I.H.F.&S. Multiple Occupancy Net Lease 6/00
This Lease, dated the ____________ day of _____________ 2001 __________,
between TWO SEVENTY - M - EDISON, a New Jersey general partnership having an
office at 205 Mill Road, Edison, New Jersey 08837 (hereinafter designated as
"Landlord"), and UNITED NATURAL TRADING CO., a Delaware corporation, d/b/a
HERSHEY IMPORT CO., INC., having an office at 700 East Lincoln Avenue, Rahway,
New Jersey 07065 (hereinafter designated as "Tenant").
W I T N E S S E T H:
FOR AND IN CONSIDERATION of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto do hereby covenant and agree
as follows:
ARTICLE I - DEMISE and PREMISES
Section 1.01. Demise and Premises. Landlord does hereby demise and lease
to Tenant and Tenant does hereby take and hire from Landlord a portion of all
that certain tract or parcel of land, together with the building and
improvements (the building and improvements being leased to Tenant hereunder
collectively hereinafter designated as the "Building") erected thereon by
Landlord, as provided herein, situate, lying and being in the Township of
Edison, County of Middlesex, State of New Jersey and shown on the plan(s)
designated Exhibit A, annexed hereto and made a part hereof, the lands aforesaid
being more particularly described on Exhibit B annexed hereto and made a part
hereof, together with the fixtures and equipment therein and the appurtenances
now or hereafter belonging or pertaining thereto (all referred to hereinafter as
the "Demised Premises" or the "Premises"), subject to the use, by various
tenants of the building of which the Demised Premises forms a part, of Common
Drive Easement Area 'A', Common Drive Easement Area 'B' and Common Drive
Easement Area 'C', as shown on Exhibit A, and further subject to the use, by
various tenants of a building on the adjacent parcel, of Common Drive Easement
Area 'A' and Common Drive Easement Area 'B'.
TO HAVE AND TO HOLD for the Term and at the rents as herein provided,
subject to the terms, covenants and conditions herein contained which each of
the parties hereto expressly covenants and agrees to keep, perform and observe.
ARTICLE II - TERM and COMMENCEMENT
Section 2.01. Term and Commencement.
(a) Term. The term of this Lease is five (5) years ("Term").
(b) Commencement of Term. The Term shall commence on April 1, 2002
(hereinafter designated as "Commencement Date") and shall terminate at 5:00 P.M.
(prevailing time) on March 31, 2007.
(c) Commencement Date Agreement. Within ten (10) days after the request of
either party, Landlord and Tenant shall execute, acknowledge and deliver to each
other duplicate originals of an agreement, in recordable form, setting forth the
Commencement Date.
Section 2.02. Right of Renewal. Provided this Lease is not in default, the
Tenant is granted a right of renewal of this Lease as follows: At the option of
the Tenant, the Term of this Lease may be extended for two (2) renewal period(s)
of three (3) years and two (2) years respectively, each by written notice to the
Landlord at least six (6) months prior to the expiration of the Term, or any
renewal Term thereof, as the Lease may be. Upon valid exercise of any such
rights of renewal, the terms of this Lease shall remain in full force and effect
except that Basic Rent shall be as stipulated in Section 5.03 and the Term shall
include the exercised renewal term.
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I.H.F.&S. M.O.N.L. 2/99
ARTICLE III - PLANS
Section 3.01. Plans. The parties hereto have approved plans of the
Building (hereinafter called "Plans") prepared by Abraham Hertzberg, Consulting
Engineer, P.C (hereinafter called "Architect") and attached hereto as Exhibit A.
It is to be noted that the Demised Premises consist of a portion of the
one-story building which encloses a total area of 270,000 square feet. The
portion of said building demised by said Lease as shown on the Plans comprises
110,125 square feet.
The Demised Premises also include the land under the portion of the
building aforesaid, as well as land outside of the building area within the
"Lease Line" as shown on Exhibit A. The Demised Premises are more particularly
described in Exhibit B.
Section 3.02. Work To Be Performed By Landlord. Landlord represents that
it will perform certain "Work To Be Performed By Landlord" as specifically set
forth on Exhibit A. Landlord shall perform such work in an expeditious manner
and there shall be no reduction in Basic Rent or additional rent pending the
completion of said work.
Landlord represents that Items numbered 1 (office portions only), 5
through 9, 12, 13 and 19 of the Work To Be Performed, and the Special Tenant
Improvements, as set forth in Section 28.02 below (all said work herein after
known as "Office Work"), and Items numbered 1 (balance of work), 10, 11 and 18
shall be completed on or before April 15, 2002. All other items shall be
completed on or before May 31, 2002.
ARTICLE IV - LANDLORD'S COVENANTS
Section 4.01. No Waiver by Tenant. No act of Tenant, including the taking
possession of the Demised Premises, shall constitute a waiver by Tenant of any
of Landlord's obligations respecting the Building or to correct any defects in
materials or workmanship as provided in this Lease.
Section 4.02. Landlord's Covenants Regarding Construction. Landlord
represents, warrants and covenants that on the Commencement Date:
(i) The Building will be structurally safe and sound and that all parts
thereof and all mechanical equipment therein (except such as may be installed by
Tenant) will be in good working order;
(ii) Liability of the Landlord as to the foregoing (i) shall be limited to
one (1) year and to the extent set forth in Section 10.01; and
(iii) All utilities serving the Demised Premises will have been installed
and paid for.
ARTICLE V - RENT and PAYMENT
Section 5.01. Rent During Term. Landlord reserves and Tenant covenants to
pay to Landlord during the Term of this Lease without demand or notice, and
without any setoff or deduction, a net basic rental (herein called "Basic Rent")
in advance on the first day of each and every month, as follows:
4/1/2002 - 3/31/2005 $385,437.50 payable $32,119.79/month
4/1/2005 - 3/31/2007 $423,981.25 payable $35,331.77/month
Notwithstanding the above, Tenant shall not be required to pay Basic Rent
until the business day following Landlord's delivery of written notice that the
Office Work has been substantially completed. Substantially Completed, as used
in this Section, is intended to constitute that stage of completion which will
permit the Tenant to use the office areas for their intended purpose without any
substantial interference by reason of any failure of Landlord to finish punch
list items.
Section 5.02. Payment of Rent. The Basic Rent and all additional rents and
moneys payable to Landlord under this Lease shall be paid at the above address
of Landlord or at such other address or to any entity Landlord transfers the
management of the real property leased hereunder to as may be specified by
Landlord from time to time by notice given to Tenant.
Section 5.03. Rent During Renewal Term(s). In the event the Tenant shall
exercise the option(s) to renew this Lease for any of the renewal periods
provided for in Section 2.02, the annual Basic Rent during each renewal period
shall be adjusted for the applicable term thereof by multiplying $400,855.00 by
the "Index Change" hereinafter defined, provided, however, that the Basic Rent
during the renewal period(s) shall not be less than the Basic Rent paid upon
expiration of the immediately preceding period.
Section 5.04. The first monthly installment of Basic Rent shall be due and
payable by Tenant on the Commencement Date. Subsequent monthly installments of
Basic Rent shall be due and payable by Tenant on or before the first day of each
month following the Commencement Date and continuing thereafter until the
expiration of the Term. Basic Rent for the Fractional Month, if any, shall be
prorated and shall be due and payable by Tenant on the first day of the month
following the month in which the Commencement Date occurs.
Upon the execution of this Lease, Tenant shall pay to Landlord a deposit
in the amount of the first monthly installment of Basic Rent which deposit
shall be held by Landlord as additional security for Tenant's performance of
this Lease and applied by Landlord against the first monthly installment of
Basic Rent due on the Commencement Date.
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I.H.F.&S. M.O.N.L. 2/99
ARTICLE VI - TAXES and IMPOSITIONS
Section 6.01. Real Estate Taxes. Tenant shall pay to Landlord, as
additional rent, its pro rata share of real estate taxes and assessments levied
or assessed against the property of which the Demised Premises forms a part
(hereinafter "Landlord's Property") and all those real estate taxes and
assessments levied or assessed against the Demised Premises or any part thereof
applicable to the period of time Tenant leases the Demised Premises, whether
payable during the Term of the Lease, or subsequent to the expiration of this
Lease. This obligation shall include those real estate taxes and assessments
presently in effect, as well as those enacted in the future.
Tenant acknowledges that Real Estate Taxes are currently payable to the
local assessing authority on a quarterly basis and that such tax bills represent
payment of Real Estate Taxes applicable to the quarter in which the bill is
issued.
Such payment as to all real estate taxes or assessments levied or assessed
against Landlord's Property or the Demised Premises or any part thereof, shall
be made by Tenant to Landlord within ten (10) days after Tenant's receipt of an
invoice or statement from Landlord setting forth the amount of such taxes or
assessments and Tenant's pro rata share thereof. Such invoice or statement shall
include a copy of the Real Estate Tax bill or assessment for which Tenant is
responsible.
The real estate taxes and assessments aforesaid shall be apportioned by
Landlord among tenants or users of Landlord's Property, including Landlord, to
arrive at Tenant's pro rata share of real estate taxes and assessments. The
computation of Tenant's pro rata share of taxes on land and buildings shall be
made by multiplying the real estate taxes or assessments levied against the
Landlord on Landlord's Property of which the Demised Premises forms a part by a
fraction the numerator of which is the number of square feet of building
premises demised to Tenant and the denominator of which is the total number of
square feet in the building assessed by the taxing authorities. In the
calculation of the total number of square feet of building premises demised to
Tenant, finished space, i.e. offices, including toilet areas, shall be weighted
in determination of the numerator in the fraction described in this subsection
by doubling the square footage devoted to such finished space.
To the extent that Tenant shall be liable for the payment of other taxes
under this Article VI which may be assessed against Landlord or for which
Landlord may become liable by reason of its estate or interest in the Demised
Premises, Tenant shall pay its pro rata share thereof in accordance with the
payment procedure set forth in the third paragraph of this Section 6.01.
Section 6.02. Other Taxes and Payment Thereof. In addition to the pro rata
taxes and assessments described in Section 6.01, Tenant shall pay pro rata in
accordance with Section 6.01 for each and every item of expense in the nature of
a tax or charge or assessment for which Landlord is or shall become liable by
reason of its estate or interest in the Demised Premises, or any part thereof,
including, without limiting the generality thereof, all personal property taxes,
gross receipts taxes, use and occupancy taxes, and excise taxes levied or
assessed against Landlord or Tenant by reason of the use, occupancy or any other
activity by the Tenant in connection with the Demised Premises or any part
thereof, or which may be levied or assessed or imposed upon any rents or rental
income, as such, payable to Landlord or payable to Tenant from any subtenant in
connection with the Demised Premises or any part thereof. There is expressly
included among Tenant's obligations with respect to taxes and assessments as set
forth in this Article any tax which may be levied against Landlord enacted as
part of tax reform legislation in lieu of taxes presently levied against real
estate or any portion thereof.
Section 6.03. Certain Taxes Not Payable by Tenant. Tenant shall not be
required to pay any of the following taxes or governmental impositions which
shall be levied or imposed against Landlord by any governmental authority:
(i) Any estate, inheritance, devolution. succession, transfer, legacy or
gift tax which may be imposed upon or with respect to any transfer of
Landlord's interest in the Demised Premises;
(ii) Any capital stock tax or other tax imposed against Landlord for the
privilege of doing business;
(iii) Any income tax levied upon or against the profits of the Landlord
from all sources.
Section 6.04. Apportionment During First and Last Year of Term. Any bill
for real estate taxes and assessments (including installments pursuant to
Section 6.05 below) which includes a period of time within the Term and a period
of time prior to the commencement of the Term or a period of time after the
expiration of the Term shall be apportioned between Landlord and Tenant so that
Tenant shall only be responsible for that portion of the bill that covers real
estate taxes or assessments assessed for the period of time within the Term.
Accordingly, Tenant shall remain responsible for any and all such bills issued
after the Term of this Lease that are applicable to the period of time within
the Lease Term.
Section 6.05. Assessments Payable in Installments. Landlord agrees to
exercise its option, if applicable, to pay any assessments levied by any
governmental or municipal agency or authority (other than periodic real estate
tax payments covered by Section 6.01 above) in annual installments.
Tenant shall pay the installments within ten (10) days of its receipt of
an invoice for same.
Section 6.06. Contest. In the event Landlord contests any assessment for
taxes or assessments by the taxing authorities of the Township of Edison Tenant
agrees that Tenant will reimburse Landlord for its pro rata share of all costs
of such appeal ("Tenant's Costs") within ten (10) days of Tenant's receipt of an
invoice for same, except as set forth below. Such invoice shall include a copy
of all the relevant supporting documentation.
Notwithstanding the foregoing, Tenant's responsibility to pay Tenant's
Costs shall be limited to an amount equal to Tenant's Savings in Real Estate
Taxes. For the purpose of this Section 6.06, "Tenant's Savings" shall be equal
to:
Tenant's pro rata share of refunds obtained by Landlord as a result of
such appeal; and/or
the product of the assessed value of Landlord's Property prior to the
appeal less the assessed value of Landlord's Property after the appeal
multiplied by Tenant's pro rata share of real estate taxes and further
multiplied by the tax rate (in each and every applicable year) used by
Edison Township.
In the event Tenant's Costs exceed Tenant's Savings, Tenant's Costs
payable, in any one year, shall be limited Tenant's Savings for that year. In
such event however, Landlord shall be permitted to invoice Tenant for such
excess each and every year (limited in amount to that year's Tenant's Savings)
until the earlier of:
the end of Term (including any renewal periods); or
Tenant has paid, in full, Tenant's Costs.
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I.H.F.&S. M.O.N.L. 2/99
ARTICLE III - PLANS
Section 3.01. Plans. The parties hereto have approved plans of the
Building (hereinafter called "Plans") prepared by Abraham Hertzberg, Consulting
Engineer, P.C (hereinafter called "Architect") and attached hereto as Exhibit A.
It is to be noted that the Demised Premises consist of a portion of the
one-story building which encloses a total area of 270,000 square feet. The
portion of said building demised by said Lease as shown on the Plans comprises
110,125 square feet.
The Demised Premises also include the land under the portion of the
building aforesaid, as well as land outside of the building area within the
"Lease Line" as shown on Exhibit A. The Demised Premises are more particularly
described in Exhibit B.
Section 3.02. Work To Be Performed By Landlord. Landlord represents that
it will perform certain "Work To Be Performed By Landlord" as specifically set
forth on Exhibit A. Landlord shall perform such work in an expeditious manner
and there shall be no reduction in Basic Rent or additional rent pending the
completion of said work.
Landlord represents that Items numbered 1 (office portions only), 5
through 9, 12, 13 and 19 of the Work To Be Performed, and the Special Tenant
Improvements, as set forth in Section 28.02 below (all said work herein after
known as "Office Work"), and Items numbered 1 (balance of work), 10, 11 and 18
shall be completed on or before April 15, 2002. All other items shall be
completed on or before May 31, 2002.
ARTICLE IV - LANDLORD'S COVENANTS
Section 4.01. No Waiver by Tenant. No act of Tenant, including the taking
possession of the Demised Premises, shall constitute a waiver by Tenant of any
of Landlord's obligations respecting the Building or to correct any defects in
materials or workmanship as provided in this Lease.
Section 4.02. Landlord's Covenants Regarding Construction. Landlord
represents, warrants and covenants that on the Commencement Date:
(i) The Building will be structurally safe and sound and that all parts
thereof and all mechanical equipment therein (except such as may be installed by
Tenant) will be in good working order;
(ii) Liability of the Landlord as to the foregoing (i) shall be limited to
one (1) year and to the extent set forth in Section 10.01; and
(iii) All utilities serving the Demised Premises will have been installed
and paid for.
ARTICLE V - RENT and PAYMENT
Section 5.01. Rent During Term. Landlord reserves and Tenant covenants to
pay to Landlord during the Term of this Lease without demand or notice, and
without any setoff or deduction, a net basic rental (herein called "Basic Rent")
in advance on the first day of each and every month, as follows:
4/1/2002 - 3/31/2005 $385,437.50 payable $32,119.79/month
4/1/2005 - 3/31/2007 $423,981.25 payable $35,331.77/month
Notwithstanding the above, Tenant shall not be required to pay Basic Rent
until the business day following Landlord's delivery of written notice that the
Office Work has been substantially completed. Substantially Completed, as used
in this Section, is intended to constitute that stage of completion which will
permit the Tenant to use the office areas for their intended purpose without any
substantial interference by reason of any failure of Landlord to finish punch
list items.
Section 5.02. Payment of Rent. The Basic Rent and all additional rents and
moneys payable to Landlord under this Lease shall be paid at the above address
of Landlord or at such other address or to any entity Landlord transfers the
management of the real property leased hereunder to as may be specified by
Landlord from time to time by notice given to Tenant.
Section 5.03. Rent During Renewal Term(s). In the event the Tenant shall
exercise the option(s) to renew this Lease for any of the renewal periods
provided for in Section 2.02, the annual Basic Rent during each renewal period
shall be adjusted for the applicable term thereof by multiplying $400,855.00 by
the "Index Change" hereinafter defined, provided, however, that the Basic Rent
during the renewal period(s) shall not be less than the Basic Rent paid upon
expiration of the immediately preceding period.
Section 5.04. The first monthly installment of Basic Rent shall be due and
payable by Tenant on the Commencement Date. Subsequent monthly installments of
Basic Rent shall be due and payable by Tenant on or before the first day of each
month following the Commencement Date and continuing thereafter until the
expiration of the Term. Basic Rent for the Fractional Month, if any, shall be
prorated and shall be due and payable by Tenant on the first day of the month
following the month in which the Commencement Date occurs.
Upon the execution of this Lease, Tenant shall pay to Landlord a deposit
in the amount of the first monthly installment of Basic Rent which deposit
shall be held by Landlord as additional security for Tenant's performance of
this Lease and applied by Landlord against the first monthly installment of
Basic Rent due on the Commencement Date.
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ARTICLE VI - TAXES and IMPOSITIONS
Section 6.01. Real Estate Taxes. Tenant shall pay to Landlord, as
additional rent, its pro rata share of real estate taxes and assessments levied
or assessed against the property of which the Demised Premises forms a part
(hereinafter "Landlord's Property") and all those real estate taxes and
assessments levied or assessed against the Demised Premises or any part thereof
applicable to the period of time Tenant leases the Demised Premises, whether
payable during the Term of the Lease, or subsequent to the expiration of this
Lease. This obligation shall include those real estate taxes and assessments
presently in effect, as well as those enacted in the future.
Tenant acknowledges that Real Estate Taxes are currently payable to the
local assessing authority on a quarterly basis and that such tax bills represent
payment of Real Estate Taxes applicable to the quarter in which the bill is
issued.
Such payment as to all real estate taxes or assessments levied or assessed
against Landlord's Property or the Demised Premises or any part thereof, shall
be made by Tenant to Landlord within ten (10) days after Tenant's receipt of an
invoice or statement from Landlord setting forth the amount of such taxes or
assessments and Tenant's pro rata share thereof. Such invoice or statement shall
include a copy of the Real Estate Tax bill or assessment for which Tenant is
responsible.
The real estate taxes and assessments aforesaid shall be apportioned by
Landlord among tenants or users of Landlord's Property, including Landlord, to
arrive at Tenant's pro rata share of real estate taxes and assessments. The
computation of Tenant's pro rata share of taxes on land and buildings shall be
made by multiplying the real estate taxes or assessments levied against the
Landlord on Landlord's Property of which the Demised Premises forms a part by a
fraction the numerator of which is the number of square feet of building
premises demised to Tenant and the denominator of which is the total number of
square feet in the building assessed by the taxing authorities. In the
calculation of the total number of square feet of building premises demised to
Tenant, finished space, i.e. offices, including toilet areas, shall be weighted
in determination of the numerator in the fraction described in this subsection
by doubling the square footage devoted to such finished space.
To the extent that Tenant shall be liable for the payment of other taxes
under this Article VI which may be assessed against Landlord or for which
Landlord may become liable by reason of its estate or interest in the Demised
Premises, Tenant shall pay its pro rata share thereof in accordance with the
payment procedure set forth in the third paragraph of this Section 6.01.
Section 6.02. Other Taxes and Payment Thereof. In addition to the pro rata
taxes and assessments described in Section 6.01, Tenant shall pay pro rata in
accordance with Section 6.01 for each and every item of expense in the nature of
a tax or charge or assessment for which Landlord is or shall become liable by
reason of its estate or interest in the Demised Premises, or any part thereof,
including, without limiting the generality thereof, all personal property taxes,
gross receipts taxes, use and occupancy taxes, and excise taxes levied or
assessed against Landlord or Tenant by reason of the use, occupancy or any other
activity by the Tenant in connection with the Demised Premises or any part
thereof, or which may be levied or assessed or imposed upon any rents or rental
income, as such, payable to Landlord or payable to Tenant from any subtenant in
connection with the Demised Premises or any part thereof. There is expressly
included among Tenant's obligations with respect to taxes and assessments as set
forth in this Article any tax which may be levied against Landlord enacted as
part of tax reform legislation in lieu of taxes presently levied against real
estate or any portion thereof.
Section 6.03. Certain Taxes Not Payable by Tenant. Tenant shall not be
required to pay any of the following taxes or governmental impositions which
shall be levied or imposed against Landlord by any governmental authority:
(i) Any estate, inheritance, devolution. succession, transfer, legacy or
gift tax which may be imposed upon or with respect to any transfer of
Landlord's interest in the Demised Premises;
(ii) Any capital stock tax or other tax imposed against Landlord for the
privilege of doing business;
(iii) Any income tax levied upon or against the profits of the Landlord
from all sources.
Section 6.04. Apportionment During First and Last Year of Term. Any bill
for real estate taxes and assessments (including installments pursuant to
Section 6.05 below) which includes a period of time within the Term and a period
of time prior to the commencement of the Term or a period of time after the
expiration of the Term shall be apportioned between Landlord and Tenant so that
Tenant shall only be responsible for that portion of the bill that covers real
estate taxes or assessments assessed for the period of time within the Term.
Accordingly, Tenant shall remain responsible for any and all such bills issued
after the Term of this Lease that are applicable to the period of time within
the Lease Term.
Section 6.05. Assessments Payable in Installments. Landlord agrees to
exercise its option, if applicable, to pay any assessments levied by any
governmental or municipal agency or authority (other than periodic real estate
tax payments covered by Section 6.01 above) in annual installments.
Tenant shall pay the installments within ten (10) days of its receipt of
an invoice for same.
Section 6.06. Contest. In the event Landlord contests any assessment for
taxes or assessments by the taxing authorities of the Township of Edison Tenant
agrees that Tenant will reimburse Landlord for its pro rata share of all costs
of such appeal ("Tenant's Costs") within ten (10) days of Tenant's receipt of an
invoice for same, except as set forth below. Such invoice shall include a copy
of all the relevant supporting documentation.
Notwithstanding the foregoing, Tenant's responsibility to pay Tenant's
Costs shall be limited to an amount equal to Tenant's Savings in Real Estate
Taxes. For the purpose of this Section 6.06, "Tenant's Savings" shall be equal
to:
Tenant's pro rata share of refunds obtained by Landlord as a result of
such appeal; and/or
the product of the assessed value of Landlord's Property prior to the
appeal less the assessed value of Landlord's Property after the appeal
multiplied by Tenant's pro rata share of real estate taxes and further
multiplied by the tax rate (in each and every applicable year) used by
Edison Township.
In the event Tenant's Costs exceed Tenant's Savings, Tenant's Costs
payable, in any one year, shall be limited Tenant's Savings for that year. In
such event however, Landlord shall be permitted to invoice Tenant for such
excess each and every year (limited in amount to that year's Tenant's Savings)
until the earlier of:
the end of Term (including any renewal periods); or
Tenant has paid, in full, Tenant's Costs.
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Section 6.07. Alternate Method of Payment of Taxes. At the request of
Tenant or Landlord, Landlord shall prepare an estimate of Real Estate Taxes
and/or Fire Service Billing applicable to the current calendar year (whether
payable in that year or later) and shall give notice to Tenant of the monthly
payment to be made to Landlord. The first monthly payment shall be due within
ten (10) days of Tenant's receipt of Landlord's notice. Subsequent payments
shall thereafter be due and payable simultaneously with the payment of Basic
Rent.
The parties further agree that each year Landlord shall submit to Tenant a
statement, with copies of actual bills, setting forth the amount of Real Estate
Taxes and/or Fire Service Billing applicable to the current year or the previous
year, as applicable. Such statement shall include either an Invoice for
additional monies due or a reimbursment to Tenant as appropriate. Payment of the
aforesaid Invoice shall be made by Tenant to Landlord within ten (10) days of
Tenant's receipt of same. Such statement shall be accompanied by a revised
estimate of the monthly payment due for the then current calendar year (or a
portion thereof if this Lease shall be terminated during such calendar year).
ARTICLE VII - INSURANCE
Section 7.01. Coverage and Amount. Tenant covenants and agrees to pay to
Landlord, as additional rent, during the Term of this Lease its pro rata share,
to be calculated as hereinafter provided, of premiums for insurance to be
procured by Landlord, insuring Landlord, the coverage to be as follows:
(i) Insurance on the Building and building equipment, fixtures and
appurtenances, against loss and damage including coverage by an insurance
policy with Agreed Amount Endorsement and Replacement Cost Endorsement, in
an amount no less than One Hundred Percent (100%) of the full replacement
value thereof (exclusive of cost of excavation and land) from time to
time;
(ii) Rent insurance covering the risks described in (i) above in the
amount equal to twelve (12) months of the Basic Rent and additional rent
payable;
(iii) If and when obtainable and generally carried on buildings of
the type to be leased hereunder, war risks and nuclear damage, as well as
flood and earthquake insurance for the full replacement value of the
Demised Premises if such insurance is required by any institutional first
mortgagee of the Premises;
(iv) Any additional insurance coverages as may be reasonably
required from time to time, by Landlord, in the exercise of its reasonable
judgement, or by any institutional first mortgagee of the Premises; and
(v) Commercial General Liability Insurance for claims arising out of
the ownership, operation and control of the Demised Premises as to
liability of Landlord in limits of not less than Five Million Dollars
($5,000,000.00) combined single limit arising out of one occurrence. The
Landlord may insure his liability under his Blanket Comprehensive General
Liability Policy, Umbrella Liability Policy, and Environmental Impairment
Liability Policy, and the Tenant will reimburse the Landlord for the
Tenant's pro rata share of the premium.
Landlord's procurement and maintenance of insurance covering any of the
risks or damage which are the responsibility of Tenant under this Lease to
remedy, repair and/or insure against shall not diminish, impair or derogate in
any way whatsoever any of Tenant's obligations under this Lease or the waiver
and release set forth in Section 7.06 below.
Section 7.02. Tenant's Pro Rata Share of Insurance Premiums. Tenant's pro
rata share of insurance premiums shall be calculated in accordance with Section
6.01 of Article VI. In addition to the premiums to be paid as aforesaid by
Tenant, in the event of loss to the Demised Premises as a result of an insured
casualty, any deductible amount on the policy coverage in question shall be paid
by Tenant. In the event of a loss to the Demised Premises and any other portion
of the Building of which the Demised Premises is a part, any deductible amount
on the policy coverage in question shall be paid by Tenant to the extent of the
proportion which the damage to the Demised Premises bears to the total damage to
the Building.
Section 7.03. Method of Payment of Pro Rata Insurance Premiums. Landlord
shall furnish to Tenant statements with calculations of the actual Premiums paid
by the Landlord for the coverage aforesaid, and the pro rata share thereof which
is Tenant's responsibility under the Lease. Tenant will pay to Landlord, as
additional rent, its pro rata share of such Premiums, plus a 10% handling
charge, within ten (10) days of Tenant's receipt of said statement.
Section 7.04. Insurance Procured by Tenant.
(a) Tenant covenants and agrees to provide on or before the earlier of (i)
the Commencement Date, or (ii) Tenant's, or any third party acting in behalf of
Tenant, entering upon the Demised Premises for any purpose; and to keep in force
during the Term and Renewal Term, if any, Commercial General Liability Insurance
relating to the Demised Premises and its appurtenances on an occurrence basis,
including a Contractual Liability Insurance Endorsement and a Tenant's Legal
Liability Insurance Endorsement (as same is defined and regulated by the
Department of Insurance for the State of New Jersey) insuring the risk of
Tenant's failure to perform Tenant's obligations under this Lease, including,
but not limited to, Tenant's indemnity of Landlord herein, with minimum limits
of liability in the amount of $5,000,000.00 in respect of bodily injury or death
and/or property damage combined. Said insurance shall be primary with respect to
any loss. The minimum limit of the Tenant's Legal Liability Insurance
Endorsement shall be $2,000,000.00,
(b) Tenant covenants and agrees to provide insurance coverage for any and
all trade fixtures and personal property (including, but not limited to, any
furniture, machinery, goods, products or supplies) of Tenant, which Tenant may
have upon or within the Demised Premises. Landlord shall not be responsible to
insure any of Tenant's trade fixtures or personal property.
(c) The aforesaid liability insurance coverage shall be issued in the name
of Tenant naming Landlord, and any entity Landlord transfers the management of
the real property leased hereunder to, as additional insureds. Said liability
insurance coverage shall provide that it shall not be cancelable, nor shall the
coverage thereunder be reduced, without at least thirty (30) days prior written
notice to said additional insureds and shall be written by one or more
responsible insurance companies reasonably satisfactory to Landlord, in form
satisfactory to Landlord; all such insurance may be carried under a blanket
policy covering the Premises or any other of Tenant's facilities. The minimum
limits of such Insurance shall in no way limit or diminish Tenant's liability
pursuant to Article XX hereto. Tenant shall deliver to Landlord a certificate of
insurance to show compliance with its obligations hereunder on or before the
earlier of (i) the Commencement Date; or (ii) Tenant's entering upon the Demised
Premises for any purpose and thereafter at least thirty (30) days prior to the
expiration of each policy, together with satisfactory evidence of the payment of
premiums thereof.
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Section 7.05. Limits of All Insurance. The limits of all insurance
contemplated in this Lease shall be subject to change at any time and from time
to time after the Commencement Date as the Landlord, in the exercise of its
reasonable judgement, or mortgagee may deem same necessary for adequate
protection.
Section 7.06. Fire Insurance Premiums and Requirements. Tenant agrees, at
its own cost and expense, to comply with all requirements of the insurance
carriers providing the insurance coverage in force pursuant to the provisions
hereof and to the applicable sections of the "National Fire Codes" as published
by the National Fire Protection Association. If, at any time, and from time to
time, as a result of or in connection with any failure by Tenant to comply with
the foregoing sentence or any act or omission or commission by Tenant, its
employees, agents, contractors or licensees, or as a result of or in connection
with the use to which the Premises are put (notwithstanding that such use may be
for the purposes herein permitted or that such use may have been consented to by
Landlord) the fire insurance premium(s) applicable to the Premises, or the
Building in which same are located, or to any other premises in said Building
(including rent insurance relating thereto) shall be increased as a result of
such act, use, or occupancy; Tenant agrees it will pay to Landlord on demand as
additional rent such portion of the premiums for all fire insurance policies in
force with respect to the premises of the Landlord of which the Demised Premises
are a part (including rent insurance relating thereto) as shall be attributable
to such act, use or occupancy.
Section 7.07. Waiver of Subrogation. Tenant hereby waives any right of
recovery it might otherwise have against Landlord or its insurance company(ies)
for losses or damages caused actively or passively, in whole or in part, by any
of the risks Tenant is required to insure against in accordance with Section
7.04 above (whether or not such coverage is in effect).
Tenant shall obtain a waiver of subrogation endorsement, if necessary, to
permit the waiver of subrogation and release as set forth herein in connection
with any insurance coverage obtained by Tenant, it being understood that Tenant
shall look solely to its insurer for reimbursement.
Landlord hereby waives any right of recovery it might otherwise have
against Tenant or its insurance company(ies) for losses or damages caused by
fire, acts of nature, the public enemy, civil commotion or other events beyond
the reasonable control of Tenant.
Landlord shall obtain a waiver of subrogation endorsement, if necessary,
to permit the waiver of subrogation and release as set forth herein in
connection with any insurance coverage obtained by Landlord, it being understood
that Landlord shall look solely to its insurer for reimbursement.
ARTICLE VIII - CONSTRUCTION OR OTHER WORK
Section 8.01. Conditions as to Repairs, Alterations or Other Work.
Whenever any repairs, alterations, changes or other work in, on, to or about the
Premises shall be made by either Landlord or Tenant as provided in this Lease:
(i) The work shall be done in a good and workmanlike manner and in
compliance with all applicable laws, ordinances and codes, and all
applicable governmental rules, regulations and requirements, and in
accordance with the standards, if any, of the Board of Fire Underwriters,
or other organizations exercising the functions of a board of fire
underwriters whose jurisdiction includes the Demised Premises;
(ii) All materials and workmanship shall be of good quality, and in
case of repairs, restoration, changes, additions, alterations or
improvements, shall be at least equal to the original and consistent with
the original construction as to design, appearance, function and
wearability;
(iii) All said work shall be paid for as promptly as is practicable
and consistent with good business practices under the then existing
circumstances;
(iv) Such work shall be done as promptly as is possible and
practicable under the existing circumstances;
(v) The Commercial General Liability Insurance provided for in
Section 7.04 shall be extended by Tenant, if necessary, to apply to the
work being done, and evidence thereof shall be delivered to the Landlord
prior to the commencement of such work. Tenant's failure to have such
insurance extended or its failure to provide such certificate shall in no
way limit or diminish Tenant's liability pursuant to Article XX below;
In the case of Tenant(s) contractor(s) performing such work,
Tenant's contractor(s) shall carry Commercial General Liability Insurance
relating to the work being done on an occurrence basis, with minimum
limits of liability in the amount of $1,000,000.00 in respect of bodily
injury or death and/or property damage combined; evidence thereof shall be
obtained by Tenant prior to the commencement of such work. The aforesaid
liability insurance shall be issued in the name of Tenant's contractor(s)
naming Tenant and Landlord as additional insureds and shall be written by
one or more responsible insurance companies. The minimum insurance limits
of Tenant's contractor(s), or such contractor(s) failure to obtain or
retain such insurance, shall in no way limit or diminish Tenant's
liability pursuant to Article XX below;
(vi) The party doing or having work done shall carry or cause its
contractors, if any, to carry worker's compensation insurance as required
by law in connection with such work, and evidence thereof shall be
delivered to the other party prior to the commencement of such work;
(vii) Title to all buildings, building fixtures and improvements
erected and installed by Tenant (but not Tenant's trade fixtures, however
the same may be attached to the realty) shall become the property of
Landlord upon the expiration or earlier termination of this Lease;
(viii) The contractor or the party performing the work shall obtain
an official certificate of occupancy or an amended certificate of
occupancy upon completion of the work in each instance if under local
practice such certificates of occupancy are issued or required in
connection with such work. The party performing the work shall also obtain
the certificate from the Board of Fire Underwriters, or other organization
exercising the same functions, whose jurisdiction includes the Demised
Premises in each instance, certifying that the electrical work has been
property completed whenever the work done involves any electrical work for
which such a certificate is issued under local practice. If, under local
practice, official certificates of occupancy are not issued or required by
a governmental officer or department, or if the Board of Fire
Underwriters, or other such organization does not issue certificates on
proper completion of electrical work, this covenant shall be satisfied
upon issuance of such certifications by an architect or engineer licensed
in the state in which the Demised Premises is located; and
(ix) Landlord agrees to join in the applications for all permits and
authorizations whenever necessary.
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ARTICLE IX - MECHANIC'S LIENS
Section 9.01. Mechanic's Liens Prohibited. Tenant shall not suffer any
mechanic's lien to be filed against the Demised Premises by reason of work,
labor, services or materials performed or furnished to Tenant or to anyone
holding the Demised Premises, or any part thereof, through or under Tenant. If
any mechanic's lien or any notice of intention to file a mechanic's lien shall
at any time be filed against the Demised Premises, (unless the labor or
materials were actually performed for or furnished to Landlord in connection
with its obligations under this Lease) Tenant shall at Tenant's cost, within
fourteen (14) days after knowledge or notice of the filing of any mechanic's
lien cause the same to be removed or discharged of record by payment, bond,
order of a court of competent jurisdiction, or otherwise.
Section 9.02. Landlord's Remedy for Tenant's Breach. If Tenant shall fail
to remove or discharge any mechanic's lien or any notice of intention to file a
mechanic's lien within the prescribed time, then in addition to any other right
or remedy of Landlord, Landlord may, at its option, procure the removal or
discharge of same by payment or bond or otherwise. Any amount paid by Landlord
for such purpose, together with all legal and other expenses of Landlord in
procuring the removal or discharge of such lien or notice of intention and
together with interest thereon at the Lease Interest Rate (as hereinafter
defined) shall be and become due and payable by Tenant to Landlord as additional
rent, and in the event of Tenant's failure to pay therefor within fifteen (15)
days after demand, the same shall be added to and be due and payable with the
next month's rent.
Section 9.03. Non-Consent of Landlord to Filing of Liens. Nothing
contained in this Lease shall be construed as a consent on the part of Landlord
to subject Landlord's estate in the Demised Premises to any lien or liability
arising out of Tenant's use or occupancy of the Premises.
ARTICLE X - REPAIRS and MAINTENANCE
Section 10.01. (a) Landlord's Covenants. Landlord at its sole cost and
expense shall remedy all defects in workmanship and materials in the Demised
Premises, evidence of which shall appear or be discovered within twelve (12)
months after the Commencement Date. Landlord shall not be liable under this
Section however unless Tenant shall give Landlord notice specifying such defects
or the need for remedying them on or before the last day of the twelfth month of
the Term.
In addition, Landlord shall repair any roof leaks which shall appear or be
discovered within sixty (60) months after the Commencement Date. Landlord shall
not be liable under this Section however unless Tenant shall give Landlord
notice of the need for such repairs on or before last day of said sixty (60)
month period.
(b) Structural Components. In addition Landlord at its sole cost and
expense shall remedy all defects in workmanship and materials in the Demised
Premises with respect to the Structural Components of the Building, evidence of
which shall appear or be discovered within sixty (60) months after the
Commencement Date, and shall repair all damage to the Demised Premises caused
thereby. For the purpose of this paragraph, this term Structural Components
shall be limited to the structural steel framing including roof framing, the
foundations, and the masonry perimeter walls (excluding all windows, plate
glass, and doors). Landlord shall not be liable under this Section however
unless Tenant shall give Landlord notice specifying such defects or the need for
remedying them on or before the last day of the sixtieth (60th) month of the
Term.
(c) Alterations by Tenant. Notwithstanding any of the above, if Tenant
shall make any changes or alterations, structural or otherwise, to any portion
of the Building, Landlord's obligations under this Section 10.01 shall not
thereafter extend to any portion of the Building affected by such change or
alteration.
(d) Limited Liability of Landlord. Landlord's liability under the
provisions of this Article X is limited to repair or correction of the defect or
condition to be rectified, and Landlord shall not be liable for any loss or
damage, direct or consequential. Landlord shall not be required to make any
repairs caused by Tenant's abuse or misuse, or lack of routine maintenance, of
the Demised Premises.
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Section 10.02. Tenant's Obligations. Except for items which are the
obligation of Landlord under Section 10.01 hereof, Tenant, for and during the
Term of this Lease, at Tenant's sole cost and expense, assumes all
responsibility and obligation for the physical condition of the Demised Premises
and shall:
(a) Keep and maintain in good repair, as well as paint and decorate, the
exterior and interior of the Demised Premises including, but not
limited to, all structural repairs, roof, floor, doors, windows,
dock levelors, heating, ventilating and air conditioning systems,
electrical system, sprinkler system and plumbing facilities. Damage
to party walls shall be repaired by Tenant if the cause of the
damage is initiated on the Demised Premises;
(b) Keep and maintain the Demised Premises in a clean and sanitary
condition free from rubbish, flammable or other objectionable
materials;
(c) Perform all normal routine adjustments and maintenance on all
equipment, including but not limited to filter changes, cleaning and
lubrication of heating, ventilating and air conditioning systems;
(d) Repair or replace as required, all mechanical and working parts used
in connection with doors, windows, dock levelors, the heating, air
conditioning, electrical, plumbing and sprinkler and other systems;
(e) Keep, maintain and repair all drainage facilities including drainage
pipes, ditches and detention areas, as well as the lawns, shrubbery,
driveways and parking areas, including the keeping of the driveways,
sidewalks and steps and parking areas free and clear of ice and
snow; and
(f) Comply with all present and future applicable Federal, State and
local laws, ordinances and codes and all applicable rules,
regulations and requirements, including without limitations, those
relating to environmental protection and the requirement set forth
in the applicable sections of the "National Fire Codes" as published
by the National Fire Protection Association; and pay any and all
costs of compliance and all fines and penalties imposed upon
Landlord, or consequential damages incurred, by reason of any
violations thereof.
Without limiting the generality of the foregoing, Tenant acknowledges and
agrees that it shall promptly repair any and all damage to the Demised Premises,
whether caused by Tenant or Tenant's employees, agents, guests, invitees,
licensees, subtenants, related persons, contract warehousemen (or similar),
however caused, including, without limitation, any damage caused by the
operation of forklifts or other equipment in or about the Demised Premises.
Section 10.03. Landlord's Remedy for Tenant's Breach. In the event Tenant
shall fail or neglect to comply with the aforesaid statutes, ordinances, rules,
orders, regulations and requirements referred to in this Article X, or any of
them, or in the event Tenant shall fail or neglect to make any repairs or
replacements required of it, then Landlord or Landlord's agents may, after
compliance with the notice requirements set forth in Article XIII hereof, enter
in and upon the Demised Premises to make an inspection and make said repairs or
replacements and comply with any and all said statutes, ordinances, rules,
orders, regulations or requirements Tenant agrees to reimburse Landlord for its
cost to perform any of the foregoing (including 15% overhead), as additional
rent, within ten (10) days of Tenant's receipt of an invoice for same. This
provision is in addition to the right of the Landlord to terminate this Lease by
reason of any default on the part of Tenant, and Landlord's remedies provided in
Article XXI.
Landlord's cost to perform the foregoing shall not include its cost for
any office personnel involved in the foregoing.
ARTICLE XI - FIRE, DAMAGE and DESTRUCTION
Section 11.01. Notice of Casualty, Continuation of Lease, Restoration. In
the event of the total destruction of the Building or the Demised Premises by
fire or otherwise during the Term created hereby or prior thereto, or in the
event of such partial destruction thereof: (a) Tenant shall immediately notify
Landlord in writing thereof; (b) upon receipt of said notice Landlord shall have
its Architect make a full and comprehensive report on the damage of the Premises
and/or Building, and ascertain the number of days to complete the repair of the
Building or Premises. Unless such damages can, in the opinion of Landlord's
Architect, be repaired within one hundred eighty (180) days after its
occurrence, this Lease and the Term hereby created shall cease and become null
and void from the date of such damage or destruction, and Tenant shall upon
written notice from Landlord, then immediately surrender the Demised Premises
and all interest therein to Landlord, and Tenant shall pay Basic Rent and any
additional rent within said Term only to the time of such damage or destruction.
If, however, in such Architect's opinion, the damage aforesaid can be
repaired within one hundred eighty (180) days from the occurrence thereof,
Landlord (or Tenant, if such repair is Tenant's responsibility under Article X)
shall repair or rebuild the Demised Premises with all reasonable speed, and this
Lease shall continue in full force and effect, but there shall be an abatement
of Basic Rent and any additional rent to the extent of insurance payments
received from rent insurance.
Notwithstanding anything contained in this Section 11.01 to the contrary,
in no event shall Landlord be required to expend more to reconstruct, repair or
restore the Building than the amount actually received by Landlord from the
proceeds of the insurance carried by Landlord.
In the event the repair work is Tenant's responsibility as aforesaid, and
the estimated cost to perform the required repair exceeds $10,000.00, Tenant
acknowledges that Landlord shall have the right to require detailed drawings and
written specifications of the work to be performed, prior to Tenant's
commencement of the required repair. Landlord shall have the right to review the
submitted plans and specifications to ensure the repair work's compliance with
all relevant provisions of this Lease, including, without limitation, Article
VIII. Tenant shall not commence any repair work until Landlord has issued
written approval of the plans and specifications.
Section 11.02. Statutory Conditions. Tenant hereby expressly waives the
benefit of N.J.S.A. 46:8-6 and 46:8-7. Tenant agrees that it will not be
relieved of the obligation to pay basic net rent or any additional rent in case
of damage to or destruction of the Demised Premises except as specifically
provided in this Lease.
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ARTICLE XII - EMINENT DOMAIN
Section 12.01. Total Taking. In the event that any public authority or
agency holding the power of eminent domain under applicable law shall at any
time during the term of this Lease condemn or acquire title in lieu of
condemnation of substantially all of the Demised Premises, this Lease and the
Term hereby created shall terminate and expire as of the date upon which title
shall vest in such authority, and Tenant shall pay Basic Rent and any additional
rent only to the time of such vesting of title.
Section 12.02. Partial Taking. If there shall be only a partial taking or
condemnation as aforesaid which shall not substantially prevent Tenant's use of
the Demised Premises for purposes of its business, this Lease shall thereafter
continue as to the untaken part and Tenant shall be entitled to a reduction in
the Basic Rent in such proportion and in such manner as shall be fair and
equitable, and if the parties hereto cannot agree thereto the dispute shall be
settled by arbitration as set forth in this Lease.
Section 12.03. Restoration by Landlord. If there shall be a partial taking
and this Lease shall continue as to the remaining balance of the Demised
Premises, Landlord, at its own expense and as promptly as practicable, shall
restore the remaining building and land as nearly as may be practicable to their
former condition.
Section 12.04. Award to Landlord. Landlord reserves the exclusive right to
negotiate with the condemning authority with respect to any proposed award, and
all damages and compensation paid for the taking under the power of eminent
domain, whether for the whole or a part of the Demised Premises shall belong to
and be the property of Landlord, except that Landlord consents to efforts by
Tenant separately to seek additional compensation from the condemning authority
for the loss of depreciated value of leasehold improvements installed by Tenant
resulting from the taking, provided always, that Tenant hereby releases and
disclaims any interest or right whatsoever in the award or compensation offered
or paid by the condemning authority to the Landlord for the loss of the fee.
There is expressly excluded from any right of compensation to the Tenant and the
Tenant expressly waives, any claim against the condemning authority for
dimunition in the value of the leasehold.
Section 12.05. Notwithstanding any of the paragraphs above pertaining to
eminent domain, there is expressly reserved to the Tenant the right to recover
against the condemning authority for its actual reasonable expenses in moving
its business from the Demised Premises and its actual direct losses in tangible
personal property by virtue of the taking, all as contemplated in the Relocation
Assistance Act (R.S. 20:4-1 et seq), and rules and regulations adopted by the
Department of Community Affairs of the State of New Jersey pursuant to the
legislation aforesaid, and applicable regulations of the State Department of
Transportation contemplated in the said Relocation Assistance Act.
ARTICLE XIII - NOTICES
Section 13.01. Notices. Every notice required or permitted under this
Lease shall, unless otherwise specifically provided herein, be given in writing
and shall be sent by United States Certified Mail, return receipt requested,
addressed by the party giving, making or sending the same to the Landlord at the
address first above given, and to the Tenant at the Demised Premises or to such
other address as either party may designate from time to time by a notice given
to the other party. Notice shall be deemed to be given upon receipt, provided,
however, that in the event a party shall refuse to accept delivery of said
Certified Mail, the notice shall nevertheless be deemed to be given upon the
date of refusal to accept delivery and further provided that if the postal
service is unable to deliver said Certified Mail the notice shall nevertheless
be deemed to be given as of the date of the Postal Service's second notice of
attempted delivery. Notwithstanding the above, a notice of change of address
shall not be effective until received.
Landlord may, at its option, substitute for service by United States First
Class Certified Mail, service by Federal Express or similar overnight courier,
provided that such courier obtains and makes available to its customers evidence
of delivery. Notice given via such courier shall be deemed to be given upon
receipt.
ARTICLE XIV - MEMORANDUM of LEASE
Section 14.01, Memorandum of Lease. Tenant shall not record this Lease,
but if either party should desire to record a short form Memorandum of Lease
setting forth only the parties, the Demised Premises and the Term, such
Memorandum of Lease shall be executed, acknowledged and delivered by both
parties upon notice from either party.
ARTICLE XV - USE
Section 15.01. Use. The Demised Premises shall be used and occupied by
Tenant as an office, warehouse and distribution facility for non-hazardous and
non-caustic products and for those uses set forth on Exhibit E.
This shall not be construed to restrict the Tenant's use of the Demised
Premises for any lawful purposes in connection with its business, provided that
such uses shall be in accordance with all applicable laws and do not damage the
Building. Tenant shall not have the right to use the Demised Premises for the
manufacturing, processing, transferring or piping of any liquid or storage of
any Hazardous Materials, except for diminimus amounts of 'hazardous' office
supplies.
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ARTICLE XVI - ASSIGNMENT, SUBLETTING, ETC.
Section 16.01. Assignment, Subletting, Etc. Tenant shall not sell, assign,
mortgage, pledge, or, in any manner, transfer or encumber this Lease or any
estate or interest hereunder (hereinafter designated as Assignment), or sublet
the Demised Premises or any part thereof without the previous written consent of
the Landlord; provided, however, with respect to a corporation into which Tenant
shall have been merged or consolidated or which shall have purchased all or
substantially all of the assets of Tenant, such previous written consent by
Landlord shall not be necessary. In the event of any Assignment of this Lease or
subletting of the Demised Premises, Tenant, nevertheless, shall remain primarily
liable for the payment of the Basic Rent and all additional rents, and the
performance of Tenant's other covenants and obligations under this Lease
including any amendments thereto. In the event of an Assignment of this Lease,
the assignee shall assume, by written recordable instrument reasonably
satisfactory to Landlord, the due performance of all of Tenant's obligations
under this Lease. A true copy of such Assignment and the original assumption
agreement or the sublease, as the case may be, shall be delivered to Landlord
within ten (10) days of the effective date thereof. No Assignment shall be valid
or effective in the absence of such assumption.
No consent to any Assignment of this Lease or subletting of any or all of
the Demised Premises shall be deemed or be construed as a consent by Landlord to
any further or additional Assignment or subletting. Notwithstanding anything
hereinabove contained to the contrary, Landlord's consent shall not be
unreasonably withheld provided that (i) Tenant is not in default hereunder
(without regard to whether a notice of default has been served pursuant to
Section 21.01); (ii) Tenant shall provide Landlord with access to the Demised
Premises for inspection and testing thereof; (iii) the use by the proposed
assignee or subtenant does not, in Landlord's sole discretion, adversely affect
the Demised Premises by virtue of environmentally related factors or lessen the
present or future value of the Premises; and (iv) does not increase risk or
endanger the Building or the occupants thereof.
Notwithstanding anything contained herein to the contrary, Landlord may
refuse to permit Tenant to assign this Lease or sublet to a third party any
portion of the Demised Premises if Landlord agrees to sublet back the Demised
Premises from Tenant under the same terms and conditions as set forth in this
Lease and for the remaining Term of this Lease.
ARTICLE XVII - WARRANTY of TITLE
Section 17.01. Warranty of Title. Landlord covenants, represents and
warrants that Landlord on the Commencement Date will be the sole and absolute
owner of the fee title to the Demised Premises and has the right to execute this
Lease, and that on the Commencement Date there will be no liens affecting the
Demised Premises, or any covenants, easements or restrictions adversely
affecting Tenant's use of the Demised Premises except as set forth in Exhibit B.
Such exceptions are herein referred to as Permitted Encumbrances.
ARTICLE XVIII - SUBORDINATION
Section 18.01. Subordination to Mortgages. At the option of the Landlord,
this Lease shall either be:
(a) Subject and subordinate to all mortgages which may now or
hereafter affect the Demised Premises, and to all renewals, modifications,
consolidations, replacements or extensions thereof; or
(b) Paramount in priority as an encumbrance against the Demised
Premises with respect to the lien of any mortgage which may now or
hereafter affect the Demised Premises and to all renewals, modifications,
consolidations, replacements and extensions thereof.
Section 18.02. Subordination, Non-Disturbance and Attornment Agreement.
Tenant agrees, upon at least ten (10) days prior written request from Landlord,
to execute with Landlord and the holder of any mortgage on the Building, a
Subordination, Non-Disturbance and Attornment Agreement substantially in the
form annexed hereto as Exhibit D. Landlord agrees, upon written request from
Tenant, to use all reasonable efforts to have the holder of any mortgage on the
Building execute a Subordination, Non-Disturbance and Attornment Agreement
substantially in the form annexed hereto as Exhibit D. In the event any such
mortgagee imposes a fee for its review, execution and recording of said
Subordination, Non-Disturbance and Attornment Agreement, and said Agreement is
being executed at Tenant's request, Tenant agrees that it shall pay to Landlord,
as additional rent, the amount of said fee within ten (10) days of Landlord
delivering a fully executed copy of said Agreement to Tenant.
Section 18.03. Tenant's Certificate. Tenant further agrees, upon at least
ten (10) days prior written notice from Landlord to certify by written
instruments duty executed and acknowledged to any mortgagee or purchaser, or any
proposed mortgage lender, or purchaser, that this Lease is in full force and
effect or, if not, in what respect it is not; that this Lease has not been
modified, or to the extent to which it has been modified; that there are no
existing defaults hereunder to the best of the knowledge of the party so
certifying, or specifying the defaults, if any; and any additional statements of
fact that may be requested or required from time to time by any mortgagee or
purchaser, or any proposed mortgage lender or purchaser. Any such certification
shall be without prejudice as between the Landlord and Tenant, it being agreed
that any document required hereunder shall not be used in any litigation between
Landlord and Tenant.
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ARTICLE XIX - QUIET ENJOYMENT
Section 19.01. Quiet Enjoyment. Tenant, upon payment of the Basic Rent and
all additional rents and all sums herein reserved and due, and upon the due
performance of all of the terms, covenants and conditions herein contained on
the Tenant's part to be kept and performed, shall and may at all times during
the Term hereby granted peaceably and quietly enjoy the Demised Premises,
subject, however, to the terms of this Lease.
ARTICLE XX - INDEMNIFICATION
Section 20.01. Indemnification of Landlord. Tenant agrees to indemnify and
save Landlord harmless from and against all liability, and all loss, cost and
expense, including reasonable attorneys' fees, arising out of Tenant's
operation, maintenance, management and control of the Premises or in connection
with (a) any loss, injury or damage whatsoever caused by Tenant, its employees
or agents, (b) any breach of this Lease by Tenant, (c) any act or omission of
Tenant occurring in, on, or about the Premises or on the sidewalks adjoining the
same, or (d) any contest or proceeding brought by Tenant as provided for herein.
However, notwithstanding anything herein contained to the contrary, Tenant shall
not be obligated or required hereunder, to hold harmless or indemnify Landlord
from or against any liability, loss, cost, expense, or claim to the extent
arising from any act, omission or negligence of Landlord or its agents,
servants, employees or contractors. The provisions of this Section 20.01 shall
survive the expiration or earlier termination of this Lease.
ARTICLE XXI - DEFAULTS and REMEDIES
Section 21.01. Tenant's Defaults. The occurrence of any of the following
events shall constitute an event of default under this Lease:
(i) Tenant's failure to pay, in full, any installment of Basic Rent or
additional rent when it is first due;
(ii) Tenant's failure to perform any of its obligations under this Lease
if such failure has caused loss or damage that cannot promptly be cured by
Tenant;
(iii) Tenant's failure to perform any of its obligations under this Lease
(other than those contemplated by clauses (i) and (ii) of this Section 21.01)
within thirty (30) days after the receipt of notice specifying the default,
unless complete performance of such obligation within such thirty (30) day
period is not possible using diligence and expedience, then within a reasonable
time after Tenant's receipt of Landlord's notice, so long as Tenant shall have
commenced performance of the work required to correct the default and Tenant
shall continue to perform such remedy, diligently and expediently, through to
completion of performance;
(iv) The discovery that any representation made by Tenant in this Lease
shall have been inaccurate or incomplete in any material respect on the date it
was made;
(v) The sale, transfer or other disposition of any interest of Tenant in
the Demised Premises, whether voluntarily or by way of execution or other legal
process;
(vi) Tenant, if a corporation, shall cease to exist as a corporation in
good standing in the state of its incorporation, or the state in which the
Demised Premises is located, or Tenant, if a partnership or other entity, shall
be dissolved or otherwise liquidated; or
(vii) Tenant shall use any property adjoining the Demises Premises for any
purpose whatsoever, without the written permission of the property owner and any
third party who may have an interest in such property (including, without
limitation, holding an interest as tenant, easement holder) or do any act
(including, without limitation, the parking or staging of any vehicle) that
interferes with the operations of Landlord, or any third party who may have an
interest in property owned by Landlord or managed by Manager (including, without
limitation, those holding an interest as tenant or easement holder), or any
adjacent property owner.
Upon the occurrence of an event of default, Landlord shall deliver written
notice to Tenant specifying the default (hereinafter "First Notice"). At the
expiration of the time period specified in (iii) above, or at the expiration of
ten (10) days in any other event of default, Landlord may (x) cancel and
terminate this Lease on not less than five (5) days written notice (hereinafter
"Second Notice") to Tenant, and on the date specified in the Second Notice the
Term of this Lease shall terminate and expire, and Tenant shall then quit and
surrender the premises to Landlord, but Tenant shall remain liable as
hereinafter provided and/or (y) at any time thereafter re-enter and resume
possession of the Premises by summary proceedings, an action in ejectment or by
force or otherwise and dispossess or remove Tenant and other occupants and their
effects and hold the Premises as if this Lease had not been made; and Tenant
waives the service of any additional notice of intention to re-enter or to
institute legal proceedings to that end.
Notwithstanding the foregoing, in the event:
Tenant is contesting, in good faith, the payment of such additional rent;
and
Tenant has provided Landlord with written notice of such contest prior to
the expiration of the aforestated ten (10) days; and
Such written notice contains the basis for Tenant's contest, including any
and all required supporting documentation; and
Tenant diligently prosecutes such contest in an expeditious manner; and
Tenant has deposited the amount of the additional rent billed by Landlord
with an escrow agent;
then, Landlord agrees to delay sending the aforesaid Second Notice until ten
(10) days after Tenant's receipt of Landlord's Response.
Landlord agrees to deliver to Tenant written notice of it's response to
Tenant's written contest setting forth Landlord's basis for the validity of the
additional rent billing ("Landlord's Response"), including any and all required
supporting documentation.
Section 21.02. Landlord's Remedies. If this Lease shall be terminated or
if Landlord shall be entitled to re-enter the Demised Premises and dispossess or
remove Tenant under the provisions of Section 21.01, the Landlord, or Landlord's
agents or servants, may immediately or at any time thereafter re-enter the
Demised Premises and remove therefrom the Tenant, its agents, employees,
servants, licensees, and any subtenants and other persons, firms or
corporations, and all or any of its or their property therefrom, either by
summary dispossess proceedings or by any suitable action or proceeding at law or
by force or otherwise, without being liable to indictment, prosecution or
damages therefor, and repossess and enjoy said Premises together with all
additions, alterations and improvements thereto.
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Section 21.03. Landlord's Damages. In case of such termination, re-entry,
or dispossess or removal by summary proceedings or otherwise, the annual rent
and all other charges required to be paid by the Tenant hereunder shall
thereupon become due and be paid up to the time of such termination, re-entry,
or dispossess or removal, and the Tenant shall also pay to the Landlord all
reasonable expenses which the Landlord may then or thereafter incur for
necessary legal expenses, attorneys' fees, brokerage commissions, and all other
necessary costs paid or incurred by the Landlord for restoring the Demised
Premises to good order and condition and for altering and otherwise preparing
the same for re-letting. The Landlord may, at any time and from time to time,
re-let the Demised Premises, in whole or part, either in its own name or as
agent of the Tenant, for a term or terms which, at the Landlord's option, may be
for the remainder of the then current Term of this Lease, or for any longer or
shorter period, and (unless the statute or rule of law which governs the
proceedings in which such damages are to be proved, limits or shall limit the
amount of such claim capable of being so proved and allowed, in which case the
Landlord shall be entitled to prove as and for liquidated damages and have
allowed an amount equal to the maximum allowed by or under any such statute or
rule of law) the Tenant shall be obligated to, and shall pay to the Landlord as
damages, upon demand, and the Landlord shall be entitled to recover of and from
the Tenant, at the election of the Landlord, either:
(a) liquidated damages, in an amount which, at the time of such
termination, re-entry or dispossess or removal by the Landlord, as the case may
be, is equal to the excess, if any, of the then present value of the
installments of annual rent reserved hereunder, for the period which would
otherwise have constituted the unexpired portion of the then current Term of
this Lease, over the then present value of the market rental value of the
Demised Premises for such unexpired portion of the then current Term of this
Lease, discounted at the rate of six percent (6 %) per annum; or
(b) damages (payable in monthly installments, in advance, on the first day
of each calendar month following such termination, re-entry or dispossess, and
continuing until the date originally fixed herein for the expiration of the then
current Term of this Lease) in any amount or amounts equal to the excess, if
any, of the sums of the aggregate expenses paid by the Landlord during the month
immediately preceding such calendar month for all such items as, by the terms of
this Lease, are required to be paid by the Tenant, plus an amount equal to the
amount of the installment of annual rent which would have been payable by the
Tenant hereunder in respect to such calendar month, had this Lease and the
Demised Term not been so terminated, and had the Landlord not so re-entered,
over the sum of rents, if any, collected by or accruing to the Landlord in
respect to such calendar month pursuant to such re-letting or any holding over
by any subtenants of the Tenant, plus the amount of the rental value of any
portion of the Demised Premises occupied by the Landlord or any agent of the
Landlord. Any suit for any month shall not prejudice in any way the rights of
the Landlord to collect the deficiency for any subsequent month by a similar
proceeding. The Landlord, at its option and at its expense, may make such
alterations, repairs and/or decorations in the Demised Premises as in its
reasonable judgment the Landlord considers advisable and necessary, and the
making of such alterations, repairs and/or decorations shall not operate or be
construed to release the Tenant from liability hereunder. The Landlord shall in
no event be liable in any way whatsoever for failure to re-let the Demised
Premises, or in the event that the Demised Premises are re-let, for failure to
collect rent thereof under such re-letting; and in no event shall the Tenant be
entitled to receive any excess of such annual rents over the sums payable by the
Tenant to the Landlord hereunder but such excess shall be credited to the unpaid
rentals due hereunder, and to the expenses of re-letting and preparing for
re-letting as provided in this Section 21.03. Suit or suits for the recovery of
such damages, or any installments thereof, may be brought by the Landlord from
time to time at its election, and nothing herein contained shall be deemed to
require the Landlord to postpone suit until the date when the Term of this Lease
would have expired if it has not been terminated under the provisions of this
Lease, or under any provision of law, or had the Landlord not re-entered into or
upon the Demised Premises.
Section 21.04. Waiver of Redemption. Tenant hereby waives all rights of
redemption to which Tenant or any person claiming under Tenant might be
entitled, after an abandonment of the Premises, or after a surrender and
acceptance of the Premises and the Tenant's leasehold estate, or after a
dispossession of Tenant from the Demised Premises, or after a termination of
this Lease, or after a judgment against Tenant in action in an ejectment, or
after the issuance of a final order or warrant of dispossess in a summary
proceeding, or any other proceeding or action authorized by any rule of law or
statute now or hereafter in force or effect.
ARTICLE XXII - BANKRUPTCY
Section 22.01. Bankruptcy, Insolvency, Etc. If the Tenant shall have
applied or consented to the appointment of a custodian, receiver, trustee or
liquidator, or other court appointed fiduciary of all or a substantial part of
its property; or a custodian shall have been appointed with or without the
consent of the Tenant; or Tenant is generally not paying its debts as they
become due by means of available assets and the fair use of credit; or has made
a general assignment for the benefit of creditors; or has filed a voluntary
petition in bankruptcy, or a petition or an answer seeking reorganization or an
arrangement with creditors or seeking to take advantage of any insolvency law,
or an answer admitting the material allegations of a petition in any bankruptcy,
reorganization or insolvency proceeding; or has taken corporate action for the
purpose of effecting any of the foregoing, or if within 60 days after the
commencement of any proceeding against the Tenant seeking any reorganization,
rehabilitation, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under the present or any future federal bankruptcy code or any
present or future applicable federal, state or other statute or law, such
proceeding shall not have been dismissed; or if, within 60 days after the
appointment of any trustee, receiver, custodian, liquidator, or other court
appointed fiduciary of the Tenant (without the consent or acquiescence of such
party), or of all or any substantial part of its property or any of the leased
Premises, such order or appointment shall not have been vacated or stayed on
appeal or otherwise or if, within 60 days after the expiration of any such stay,
such order or appointment shall not have been vacated, the occurrence of any one
of such contingencies shall be deemed to constitute and shall be construed as a
repudiation by Tenant of Tenant's obligations hereunder and shall cause this
Lease ipso facto to be cancelled and terminated, without thereby releasing
Tenant; and upon such termination Landlord shall have the immediate right to
re-enter the Demised Premises and to remove all persons and property therefrom
and this Lease shall not be treated as an asset of the Tenant's estate and
neither the Tenant nor anyone claiming by, through or under Tenant by virtue of
any law or any order of any Court shall be entitled to the possession of the
Demised Premises or to remain in the possession thereof. Upon the termination of
this Lease, as aforesaid, Landlord shall have the right to retain as partial
damages, and not as a penalty, any prepaid rents and any security deposited by
Tenant hereunder and Landlord shall also be entitled to exercise such rights and
remedies to recover from Tenant as damages such amounts as are specified in
Article XXI thereof, unless any statute or rule of law governing the proceedings
in which such damages are to be proved shall lawfully limit the amount of such
claims capable of being so proved, in which case Landlord shall be entitled to
recover, as and for liquidated damages, the maximum amount which may be allowed
under any such statute or rule of law. Tenant, if the subject of a bankruptcy
proceeding, hereby consents to the immediate termination, annulment and vacation
of the automatic stay provisions of the Bankruptcy Code to permit Landlord to
exercise all rights set forth herein. As used in this Article XXII, the term
"Tenant" shall be deemed to include Tenant and its successors and assigns and
the guarantor of the Tenant's obligations under this Lease, if any.
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ARTICLE XXIII - CHANGES, ALTERATIONS
Section 23.01. Changes or Alterations. If Landlord shall have first
consented thereto in writing, Tenant may make structural and nonstructural
changes, alterations, additions and improvements to the Demised Premises.
Landlord's reasonable consent shall be granted if the proposed work does not:
(a) Impair the structural soundness of the Building;
(b) Lessen the present and future value of the Building or improvement;
(c) Change the type of use from a general warehouse to a specialty type of
building with a limited resale or re-letting market; or
(d) Increase risk, endanger the Building or occupants in the Building, or
create or increase risk of contamination.
If Landlord requests, Tenant shall deliver to Landlord assurance,
reasonably satisfactory to Landlord, of Tenant's financial ability to complete
and pay for such changes, alterations, additions or improvements, and
restorations thereof. In any event, however, Tenant may, without Landlord's
consent, make nonstructural changes, alterations, additions and improvements
costing in each case less than $10,000.00 (hereinafter called Minor
Alterations). Tenant shall give written notice to Landlord of each change,
alteration, addition and improvement costing more than $10,000.00 and obtain
Landlord's consent as provided herein. In the event, however, that as the result
of any changes, alterations, additions and improvements made by Tenant with or
without Landlord's consent, the Building or any other part of the Demised
Premises is damaged thereby, Tenant, at Tenant's sole cost, shall be obligated
and responsible to repair said damage forthwith and restore the Building or
Demised Premises to the condition they were in just prior to the damage.
Landlord shall have no obligation to make any repairs with respect to any
changes, alterations, additions, and improvements made by Tenant. Tenant need
not obtain or furnish Landlord any certificate of completion or otherwise
(unless required by law) with respect to Minor Alterations. Landlord reserves
the right to require Tenant to restore the Premises to the original condition as
nearly as may be practical, upon the expiration or sooner termination of this
Lease.
ARTICLE XXIV - END OF TERM
Section 24.01. End of Term.
(a) Condition of the Demised Premises. Tenant shall, on the last day of
the Term, or upon its earlier termination, peaceably and quietly surrender and
deliver up to Landlord the Demised Premises broom clean, including all
buildings, alterations, rebuildings, replacements, changes or additions placed
by Tenant thereon (except as expressly provided to the contrary in Section
23.01), with all equipment in or appurtenant thereto, in as good condition and
repair as when delivered to Tenant; subject, however, to reasonable wear and
tear. Damage to any portion of the Demised Premises, including, but not limited
to, damage to doors, windows, walls, columns, lighting fixtures, heating,
ventilating and air conditioning equipment, dock levelers, stairs, railings and
handrails, notwithstanding that such damaged portions may continue to function,
shall not be included in any definition of reasonable wear and tear. Broken
items or equipment; or anything rendered dysfunctional as a result of Tenant's
abuse or misuse of Tenant's lack of routine maintenance, repair or replacement
as required under Article VIII, Article X or elsewhere in this Lease shall also
not be included in any definition of reasonable wear and tear.
(b) Removal of Trade Fixtures. Notwithstanding anything to the contrary
contained in this Lease, and provided Tenant is not in default hereunder beyond
any grace period to cure same, Tenant may remove all trade fixtures installed or
paid for by it, however affixed to the realty. If any trade fixtures or personal
property are not removed by the end or earlier termination of the Term, they
shall be deemed abandoned if Landlord shall so elect, and if Landlord shall not
so elect, it may cause the removal and storage of same at Tenant's risk and
expense, but if the Term ends by reason of a condemnation or destruction of all
or part of the Premises, Tenant shall have a reasonable time to effect such
removal without being deemed to abandon said property. Tenant, at Tenant's cost,
shall repair any damage caused to the Demised Premises by reason of such
removal. All obligations of Tenant under this paragraph shall survive the
termination of this Lease.
(c) Completion of Repairs. Any repair or restoration required to be
performed by Tenant in order for Tenant to comply with its obligations under
this Section 24.01 shall be completed on or before thirty (30) days prior to the
end of the Term, or any applicable Renewal Term, or earlier termination of this
Lease ("End of Term"). On or about thirty (30) days prior to the End of Term,
representatives of Landlord and Tenant shall inspect the Demised Premises to
determine what repair or restoration remain to be completed, if any. If Tenant
has not completed said repair or restoration within the time set forth above
Landlord shall promptly advise Tenant of such fact and shall specify the work
which has not been completed. Notwithstanding any other provisions of this
Lease, Tenant's failure to complete such repair or restoration by no later than
fifteen (15) days prior to the End of Term shall, without further notice,
constitute an uncured event of default hereunder. Landlord shall have the right
to inspect the Demised Premises to determine whether Tenant has completed such
work within the time periods provided herein. During the last thirty (30) days
prior to the End of Term, Landlord shall be permitted access to the Demised
Premises for the purpose of performing such work as Landlord may desire, in
which event Landlord shall use reasonable efforts not to interfere with Tenant's
activities at the Demised Premises. Landlord agrees to provide Tenant with
reasonable advance notice prior to its entering onto the Demised Premises to
perform such work.
Section 24.02, Landlord's Right to Inspect and Exhibit Signs. Tenant shall
permit Landlord or its agents to enter the Demised Premises during business
hours on not less than 48 hours prior notice for the purpose of inspecting or
showing the Demised Premises to persons wishing to purchase the same and, at any
time within one year prior to the expiration of the Term, to persons wishing to
rent same; and Tenant shall, within one year prior to the expiration of the
Term, permit the usual notice of "To Let", "For Rent" and "For Sale" to be
placed at reasonable locations on the Demised Premises and to remain thereon
without hindrance and molestation.
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ARTICLE XXV - ARBITRATION
Section 25.01. Method of Arbitrating Disputes; Disputes to be Arbitrated.
All disagreements, controversies and disputes (other than with regard to the
payment of the Basic Rent and additional rent) between the parties arising out
of or related to interpretation, performance, validity or enforcement of any of
the provisions of this Lease shall be resolved by arbitration pursuant to the
Rules of Commercial Arbitration of the American Arbitration Association. Such
arbitration proceedings to be held in the State in which the Demised Premises
are located, at the offices of the American Arbitration Association located in
the city nearest to the Demised Premises. The parties intend that the scope of
matters to be arbitrable is all inclusive, and submission to arbitration is
intended to constitute the exclusive remedy available to the parties. The award
to the arbitrators shall be binding and conclusive upon the parties and may be
entered as a final judgment in any court of competent jurisdiction. The
submission to arbitration as contemplated herein and completion of proceedings
in arbitration by award of the arbitrators shall be a condition precedent to the
right of either party to commence an action with respect to any of such matters
in any other court or forum. The parties agree that any arbitration proceeding
shall be conducted before a panel of three (3) arbitrators. Nothing contained in
this Article XXV shall preclude either party from bringing an action in a court
of competent jurisdiction for the sole purpose of seeking equitable relief.
Section 25.02. No Abatement in Rent Pending Arbitration; Limited Right of
Offset After Award. The parties expressly agree that during the pendency of any
arbitration proceeding and until such dispute shall have been resolved thereby,
Tenant shall continue to pay the Basic Rent and any additional rent stipulated
herein without any abatement or deduction. If the dispute as resolved by the
Arbitrators results in an award to Tenant, and Landlord does not promptly
satisfy the said award in accordance with the terms thereof, then Tenant shall
have the right to offset said award against the Basic Rent to become due
hereunder; provided, however, that the right of offset is expressly limited to
exclude from any right of offset that portion of the Basic Rent necessary to
satisfy (i) the mortgage obligations of the Landlord as Mortgagor, to the extent
such obligations are set forth in the provisions of the Note and Mortgage; and
(ii) in addition to the amount required under (i) above, such amounts as then
may be required to satisfy the obligations of the Landlord in the operation of
the Demised Premises under the provisions of this Lease.
ARTICLE XXVI - GENERAL PROVISIONS
Section 26.01. No Waste. The Tenant covenants not to do or suffer any
waste or damage, or injury to any building or improvement now or hereafter on
the Demised Premises, or the fixtures and equipment thereof, or permit or suffer
any overloading of the floors thereof.
Section 26.02. Landlord's Liability. If Landlord shall breach any of the
provisions hereof, Landlord shall only be liable to Tenant for monetary damages
and Landlord's liability shall in no event exceed the Landlord's interest in the
Demised Premises as of the date of Landlord's breach; and Tenant expressly
agrees that any judgment or award which it may obtain against Landlord shall be
recoverable and satisfied solely out of the right, title and interest of
Landlord in the Demised Premises and Tenant shall have no rights of lien or levy
against any other property of Landlord, nor shall any other property or assets
of the Landlord be subject to levy, execution or other enforcement proceedings
for the collection of any such sums or satisfaction of any such judgment or
award.
Section 26.03. Partial Invalidity. If any term or provision of this Lease
or the application thereof to any party or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Lease or the application of such
term or provision to parties or circumstances other than those 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 enforced to the fullest extent
permitted by law.
Section 26.04. No Waiver. Except as may otherwise be specifically set
forth in this Lease, the failure of either party at any time or times, to
require performance of any provision(s) of this Lease shall in no manner affect
the right at a later time to enforce the same. One or more waivers by either
party of the obligation of the other to perform any covenant or condition shall
not be construed as a waiver of a subsequent breach of the same or any other
covenant or condition.
The receipt of rent by the Landlord, with knowledge of any breach of this
Lease by the Tenant or of any default on the part of the Tenant in the
observance or performance of any of the conditions or covenants of this Lease
shall not be deemed to be a waiver of any provision of this Lease. Neither the
payment by Tenant of a lesser amount than the installments of Basic Rent,
additional rent or of any sums due hereunder, nor any endorsement or statement
on any check or in any letter accompanying a check for payment of Basic Rent,
additional rent or other sums payable hereunder, shall be deemed to create an
accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or other sums
or to pursue any other remedy available to Landlord. Neither the acceptance of
the keys nor any other act or thing done by the Landlord or any agent or
employee during the Term herein demised shall be deemed to be an acceptance of a
surrender of said Premises, excepting only an agreement, in writing, signed by
the Landlord accepting or agreeing to accept such a surrender.
Section 26.05. Number and Gender. Wherever herein the singular number is
used, the same shall include the plural and the masculine gender shall include
the feminine and neuter genders.
Section 26.06. Successors and Assigns. The terms, covenants and conditions
herein contained shall be binding upon and inure to the benefit of the
respective parties and their successors and assigns.
Section 26.07. Article and Marginal Headings. The article and marginal
headings herein are intended for convenience in finding the subject matters, are
not to be used in determining the intent of the parties to this Lease.
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Section 26.08. Entire Agreement. This instrument contains the entire and
only agreement between the parties, and no oral statements or representations or
prior written matter not contained in this instrument shall have any force or
effect. This Lease shall not be modified in any way or terminated except by a
writing executed by both parties.
Section 26.09. Obligations also Covenants. Whenever in this Lease any
words of obligation or duty are used, such words or expressions shall have the
same force and effect as though made in the form of covenants.
Section 26.10. Cost of Performing Obligations. The respective obligations
of the parties to keep, perform and observe any terms, covenants or conditions
of this Lease shall be at the sole cost and expense of the party so obligated.
Section 26.11, Remedies Cumulative. The specified remedies to which the
Landlord or Tenant may resort under the Terms of this Lease are cumulative and
are not intended to be exclusive of any other remedies or means of redress to
which the Landlord or Tenant may be lawfully entitled in case of any breach or
threatened breach of any provision of this Lease.
Section 26.12. Holding Over. If Tenant holds over after the expiration or
earlier termination of this Lease, and if Tenant is not otherwise in default
hereunder, such holding over shall not be deemed to create an extension of the
Term, but such occupancy shall be deemed to create a month-to-month tenancy at a
rental rate of 150% of the then current Basic Rent, and on the same terms and
conditions as are in effect on the date of said expiration or earlier
termination.
Section 26.13. Utilities.
(a) Utility Lines. Landlord shall be responsible for bringing all
utilities and utility services to the Building and connecting them to the
interior lines installed in the Demised Premises. Such utilities shall be gas,
water, sewer and electricity. Tenant shall be responsible to bring any other
utility, utility service, or communication service to the Demised Premises.
(b) Utility Charges. Tenant shall undertake and be responsible for having
all utilities metered in its name in the Demised Premises and agrees to pay all
charges for same directly to the respective utility companies throughout the
demised Term. Such utilities include the utilities listed in (a) above as well
as any other other utility, utility service, or communication service obtained
or used by Tenant or rendered or supplied to Tenant.
(c) Sprinkler and Security Monitoring Service. Notwithstanding anything
herein to the contrary, Tenant shall be required, at its sole cost and expense,
to install a Sprinkler Monitoring Service (including a low temperature sensor)
with associated key box, Smoke Detectors, and a Security Monitoring Service at
the Demised Premises. The parties acknowledge that such installation shall be in
accordance with all provisions of this Lease pertaining to construction and
alterations in Articles VIII and XXIII except that the aforementioned Sprinkler
Monitoring Service and Smoke Detectors shall be installed in accordance with the
most recent version of the BOCA National Building Code, unless the governmental
authority whose jurisdiction includes the Demised Premises imposes more
stringent monitoring requirements on Tenant.
(d) Common Utilities. Tenant acknowledges that portions of the water line,
sanitary sewer and storm sewer serving the Demised Premises are used in common
with other tenants of the Building of which the Demised Premises forms a part
("Common Utilities"). The operation, maintenance and repair of the Common
Utilities shall be performed by Landlord and the costs thereof shall be charged
pro rata to the tenants using the Common Utilities.
Tenant further acknowledges that portions of the sprinkler system
servicing the Demised Premises are used in common with other tenants of the
Building of which the Demised Premises forms a part ("Sprinkler System").
Landlord will inspect, service and maintain the Sprinkler System, including the
risers, valves and piping. All costs relating to the inspection, service and
maintenance of the Sprinkler System, including the costs of any required
governmental inspections, permits or approval, will be charged pro rata to the
tenants using the Sprinkler System.
Tenant shall pay to Landlord, as additional rent, its pro rata share of
the costs of inspection, servicing, operation, maintenance and repair of the
Common Utilities and the Sprinkler System, plus a 15% handling charge, such
share to be calculated in accordance with the formula set forth in Section 6.01,
except that the denominator shall be the number of square feet affected by the
particular inspection, servicing, operation, maintenance and repair being
performed. Such additional rent shall be paid to Landlord within ten (10) days
of Tenant's receipt of Landlord's invoice for such additional rent.
Landlord's cost to perform the foregoing shall not include its cost for
any office personnel involved in the foregoing.
The parties further agree that Landlord at his sole cost and expense,
shall have the right, at any time, to cause the Sprinkler System for the Demised
Premises to be separated. Upon completion of the separation, Tenant shall assume
the obligation for maintenance of the Sprinkler System in the Demised Premises
as provided in Section 10.02.
(e) Fire Service Billing. Tenant acknowledges that Tenant shall pay to
Landlord, as additional rent, its pro rata share of the Fire Service Billing
issued by the Township of Edison for the Building of which the Demised Premises
forms a part plus a 10% handling charge, such share to be calculated in
accordance with Section 6.01. Tenant shall make payment to Landlord within ten
(10) days of receipt of an invoice for such additional rent.
See Section 6.07 for Alternate Method of Payment.
Section 26.14. Signs.
(a) Erection of Signs. Tenant shall have the right and privilege of
erecting signs for advertising purposes in connection with its business at the
Demised Premises provided, however, that no sign shall be erected on the roof
and that all signs comply with the applicable rules and regulations of the
applicable governmental boards and bureaus having jurisdiction thereof, and
Tenant shall remove same at the expiration or sooner termination of this Lease.
Notwithstanding the above, Landlord shall have the right to order the removal of
such signs if, in its reasonable judgement, the content or design of said signs
are not in harmony with the character of the Building or the surrounding locale.
In such case, Tenant shall promptly remove same.
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(b) Repair of Damage. Tenant shall be responsible for any damage caused by
said signs and any damage so caused shall be repaired forthwith at Tenant's sole
cost and expense. In the event any sign erected by Tenant is removed during the
Term of this Lease or at the expiration or earlier termination thereof, Tenant
shall repair any damage whatsoever caused by the removal at Tenant's sole cost
and expense.
Section 26.15. Force Majeure. The period of time during which either party
is prevented from performing any act required to be performed under this Lease
by reason of fire, catastrophe, labor difficulties, strikes, lock-outs, civil
commotion, acts of God or of the public enemy, governmental prohibitions or
preemptions, embargoes, inability to obtain materials or labor by reason of
governmental regulations or prohibitions, or other events beyond the reasonable
control of that party, as the case may be, shall be added to the time for
performance of such act, and that party shall not be liable to the other or in
default under this Lease as the results thereof.
Section 26.16. Vacancy or Abandonment. In the event that the Demised
Premises shall become vacant as the result of being vacated or abandoned by
Tenant during the Term and such vacancy or abandonment shall exist for a period
of two (2) months, Landlord may re-enter the same, either by force or otherwise,
without being liable to prosecution therefor and re-let said Demised Premises as
agent of Tenant and receive the rent therefor and apply the same first to
payment of such expenses as Landlord may be put to in re-entering and then to
payment of rent due under this Lease. In addition, such vacancy or abandonment
shall constitute a default under Section 21.01. In any event, Tenant shall
remain liable for any deficiency.
Section 26.17. Governing Law. The interpretation and validity of this
Lease shall be governed by the laws of the state in which the Demised Premises
are located.
Section 26.18. Brokerage. The parties mutually represent that
Binswanger/Klatskin ("Broker") is the sole Broker responsible for introducing
the parties in this Lease transaction and Landlord agrees to pay commission on
the Lease pursuant to an Agreement entered into with said Broker. Tenant
covenants and agrees to hold Landlord harmless from any claim of any other
brokers, including any broker Tenant may hire in the future, alleging to be
entitled to a commission pursuant to this Lease, or any future modification,
amendment, renewal or extension of this Lease.
Section 26.19. Additional Rent. If Tenant shall be in default under any
term, covenant, provision or condition hereof, Landlord, after thirty (30) days
notice that Landlord intends to cure such default, or without notice if in
Landlord's reasonable judgment an emergency shall exist, shall have the right,
but not the obligation, to cure such default, and Tenant shall pay to Landlord
upon demand as additional rent the reasonable cost thereof with interest at the
Lease Interest Rate (as hereinafter defined).
Section 26.20. Notice by Tenant to Mortgagee. If required by the holder of
a mortgage lien on the Premises (provided Tenant is furnished with written
notice of such requirement), Tenant agrees (a) to notify such mortgagee of any
alleged default by Landlord in any of the provisions of this Lease; and (b) to
allow said mortgagee a reasonable period of time to cure such alleged default.
Section 26.21. NOT USED.
Section 26.22. Definitions.
(a) "Re-enter and Re-entry". The terms "re-enter" and "re-entry" as used
in this Lease are nor restricted to their technical legal meaning.
(b) "Landlord". The term "Landlord" as used in this Lease means only the
holder, for the time being, of Landlord's interest under this Lease so that in
the event of any transfer of title to the Demised Premises Landlord shall be and
hereby is entirely freed and relieved of all obligations of Landlord hereunder
accruing after such transfer, and it shall be deemed without further agreement
between the parties that such grantee, transferee or assignee has assumed and
agreed to observe and perform all obligations of Landlord hereunder arising
during the period it is the holder of Landlord's interest hereunder.
(c) "Lease Interest Rate". The term "Lease Interest Rate", as used in
Section 9.02 and 26.19 of this Lease, shall mean interest at the rate which
three percent (3%) in excess of the then current rate of interest charged by the
First Union National Bank as its so called "base rate".
(d) "Index Change". The term "Index Change" shall mean the "all items"
portions of the United States Department of Labor Bureau of Labor Statistics
Consumer Price Index for urban wage earners and clerical workers (1982-84 = 100)
for the city or region closest to the Demised Premises for which an index is
prepared for the shortest period for which an index is published which includes
the date on which this Lease is signed, divided into the said index for the
shortest period for which an index is published which includes the date on which
the relevant Renewal Term commences. If the index is no longer published, the
index of consumer prices in such city or region most closely comparable to said
index, after making such adjustments as may be prescribed by the agency
publishing same or as otherwise may be required to compensate for changes
subsequent to the Commencement Date, in items included or method of compilation
or computation thereof, shall be substituted therefor.
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Section 26.23. Late Payment Service Charge. Tenant covenants and agrees to
pay to the Landlord a "Late Payment Service Charge" equal to four percent (4%)
of any rent payment, or any other payment prescribed herein, which has not been
paid in accordance with the terms and conditions of this Lease Agreement. Said
"Late Payment Service Charge" shall be paid by Tenant to Landlord promptly upon
proper notice and demand therefor.
Notwithstanding the foregoing, in the event Landlord has delivered to
Tenant a First Notice pursuant to Section 21.01 for non-payment of any
additional rent and Tenant is contesting the payment of any additional rent in
accordance with the provisions of Section 21.01, Landlord agrees not to impose a
Late Payment Service Charge until after the expiration of the ten (10) day
period following Landlord's Response.
In the event Landlord has NOT delivered to Tenant a First Notice pursuant
to Section 21.01 for non-payment of any additional rent and:
Tenant is contesting, in good faith, the payment of such additional rent;
and
Tenant has provided Landlord with written notice of such contest within
ten (10) days of Tenant's receipt of Landlord's invoice; and
Such written notice contains the basis for Tenant's contest, including any
and all required supporting documentation; and
Tenant diligently prosecutes such contest in an expeditious manner;
then Landlord shall delay exercising its right to impose a Late Payment Service
Charge on contested additional rent payments for a period of fifteen (15) days
after Landlord's receipt of Tenant's contest notice.
Section 26.24. NOT USED.
Section 26.25. Design and Construction Requirements. All requirements
promulgated by any Federal, State or local governmental authority, including
without limitation, under the Occupational Safety and Health Act (OSHA), the
Spill Compensation and Control Act, the Industrial Site Recovery Act (ISRA) and
all applicable building and fire safety codes with respect to Tenant's use and
occupancy of the Demised Premises, including storage arrangements and/or racking
systems, shall be the sole responsibility of the Tenant, except that Landlord
warrants that the Premises are in compliance with design and construction
requirements which are of general application at the Commencement Date of the
Lease Term for light industrial type buildings, unless otherwise stated in this
Lease, without regard to any specific use thereof (notwithstanding that such use
may be for the purposes herein permitted or may have been consented to by
Landlord).
Section 26.26. Information for Mortgagee. The Tenant shall furnish to the
Landlord any data or information which the Landlord shall reasonably require in
his preparation of applications for mortgage financing, or as may be required by
the mortgagee from time to time throughout the Term of this Lease.
Section 26.27. Inspection by Landlord. The Tenant agrees that Landlord,
its agents and other representatives, shall have the right to enter into and
upon said Premises, or any part thereof, at all reasonable hours, for the
purpose of examining the same upon reasonable advance notice not less than 24
hours, except in the event of emergency, or making such repairs or alterations
therein as may be necessary for the safety and preservation thereof, without
unduly disturbing the operations of Tenant.
Section 26.28. Submission. Submission of this Lease for examination or
signature of Tenant does not constitute an offer, reservation of, or option to
lease; and this Lease will not be effective or binding upon the parties as a
lease or otherwise, until execution and delivery by both Landlord and Tenant.
Section 26.29. Environmental Covenants.
(a) Tenant covenants not to discharge any "Hazardous Substances" or
"Hazardous Wastes" (as said terms are defined in ISRA and/or Spill Compensation
and Control Act) upon the Premises or any adjacent lands. In the event of any
such discharge, Tenant shall immediately notify Landlord, and shall, at Tenant's
sole cost and expense, immediately take any and all actions required by law.
(b) Tenant agrees to conduct any and all environmental testing and
sampling required by ISRA, if applicable, not more than six months, or less than
two months, before the earlier of (i) the anticipated termination date of this
Lease, or (ii) the date on which Tenant intends to "close, terminate or transfer
operations" at the Premises (as those terms are defined in ISRA and/or in the
regulations promulgated pursuant thereto). Tenant shall notify Landlord at least
seven days in advance of any such testing or sampling and permit Landlord or its
representatives to observe all testing and sampling activities. Tenant shall
provide to the Landlord, within seven days from Landlord's request the
following:
(1) the name, address and telephone number and primary contact name of
Tenant's environmental testing or sampling consultants or
contractors; and
(2) written authorization to such consultant or contractor to
communicate freely with Landlord or its environmental consultants
and to provide to Landlord or its environmental consultants, copies
of all written materials relating to the Premises.
Landlord agrees to obtain, on Tenant's behalf, if applicable, a Letter of
Non-Applicability ("LNA") from the New Jersey Department of Environmental
Protection and Energy at or near the end of Term. Tenant agrees to cooperate
with Landlord in obtaining said LNA. Tenant also agrees to pay to Landlord the
filing fee for said LNA within ten (10) days of Tenant's receipt of an invoice
for same.
(c) Tenant agrees to remove and clean-up any Hazardous Substances or
Hazardous Wastes prior to cessation of operation or termination of this Lease.
In the event that the clean-up is not completed prior to the termination date of
this Lease, Tenant shall be deemed to be a Hold Over in accordance with Section
26.12 and all the obligations of Tenant under the Lease, including, but not
limited to, the Tenant's obligation to pay Basic Rent and any additional rent
shall continue until completion of the clean-up and receipt of written approval
of such completion from the governmental authority(ies) having jurisdiction
thereof; provided, however, that Tenant's rights under the Lease shall be
limited to a right of access for the sole and limited purpose of completing the
required clean-up.
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I.H.F.&S. M.O.N.L. 10/93
(d) Landlord shall have the right to inspect the Premises and surrounding
lands and waters and to conduct environmental surveys and testing of any nature
whatsoever (collectively "Inspection"), at any time. Landlord's right to conduct
Inspection shall include, without limitation, a right of access to all portions
of the Premises for testing and a right to inspect all of Tenant's raw
materials, processes, work in process, finished products, machinery, waste
disposal procedures, waste disposal equipment and waste materials, and the right
to remove samples of any of the foregoing for analysis. In addition, Tenant
shall, upon request by Landlord, supply to Landlord, in writing, a listing of
all of Tenant's raw materials and intermediate and finished products, if
applicable, and a listing of any Hazardous or Toxic Substances or Wastes
generated, manufactured, refined, treated, stored, handled or disposed of on or
from the Demised Premises at any time during the Term hereof. Landlord shall pay
the cost of such Inspection unless any one or more of the following conditions
are applicable, in which event the entire cost and expense of the Inspection
shall be borne by the Tenant:
(1) the Inspection occurs within six months prior to, or within a
reasonable time after, (i) the termination date of the Lease or the
closure, termination or transfer of operations at the Premises and
Tenant has failed to provide such testing as required in subsection
(b) above; (ii) the assignment or sublease of all or a portion of
the Premises by Tenant; or (iii) the termination of any such
assignment or sublease; or
(2) the Inspection is required by any governmental authority having
jurisdiction ("Environmental Regulator"); or
(3) the Inspection reveals any unlawful environmental contamination of
or discharge on the Premises; or
(4) the Inspection is the result of or in response to any discharge,
spill or contamination of the Premises, or any clean-up of any of
the foregoing.
As used herein, the costs and expenses of Inspection includes all costs
directly or indirectly related to such Inspection, or as may be required by any
Environmental Regulator in the formulation of a clean-up plan or otherwise.
Except in the case of an emergency, Landlord agrees to provide Tenant with
written notice prior to entering onto the Demised Premises to perform an
Inspection. Landlord further agrees not to perform any Inspection unless:
it has a good faith belief that the Demised Premises contains the
existence of Hazard Substances; or
the Inspection is required by the mortgagee; or
the Inspection is required by any governmental agency having jurisdiction.
(e) Landlord shall have the right of injunctive relief to enforce any and
all of Tenant's obligations under this Section.
(f) Landlord shall have the right to remedy, at Tenant's sole cost and
expense, which shall be due from Tenant upon demand as additional rent, any
environmental contamination revealed by any Inspection or clean-up required by
any Environmental Regulator.
(g) All rights and remedies of the Landlord under this Section are
cumulative and in addition to any other rights or remedies provided to Landlord
elsewhere in this Lease or pursuant to applicable law. In the event of any
conflict between the provisions of this Section and the other provisions of this
Lease, the provision which gives the greater protection to the Landlord shall
control.
(h) Notwithstanding any provision in this Section 26.29 to the contrary,
Landlord agrees that Tenant shall not be responsible for:
1. any Hazardous Substances or Hazardous Wastes which is existing on
the Demised Premises prior to Tenant's occupancy; or
2. any contamination of the Demised Premises caused by Landlord, his
agents, invitees, licensees, employees or anyone acting under his
control or authority; or
3. any Hazardous Substances or Hazardous Wastes on the Demised Premises
caused by any third party tenants Landlord has given the right to
use any of the Common Drive Easements existing on the Demised
Premises; or
4. Subterranean contamination of ground, water or soil which is not the
result of a contamination source which is located within the Demised
Premises or is in any way related to Tenant's operations at the
Demised Premises.
Tenant shall only be relieved of its responsibilities as set forth in this
Section 26.29(h) if Tenant provides Landlord with notice of its discovery of any
such contamination within three (3) business days of Tenant's actual discovery
of such contamination.
Section 26.30. Tests Prior To Commencement. Prior to the Commencement
Date, the Landlord, at its own cost and expense, shall cause the Demised
Premises to be inspected by an environmental testing consultant who shall make
such tests as he shall deem reasonable so that he may issue to Landlord and
Tenant a report confirming that as of the Commencement Date of this Lease the
Demised Premises are in compliance with applicable governmental regulations.
Section 26.31. Fit and Finish. The parties herein acknowledge that they
have inspected several buildings constructed and leased by the Landlord to
others. The parties agree that the fit and finish of the Demised Premises shall
be substantially equal to the quality of those which they have inspected.
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I.H.F.&S. M.O.N.L. 2/99
ARTICLE XXVII - SECURITY
Section 27.01. Security Deposit.
(a) Tenant hereby agrees to deliver to Landlord upon execution of this
Lease Agreement, as security, an irrevocable letter of credit to be issued by a
United States financial institution reasonably satisfactory to Landlord, in
favor of Landlord, in the amount of $48,500.00 (hereinafter "Letter of Credit").
The Letter of Credit shall be substantially in the form annexed hereto marked
Exhibit C (with such changes as may be reasonably required by the issuing
financial institution) and by its terms shall expire no earlier than one year
after the date of its issuance, subject to automatic renewal as set forth below.
(b) It is the intention of the parties hereto that during the original
Term and any renewal term(s), the Landlord shall have in its possession a valid,
unexpired, irrevocable Letter of Credit as prescribed herein. In order to
implement this intention, the Letter of Credit shall be automatically renewed
upon its "original expiration date", or any "renewal expiration date" as the
case may be. Such automatic renewals shall be for additional one year periods
and shall continue until thirty (30) days after the expiration of the original
Term and any renewal term(s) of this Lease.
(c) Failure of Tenant to deliver the Letter of Credit as required by
subsection (a) above, or to renew the Letter of Credit as required by subsection
(b) above, shall constitute a default under this Lease; and upon such event, and
in the event said default is not cured within five (5) business days after
written Notice thereof, Landlord shall be entitled to draw the full amount of
the Letter of Credit and to hold the cash realized thereby as security under
this Lease.
(d) Notwithstanding anything to the contrary contained in this Section
27.01, if Landlord shall present the Letter of Credit for payment, Landlord
shall, on the day it presents such Letter of Credit for payment, deliver to
Tenant a copy of the certificate required to be delivered by Landlord under such
Letter of Credit. If Tenant's default described in Section 27.01(c) is limited
to the failure to renew the Letter of Credit, as stipulated in Section 27.01(b),
then, if the Lease is in full force and effect, the Landlord shall forthwith
return to Tenant all monies paid to Landlord under the said Letter of Credit,
upon delivery of a renewal Letter of Credit.
Section 27.02. Purpose. In the event that Tenant defaults in respect to
any of the terms, provisions, covenants and conditions of this Lease, including,
but not limited to payment of Basic Rent and any additional rent, Landlord shall
be entitled to draw the full amount of the Letter of Credit and to hold the cash
realized thereby as security under this Lease and use, apply or retain the cash
realized for payment of any such Basic Rent and any additional rent in default
or for any other sum which Landlord may expend or be required to expend by
reason of Tenant's default, including any damages or deficiency in the reletting
of the Premises, whether such damage or deficiency may accrue before or after
summary proceedings or other re-entry by Landlord. The use by Landlord of all or
any part of the security so deposited is not intended to be a form of liquidated
damages and such use shall not release Tenant from liability for the full amount
of any and all expenses incurred by Landlord by reason of Tenant's default
hereunder and shall not be a waiver by Landlord of any other remedies granted to
it under this Lease.
Within ten (10) days after Landlord shall have drawn against the Letter of
Credit by reason of a default by Tenant and shall have notified Tenant of such
draw, Tenant shall either (a) procure an amendment from the issuing bank
reinstating the Letter of Credit in the full amount required to be maintained
hereunder, or (b) notify Landlord that Tenant denies that a default has occurred
in which event Tenant shall forthwith commence an action (the "Proceeding") for
a determination of the existence or nonexistence of such default. Tenant agrees
to continue to pay Basic Rent, additional rent and all other amounts due under
this Lease when due without abatement, setoff or deduction during such
Proceeding.
In the event the initial determination of the Proceeding is in favor of
the Landlord, Tenant shall, within ten (10) days of such initial determination,
(a) procure an amendment from the issuing bank reinstating the Letter of Credit
in the full amount required to be maintained hereunder, and (b) pay to Landlord
all the fees and expenses incurred by Landlord in connection with the
Proceeding. In the event a final determination of such Proceeding is in favor of
the Tenant, Landlord shall, within ten (10) days after such final determination
(a) pay to the issuing bank the amount of monies previously drawn by Landlord
against the default which was alleged to have occurred, at which time Landlord
shall receive an amendment from the issuing bank reinstating the Letter of
Credit in the full amount required to be maintained hereunder, and (b) pay to
Tenant all fees and expenses incurred by Tenant in connection with the
Proceedings.
Landlord agrees to return to Tenant all monies paid to Landlord under the
said Letter of Credit which exceed the amount of Tenant's default within ten
(10) days of Landlord's receipt of an amendment from the issuing bank
reinstating the Letter of Credit in the full amount required to be maintained
hereunder, as aforesaid.
Section 27.03. No Interest on Return. In the event that Tenant shall fully
and faithfully comply with the terms, provisions, covenants and conditions of
this Lease, the security or any balance thereof shall be returned to Tenant
after the time fixed as the expiration of the Term. Tenant shall not be entitled
to any interest on the aforesaid security.
Section 27.04. Consequence of Assignment. In the absence of evidence
satisfactory to Landlord of any assignment of the right to receive the security,
or the remaining balance hereof, Landlord may return the security to the
original Tenant, regardless of one or more assignments of the Lease itself. In
the event Landlord shall not have received such satisfactory evidence of any
such assignment, Landlord shall be relieved and released from any such
obligation if such payment is made to the Tenant herein named in this Lease.
Section 27.05. Consequence of Sale. In the event of a bona fide sale,
subject to this Lease, Landlord shall transfer the security to the vendee for
the benefit of Tenant, and Landlord shall have the right to transfer the
security to the vendee for the benefit of Tenant, and Landlord shall be
considered released by Tenant from all liability for the return of such
security, and Tenant agrees to took solely to the new Landlord for the return of
the said security, and it is agreed that this shall apply to every transfer or
assignment made of the security to a new landlord.
Section 27.06. Mortgagee Not Responsible. No holder of a mortgage on the
Premises shall be responsible in connection with the security deposited
hereunder, by way of credit or payment of any rent or otherwise, unless such
mortgagee actually shall have received the security deposited hereunder. The
security deposited under this Lease shall not be mortgaged, assigned or
encumbered by Tenant.
Section 27.07. Default. It is expressly understood and agreed that the
issuance of a warrant for possession in summary proceedings or the entry of a
judgment for possession upon Landlord's complaint in a plenary action or the
re-entering of said Premises by Landlord for any default on the part of Tenant
prior to the expiration of the Term shall not be deemed such a termination of
this Lease as to entitle Tenant to the recovery of the said security; that any
unapplied portion of said deposit shall be retained and remain in the possession
of Landlord until the end of the Term hereinbefore stated.
-18-
ARTICLE XXVIII - SPECIAL TENANT IMPROVEMENTS
Section 28.01. Special Tenant Improvements. Landlord and Tenant hereby
acknowledge that Tenant's use and occupancy of the Demised Premises requires the
installation of certain improvements as more particularly set forth in Section
28.02 ("Special Tenant Improvements"). The Special Tenant Improvements are in
addition to the Work To Be Performed By Landlord, as set forth in Section 3.02
above.
Section 28.02. Scope of Work. Landlord and Tenant hereby agree that the
scope of work of the Special Tenant Improvements shall be as follows:
1. Modify the exisitng main office area by:
a. removing approximately 118 lineal feet of partition walls, as
shown on the Plans.
b. closing three (3) existing door openings at locations shown on
the Plans.
c. installing five (5) new door openings at locations shown on the
Plans.
d. installing approximately 56 lineal feet of walls, as shown on the
Plans.
e. modifying the existing HVAC ducts, sprinkler, acoustic ceiling
tile, plumbing and electrical systems to conform to new office
layout.
Section 28.03. Payment. The parties hereto agree that Tenant shall pay to
Landlord, as additional rent, the sum of $48,500.00 which sum represents
reimbursment to Landlord of Landlord's cost for the installation of the Special
Tenant Improvements.
The reimbursment shall be paid to Landlord over ten (10) years with
interest at the rate of 10.0% per annum in one hundred twenty (120) consecutive
equal monthly payments of $640.93 ("Special Additional Rent").
Upon the execution of this Lease, Tenant shall pay to Landlord a deposit
in the amount of the first monthly installment of Special Additional Rent which
deposit shall be held by Landlord as additional security for Tenant's
performance of this Lease and applied by Landlord against the first monthly
installment of Special Additional Rent due on the Commencement Date. Thereafter,
payments shall be made simultaneously with monthly Basic Rent payments.
Section 28.04. Pre-Payment. Tenant shall have the right to prepay the
unpaid principal balance of the Special Additional Rent at any time with no
penalty.
Section 28.05. Removal of Special Tenant Improvements. Landlord and Tenant
hereby acknowledge that the Special Tenant Improvements installed by Landlord
shall become part of the real estate and may not be removed by Tenant at any
tine during the Term of the Lease, any renewals thereof, or upon expiration of
this Lease.
Section 28.06. Non-Exercise of Right of Renewal. Notwithstanding anything
to the contrary contained above, in the event Tenant does not exercise its first
and/or second Right(s) of Renewal as provided in Section 2.02 above, the parties
hereto agree that the then remaining principal balance of the Special Tenant
Improvement Costs, plus all accrued interest, will become due and payable on the
first day of the 57th month of the initial Term or the first day of the 33rd
month of the first renewal period, as the case may be.
Section 28.07. Default. Failure by Tenant to make the monthly Special
Additional Rent payments when due, or failure by Tenant to pay the then
remaining principal balance of the Special Tenant Improvement Costs, plus all
accrued interest, due upon Tenant's non-exercise of its first and/or second
Right(s) of Renewal as set forth in Section 28.05 above, shall be deemed a
default pursuant to Article XXI hereof, and Landlord shall be entitled to all
remedies contained in Article XXI, including, but not limited to, presenting the
Letter of Credit for payment in accordance with the provisions of Article XXVII.
Tenant's Representation. Tenant hereby represents and warrants to Landlord
that the following persons constitute the holders of all of the outstanding
equity interests and voting power of Tenant as of the date hereof:
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-19-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written
TWO SEVENTY - M - EDISON, LANDLORD
by: Isaac Heller, Managing Partner
by HELLER INDUSTRIAL PARKS, INC., MANAGER
Attest:
by:
----------------------------------
- -------------------------------
Secretary
TENANT:
UNITED NATURAL TRADING CO.
-------------------------------------
Attest:
/s/ Kathleen Matyi BY: /s/ [ILLEGIBLE]
- -------------------------------- ---------------------------------
President
Guarantee. In consideration of the signing of this Lease, United Natural
Foods, Inc., a Delawre corporation with a mailing address of 260 Lake Road,
Dayville, Connecticut 06241 ("GUARANTOR") does hereby guarantee to the Landlord,
its heirs, executors, administrators, successors and assigns, Tenant's
compliance with the terms and conditions of this Lease, as it may be amended
from time to time, including, but not limited to, the due, regular and punctual
payment by Tenant of the Basic Rent, additional rent and all other amounts due.
ATTEST: United Natural Foods, Inc.
---------------------------------------
GUARANTOR
/s/ Kathleen Matyi by: /s/ Daniel V. Atwood
- -------------------------------- -----------------------------------
Secretary
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EXHIBIT "B"
Township of Edison, County of Middlesex, State of New Jersey
Being a portion of Lot 30, in Block 375-BB, as shown on a map entitled Tax Map
of The Township of Edison
The said Demised Premises consist of a portion of the one-story building
located upon the land above described. The said building encloses a total area
of 270,000 square feet.
The portion of the building and the office space demised herein, as more
particularly shown on the Plans and Exhibit A consists of 110,125 square feet.
The land demised includes all of the land under the portion of the
building demised and additional lands as is more particularly shown outlined in
red within the Lease Line on Exhibit A, subject to the use, by various tenants
of the building of which the Demised Premises forms a part, of Common Drive
Easement 'A', Common Drive Easement 'B' and Common Drive Easement 'C', as shown
on Exhibit A, and further subject to the use, by various tenants of a building
on the adjacent parcel, of Common Drive Easement 'A' and Common Drive Easement
'B'.
This demise is subject to the following Permitted Exceptions:
(a) 50 foot setback line;
(b) A servitude of the public in and to that portion of the Premises that
lies within Executive Avenue;
(c) Restrictions to run with the land as follows:
(i) No building shall at any time be erected on the Premises unless
such building shall be set back not less than: 110 feet from the southerly
property boundary, 175 feet from the westerly property boundary, 45 feet
from the northerly property boundary and 130 feet from the easterly
property boundary.
(ii) All buildings erected on the property shall be of masonry
construction or its equivalent. All walls facing public roadways and the
first bay on each side of such walls shall be finished with face brick,
natural stone, architecturally treated concrete panels, e.g. stucco,
modern metal paneling or glass. Other walls shall be faced with common
brick, concrete block, or concrete panel construction or its equivalent.
(iii) All areas in the setbacks required by these restrictions shall
be used either for open landscaped and green areas, driveways or for
service access to the building or as a paved parking area subject to
applicable law. The said landscaped and green areas shall be properly
maintained in a sightly and attractive condition.
(iv) Water tower, water tanks, stand pipes, penthouses, elevators or
elevator equipment, stairways, ventilating fans or similar equipment
required to operate and maintain the building, fire or parapet walls,
skylight, tanks, cooling or other towers, wireless radio or television
masts, flagpoles, chimneys, smoke stacks, gravity flow storage and mixing
towers or similar structures may exceed a height of fifty (50) feet from
the established building grade only with the written approval of the
Landlord.
(v) In addition to such easements as shall have been reserved by
Landlord as provided herein, Landlord excepts and reserves for itself
non-exclusive easements under and through the above designated set-back
areas, as well as through the bar joists and trusses within the Demised
Premises, for constructing, erecting, maintaining and operating
facilities, including wires and conduits for lighting and power, telephone
wires, signs, gas and water lines, railroad tracks, sanitary and storm
sewer lines and drains, all of which facilities are hereinafter referred
to as Utilities, and the Landlord may grant and convey easements to others
for such purposes. All contracts for the installation and maintenance of
such Utilities shall provide, inter alia, that the surface of the Premises
shall be restored in harmony to its condition existing prior to work
performed thereon, and so as not to interfere with Tenant's operations.
(vi) Outdoor storage areas shall be effectively screened from
streets upon which the Premises may have frontage by a wall, fence,
shrubs, hedges or other foliage, all of which shall be properly maintained
in a sightly and attractive condition.
(vii) Neither the Premises nor any portion of thereof shall be used
or maintained as a dumping ground for rubbish, trash garbage or other
waste, which shall be kept in sanitary containers and regularly taken away
from the Premises. All equipment for the storage or disposal of such
material shall be kept in a clean and sanitary condition and shall be
effectively screened from streets upon which the Premises may have
frontage by a wall, fence, shrubs, hedges or other foliage all of which
shall be properly maintained in a sightly and attractive condition.
(viii) The Premises shall not be used in any manner which will
permit dust, noxides, odors, fumes or harmful airborne particles or gases
which might contaminate, damage or injure persons or property to emanate
or to be emitted from any structure or facility on the Premises.
(ix) The Premises shall not be used in any manner which will permit
solid or liquid contaminates to be put upon the land either under the
building(s) or outside of the building(s). No washing, repairing or
servicing of tractors and/or trailers will be permitted at the Demised
Premises. No underground storage tanks, wells, cisterns, pipes or other
similar structures shall be constructed without prior written approval of
the Landlord. No pumping of underground water shall be permitted.
(x) Upon any breach by the Tenant of any of the foregoing covenants
or conditions, Landlord shall have a remedy of injunctive relief in
addition to all other remedies available to Landlord under applicable law.
It is understood, however, that the breach of any of the foregoing
covenants, conditions and restrictions shall not defeat or render invalid
the lien of any mortgage on the Premises made in good faith and for value;
provided, however, that any breach or continuance thereof may be enjoined,
abated or remedied by the proper arbitration proceedings as aforesaid and
provided further, that each and all of the foregoing covenants, conditions
and restrictions shall at all times remain in full force and effect
against said Premises or any part thereof, title to which is obtained by
foreclosure of any such mortgage.
(xi) Reference in these restrictions and conditions to Landlord or
Tenant shall include their respective heirs, executors, administrators,
successors and assigns.
(d) Such facts as an accurate survey may disclose provided there is
nothing revealed thereby which would prohibit the use and occupancy by Tenant in
accordance with the provisions of this Lease.
(e) Lien of Mortgage dated October 20, 2000 to Massachusetts Mutual Life
Insurance Company recorded in the official records in the Middlesex County
Clerks Office on October 20, 2000 in Mortgage Book 6410, Page 459.
(g) Common Electric & Sprinkler Room and the Common Sprinkler Room, both
shown on Exhibit "A" and access thereto is subject to use in common with others
who lease a portion or portions of the Building of which the Demised Premises
forms a part.
I.H.F.&S. M.O.N.L. 2/99
EXHIBIT C
APPROPRIATE BANK LETTERHEAD
Jeffrey J. Milanaik
President
Heller Industrial Parks, Inc.
205 Mill Road
Edison, New Jersey 08837
Dear Sir:
At the request of UNITED NATURAL TRADING CO. we hereby establish our
Irrevocable Letter of Credit No. ______ in favor of the Landlord under the lease
agreement described below, in the amount of U.S.$ 48,500.00 (Forty Eight
Thousand, Five Hundred and Zero/100 Dollars) effective upon the date hereof and
expiring at our main office, ____________________________________ on
___________________________.
Funds under our Irrevocable Letter of Credit are available to you against
your sight draft on us accompanied by a certificate of an authorized
representative of the beneficiary stating that: (i) an uncured default or
defaults exist, under a certain Lease Agreement dated _______________________
between TWO SEVENTY - M - EDISON, as Landlord and UNITED NATURAL TRADING CO.,
d/b/a HERSHEY IMPORT CO., INC., as Tenant, and specifying and describing such
default or defaults; (ii) a copy of the above certificate has been delivered to
Tenant at the Demised Premises, or if Tenant no longer occupies the Demised
Premises, then at such location as Tenant is then located.
It is a condition of this Letter of Credit that it shall be automatically
renewed, for a period of one (1) year from the present or any future expiration
date, unless at least sixty (60) days prior to such expiration date, we notify
you by Certified Mail, Return Receipt Requested, that we elect not to renew.
If we receive such certificate and your draft on or before the close of
business on the date of expiration of this Letter of Credit, we will forthwith
honor the draft.
This Letter of Credit sets forth in full the terms of our undertaking and
such undertaking shall not in any way be modified, amended or amplified by
reference to any document or instrument referred to herein or in which this
Letter of Credit may be referred to; or to which this Letter of Credit relates;
and any such reference shall not be deemed to incorporate herein by reference
any document or instrument.
Very truly yours,
APPROPRIATE BANK
APPROPRIATE SIGNATURE
I.H.F.&S. M.O.N.L. 5/00
EXHIBIT D
RECORD AND RETURN TO:
Massachusetts Mutual Life Insurance Company
1295 State Street
Springfield, Massachusetts 01111-0001
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the ______ day of _______,
2001 by and between Massachusetts Mutual Life Insurance Company, with a
principal office at 1295 State Street, Springfield, Massachusetts 01111-0001
(hereinafter called "Mortgagee"), Two Seventy - M - Edison, with a principal
office at 205 Mill Road, Edison, New Jersey 08837 (hereinafter called "Lessor")
and Legion Paper Corp. having its principal office at ______________________
(hereinafter called "Lessee")
W I T N E S S E T H:
WHEREAS, Lessee has by a written lease dated ________________ as amended
by ________________ (hereinafter called the "Lease") leased from Lessor all or
part of certain real estate and improvements thereon located in the Township of
Edison, County of Middlesex and State of New Jersey as more particularly
described on Exhibit A attached hereto (the "Demised Premises"); and
WHEREAS, Lessor is encumbering the Demised Premises as security for a loan
in the original amount of $_______ from Mortgagee to Lessor (the "Mortgage");
and
WHEREAS, Lessee, Lessor, and Mortgagee have agreed to the following as
respects their mutual rights and obligations pursuant to the Lease and the
Mortgage;
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) paid by
each party to the other and the mutual covenants and agreements herein contained
and other good and valuable consideration, the receipt whereof is hereby
acknowledged, the parties hereto do hereby covenant and agree as follows:
(1) Lessee's interest in the Lease and all rights of Lessee thereunder,
including any purchase option, if any shall be and are hereby declared subject
and subordinate to the Mortgage upon the Demised Premises and its terms, and the
term "Mortgage" as used herein shall also include any amendment, supplement,
modification, renewal or replacement thereof.
(2) In the event of any foreclosure of the Mortgage or conveyance in lieu
of foreclosure, provided that the Lessee shall not then be in default beyond any
grace period under the Lease and the Lease shall then be in full force and
effect, then Lessee shall not be made a party in any action or proceeding to
remove or evict Lessee or to disturb its possession, nor shall the leasehold
estate of Lessee created by the Lease be affected in any way, and the Lease
shall continue in full force and effect as a direct lease between Lessee and
Mortgagee.
(3) After the receipt by Lessee of notice from Mortgagee of any
foreclosure of the Mortgage or any conveyance of the Demised Premises in lieu of
foreclosure, Lessee will thereafter attorn to and recognize Mortgagee or any
purchaser from Mortgagee at foreclosure sale or otherwise as its substitute
lessor, having thus attorned, Lessee's possession shall not thereafter be
disturbed, providing, and as long as, it shall continue to timely pay all
rentals under the Lease, and otherwise observes or performs the covenants, terms
and conditions of the Lease.
(4) Lessee shall not prepay any of the rents under the Lease more than one
month except with the prior written consent of Mortgagee.
(5) In no event shall Mortgagee be liable for any prior act or omission of
the Lessor, nor shall Mortgagee be subject to any offsets or deficiencies which
Lessee may be entitled to assert against the Lessor as a result of any act or
omissions of Lessor occurring prior to Mortgagee's obtaining possession of the
premises.
(6) No conveyance by Lessor of its interest in the Demised Premises or any
part thereof to Lessee, shall, insofar as Mortgagee is concerned, cause the fee
estate and the Lessee's leasehold estate created by the Lease to merge, rather
said estate shall remain separate and distinct notwithstanding the vesting of
the Leasehold and fee estates in any single person or entity by reason of such
conveyance or otherwise.
(7) The Lease may not be amended, altered or terminated without the prior
written consent of Mortgagee.
(8) This Agreement and its terms shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
including without limitation, any purchaser at any foreclosure sale.
PREPARED BY: ______________
I.H.F.&S. M.O.N.L. 5/00
IN WITNESS WHEREOF, this Agreement has been fully executed under seal on
the day and year first above written
TWO SEVENTY - M- EDISON, LESSOR MASSACHUSETTS MUTUAL LIFE INSURANCE
by: ISAAC HELLER, Managing Partner COMPANY, MORTGAGEE
by HELLER INDUSTRIAL PARKS, INC.,
MANAGER by: David L. Babson & Company., Inc., its
authorized agent
by:__________________________________
President
by::_____________________________________
_____________________________, LESSEE
by::_________________________________
MASSACHUSETTS )
) SS.
________________ )
On this _________ day of __________, 2001 before me, a Notary Public in
and for said County, personally appeared _____________________________ to me
personally known to be the identical person whose name is subscribed to the
instrument as an officer herein named, who being by me duly sworn did say that
he/she is the __________________________ of David L. Babson & Company Inc., a
corporation, authorized agent for Massachusetts Mutual Life Insurance Company,
Mortgagee, and that the seal affixed to said instrument is the seal of said
corporation, and that said instrument was signed and seated on behalf of said
corporation in its capacity as authorized agent by authority of Mortgagee's
Board of Directors and the aforesaid officer acknowledged the execution of said
instrument to be the voluntary act and deed of said corporation in its capacity
as authorized agent of Mortgagee, by it and by him/her voluntarily executed.
_______________________________________________________
Notary Public in and for County, Massachusetts
NEW JERSEY )
) SS.
MIDDLESEX )
On this _________ day of __________, 2001 before me, a Notary Public in
and for said County, personally appeared _____________________________ to me
personally known to be the identical person whose name is subscribed to the
instrument as an officer herein named, who being by me duly sworn did say that
he/she is the __________________________ of Heller Industrial Parks, Inc., a New
Jersey corporation, manager for Two Seventy - M - Edison, a New Jersey general
partnership, Lessor, and that said instrument was signed on behalf of said
partnership by authority of Lessor's managing partner, and the aforesaid officer
acknowledged the execution of said instrument to be the voluntary act and deed
of said partnership, in its capacity as manager of Lessor, by it and by him/her
voluntarily executed.
_______________________________________________________
Notary Public in and for Middlesex County, New Jersey
)
) SS.
)
On this ________ day of _________, 2001 before me, a Notary Public in and
for said County. personally appeared _______________________________ to me
personally known to be the identical person whose name is subscribed to the
instrument as an officer for the Lessee herein named, who being by me duly sworn
did say that he/she is the _______________________ of _______________________, a
___________________ corporation, and that said instrument was signed on behalf
of said corporation by authority of its Board of Directors, and the aforesaid
officer acknowledged the execution of said instrument to be the voluntary act
and deed of said corporation, by it and by him/her voluntarily executed.
_______________________________________________________
Notary Public in and for County,
-2-