1
EXHIBIT 10.13
South Plainfield, New Jersey Facility Lease
LEASE
BY AND BETWEEN
200 HELEN STREET LLC, A
DELAWARE LIMITED LIABILITY COMPANY
"LANDLORD"
and
ODD JOB ACQUISITION CORP.,
a Delaware corporation
"TENANT"
November 10, 1998
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TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I PREMISES...............................................................................1
1.1 Premises. ...........................................................................1
1.2 Common Areas. ......................................................................1
ARTICLE II TERM..................................................................................1
2.1 Term. ...................................................1
2.2 Commencement Date. ...................................................................2
2.3 Date of Delivery of Possession. .......................................................2
2.4 Lease Year. ..........................................................................2
2.5 Options. .............................................................................2
ARTICLE II RENT..................................................................................2
3.1 Fixed Rent. .........................................................................2
3.2 Additional Charges - Tenant's Proportionate Share. ...................................2
3.3 Late Payment. ........................................................................3
3.4 Place of Payment. ....................................................................3
ARTICLE IV TAXES.................................................................................3
4.1 Personal Property Taxes. .............................................................3
4.2 Real Estate Taxes......................................................................3
ARTICLE V CONDITION OF PREMISES..................................................................4
5.1 Landlord's Work. ......................................................................4
5.2 Delayed Completion of Landlord's Work. [INTENTIONALLY DELETED].........................4
ARTICLE VI REPAIRS AND MAINTENANCE...............................................................4
6.1 Landlord's Repairs and Maintenance. ..................................................4
6.2 Tenant's Repairs and Maintenance. ....................................................5
6.3 Tenant's Alterations. ................................................................5
6.4 Mechanics Liens. .....................................................................5
6.5 Common Area Costs......................................................................6
ARTICLE VII COMPLIANCE WITH LAWS.................................................................7
ARTICLE VIII UTILITIES...........................................................................7
ARTICLE IX USE...................................................................................7
9.1 Use of Premises. ....................................................................7
9.2 Tenant's Covenants. .................................................................7
ARTICLE X ASSIGNMENT AND SUBLETTING..............................................................8
10.1 Assignment and Subletting. ........................................................8
10.2 Permitted Assignment or Sublease. ...................................................8
ARTICLE XI FIXTURES..............................................................................9
ARTICLE XII INSURANCE............................................................................9
12.1 Indemnity; Waiver. ...................................................................9
12.2 Tenant's Insurance. .................................................................9
12.3 Landlord's Insurance. ................................................................9
12.4 Waiver of Subrogation. ..............................................................10
12.5 Tenant's Contribution. ..............................................................10
ARTICLE XIII DAMAGE AND DESTRUCTION.............................................................10
13.1 Abatement or Adjustment of Rent. ....................................................10
13.2 Repairs and Restoration of Premises...................................................10
13.3 Delivery of Premises. ...............................................................12
13.4 Repairs and Restoration of Property. ................................................12
ARTICLE XIV CONDEMNATION........................................................................12
14.1 Total Taking. ......................................................................12
14.2 Partial Taking. ...................................................................12
14.3 Restoration. .......................................................................13
(ii)
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14.4 Release. ............................................................................13
14.5 The Award. .........................................................................13
ARTICLE XV EVENTS OF DEFAULT....................................................................13
15.1 Events of Default by Tenant; Remedies. ..............................................14
15.2 Landlord's Obligation to Mitigate. ..................................................14
15.3 Other Remedies. .....................................................................14
15.4 Waiver of Lien. ...................................................................14
15.5 Landlord's Right to Remove Chattels. ...............................................15
15.6 Landlord's Default. .................................................................15
15.7 Default Interest. ...................................................................15
ARTICLE XVI SELF-HELP RIGHTS....................................................................15
16.1 Landlord's Self-Help. ...............................................................15
16.2 Tenant's Self-Help. .................................................................15
ARTICLE XVII TITLE..............................................................................16
17.1 Subordination. ......................................................................16
17.2 Quiet Enjoyment. ....................................................................16
17.3 Landlord's Assurances. ..............................................................16
ARTICLE XVIII SIGNS.............................................................................17
ARTICLE XIX HAZARDOUS SUBSTANCES...............................................................17
19.1 Hazardous Substances. ...............................................................17
19.2 Tenant's Obligations..................................................................17
19.3 Landlord's Obligations................................................................18
ARTICLE XX EXPANSION RIGHTS; RIGHT OF FIRST REFUSAL.............................................18
20.1 Options...............................................................................18
20.2 Right of First Refusal................................................................23
ARTICLE XXI MISCELLANEOUS.......................................................................23
21.1 Holding Over..........................................................................23
21.2 Waivers...............................................................................24
21.3 Notices...............................................................................24
21.4 Attorneys' Fees......................................................................24
21.5 Unavoidable Delays....................................................................24
21.6 Estoppel Certificates.................................................................24
21.7 Invalidity of Particular Provision....................................................25
21.8 Captions and Definitions..............................................................25
21.9 Entire Agreement.....................................................................25
21.10 No Partnership........................................................................25
21.11 Memorandum of Lease...................................................................25
21.12 Brokers...............................................................................25
21.13 Guaranty..............................................................................25
ARTICLE XXII DISPUTE RESOLUTION.................................................................25
22.1 Arbitration...........................................................................25
Legal Description
Exhibit "B" - Site Plan
Exhibit "C" - Landlord's Work
Exhibit "D" - Title Exceptions
Exhibit "E" - Guaranty
(iii)
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LEASE
THIS LEASE made as of the 10th day of November, 1998 by and between
200 HELEN STREET, LLC, a Delaware limited liability company having a principal
office at 241 37th Street, Brooklyn, New York (the "Landlord") and ODD JOB
ACQUISITION CORP., a Delaware Corporation, having a principal office at 4310
East Fifth Avenue, Columbus, Ohio 43219 and 31000 Aurora Road, Solon, Ohio 44139
(the "Tenant").
W I T N E S S E T H:
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ARTICLE I
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PREMISES
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1.1 PREMISES Landlord, in consideration of the rents to be paid and the
covenants and agreements to be performed and observed by Tenant, does hereby
lease unto Tenant, and Tenant does hereby lease and take from Landlord, a
portion of the office/warehouse building (which includes the "covered storage"
area shown on EXHIBIT "B") (the "Building") located at 200 Helen Street,
Plainfield, New Jersey, located on the real property more particularly described
in EXHIBIT "A" attached hereto and made a part hereof (the "Land"). The Land and
the Building are hereinafter sometimes jointly referred to as the "Property".
The portion of the Building being leased by Tenant hereunder contains
approximately three hundred seventy-five thousand (375,000) square feet of gross
floor area (the "Premises"), containing approximately three hundred fifty
thousand (350,000) square feet of warehouse space and twenty-five thousand
(25,000) square feet of office space, as more particularly depicted on the site
plan attached hereto as EXHIBIT "B" and made a part hereof. Tenant shall have
the exclusive right to use (a) those parking spaces adjacent to Tenant's
warehouse space and designated as "Tenant's Exclusive Warehouse Spaces" on
Exhibit "B" attached hereto, and (b) those parking spaces adjacent to Tenant's
office space and designated as "Tenant's Exclusive Office Spaces" on Exhibit
"B". Notwithstanding the foregoing, if the Building is expanded pursuant to
Section 20.1.1 below, Landlord and Tenant acknowledge that Tenant's Exclusive
Warehouse Spaces may need to be relocated in accordance with the reconfiguration
of the Building pursuant to Section 20.1.1 below, and in such event Landlord and
Tenant shall reasonably agree upon such relocated spaces, provided that to the
extent permitted by local ordinances, such relocated space shall contain the
same number of spaces as originally contained in Tenant's Exclusive Warehouse
Spaces.
1.2 COMMON AREAS Tenant, its employees, customers, licensees and
invitees, shall have a non-exclusive license and right to use, in common with
Landlord and all tenants of the Building and their respective employees,
customers, licensees and invitees, all other parking areas, access roads, truck
ways, driveways, loading docks and areas, sidewalks, ramps, landscaped areas,
hallways, stairways and other areas, facilities and improvements which may be
provided by Landlord for the general use in common of tenants of the Building
and their employees, customers, licensees and invitees (collectively, the
"Common Areas"). Without Tenant's prior written consent, (a) Landlord shall not
make any changes within that portion of the Common Areas designated on EXHIBIT
"B" as Tenant's exclusive parking area, and (b) Landlord shall make no other
changes in the Common Areas and/or in the Building which would materially and
adversely affect Tenant's access to and from the Premises and/or Tenant's use of
the Common Areas.
ARTICLE II
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TERM
2.1 TERM. The term of this Lease shall be for a period of twelve (12)
years commencing on the Commencement Date (as hereinafter defined) and ending on
the last day of the twelfth (12th) Lease Year (as hereinafter defined)
thereafter.
2.2 COMMENCEMENT DATE. Landlord and Tenant acknowledge that Tenant is
presently in possession of Premises as of the date hereof, and therefore the
"Commencement Date" of this Lease shall be December 1, 1998.
2.3 DATE OF DELIVERY OF POSSESSION.[Intentionally Deleted]
2.4 LEASE YEAR. The first "Lease Year" shall be a period of twelve (12)
calendar months from the Commencement Date, except that if the Commencement Date
shall be other than the first day of a calendar month, the first Lease Year
shall include the period from the Commencement Date to the end of the calendar
month in which the Commencement Date occurs plus the immediately succeeding
twelve (12) calendar months. Each Lease Year after the first Lease Year shall be
a successive period of twelve (12) consecutive calendar months.
2.5 OPTIONS. Tenant shall have the right to extend the initial term of
this Lease for two (2) successive option periods of five (5) years each,
commencing immediately upon the expiration of the immediately preceding term,
upon the following terms and conditions:
2.5.1 Tenant shall give Landlord written notice of such
election to extend the term hereof no sooner than nine (9) months and
not later than six (6) months prior to the expiration of the then
current term; and
2.5.2 Each such option period shall be upon the same terms and
conditions as set forth herein for the initial term, except that Fixed
Rent during each option period shall be as set forth in Section 3.1
below.
If Tenant elects to exercise any such option, the term of this Lease shall be
automatically extended for the period of such option period without the
necessity for the execution of any instrument to effect the same, and in such
event the "term" of this Lease shall include such option period. If Tenant fails
to exercise any option as provided herein, Tenant shall be deemed to have waived
such option and all subsequent options thereafter; provided, however, that
Landlord shall endeavor to, but shall not be required, to provide a reminder
notice to Tenant prior to the date by which the option provided to Tenant herein
shall expire.
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ARTICLE III
RENT
3.1 FIXED RENT. Tenant agrees to pay Landlord, without demand, notice
or set-off (except as permitted under this Lease), as a fixed rent (the "Fixed
Rent") the following sums:
LEASE YEARS ANNUAL
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RENT MONTHLY RENT PSF
1-5
$1,312,500.00 $109,375.00 $3.50
6-10
$1,443,750.00 $120,312.50 $3.85
11-12
$1,586,250.00 $132,187.50 $4.23
13-15
$1,586,250.00 $132,187.50 $4.23
16-20
$1,747,500.00 $145,625.00 $4.66
21-22
$1,920,000.00 $160,000.00 $5.12
Fixed Rent and additional charges payable by Tenant hereunder shall be prorated
for any partial month during the term of this Lease.
3.2 ADDITIONAL CHARGES - TENANT'S PROPORTIONATE SHARE. During the term
of this Lease, Tenant shall pay, as additional rent, Tenant's Proportionate
Share (as hereinafter defined) of all (i) Taxes (as defined in Section 4.2
hereof), (ii) Common Area Costs (as defined in Section 6.5 hereof), and (iii)
Insurance (as defined in Section 12.5 below). For purposes hereof, "Tenant's
Proportionate Share" shall mean a fraction, the numerator of which shall be the
gross leasable area of the Premises and the denominator of which shall be the
gross leasable area of the Building. Tenant's initial Proportionate Share shall
be forty-seven percent (47%).
3.3 LATE PAYMENT. If Tenant fails to pay Fixed Rent or any other
charges payable hereunder, within ten (10) days of the date when the same are
due hereunder, such late payment shall bear interest from the original date when
due at a rate per annum equal to the Default Rate or, if less, the maximum rate
permitted by law; provided, however, that any default interest hereunder shall
not be applicable until the second and all subsequent payments within any Lease
Year are received by Landlord more than ten (10) days after the date when due.
3.4 PLACE OF PAYMENT. All payments of Fixed Rent, and other payments
required to be made to Landlord, shall be in lawful money of the United States
of America and shall be paid to Landlord at its principal place of business
stated on Page 1 of this Lease, or to such other person and/or at such other
place as Landlord may designate from time to time in writing to Tenant.
ARTICLE IV
TAXES
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4.1 PERSONAL PROPERTY TAXES. Tenant shall be liable for and shall pay
all taxes levied against personal property and trade fixtures placed by Tenant
in and upon the Premises.
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4.2 REAL ESTATE TAXES.
4.2.1 Tenant shall pay, as additional rent, Tenant's Proportionate
Share of all Taxes levied or assessed against the Property during the
term hereof.
4.2.2 For purposes of this Lease, the term "Taxes" shall include ad
valorem taxes and assessments imposed upon the Property, during the
term hereof, less any abatements, refunds, or rebates made thereof or
any discounts received by Landlord with respect thereto. In addition,
if Landlord shall receive a credit with respect to any taxes to which
Tenant shall have paid Tenant's Proportionate Share herein, including
any credit available as a result of early payment of such taxes
(provided that Tenant pays its Proportionate Share of such taxes on
such early basis), Landlord shall repay to Tenant Tenant's
Proportionate Share of such credit. Notwithstanding the foregoing,
"Taxes" shall not include:
(i) Any special assessment for improvements heretofore
installed or in the process of installation in connection with the
initial development of the Property (unless such special
assessments are due to improvements constructed by Tenant within
the Premises), or for improvements installed in the Property after
the date hereof; provided, however, that "Taxes" shall include any
special assessments imposed upon the Property for improvements made
on-site or off-site by the city or other governmental entity in
connection with the inclusion of the Property as part of a special
improvement district, including for example special assessments for
the installation of sewers, sidewalks, and/or for road widening
purposes;
(ii) Any interest or penalties payable by Landlord as a
result of Landlord's failure to pay any such Taxes prior to
delinquency, provided that Tenant shall have paid Tenant's
Proportionate Share of all Taxes required to be paid by Tenant
herein as and when the same are due and payable by Tenant herein;
(iii) Any tax payable by Landlord on rentals, unless (A) such
taxes are imposed on owners of real property only and (B) such
taxes are either in lieu of the Taxes required to be paid by Tenant
hereunder or in addition to the Taxes required to be paid by Tenant
hereunder, but in the nature of real estate taxes and assessments,
in which event Tenant shall pay such Taxes only to the extent the
same are applicable to the rent payable by Tenant hereunder; or
(iv) Any estate, inheritance, succession, capital levy,
corporate franchise, gross receipt, transfer or income tax of
Landlord.
To the extent Tenant is required to pay for any special assessment for
improvements, Tenant's obligation shall be determined by treating the
assessment as payable in as many installments as is lawful (including
any interest which would be payable to the taxing authority as a result
of such assessment being paid in installments), and charging Tenant with
Tenant's Proportionate Share thereof during the Lease Year corresponding
to an annual payment of the assessment. Any annual assessment deemed
payable after the term of this Lease shall not be Tenant's obligation.
4.2.3 Tenant shall pay its Proportionate Share of Taxes to
Landlord within thirty (30) days after receipt of (i) Landlord's written
notice that such Taxes are due
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and payable, (ii) a copy of the applicable tax bill, and (iii) a written
calculation of Tenant's Proportionate Share of such Taxes.
4.2.4 Provided Landlord does not elect to do so, Tenant may, after
written notice to Landlord, contest the validity or amount of any Taxes
by appropriate legal proceedings; provided, however, that (i) Tenant
shall pay Tenant's Proportionate Share of such Taxes when due unless
such legal proceedings shall operate to suspend the collection of Taxes;
or shall deposit Tenant's Proportionate Share of such Taxes in escrow if
required to do so by the taxing authority in connection with such
contest; and (ii) there shall be no risk that any portion of the
Property shall be subject to forfeiture or foreclosure as a result
thereof. Landlord and Tenant shall cooperate with each other in the
prosecution of any such tax contest. If a reduction or abatement of
Taxes is obtained as a result of any such contest, the party pursuing
such contest may deduct its reasonable expenses (including reasonable
attorneys' and appraisers fees and costs) from any reduction or
abatement obtained, and Tenant shall be entitled to receive that portion
of such abatement or refund which applies to Tenant's Proportionate
Share of Taxes previously paid by Tenant.
ARTICLE V
CONDITION OF PREMISES
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5.1 LANDLORD'S WORK. Landlord and Tenant acknowledge that Landlord has
performed the work set forth on EXHIBIT "C" ("Landlord's Work") except for those
items of Landlord's Work set forth on Exhibit C which are specifically
designated as remaining to be done. Landlord shall warranty and guaranty
Landlord's Work against any defects in materials, workmanship or design for a
period of one (1) year after the date hereof.
5.2 DELAYED COMPLETION OF LANDLORD'S WORK. [Intentionally deleted]
ARTICLE VI
REPAIRS AND MAINTENANCE
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6.1 LANDLORD'S REPAIRS AND MAINTENANCE. Throughout the term hereof,
Landlord shall maintain in good condition and make all repairs and replacements:
6.1.1 To the exterior and demising walls, the roof, floor slab,
foundation, any canopies and the structural portions of the Premises;
6.1.2 To all utility and building systems which do not serve the
Premises exclusively and/or which extend beyond the exterior walls of
the Premises or beneath the floor of the Premises, including without
limitation, the sprinkler system and all sewer lines; and
6.1.3 Required as a result of the act, default, omission or
negligence of Landlord, its employees, agents, licensees or contractors.
Landlord shall promptly commence and diligently complete all such repairs upon
notice thereof from Tenant.
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6.2 TENANT'S REPAIRS AND MAINTENANCE.
6.2.1 Throughout the term hereof, Tenant shall repair and maintain
the interior of the Premises in good order and condition, including
window glass, interior walls, floor coverings, doors, all utility and
building systems which are within and exclusively serve the Premises
(excluding sprinkler system), and the heating, ventilating and air
conditioning (HVAC) system exclusively serving the Premises. Landlord
agrees to assign to Tenant (or enforce for Tenant's benefit) all
warranties, extended warranties and guarantees with respect to the HVAC
system, and all other systems, of any kind or nature, serving the
Premises and which Tenant is required to repair hereunder. Tenant shall
also monitor the sprinkler system serving the Premises and the remainder
of the Building, which Tenant shall have the right to have done on a
monthly basis. In the event of any emergency (e.g., activation of the
sprinkler head), Landlord shall provide access to Tenant (as Tenant's
representative) to the remainder of the Building to determine the nature
of such emergency. Tenant shall contract with the contractor to provide
such monitoring service, and Landlord and Tenant shall share in the cost
of such monitoring service as follows:
(i) whether or not the monitoring contract used by Tenant
requires inspections on a monthly basis, Landlord
shall not be required to contribute to the cost of any
such inspections which are provided on more than a
quarterly basis;
(ii) within thirty (30) days after receipt of Tenant's
written demand therefor, Landlord shall pay to Tenant
Landlord's "proportionate share" of such monitoring
service contract, calculated on the lesser of (A) the
actual number of service calls provided per year or
(B) inspections provided on a quarterly basis, with
such "proportionate share" being the difference
between one hundred percent (100%) and Tenant's
Proportionate Share; and
(iii) Tenant shall pay all other costs of such monitoring
contract.
6.2.2 Landlord represents and warrants that all utility, mechanical,
plumbing, and other systems serving the Premises shall be in good
operating condition and repair as of the Commencement Date, and Landlord
shall pay for any replacements required for such systems during the
first full Lease Year.
6.3 TENANT'S ALTERATIONS. Tenant shall have the right, at its sole
expense, from time to time, to make such non-structural interior alterations,
additions, improvements and changes in such parts thereof as Tenant shall deem
expedient or necessary for its purposes; provided, however, that such
alterations, additions, improvements and changes when completed shall neither
impair the structural soundness nor diminish the value of the Building. Tenant
shall not make any structural or exterior alterations, additions, or changes
without Landlord's prior written consent, which consent shall not be
unreasonably withheld. If Tenant shall desire to make any alterations, additions
or changes which are subject to Landlord's consent herein, Tenant shall deliver
the proposed plans and specifications for such work to Landlord, to the extent
such plans and specifications are required to be prepared in order to obtain all
necessary governmental approvals and permits for such work. Landlord shall
approve or disapprove such proposed plans and specifications within twenty (20)
days after receipt thereof from Tenant. All permanent alterations, additions, or
changes to the Premises shall be the property of Landlord and shall be
surrendered with the Building upon the expiration or termination of this Lease,
and Tenant shall have the right to remove
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all other alterations, additions, improvements, or changes, provided that
subject to Section 12.4 below, Tenant shall repair any damage to the Building
resulting from such removal. All such alterations, additions, or improvements
shall be done in accordance with all applicable laws, rules, regulations, and
orders, including applicable building codes; provided, however, that if any such
applicable laws, rules, regulations, orders, or building codes shall require any
alterations, additions, or improvements to portions of the Premises which are
not included within the alterations, additions, or improvements to be performed
by Tenant hereunder, including without limitation any required compliance with
environmental laws, rules, regulations, or orders (including any asbestos
remediation or removal) or any required compliance with applicable laws
concerning accommodations for disabled or handicapped persons, Landlord, at its
sole cost and expense, shall perform all such alterations, additions, or
improvements. Landlord shall execute and deliver upon request of Tenant such
instrument or instruments embodying the approval of Landlord which may be
required by any public or quasi public authority for the purpose of obtaining
any licenses or permits for the making of such alterations, additions,
improvements, changes and/or installations in, to or upon said Premises.
6.4 MECHANICS LIENS. Tenant shall not suffer any mechanics' lien to be
filed against any portion of the Property by reason of work, labor, services or
materials performed or furnished to Tenant in connection with Tenant's Work or
any alterations, additions, or improvements to the Premises by Tenant hereunder.
If any such mechanics' lien shall at any time be filed against the Property,
Tenant shall have the right to contest any and all such liens; provided,
however, that Tenant shall cause the same to be discharged of record by payment,
bond, order of a court of competent jurisdiction or otherwise within thirty (30)
days after the date Tenant receives notice of such filing. If Tenant shall fail
to cause such lien to be discharged within such thirty (30) day period, then, in
addition to any other right or remedy, Landlord may, but shall not be obligated
to, discharge the same by paying the amount claimed to be due or by bonding or
other proceeding deemed appropriate by Landlord, and the amount so paid by
Landlord and/or all reasonable costs and expenses, including reasonable
attorneys' fees, incurred by Landlord in procuring the discharge of such lien,
together with interest thereon at the Default Rate from the date paid until
repaid by Tenant to Landlord, shall be deemed to be additional rent for the
Premises and shall be due and payable by Tenant to Landlord on the first day of
the next following month.
6.5 COMMON AREA COSTS.
6.5.1 The term "Common Area Costs" shall mean all actual direct
maintenance and repair costs and expenses reasonably paid or incurred by
Landlord during each calendar year during the term hereof in repairing,
maintaining, and operating the Common Areas (excluding building areas),
including and limited to cleaning, striping and minor patching of the
parking areas snow and ice removal from the Common Areas; maintenance
and replacement of landscaped areas; maintenance and replacement of
bulbs and light standards; wages and salaries of personnel employed for
such operation and maintenance (to the extent such charges directly
apply to the operation and maintenance of the Common Areas); charges for
utilities consumed in connection with such work; and depreciation (on a
straight line basis) of all equipment or machinery used in such
maintenance and which reduces such Common Area Costs. Notwithstanding
the foregoing, "Common Area Costs" shall exclude:
(i) Capital improvements;
(ii) Depreciation (except as set forth above);
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(iii) Interest, late charges, and penalties on any charges
payable by Landlord which are included within Common Area Costs;
(iv) Attorneys' fees and costs;
(v) Common Area Costs to the extent the same are reimbursed by
insurance proceeds and/or condemnation awards;
(vi) Any costs and expenses of removing, maintaining or
replacing any substance or matter which may be deemed hazardous
under any federal, state, or local environmental law, rule,
regulation, ordinance, or order, or any costs and expenses of
complying with such federal, state, or local environmental law,
rule, regulation, ordinance, or order, including without limitation
any cost of maintaining or removing asbestos containing materials or
any underground storage tanks, or any cost of complying with
applicable wetlands statutes;
(vii) Any costs of complying with any law, rule, regulation,
statute, or order with respect to the Common Areas, including
without limitation any required compliance with any applicable laws
concerning accommodations for handicapped and/or disabled persons;
and
(viii) Any administrative fee and/or management fee to
Landlord or any other party.
6.5.2 Tenant's Proportionate Share of Common Area Costs shall
be paid in monthly installments on or before the first day of each
calendar month, in advance, in an amount equal to one-twelfth (1/12th)
of Tenant's Proportionate Share of Common Area Costs based upon the
actual cost of Common Area Costs incurred by Landlord during the
previous calendar year and any reasonably anticipated increases in such
costs. If any portion of the term hereof shall include only a partial
calendar year, then for such purposes Tenant's Proportionate Share shall
be adjusted so that such Proportionate Share relates only to those
Common Area Costs incurred by Landlord during the term hereof. Within
ninety (90) days after each calendar year during the term hereof,
Landlord shall deliver to Tenant a written statement setting forth all
Common Area Costs incurred by Landlord during such previous calendar
year and the anticipated Common Area Costs for the present calendar
year, including a detailed calculation of Tenant's Proportionate Share.
If the total amount paid by Tenant during such previous calendar year
for such items shall be less than Tenant's Proportionate Share of the
actual amount due from Tenant for such calendar year, Tenant shall pay
Landlord the actual amount due within thirty (30) days after receipt of
such statement. If the total amount paid by Tenant for such items during
such previous calendar year shall exceed Tenant's Proportionate Share of
any such items, such excess shall be credited against the next
installments due from Tenant to Landlord hereunder.
6.5.3 Upon not less than ten (10) days prior written notice to
Landlord, Tenant shall have the right to audit Landlord's books and
records relating to the common area expenses payable by Tenant
hereunder. Such examination shall be made at Landlord's offices during
normal business hours, and Tenant shall not be permitted to conduct more
than one such audit during each calendar year during the term of this
Lease (unless errors are found in connection with the original audit),
and all information examined by Tenant shall be maintained on a
confidential basis. If it is determined
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pursuant to such audit that Tenant shall have overpaid any charges
hereunder, Landlord shall promptly refund to Tenant the amount of such
overpayment unless Landlord in good faith disputes the results of such
audit, and in such event the respective accountants of Landlord and
Tenant shall attempt to reconcile such dispute within thirty (30) days
after receipt by Tenant of Landlord's written notice that Landlord has
disputed the results of Tenant's audit. If the respective accountants of
Landlord and Tenant are unable to resolve such dispute within thirty
(30) days after their selection, then such accountants shall jointly
select a third accountant, and the decision of such third accountant
shall be binding upon Landlord and Tenant. The fees of the third
accountant shall be paid by the party against whom such accountants'
decision is rendered. If it is determined that Tenant's previous
payments exceeded Tenant's actual share of such charges by five percent
(5%) or more, Landlord shall reimburse Tenant for the reasonable costs
of such audit. All records shall be maintained by the Landlord in
accordance with generally accepted accounting methods, consistently
applied.
6.6 Guard Shed. Tenant shall have the right to contact with a third
party to provide for monitoring of ingress and egress to and from the
Property at the entrance located on Helen Street as shown on Exhibit B
(the "Access Person"), provided that Landlord shall have the right to
reasonably approve the Access Person. If Landlord shall reasonably
disapprove the Access Person, Landlord shall have the right to designate
a different Access Person, provided that (a) the cost of such Access
Person is less than the cost of the Access Person originally proposed by
Tenant, and (b) Tenant reasonably approves such substitute Access
Person. Upon the selection of the Access Person, the Access Person shall
contract with Tenant to monitor ingress and egress from the Property
through the entrance to Helen Street as shown on Exhibit B. Tenant shall
be responsible for paying to the Access Person Tenant's Proportionate
Share of all costs of the Access Person, and within thirty (30) days
after receipt of Tenant's written demand therefor, Landlord shall
reimburse Tenant the remaining portion of all costs and expenses payable
to the Access Person. Landlord and Tenant acknowledge that the purpose
of the Access Person is solely to monitor ingress and egress to the
Property, and in no event shall Landlord or Tenant have any obligation
or liability to each other, or to any other tenant or occupant of the
Property, for the negligence or intentional acts of the Access Person.
All other occupancy agreements and or leases for any portion of the
Building and/or the Property shall require that (a) such other occupant
or tenant shall be responsible for paying its proportionate share of all
costs and expenses incurred by tenant with respect to the Access Person,
(b) such other tenant or occupant shall jointly contract with Tenant to
employ the Access Person, and (c) such other tenant or occupant shall
waive any claim against Tenant or Landlord with respect to any
intentional acts or negligence of the Access Person. Upon written
request by Tenant, Landlord shall provide to Tenant copies of the
applicable provisions contained in any leases or occupancy agreements
evidencing Landlord's compliance with this Section 6.6.
ARTICLE VII
COMPLIANCE WITH LAWS
Tenant shall comply with any and all laws, rules, regulations,
ordinances, and orders with respect to Tenant's use (and not occupancy) of the
Premises, provided that Tenant shall have the right to contest the legality of
any law, order, rule, regulation or requirement applicable to Tenant's use of
the Premises, provided that any such contest shall not subject the Property to
any risk of forfeiture and/or any penalty, and Tenant shall comply with any such
law, order, rule, regulation or requirement during the pendency of such contest
to the
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extent necessary to avoid such risk of forfeiture and/or penalty. Upon the final
termination of any such contest, Tenant shall comply with any such law, order,
ordinance, rule, regulation or requirement to the extent held to be valid or
legal. Notwithstanding anything to the contrary as set forth herein, to the
extent compliance with any such law, order, ordinance, rule, regulation or
requirement requires either (i) any structural alteration of the Premises or
(ii) any other change in any portion of the Premises for reasons unrelated to
Tenant's particular use thereof, then Landlord, at its sole expense, shall
promptly comply with any such law, order, ordinance, rule, regulation or
requirement. Landlord, at its sole cost and expense, shall comply with any and
all applicable laws, rules, regulations, ordinances and orders with respect to
the Property and the Premises, except to the extent such compliance is the
obligation of Tenant herein with respect to the Premises.
ARTICLE VIII
UTILITIES
Tenant shall pay all charges for water, gas, heat, electricity, sewer
and any other utility used upon or furnished to the Premises. Tenant shall keep
the Premises sufficiently heated to avoid the freezing or bursting of all pipes
therein. The obligation of Tenant to pay for such utilities shall commence as of
the earlier of the Commencement Date or the date Tenant occupies the Premises.
ARTICLE IX
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USE
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9.1 USE OF PREMISES. Tenant may use and occupy the Premises for office
and warehouse purposes, and for any other lawful purpose.
9.2 TENANT'S COVENANTS. In addition to the other covenants of Tenant
contained in this Lease, Tenant covenants and agrees as follows:
9.2.1. Tenant shall procure any and all licenses and permits
required for Tenant's use of the Premises, and upon the expiration or
termination of this Lease, Tenant shall remove its goods and effects and
those of all persons claiming under it and shall yield up the same
peaceably to Landlord in good order repair and condition in all
respects, except for reasonable wear and tear.
9.2.2 Tenant shall permit Landlord and its agents on reasonable
notice (which notice shall be written, once the Building has been fully
leased) and at reasonable times to examine the Premises and to show the
Premises to prospective purchasers, mortgagees and/or tenants.
9.2.3 Tenant shall use and occupy the Premises in a careful, safe
and proper manner and shall keep the Premises in a clean, safe and
healthy condition in accordance with all applicable laws, and Tenant
shall not permit the Premises to be used for any unlawful purpose,
commit any waste thereof or commit any nuisance.
ARTICLE X
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ASSIGNMENT AND SUBLETTING
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10.1 ASSIGNMENT AND SUBLETTING. Except as set forth herein, Tenant shall
not assign this Lease without the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed. Landlord shall deliver
written notice to Tenant of Landlord's consent, or refusal to consent, to any
proposed assignment which is subject to
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Landlord's consent herein within thirty (30) days after receipt of written
request therefor from Tenant. If Tenant does not receive such written notice
from Landlord within such thirty (30) day period, then Landlord shall be
conclusively deemed to have approved such assignment.
10.2 PERMITTED ASSIGNMENT OR SUBLEASE. Notwithstanding anything to the
contrary set forth in Section 10.1 above, Landlord's consent shall not be
required for (a) an assignment of this Lease and/or a sublease of all or any
portion of the Premises in connection with a merger, consolidation or sale of
all or substantially all of the assets of Tenant (or of Tenant's parent
corporation), (b) an assignment of this Lease or a sublease of all or any
portion of the Premises to an affiliate of Tenant (or of Tenant's parent
corporation), or (c) any sublease of all or any portion of the Premises. For
purposes of this Section 10.2, an "affiliate" shall be an entity which controls,
is controlled by, or which is under common control with Tenant (or with Tenant's
parent corporation).
10.3 EXCESS RENT. If, in connection with an assignment of this Lease
and/or a sublease of all or any portion of the Premises (other than an
assignment of this Lease or a sublease of all or any portion of the Premises
pursuant to 10.2(a)-(b) above), the assignee or subtenant pays to Tenant rent or
other sums in excess of the Fixed Rent and other sums required to be paid by
Tenant to Landlord hereunder (calculated on a pro rata basis with respect to any
partial sublease of the Premises), then Landlord and Tenant shall each receive
one-half (1/2) of such excess amount, as and when paid to Tenant, after
reimbursement to Tenant of (a) all reasonable cost and expenses incurred by
Tenant in connection with such assignment and/or sublease (including reasonable
brokerage commissions, reasonable attorneys' fees and costs, reasonable costs of
alterations to the Premises, etc.) and (b) the unamortized portion of all tenant
improvements constructed by Tenant in the Premises, which improvements shall be
depreciated on a straightline basis (without interest), over Tenant's
depreciation schedule (not to exceed one hundred twenty (120) months) commencing
from and after the date such improvements are completed. For purposes of this
Section 10.3, Landlord shall have the right, upon not less than ten (10) days
prior written notice to Tenant, to examine Tenant's books and records with
respect to any assignment or sublease which is subject to the terms and
conditions of this Section 10.3.
ARTICLE XI
FIXTURES
Except as provided in Section 6.3 hereof, all equipment and all other
trade and light fixtures installed by or at the expense of Tenant (other than
any fixtures originally installed by Landlord in connection with the original
construction of the Building), in or on the Building shall remain the property
of Tenant and Tenant may, but shall not be obligated to, remove the same or any
part thereof prior to the end of the term hereof, and provided that Tenant, at
its sole cost and expense (but subject to Section 12.4 below), shall make any
repairs occasioned by such removal. Any equipment and all other trade and light
fixtures not removed by Tenant prior to the expiration of the term may, at
Landlord's option, be deemed abandoned and become the property of Landlord.
ARTICLE XII
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INSURANCE
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12.1 INDEMNITY; WAIVER. Subject to Section 12.4 below:
12.1.1 Tenant shall indemnify and hold Landlord harmless from
any claims, damages, liabilities and expenses (including attorneys' fees
and costs) for
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damage or injury to any person or any property occurring on the
Premises, or any part thereof, unless caused by the acts or omissions of
Landlord, its agents, employees, or independent contractors, Landlord's
failure to perform its repair obligations hereunder, or any latent
defects in the Premises.
12.1.2 Landlord shall indemnify and hold Tenant harmless from
any and all claims, damages, liabilities and expenses (including
attorneys' fees and costs) for damage or injury to Tenant or any other
person or any property occurring on the Property, or any part thereof,
unless caused by the acts or omissions of Tenant, its agents, employees,
or independent contractors.
12.2 TENANT'S INSURANCE. Except as set forth below, during the term of
this Lease, Tenant shall maintain comprehensive public liability insurance,
including insurance against the assumed or contractual liability of Tenant
hereunder, to afford protection to the limit for each occurrence of not less
than Two Million Dollars ($2,000,000.00) combined single limit for bodily
injury, death and property damage. Such policy shall name Landlord as an
additional insured, and such policy shall also contain a provision by which the
insurer agrees that such policy shall not be canceled except after thirty (30)
days written notice to Landlord. Such insurance may be carried under blanket or
umbrella insurance policies. Such policy, or a certificate thereof, shall be
deposited with Landlord by Tenant not later than such date as Tenant or its
agents, employees or contractors shall enter the Premises. Prior to the
expiration or termination of such policy, Tenant shall deliver to Landlord a new
or renewal policy (or a certificate thereof). Notwithstanding anything to the
contrary set forth above, so long as the consolidated net worth of Tenant (and
its guarantor) is equal to or greater than Seventy-Five Million and No/100ths
Dollars ($75,000,000.00), Tenant shall not be obligated to maintain such
insurance.
12.3 LANDLORD'S INSURANCE. During the term of this Lease, Landlord shall
maintain the following insurance policies:
12.3.1 Comprehensive public liability insurance, including
insurance against the assumed or contractual liability of Landlord
hereunder, with respect to the Property to afford protection to the
limit for each occurrence of not less than Five Million Dollars and
No/100ths Dollars ($5,000,000.00) combined single limit for bodily
injury, death and property damage; and
12.3.2 Special form insurance, written at replacement cost value
and with replacement cost endorsement, covering the Building and all
other improvements in the Property.
The policy carried by Landlord under Section 12.3.1 above shall name Tenant as
an additional insured, and both such policies shall provide that no
cancellation, reduction or other material changes therein shall be effective
until at least ten (10) days after mailing of written notice thereof to Tenant.
Certificates evidencing all such insurance shall be delivered to Tenant prior to
the Commencement Date, and prior to the expiration of any such policies Landlord
shall deliver renewal certificates thereof to Tenant.
12.4 WAIVER OF SUBROGATION. Landlord and Tenant hereby release each
other from any and all liability or responsibility (to the other or anyone
claiming through or under them by way of subrogation or otherwise) for any loss
or damage to property caused by fire or any other casualties insured against or
required to be insured against hereunder (including deductible portions), even
if such fire or other casualty shall have been caused by the fault or negligence
of the other party, or anyone for whom such party may be responsible, and
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each party hereby waives any right of subrogation for all or any insurance
maintained by either party. Each party shall cause each insurance policy carried
by it hereunder to be written in such manner to provide that the insurer waives
all right of recovery by way of subrogation against the other party hereunder in
connection with any loss or damage covered by such policy.
12.5 TENANT'S CONTRIBUTION. Tenant shall pay Tenant's Proportionate
Share of all premiums for the insurance required to be maintained by Landlord
under Section 12.3 above within thirty (30) days after receipt of (a) the
applicable premium statement therefor, together with (b) a calculation of
Tenant's Proportionate Share.
ARTICLE XIII
DAMAGE AND DESTRUCTION
13.1 ABATEMENT OR ADJUSTMENT OF RENT. If the Premises shall be damaged
or destroyed by fire or other casualty after the execution of this Lease and
before the termination hereof, then Fixed Rent and any other charges payable
hereunder, shall be abated as set forth herein. If the whole of the Premises
shall be damaged or destroyed, or if a substantial portion thereof shall be
damaged or destroyed to the extent that Tenant, in its reasonable judgment,
determines that it cannot conduct business in the Premises, then Fixed Rent and
any other charges payable hereunder shall be abated entirely until such
restoration is completed by Landlord.
If less than such substantial part of the Premises shall be damaged or
destroyed, then Fixed Rent and any other charges payable hereunder shall be
abated in proportion to that portion of the Premises of which Tenant shall be
deprived on account of such damage or destruction until the repair, restoration,
rebuilding or replacement or any combination thereof, of the improvements so
damaged or destroyed.
13.2 REPAIRS AND RESTORATION OF PREMISES.
13.2.1 Subject to Section 13.2.2 below, upon any damage or
destruction of the Premises, Landlord shall promptly proceed to repair,
restore, replace or rebuild the Premises, including those tenant
improvements made by Landlord to the Premises under ARTICLE V above to
substantially the condition in which the same were immediately prior to
such damage or destruction and Landlord thereafter shall diligently
prosecute said work to completion without delay or interruption, subject
to Section 21.5 below. Notwithstanding the foregoing, if Landlord does
not either (i) obtain a building permit for any repairs, rebuilding or
restoration required hereunder within six (6) months of the date of such
damage or destruction, or (ii) complete such repairs, rebuilding or
restoration in accordance with Section 15.3 below within twelve (12)
months of such damage or destruction, then, in either event, Tenant may
at any time thereafter terminate this Lease upon thirty (30) days
written notice thereof to Landlord; provided, however, that such notice
of cancellation shall not be effective if Landlord, within such thirty
(30) day period, shall obtain such permit or complete and comply as
aforesaid, as the case may be. Upon the occurrence of any damage or
destruction to the Premises, if Landlord reasonably anticipates that
Landlord shall not be able to obtain a building permit within six (6)
months after the date of such damage or destruction and/or that Landlord
shall not be able to complete all required repairs and restoration
within twelve (12) months of the date of such damage or destruction,
Landlord shall deliver written notice thereof to Tenant, and such notice
shall set forth the dates by which Landlord reasonably anticipates
obtaining such permits and/or completing such restoration ("Landlord's
Notice").
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Within fifteen (15) days after receipt of Landlord's Notice, Tenant
shall have the right to elect either (i) to terminate this Lease upon
thirty (30) days written notice to Landlord, or (ii) to maintain this
Lease in full force and effect, in which event Landlord shall obtain
such permits and/or complete such restoration in accordance with the
dates set forth in Landlord's Notice. If Landlord does not receive such
written notice from Tenant within such fifteen (15) days period, then
Tenant shall be conclusively deemed to have elected to terminate this
Lease. If Tenant shall elect to maintain this Lease in full force and
effect, then Landlord shall obtain such permits and/or complete such
restoration in accordance with the dates set forth in Landlord's Notice,
and if Landlord does not either obtain such permits and/or complete such
restoration in accordance with such dates, then Tenant shall have the
right to terminate this Lease at any time thereafter upon thirty (30)
days written notice to Landlord; provided, however, that notice of
termination shall not be effective if Landlord, within such thirty (30)
day period, shall obtain such permit and/or complete such restoration,
as the case may be.
13.2.2 Notwithstanding anything to the contrary set forth in
Section 13.2.1 above if any such damage or destruction to the Premises
shall amount to eighty percent (80%) or more of the replacement cost of
the Premises (exclusive of the land and foundations), then this Lease
may be terminated at the election of either Landlord or Tenant upon
written notice to the other party within thirty (30) days after the
occurrence of such damage or destruction. Notwithstanding the foregoing,
if, prior to the date which is two (2) years after the date of
termination of this Lease pursuant to this Section 13.2.2 by Landlord,
Landlord shall either (1) rebuild all or any portion of the Premises, or
(2) commence the rebuilding of a like-kind building within any portion
of the Property, Landlord shall deliver written notice thereof to
Tenant, and upon written notice to Landlord within thirty (30) days
after receipt of such written notice, Tenant shall again have the right
to lease space within the Building (if Landlord is rebuilding all or a
portion of the Premises) and/or within such building (if Landlord is
constructing a new building) upon the terms and conditions set forth in
this Lease, with an appropriate adjustment of the size of the Premises,
if the restored Building and/or new building to be constructed by
Landlord contains floor area less than the floor area contained within
the "Premises" pursuant to this Lease as of the date of termination of
this Lease pursuant to this Section 13.2.2. In such event, Landlord, at
its sole cost and expense, shall construct the premises to be occupied
by Tenant in the restored Building and/or the new building, which
improvements shall be comparable or better in quality to the condition
of the Premises existing as of the date this Lease is terminated
pursuant to this Section 13.2.2
13.2.3 If this Lease is terminated under this Section 13.2, any
Fixed Rent or other charges paid in advance by Tenant shall be refunded
to Tenant, and upon payment in full of all sums due Landlord or Tenant
by the other party through the date of such fire or casualty, the
parties shall be released hereunder, each to the other, from all
liability and obligations hereunder thereafter arising.
13.3 DELIVERY OF PREMISES. If this Lease has not been canceled hereunder
as a result of any damage or destruction of the Premises, Tenant shall not be
required to accept delivery or possession of the Premises and recommence paying
Fixed Rent and other charges (or such abated portion thereof) until all of the
following shall have occurred:
13.3.1 The damaged or destroyed portion of the Premises shall
have been completed as nearly as practicable to the condition existing
immediately prior to such destruction or damage and in compliance with
all laws, ordinances,
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regulations and requirements of governmental authorities having
jurisdiction thereof; and
13.3.2 If required, a certificate of occupancy or an equivalent
use permit, and all other requisite permits, if any, including an
inspection certificate of approval by the National Board of Fire
Underwriters and/or ISO (if required) shall have been issued by the
appropriate legal authorities issuing same, and Landlord shall have
delivered to Tenant such certificate(s) or photostatic copies thereof.
13.4 REPAIRS AND RESTORATION OF PROPERTY. If the Building, Common Areas
or other improvements in the Property (exclusive of the Premises) shall be
damaged or destroyed by fire or other casualty or any cause whatsoever, either
in whole or in part, then if this Lease is not terminated under Section 13.2.2
above, Landlord shall with due diligence remove any resulting debris and repair
and/or rebuild the damaged or destroyed Building, Common Areas, and improvements
in accordance with the plans pursuant to which they were originally constructed
to the extent then permitted by the applicable governmental laws and
regulations.
ARTICLE XIV
CONDEMNATION
14.1 TOTAL TAKING. If the whole of the Premises shall be taken under
power of eminent domain by any public or private authority, or conveyed by
Landlord to said authority in lieu of such taking, then this Lease shall
terminate as of the date of such taking.
14.2 PARTIAL TAKING.
14.2.1 Tenant may, at its election, terminate this Lease upon the
occurrence of any condemnation, or conveyance in lieu of condemnation,
which affects:
(i) Twenty percent (20%) or more of the floor area of the
Premises;
(ii) Twenty percent (20%) or more of the parking areas of
the Property shown on EXHIBIT "B" annexed hereto; or
(iii) Any portion of the Common Areas whose condemnation
would materially affect ingress to and egress from the Premises.
Tenant shall give Landlord notice of Tenant's election within thirty
(30) days after Tenant shall receive notice of such pending
condemnation. If Tenant fails to give Landlord such written notice
within such thirty (30) day period, Tenant shall be conclusively deemed
to have elected not to terminate this Lease. Notwithstanding any
termination of this Lease by Tenant hereunder, Tenant, at its election,
may continue to occupy the Premises, subject to the terms and provisions
of this Lease, for all or such part, as Tenant may determine, for the
period between the date of such taking and the date when possession of
the Premises shall be taken by the appropriate authority.
14.2.2 Notwithstanding anything to the contrary set forth herein,
if any portion of the Premises is condemned or conveyed in lieu of such
condemnation during the last two (2) years of the term hereof, then
either Tenant or Landlord may terminate this Lease upon thirty (30) days
written notice to the other party; provided,
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however, that any such notice of termination by Landlord shall be
ineffective, and this Lease shall remain in full force and effect, if
Tenant, within thirty (30) days after receipt of such notice from
Landlord, shall give notice to Landlord of its intention to extend the
term of this Lease in accordance with ARTICLE III above. If Tenant gives
Landlord such notice of such renewal, Landlord shall repair and/or
restore the Premises in accordance with the terms and conditions of this
ARTICLE XIV. Notwithstanding any termination of this Lease pursuant to
the terms and conditions of this Section 14.2.2, Tenant, at its
election, may continue to occupy the Premises, subject to the terms and
conditions of this Lease, for the period between the date of such taking
and the date when possession of the property to be condemned shall be
taken by the appropriate authority.
14.3 RESTORATION. If this Lease is not terminated under Section 14.2
above, Landlord, at Landlord's sole cost and expense, shall promptly restore the
remaining portions of the Premises and/or the Property, as the case may be,
including any and all improvements made theretofore, together with the remaining
portions of the parking areas, to an architectural whole in substantially the
same condition that the same were in prior to such taking. If Landlord does not
either (i) obtain a building permit for any repairs or restoration required
hereunder within six (6) months of the date of taking, or (ii) complete such
repairs or restoration in accordance with this Section 14.3 within nine (9)
months of such taking, then, in either event, Tenant may at any time thereafter
terminate this Lease upon thirty (30) days written notice thereof to Landlord;
provided, however, that such notice of cancellation shall not be effective if
Landlord, within such thirty (30) day period, shall obtain such permit or
complete and comply as aforesaid, as the case may be. Fixed Rent and any other
charges payable by Tenant hereunder shall be suspended or abated until the
completion of such restoration according to the nature and extent of the injury
to the Premises and, in the event of injury to the Common Areas or the remainder
of the Property, to Tenant's business. Upon any condemnation of a portion of the
Premises, the Fixed Rent and any other charges payable by Tenant hereunder shall
be proportionately reduced based upon the floor area of the Premises remaining
after said taking.
14.4 RELEASE. In the event of any termination of this Lease as the
result of the provisions of this ARTICLE XIV, Fixed Rent and any other charges,
if any, paid in advance by Tenant shall be refunded to Tenant, and the parties,
effective as of such termination, shall be released from all liability and
obligations thereafter arising under this Lease.
14.5 THE AWARD. All compensation awarded for any taking, whether for the
whole or a portion of the Premises, or for any other portion of the Property,
shall be the sole property of Landlord whether such compensation shall be
awarded for diminution in the value of, or loss of, the leasehold or for
diminution in the value of, or loss of the fee, or otherwise, and Tenant hereby
assigns to Landlord all of Tenant's right and title to and interest in any and
all such compensation; provided, however, Landlord shall not be entitled to and
Tenant shall have the sole right to retain any portion of any award made by the
appropriating authority for (a) the unamortized portion of any leasehold
improvements installed by Tenant in the Premises, (b) the cost of removal of
leasehold improvements, fixtures, and other improvements installed in the
Premises by, or at the expense of, Tenant, (c) relocation expenses, and (d) any
separate award made by the appropriating authority directly to Tenant, provided
that any such award to Tenant pursuant to (a) - (d) herein shall not reduce any
award payable to Landlord.
ARTICLE XV
EVENTS OF DEFAULT
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15.1 EVENTS OF DEFAULT BY TENANT; REMEDIES. If Tenant shall at any time
be in default in the payment of rental or any other charges hereunder or in the
performance of any of the covenants of this Lease, and Tenant shall fail to
remedy such default within (a) ten (10) days after receipt of written notice
thereof from Landlord if such default is in connection with the payment of Fixed
Rent or the payment of any other charges, or (b) thirty (30) days after receipt
of written notice thereof from Landlord if such default is nonmonetary (but
Tenant shall not be deemed in default if it commences to remedy such default
within said thirty (30) day period and proceeds therewith with due diligence),
or if Tenant shall be adjudged bankrupt or shall make an assignment for the
benefit of creditors, or if a receiver of any property of Tenant in or upon the
Premises be appointed in any action, suit or proceeding by or against Tenant and
not removed within sixty (60) days after appointment, or if the interest of
Tenant in the Premises shall be sold under execution or other legal process,
Landlord may by notice to Tenant, (i) terminate this Lease, or without
terminating this Lease, re-enter the Premises by summary proceedings,
proceedings in forcible entry and detainer, eviction, or otherwise, and may
dispossess Tenant, if Tenant has defaulted in the payment of Fixed Rent or the
payment of any other charges due and payable to Landlord hereunder, and (ii)
pursue all rights and remedies available to Landlord at law or equity, provided
that Landlord shall have no right to terminate this Lease and/or Tenant's right
of possession if Tenant shall not have defaulted in the payment of Fixed Rent or
the payment of any other charges due and payable to Landlord hereunder.
Notwithstanding the foregoing, if Tenant shall in good faith either claim the
right to reduce Fixed Rent or offset any sum against Fixed Rent, dispute any sum
or obligation for which payment or performance is claimed by Landlord to be due
under this Lease, or otherwise exercise any rights or remedies permitted to be
exercised by Tenant under this Lease, then Tenant shall not be deemed in default
under this Lease unless and until a court of competent jurisdiction shall issue
a final, nonappealable judgment in favor of Landlord and Tenant shall have
failed, within thirty (30) days after the receipt of such final, nonappealable
judgment, to pay all sums and/or perform such obligations which Tenant
previously failed to pay and/or to perform as a result of Tenant's good faith
claim of its right to do so as set forth herein. During the pendency of any such
dispute, Tenant shall deposit, in escrow with a title company, bank, or other
institution mutually acceptable to Landlord and Tenant, all sums for which
Tenant claims the right to reduce Fixed Rent and/or to offset against Fixed Rent
herein, and Tenant shall pay all undisputed sums to Landlord in accordance with
the terms of this Lease. Such sums shall be deposited into an interest-bearing
account, and Landlord and Tenant shall execute such escrow instructions as may
be reasonably required as the escrow holder with respect such funds. Upon the
resolution of such dispute, such funds, together with the interest accrued
thereon, shall be paid to the party entitled to the same.
15.2. REMEDIES.
15.2.1 Upon any default by Tenant under this Lease, Landlord
shall use reasonable efforts to mitigate all damages arising as a
result of such default, but only to the extent required by
applicable law. If Landlord elects to terminate Tenant's right to
possession only without terminating this Lease as above provided,
Landlord shall use reasonable efforts to relet the Premises or any
part thereof to any person, firm or corporation and for such time
and upon such reasonable terms as Landlord may determine, but only
to the extent required by applicable law. Landlord may make
repairs in and to the Premises to the extent necessary to restore
the Premises to good condition and repair, and Tenant, upon demand
in writing, shall pay the reasonable cost thereof together with
Landlord's reasonable expenses of reletting, including any
commissions and attorneys' fees relative thereto (but excluding
any alterations or additions to the Premises or any tenant
improvements to the Premises for a
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replacement tenant). If the rents collected by Landlord upon any
such reletting are not sufficient to pay monthly the full amount
of the monthly rent and other charges reserved herein, together
with the reasonable costs required to be reimbursed by Tenant to
Landlord as set forth herein, Tenant shall pay to Landlord the
amount of each monthly deficiency upon demand in writing.
15.2.2 If Tenant shall have defaulted in the payment of
Fixed Rent or the payment of any other charges payable to Landlord
hereunder, then Landlord shall have the right, after the expiration
of all notice and grace periods as set forth above, upon notice to
Tenant either to terminate this Lease, or without terminating this
Lease, terminate Tenant's right of possession. If Landlord shall
obtain, from a court of competent jurisdiction, both (i) a final,
non-appealable judgment that Tenant has defaulted in the payment of
Fixed Rent and/or other charges due and payable from Tenant to
Landlord hereunder and (ii) a final non-appealable judgment
providing for the termination of this Lease and/or the termination
of Tenant's right of possession of the Premises, then if Tenant
shall fail to pay such sums to Landlord within thirty (30) days
thereafter, this Lease and/or Tenant's right of possession shall
terminate in accordance with such final, non-appealable judgments,
and Fixed Rent and other charges due and payable by Tenant to
Landlord shall be payable in advance as hereinafter set forth. If
Fixed Rent or other charges are required to be paid in advance as
set forth in this Section 15.2.2, then such sums shall be equal to
the Fixed Rent and all other charges required to be paid by Tenant
to Landlord under this Lease which Landlord would have received
under the Lease for the remaining portion of the then current term,
discounted to present value as of the date of such prepayment at a
rate which is one percent (1%) per annum in excess of the prime
rate then in effect at Chase Manhattan Bank. If Fixed Rent and
other charges herein are paid in advance by Tenant as set forth in
this Section 15.2.2, then if Landlord shall relet all or any
portion of the Premises at any time during what would have been the
remaining term of this Lease, then said sums shall (i) first be
applied to any sums remaining due and payable by Tenant to Landlord
under Section 15.2.1 above (if any), and (ii) the balance shall be
paid by Landlord to Tenant, within thirty (30) days after receipt
thereof by Landlord.
15.3 OTHER REMEDIES. The rights and remedies of Landlord set forth in
this ARTICLE XV and in Section 16.1 below shall be in addition to all of the
rights and remedies available to Landlord at law on in equity, provided that no
event shall Landlord be entitled to any damages not permitted herein and in no
event shall Fixed Rent or other charges under this Lease be accelerated or
otherwise be payable in advance of the due dates otherwise set forth in this
Lease, except as set forth in Section 15.2.2 above.
15.4 WAIVER OF LIEN. Landlord waives and releases any and all liens and
every right to institute proceeds to obtain a lien and any other rights to
distraint, levy or execution against any property in which Tenant's lender has a
security interest, all or part of which may be located upon or affixed to the
Premises (the "Collateral") for any rent or other sums due or to become due to
Landlord, whether under the Lease for the Premises or otherwise, and all claims
and demands of Landlord of every kind against the Collateral, during the term of
the aforesaid agreement and any renewal, extension or modification thereof or
substitution therefor. Landlord agrees that the Collateral will remain personal
property and will not become part of the Premises.
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15.5 LANDLORD'S RIGHT TO REMOVE CHATTELS. Any and all property which may
be removed from the Premises by Landlord in accordance with the terms of this
Lease may be handled, removed, stored or otherwise disposed of by Landlord at
the risk and expense of Tenant, and Landlord in no event shall be responsible
for the preservation or safekeeping thereof. Tenant shall pay to Landlord upon
demand in writing, any and all reasonable expenses incurred in connection with
such removal and all storage charges against such property so long as the same
shall be in Landlord's possession or under Landlord's control. If any property
shall remain in the Premises or in the possession of Landlord and shall not be
retaken by Tenant within a period of ten (10) days from and after the time when
the Premises are either abandoned by Tenant or repossessed by Landlord under the
terms of this Lease, said property shall conclusively be deemed to have been
forever abandoned by Tenant.
15.6 LANDLORD'S DEFAULT. Upon any default by Landlord under this Lease
which is not cured within thirty (30) days after receipt of written notice
thereof from Tenant (but Landlord shall not be deemed in default if it commences
to remedy such default within such thirty (30) day period and proceed therewith
with due diligence), Tenant shall have the right, in addition to all other
rights and remedies explicitly set forth in this Lease, to pursue all rights and
remedies available at law or in equity, including the right to terminate this
Lease if such default materially and adversely affects Tenant's use of the
Premises.
15.7 DEFAULT INTEREST. Any sum required to be paid by either party to
the other party hereunder which is not paid within ten (10) days after the date
when due shall (except as otherwise provided in this Lease) bear interest from
the original date due at a rate per annum equal to the prime rate then in effect
at Chase Manhattan Bank, New York, plus four percent (4%) or, if less, the
maximum rate permitted by law (the "Default Rate").
ARTICLE XVI
SELF-HELP RIGHTS
16.1 LANDLORD'S SELF-HELP. If Tenant shall default in the performance or
observance of any agreement or condition in this Lease contained on its part to
be performed or observed and shall not cure such default within any applicable
cure period set forth herein, Landlord may, at its option, without waiving any
other right or remedy permitted to be exercised by Landlord under ARTICLE XV
above, at any time thereafter cure such default for the account of Tenant, and
any amount paid or any contractual liability incurred by Landlord in so doing
shall be deemed paid or incurred for the account of Tenant and Tenant agrees to
reimburse Landlord therefor and save Landlord harmless therefrom; provided that
Landlord may cure any such default as aforesaid prior to the expiration of said
waiting period, without notice to Tenant, if any emergency situation exists, or
after notice to Tenant, if the curing of such default prior to the expiration of
said waiting period is reasonably necessary to protect the Premises or
Landlord's interest therein, or to prevent injury or damage to persons or
property. If Tenant fails to reimburse Landlord upon demand for any amount paid
for the account of Tenant hereunder, said amount, together with interest thereon
at the Default Rate, shall be added to and become due as a part of the next
payment of rent due hereunder.
16.2 TENANT'S SELF-HELP. If Landlord shall breach, or fail to perform or
observe, any agreement or condition in this Lease contained on Landlord's part
to be performed or observed, then if (a) Landlord shall not cure such breach or
failure within thirty (30) days after notice from Tenant specifying such breach
or failure (or, if such breach or failure shall reasonably take more than thirty
(30) days to cure, and Landlord shall not have commenced the same within the
thirty (30) days and diligently prosecuted the same to completion), and
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(b) such breach or failure creates a reasonable risk of damage to Tenant's
property, personal injury, and/or a material and adverse effect on Tenant's use
or occupancy of the Premises, Tenant may, at Tenant's option, without waiving
any other right or remedy permitted to be exercised by Tenant under the express
terms of this Lease with respect to such default, at any time thereafter cure
such breach or failure for the account of Landlord and any amount paid or any
contractual liability incurred by Tenant in so doing shall be deemed paid or
incurred for the account of Landlord and Landlord agrees to reimburse Tenant
therefor and save Tenant harmless therefrom; provided that Tenant may cure any
such breach or failure as aforesaid prior to the expiration of said waiting
period if reasonably necessary to protect the Premises and/or parking for or
access to the Premises, to prevent imminent injury or damage to persons or
property, or in the event of any other emergency (e.g., roof leak). If
"Landlord" is no longer an entity controlled by or affiliated with Bruce
Federman, then any amounts not reimbursed by Landlord within thirty (30) days of
Tenant's written demand therefor may be applied by Tenant, together with
interest thereon at the Default Rate, as a credit against Tenant's next
payment(s) of Fixed Rent or other charges, provided that the aggregate of all
such claims shall not exceed, on a monthly basis, twenty percent (20%) of Fixed
Rent, and if Landlord shall in good faith dispute the right of Tenant to
exercise any offset rights set forth herein, such offset shall not exceed 50% of
any amount claimed due by Tenant and disputed by Landlord herein.
ARTICLE XVII
TITLE
17.1 SUBORDINATION. Tenant hereby subordinates this Lease to the lien of
any deed of trust, mortgage or mortgages now or hereafter placed upon Landlord's
interest in the Premises; provided, however, that Landlord, at its expense,
shall procure from any such mortgagee an agreement, in writing, in form and
substance acceptable to Tenant, providing in substance that (a) so long as
Tenant performs the obligations imposed upon Tenant hereunder, its tenancy will
not be disturbed, nor its rights under this Lease affected by, any default under
such mortgage nor shall Tenant be named as a defendant in any foreclosure
proceeding (unless, in order to obtain jurisdiction of such foreclosure matter
and/or to implement such foreclosure, Tenant is required to be named as a
defendant in such proceeding and) (b) in the event of any foreclosure under any
such mortgage or deed of trust, or a granting of a deed in lieu thereof, any
such mortgagee or purchaser of Landlord's interests through foreclosure sale or
deed in lieu thereof shall permit the insurance proceeds and condemnation awards
to be used for any restoration and repair required under ARTICLES XII and XIV
hereof and shall otherwise assume the obligations of Landlord under this Lease.
Landlord, at its expense, shall procure such executed agreement from any
existing mortgagee of the Property on or before the Commencement Date; if
Landlord fails to deliver such executed agreement to Tenant as required herein,
the Commencement Date shall be extended to such date on which Tenant receives
such executed agreement from such mortgagee.
17.2 QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that
upon Tenant paying the rent and observing and performing all of the terms,
covenants and conditions on Tenant's part to be observed and performed
hereunder, Tenant may peaceably and quietly have, hold, occupy and enjoy the
Premises without hindrance or molestation from Landlord or any persons lawfully
claiming through Landlord.
17.3 LANDLORD'S ASSURANCES. To induce Tenant to execute this Lease, and
in consideration thereof, Landlord warrants, represents, covenants and agrees as
follows:
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17.3.1. Landlord has good fee simple title to the entire Property
free and clear of all easements, restrictions, liens, encumbrances,
leases and the like, except as set forth on EXHIBIT "D", attached hereto
and made a part hereof.
17.3.2. To Landlord's knowledge, there are no restrictions or other
legal impediments either imposed by law (including applicable zoning and
building ordinances) or by any instrument (including the items set forth
on EXHIBIT "D") or any pending governmental actions, which would prevent
the use of the Premises for office and warehouse purposes after
completion of construction thereof by Landlord in accordance with
applicable law and the requirements of applicable governmental
authorities, or the use of the Common Areas, including all access routes
and entrances to the Property, in the manner contemplated by this Lease.
If at any time during the term of this Lease (or any renewal thereof)
applicable law shall not permit the use of the Premises or the Common
Areas for office and warehouse purposes, then Tenant, without waiving
any other rights Tenant may have on account thereof, may terminate this
Lease by giving Landlord notice thereof.
17.3.3 Landlord has no knowledge or notice of any pending
condemnation or eminent domain proceedings with respect to the Property,
nor has Landlord any actual knowledge or notice that the Property, or
any portion thereof, is in violation of any applicable statute, law,
rule, regulation, or order of any governmental authority, including any
zoning ordinances or building codes.
17.3.4 The execution and performance of this Lease by Landlord will
not violate or cause a default under any agreement, instrument, or other
transaction to which Landlord is a party or by which Landlord and/or the
Property are bound.
ARTICLE XVIII
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SIGNS
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Tenant shall not erect or install any ground, building, or roof signs
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or delayed, provided that Tenant shall have the right to
erect identification and directional signage only. All signs installed by Tenant
shall comply with all requirements of appropriate governmental authority, and
all necessary permits or licenses shall be obtained by Tenant.
Tenant shall maintain all signs in good condition and repair at all times. Upon
vacating the Premises, Tenant shall remove all signs and repair all damage
caused by such removal.
ARTICLE XIX
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HAZARDOUS SUBSTANCES
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19.1 HAZARDOUS SUBSTANCES. The term "Hazardous Substances," as used in
this Lease, shall include, without limitation, flammables, explosives,
radioactive materials, asbestos, polychlorinated biphenyls (PCBs), chemicals
known to cause cancer or reproductive toxicity, pollutants, contaminants,
hazardous wastes, toxic substances or related materials, petroleum and petroleum
products, and substances declared to be hazardous or toxic under any law or
regulation now or hereafter enacted or promulgated by any governmental
authority.
19.2 TENANT'S OBLIGATIONS.
19.2.1 Tenant shall not cause or permit to occur (i) any
violation of any federal, state, or local law, ordinance, or regulation
("Laws") now or hereafter
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enacted, related to Hazardous Substances on, under, or about the
Premises; or (ii) the use, generation, release, manufacture, refining,
production, processing, storage, or disposal of any Hazardous Substances
on, under, or about the Premises in violation of applicable federal or
state laws, or the transportation to or from the Premises of any
Hazardous Substances in violation of applicable federal or state laws.
19.2.2 Tenant shall indemnify, defend and hold harmless the
Landlord from all liabilities, fines, suits, procedures, claims and
actions of every kind, and all costs and expenses associated therewith
(including attorney's and consultants' fees) arising out of or in any
way connected with any violation of any Laws by Tenant, its employees,
agents, independent contractors or invitees that occurs during the term
of this Lease, at or from the Premises or which arises at any time from
Tenant's use or occupancy of the Premises.
19.2.3 Tenant's obligation and liabilities under this Section 19.2
shall survive the expiration or termination of this Lease.
19.3 LANDLORD'S OBLIGATIONS.
19.3.1 Landlord shall not cause or permit to occur (i) any
violation of any Laws now or hereafter enacted, related to Hazardous
Substances on, under, or about the Property; or (ii) the use,
generation, release, manufacture, refining, production, processing,
storage, or disposal of any Hazardous Substances on, under, or about the
Property in violation of applicable Laws, or the transportation to or
from the Property of any Hazardous Substances in violation of applicable
Laws.
19.3.2 Except for matters for which Tenant is obligated to
indemnify Landlord pursuant to Section 19.2 above, Landlord shall
indemnify, defend and hold harmless the Tenant from all fines, suits,
procedures, claims and actions of every kind, and all costs associated
therewith (including attorney's and consultants' fees) arising out of or
in any way connected with any deposit, spill, discharge, or other
release of Hazardous Substances in violation of any Laws that occurs
during the term of this Lease, at or from the Property.
19.3.3 In the event that any Hazardous Substances are discovered
in, on, or about the Property, and such Hazardous Substances were not
caused or permitted to occur by either Tenant or Landlord, then
Landlord, at its sole cost and expense, shall be obligated to comply
with all Laws with respect to such Hazardous Substances, in accordance
with the terms and conditions of this Section 19.3, provided that
Landlord shall be entitled to pursue all rights and remedies against
such other parties as may be responsible for the presence of such
Hazardous Substances in, on or about the Property.
19.3.4 Landlord's obligation and liabilities under this Section
19.3 shall survive the expiration of this Lease.
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ARTICLE XX
EXPANSION RIGHTS; RIGHT OF FIRST REFUSAL
20.1 Options. Tenant is hereby granted the following options to lease an
aggregate of approximately two hundred thousand (200,000) square feet of
additional space within the Property (the "Option Space"):
20.1.1 Upon written notice to the Landlord on or before
December 1, 1999, Tenant shall have the right to lease one hundred
thousand (100,000) square feet of space within the Property (the
"Initial Option Space"). The Initial Option Space shall consist of the
floor area within the Building which is contiguous to the Premises
("Original Space"); provided, however, in the event that (i) prior to
the receipt by Landlord of Tenant's written notice of Tenant's exercise
of the option provided herein, Landlord shall have entered into a bona
fide lease (or leases) with a third party (or parties) renting the
Original Space and (ii) there is no other space available within the
Building which is acceptable to Tenant, the Initial Option Space shall
consist of one hundred thousand (100,000) square feet of floor area to
be contained within an expansion of the Building in an area contiguous
to the Premises (the "New Building Space").
20.1.2 If the Initial Option Space is the New Building Space,
then the New Building Space shall be constructed with similar materials
and with similar improvements as the Premises, unless otherwise agreed
by the Landlord and Tenant. Within thirty (30) days after receipt of
Tenant's written notice of Tenant's exercise of the option provided
herein, Landlord and Tenant shall reasonably cooperate in good faith to
solicit bids for each major portion of the construction to be performed
by Landlord hereunder, including architectural services, engineering
services, general contractor services, and subcontractor services for
each "major subcontract" (hereinafter defined), and Tenant shall have
the right to select an architect, engineer, general contractor, and/or
subcontractors with respect to each "major subcontract" with respect to
all such bids. For purposes of this paragraph, a "major subcontract"
shall mean all subcontracts for portions of the construction to be
performed by Landlord hereunder which individually exceed Twenty Five
Thousand Dollars ($25,000.00). Upon receipt of all bids applicable to
each portion of the construction to be performed by Landlord hereunder,
Landlord and Tenant shall reasonably cooperate to negotiate with such
architects, engineers, general contractors and/or subcontractors to
reduce the Cost of Construction (hereinafter defined) for Landlord's
work, and Landlord shall accept the lowest responsive bid submitted with
respect to each applicable portion of Landlord's work, unless Landlord
and Tenant agree otherwise.
For purposes of this paragraph, the "Cost of Construction"
shall mean all costs incurred by Landlord in the construction of New
Building Space, including without limitation architectural costs,
general contractor costs, subcontractor's costs, costs of materials,
licensing fees, and permitting fees.
Concurrently with the solicitation of bids for the Cost of
Construction, Landlord and Tenant shall reasonably cooperate in good
faith to determine, and obtain, the best financing package then
available for similar projects and properties in New Jersey, to finance
the Cost of Construction. In making such determination, Landlord and
Tenant shall consider the then prevailing terms and conditions required
by lenders for similar projects, including required equity
contributions, prevailing
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rates of interest, and prevailing amortization periods for similar
loans. Both Landlord and Tenant shall have the right to reasonably
approve the proposed financing structure for the Cost of Construction,
provided that in no event shall Landlord's required equity contribution
be permitted to exceed forty percent (40%) of the Cost of Construction.
Subject to the foregoing, if Landlord and Tenant are unable to agree
upon a financing structure for the Cost of Construction within sixty
(60) days after the date the Cost of Construction is determined as set
forth above, then either Landlord or Tenant shall have the right to
terminate the option provided to Tenant herein with respect to the New
Building Space; provided, however, that if either Landlord or Tenant,
within ten (10) days after receipt of the other party's notice of
termination herein, delivers written notice to the other party that it
will accept the proposed financing structure proposed by the
non-terminating party, then such notice of termination shall be of no
further force or effect and Tenant's option with respect to the New
Building Space shall remain in full force and effect. The financing
structure approved by Landlord and Tenant shall be referred to herein as
the "Financing Structure".
Upon the determination of the Cost of Construction and the
Financing Structure, the annual Fixed Rent for the New Building Space
(the "New Building Space Rent') shall be the sum of (i) the annual
payments of principal and interest required to be paid under the
Financing Structure and (ii) the product of (A) the Rate of Return
(hereinafter defined) and (B) the equity required to be contributed by
Landlord as part of the Financing Structure. The "Rate of Return" shall
mean (A) fifteen percent (15%), if Landlord's required equity
contribution under the Financing Structure is twenty percent (20%) or
less of the Cost of Construction, (B) fourteen percent (14%), if
Landlord's required equity contribution under the Financing Structure is
thirty percent (30%) of the Cost of Construction, or (C) thirteen
percent (13%),if Landlord's required equity contribution under the
Financing Structure is forty percent (40%) of the Cost of Construction.
If Landlord's required equity contribution under the Financing Structure
is greater than twenty percent (20%) but less than thirty percent (30%),
or greater than thirty percent (30%) but less than forty percent (40%),
then the "Rate of Return" shall be adjusted proportionately (e.g., if
Landlord's required equity contribution is twenty-five percent (25%),
the "Rate of Return" shall be fourteen and five tenth percent (14.5%)).
Landlord shall construct the New Building Space and shall
deliver possession thereof to Tenant as soon as reasonably possible, but
in no event later than the date which is fifteen (15) months after
Landlord and Tenant approve the Financing Structure. If Landlord shall
fail to deliver possession of the New Building Space to Tenant within
such fifteen (15) month period, then in addition to all other rights and
remedies available at law or equity, Tenant shall have the right either
(i) to terminate this Lease with respect to the New Building Space only,
or (ii) to require Landlord to provide to Tenant, at Landlord's cost and
expense, "like kind" space which is as close to the Premises as
reasonably possible. For purposes of this paragraph, "like kind" shall
mean space with a ceiling height no less than that provided in the
Premises, and otherwise as similar to the Premises as reasonably
possible. If Tenant shall elect to require Landlord to provide such
alternative space to Tenant, then (i) Landlord shall reimburse Tenant
for all reasonable costs incurred by Tenant in relocating merchandise to
such alternative space, (ii) commencing from and after the date of
possession of such alternative space is provided to Tenant, Tenant shall
pay to Landlord Fixed Rent and additional charges for such alternative
space in accordance with the amounts required be paid by Tenant herein
with respect to the Premises, and (iii) Landlord, at its sole cost and
expense, shall pay any rent or
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additional charges required to be paid with respect to such alternative
space in excess of the amounts required to be paid by Tenant herein.
All work to be performed by Landlord in constructing the New
Building Space shall be performed in a good and workmanlike manner,
using new materials, and in accordance with all applicable laws, rules,
regulations and ordinances. All such work shall be performed in a manner
not to unreasonably interfere with Tenant's use of the original
Premises. Landlord shall warranty and guarantee all work performed by
Landlord with respect to the New Building Space against any defects in
materials, workmanship, or design, for a period of one (1) year after
the date Tenant takes possession of the New Building Space. Within
thirty (30) days after written notice thereof from Tenant, Landlord
shall use reasonable efforts to correct all punch list items with
respect to the New Building Space; provided, however, that if any such
items cannot be corrected within such thirty (30) day period, then
Landlord shall commence to correct such items within such thirty (30)
day period, and shall diligently pursue such cure to completion
thereafter.
Upon taking possession of the New Building Space, the
"Premises" herein shall be deemed to include the New Building Space for
all purposes under this Lease, and all terms and conditions of this
Lease shall be applicable to the New Building Space; provided, however,
that the "Fixed Rent" applicable to the New Building Space shall be the
New Building Space Rent, and the New Building Space Rent shall be
increased during the option periods provided under Section 2.5 above by
the same percentage increase as the increase in the Fixed Rent for the
original Premises during such option periods pursuant to Section 3.1
above.
20.1.3 If the Initial Option Space shall consist of the
Original Space and/or other space within the Building, then Landlord
shall perform all work required to enclose the area subject to such
option and to incorporate such area into the existing Premises,
including the construction of all exterior and/or demising walls,
separation and/or consolidation of utilities, and all of the work
required to obtain a certificate of occupancy for the Premises, as so
expanded (if the local jurisdiction requires a certificate of occupancy
for the Premises). All work performed by Landlord hereunder shall be
performed in a good and workmanlike manner, using new materials, in
accordance with all applicable laws, rules, regulations and ordinances,
and in a manner so as to not unreasonably interfere with Tenant's use of
the then existing Premises. Landlord shall perform such work and deliver
possession of the applicable expansion area to Tenant as soon as
reasonably possible, but no later than the date which is one hundred
eighty (180) days after Tenant's acceptance notice. If Landlord shall
fail to deliver possession of the applicable expansion area to Tenant
within such one hundred eighty (180) days, Tenant shall have the right
either (i) to terminate this Lease with respect to the applicable
expansion area only, or (ii) to require Landlord to provide to Tenant,
at Landlord's cost and expense, "like kind" space which is as close to
the Premises as reasonably possible. For purposes of this paragraph,
"like kind" shall mean space with a ceiling height no less than that
provided in the Premises, and otherwise as similar to the Premises as
reasonably possible. If Tenant shall elect to require Landlord to
provide such alternative space to Tenant, then (i) Landlord shall
reimburse Tenant for all reasonable costs incurred by Tenant in
relocating merchandise to such alternative space, (ii) commencing from
and after the date of possession of such alternative space is provided
to Tenant, Tenant shall pay to Landlord Fixed Rent and additional
charges for such alternative space in accordance with the amounts
required be paid by Tenant herein with respect to the Premises, and
(iii) Landlord, at its sole cost and expense, shall pay any rent or
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additional charges required to be paid with respect to such alternative
space in excess of the amounts required to be paid by Tenant herein.
Landlord shall warranty and guarantee all work performed by
Landlord with respect to the applicable expansion area against any
defects in materials, workmanship, or design, for a period of one (1)
year after the date Tenant takes possession of the applicable expansion
area. Within thirty (30) days after written notice thereof from Tenant,
Landlord shall use reasonable efforts to correct all punch list items
with respect to the applicable expansion area; provided, however, that
if any such items cannot be corrected within such thirty (30) day
period, then Landlord shall commence to correct such items within such
thirty (30) day period, and shall diligently pursue such cure to
completion thereafter.
Commencing on the date Landlord substantially completes
Landlord's work hereunder and delivers possession of the applicable
expansion area to Tenant, such expansion area shall be incorporated into
and made a part of the "Premises" for all purposes under this Lease, and
all terms and conditions of this Lease shall be applicable to such
expansion area.
20.1.4 Upon written notice to the Landlord on or before June 1,
2003, Tenant shall have the right to lease one hundred thousand
(100,000) square feet of space within the Option Space (the "Remaining
Option Space"). If Tenant shall desire to take possession of the
Remaining Option Space prior to June 1, 2003, then the Remaining Option
Space shall consist of space within the Building which is contiguous to
the Premises, unless prior to receipt by Landlord of Tenant's exercise
of the option provided herein Landlord shall have executed a bona fide
lease (or leases) with a third party (or parties) renting such space. In
such event, the Remaining Option Space shall be the New Building Space,
as determined in accordance with the terms and conditions of Section
20.1.1 - 20.1.3 above.
If Tenant shall desire to take possession of the Remaining
Option Space as of a date which is from and after June 1, 2003, then the
Remaining Option Space shall be adjacent to the original Premises and
shall be in the location shown on Exhibit "B" attached hereto. Upon the
exercise by the Tenant of the option provided herein, then if the
Remaining Option Space is contained within the Building, Landlord shall
perform all work required to enclose the Remaining Option Space and to
incorporate the Remaining Option Space into the existing Premises within
the Building, including the construction of all exterior and/or demising
walls, separation and/or consolidation of utilities, and all other work
required to obtain a certificate of occupancy for the Premises, as so
expanded (if the local jurisdiction requires a certificate of occupancy
for the Premises). All work performed by Landlord hereunder shall be
performed in a good and workmanlike manner, using new materials, in
accordance with all applicable laws, rules, regulations and ordinances,
and in a manner so as not to unreasonably interfere with Tenant's use of
the then existing Premises. Landlord shall warranty and guarantee all
work performed by Landlord hereunder for a period of one(1) year after
the date possession of the Remaining Option Space is delivered to Tenant
hereunder, and Landlord shall correct all punch list items within thirty
(30) days after Tenant's written notice thereof to Landlord. If Landlord
shall fail to deliver possession of the Remaining Option Space to Tenant
on or before the date which is one hundred eighty (180) days after the
date of Tenant's written notice of Tenant's exercise of the option
provided in this Section 20.1.2, then in addition to all other rights or
remedies available to Tenant at law or in equity, Tenant shall have the
right (i) to terminate this Lease with respect to the Remaining Option
Space, or (ii)
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to require Landlord to provide to Tenant, at Landlord's cost and
expense, "like kind" space which is as close to the Premises as
reasonably possible. For purposes of this paragraph, "like kind" shall
mean space with a ceiling height no less than that provided in the
Premises, and otherwise as similar to the Premises as reasonably
possible. If Tenant shall elect to require Landlord to provide such
alternative space to Tenant, then (i) Landlord shall reimburse Tenant
for all reasonable costs incurred by Tenant in relocating merchandise to
such alternative space, (ii) commencing from and after the date of
possession of such alternative space is provided to Tenant, Tenant shall
pay to Landlord Fixed Rent and additional charges for such alternative
space in accordance with the amounts required be paid by Tenant herein
with respect to the Premises, and (iii) Landlord, at its sole cost and
expense, shall pay any rent or additional charges required to be paid
with respect to such alternative space in excess of the amounts required
to be paid by Tenant herein.
Commencing on the date Tenant takes possession of the Remaining Option
Space, the Remaining Option Space shall be deemed incorporated into and made a
part of the "Premises" for all purposes under this Lease, and all terms and
conditions of this Lease shall be applicable to the Remaining Option Space.
The options provided in this Section 20.1 shall remain in full force and
effect notwithstanding Tenant's right of first refusal under Section 20.2 below.
After exercising any such option, unless such option is otherwise terminated in
accordance with the terms of this Section 20.1, Tenant shall not have the right
to withdraw any option exercised by Tenant herein as a result of the exercise by
Tenant of Tenant's right of first refusal provided under Section 20.2 below.
20.2 RIGHT OF FIRST REFUSAL. In addition to the options provided to
Tenant under Section 20.1 above, Tenant shall have a right of first refusal with
respect to any space within the Building during the term of this Lease;
provided, however, that nothing contained herein shall affect or modify the
option rights provided to Tenant under Section 20.1 above. If Landlord shall
desire to enter into any bonafide lease, license, or other agreement for the use
of any space within the Building, Landlord shall deliver written notice thereof
to Tenant, together with (i) a detailed description of all pertinent terms and
conditions of such proposed lease, license or other agreement and (ii) copies of
all applicable documents in connection with such proposed lease, license or
other agreement, including without limitation any letters of intent, leases,
license agreements, or other agreements (which notice, together with such
information and documents, shall be referred to herein as the "Offer"). Within
fifteen (15) days after receipt of the Offer, Tenant shall have the right to
lease the space within the Building which is the subject of the Offer (the
"Offer Space"), upon written notice to Landlord within such fifteen (15) day
period. If Tenant shall deliver such written notice to Landlord within such
fifteen (15) day period, then Landlord shall lease the Offer Space to Tenant
upon the terms and conditions set forth in the Offer.
If Tenant shall fail to deliver such written notice to Landlord within
such fifteen (15) day period, then Tenant shall be deemed to have rejected the
Offer. If Tenant shall reject the Offer (or shall be deemed to have rejected the
Offer), then Landlord shall have a period of one hundred eighty (180 days to
lease space to such other third party in accordance with the terms and
conditions of the Offer. If either (i) Landlord fails to execute a lease,
license agreement, or other agreement in accordance with the terms and
conditions of the Offer within such one hundred eighty (180) day period, or (ii)
the terms of the Offer shall be changed in any material manner, then Tenant
shall again have a right of first refusal with respect to such space in
accordance with the terms and conditions of this Section 20.2. Without
limitation, for purposes of this Section 20.2, a "material" change in the terms
and
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conditions of the Offer shall include any change which would affect the term,
economic obligations, or square footage, such to the Offer by 10% or more,
provided that absence of any such change shall not be deemed to be
"non-material" if any such other change would otherwise by "material" under the
circumstances. If Tenant shall reject any Offer (or shall be deemed to have
rejected any Offer), then Landlord shall execute a lease with a third party as
permitted herein with respect to the space which is subject to the Offer, then
at such time as such space again becomes vacant, Tenant shall again have a right
of first refusal with respect to such space in accordance with the terms and
conditions of this Section 20.2
ARTICLE XXI
MISCELLANEOUS
21.1 HOLDING OVER. In the event that Tenant or anyone claiming under
Tenant shall continue occupancy of the Premises after the expiration of the
original term of this Lease without any agreement in writing between Landlord
and Tenant with respect thereto, such occupancy shall not be deemed to extend or
renew the term of this Lease, but such occupancy shall continue as a tenancy
from month to month upon the covenants, provisions and conditions herein
contained and at one hundred fifty percent (150%) of the Fixed Rent in effect
upon the expiration of the term, prorated and payable for the period of such
occupancy, and Landlord shall have the right to terminate such tenancy upon five
(5) days written notice to Tenant.
21.2 WAIVERS. Failure of either party to complain of any act or omission
on the other party, no matter how long the same may continue, shall not be
deemed to be a waiver by such party of any of its rights hereunder. No waiver by
either party at any time, express or implied, of any breach of any provision of
this Lease shall be deemed a waiver of a breach of any other provision of this
Lease or a consent to any subsequent breach of the same or any other provision.
If any action by either party shall require the consent or approval of the other
party, such consent to or approval of such action on any one occasion shall not
be deemed a consent to or approval of said action on any subsequent occasion or
a consent to or approval of any other action on the same or any subsequent
occasion.
21.3 NOTICES. All notices and other communications authorized or
required hereunder shall be in writing and shall be given by mailing the same by
certified mail or registered mail, return receipt requested, postage prepaid,
and any such notice or other communication shall be deemed to have been given
when received by the party to whom such notice or other communication shall be
addressed, or on the date noted that the addressee has refused delivery or on
the date that the notice is returned to sender due to the inability of the
postal authorities to deliver. Notices shall be mailed to the address
hereinabove set forth or such other address as either party may hereafter
designate by notice to the other.
21.4 ATTORNEYS' FEES. If either party hereto be made or becomes a party
to any litigation commenced by or against the other party involving the
enforcement of any of the rights and remedies of such party, or arising on
account of the default of the other party in the performance of such party's
obligations hereunder, then the prevailing party in any such litigation, or the
party becoming involved in such litigation because of a claim against such other
party, as the case may be, shall receive from the other party all costs and
reasonable attorneys' fees incurred by such party in such litigation.
21.5 UNAVOIDABLE DELAYS. In the event that Landlord or Tenant shall be
delayed or hindered in or prevented from the performance of any act (other than
Tenant's
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obligation to make payments of Fixed Rent and other charges required hereunder),
by reason of strikes, lockouts, unavailability of materials, failure of power,
restrictive governmental laws or regulations, riots, insurrections, the act,
failure to act, or default of the other party, war or other reason beyond its
control (collectively, "Unavoidable Delays"), then performance of such act shall
be excused for the period for the delay and the period of the performance of
such act shall be extended for a period equivalent to the period of such delay.
Notwithstanding the foregoing, lack of funds shall not be deemed to be a cause
beyond control of either party.
21.6 ESTOPPEL CERTIFICATES. At any time and from time to time upon
either party's written request, the other party will execute, acknowledge and
deliver a certificate certifying that:
21.6.1 The Lease is in full force and effect;
21.6.2 The Lease has not been modified or amended in any
respect or, if modified, submitting copies of such modifications or
amendments;
21.6.3 There are no defaults thereunder (or if there are
defaults) specifying the nature of such defaults); and
21.6.4 Any other matter which Landlord may reasonably be
requested with respect to this Lease.
21.7 INVALIDITY OF PARTICULAR PROVISION. If any term or provision of
this Lease or the application hereto to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
21.8 CAPTIONS AND DEFINITIONS. The captions of the Sections of this
Lease are for convenience only and are not a part of this Lease and do not in
any way limit or amplify the terms and provisions of this Lease. Any pronoun
shall be read in the singular or plural number and in such gender as the context
may require. Except as in this Lease otherwise provided, the terms and
provisions of this Lease shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns.
21.9 ENTIRE AGREEMENT. This instrument contains the entire and only
agreement between the parties, and no oral statement or representations or prior
written matter not contained in this instrument shall have any force and effect.
This Lease shall not be modified in any way except by a writing executed by both
parties.
21.10 NO PARTNERSHIP. Landlord is not and shall not become by this Lease
or by any rights granted or reserved herein a partner or joint venturer of or
with Tenant in the conduct of Tenant's business or otherwise.
21.11 MEMORANDUM OF LEASE. This Lease shall not be recorded; however,
Landlord and Tenant shall, upon the request of either, execute and deliver a
Memorandum of Lease setting forth such information as may be necessary to
constitute a "short form lease", which Tenant shall, at its sole expense, cause
to be recorded in the County Recorder's Office having jurisdiction over the
Premises within thirty (30) days after the execution of said Memorandum of
Lease.
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21.12 BROKERS. Landlord and Tenant represent and warrant that they have
not dealt with any real estate broker in connection with this Lease.
21.13 GUARANTY. This Lease shall be guaranteed by Mazel Stores, Inc.
pursuant to the Guaranty in the form of Exhibit "E" attached hereto and made a
part hereof.
21.14.1 EXCULPATION. Tenant agrees to look solely to Landlord's then
interest in the Building and the Property (or the proceeds thereof) for recovery
of any judgment from Landlord, it being understood that Landlord's members,
representatives, agents, partners, shareholders, directors, employees,
fiduciaries and officers shall have no personal liability for any such judgment
or for the payment of any monetary obligation.
21.14.2 Except as otherwise provided herein, the individuals that
execute this lease on behalf of Landlord are acting as agent only for Landlord
and shall not in any event be held liable for the fulfillment or non-fulfillment
of any of the terms, covenants, or conditions of this Lease or for any action or
proceeding that may be taken by either party against the other, including, but
not limited to, any such action arising out of the performance or
non-performance by such agent of any act pursuant to either party's direction.
21.14.3 In the event Landlord conveys or transfers its interest in the
Property and/or Building, except as collateral security for a loan, upon such
conveyance or transfer Landlord (and in the case of any subsequent conveyances
or transfer the then grantor or transferor) shall be entirely released and
relieved from all liability with respect to the performance of any terms,
covenants and conditions on the part of Landlord to be performed hereunder from
and after the date of such conveyance or transfer so long as the grantee,
assignee or transferee thereof assumes all of such liability and obligations on
behalf of Landlord.
21.15 GOVERNING LAW. This Lease shall be construed by, and enforced in
accordance with, the laws of the state of New Jersey.
ARTICLE XXII
DISPUTE RESOLUTION
22.1 ARBITRATION. Upon the election of either party under this Lease, in
the event of any dispute, such dispute shall be resolved exclusively and finally
by arbitration conducted in accordance with this Article XXII. Notwithstanding
the foregoing, to the extent that such matter arises out of a claim, third party
claim or cross claim regarding a matter which is already the subject of
litigation in a court of competent jurisdiction in which the party bringing such
claim is already a party defendant, then such claim may be presented in such
court proceeding, and provided further that any dispute which is not
specifically required by any other provision of this Lease to be resolved by
arbitration shall not be subject to arbitration unless agreed in writing by
Landlord and Tenant.
22.1.1 In the event of a dispute subject to arbitration
hereunder, either party may serve written notice upon the other
demanding arbitration and identifying specifically the matters to be
arbitrated and the dispute shall be resolved by an arbitration panel
consisting of three (3) arbitrators. Each arbitrator appointed herein
shall be experienced in the leasing and/or management of properties
similar to the Property. Within ten (10) days after delivery of such
written notice, each party shall appoint one person to act as an
arbitrator, which arbitrator need not be a disinterested person. Once
the first two arbitrators are appointed, they shall appoint a third
arbitrator within ten (10) days of the date the last of them is
appointed, which
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arbitrator shall have no interest in the outcome of the dispute. If
either of the parties fails to appoint an arbitrator or the two
appointed arbitrators are unable to agree on the third arbitrator within
the allotted time, then either of the parties may request the American
Arbitration Association ("AAA") to provide a list of ten (10) names and
each party shall have five (5) days from the date of receipt of such
list within which to select five (5) names from the list of ten (10),
ranking them in order of preference, starting with number one through
five. Each unfilled position as arbitrator shall be filled by a person
selected by both parties and having the lowest number of combined points
in the combination of their total rankings as designated by each.
22.1.2 The third arbitrator selected shall serve as chairperson
of the panel. If more than one arbitrator is selected with the
assistance of the AAA, the arbitrator with the lowest number of combined
points shall serve as chairperson of the panel. All arbitrators selected
with the assistance of the AAA shall be compensated in the same amount
and in the same manner as arbitrators are paid under the rules of the
AAA for commercial arbitrations, which compensation shall be divided
equally between the parties, unless the arbitration panel determines
that equitable considerations require a different division of such
costs. Expenses of arbitrators selected by a party and of preparation
for the arbitration, including the cost of counsel and other expenses,
shall be borne by each party respectively. All other expenses not
specifically relating to the presentation of evidence by either party
shall be divided in the same manner as the compensation of the
arbitrators selected with the assistance of the AAA.
22.1.3 The parties shall cooperate in providing information a
reasonable amount of time before the commencement of the arbitration
hearing, but all such information which is requested by either party
shall be exchanged no later than ten (10) days before the scheduled date
of the commencement of the arbitration hearing. This shall include (i)
the names, addresses and occupations of witnesses or affiants and a
brief statement of the subject matter and nature of the testimony for
which they will be presented; and (ii) identification of and exchange of
all exhibits or documents to be offered or used at the arbitration
hearing. Unresolved discovery disputes may be brought to the attention
of the arbitration panel and such disputes shall be disposed of by the
panel.
22.1.4 There shall be a preliminary administrative conference
which shall be held not less than five (5) nor more than ten (10) days
before the arbitration hearing and at such preliminary conference the
parties shall specify issues to be resolved, stipulate to uncontested
facts, and consider any other matters which will expedite, or, if
unresolved, could delay the arbitration proceedings. In addition, at
this preliminary conference, the arbitration panel shall actively work
to seek out a settlement to the dispute(s) at issue.
22.1.5 The arbitration hearing shall occur not less than
twenty-five (25) days nor more than forty-five (45) days following the
date of the appointment of the third arbitrator unless extended by
mutual agreement of the parties in interest. The arbitrators shall have
complete discretion to establish the time and place of the arbitration.
22.1.6 Any matters regarding the arbitration not specifically
set forth or defined herein shall, to the extent not inconsistent
herewith, be administered pursuant to the Commercial Arbitration Rules
of the AAA. Except as may be
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specifically provided herein or in the Commercial Arbitration Rules of
the AAA, the arbitrators shall have discretion to establish and
determine the conduct and rules of the proceedings.
22.1.7 Both parties shall be permitted to present evidence
without regard to the formalities of the Rules of Evidence as used in
the courts of the State of New Jersey. The arbitrators, with the
guidance and arguments of the parties, may give such weight to the
matters presented as they deem appropriate.
22.1.8 The parties recognize that confidential information in
the nature of trade secrets and proprietary information may be disclosed
during the course of an arbitration proceeding. Except as required by
law, the parties agree to hold such information in confidence during and
following such proceedings. The parties agree that any confidential
information and proprietary information disclosed by one party to the
other before or during the arbitration will not be used for any purpose
other than in conducting the arbitration. Likewise, the arbitrators
shall keep such information confidential and by their acceptance of
appointment as arbitrators shall agree to be bound by this standard. All
confidential information and proprietary information disclosed by one
party to the other party in any form will be returned to the producing
party at the conclusion of the arbitration proceeding.
22.1.9 Subject to any limitation of remedies or damages set
forth in this Lease, the arbitrators shall have the authority to award
any remedy or relief a court of the State of New Jersey could order or
grant, including, without limitation, specific performance of any
obligation created under the agreement, the issuance of an injunction,
or the imposition of sanctions for abuse or frustration of the
arbitration process, but specifically excepting herefrom any punitive
and exemplary damages.
22.1.10 The final decision of the arbitrators as well as all
other decisions of the arbitrators shall be made by a vote of not less
than two-thirds of the arbitrators.
22.1.11 The decision of the arbitrators shall be final and
binding upon, and fully enforceable against, the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day
and year first above written by their respective officers thereunto duly
authorized.
200 HELEN STREET, LLC
a Delaware limited liability company
- -----------------------
By: 1st & 38th Associates, L.P., Member
By: 1st & 38th Realty Corp., General Partner
- -----------------------
By:
---------------------------------
Its:
---------------------------------
TENANT:
ODD JOB ACQUISITION CORP.,
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a Delaware corporation
By: ______________________________
______________________________ Its:______________________________
STATE OF ___________ )
) ss:
COUNTY OF __________ )
BEFORE ME, a Notary Public in and for said county and state, personally appeared
____________________________, the _______________ of 1st & 38th Realty Corp., a
____________ corporation, the general partner of 1st & 38th Associates, L.P.,
Member of 200 Helen Street, LLC, a Delaware limited liability company, who
acknowledged that ______________________ did sign the foregoing instrument and
that the same is _________ free act and deed of said Partnership and the free
act and deed of 200 Helen Street, LLC..
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
________________, _________________________, this ____________ day of
________________, 1998.
___________________________________
NOTARY PUBLIC
STATE OF OHIO )
) ss:
COUNTY OF CUYAHOGA )
BEFORE ME, a Notary Public in and for said county and state, personally
appeared the above-named Odd Job Acquisition Corporation, by
__________________________, its ____________________________-,who acknowledged
that he did sign the foregoing instrument and that the same is the free act and
deed of said corporation and his free act and deed personally and as such
________________..
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
_____________________, _______________, this _________- day of _______________,
1998.
___________________________________
NOTARY PUBLIC
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EXHIBIT "A"
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LEGAL DESCRIPTION
-----------------
TO BE ATTACHED
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EXHIBIT "B"
-----------
SITE PLAN
---------
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EXHIBIT "C"
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1. Repaired portions of the roof.
2. Repair of heater in back hallway of warehouse.
3. Repair portion of canopy over receiving area.
4. Walls demised by Landlord.
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EXHIBIT "D"
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TITLE EXCEPTIONS
----------------
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EXHIBIT "E"
-----------
TENANT'S SIGNAGE
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TO BE ATTACHED
--------------