,
assessments, levies, impositions, fees or charges or the part thereof so
measured or based shall be deemed to be included within the term "Real Estate
Taxes" for the purposes hereof. Real Estate Taxes shall not include income or
gains taxes imposed on Landlord.
Z. Rent: The Fixed Rent and the Additional Charges.
AA. Rules and Regulations: The reasonable rules and regulations that
may be promulgated by Landlord from time to time, which may be reasonably
changed by Landlord from time to time. The Rules and Regulations now in
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effect are attached hereto as Exhibit D provided, however, that such Rules and
Regulations shall not be enforced against Tenant in a discriminatory manner and
they shall not unreasonably affect the conduct of the Tenant's business.
BB. Security Deposit: $240,154.00 in cash or by Letter of Credit.
CC. Successor Landlord: As defined in Section 8.03.
DD. Superior Lease: Any lease to which this Lease is, at the time
referred to, subject and subordinate, including but not limited to the Lease
between Xxxxxxx Enterprises as Landlord and Xxxxx Mountain Industries, Inc. as
Tenant dated September 26, 1990.
EE. Superior Lessor: The lessor of a Superior Lease or its successor in
interest, at the time referred to.
FF. Superior Mortgage: Any Mortgage to which this Lease is, at the time
referred to, subject and subordinate.
GG. Superior Mortgagee: The Mortgagee of a Superior Mortgage at the
time referred to.
HH. Tenant's Property: As defined in Section 15.02.
II. Tenant's Work: The facilities, materials and work which may be
undertaken by or for the account of Tenant (other than the Landlord's Work) to
equip, decorate and furnish the Demised Premises for Tenant's occupancy in
accordance with the provisions of Exhibit C.
JJ. Term: The period commencing on the Commencement Date and ending at
11:59 p.m. of the Expiration Date, but in any event the Term shall end on the
date when this Lease is earlier terminated.
KK. Unavoidable Delays: A delay arising from or as a result of a
strike, lockout, or labor difficulty, explosion, sabotage, accident, riot or
civil commotion, act of war, fire or other catastrophe, Legal Requirement or an
act of the other party and any cause beyond the reasonable control of that
party, provided that the party asserting such Unavoidable Delay has exercised
its best efforts to minimize such delay.
ARTICLE 2 - DEMISE AND TERM
2.01, Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term. This Lease is subject to (a) any
and all existing encumbrances, conditions, rights, covenants, easements,
restrictions and rights of way, of record, and other matters of record,
applicable zoning and building laws, regulations and codes, and such matters as
may be disclosed by an inspection or survey, and (b) easements now or hereafter
created by Landlord in, under, over, across and upon a strip of land twenty feet
(20') in width running along all lot lines of the Land for sewer,
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water, electric, gas and other utility lines and services now or hereafter
installed; provided, however, Landlord represents covenants and warrants to
Tenant that the Demises Premises may be used and occupied for the purposes set
forth herein; and that the foregoing shall in no manner interfere with Tenant's
use and quiet enjoyment of the Demised Premises. Promptly following the
Commencement Date, the parties hereto shall enter into an agreement in form and
substance satisfactory to Landlord setting forth the Commencement Date.
ARTICLE 3 - RENT
3.01. Tenant shall pay the Fixed Rent in equal monthly installments in
advance on the first day of each and every calendar month during the Term
(except that Tenant shall pay, upon the execution and delivery of this Lease by
Tenant, the Advance Rent, to be applied against the first installment or
installments of Fixed Rent becoming due under this Lease). If the Commencement
Date occurs on a day other than the first day of a calendar month, the Fixed
Rent for the partial calendar month at the commencement of the Term shall be
prorated.
3.02. The Rent shall be paid in lawful money of the United States to
Landlord at its office, or such other place, or Landlord's agent, as Landlord
shall designate by notice to Tenant. Tenant shall pay the Rent promptly when due
without notice or demand therefor and without any abatement, deduction or setoff
for any reason whatsoever, except as may be expressly provided in this Lease. If
Tenant makes any payment to Landlord by check, same shall be by check of Tenant
and Landlord shall not be required to accept the check of any other Person, and
any check received by Landlord shall be deemed received subject to collection.
If any check is mailed by Tenant, Tenant shall post such check in sufficient
time prior to the date when payment is due so that such check will be received
by Landlord on or before the date when payment is due. Tenant shall assume the
risk of lateness or failure of delivery of the mails, and no lateness or failure
of the mails will excuse Tenant from its obligation to have made the payment in
question when required under this Lease.
3.03. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Rent shall be deemed to be other than a payment
on account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law
provided.
3.04. If Tenant is in arrears in payment of Rent, Tenant waives
Tenant's right, if any, to designate the items to which any payments made by
Tenant are to be credited, and Landlord may apply any payments made by Tenant to
such items as Landlord sees fit, irrespective of and notwithstanding any
designation or request by Tenant as to the items to which any such payments
shall be credited.
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3.05. In the event that any installment of Rent due hereunder shall be
overdue for ten (10) days, a "Late Charge" equal to three percent (3%) or the
maximum rate permitted by law, whichever is less ("Late Payment Rate") for Rent
so overdue may be charged by Landlord for each month or part thereof that the
same remains overdue. Any such Late Charges if not previously paid shall, at the
option of the Landlord, be added to and become part of the next succeeding Rent
payment to be made hereunder.
ARTICLE 4 - USE OF DEMISED PREMISES
4.01. Tenant shall use and occupy the Demised Premises for the
Permitted Uses, and Tenant shall not use or permit or suffer the use of the
Demised Premises or any part thereof for any other purpose.
4.02. If any governmental license or permit, other than a Certificate
of Occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises or any part thereof, Tenant shall duly procure
and thereafter maintain such license or permit and submit the same to Landlord
for inspection. Tenant shall at all times comply with the terms and conditions
of each such license or permit. Tenant shall not at any time use or occupy, or
suffer or permit anyone to use or occupy the Demised Premises, or do or permit
anything to be done in the Demised Premises, in any manner which (a) violates
the Certificate of Occupancy for the Demised Premises or for the Building; (b)
causes or is liable to cause injury to the Building or any equipment, facilities
or systems therein; (c) constitutes a violation of the Legal Requirements or
Insurance Requirements; (d) impairs or tends to impair the character, reputation
or appearance of the Building; (e) impairs or tends to impair the proper and
economic maintenance, operation and repair of the Building and/or its equipment,
facilities or systems.
ARTICLE 5 - PREPARATION OF DEMISED PREMISES
5.01. (a) The Demised Premises shall be completed and prepared for
Tenant's occupancy in the manner described in, and subject to the provisions of,
Exhibit C at Landlord's sole cost and expense. Tenant shall occupy the Demised
Premises promptly after the same are Ready for Occupancy and possession thereof
is delivered to Tenant by Landlord giving to Tenant a notice of such effect.
Except as expressly provided to the contrary in this Lease. the taking of
possession by Tenant of the Demised Premises shall be conclusive evidence as
against Tenant that the Demised Premises and the Building were in good and
satisfactory condition at the time such possession was taken. Except as
expressly provided to the contrary in this Lease, Tenant is leasing the Demised
Premises "as is" on the date hereof.
(b) Tenant shall, within ten (10) days of the date hereof,
provided Landlord with all information Landlord needs to prepare working
drawings for the construction of Landlord's Work.
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5.02. If the substantial completion of the Landlord's Work shall be
delayed due to (a) any act or omission of Tenant or any of its employees, agents
or contractors (including, without limitation, [i] any delays due to changes in
or additions to the Landlord's Work, or [ii] any delays by Tenant in the
submission of plans, drawings, specifications or other information or in
approving any working drawings or estimates or in giving any authorizations or
approvals), or (b) any additional time needed for the completion of the
Landlord's Work by the inclusion in the Landlord's Work of any items specified
by Tenant requiring long lead time for delivery or installation, then the
Demised Premises shall be deemed Ready for Occupancy on the date when they would
have been ready but for such delay(s). The Demised Premises shall be
conclusively presumed to be in satisfactory condition on the Commencement Date
except for the minor or insubstantial details of which Tenant gives Landlord
notice within thirty (30) days after the Commencement Date specifying such
details with reasonable particularity.
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01. Throughout the Term, Tenant agrees to pay to Landlord as an
"Additional Charge" hereunder within fifteen (15) days in advance of the final
date for which such is due without interest or penalty, all Real Estate Taxes.
If any assessment is payable in annual installments or in a lump sum and Tenant
does not elect to reimburse Landlord for such assessment in a lump sum, there
shall be added to the amount of the Real Estate Taxes payable for the Calendar
Year in which such assessment is payable and such subsequent calendar years only
that amount of such assessment, together with such interest thereon, as would
have been payable to the municipality in said Calendar Year if Landlord had
elected to pay said assessment in annual installments. Landlord shall submit to
Tenant copies of all bills covering Real Estate Taxes. Landlord represents that
the Land constitutes a separate tax lot (Block 581, Lot 7), and is fully
assessed.
6.02. Tenant shall pay to Landlord the Operating Expenses within ten
(10) days after Landlord submits to Tenant an invoice for the Operating
Expenses.
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6.03. Each such statement given by Landlord pursuant to Section 6.01 or
Section 6.02 shall be prima facie conclusive and binding upon Tenant unless
within 90 days after the receipt of such statement Tenant shall notify Landlord
that it disputes the correctness of the statement, specifying the particular
respects in which the statement is claimed to be incorrect. if such dispute is
not settled by agreement, either party may submit the dispute co arbitration as
provided in Article 33. Pending the determination of such dispute by agreement
or arbitration as aforesaid, Tenant shall, within ten (110) days after receipt
of such statement, pay the Additional Charges in accordance with Landlord's
statement, without prejudice to Tenant's position. If the dispute shall be
determined in Tenant's favor, Landlord shall forthwith pay to Tenant the amount
of Tenant's overpayment resulting from compliance with Landlord's statement.
ARTICLE 7 - SECURITY
7.01. (a) Tenant has deposited with Landlord the Security Deposit as
security for the full and faithful payment and performance by Tenant of Tenant's
obligations under this Lease. If Tenant defaults in the full and prompt payment
and performance of any of its obligations under this Lease, including, without
limitation, the payment of Rent, Landlord may use, apply or retain the whole or
any part of the security so deposited to the extent required for the payment of
any Rent or any other sums as to which Tenant is in default or for any sum which
Landlord may expend or may be required to expend by reason of Tenant's default
in respect of any of Tenant's obligations under this Lease, including, without
limitation, any damages or deficiency in the reletting of the Demised Premises,
whether such damages or deficiency accrue before or after summary proceedings or
other re-entry by Landlord. If Landlord shall so use, apply or retain the whole
or any part of the security, Tenant shall upon demand immediately deposit with
Landlord a sum equal to the amount so used, applied and retained, as security as
aforesaid. Provided Tenant is not in default under this Lease, the security or
any balance thereof to which Tenant is entitled shall be returned or paid over
to Tenant after the date on which this Lease shall expire or sooner end or
terminate, and after delivery to Landlord of entire possession of the Demised
Premises. In the event of any sale or leasing of the Land, Landlord shall have
the right to transfer the security to which Tenant is entitled to the vendee or
lessee and Landlord shall thereupon be released by Tenant from all liability for
the return or payment thereof; and Tenant shall look solely to the new landlord
for the return or payment of the same; and the provisions hereof shall apply to
every transfer or assignment made of the same to a new landlord. Tenant shall
not assign or encumber or attempt to assign or encumber the monies deposited
herein as security, and neither Landlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
7.01. (b) In the event Landlord agrees to accept a letter of credit
from Tenant in lieu of all or a portion of the cash security required by this
Lease, Tenant shall provide to Landlord an irrevocable Letter of Credit in the
amount of Two Hundred Forty Thousand One Hundred Fifty Four and 00/100 Dollars
($240,154.00) in form and substance satisfactory to Landlord and
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issued by a financial institution approved by Landlord. Landlord shall have the
right, upon written notice to Tenant (except for Tenant's non-payment of Rent or
for Tenant's failure to comply with Article 7.03 for which no notice shall be
required), and regardless of the exercise of any other remedy the Landlord may
have by reason of a default, to draw upon said Letter of Credit to cure any
default of Tenant or for any purpose authorized by section 7.01(a) of this Lease
and if Landlord does so, Tenant shall, upon demand, additionally fund the Letter
of Credit with the amount so drawn so that Landlord shall have the full deposit
on hand at all times during the Term of the Lease and for a period of thirty
(30) days' thereafter. In the event of a sale of the Building or a lease of the
Building subject to this Lease, Landlord shall have the right to transfer the
security to the vendee or lessee.
7.02. The Letter of Credit shall expire not earlier than thirty (30)
days after the Expiration Date of this Lease. Upon Landlord's prior consent, the
Letter of Credit may be of the type which is automatically renewed on an annual
basis (Annual Renewal Date), provided however, in such event Tenant shall
maintain the Letter of Credit and its renewals in full force and effect during
the entire Term of this Lease (including any renewals or extensions) and for a
period of thirty (30) days thereafter. The Letter of Credit, will contain a
provision requiring the issuer thereof to give the beneficiary (Landlord) sixty
(60) days' advance written notice of its intention not to renew the Letter of
Credit on the next Annual Renewal Date.
7.03. In the event Tenant shall fail to deliver to Landlord a
substitute irrevocable Letter of Credit, in the amount stated above, on or
before thirty (30) days prior to the next Annual Renewal Date, said failure
shall be deemed a default under this Lease. Landlord may, in its discretion
treat this the same as a default in the payment of Rent or any other default and
pursue the appropriate remedy. In addition, and not in limitation, Landlord
shall be permitted to draw upon the Letter of Credit as in the case of any
other, default by Tenant under the Lease.
7 04. Provided Tenant has not defaulted under this Lease, Landlord
shall consent to a reduction in the amount of the Letter of Credit of $60,035.50
on the first and second anniversary of the Commencement Date.
ARTICLE 8 - SUBORDINATION
8. 01. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate to all ground leases and underlying leases of the Land
and/or the Building now or hereafter existing and to all Mortgages which may now
or hereafter affect the Land and/or building and/or any of such leases, whether
or not such Mortgages or leases shall also cover other lands and/or buildings,
to each and every advance made or hereafter to be made under such Mortgages, and
to all renewals, modifications, replacements and extensions of such leases and
such Mortgages and spreaders and consolidations of such Mortgages. The
provisions of this Section 8.01 shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord, the lessor under any such lease or the Mortgagee of
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any such Mortgage or any of their respective successors in interest may
reasonably request to evidence such subordination; and if Tenant fails to
execute, acknowledge or deliver any such instruments within 10 days after
request therefor, Tenant hereby irrevocably constitutes and appoints Landlord as
Tenant's attorney- in- fact, coupled with an interest, to execute and deliver
any such instruments for and on behalf of Tenant. Landlord shall obtain
nondisturbance agreements from the Superior Xxxxxx, Xxxxxxx Enterprises, and the
Superior Mortgagee, Principal Mutual Life Insurance Company, provided Tenant
executes the Superior Mortgagees and Superior Lessor's standard form of
subordination agreement and pays the Superior Mortgagee's customary charge of
same (currently $500.00).
8.02. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right (a) until it has given written notice of such act or omission to Landlord
and each Superior Mortgagee and each Superior Lessor whose name and address
shall previously have been furnished to Tenant, and (b) until a reasonable
period for remedying such act or omission shall have elapsed following the
giving of such notice and following the time when such Superior Mortgagee or
Superior Lessor shall have become entitled under such Superior Mortgage or
Superior Lease, as the case may be, to remedy the same (which reasonable period
shall in no event be less than the period to which Landlord would be entitled
under this Lease or otherwise, after similar notice, to effect such remedy),
provided such. Superior Mortgagee or Superior Lessor shall with due diligence
give Tenant notice of intention to, and commence and continue to, remedy such
act or omission.
8.03. If any Superior Lessor or Superior Mortgagee shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights ("Successor Landlord") and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
to and recognize such Successor Landlord as Tenant's landlord under this Lease
and shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that the Successor Landlord
shall not (a) be liable for any previous act or omission of Landlord under this
Lease; (b) be subject to any offset, not expressly provided for in this Lease,
which theretofore shall have accrued to Tenant against Landlord; (c) be liable
for the return of any Security Deposit, in whole or in part, to the extent that
same is not paid over to the Successor Landlord; or (d) be bound by any previous
modification of this Lease or by any previous prepayment of more than one
month's Fixed Rent or Additional Charges, unless such modification or prepayment
shall have been expressly approved in writing by the Superior Lessor of the
Superior Lease or the Mortgagee of the Superior Mortgage through or by reason of
which the Successor Landlord shall have succeeded to the rights of Landlord
under this Lease.
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8.04. If any then present or prospective Superior Mortgagee shall
require any modification(s) of this Lease, Tenant shall promptly execute and
deliver to Landlord such instruments effecting such modification(s) as Landlord
shall request, provided that such modification(s) do not adversely affect in any
material respect any of Tenant's rights under this Lease.
ARTICLE 9 - QUIET ENJOYMENT
9.01. So long as Tenant pays all of the Rent and performs all of
Tenant's other obligations hereunder, Tenant shall peaceably and quietly have,
hold and enjoy the Demised Premises without hindrance, ejection or molestation
by Landlord or any person lawfully claiming through or under Landlord, subject,
nevertheless, to the provisions of this Lease and to Superior Leases and
Superior Mortgages.
ARTICLE 10 - ASSIGNMENT, SUBLETTING AND MORTGAGING
10.01. Tenant shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise, (a) assign or otherwise transfer this Lease, or
offer or advertise to do so, (b) sublet the Demised Premises or any part
thereof, or offer or advertise to do so, or allow the same to be used, occupied
or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber or
otherwise hypothecate this Lease in any manner whatsoever, without in each
instance obtaining the prior written consent of Landlord. Notwithstanding the
foregoing, Landlord shall not unreasonably withhold or delay its consent to any
proposed subletting or assignment of this Lease by Tenant, provided that in the
event Tenant assigns this Lease, Tenant shall pay to Landlord, as an Additional
Charge hereunder, one-half (1/2) of any amounts received by Tenant in connection
with such assignment to the extent any such amounts exceed the Fixed Rent and
Additional Charges payable from time to time hereunder; and in the event the
Tenant sublets the Demised Premises, Tenant shall pay to Landlord, as Additional
Charges hereunder, one-half (1/2) of any rentals or any other payments received
by Tenant in connection with such subletting to the extent any such rentals or
payments exceed the Fixed Rent and Additional Charges payable from time to time
hereunder. Notwithstanding anything contained in this Article 10 to the
contrary, consent by Landlord shall not be required if the Tenant assigns this
Lease to its parent corporation or to its wholly owned subsidiary or a company
under commitment control with Tenant, subject, however, to the further
provisions of this Article 11 and prior notice to Landlord.
10.02. If at any time (a) the original Tenant named herein, (b) the
then Tenant, (c) any Guarantor, or (d) any Person owning a majority of the
voting stock of, or directly or indirectly controlling, the then Tenant shall be
a corporation or partnership, any transfer of voting stock or partnership
interest resulting in the person(s) who shall have owned a majority of such
corporation's shares of voting stock or the general partners' interest in such
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partnership, as the case may be, immediately before such transfer, ceasing to
own a majority of such shares of voting stock or general partner's interest, as
the case may be, except as the result of transfers by inheritance, shall be
deemed to be an assignment of this Lease as to which Landlord's consent shall
have been required, and in any such event Tenant shall notify Landlord. The
provisions of this Section 10.02 shall not be applicable to any corporation all
the outstanding voting stock of which is listed on a national securities
exchange (as defined in the Securities Exchange Act of 1934, as amended) or is
traded in the over-the-counter market with quotations reported by the National
Association of Securities Dealers through its automated system for reporting
quotations and shall not apply to transactions with a corporation into or with
which the then Tenant is merged or consolidated or to which substantially all of
the then Tenant's assets are transferred or to any corporation which controls or
is controlled by the then Tenant or is under common control with the then
Tenant, provided that in any of such events (i) the successor to Tenant has a
net worth computed in accordance with generally accepted accounting principles
at least equal to the greater of (1) the net worth of Tenant immediately prior
to such merger, consolidation or transfer, or (2) the net worth of the original
Tenant on the date of this Lease, and (ii) proof satisfactory to Landlord of
such net worth shall have been delivered to Landlord at least 10 days prior to
the effective date of any such transaction. For the purposes of this Section,
the words "voting stock" shall refer to shares of stock regularly entitled to
vote for the election of directors of the corporation. Landlord shall have the
right at any time and from time to time during the Term to inspect the stock
record books of the corporation to which the provisions of this Section 10.02
apply, and Tenant will produce the same on request of Landlord.
10.03. If this Lease is assigned, whether or not in violation of this
Lease, Landlord may collect rent from the assignee. If the Demised Premises or
any part thereof are sublet or used or occupied by anybody other then Tenant,
whether or not in violation of this Lease, Landlord may, after default by
Tenant, and expiration of Tenant's time to cure such default, collect rent from
the subtenant or occupant. In either event, Landlord may apply the net amount
collected to the Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of any of the provisions of Section
10.01 or Section 10.02, or the acceptance of the assignee, subtenant or occupant
as tenant, or a release of Tenant from the performance by Tenant of Tenant's
obligations under this Lease. The consent by Landlord to any assignment,
mortgaging, subletting or use or occupancy by others shall not in any way be
considered to relieve Tenant from obtaining the express written consent of
Landlord to any other or further assignment, mortgaging or subletting or use or
occupancy by others not expressly permitted by this Article 10. References in
this Lease to use or occupancy by others (that is, anyone other than Tenant)
shall not be construed as limited to subtenants and those claiming under or
through subtenants but shall be construed as including also licensees and others
claiming under or through Tenant, immediately or remotely.
10.04. Any permitted assignment or transfer, whether made with
Landlord's consent pursuant to Section 10.01 or without Landlord's consent if
permitted by Sections 10.01 or 10.02, shall be made only if, and shall not be
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effective until, the assignee shall execute, acknowledge and deliver to Landlord
an agreement in form and substance reasonably satisfactory to Landlord whereby
the assignee shall assume Tenant's obligations under this Lease and whereby the
assignee shall agree that all of the provisions in this Article 10 shall,
notwithstanding such assignment or transfer, continue to be binding upon it in
respect to all future assignments and transfers. Notwithstanding any assignment
or transfer, whether or not in violation of the provisions of this Lease, and
notwithstanding the acceptance of Rent by Landlord from an assignee, transferee,
or any other party, the original Tenant and any other person(s) who at any time
was or were Tenant shall remain fully liable for the payment of the Rent and for
Tenant's other obligations under this Lease.
10.05. The liability of the original named Tenant and any other
Person(s) (including but not limited to any Guarantor) who at any time are or
become responsible for Tenant's obligations under this Lease shall not be
discharged, released or impaired by any agreement extending the time of, or
modifying any of the terms or obligations under this Lease, or by any waiver or
failure of Landlord to enforce, any of this Lease.
10.06. The listing of any name other than that of Tenant, whether on
the doors of the Demised Premises or the Building directory, or otherwise, shall
not operate to vest any right or interest in this Lease or in the Demised
Premises, nor shall it be deemed to be the consent of Landlord to any assignment
or transfer of this Lease or to any sublease of the Demised Premises or to the
use or occupancy thereof by others.
10.07. Without limiting any of the provisions of Article 24, if
pursuant to the Federal Bankruptcy Code (or any similar law hereafter enacted
having the same general purpose), Tenant is permitted to assign this Lease
notwithstanding the restrictions contained in this Lease, adequate assurance of
future performance by an assignee expressly permitted under such Code shall be
deemed to mean the deposit of cash security in an amount equal to the sum of one
(1) year's Fixed Rent plus an amount equal to the Additional Charges for the
Calendar Year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord for the balance of the Term,
without interest, as security for the full performance of all of Tenant's
obligations under this Lease, to be held and applied in the manner specified for
security in Section 7.01.
10.08. If Tenant shall propose to assign or in any manner transfer this
Lease or any interest therein, or sublet the Demised Premises or any part or
parts thereof, or grant any concession or license or otherwise permit occupancy
of all or any part of the Demised Premises by any person, Tenant shall give
notice thereof to Landlord, together with a copy of the proposed instrument that
is to accomplish same and such financial and other information pertaining to the
proposed assignee, transferee, subtenant, concessionaire or licensee as Landlord
shall reasonably require.
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ARTICLE 11 - COMPLIANCE WITH LAWS
11.01. Tenant shall comply with all Legal Requirements which shall, in
respect of the Demised Premises or the use and occupation thereof, or the
abatement of any nuisance in, on or about the Demised Premises, impose any
violation, order or duty on Landlord or Tenant; and Tenant shall pay all the
cost, expenses, fines, penalties and damages which may be imposed upon Landlord
or any Superior Lessor by reason of or arising out of Tenant's failure to fully
and promptly comply with and observe the provisions of this Section 11.01.
However, Tenant need not comply with any such law or requirement of any public
authority so long as Tenant shall be contesting the validity thereof, or the
applicability thereof to the Demised Premises, in accordance with Section 11.02.
11.02. Tenant may contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any Legal Requirement, provided that (a) Landlord shall not be
subject to criminal penalty or to prosecution for a crime, and neither the
Demised Premises nor any part thereof shall be subject to being condemned or
vacated, by reason of non-compliance or otherwise by reason of such contest; (b)
before the commencement of such contest, Tenant shall furnish to Landlord either
(i) the bond of a surety company satisfactory to Landlord, which bond shall be,
as to its provisions and form, satisfactory to Landlord, and shall be in an
amount at least equal, to 125% of the cost of such compliance (as estimated by a
reputable contractor designated by Landlord) and shall indemnify Landlord
against the cost thereof and against all liability for damages, interest,
penalties and expenses (including reasonable attorneys' fees and expenses),
resulting from or incurred in connection with such contest or non-compliance, or
(ii) other security in place of such bond reasonably satisfactory to Landlord;
(c) such non-compliance or contest shall not constitute or result in any
violation of any Superior Lease or Superior Mortgage, or if any such Superior
Lease and/or Superior Mortgage shall permit such non-compliance or contest on
condition of the taking of action or furnishing of security by Landlord, such
action shall be taken and such security shall be furnished at the expense of
Tenant; and (d) Tenant shall keep Landlord advised as to the status of such
proceedings. Without limiting the application of the above, Landlord shall be
deemed subject to prosecution for a crime if Landlord, or its managing agent, or
any officer, director, partner, shareholder or employee of Landlord or its
managing agent, as an individual, is charged with a crime of any kind or degree
whatsoever, whether by service of a summons or otherwise, unless such charge is
withdrawn before Landlord or its managing agent, or such officer, director,
partner, shareholder or employee of Landlord or its managing agent (as the case
may be) is required to plead or answer thereto.
ARTICLE 12 - INSURANCE AND INDEMNITY
12.01. During the Term Tenant shall maintain at its own cost and
expense the following insurance: (a) comprehensive general public liability.
insurance in respect of the Demised Premises and the conduct and operation of
business therein, having limits of not less than $5,000,000.00 combined single
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limit per occurrence for bodily injury or death to any one person and for bodily
injury or death to any number of persons in any one occurrence, and for property
damage, including water damage and sprinkler leakage legal liability (coverage
to include but not be limited to (i) premises operation, completed operations,
broad form contractual liability and product liability, (ii) comprehensive
automobile, truck and vehicle liability insurance covering all owned, hired and
non-owned vehicles used by the contractor(s) in connection with their work and
any loading of such vehicles, with limits as stated above and (iii) workmen's
compensation, employers liability and occupational disease insurance as required
by statutes, but in any event not less than $500,000.00 for Coverage B covering
all damages and injuries arising from each accident or occupational disease),
(b) All-Risk insurance (including flood and earthquake) covering the Demised
Premises against loss or damage in an amount equal to the full replacement value
thereof (excluding foundations) as same might increase from time to time or such
higher amount as either may be required by the holder of any fee mortgage
covering the Demises Premises or is necessary to prevent Landlord and/or Tenant
from becoming a co-insurer, including boiler and machinery insurance, if
applicable (c) rent insurance with broad form extended coverage endorsement in
an amount equal to the Rent, and all other charges payable by Tenant pursuant to
this Lease for a period of one (1) year and (d) any other insurance required for
compliance with the Insurance Requirements. Landlord may at any time and from
time to time require that the limits for the comprehensive general public
liability insurance to be maintained by, Tenant be increased to the limits that
new Tenants in similar buildings are required by Landlord to maintain. The
insurance carried pursuant to Section 12.01 (b) shall be carried in favor of
Landlord and the holder of any fee mortgage on the Premises and the standard
mortgagee clause shall be attached to the appropriate policies. Insurance
carried pursuant to Section 12.01 (b) shall provide that the loss, if any, shall
be adjusted with and payable to the party who will perform the work of
restoration pursuant to Article 21 and such mortgagee as their interests may
appear. Tenant shall deliver to Landlord and any additional named insured(s)
certificates for such fully paid-for policies at least ten (10) days before the
Commencement Date. Tenant shall procure and pay for renewals of such insurance
from time to time before the expiration thereof, and Tenant shall deliver to
Landlord and any additional insured(s) certificates therefor at least thirty
(30) days before the expiration of any existing policy. All such policies shall
be issued by companies of recognized responsibility, having a Bests Key Rating
Guide of not less than A, Class VII, licensed to do business in New Jersey, and
all such policies shall contain a provision whereby the same cannot be cancelled
unless Landlord and any additional insured(s) are given at least thirty (30)
days' prior written notice of such cancellation. The certificates of insurance
to be delivered to Landlord by Tenant shall name Landlord as an additional
insured and, at Landlord's request, shall also name any Superior Lessors or
Superior Mortgagees as additional insureds, and the following phrase must
be typed on the certificate of insurance: "Xxxxx Mountain Industries, Inc., and
its respective subsidiaries, affiliates, associates, joint ventures, and
partnerships, are hereby named as additional insureds as their interests may
appear (and if Landlord has so requested, Tenant shall include any Superior
Lessors and Superior Mortgagees as additional insured(s)). It is intended for
this insurance to be primary and
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non-contributing." Tenant shall give Landlord at least thirty (30) days' prior
written notice that any such policy is being cancelled or replaced.
12.02. Tenant shall not do, permit or suffer to be done any act,
matter, thing or failure to act in respect of the Demised Premises or use or
occupy the Demised Premises or conduct or operate Tenant's business in any
manner objectionable to any insurance company or companies whereby the fire
insurance or any other insurance then in effect in respect to the Land and
Building or any part thereof shall become void or suspended or whereby any
premiums in respect of insurance maintained by Landlord shall be higher than
those which would normally have been in effect for the occupancy contemplated
under the Permitted Uses. In case of a breach of the provisions of this Section
12.02, in addition to all other rights and remedies of Landlord hereunder,
Tenant shall (a) indemnify Landlord and the Superior Lessors and hold Landlord
and the Superior Lessors harmless from and against any loss which would have
been covered by insurance which shall have become void or suspended because of
such breach by Tenant and (b) pay to Landlord any and all increases of premiums
on any insurance, including, without limitation, rent insurance, resulting from
any such breach.
12.03. Tenant shall indemnify and hold harmless Landlord and all
Superior Lessors and its and their respective partners, joint venturers,
directors, officers, agents, servants and employees from and against any and all
claims arising from or in connection with (a) the conduct or management of the
Demised Premises or of any business therein, or any work or thing whatsoever
done, or any condition created (other than by Landlord) in the Demised Premises
during the Term or during the period of time, if any, prior to the Commencement
Date that Tenant may have been given access to the Demised Premises; (b) any
act, omission or negligence of Tenant or any of its subtenants or licensees or
its or their partners, joint venturers, directors, officers, agents, employees
or contractors; (c) any accident, injury or damage whatever (unless caused
solely by Landlord's negligence) occurring in the Demised Premises; and (d) any
breach or default by Tenant in the full and prompt payment and performance of
Tenant's obligations under this Lease; together with all costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all reasonable
attorneys' fees and expenses. In case any action or proceeding is brought
against Landlord and/or any Superior Lessor and/or its or their partners, joint
venturers, directors, officers, agents and/or employees by reason of any such
claim, Tenant, upon notice from Landlord or such Superior Lessor, shall resist
and defend such action or proceeding by counsel reasonably satisfactory to
Landlord.
12.04. Neither Landlord nor any Superior Lessor shall be liable or
responsible for, and Tenant hereby releases Landlord and each Superior Lessor
from, all liability and responsibility to Tenant and any person claiming by,
through or under Tenant, by way of subrogation or otherwise, for any injury,
loss or damage to any person or property in or around the Demised Premises or to
Tenant's business irrespective of the cause of such injury, loss or damage, and
Tenant shall require its insurers to include in all of Tenant's insurance
policies which could give rise to a right of subrogation against Landlord or any
Superior Lessor a clause or endorsement whereby the insurer waives any
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rights of subrogation against Landlord and such Superior Lessors or permits the
insured, prior to any loss, to agree with a third party to waive any claim it
may have against said third party without invalidating the coverage under, the
insurance policy.
ARTICLE 13 - RULES AND REGULATIONS
13.01. Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations and such reasonable changes therein
(whether by modification, elimination or addition) as Landlord at any time or
times hereafter may make and communicate to Tenant, which in Landlord's
reasonable judgment, shall be necessary for the reputation, safety, care or
appearance of the Land and Building, or the preservation of good order therein,
or the operation or maintenance of the Building or its equipment and fixtures,
and which do not unreasonably affect the conduct of Tenant's business in the
Demised Premises; provided, however, that in case of any conflict or
inconsistency between the provisions of this Lease and any of the Rules and
Regulations, the provisions of this Lease shall control.
ARTICLE 14 - ALTERATIONS AND SIGNS
14.01. Tenant shall not make any alterations or additions to the
Demised Premises, or make any holes or cuts in the walls, ceilings, roofs, or
floors thereof, or change the exterior color or architectural treatment of the
Demised Premises, without on each occasion first obtaining the consent of
Landlord. Tenant shall submit to Landlord plans and specifications for such work
at the time Landlord's consent is sought. Notwithstanding the foregoing, (i) if
alterations are decorative and non-structural in nature and have a cost of less
than $25,000, no consent shall be necessary, however Tenant shall provide
Landlord with details of same, and (ii) for all other alterations, Landlord's
consent shall not be unreasonably withheld or delayed. Tenant shall pay to
Landlord upon demand the reasonable cost and expense of Landlord in (a)
reviewing said plans and specifications and (b) inspecting the alterations to
determine whether the same are being performed in accordance with the approved
plans and specifications and all Legal Requirements and Insurance Requirements,
including, without limitation, the fees of any architect or engineer employed by
Landlord for such purpose. Before with any permitted alteration which will cost
more than $75,000 (exclusive of the costs of decorating work and items
constituting Tenant's Property), as estimated by a reputable contractor
designated by Landlord, Tenant shall obtain and deliver to Landlord either (i) a
performance bond and a labor and materials payment bond (issued by a corporate
surety licensed to do business in New Jersey) , each in an amount equal to 100%
of such estimated cost and in form satisfactory to Landlord, or (ii) such other
security as shall be reasonably satisfactory to Landlord. Tenant shall fully and
promptly comply with and observe the Rules and Regulations then in force in
respect of the making of alterations. Any review or approval by Landlord of any
plans and/or specifications with respect to any alterations is solely for
Landlord's benefit, and without any representation or warranty whatsoever to
Tenant in respect to the adequacy, correctness or efficiency thereof or
otherwise.
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14.02. Tenant shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of permitted alterations and
for final approval thereof upon completion, and shall cause alterations to be
performed in compliance with all applicable Legal Requirements and Insurance
Requirements. Alterations shall be diligently performed in a good and
workmanlike manner, using new materials and equipment at least equal in quality
and class to the better of (a) the original installations of the Building, or
(b) the then standards for the Building established by Landlord. Alterations
shall be performed by contractors first approved by Landlord not to be
unreasonably withheld or delayed; provided, however, that any alterations in or
to the mechanical, electrical, sanitary, heating, ventilating, air conditioning
or other systems of the Building shall be performed only by the contractor(s)
designated by Landlord. Alterations shall be made in such manner as not to
unreasonably interfere with or delay and as not to impose any additional expense
upon Landlord in the construction, maintenance, repair or operation of the
Building; and if any such additional expense shall be incurred by Landlord as a
result of Tenant's making of any alterations, Tenant shall pay any such
additional expense upon demand. Throughout the making of alterations, Tenant
shall carry, or cause to be carried, workmen's compensation insurance in
statutory limits and general liability insurance, with completed operation
endorsement, for any occurrence in or about the Building, under which Landlord
and its managing agent and any Superior Lessor whose name and address shall
previously have been furnished to Tenant shall be named as parties insured, in
such limits as Landlord may reasonably require, with insurers reasonably
satisfactory to Landlord. Tenant shall furnish Landlord with reasonably
satisfactory evidence that such insurance is in effect at or before the
commencement of alterations and, on request, at reasonable intervals thereafter
during the making of alterations.
14.03. Tenant shall not place any signs on the roof, exterior walls or
grounds of the Demised Premises without first obtaining Landlord's written
consent thereto which shall not be unreasonably withheld or delayed provided the
proposed signage is consistent with similar buildings in the area. In placing
any signs on or about the Demised Premises, Tenant shall, at its expense, comply
with all applicable legal requirements and obtain all required permits and/or
licenses.
ARTICLE 15 - LANDLORD'S AND TENANT'S PROPERTY
15.01. All fixtures, equipment, improvements and appurtenances attached
to or built into the Demised Premises at the commencement of or during the Term,
whether or not by or at the expense of Tenant, shall be and remain a part of the
Demised Premises, shall be deemed to be the property of Landlord and shall not
be removed by Tenant, except as provided in Section 15.02. Further, any
carpeting or other personal property in the Demised Premises on the Commencement
Date, unless installed and paid for by Tenant, shall be and shall remain
Landlord's property and shall not be removed by Tenant.
15.02. All movable partitions, business and trade fixtures, machinery
and equipment, communications equipment and office equipment, whether or not
attached to or built into the Demised Premises, which are installed in the
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Demised Premises by or for the account of Tenant without expense to Landlord and
can be removed without structural damage to the Building and all furniture,
furnishings, and other movable personal property owned by Tenant and located in
the Demised Premises (collectively, "Tenant's Property") shall be and shall
remain the property of Tenant and may be removed by Tenant at any time during
the Term; provided that if any of the Tenant's Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Demised Premises,
resulting from the installation and/or removal thereof. Any equipment or other
property for which Landlord shall have granted any allowance or credit to Tenant
shall not be deemed to have been installed by or for the account of Tenant
without expense to Landlord, shall not be considered as the Tenant's Property
and shall be deemed the property of Landlord.
15.03. At or before the Expiration Date or the date of any earlier
termination of this Lease, or within fifteen (15) days after such an earlier
termination date, Tenant shall remove from the Demised Premises all of the
Tenant's Property (except such items thereof as Landlord shall have expressly
permitted to remain, which property shall become the property of Landlord if not
removed), and Tenant shall repair any damage to the Demised Premises resulting
from any installation and/or removal of the Tenant's Property. Any items of the
Tenant's Property which shall remain in the Demised Premises after the
Expiration Date or after a period of fifteen (15) days following an earlier
termination date, may, at the option of Landlord, be deemed to have been
abandoned, and in such case such items may be retained by Landlord as its
property or disposed of by Landlord, without accountability, in such manner as
Landlord shall determine at Tenant's Expense.
ARTICLE 16 - REPAIRS AND MAINTENANCE
16.01. Tenant shall, throughout the Term, take good care of the Demised
Premises, the fixtures and appurtenances therein, and shall not do, suffer, or
permit any waste with respect thereto. Tenant shall keep and maintain all
interior and exterior portions of the Demised Premises including, without
limitation, all Building equipment, windows, doors, loading bay doors and
shelters, plumbing and electrical systems, heating, ventilating and air
conditioning ("HVAC") systems in a clean and orderly condition and in good order
and repair. Tenant shall keep and maintain all floors, sidewalks, landscaping
(including lawn areas), curbing, paving whether in driveways, parking areas or
access easements. The phrase "keep and maintain" as used herein includes
repairs, replacement and/or restoration as appropriate. Tenant shall maintain
the exterior areas of the Demised Premises free of accumulation of snow, ice,
dirt and rubbish. Tenant shall not permit or suffer any overloading of the
floors of the Building. Tenant shall promptly replace all scratched, damaged or
broken doors and glass in and about the Demised Premises and shall be
responsible for all repairs, maintenance and replacement of wall and floor
coverings in the Demised Premises and for the repair and maintenance of all
sanitary and electrical fixtures and equipment therein. Tenant shall promptly
make all repairs in or to the Demised Premises for which Tenant is responsible,
and any repairs required to be made by Tenant to the mechanical, electrical,
sanitary, heating, ventilating, air-
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conditioning or other systems of the Building shall be performed only by
contractor(s) designated by Landlord. Any other repairs in or to the Building
and the facilities and systems thereof for which Tenant is responsible may, at
Landlord's option, be performed by Landlord at Tenant's expense; but Landlord
may, at its option, before commencing any such work or at any time thereafter,
require Tenant to furnish to Landlord such security, as required in Section
14.01 hereof.
16.02. Landlord shall be responsible for the structural integrity of
the Building and shall make all repairs thereto except as herein above provided
in Section 16.01. Landlord represents that on the Commencement Date the Building
shall be free of leaks and the plumbing, heating and electrical systems will be
in good working order.
16.03. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's doing any repairs, maintenance, or changes which Landlord is required
or permitted by this Lease, or required by Law, to make in or to any portion of
the Building provided Landlord shall undertake all reasonable efforts to
minimize the effects of such work on Tenant.
16.04. Tenant shall not permit or suffer the overloading of the floors
of the Demised Premises beyond 250 pounds per square foot.
ARTICLE 17 - UTILITY CHARGES
17.01. Tenant shall pay all charges for gas, water, sewer, electricity,
heat or other utility or service supplied to the Demised Premises as measured by
meters relating to Tenant's use, and the cost of repair, maintenance,
replacement, and reading of any meters measuring Tenant's consumption thereof.
Tenant expressly agrees that Landlord shall not be responsible for the failure
of supply to Tenant of any of the aforesaid, or any other utility service.
Landlord shall not be responsible for any public or private telephone service to
be installed in the space, particularly conduit if required.
17.02, Tenant's use of electric energy in the Demised Premises shall
not at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises. In order to insure that
such capacity is not exceeded and to avert possible adverse effect upon the
Building's electric service, Tenant shall not, without Landlord's prior consent
in each instance (which shall not be unreasonably withheld or delayed), connect
any fixtures, appliances or equipment to the Building's electric distribution
system other than those which will not or will not tend to exceed the capacity
of any of the electrical conductors and equipment or make any alteration or
addition to the electric system of the Demised Premises existing on the
Commencement Date. Should Landlord grant such consent, all additional risers or
other equipment required therefor shall be provided by Landlord and the cost
thereof shall be paid by Tenant to Landlord on demand.
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ARTICLE 18 - ACCESS, CHANGES AND NAME
18.01. Except for the space within the inside surfaces of all walls,
hung ceilings, floors, windows and doors bounding the Demised Premises, all of
the Building, including, without limitation, exterior Building walls, core
corridor walls and doors and any core corridor entrance, any terraces or roofs
adjacent to the Demised Premises, and any space in or adjacent to the Demised
Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or
other utilities, sinks or other Building facilities and the use thereof, as well
as access thereto through the Demised Premises for the purpose of operating,
maintenance, decoration and repair, are reserved to Landlord. Landlord also
reserves the right, to install, erect, use and maintain pipes, ducts and
conduits in and through the Demised Premises, provided such are properly
enclosed.
18.02. Landlord and its agents shall have the right to enter and/or
pass through the Demised Premises at any time or times (a) to examine the
Demised Premises and to show then to actual and prospective Superior Lessors,
Superior Mortgagees, or prospective purchasers of the Building, and (b) to make
such repairs, alterations, additions and improvements in or to the Demised
Premises and/or in or to the Building or its facilities and equipment as
Landlord is required or desires to make. Landlord shall be allowed to take all
materials into and upon the Demised Premises that may be required in connection
therewith, without any liability to Tenant and without any reduction of Tenant's
obligations hereunder. During the period of eighteen (18) months prior to the
Expiration Date, Landlord and its agents may exhibit the Demised Premises to
prospective tenants.
18.03. If at any time any windows of the Demised Premises are
temporarily darkened or obstructed by reason of any repairs, improvements,
maintenance and/or cleaning in or about the Building, or if any part of the
Building is temporarily or permanently closed or inoperable, the same shall not
be deemed a constructive eviction and shall not result in any reduction or
diminution of Tenant's obligations under this Lease.
18.04. If, during the last month of the Term, Tenant has removed all or
substantially all of the Tenant's Property from the Demised Premises, Landlord
may, without notice to Tenant, immediately enter the Demised Premises and later,
renovate and decorate the same, without liability to Tenant and without reducing
or otherwise affecting Tenant's obligations hereunder.
18.05. Omitted.
18.06. Landlord may adopt any name for the Building. Landlord reserves
the right to change the name and/or address of the Building at any time upon
sixty (60) days prior notice to Tenant.
ARTICLE 19 - MECHANICS' LIENS AND OTHER LIENS
19.01. Nothing contained in this Lease shall be deemed, construed or
interpreted to imply any consent or agreement on the part of Landlord to
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subject Landlord's interest or estate to any liability under any mechanic's or
other lien law. If any mechanic's or other lien or any notice of intention to
file a lien is filed against the Land, or any part thereof, or the Demised
Premises, or any part thereof, for any work, labor, service or materials claimed
to have been performed or furnished for or on behalf of Tenant or anyone holding
any part of the Demised Premises through or under Tenant, Tenant shall cause the
same to be cancelled and discharged of record by payment, bond or order of a
court of competent jurisdiction within sixty (60) days after notice by Landlord
to Tenant.
ARTICLE 20 - NON-LIABILITY AND INDEMNIFICATION
20.01. Neither Landlord nor any partner, joint venturer, director,
officer, agent, servant or employee of Landlord shall be liable to Tenant for
any loss, injury or damage to Tenant or to any other Person, or to its or their
property, irrespective of the cause of such injury, damage or loss, unless
caused by or resulting from the negligence of Landlord, its agents, servants or
employees in the operation or maintenance of the Land or Building without
contributory negligence on the part of Tenant or any of its subtenants or
licensees or its or their employees, agents or contractors. Further, neither
Landlord nor any partner, joint venturer, director, officer, agent, servant or
employee of Landlord shall be liable (a) for any such damage caused by other
tenants or Persons in, upon or about the Land or Building, or caused by
operations in construction of any private, public or quasi-public work; or (b)
even if negligent, for consequential damages arising out of any loss of use of
the Demised Premises or any equipment or facilities therein by Tenant or any
Person claiming through or under Tenant.
20.02. Notwithstanding any provision to the contrary, Tenant shall look
solely to the estate and property of Landlord in and to the Land and Building
(or the proceeds received by Landlord on a sale of such estate and property but
not the proceeds of any financing or refinancing thereof) in the event of any
claim against Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises, and
Tenant agrees that the liability of Landlord arising out of or in connection
with this Lease, the relationship of Landlord and Tenant or Tenant's use of the
Demised Premises shall be limited to such estate and property of Landlord (or
sale proceeds). No other properties or assets of Landlord or any partner, joint
venturer, director, officer, agent, servant or employee of Landlord shall be
subject to levy, execution or other enforcement procedures for the satisfaction
of any judgement (or other judicial process) or for the satisfaction of any
other remedy of Tenant arising out of, or in connection with, this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises and
if Tenant shall acquire a lien on or interest in any other properties or assets
by judgment or otherwise, Tenant shall promptly release such lien on or interest
in such other properties and assets by executing, acknowledging and delivering
to Landlord an instrument to that effect prepared by Landlord's attorneys.
Tenant hereby waives the right of specific performance and any other remedy
allowed in equity if specific performance or such other remedy could result in
any liability of Landlord for the payment of money to Tenant (to the extent that
same could
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result in liability which has been waived earlier in this subsection), or to any
court or governmental authority (by way of fines or otherwise) for Landlord's
failure or refusal to observe a judicial decree or determination, or to any
third party.
ARTICLE 21 - DAMAGE OR DESTRUCTION
21.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this Lease shall
not be terminated as in this Article 21 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the Demised
Premises (except for the Tenant's Property) with reasonable dispatch after
notice to it of the damage or destruction and the collection of the insurance
proceeds attributable to such damage.
21.02. Subject to the provisions of Section 21.05, if all or part of
the Demised Premises shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, the Rent shall be
abated or reduced, as the case may be, in the proportion that the untenantable
area of the Demised Premises bears to the total area of the Demised Premises,
for the period from the date of the damage or destruction to the date the damage
to the Demised Premises shall be substantially repaired provided, however,
should Tenant reoccupy a portion of the Demised Premises during the period the
repair or restoration work is taking place and prior to the date that the
Demised Premises are substantially repaired or made tenantable the Rent
allocable to such reoccupied portion, based upon the proportion which the area
of the reoccupied portion of the Demised Premises bears to the total area of the
Demised Premises, shall be payable by Tenant from the date of such occupancy.
21.03. If (a) the Building or the Demised Premises shall be totally
damaged or destroyed by fire or other casualty, or (b) the Building shall be so
damaged or destroyed by fire or other casualty that its repair or restoration
requires the expenditure, as estimated by a reputable contractor or architect
designated by Landlord, of more than twenty percent (20%) (or ten percent [10%]
if such casualty occurs during the last two [2] years of the Term) of the full
insurable value of the Building immediately prior to the casualty, or (c) the
Building shall be damaged or destroyed by fire or other casualty and either the
loss shall not be covered by Landlord's insurance or the net insurance proceeds
(after deducting all expenses in connection with obtaining such proceeds) shall,
in the estimation of a reputable contractor or architect designated by Landlord
be insufficient to pay for the repair or restoration work, then in either such
case Landlord may terminate this Lease by giving Tenant notice to such effect
within ninety (90) days after the date of the fire or other casualty.
21.04. Tenant shall not be entitled to terminate this Lease and no
damages, compensation or claim shall be payable by Landlord for inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Building pursuant to this Article 21. Landlord shall use its best
efforts to make such repair or restoration promptly and in such manner as to
not unreasonably interfere with Tenant's use and occupancy of the
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Demised Premises, but Landlord shall not be required to do such repair or
restoration work except during Business Hours on Business Days. Notwithstanding
the foregoing, in the event the Building shall be totally damaged or destroyed
by fire or other casualty during the last eighteen (18) months of the Term of
the Lease, Tenant may terminate this Lease by giving Landlord not less than
thirty (30) days notice to such effect.
21.05. Notwithstanding any of the foregoing provisions of this Article
21, if by reason of some act or omission on the part of Tenant or any of its
subtenants or its or their partners, directors, officers, servants, employees,
agents or contractors, either (a) Landlord or any Superior Lessor or any
Superior Mortgagee shall be unable to collect all of the insurance proceeds
(including, without limitation, rent insurance proceeds) applicable to damage or
destruction of the Land or the Building by fire or other casualty, or (b) the
Building shall be damaged or destroyed or rendered completely or partially
untenantable on account of fire or other casualty, then, without prejudice to
any other remedies which may be available against Tenant, there shall be no
abatement or reduction of the Rent. Further, nothing contained in this Article
21 shall relieve Tenant from any liability that may exist as a result of any
damage or destruction by fire or other casualty.
21.06. Landlord will not carry insurance of any kind on the Tenant's
Property, and, except as provided by law or by reason of Landlord's breach of
any of its obligations hereunder, shall not be obligated to repair any damage or
to replace the Tenant's Property.
21.07. The provisions of this Article 21 shall be deemed an express
agreement governing any case of damage or destruction of the Building by fire or
other casualty, and any law providing for such a contingency in the absence of
an express agreement, now or hereafter in force, shall have no application in
such case.
ARTICLE 22 - EMINENT DOMAIN
22.01. If the whole of the Demised Premises shall be taken by any
public or quasi-public authority under the power of condemnation, eminent domain
or expropriation, or in the event of conveyance of the whole of the Demised
Premises in lieu thereof, this Lease shall terminate as of the day possession
shall be taken by such authority. If 25% or less of the Floor Space of the
Building shall be so taken or conveyed, this Lease shall terminate only in
respect of the part so taken or conveyed as of the day possession shall be taken
by such authority. If more than 25% of the Floor Space of the Building shall be
so taken or conveyed, this Lease shall terminate only in respect of the part so
taken or conveyed as of the day possession shall be taken by such authority, but
either party shall have the right to terminate this Lease upon notice given to
the other party within 30 days after such taking possession. If so much of the
parking facilities shall be so taken or conveyed that the number of parking
spaces necessary, in Landlord's judgment, for the continued operation of the
Building shall not be available, Landlord shall, by notice to Tenant, terminate
this Lease as of the day possession shall be taken. If this Lease shall continue
in effect as to any portion of the Demised Premises not so taken or conveyed,
the Rent shall be computed as of the day possession
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shall be taken on the basis of the remaining Floor Space of the Building. Except
as specifically provided herein, in the event of any such taking or conveyance
there shall be no reduction in Rent. If this Lease shall continue in effect,
Landlord shall, at its expense, but shall be obligated only to the extent of the
net award or other compensation (after deducting all expenses in connection with
obtaining same) available to Landlord for the improvements taken or conveyed
(excluding any award or other compensation for land or for the unexpired portion
of the term of any Superior Lease), make all necessary alterations so as to
constitute the remaining Building a complete architectural and
tenantable unit, except for the Tenants' property, and Tenant shall make all
alterations or replacements to the Tenant's Property and decorations in the
Demised Premises. All awards and compensation for any taking or conveyance,
whether for the whole or a part of the Land or Building, shall be property of
Landlord, and Tenant hereby assigns to Landlord all of Tenant's right, title and
interest in and to any and all such awards and compensation, including, without
limitation, any award or compensation for the value of the unexpired portion of
the Term. Tenant shall be entitled to claim, prove and receive in the
condemnation proceeding such award or compensation as may be allowed for the
Tenant's property and for loss of business, good will, and depreciation or
injury to and cost of removal of the Tenant's property, but only if such award
or compensation shall be made by the condemning authority in addition to, and
shall not result in a reduction of, the award or compensation made by it to
Landlord.
22.02. If the temporary use or occupancy of all or any part of the
Demised Premises shall be taken during the Term, Tenant shall be entitled,
except as hereinafter set forth, to receive that portion of the award or payment
for such taking which represents compensation for the use and occupancy of the
Demised Premises, for the taking of the Tenant's Property and for moving
expenses, and Landlord shall be entitled to receive that portion which
represents reimbursement for the cost of restoration of the Demised Premises.
This Lease shall be and remain unaffected by such taking and Tenant shall
continue responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay the Rent
in full when due. If the period of temporary use or occupancy shall extend
beyond the Expiration Date, that part of the award or payment which represents
compensation for the use and occupancy of the Demised Premises (or a part
thereof) shall be divided between Landlord and Tenant so that Tenant shall
receive (except as otherwise provided below) so much thereof as represents
compensation for the period up to and including the Expiration Date and Landlord
shall receive so much thereof as represents compensation for the period after
the Expiration Date. All monies to be paid to Tenant as, or as part of, an award
or payment for temporary use and occupancy for a period beyond the date to which
the Rent has been paid shall be received, held and applied by the first Superior
Mortgagee (or if there is no Superior Mortgagee, by Landlord as a trust fund)
for payment of the Rent becoming due hereunder.
ARTICLE 23 - SURRENDER
23.01. On the Expiration Date, or upon any earlier termination of this
Lease, or upon any re-entry by Landlord upon the Demised Premises, Tenant
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shall quit and surrender the Demised Premises to Landlord "broom-clean" and in
good order, condition and repair, except for ordinary wear and tear and such
damage or destruction as Landlord is required to repair or restore under this
Lease, and Tenant shall remove all of Tenant's property therefrom except as
otherwise expressly provided in this Lease.
23.02. If Tenant remains in possession of the Demised Premises after
the expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises as a tenant from month to month at the sufferance of Landlord subject
to all of the provisions of this Lease, except that the monthly Fixed Rent shall
be twice the Fixed Rent in effect during the last month of the Term.
Notwithstanding the foregoing, in the event Landlord and Tenant are negotiating
in good faith for a renewal/extension of the Term, such doubling of the Fixed
Rent shall not be imposed for the first thirty (30) days following the
expiration of the Term.
23.03. No act or thing done by Landlord or its agents shall be deemed
an acceptance of a surrender of the Demised Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord.
ARTICLE 24 - CONDITIONS OF LIMITATION
24.01. This Lease is subject to the limitation that whenever Tenant or
any Guarantor (a) shall make an assignment for the benefit of creditors, or (b)
shall commence a voluntary case or have entered against it an order for relief
under any chapter of the Federal Bankruptcy Code (Title 11 of the United States
Code) or any similar order or decree under any federal or state law, now in
existence, or hereafter enacted having the same general purpose, and such order
or decree shall have not been stayed or vacated within 30 days after entry, or
(c) shall cause, suffer, permit or consent to the appointment of a receiver,
trustee, administrator, conservator, sequestrator, liquidator or similar
official in any federal, state or foreign judicial or nonjudicial proceeding, to
hold, administer and/or liquidate all or substantially all of its assets, and
such appointment shall not have been revoked, terminated, stayed or vacated and
such official discharged of his duties within 30 days of his appointment then
Landlord, at any time after the occurrence of any such event, may give Tenant a
notice of intention to end the Term at the expiration of five (5) days from the
date of service of such notice of intention, and upon the expiration of said
five (5) day period, whether or not the Term shall theretofore have commenced,
this Lease shall terminate with the same effect as if that day were the
expiration date of this Lease, but Tenant shall remain liable for damages as
provided in Article 26.
24.02. This Lease is subject to the further limitations that: (a) if
Tenant shall default in the payment of any Rent, and such default shall continue
for five (5) days after notice or (b) if Tenant shall, whether by action or
inaction, be in default of any of its obligations under this Lease (other than a
default in the payment of Rent) and such default shall continue and not be
remedied within fifteen (15) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a default which cannot with due
diligence be cured within a period of fifteen (15) days and
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the continuance of which for the period required for cure will not subject
Landlord or any Superior Lessor or prosecution for a crime (as more particularly
described in the last sentence of Section 11.02) or termination of any Superior
Lease or foreclosure of any Superior Mortgage, if Tenant shall not, (i) within
said fifteen (15) day period advise Landlord of Tenant's intention to take all
steps necessary to remedy such default, (ii) duly commence within said fifteen
(15) day period, and thereafter diligently prosecute to completion all steps
necessary to remedy the default, and (iii) complete such remedy within a
reasonable time after the date of said notice by Landlord, or (c) if any event
shall occur or any contingency shall arise whereby this Lease would, by
operation of law or other-wise, devolve upon or pass to any person, firm or
corporation other than Tenant, except as expressly permitted by Article 10, or
(d) if Tenant shall vacate or abandon the Demised Premises, then in any of said
cases Landlord may give to Tenant a notice of intention to end the Term at the
expiration of ten (10) days from the date of the service of such notice of
intention, and upon the expiration of said ten (10) days, whether or not the
Term shall theretofore have commenced, this Lease shall terminate with the same
effect as if that day were the expiration date of this Lease, but Tenant shall
remain liable for damages as provided in Article 26.
ARTICLE 25 - RE-ENTRY BY LANDLORD
25.01. If Tenant shall default in the payment of any Rent, and such
default shall continue for ten (10) days after notice, or if this Lease shall
terminate as provided in Article 24, Landlord or Landlord's agents and employees
may immediately or at any time thereafter re-enter the Demised Premises, or any
part thereof, either by summary dispossess proceedings or by any suitable action
or proceeding at law without being liable to indictment, prosecution or damages
therefor, and may repossess the same, and may remove any Person therefrom, to
the end that Landlord may have, hold and enjoy the Demised Premises. The word
"re-enter," as used herein, is not restricted to its technical legal meaning. If
this Lease is ' terminated under the provisions of Article 24, or if Landlord
shall re-enter the Demised Premises under the provisions of this Article 25, or
in the event of the termination of this Lease, or of re-entry, by or under any
summary dispossess or other proceedings or action or any provision of law by
reason of default hereunder on the part of Tenant, Tenant shall thereupon pay to
Landlord the Rent payable up to the time of such termination of this Lease, or
of such recovery of possession of the Demised Premises by Landlord, as the case
may be, and shall also pay to Landlord damages as provided in Article 26.
25.02. In the event of a breach or threatened breach by Tenant of any
of its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any remedy
allowed at law or in equity as if specific remedies were not provided for
herein.
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25.03. If this Lease shall terminate under the provisions of Article
24, or if Landlord shall re-enter the Demised Premises under the provisions of
this Article 25, or in the event of the termination of this Lease, or of
re-entry, by or under any summary dispossess or other proceeding or action or
any provision of law by reason of default hereunder on the part of Tenant,
Landlord shall be entitled to retain all monies, if any, paid by Tenant to
Landlord, whether as Advance Rent, security or otherwise, but such monies shall
be credited by Landlord against any Rent due from Tenant at the time of such
termination or re-entry or, at Landlord's option, against any damages payable by
Tenant under Article 26 or pursuant to law.
ARTICLE 26 - DAMAGES
26.01. If this Lease is terminated under the provisions of Article 24,
or if Landlord shall re-enter the Demised Premises under the provisions of
Article 25, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall pay as
Additional Charges to Landlord, at the election of Landlord, either or any
combination of:
(a) a sum which at the time of such termination of this Lease or at the
time of any such re-entry by Landlord, as the case may be, represents the then
value of the excess, if any, of (i) the aggregate amount of the Rent which would
have been payable by Tenant (conclusively presuming the average monthly
Additional Charges to be the same as were the average monthly Additional Charges
payable for the year, or if less than 365 days have then elapsed since the
Commencement Date, the partial year, immediately preceding such termination or
re-entry) for the period commencing with such earlier termination of this Lease
or the date of any such re-entry, as the case may be, and ending with the
Expiration Date, over (ii) the aggregate rental value of the Demised Premises
for the same period; or
(b) sums equal to the Fixed Rent and the Additional Charges which would
have been payable by Tenant had this Lease not so terminated, or had Landlord
not so re-entered the Demised Premises, payable upon the due dates therefor
specified herein following such termination or such re-entry and until the
Expiration Date, provided, however, that if Landlord shall relet the Demised
Premises during said period, Landlord shall credit Tenant with the net rents
received by Landlord from such reletting, such net rents to be determined by
first deducting from the gross rents as and when received by Landlord from such
reletting the expenses incurred or paid by Landlord in terminating this Lease or
in re-entering the Demised Premises and in securing possession thereof, as well
as the expenses of reletting, including, without limitation, altering and
preparing the Demised Premises for new tenants, brokers' commissions, legal
fees, and all other expenses properly chargeable against the Demised Premises
and the rental therefrom, it being understood that any such reletting may be for
a period shorter or longer than the period ending on the Expiration Date; but in
no event shall Tenant be entitled to receive any excess of such net rents over
the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled
in any suit for the collection of
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damages pursuant to this subdivision (b) to a credit in respect of any rents
from a reletting, except to the extent that such net rents are actually received
by Landlord. If the Demised Premises or any part thereof should be relet in
combination with other space, then proper apportionment on a square foot basis
shall be made of the rent received from such reletting and of the expenses of
reletting; or
(c) a sum which at the time of such termination of this Lease or at the
time of any such re-entry by Landlord, as the case may be, represents the
aggregate amount of the Rent which would have been payable by Tenant
(conclusively presuming the average monthly Additional Charges to be the same as
were the average monthly Additional Charges payable for the year, or if less
than 365 days have then elapsed since the Commencement Date, the partial year,
immediately preceding such termination or re-entry) for the period commencing
with such earlier termination of this Lease or the date of any such re-entry, as
the case may be, and ending with the Expiration Date; provided, however, that if
Landlord shall relet the Demised Premises during said period, Landlord shall
credit Tenant with the net rents received by Landlord from such reletting, such
net rents to be determined by first deducting from the gross rents as and when
received by Landlord from such reletting the expenses incurred or paid by
Landlord in terminating this Lease or in re-entering the Demised Premises and in
securing possession thereof, as well as the expenses of reletting, including,
without limitation, altering and preparing the Demised Premises for new
tenant's, brokers' commissions, legal fees, and all other expenses properly
chargeable against the Demised Premises and the rental therefrom, it being
understood that any such reletting may be for a period shorter or longer than
the period ending on the Expiration Date; but in no event shall Landlord have to
account to Tenant for any rents in excess of the total damages recovered by
Landlord hereunder, nor shall Tenant be entitled in any suit for the collection
of damages pursuant to this subdivision (c) to a credit in respect of any rents
from a reletting, except to the extent that such net rents are actually received
by Landlord. If the Demised Premises or any part thereof should be relet in
combination with other space, then proper apportionment on a square foot basis
shall be made of the rent received from such reletting and of the expenses of
reletting.
If the Demised Premises or any part thereof be relet by Landlord before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting. Landlord shall not be liable in any way
whatsoever for its failure to relet the Demised Premises or any part thereof, or
if the Demised Premises or any part thereof are relet, for its failure to
collect the rent under such reletting, and no such failure to relet or failure
to collect rent shall release or affect Tenant's liability for damages or
otherwise under this Lease. Without limiting the foregoing Landlord agrees to
mitigate its damages by attempting to relet in its ordinary course of business.
26.02. Suit or suits for the recovery of such damages or, any
installments thereof, may be brought by Landlord at any time and from time to
time at its election, and nothing contained herein shall be deemed to require
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Landlord to Postpone suit until the date when the Term would have expired if it
had not been so terminated under the provisions of Article 24, or under any
provision of law, or had Landlord not re-entered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to prove for and obtain as
damages by reason of the termination of this Lease or re-entry of the Demised
Premises for the default of Tenant under this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time, whether or
not such amount be greater than, equal to, or less than any of the sums referred
to in Section 26.01.
26.03. In addition, if this Lease is terminated under the provisions of
Article 24, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 25, Tenant covenants that: (a) the Demised Premises then
shall be in the same condition as that in which Tenant has agreed to surrender
the same to Landlord at the Expiration Date; (b) Tenant shall have performed
prior to any such termination any obligation of Tenant contained in this Lease
for the making of any alteration or for restoring or rebuilding the Demised
Premises or the Building, or any part thereof; and (c) for the breach of any
covenant of Tenant set forth above in this Section 26.03, Landlord shall be
entitled immediately, without notice or other action by Landlord, to recover,
and Tenant shall pay, as and for liquidated damages therefor, the cost of
performing such covenant (as estimated by an independent contractor selected by
Landlord).
26.04. In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 26, if any Rent or damages payable hereunder by
Tenant to Landlord are not paid within five (5) days after demand therefor, the
same shall bear interest at the Late Payment Rate or the maximum rate permitted
by law, whichever is less, from the due date thereof until paid, and the amounts
of such interest shall be Additional Charges hereunder.
ARTICLE 27 - AFFIRMATIVE WAIVERS
27.01. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, they or any of them might have under or by reason of any present or
future law, to redeem the Demised Premises or to have a continuance of this
Lease after being dispossessed or ejected from the Demised Premises by process
of law or under the terms of this Lease or after the termination of this Lease
as provided in this Lease.
27.02. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
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Demised Premises including, without limitation, any claim of injury or damage,
and any emergency and other statutory remedy with respect thereto. Tenant shall
not interpose any counterclaim of any kind in any action or proceeding commenced
by Landlord to recover possession of the Demised Premises.
ARTICLE 28 - NO WAIVERS
28.01. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this Lease, or to exercise any election herein contained, shall not be construed
as a waiver or relinquishment for the future of the performance of such one or
more obligations of this Lease or of the right to exercise such election, but
the same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. The receipt by Landlord of Fixed Rent or
Additional Charges with knowledge of breach by Tenant of any obligation of this
Lease shall not be deemed a waiver of such breach.
ARTICLE 29 - CURING TENANT'S DEFAULTS
29.01. If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice in a case of emergency, and in any other case
only if such default continues after the expiration of fifteen (15) days from
the date Landlord gives Tenant notice of the default. Bills for any expenses
incurred by Landlord in connection with any such performance by it for the
account of Tenant, and bills for all costs, expenses and disbursements of every
kind and nature whatsoever, including reasonable attorneys' fees and expenses,
involved in collecting or endeavoring to collect the Rent or any part thereof or
enforcing or endeavoring to enforce any rights against Tenant or Tenant's
obligations hereunder, under or in connection with this Lease or pursuant to
law, including any such cost, expense and disbursement involved in instituting
and prosecuting summary proceedings or in recovering possession of the Demised
Premises after default by Tenant or upon the expiration of the Term or sooner
termination of this Lease, and interest on all sums advanced by Landlord under
this Article at the rate of three percent (3%) per month or the maximum rate
permitted by law, whichever is less, may be sent by Landlord to Tenant monthly,
or immediately, at Landlord's option, and such amounts shall be due and payable
in accordance with the terms of such bills.
ARTICLE 30 - BROKER
30.01. Landlord and Tenant represent that no broker except the Broker
was instrumental in bringing about or consummating this Lease and Tenant
represents that it had no conversations or negotiations with any broker except
the Broker concerning the leasing of the Demised Premises. Each party agrees to
indemnify and hold harmless the other against and from any claims for any
brokerage commissions and all costs, expenses and liabilities in connection
therewith, including, without limitation, attorneys' fees and expenses, arising
out of any conversations or negotiations had by itself with any broker
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other than the Broker. Landlord shall pay any brokerage commissions due the
Broker pursuant to a separate agreement between Landlord and the Broker.
ARTICLE 31 - NOTICES
31.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to the other, pursuant to this Lease or pursuant to any applicable Legal
Requirement, shall be in writing and shall be deemed to have been properly
given, rendered or made only if hand delivered or sent by United States
registered or certified mail, return receipt requested, addressed to the other
party at the address hereinabove set forth (except that after the Commencement
Date, Tenant's address, unless Tenant shall give notice to the contrary, shall
be the Building) as to Landlord, to the attention of General Counsel with a
concurrent Notice to the attention of Controller, and shall be deemed to have
been given, rendered or made on the second day after the day so mailed, unless
mailed outside the State of New Jersey, in which case it shall be deemed to have
been given, rendered or made on the third business day after the day so mailed.
Either party may, by notice as aforesaid, designate a different address or
addresses for notices, statements, demands, consents, approvals or other
communications intended for it.
ARTICLE 32 - ESTOPPEL CERTIFICATES
32.01. Each party shall, at any time and from time to time, as
requested by the other party, upon not less than ten (10) days' prior notice,
execute and deliver to the requesting party a statement certifying that this
Lease is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and stating
the modifications), certifying the dates to which the Fixed Rent and Additional
Charges have been paid, stating whether or not, to the best knowledge of the
party giving the statement, the requesting party is in default in performance of
any of its obligations under this Lease, and, if so, specifying each such
default of which the party giving the statement shall have knowledge, and
stating whether or not, to the best knowledge of the party giving the statement,
any event has occurred which with the giving of notice or passage of time, or
both, would constitute such a default of the requesting party, and, if so,
specifying each such event; any such statement delivered pursuant hereto shall
be deemed a representation and warranty to be relied upon by the party
requesting the certificate and by others with whom such party may be dealing,
regardless of independent investigation. Tenant also shall include in any such
statement such other information concerning this Lease as Landlord may
reasonably request.
ARTICLE 33 - ARBITRATION
33.01. Landlord may at any time request arbitration, and Tenant may at
any time when not in default in the payment of any Rent request arbitration,
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of any matter in dispute in the charge or collection of Additional Charges. The
party requesting arbitration shall do so by giving notice to that effect to the
other party, specifying in said notice the nature of the dispute, and said
dispute shall be determined in Newark, New Jersey, by a single arbitrator, in
accordance with the rules then obtaining of the American Arbitration Association
(or any organization which is the successor thereto). The award in such
arbitration may be enforced on the application of either party by the order or
judgment of a court of competent jurisdiction. The fees and expenses of any
arbitration shall be borne by the parties equally, but each party shall bear the
expense of its own attorneys and experts and the additional expenses of
presenting its own proof. If Tenant gives notice requesting arbitration as
provided in this Article, Tenant shall simultaneously serve a duplicate of the
notice on each Superior Mortgagee and Superior Lessor whose name and address
shall previously have been furnished to Tenant, and such Superior Mortgagees and
Superior Lessor shall have the right to participate in such arbitration.
ARTICLE 34 - MEMORANDUM OF LEASE
34.01. Tenant shall not record this Lease. However, at the request of
either party, the other shall promptly execute, acknowledge and deliver to
Landlord a memorandum of lease in respect of this Lease sufficient for
recording. Such memorandum shall not be deemed to change or otherwise affect
any of the obligations or provisions of this Lease. Whichever party records such
memorandum of Lease shall pay all recording costs and expenses, including any
taxes that are due upon such recording.
ARTICLE 35 - MISCELLANEOUS
35.01. Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement(s) which may be made between the parties
concurrently with the execution and delivery of this Lease. All understandings
and agreements heretofore had between the parties are merged in this Lease and
any other written agreement(s) made concurrently herewith, which alone fully and
completely express the agreement of the parties and which are entered into after
full investigation. Neither party has relied upon any statement or
representation not embodied in this Lease or in any other written agreement(s)
made concurrently herewith.
35.02. No agreement shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in whole
or in part, unless such agreement is in writing, refers expressly to this Lease
and is signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of abandonment is
sought.
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35.03. If Tenant shall at any time request Landlord to sublet or let
the Demised Premises for Tenant's account, Landlord or its agent is authorized
to receive keys for such purposes without releasing Tenant from any of its
obligations under this Lease, and Tenant hereby releases Landlord of any
liability for loss or damage to any of the Tenant's Property in connection with
such subletting or letting.
35.04. Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to; provided, however, that (a) no violation
of the provisions of Article 10 shall operate to vest any rights in any
successor or assignee of Tenant and (b) the provisions of this Section 35.04
shall not be construed as modifying the conditions of limitation contained in
Article 24.
35.05. Except for Tenant's obligations to pay Rent, the time for
Landlord or Tenant, as the case may be, to perform any of its respective
obligations hereunder shall be extended if and to the extent that the
performance thereof shall be prevented due to any strikes, lockouts, civil
commotions, warlike operations, invasions, rebellions, hostilities, military or
usurped power, governmental regulations or controls, inability to obtain labor
or materials despite due diligence, acts of God, or other causes beyond the
control of the party whose performance is required. Except as expressly provided
to the contrary, the obligations of Tenant hereunder shall not be affected,
impaired or excused, nor shall Landlord have any liability whatsoever to Tenant,
(a) because Landlord is unable to fulfill, or is delayed in fulfilling, any of
its obligations under this Lease due to any of the matters set forth in the
first sentence of this Section 35.05, or (b) because of any failure or defect in
the supply, quality or character of electricity, water or any other utility or
service furnished to the Demised Premises for any reason beyond Landlord's
reasonable control.
35.06. Any liability for payments hereunder (including, without
limitation, Additional Charges) shall survive the expiration of the Term or
earlier termination of this Lease.
35.07. If Tenant shall request Landlord's consent and Landlord shall
fail or refuse to give such consent, Tenant shall not be entitled to any damages
for any withholding by Landlord of its consent; Tenant's sole remedy shall be
an action for specific performance or injunction, and such remedy shall be
available only in those cases where Landlord has expressly agreed in writing
not to unreasonably withhold or delay its consent or where as a matter of law
Landlord may not unreasonably withhold its consent.
35.08. If an excavation shall be made upon land adjacent to or under
the Building, or shall be authorized to be made, Tenant shall afford to the
Person causing or authorized to cause such excavation, license to enter the
Demised Premises for the purpose of performing such work as said Person shall
reasonably deem necessary or desirable to preserve and protect the Building from
injury or damage and to support the same by proper foundations, without
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any claim for damages or liability against Landlord and without reducing or
otherwise affecting Tenant's obligations under this Lease.
35.09. Tenant shall not exercise its rights under Article 14 or any
other provision of this Lease in a manner which would violate Landlord's union
contracts or create any work stoppage, picketing labor disruption or dispute or
any interference with the business of Landlord.
35.10. Tenant shall give prompt notice to Landlord of (a) any
occurrence in or about the Demised Premises for which Landlord might be liable,
(b) any fire or other casualty in the Demised Premises, (c) any damage to or
defect in the Demised Premises, including the fixtures and equipment thereof,
for the repair of which Landlord might be responsible, and (d) any damage to or
defect in any part of the Building's sanitary, electrical, heating, ventilating,
air-conditioning, elevator or other systems located in passing through the
Demised Premises or any part thereof.
35.11. This Lease shall be governed by and construed in accordance with
the laws of the State of New Jersey. If any provision of this Lease shall, be
invalid or unenforceable, the remainder of this Lease shall not be affected and
shall be enforced to the extent permitted by law. The table of contents,
captions, headings and titles in this Lease are solely for convenience of
reference and shall not affect its interpretation. This Lease shall be construed
without regard to any presumption or other rule requiring construction against
the party causing this Lease to be drafted. If any words or phrases in this
Lease shall have been stricken out or otherwise eliminated, whether or not any
other words or phrases have been added, this Lease shall be construed as if the
words or phrases so stricken out or otherwise eliminated were never included in
this Lease and no implication or inference shall be drawn from the fact that
said words or phrases were so stricken out or otherwise eliminated. Each
covenant, agreement, obligation or other provision of this Lease on Tenant's
part to be performed, shall be deemed and construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease. All terms and words used in this Lease, regardless of the number or
gender in which they are used, shall be deemed to include any other number and
any other gender as the context may require.
35.12. Within thirty (30) days of each anniversary date of this Lease,
Tenant shall annually furnish to Landlord a copy of its then current audited
financial statement which shall be employed by Landlord for purposes of
financing the Demised Premises and not distributed otherwise without prior
authorization of Tenant. Any material adverse change of Tenant's financial
condition shall be furnished to Landlord in writing forthwith and without
request by Landlord for same.
35.13. (i) At least ninety (90) days prior to Tenant's termination of
its lease, and any extensions thereof, Tenant agrees to seek a determination
from the New Jersey Department of Environmental Protection and Energy ("NJDEPE")
in the form of a Letter of Non-applicability ("LNA"), that the New Jersey
Industrial Recovery Act, N.J.S.A. 13:1K-6 et seq. ("ISRA"), is inapplicable to
the Tenant's cessation of operations and termination of its lease. In the event
that the Tenant obtains an LNA from the NJDEPE pursuant
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to this subsection, Landlord agrees to accept an LNA in full and complete
satisfaction of the obligations of this subsection. Tenant represents, warrants,
and covenants that any information contained in any application for an LNA
submitted pursuant to this subsection is true and complete. Tenant represents
that the Standard Industrial Classification (SIC) number applicable to Tenant's
operations is ________________ and would not subject this transaction to the
requirements of ISRA.
(ii) In the event that an LNA is denied by NJDEPE, notice of such
denial will be given to Landlord within two (2) business days of Tenant's
receipt of NJDEPE's denial of the LNA. Tenant shall satisfy its obligations
under ISRA prior to its lease termination date: (1) by securing an approval of
the Tenant's Negative Declaration; or (2) by securing an approval of the
Tenant's Cleanup Plan, and completing the implementation of such Cleanup Plan.
Tenant shall bear sole responsibility for any investigation and cleanup costs,
fees, penalties, or damages associated with ISRA compliance. In the event that
Tenant is unable to complete the its ISRA compliance obligations by the date of
its lease termination, Landlord shall continue to provide Tenant with reasonable
access to the Demised Premises, provided that any work undertaken by Tenant
shall be performed in such a manner as to minimize interference with Landlord's
or any other tenant's use of the Demised Premises. However, Landlord reserves
its rights to deem Tenant a holdover tenant in the event that Tenant's ISRA
compliance unreasonably restricts the Landlord's use of the Demised Premises.
(iii) Tenant shall provide Landlord with copies of all correspondence,
documents and reports, including sampling results submitted to or received
compliance with ISRA.
(iv) Landlord represents that no asbestos containing materials were
used in the construction of the Building, and, to the best of its knowledge, no
asbestos containing materials are currently in the Building.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
XXXXX MOUNTAIN INDUSTRIES, INC.
("Landlord")
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxx
Executive Vice President
[Corporate Seal]
SLEEPMASTER PRODUCTS COMPANY, L.P.
("Tenant")
By: /s/ Xxxxx X. Gummet
----------------------------------
Name: Xxxxx X. Gummet
[Corporate Seal] Title: Chairman
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RIDER TO LEASE DATED OCTOBER 13, 1993, BETWEEN XXXXX MOUNTAIN
INDUSTRIES, INC. , AS LANDLORD AND SLEEPMASTER PRODUCTS COMPANY, L.P., AS
TENANT.
--------------------------------------------------------------------------------
Rl. If any of the provisions of this Rider shall conflict with any of
the provisions, printed or typewritten, of this Lease, such conflict shall
resolve in every instance in favor of the provisions of this Rider.
R2. Provided Tenant is not in default under the Lease, Tenant shall
have two (2) options to extend the Term of its lease of the Demised Premises,
from the date upon which this Lease would otherwise expire for two (2) extended
periods of five (5) years (herein referred to as the "First Extended Period" and
the "Second Extended Period" respectively), upon the following terms and
conditions:
1. If Tenant elects to exercise said options, it shall do so by giving
notice of such election to Landlord on or before the date which is one (1) year
before the beginning of each Extended Period for which the Term is to be
extended by the exercise of such option. Tenant agrees that it shall have
forever waived its right to exercise each option if it shall fail for any reason
whatsoever to give such notice to Landlord by the time provided herein for the
giving of such notice, whether such failure is inadvertent or intentional, time
being of the essence as to the exercise of such option.
2. If Tenant elects to exercise either option, the Term shall be
automatically extended for the Extended Periods covered by the option so
exercised without execution of an extension or renewal lease. However, within
ten (10) days after request of either party following the effective exercise of
each option, Landlord and Tenant shall execute, acknowledge and deliver to each
other duplicate originals of an instrument in recordable form confirming that
such option was effectively exercised.
3. The Extended Periods shall be upon the same terms and conditions as
are in effect immediately preceding the commencement of such Extended Period;
provided, however, that Tenant shall have no right or option to extend the Term
for any period of time beyond the expiration of the Extended Period and,
provided further, that in the Extended Periods the Fixed Rent shall be as
follows:
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(a) The Fixed Rent during the First Extended Period shall be
equal to the Fixed Rent in effect immediately preceding the First Extended
Period, increased (but not decreased) by the percentage increase by which the
Consumer Price Index (all items for New York-Northeast New Jersey for Urban
Wage Earners and Clerical Workers, or a successor or substitute index properly
adjusted ["CPI"]) last issued prior to the first day of the Extended Period
exceeds the CPI issued last preceding the Commencement Date of this Lease or the
Fixed Rent per square foot per annum in effect immediately preceding the First
Extended Period, whichever is greater.
(b) The Fixed Rent during the Second Extend Period shall be at
Fair Market Value, but not less than the Fixed Rent in effect during the First
Extended Period. Fair Market Value shall be determined by mutual agreement of
the parties. If the parties are unable to agree on the Fair Market Value, the
parties shall choose a licensed real Estate Appraiser who shall determine the
Fair Market Value. The cost of said Real Estate Appraiser shall be borne equally
by the parties. If the parties are unable to agree on a licensed Real Estate
Appraiser, each party shall select one Appraiser to appraise the Fair Market
Value. If the difference between the two appraisals is 20% or less of the lower
appraisal then the Fair Market Value shall be the average of the two appraisals.
If the difference between the two appraisals is greater than 20% of the lower
appraisal, the two Appraisers shall select a third licensed Real Estate
Appraiser to appraise the Fair Market Value. The Fair Market Value shall in such
case be the average of the three appraisals. The cost of the third appraisal
shall be borne equally by the parties. Anything to the contrary contained herein
notwithstanding, the Fixed Rent for the Second Extended Period shall not be less
than the Fixed Rent in effect for the First Extended Period.
4. Any termination, expiration, cancellation or surrender of this Lease
shall terminate any right or option for the Extended Period not yet exercised.
5. Landlord shall have the right, for thirty (30) days after receipt of
notice of Tenant's election to exercise any option to extend the Term, to reject
Tenant's election if Tenant gave such notice while Tenant was in default in the
performance of any of its obligations under the Lease, and such rejection shall
automatically render Tenant's election to exercise such option null and void and
of no effect.
6. The option provided herein to extend the Term of the Lease may not
be severed from the Lease or separately sold, assigned or otherwise transferred.
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R3. Tenant agrees that it shall use its best efforts to deliver the
Security Deposit as soon as possible following the date hereof, and in the event
the Security Deposit is not received by Landlord within seven (7) days of
execution of this Lease, Landlord may terminate this Lease upon notice to
Tenant.
XXXXX MOUNTAIN INDUSTRIES, INC.
("Landlord")
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxx
Executive Vice President
[Corporate Seal]
SLEEPMASTER PRODUCTS COMPANY, L.P.
("Tenant")
By: /s/ Xxxxx X. Gummet
----------------------------------
Name: Xxxxx X. Gummet
[Corporate Seal] Title: Chairman
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October 13, 1993
Workletter
Sleepmaster Products Co. L.P.
The following represents Landlord's work to be done at no additional
cost to tenant.
A. 1. Construct up to 10,000 s.f. of office space (inclusive of
existing offices) pursuant to the attached office sketch and
attached standard office specifications; bathrooms for 20
women and 15 men will be provided in the office area. (The
parties acknowledge that the attached office sketch is subject
to modification in accordance with the foregoing obligations.)
2. Install gas heat in warehouse areas (either Dravo floor
mounted or gas fired unit heaters). If tenant elects to
install the heating system, a credit of $160,000 will be
issued against fixed rent, provided tenant elects to do so by
notice to Landlord within 10 days hereof.
3. Install 3 additional dock height loading doors and 1 drive-in
door on the east wall of the building; this work includes
8' x 10' loading dock doors with dock seals and surface
mounted levelers along with the associated regrading. The
drive-in door will be 10' wide x 12' high.
4. Remove expansion bolts and piping in floor, refurbish the
existing holes created by this removal, remove the existing
fencing.
5. Repair existing roof leaks, if any.
Landlord is budgeting $280,000 for the work contained in A.1. In the
event modifications are made by Tenant which reduce or increase the overall
$280,000 budget, such reduction or increase shall be adjusted between the
parties.
The following represents additional Landlord's work to be performed and
paid for by tenant on the commencement date.
B. Construct one (1) 20' x 30' open office and one (1) 20' x 40' open shop
within the warehouse, contiguous to each other. Walls will be 10' high
and all finishes and electric are to be Landlord's standard. Provide
one (1) through the wall HVAC unit. A single men's and ladies' room
will be adjacent to this area, which will consist of one (1) water
closet, one (1) urinal and one (1) sink for the men; two (2) water
closets and one (1) Sink for the women, and one drinking fountain.
Location to be at Col 6A at an additional cost of $25,000.
In the event the construction of fixtures in the office space results
in a lesser amount of fixtures than required by Code, tenant will be
credited with said difference.
C. Landlord will convert dry sprinkler system to a wet sprinkler system of
the same density at an additional cost of $23,000.
D. Landlord will change 331 high bay sodium light bulbs to metal halide
bulbs on 5' pendants at an additional cost of $67,000.
In the event that a lesser amount of light bulbs are changed, a
resulting credit will be issued.
E. Add 2,000 linear feet of 6' high fencing, with barbed wire on top, at
the perimeter of the building; moving gates and guard shack towards the
street; running electric connection to the guard shack and gates at an
additional cost of $19,000.
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Sleepmaster Products Co. L.P.
Page 2
In the event the warehouse area is not Ready for Occupancy on or before
December 1, 1993, Tenant shall receive a one day abatement of Fixed Rent for
each day beyond December 1, 1993 until the warehouse area is Ready for
Occupancy, provided such delay is not caused by Tenant. In the event the office
area is not Ready for Occupancy on or before January 15, 1994, Tenant shall
receive a one day abatement of Fixed Rent for each day beyond January 15, 1994
until the office area is Ready for Occupancy, provided such delay is not caused
by Tenant, and provided further that there shall be no "double-counting" of the
Fixed Rent abatements.
Landlord represents that the ventilation system shall be sufficient to
deliver outside air to meet code requirements for human occupancy, it being
expressly acknowledged that any ventilation air requirement required to support
Tenant's manufacturing operation is the Tenant's responsibility.
45
EXHIBIT A
[XXXX XXXXXXXXX ASSOCIATES, INC. LETTERHEAD]
October 13, 1993
Job No. 7509-20 - BDC
Deed description of a parcel of land situated along the southerly line of Lower
Road at the municipal boundary line between the City of Rahway and the City of
Linden, in the City of Linden, Union County, New Jersey.
Beginning at a point on the southerly side of Lower Road, said point being the
following two (2) courses from the point of intersection of the southerly side
of Xxxxxxx Street with the easterly side of Wall Street (50' wide).
a. N 72 degrees 57' 30" E 477.58 feet to a point; thence
b. N 22 degrees 45' 00" E 2.28 feet to the point of beginning and
running; thence
1. N 72 degrees, 57' 30" E 340.37 feet along the southerly side of Lower
Road to a point; thence
2. S 04 degrees 01' 00" W 633.37 feet to a point; thence
3. S 05 degrees 13' 00" W 677.64 feet to a point; thence
4. N 70 degrees 04' 30" W 222.78 feet to a point; thence
5. N 71 degrees 37' 00" W 304.10 feet to a point; thence
6. N 04 degrees 54' 30" E 467.93 feet to a point on the municipal boundary
line between the City of Linden and the City of Rahway; thence
7. N 22 degrees 45' 00" E 616.85 feet along said municipal boundary line
between the City of Rahway and the City of Linden to the point of
beginning.
Containing 12.324 acres.
Subject to all easements, right of ways and agreements of record.
Subject to such statement of facts that an accurate title search may disclose.
Deed description refers to map entitled, "Map of Property of Xxx 0, Xxxxx 000
prepared for Xxxxx Mountain Industries, Inc.," prepared by Xxxx Xxxxxxxxx
Associates, Inc. dated November 13, 1989 and revised February 1, 1992.
46
EXHIBIT D
RULES AND REGULATIONS
1. The rights of each tenant in the entrances, corridors, elevators and
escalators servicing the Building are limited to ingress and egress from such
tenant's premises for the tenant and its employees, licensees and invitees, and
no tenant shall use, or permit the use of, the entrances, corridors, escalators
or elevators for any other purpose. No tenant shall invite to the tenant's
premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, escalators, elevators and other facilities of the Building
by any other tenants. Fire exits and stairways are for emergency use only, and
they shall not be used for any other purpose by the tenants, their employees,
licensees or invitees. No tenant shall encumber or obstruct, or permit the
encumbrance or obstruction of, any of the sidewalks, plazas, entrances,
corridors, escalators, elevators, fire exits or stairways of the Building.
Landlord reserves the right to control and operate the public portions of the
Building and the public facilities, as well as facilities furnished for the
common use of the tenants, in such manner as it deems best for the benefit of
the tenants generally.
2. Landlord may refuse admission to the Building outside of Business
Hours on Business Days to any person not known to the watchman in charge, or not
having a pass issued by Landlord or the tenant whose premises are to be entered,
or not otherwise properly identified, and Landlord may require all persons
admitted to or leaving the Building outside of Business Hours on Business Days
to provide appropriate identification. Tenant shall be responsible for all
persons for whom it issues any such pass and shall be liable to Landlord for all
acts or omissions of such persons. Any person whose presence in the Building at
any time shall, in the judgment of Landlord, be prejudicial to the safety,
character or reputation of the Building or of its tenants may be denied access
to the Building or may be ejected therefrom. During any invasion, riot, public
excitement or other commotion, Landlord may prevent all access to the Building
by closing the doors or otherwise for the safety of the tenants and protection
of property in the Building.
3. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities used in common with other
tenants, caused by a tenant or its employees, licensees or invitees, shall be
paid by such tenant.
4. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens shall be attached
to or hung in, or be used in connection with, any window or door of the premises
of any tenant, without the prior written consent of landlord. Such curtains,
blinds, shades or screens must be of a quality, type, design and color, and
attached in the manner approved by Landlord.
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5. No lettering, sign, advertisement, notice or object shall be
displayed in or on the windows or doors, or on the outside of any tenant's
premises, or at any point inside any tenant's premises where the same might be
visible outside of such premises, without the prior written consent of Landlord.
In the event of the violation of the foregoing by any tenant, Landlord may
remove the same without any liability, and may charge the expense incurred in
such removal to the tenant violating this rule. Interior signs, elevator cab
designations and lettering on doors and the Building directory shall, if and
when approved by Landlord, be inscribed, painted or affixed for each tenant by
Landlord at the expense of such tenant, and shall be of a size, color and style
acceptable to Landlord.
6. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Building shall not be covered or obstructed by any tenant, nor shall any
bottles, parcels or other articles be placed on the window xxxxx or on the
peripheral air conditioning enclosures, if any.
7. No showcase or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules.
8. Linoleum, tile or other floor covering shall be laid in a tenant's
premises only in a manner first approved in writing by Landlord.
9. No tenant shall xxxx, paint, drill into, or in any way deface any
part of its premises or the Building. No boring, cutting or stringing of wires
shall be permitted, except with the prior written consent of Landlord, and as
Landlord may direct.
10. No bicycles, vehicles, animals, fish or birds of any kind shall be
brought into or kept in or about the premises of any tenant of the Building.
11. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or television, which, in the judgment of
Landlord, might disturb other tenants in the Building shall be made or permitted
by any tenant. Nothing shall be done or permitted in the premises of any tenant
which would impair or interfere with the use or enjoyment by any other tenant of
any other space in the Building.
12. No tenant, nor any tenant's contractors, employees, agents,
visitors or licensees, shall at any time bring into or keep upon the premises or
the Building any inflammable, combustible, explosive or otherwise dangerous
fluid, chemical or substance.
13. Additional locks or bolts of any kind which shall not be operable
by the grand master key for the Building shall not be placed upon any of the
doors or windows by any tenant, nor shall any changes be made in locks or the
mechanism thereof which shall make such locks inoperable by said grand master
key. Additional keys for a tenant's
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premises and toilet rooms shall be procured only from Landlord who may make a
reasonable charge therefor. Each tenant shall, upon the termination of its
tenancy, turn over to Landlord all keys of stores, offices and toilet rooms,
either furnished to, or otherwise procured by, such tenant, and in the event of
the loss of any keys furnished by Landlord such tenant shall pay to Landlord the
cost thereof.
14. All removals, or the carrying in or out of any safes, freight,
furniture, packages, boxes, crates or any other object or matter of any
description, must take place during such hours and in such elevators and in such
manner as Landlord or its agent may determine from time to time. The persons
employed to move safes and other heavy objects shall be reasonably acceptable to
Landlord and, if so required by law, shall hold a master rigger's license.
Arrangements will be made by Landlord with any tenant for moving large
quantities of furniture and equipment into or out of the Building. All labor and
engineering costs incurred by Landlord in connection with any moving specified
in this rule shall be paid by Tenant to Landlord on demand.
15. Landlord reserves the right to inspect all objects and matter to be
brought into the Building and to exclude from the Building all objects and
matter which violate any of these Rules and Regulations or this Lease. Landlord
may require any person leaving the Building with any package or other object or
matter to submit a pass, listing such package or object or matter, from the
tenant from whose premises the package or object or matter is being removed, but
the establishment and enlargement of such requirement shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of such tenant. Landlord shall in no way be liable
to any tenant for damages or loss arising from the admission, exclusion or
ejection of any person to or from the premises or the Building under the
provisions of this RULE or of RULE 2 hereof.
16. No tenant shall occupy or permit any portion of its premises to be
occupied as an office for a public stenographer or public typist, or for the
possession, storage, manufacture, or sale of liquor, narcotics, dope, tobacco in
any form, or as a xxxxxx, beauty or manicure shop, or as a school. No tenant
shall use its premises or any part thereof to be used, for manufacturing, or the
sale at retail or auction of merchandise, goods or property of any kind.
17. Landlord shall have the right to prohibit any advertising or
identifying sign by any tenant which, in Landlord's judgment, tends to impair
the reputation of the Building or its desirability as a building for others, and
upon written notice from Landlord, such tenant shall refrain from and
discontinue such advertising or identifying sign.
18. Landlord shall have the right to prescribe the weight and position
of safes and other objects of excessive weight, and no safe or other object
whose weight exceeds the lawful load for the area upon which it would stand
shall be brought into or kept upon any tenant's premises. If, in the judgment of
Landlord, it is necessary to distribute the
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concentrated weight of any heavy object, the work involved in such distribution
shall be done at the expense of the tenant and in such a manner as Landlord
shall determine.
19. No machinery or mechanical equipment other than ordinary portable
business machines may be installed or operated in any tenant's premises without
Landlord's prior written consent, and in no case (even where the same are of a
type so excepted or as so consented to by Landlord) shall any machines or
mechanical equipment be so placed or operated as to disturb other tenants; but
machines and mechanical equipment which may be permitted to be installed and
used in a tenant's premises shall be so equipped, installed and maintained by
such tenant as to prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such premises to any other area of the
Building.
20. Landlord, its contractors, and their respective employees, shall
have the right to use, without charge therefor, all light, power and water in
the premises of any tenant while cleaning or making repairs or alterations in
the premises of such tenant.
21. No premises of any tenant shall be used for lodging or sleeping or
for any immoral or illegal purpose.
22. Canvassing, soliciting and peddling in the Building are prohibited
and each tenant shall cooperate to prevent the same.
23. No tenant shall cause or permit any unusual or objectionable odors
to emanate from its premises which would annoy other tenants or create a public
or private nuisance. No cooking shall be done in the premises of any tenant
except as is expressly permitted in such tenant's Lease.
24. Nothing shall be done or permitted in any tenant's premises, and
nothing shall be brought into or kept in any tenant's premises, which would
impair or interfere with any of the Building's services or the proper and
economic heating or other servicing of the Building or the premises, or the use
or enjoyment by any other tenant of any other premises, nor shall there be
installed by any tenant any ventilating, air-conditioning, electrical or other
equipment of any kind which, in the judgment of Landlord, might cause any such
impairment or interference.
25. No acids, vapors or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building
which may damage them. The water and wash closets and other plumbing fixtures in
or serving any tenant's premises shall not be used for any purpose other than
the purposes for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenants
who, or whose servants, employees, agents, visitors or licensees shall have,
caused the same. Any cuspidors or containers or receptacles used as such in the
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premises of any tenant or for garbage or similar refuse shall be emptied, cared
for and cleaned by and at the expense of such tenant.
26. All entrance doors in each tenant's premises shall be left locked
and all windows shall be left closed by the tenant when the tenant's premises
are not in use. Entrance doors shall not be left open at any time. Each tenant,
before closing and leaving its premises at any time, shall turn out all lights.
27. Hand trucks not equipped with rubber tires and side guards shall
not be used within the Building.
28. All windows in each tenant's premises shall be kept closed, and all
blinds therein above the ground floor shall be lowered as reasonably required
because of the position of the sun, during the operation of the Building
air-conditioning system to cool or ventilate the tenant's premises.
29. Landlord reserves the right to rescind, alter or waive any rule or
regulation at any time prescribed for the Building when, in its judgment, it
deems it necessary, desirable or proper for its best interest and for the best
interests of the tenants, and no alteration or waiver of any rule or regulation
in favor of one tenant shall operate as an alteration or waiver in favor of any
other tenant. Landlord shall not be responsible to any tenant for the
non-observance or violation by any other tenant of any of the rules and
regulations at any time prescribed for the Building.
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