Exhibit 10.2
LEASE
Net of All Costs and Expenses
This Lease is made as of the 28th day of September, 1998, between GWC
HEALTH, INC., a New Jersey corporation (the "Landlord"), and RYSTAN COMPANY,
INC., a New Jersey corporation (the "Tenant").
W I T N E S S:
1. Lease of Premises; Term and
Commencement Date
1.1 The Landlord, for and in consideration of the rents to be paid,
and of the covenants and agreements hereinafter specified to be kept and
performed, by the Tenant, hereby leases to the Tenant, and the Tenant leases
from the Landlord, the premises located at 00 Xxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx
Xxxxxx (the "Leased Premises"), as more particularly described on Schedule A
annexed hereto. The Leased Premises are leased in "as is" condition except as
provided in this Lease and in the Agreement and Plan of Merger among Integra
LifeSciences Corporation, RC Acquisition Corporation, GWC Health, Inc. and
Rystan Company, Inc. dated the date hereof (the "Merger Agreement").
1.2 The term of this Lease shall be for three (3) years, effective
September 28, 1998 (the "Commencement Date"), and ending on September 27, 2001
(the "Termination Date"). However, Tenant may terminate this Lease at any time
during the term hereof, without penalty, upon one hundred fifty (150) days
written notice to Landlord, whereupon this Lease shall terminate as if at the
end of the stated term.
1.3 This Lease is intended to terminate and replace any existing or
current lease for the Leased Premises. Tenant is hereby released from any claims
related to or arising out
of any prior lease for the Leased Premises between Landlord and Tenant of any
nature whatsoever. Any reference herein to "this Lease" shall not include any
lease between Landlord and Tenant prior to the date of this Lease.
2. Annual Rent; Cost of Living
Increase; Manner of Payment
2.1 (a) The Tenant covenants and agrees to pay the Landlord, for the
lease period commencing September 28, 1998 and ending on September 27, 1999, an
annual rental of FIFTY THOUSAND ($50,000) DOLLARS ("Rent").
(b) The annual rental for each year of the term of this
Lease, subsequent to the lease period ending September 27, 1999, shall be
determined by multiplying the annual rental then in effect, by a fraction, the
numerator of which is the average of the Revised Consumer Price Index, New York,
New York-Northeastern New Jersey, All Items Index (1967=100) for the last three
months of the lease year then ending, and the denominator of which is the
average of the Revised Consumer Price Index (1967=100) for the last three months
of the preceding year or lease year, as the case may be. In no event, however,
shall the Rent for any lease year be less than $50,000. 2.2 The Rent shall be
due and payable in equal monthly payments, in advance, on the first day of each
month for the term of this Lease.
3. Net Lease; Tenant to Pay
All Costs and Expenses
3.1 This Lease, and the Rent hereunder, are net of all costs and
expenses appurtenant to the Leased Premises and, the use and operation thereof.
All such costs and expenses, including without limitation, all real estate, use,
sales or other taxes, assessments,
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utility, service, repair, and other charges, are the sole and exclusive
responsibility of the Tenant; provided, however, that the Landlord shall be
responsible for all costs and expenses incurred in connection with the repair of
all structural damage to the Leased Premises and capital replacement of fixtures
(other than fixtures removable by Tenant in accordance with Section 4.6, if any)
and building systems. Any amount due hereunder shall be immediately remitted
directly to the Landlord upon presentation of a xxxx therefor, and the Landlord
shall give the Tenant a copy of all said bills, as well as a receipt therefor.
In the event the Landlord shall receive a refund of real estate taxes relating
to the Leased Premises for any year in respect of which the Tenant shall have
made a payment under the provisions of this Section, the proceeds of such refund
shall belong and be paid to the Tenant. Any payments or refunds due hereunder
for any period of less than a full year at the commencement or end of the term
of this Lease shall be equitably prorated between the Landlord and the Tenant to
reflect such event.
3.2 The Tenant, at its own cost and expense, has the right in its name
and/or in the Landlord' s name from time to time during the term of this Lease
to take such steps and actions which the Tenant deems proper to effectuate a
reduction of the taxes, assessments, water meter charges or similar items, and
the Landlord agrees, at the sole cost and expense of Tenant, to afford the
Tenant such cooperation as the Tenant may reasonably request with respect to
same.
3.3 Landlord shall indemnify and hold Tenant harmless against any and
all claims, losses, liabilities, and damages (including without limitation,
reasonable costs and fees of counsel) incurred under any Environmental Law, in
each case resulting from the presence, use, handling, generation processing,
treatment, storage, transportation, release, discharge or disposal of Hazardous
Materials at, on or beneath the Leased Premises:
(i) during the term of this Lease, to the extent caused by the
Landlord, its employees, agents or contractors; and
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(ii) after the term of this Lease while Landlord or any affiliate
of Landlord owns the Leased Premises, in each case except to the extent
resulting from or relating to any acts or omissions of Tenant, its employees,
agents and contractors.
3.4 Tenant shall indemnify and hold Landlord harmless against any and
all claims, losses, liabilities, and damages (including, without limitation,
reasonable costs and fees of counsel) incurred under any Environmental Law, in
each case resulting from the presence, use, handling, generation, processing,
treatment, storage, transportation, release, discharge or disposal of Hazardous
Materials at, on or beneath the Leased Premises to the extent caused by any
person (except Landlord, its employees, agents or contractors) during the term
of this Lease.
3.5 (a) In connection with any transfer, termination or closure of an
industrial establishment at the Leased Premises by the Tenant, including without
limitation termination of this Lease, the Tenant shall comply, at it sole cost
and expense, with the New Jersey Industrial Site Recovery Act ("ISRA"), N.J.S.A.
13:1K-6 et. seq.
(b) Tenant shall provide to Landlord all draft submissions
prepared by it pursuant to ISRA or other Environmental Laws at least five (5)
business days prior to submittal of a final version by Tenant to the New Jersey
Department of Environmental Protection ("NJDEP"). Tenant agrees to consider in
good faith any comments provided by Landlord on any such submission and prior to
making any submission, to make a good faith effort to discuss and resolve any
disagreements with Landlord regarding incorporation of Landlord's comments.
Landlord agrees that Tenant shall be primarily responsible for all
communications with NJDEP and any other governmental agencies related to
compliance by Tenant with ISRA or other Environmental Laws pursuant to this
Lease. It is agreed that, prior to any direct communication by Landlord with
NJDEP or any other governmental agencies concerning Tenant's compliance with
ISRA or other Environmental Laws pursuant to this Lease, Landlord and Tenant
shall each
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make a good faith effort to discuss and resolve and comments on or
disagreements of Landlord with any of Tenant's submissions to NJDEP or any other
governmental agencies.
(c) Tenant shall use its best efforts to complete
compliance with ISRA, including without limitation, completing any required
remediation of areas of environmental concern, and obtaining a No Further Action
Letter ("NFA") from NJDEP prior to the termination date of this Lease. In the
event that an NFA has not been obtained by Tenant prior to the termination date
of this Lease, Tenant represents and warrants that it will establish any
Remediation Funding Source required by NJDEP in a form and amount which is in
accordance with the provisions of ISRA.
(d) Tenant shall use its best efforts to comply with ISRA through
the use of an Expedited Review Application or its regulatory equivalent pursuant
to ISRA.
(e) Landlord shall cooperate with Tenant in its efforts to comply
with ISRA or other Environmental Laws pursuant to this Lease as follows and
agrees: (i) to promptly execute such documents as are reasonably necessary for
compliance by Tenant, provided such documents reflect Tenant's reasonable
request unless prohibited by applicable Environmental Law; (ii) to provide
information upon reasonable notice at reasonable hours which is necessary for
compliance by the Tenant which the Landlord possesses but which the Tenant does
not have available to it, including but not limited to relevant records of
Landlord and access to employees of Landlord reasonably likely to possess
relevant information; and (iii) if and when required by Tenant to comply with
ISRA or other Environmental Laws pursuant to this Lease, upon specific request
of Tenant to provide access to the Leased Premises for the purpose of
investigating, delineating and remediating Hazardous Materials at, on or beneath
the Leased Premises as required for Tenant to comply with ISRA or other
Environmental Law. Such access for Tenant shall be upon terms and conditions
reasonably acceptable to Landlord for the conduct of the
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specific proposed investigation, delineation and remediation activities required
for compliance by Tenant, provided that any such access and related
investigation, delineation and remediation activities do not interfere
unreasonably with the use and occupancy of the Leased Premises by the Landlord
or any other tenant.
(f) The Landlord will consider any remedial actions
proposed by Tenant including without limitation remedial actions which involve
Institutional Controls and/or Engineering Controls, but has and reserves the
right, in its sole discretion, to approve and agree to any remedial action
affecting or relating to the Leased Premises.
(g) Landlord hereby covenants and agrees that during the term of
this Lease, Landlord shall give Tenant immediate oral and written notice of
Landlord's receipt of any summons, citation, directive, order, claim, letter,
notice or other communication from any governmental authority or other person
alleging any violation of or potential liability under any Environmental Law
with respect to any events, conditions, circumstances, activities, practices or
incidents at or relating to the Leased Premises.
3.6 Tenant hereby covenants and agrees that during the term of this
Lease, Tenant shall:
(i) comply with all Environmental Laws;
(ii) give Landlord immediate oral and written notice of any
discharge or release of any Hazardous Materials at, on, under or from the Leased
Premises; and
(iii) give Landlord immediate oral and written notice of
Tenant's receipt of any summons, citation, directive, order, claim, letter,
notice or other communication from any governmental authority or other person
alleging any violation of or potential liability
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under any Environmental Law with respect to any events, conditions,
circumstances, activities, practices or incidents at or relating to the Leased
Premises.
3.7 For purposes of Sections 3.3, 3.4, 3.5 and 3.6 above:
"Environmental Law" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, the Resources Conservation
and Recovery Act of 1976, as amended, the New Jersey Industrial Site Recovery
Act, the New Jersey Spill Compensation and Control Act, and any other
applicable federal, state, local, or foreign statute, rule, regulation, order,
decree or judgement relating to pollution or protection of the environment,
including, without limitation, release or threatened release of Hazardous
Material.
"Engineering Controls" means any physical mechanism to contain or
stabilize contamination or ensure the effectiveness of a remedial action.
Engineering Controls may include, without limitation, caps, covers, dikes,
trenches, leachate collection systems, signs, fences and access controls.
"Hazardous Material" means any pollutant, contaminate, or hazardous
or toxic waste or substance regulated by any applicable Environmental Law.
"Institutional Controls" means a mechanism used to limit human
activities at or near a contaminated site, or to ensure the effectiveness of
the remedial action over time, when contaminates remain at a site at levels
above numeric remediation standards which would allow for the unrestricted use
of the property. Institutional Controls may include, without limitation,
structure, land and natural resource use restrictions, well restriction areas,
classification exception areas, deed notices and declarations of environmental
restrictions.
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4. Use, Maintenance, Alterations,
Repairs, Etc.
4.1 The Tenant may use and occupy the Leased Premises for any lawful
purpose whatsoever, including without limitation, the conduct of its
pharmaceutical business, and the uses normally and customarily incident to the
conduct of such business (such conduct and uses being hereinafter sometimes
referred to as the "Use" or "Uses").
4.2 The Tenant shall not use or occupy the Leased Premises, nor permit
same to be used or occupied, nor do or permit anything to be done in or on the
Leased Premises, in whole or in part, in a manner which would in any way violate
any certificate of occupancy affecting the Leased Premises, or make void or
voidable any insurance then in force with respect thereto, or which may make it
impossible to obtain fire or other insurance required to be furnished by the
Tenant hereunder, or as will cause or be apt to cause structural injury to the
improvements on the Leased Premises or any part thereof, or as will constitute a
public or private nuisance, or which might affect the ability of the Leased
Premises to continue to be used for the nonconforming use now in effect thereon.
Landlord acknowledges and agrees that Tenant's use of the Leased Premises as of
the date hereof does not violate this paragraph.
4.3 If, after the date hereof and during the term of this Lease, the
Tenant's use of the Leased Premises shall be changed and as a result thereof
there shall occur a violation of any presently existing laws, regulations,
ordinances or requirements of the federal, state, or municipal governments, or
of any departments, subdivisions, bureaus or offices thereof, or of any other
governmental, public or quasi-public authorities now existing, then the Tenant
shall indemnify and save harmless the Landlord against any recovery or loss to
which the Landlord may be subject or which the Landlord may sustain, including,
without limitation, reasonable attorneys' fees and expenses incurred by the
Landlord, arising from any such violation, provided, however,
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that the Tenant may, in good faith, upon prior written notice to the Landlord
(and wherever necessary in the name of, but without expense to, the Landlord)
contest the validity of any such laws, regulations, ordinances or requirements
and, pending the determination of such contest may postpone compliance therewith
in such a manner as not to subject the Landlord to a fine or penalty or to
prosecution for a crime, or to cause the Leased Premises or any part thereof to
be condemned. If after the date hereof and during the term of the Lease, any
such laws, regulations, ordinances or requirements shall be modified in any way
so that the use of the Leased Premises, or any part thereof, for the Uses shall
be a violation of any new laws, regulations, ordinances, or requirements of the
federal, state or municipal governments, or of any departments, subdivision,
bureaus or offices thereof, or of any governmental, public or quasi-public
authorities now existing or hereafter created, then the Tenant may in good
faith, upon prior written notice to the Landlord and wherever necessary in the
name of, but without expense to, the Landlord) contest the validity of any such
laws, regulations, ordinances or requirements, or, alternatively, terminate this
Lease in accordance with Section 1.2.
4.4 Except as provided in Sections 6 and 7, the Tenant shall keep the
Leased Premises in good condition and shall make all necessary repairs to the
Leased Premises, except for structural repairs or capital replacements of
building systems or fixtures (other than fixtures removable by Tenant in
accordance with Section 4.6) which shall be the responsibility of the Landlord.
The Tenant shall also maintain and keep (but not, unless Tenant causes damage,
have the obligation to replace) the sidewalks and curbs adjacent to the Leased
Premises in good condition, and shall keep such sidewalks free and clear from
rubbish, ice and snow, and shall not encumber or obstruct the same nor allow the
sane to be encumbered or obstructed in any manner.
4.5 If the Tenant, being charged with responsibility for any and all
repairs under the terms of this Lease, shall fail to commence same within thirty
(30) days after receipt of
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notice from Landlord, or after commencing such repair shall fail to complete it
with reasonable diligence, the Landlord may (but shall not be obligated to) make
or complete such repair at the expense of the Tenant.
4.6 All furniture, furnishings, machines, equipment, and business
fixtures (including by example, water systems) whether or not attached to the
real estate and any other movable property and all installations, additions and
improvements may, at the Tenant' s option, be removed by the Tenant during the
term or upon the expiration or termination of this Lease (provided only that the
removal of same would not cause permanent structural damage to the Leased
Premises). Tenant shall have no obligation to replace equipment, fixtures, etc.
so removed, but shall patch and/or repair any portion of the Leased Premises
damaged by such removal, including without limitation exterior and interior
walls. The Tenant's failure at the expiration or termination of this Lease to
remove any of its property from the Leased Premises shall not be deemed or
construed to constitute the Tenant a holdover tenant. If such removal is not
completed at the expiration or other termination of this Lease, any property
left at the Leased Premises shall become the property of Landlord upon ten (10)
days written notice to Tenant, providing Tenant with the opportunity within said
ten (10) days to remove said property.
5. Insurance
5.1 During. the term of this Lease, the Tenant, at its sole cost and
expense, and for the mutual benefit of the Landlord and the Tenant, shall carry
and maintain the following types of insurance in the amounts specified:
(i) Fire and extended coverage insurance covering the Leased
Premises against loss or damage by fire, and against loss or damage by other
risks now or hereafter embraced by the standard extended coverage endorsement
used in New Jersey, in
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amounts sufficient to prevent the Landlord or the Tenant from becoming a
co-insurer under the terms of the applicable policies.
(ii) Comprehensive public liability insurance, including
property damage, insuring the Landlord and the Tenant against liability for
injury to persons or property occurring in or about the Leased Premises, or
arising out of the ownership, maintenance, use or occupancy thereof. The
liability under such insurance shall not be less than $500,000 for any one
person injured or killed, and not less than $1,000,000 for any one accident and
not less than $300,000 for personal property damage for any one accident.
5.2 All policies of insurance (except liability insurance) shall
provide by endorsement that any loss shall by payable to the Landlord or the
Tenant as their respective interests may appear. The Tenant shall have the
privilege of procuring and obtaining all of such insurance through its own
sources.
5.3 Within 30 days of the execution of this Lease and thereafter by the
30th day of June of each year of the term of this Lease, the Tenant shall
deliver to the Landlord evidence of the above-mentioned insurance coverage
satisfactory to counsel for the Landlord. Upon the Tenant's failure to comply in
full with this Section 5, the Landlord shall have the immediate right to obtain
the aforesaid insurance coverage, to pay the premiums therefor, and to add said
premises to the monthly installment of rent next due, which amount shall be paid
by the Tenant to the Landlord in addition to said monthly installment.
5.4 Neither the Tenant nor the Landlord, nor their respective agents or
employees, shall be liable to the other for loss or damage covered by any
insurance policy.
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6. Damage or Destruction
6.1 If the Leased Premises or any part thereof are so damaged by fire
or other casualty as to render the Leased Premises unsuitable, in the Tenant's
reasonable judgment, for the reasonable conduct of the Tenant's business, the
Tenant shall have the option, exercisable within thirty (30) days after the date
of such casualty, to cancel and terminate this Lease.
6.2 If the Leased Premises or any part thereof shall be partially
damaged by fire or other casualty, and such damage in the Tenant's reasonable
judgment does not render the Leased Premises unsuitable for the reasonable
conduct of the Tenant's business, the Landlord shall promptly apply any
insurance proceeds to repair and restore the Leased Premises in a manner, and to
the extent possible, corresponding to the condition of such property immediately
prior to such occurrence, provided that the Landlord shall not be required to
expend any amount on such repairs and restoration in excess of the amount the
insurance proceeds received by it on account of such fire or other casualty,
and, provided further, that if such insurance proceeds are insufficient to
enable the Landlord to comply with its obligations hereunder, the Landlord shall
have the option, exercisable within ninety (90) days after the date of such
casualty, to cancel and terminate this Lease. Until such repairs and restoration
shall have been completed, the rent and real estate taxes payable by the Tenant
hereunder shall be apportioned and abated according to the part of the Leased
Premises which is unsuitable for the reasonable conduct of the Tenant's
business.
6.3 In the event that this Lease is terminated pursuant to Section 6.1,
the rent and real estate taxes for the calendar month in which such damage
occurs shall be apportioned as of the date on which such damage first occurred,
and if the Tenant shall have paid the rent and/or real estate taxes due
hereunder in advance of that date, the Landlord shall forthwith refund to the
Tenant so much of such rent and/or real estate taxes as may be due the Tenant as
a result of such
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apportionment. If the Tenant shall not have so paid, the Tenant shall be
responsible in full for those days prior to the damage, and proportionately
thereafter. The Tenant shall not be liable for any rent or real estate taxes
subsequent to such date.
6.4 Any insurance proceeds from any insurance policy maintained in
order to keep the Tenant in compliance with Section 5 hereof which are received
by the Tenant on account of any damage to or destruction of the Leased Premises,
or any part thereof, which is covered by the provisions of this Section 6 shall
be paid immediately to the Landlord.
7. Condemnation, Taking by Eminent Domain
7.1 If (a) all or any part of the Leased Premises shall be acquired or
condemned by eminent domain by any competent governmental authority and the part
not so taken, in the Tenant's reasonable judgment, shall not be suitable for the
reasonable conduct of the Tenant's business, or (b) access to the Leased
Premises is so taken and such taking, the Tenant's reasonable judgement, renders
the Leased Premises unsuitable for the reasonable conduct of the Tenant's
business, then, in either of such events, the term of this Lease shall cease and
terminate on the date of the vesting of title in the governmental authority. If
less than all of the Leased Premises is so taken, and this Lease terminates
pursuant to the foregoing, the Tenant shall nevertheless have the right, but not
the obligation, to remain in possession of the remainder of the Leased Premises
for an additional period not to exceed twelve (12) months after the date of the
vesting of title as aforesaid; provided, however, that in no event shall such
additional period extend beyond the Termination Date. The Tenant may so elect by
notice to the Landlord given within sixty (60) days after the Tenant is notified
of the vesting of title, specifying the desired additional period, in which
latter event this Lease shall end on the date so specified by the Tenant. The
rent and real estate taxes due hereunder for that part of the Leased Premises
not
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condemned and for such additional period shall be abated and apportioned to
account for the part of the Leased Premises which was taken or rendered
unsuitable for the reasonable conduct of the Tenant's business. The rent and
real estate taxes due hereunder for the month in which such termination takes
place shall be apportioned as of the date of termination. If the Tenant shall
have paid such rent and/or real estate taxes in advance of that date, the
Landlord shall forthwith refund to the Tenant so much of such rent and/or real
estate taxes as is due the Tenant by reason of such apportionment. If the Tenant
shall not have so paid, the Tenant shall be liable in full for all days prior to
the taking, and proportionately thereafter.
7.2 If part, but not all of the Leased Premises shall be acquired or
condemned by eminent domain by any competent governmental authority and the part
not so taken in the Tenant's reasonable judgment shall be sufficient and
suitable for the reasonable conduct of the Tenant's business, this Lease and the
term thereof shall not cease and terminate, but the Tenant shall be entitled to
a reduction in the rent and real estate taxes to be paid by it hereunder from
and after the date of the vesting of title, in such amount as may be mutually
agreed upon by the Landlord and the Tenant within a period of thirty (30) days
subsequent to the date of the vesting or failing such agreement, in such amount
as shall be fixed by appraisal as hereinafter provided in Section 8.
7.3 As soon after the date of the vesting as possible the Landlord
shall restore the portion of the Leased Premises not acquired or condemned by
eminent domain, in the manner and to the extent possible, to the condition that
such portion of the Leased Premises was in immediately prior thereto. The
Landlord shall not be required to spend more on such restoration that the amount
it received in the award.
7.4 Promptly upon receipt of any notice of a proposed taking, notice of
application to condemn, notice to file claims, notice of the vesting of title in
the condemning
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authority, and/or any other notice received by the Landlord, or otherwise coming
to the Landlord's attention, in connection with any taking or condemnation, the
Landlord shall send to the Tenant copies of such notices in the manner
prescribed herein for the giving of notices.
7.5 If there shall be included in the award made to the Landlord any
amount attributable to the cost of the Tenant's moving and relocation expenses,
the Landlord shall, within five (5) days after the receipt thereof by the
Landlord, pay to the Tenant the portion of the award so attributable. Except for
its right to compensation for moving and relocation expenses, Tenant waives all
rights to participate in, or receive amounts paid pursuant to, such award.
8. Appraisal
In the event that it shall be necessary to appraise the abatement
and/or reduction of the rent and/or the real estate taxes payable hereunder by
the Tenant pursuant to any Section of this Lease, each party agrees to appoint a
qualified, unbiased person within fifteen (15) days after notice in writing of
the necessity for appraisal, and to advise the other party of its choice. On the
failure to either party to appoint an appraiser within said fifteen (15) day
period, the person appointed as appraiser by the other party may appoint an
appraiser to represent the party in default. The two appraisers shall appraise
the abatement and/or reduction of such rent and/or such real estate taxes and/or
such purchase price of the Leased Premises, as the case may be. In the event of
their inability to reach a result within thirty (30) days after the appointment
of the second appraiser, they shall appoint a third qualified and responsible
appraiser. In the event the two appraisers are unable to agree on such third
appraiser, such appraisers shall ask the then President of the New Jersey Bar
Association to appoint him. The appraisers shall each be real estate brokers who
shall have had at least fifteen (15) years of experience in the business of
appraising real estate or acting as brokers of real estate in Newark, New
Jersey. Each party
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agrees to pay one-half (1/2) of the expenses and reasonable fees of he
appraisers, and to be bound by the decision of a majority of them.
9. Assignment, Subletting
9.1 The Tenant shall not sublet the Leased Premises or any portion
thereof, or assign this Lease, without the prior written consent of the Landlord
in each instance, which consent the Landlord covenants not to withhold or delay
unreasonably. The Landlord's consent shall not be required with respect to an
assignment of this Lease or a subletting of the Leased Premises or any part
thereof to a corporation controlling, controlled by, or under common control
with the Tenant, or to any successor of the Tenant by way of consolidation or
merger.
9.2 If this Lease be assigned, whether or not in violation of the
provisions of this Lease, the Landlord may, and is hereby empowered to, collect
rent from the assignee. In such event, the Landlord may apply the net amount
received by it to the rental and other payments herein reserved or provided for,
and no such collection shall be deemed a waiver of the covenant herein against
assignment, mortgage, encumbrance, pledge of subletting, or an acceptance of the
assignee or sub-tenant as a tenant under this Lease, or a release of the Tenant
from the further performance of the covenants herein contained on the part of
the Tenants.
9.3 The making of any assignment, mortgage, pledge, encumbrance or
subletting, in whole or in part, whether or not with the consent of the
Landlord, shall not operate to relieve the Tenant from its obligations under
this Lease and, notwithstanding any such assignment, mortgage, pledge,
encumbrance or subletting, the Tenant shall remain liable for the payment of the
rental and other charges, and for the due performance of all the covenants,
agreements, terms and provisions contained in this Lease, for the term of this
Lease, whether or
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not there shall have been any prior termination of this Lease by summary
proceedings or otherwise.
10. Default Provisions
10.1 This Lease and the term and estate hereby granted are subject to
the limitation that:
(a) whenever the Tenant shall default in the payment of any
installment of rent or of any other sum payable by the Tenant to the Landlord on
any day upon which the same is due, and if such default shall continue for ten
(10) days after the date thereof; or
(b) whenever the Tenant shall do or permit to be done, whether by
action or inaction, anything contrary to any covenant or agreement on the part
of the Tenant herein contained, or contrary to any of the covenants, agreements,
terms and provisions of this Lease, or shall fail to keep or perform any of the
covenants, agreements, terms or provisions contained in this Lease which, on the
part or behalf of the Tenant, are to be kept or performed (other than those
referred to in the foregoing subsection (a) of this Section), and the Tenant
shall fail to commence to take steps to remedy the same within fifteen (15) days
after the Landlord shall have given to the Tenant a written notice specifying
the same, or having so commenced shall thereafter fail to proceed diligently to
remedy the same; or
(c) whenever an involuntary petition shall be filed against the
Tenant under any bankruptcy or insolvency law or under the reorganization
provisions of any law or like import, or a receiver of the Tenant or of or for
the property of the Tenant shall be appointed without the acquiescence of the
Tenant, or whenever this Lease or the estate hereby granted or the unexpired
balance of the term would, by operation of law or otherwise, except for this
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provision, devolve upon or pass to any person, firm or corporation other than
the Tenant, and such situation under this subsection (c) shall continue and
shall remain undischarged or unstayed for an aggregate period of sixty (60) days
(whether or not consecutive) or shall not be remedied by the Tenant within sixty
(60) days; or
(d) whenever the Tenant shall make an assignment of its property
for the benefit of creditors or shall file a voluntary petition under any
bankruptcy or insolvency law, or whenever any court of competent jurisdiction
shall approve a petition filed by the Tenant under the reorganization provisions
of the United States Bankruptcy Act or under the provisions of any law of like
import, or whenever the Tenant shall desert or abandon the Leased Premises; then
regardless of and notwithstanding the fact that the Landlord has or may have
some other remedy under this Lease or by virtue hereof, in law or in equity, the
Landlord may give to the Tenant notice of intention to end the term of this
Lease by specifying a day not less than five (5) days thereafter, and upon the
giving of such notice, this Lease and the term and estate hereby granted shall
expire and terminate upon the day so specified and all rights of the Tenant
under this Lease shall expire and terminate, but the Tenant shall remain liable
for damages as hereinafter provided.
10.2 Upon any such termination or expiration of this Lease, the Tenant
shall peaceably quit and surrender the Leased Premises to the Landlord, in broom
clean condition and in good repair, and the Landlord may without further notice
enter upon, re-enter, possess and repossess itself thereof, by summary
proceedings, ejectment or otherwise, and may have, hold, and enjoy the Leased
Premises and the right to receive all rental and other income of and from the
same.
10.3 It is covenanted and agreed by the Tenant that in the event of the
expiration or termination of this Lease or re-entry by the Landlord, under any
of the provisions of
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this Section 10 or pursuant to law, by reason of default hereunder on the part
of the Tenant, the Tenant will pay to the Landlord the damages, incurred by the
Landlord as a result of such early termination and that the Landlord will have
all rights and remedies provided by law in such event. Landlord shall make
reasonable efforts to mitigate damages. In this circumstance, "reasonable
efforts" means that the Landlord will offer the Premises for Lease and will list
the Property with a broker, cause reasonable publication of the availability of
the Premises for lease and cause the Premises to be available for inspection by
prospective Tenants. Landlord shall not be liable and Tenant's responsibility
hereunder shall not be diminished if Landlord fails to lease the premises
despite such reasonable efforts.
10.4 The Tenant, for itself, its successors, assigns and any and all
persons claiming through or under the Tenant, including creditors of all kinds,
does hereby waive and surrender all right and privilege which it might have
under or by reason of any present or future law, to redeem the Leased Premises,
or to have a continuance of this Lease for the term hereof after being
dispossessed or ejected therefrom by process of law or after the termination of
this Lease as herein provided.
11. Landlord' s Right to Perform; Cumulative
Remedies; Waivers, Attorney's Fees
11.1 If the Tenant shall fail to pay any taxes or make any other
payment required to be made under this Lease or shall default in the performance
of any other covenant, agreement, term, provisions or condition herein
contained, the Landlord, without being under any obligation to do so, and
without thereby waiving such default, may make such payment and/or remedy such
other default for the account and at the expense of the Tenant and, immediately
and without notice in the case of emergency, or in any other case only provided
the Tenant shall fail
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to make such payment or remedy such default with all reasonable dispatch after
the Landlord shall have notified the Tenant in writing of such default.
11.2 The Landlord may by due process restrain any breach or threatened
breach of any covenant, agreement, term, provision or condition herein
contained, but the mention herein of any particular remedy shall not preclude
the Landlord from any other remedy it might have, either in law or in equity.
The failure of the Landlord to insist upon the strict performance of any one of
the covenants, agreements, terms, provisions or conditions of this Lease or to
exercise any right, remedy or election herein contained or permitted by law
shall not constitute or be construed as a waiver or relinquishment for the
future of such covenant, agreement, term, provision, condition, right, remedy or
election, but the same shall continue and remain in full force and effect. Any
rights or remedies of the Landlord specified in this Lease, or any other right
or remedy that the Landlord may have at law, in equity or otherwise upon breach
by the Tenant of any covenant, agreement, term, provision or condition contained
in this Lease, shall be distinct, separate and cumulative rights or remedies,
and no one of them, whether exercised by the Landlord or not, shall be deemed to
be in exclusion of any other. No covenant, agreement, term, provision or
condition of this Lease shall be deemed to have been waived by the Landlord
unless such waiver be in writing, signed by the Landlord or the Landlord's agent
who shall have been duly authorized as such in writing by the Landlord. Receipt
or acceptance of rent by the Landlord shall not be deemed to be a waiver of any
default under the covenants, agreements, terms, provisions and conditions of
this Lease, or of any right which the Landlord may be entitled to exercise under
this Lease.
11.3 In the event of any default by the Tenant under this Lease, the
Landlord shall be entitled, in addition to any other rights and remedies
hereunder, to the reimbursement by
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the Tenant of reasonable attorneys' fees incurred by the Landlord in the
exercise of its rights and remedies.
12. Quiet Enjoyment; Transfer
of Landlord's Interest
12.1 The Landlord covenants that if and so long as the Tenant keeps and
performs each and every covenant, agreement, term, provision and condition
herein required to be kept and performed on the part and behalf of the Tenant,
the Tenant shall peacefully and quietly enjoy the Leased Premises without
hindrance or molestation by the Landlord, subject to the covenants agreements,
terms, provisions and conditions of this Lease. 12.2 It is expressly understood
and agreed that the term "Landlord", as used in this Lease, means only the
present and undersigned owner of the Leased Premises, and in the event of the
sale, assignment or transfer by such owner of its interest in all or part of
said Leased Premises, such owner shall thereupon be released and discharged from
all covenants and obligations of the Landlord thereafter accruing with respect
to the portion of the Leased Premises so transferred. However, such covenants
and obligations shall be binding upon each new owner for the time being of the
Leased Premises or any part thereof.
13. Landlord's Right to Enter
The Landlord may enter upon the Leased Premises, or any part thereof,
for the purpose of ascertaining the condition of said Leased Premises, or
determining whether the Tenant is observing and performing the obligations
assumed by it under this Lease, all without hindrance or molestation from the
Tenant. Such rights of entry shall be exercisable at reasonable time, at
reasonable hours, and on reasonable notice.
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14. Subordination; No Further Encumbrances
14.1 This Lease shall not be a lien against the Leased Premises in
respect of any mortgages that presently exist upon the Leased Premises.
14.2 This Lease shall be subject and subordinate to any mortgage which
may hereafter be placed upon the Leased Premises, or to any renewals,
extensions, modifications, consolidations or replacements thereof or of
presently existing mortgages, and Tenant shall, within ten (10) days of
Landlord's request, execute and deliver a document evidencing the subordination
of this Lease and Tenant's agreement to attorn as set forth below provided that
simultaneously with the execution thereof the holder of said mortgage and/or
mortgages shall deliver an instrument to the Tenant duly executed for recording,
stating that the possession and enjoyment of the Leased Premises by the Tenant
shall in no way be disturbed by reason of any foreclosure or other proceedings
that may be taken with respect to any such mortgage or the indebtedness which it
may secure, so long as the Tenant complies with the terms, covenants and
conditions of this Lease, or any renewals thereof, and the Tenant covenants to
execute, promptly without cost to it whenever required by the Landlord, any
certificate the Landlord may request in accordance with the provisions of this
Section. If the interest of the Landlord in the Leased Premises is transferred
to any person ("Purchaser") pursuant to or in lieu of proceedings for
enforcement of any encumbrance, Tenant shall immediately and automatically
attorn to the Purchaser, and this Lease shall continue in full force and effect
as a direct lease between the Purchaser and the Tenant on the terms and
conditions set forth herein.
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15. Indemnification
15.1 Except as provided in Section 3.3 hereof, the Landlord and the
holders of any now existing or hereafter executed mortgage of the Landlord's
interest in the Leased Premises (the "Superior Interests") shall not be liable
to the Tenant and the Tenant hereby waives all claims against such parties for
any loss, injury or other damage to person or property in or about the Leased
Premises from any cause whatsoever, including, without limitation, water leakage
of any character from the roof, walls, basement or other portion of the Leased
Premises, or gas, fire, explosion or other electricity within the Leased
Premises; provided, however, that the foregoing waiver shall be inapplicable to
any loss, injury or damage resulting directly from the Landlord's or its
authorized representatives' negligence or willful misconduct or the breach of
this Lease by the Landlord.
15.2 The Tenant shall hold Landlord and the holders of any Superior
Interest, and the constituent shareholders, partners or other owners thereof,
and all of their agents, contractors, servants, officers, directors, employees
and licensees (collectively, the "Indemnitees") harmless from and indemnify the
Indemnitees against any claims, liability, damages, costs or expenses,
including, without limitation, reasonable attorney's fees and costs incurred in
defending against the same ("Claims"), to the extent arising from (i) the acts,
omissions, negligence or willful misconduct of the Tenant, the Tenant's
employees, agents, contractors, licensees, subtenants, customers, guests or
invitees in or about the Leased Premises during the term of this Lease, (ii) any
construction or other work undertaken by the Tenant on the Leased Premises
during the term of this Lease, (iii) any breach or Event of Default under this
Lease by the Tenant or (iv) any accident, injury or damage, howsoever and by
whomsoever caused, to any person or property, occurring in or about the Leased
Premises during the term of this Lease; except for such Claims to the extent
they are caused directly by the negligence or
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willful acts or omissions of the Landlord or its authorized representatives. In
case any action or proceeding be brought against any of the Indemnities by
reason of any such Claim, the Tenant, upon notice from the Landlord, covenants
to resist and defend at the Tenant's sole expense such action or proceeding by
counsel reasonably satisfactory to the Landlord. The provisions of this
Paragraph 15.2 shall survive the expiration or other termination of this Lease
with respect to any injury, illness, death or damage occurring prior to such
expiration or other termination. 15.3 The Landlord shall hold the Tenant and the
Tenant's shareholders, officers, distributors, partners, agents, contractors,
servants, licensees, subtenants and employees ("Tenant's Indemnitees") harmless
from and indemnify the Tenant and the Tenant's Indemnities against any and all
Claims incurred in connection with or arising from any injury, illness, or death
to any person or damage to any property or from any other cause whatsoever
occurring in, on or about any part of the Leased Premises when such injury,
illness, death or damage shall be caused by the breach under this Lease by the
Landlord or by the acts, omissions, negligence or willful misconduct of the
Landlord, its agents, contractors, partners, servants, officers, directors,
licensees or employees, except to the extent caused by the negligence or
misconduct of Tenant's Indemnitees. The provisions of this Paragraph
15.3 shall survive the expiration or other termination of this Lease
with respect to any injury, illness, death or damage occurring prior to such
expiration or other termination. In case any action or proceeding be brought
against the Tenant or Tenant's Indemnitees by reason of any such Claim, the
Landlord, upon notice from the Tenant, covenants to resist and defend at the
Landlord's sole expense such action or proceeding by counsel reasonably
satisfactory to the Tenant. Notwithstanding anything to the contrary set forth
in this Paragraph 15.3 or elsewhere in this Lease, in no event shall the
Landlord be liable for any consequential or remote damages, or for loss of or
damage to artwork, currency, jewelry, bullion, securities or other property in
the Leased Premises, not in the nature of ordinary fixtures,
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furnishings, equipment and other property used in general business office
activities and functions.
16. Holding Over
If the Tenant remains in possession of the Leased Premises after the
expiration or other termination of this Lease with the express written consent
of the Landlord, the Tenant's occupancy shall be a month-to-month tenancy at a
rent agreed upon by the Landlord and the Tenant, but in no event less than the
Rent payable under this Lease during the last full month prior to the date of
the expiration or other termination of this Lease. Except as provided in the
preceding sentence, the month-to-month tenancy shall be on the terms and
conditions of this Lease. The Landlord's acceptance of Rent after such holding
over with the Landlord's written consent shall not result in any other tenancy
or in a renewal of the term hereof. If the Tenant remains in possession of the
Leased Premises after the expiration of the termination of this Lease without
the Landlord's written consent, the Tenant's continued possession shall be on
the basis of a tenancy at sufferance and Tenant shall pay Rent during the
holdover period an amount equal to the greater of (i) one hundred fifty percent
(150%) of the fair market rental (as reasonably determined by Landlord) for the
Leased Premises or (ii) two hundred percent (200%) of the Rent payable under
this Lease for the last full month prior to the date of such expiration or other
termination.
Tenant shall indemnify and hold Landlord harmless from and against
all damages, costs or expenses, including, without limitation, reasonable
attorneys fees and costs of re-renting, if required, incurred by Landlord
resulting from Tenant's failure to surrender the Leased Premises within the
time provided under this Lease, for any (i) rent payable by any prospective
tenant of the Leased Premises or any portion thereof and (ii) Landlord's
damages as result of such prospective tenant rescinding the prospective lease
of the Leased Premises or any portion thereof
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by reason of such failure to timely surrender the Leased Premises; provided that
Landlord shall make reasonable efforts, as defined in Paragraph 10.3, above, to
mitigate damages.
All indemnification obligations, including without limitation those
contained in Paragraphs 3.3 and 3.4, provided for in this Lease shall continue
and remain in full force and effect during any holdover period, and resulting
month to month tenancy.
17. Estoppel Certificates
At any time and from time to time, upon not less than ten (10) days'
prior notice from the Landlord, the Tenant shall execute, acknowledge and
deliver to the Landlord a statement certifying the commencement date of this
Lease, stating that this Lease is unmodified and in full force and effect (or if
there have been modifications, that this Lease is in full force and effect as
modified and the date and nature of each such modification), that the Landlord
is not known to be in default under this Lease (or, if the Landlord is in
default, specifying the nature of such default), that the Tenant is not known to
be in default under this Lease (or, if the Tenant is in default, specifying the
nature of such default), the current amounts of and the dates to which Rent has
been paid, and setting forth such other matters as may be reasonably requested
by the Landlord. Any such statement may be conclusively relied upon by a
prospective purchaser of the Leased Premises or by a lender obtaining a lien on
the Leased Premises as security.
18. Late Charge
The Tenant acknowledges that late payment of any installment of Rent
will cause the Landlord to incur costs not contemplated by this Lease and that
the exact amount of such
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costs would be extremely difficult and impracticable to fix. Such costs include,
without limitation, processing and accounting charges, late charges that may be
imposed on the Landlord by the terms of any encumbrance or note secured by the
Leased Premises and the loss of the use of the delinquent funds. Therefore, if
any installment of Rent is not received within ten (10) days of the date due,
the Tenant shall pay to the Landlord on demand an additional sum of four (4%) of
the overdue installment, which sum represents a fair and reasonable estimate of
the costs that the Landlord will incur by reason of late payment by the Tenant.
Acceptance of any late charge shall not constitute a waiver of the Tenant's
default with respect to the overdue amount, nor prevent the Landlord from
exercising any of the other rights and remedies available to the Landlord.
19. Attorneys' Fees
In the event of any action or proceeding between the Landlord and the
Tenant (including an action or proceeding between the Landlord and the trustee
or debtor in possession while Tenant is a debtor in a proceeding under any
bankruptcy law) to enforce any provision of this Lease, the losing party shall
pay to the prevailing party all costs and expenses, including, without
limitation, reasonable attorneys' fees and expenses, incurred in such action and
in any appeal in connection therewith by such prevailing party. The "prevailing
party" will be determined by the court before whom the action was brought based
upon an assessment of which party's major arguments or positions taken in the
suit or proceeding could fairly be said to have prevailed over the other party's
arguments or positions on major disputed issues in the court's decision.
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20. Real Estate Brokers
The Landlord and the Tenant each represents and warrants to the other that
neither party has authorized or employed, or acted by implication to authorize
or to employ, any real estate broker or salesman to act for such party in
connection with this Lease. Each party shall hold the other harmless from and
indemnify and defend the other against any and all claims by any real estate
broker or salesman for a commission, finder's fee or other compensation as a
result of the inaccuracy of such party's representation above.
21. Authority
If the Tenant is a corporation, partnership, trust, association or
other entity, the Tenant and each person executing this Lease on behalf of the
Tenant, hereby covenants and warrants that (i) the Tenant is duly incorporated
or otherwise established or formed and validly existing under the laws of its
state of incorporation, establishment or formation, (ii) the Tenant has and is
duly qualified to do business in New Jersey, (iii) the Tenant has full
corporate, partnership, trust, association or other appropriate power and
authority to enter into this Lease and to perform all the Tenant's obligations
hereunder and (iv) each person (and all of the persons if more and one signs)
signing this Lease on behalf of Tenant is duly and validly authorized to do so.
22. Compliance with Law.
Tenant shall not do or permit anything to be done in or about he Leased
Premises which will in any way conflict with any law, ordinance or governmental
requirement now in force or which may hereafter be enacted. Tenant, at it sole
cost and expense, shall promptly comply with all such laws, ordinances and
governmental requirements and with the requirements
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of any board of fire underwriters or other similar body now or hereafter
constituted relating to the condition, use or occupancy of the Leased Premises.
The judgment of any court of competent jurisdiction or the admission of Tenant
in an action against Tenant, whether or not Landlord is a party thereto, that
Tenant has violated any law, ordinance or governmental requirement shall be
conclusive of that fact as between Landlord and Tenant. Tenant shall immediately
furnish Landlord with any notices received from any insurance company or
governmental agency or inspection bureau regarding any unsafe or unlawful
condition within the Leased Premises. Notwithstanding the foregoing, Tenant need
not comply with any such laws, ordinances, orders, rules, regulations or
requirements during any period that Tenant is contesting the validity or
applicability thereof in accordance with the terms of this paragraph. Tenant may
contest and appeal any such law, ordinance, orders, rules, regulations or
requirements provided that the same are prosecuted diligently and in good faith
and provided that the same shall not subject Landlord to any fines or penalties
or to prosecution for a criminal or civil offense, or constitute a default under
any lease, contract or mortgage under which Landlord maybe obligated, or cause
the Leased Premise or any part thereof to be condemned or vacated.
23. Notices
All notices, demands, requests or other communication which may be or
are required to be given, served or sent by one part to the other shall be in
writing, and shall be deemed to have been given properly if mailed by registered
or certified mail to the address of such party set forth below, or to such
address as such party shall notify the other in like manner:
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If to Landlord:
GWC Health, Inc.
c/o Elan Corporation, plc
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
Xxxxxx 0, XXXXXXX
Telecopy: 353-1-662-4960
Attention: General Counsel
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx
and
Athena Neurosciences, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxxxx Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: General Counsel
If to Tenant:
Rystan Company, Inc.
c/o Integra LifeSciences Corporation
000 Xxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: President
with a copy to:
Drinker Xxxxxx & Xxxxx
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, III, Esq.
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24. Governing Law
The Lease shall be governed by and construed and enforced in accordance
with the laws of the State of New Jersey.
25. Entire Agreement
This Lease, together with the relevant provisions of any other document
referred to herein between the parties hereto, constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties have caused these presents to be signed
by their proper and duly authorized corporate officers and their corporate seal
to be hereto affixed, this 28th day of September, 1998.
ATTEST: GWC HEALTH, INC., Landlord
______________________________ By: /s/ Xxxxxx Xxxxxxxx
Title: President
ATTEST: RYSTAN COMPANY, INC., Tenant
______________________________ By: /s/ Xxxxx X. Xxxxx
Title: Treasurer
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