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LEASE OF WAREHOUSE PREMISES
ETZIONI PARTNERS
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LANDLORD
AND
▇▇▇▇▇ RIVER CORPORATION
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TENANT
PREMISES:
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
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PREPARED BY:
VERDE, ▇▇▇▇▇▇▇▇▇ & PONTELL
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
INDEX
ARTICLE 1 - DEFINITIONS.......................................... 2
ARTICLE 2 - DEMISE AND TERM...................................... 6
ARTICLE 3 - RENT................................................. 6
ARTICLE 4 - USE OF DEMISED PREMISES.............................. 7
ARTICLE 5 - PREPARATION OF DEMISED PREMISES...................... 8
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS................... 9
ARTICLE 7 - INTENTIONALLY OMITTED............................... 10
ARTICLE 8 - INTENTIONALLY OMITTED............................... 10
ARTICLE 9 - SUBORDINATION....................................... 10
ARTICLE 10 - QUIET ENJOYMENT.................................... 12
ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING.............. 12
ARTICLE 12 - COMPLIANCE WITH LAWS............................... 15
ARTICLE 13 - INSURANCE AND INDEMNITY............................ 16
ARTICLE 14 - RULES AND REGULATIONS.............................. 18
ARTICLE 15 - ALTERATIONS AND SIGNS.............................. 18
ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY................... 20
ARTICLE 17 - REPAIRS AND MAINTENANCE............................ 21
ARTICLE 18 - ELECTRIC ENERGY; HVAC.............................. 23
ARTICLE 19 - ACCESS, CHANGES AND NAME........................... 23
ARTICLE 20 - MECHANICS' LIENS AND OTHER LIENS................... 24
ARTICLE 21 - NON-LIABILITY...................................... 24
ARTICLE 22 - DAMAGE OR DESTRUCTION.............................. 25
ARTICLE 23 - EMINENT DOMAIN..................................... 27
ARTICLE 24 - SURRENDER.......................................... 29
ARTICLE 25 - CONDITIONS OF LIMITATION........................... 30
ARTICLE 26 - RE-ENTRY BY LANDLORD................................. 31
ARTICLE 27 - DAMAGES.............................................. 32
ARTICLE 28 - AFFIRMATIVE WAIVERS.................................. 34
ARTICLE 29 - NO WAIVERS........................................... 35
ARTICLE 30 - CURING TENANT'S DEFAULTS............................. 35
ARTICLE 31 - BROKER............................................... 36
ARTICLE 32 - NOTICES.............................................. 36
ARTICLE 33 - ESTOPPEL CERTIFICATES................................ 37
ARTICLE 34 - ARBITRATION.......................................... 37
ARTICLE 35 - MEMORANDUM OF LEASE.................................. 38
ARTICLE 36 - ENVIRONMENTAL COMPLIANCE............................. 38
ARTICLE 37 - MISCELLANEOUS........................................ 39
ARTICLE 38 - EXTENSION OF TERM.................................... 42
EXHIBITS
EXHIBIT A - DESCRIPTION OF LAND
EXHIBIT B - SITE PLAN
EXHIBIT C - LANDLORD'S WORK
EXHIBIT D - RULES AND REGULATIONS
EXHIBIT E - LANDLORD STANDARD BUILDING CRITERIA
WAREHOUSE LEASE
LEASE, dated February 13, 1992, between ETZIONI PARTNERS, having an
office at C/O MGS DEVELOPMENT, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
("Landlord") and ▇▇▇▇▇ RIVER CORPORATION, a Virginia corporation, having an
address of ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. ("Tenant").
ARTICLE 1 - DEFINITIONS
1.01. As used in this Lease (including in all Exhibits and any Riders
attached hereto, all of which shall be deemed to be part of this Lease) the
following words and phrases shall have the meanings indicated:
A. Advance Rent: One (1) month Fixed Rent.
B. Additional Charges: All amounts that become payable by Tenant to
Landlord hereunder other than the Fixed Rent.
C. Architect: As determined by Landlord.
D. Broker: The Blau and ▇▇▇▇ Company.
E. Building: The one (1) story warehouse building containing
approximately 94,400 square feet of Floor Space outlined in Exhibit A, attached
hereto and located on the Land in Edision, New Jersey and known as ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇.
F. Intentionally Omitted.
G. Intentionally Omitted.
H. Calendar Year: Any twelve month period commencing on a January 1.
I. Commencement Date: The earlier of (a) the date on which both: (i)
the Demised Premises shall be Ready for Occupancy, and (ii) actual possession of
the Demised Premises shall have been delivered to Tenant by notice to Tenant,
but in no event prior to May 1, 1992; or (b) the date Tenant, or anyone claiming
under or through Tenant, first occupies the Demised Premises or any part thereof
for any purpose. Tenant shall have access to the Demised Premises on and after
May 11, 1992 for the purpose of staging inventory. Upon the taking of possession
by Tenant all terms and conditions of the Lease shall take effect except for
Tenant's obligation to pay Fixed Rent which shall commence on June 1, 1992.
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J. Intentionally Omitted.
K. Demised Premises: The entire Land and Building as is outlined in
yellow on the site plan(s) attached hereto as Exhibit B. The Demised Premises
contains or will contain approximately 94,400 square feet of Floor Space.
L. Expiration Date: The date that is the day before the five (5)
year anniversary of the Commencement Date if the Commencement Date is the first
day of a month, or a five (5) year anniversary of the last day of the month in
which the Commencement Date occurs if the Commencement Date is not the first day
of a month. However, if the Term is extended by Tenant's effective exercise
of Tenant's right, if any, to extend the Term, the "Expiration Date" shall be
changed to the last day of the Latest Extended Period as to which Tenant shall
have effectively exercised its right to extend the Term. For the purposes of
this definition, the earlier termination of this Lease shall not affect the
"Expiration Date."
M. Fixed Rent: An amount at the annual rate of $2.75 multiplied by
the Floor Space of the Demised Premises for the first thirty (30) months of the
term and an amount at the annual rate of $2.90 multiplied by the Floor Space for
months 31 through 60 of the term. It is intended that the Fixed Rent shall be an
absolutely net return to Landlord throughout the Term, free of any expense,
charge or other deduction whatsoever with respect to the Demised Premises, the
Building, the Land and/or the ownership, leasing, operation, management,
maintenance, repair, rebuilding, use or occupation thereof, or any portion
thereof, with respect to any interest of Landlord therein.
N. Floor Space: As to the Demised Premises, the sum of the floor
area stated in square feet bounded by the exterior faces of the exterior walls.
Any reference to the Floor Space is intended to refer to the Floor Space of the
entire area in question irrespective of the Person(s) who may be the owner(s) of
all or any part thereof.
O. Guarantor: None.
P. Insurance Requirements: Rules, regulations, orders and other
requirements of the applicable board of underwriters and/or the applicable fire
insurance rating organization and/or any other similar body performing the same
or similar functions and having jurisdiction of cognizance over the Land and
Building, whether now or hereafter in force.
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Q. Land: The land described on Exhibit A, upon which the Building is
located.
R. Landlord's Work: The materials and work to be furnished ,
installed and performed by Landlord at its expense in accordance with the
provisions of Exhibit C, attached hereto and made a part hereof.
S. Legal Requirements: Laws and ordinances of all federal, state,
county, and municipal governments, and rules, regulations, orders and directives
of all departments, subdivisions, bureaus, agencies or offices thereof, and of
any other governmental, public or quasi-public authorities having jurisdiction
over the Land and Building, whether now or hereafter in force, including, but
not limited to, those pertaining to environmental matters.
T. Mortgage: A mortgage and/or a deed of trust.
U. Mortgagee: A holder of a mortgage or a beneficiary of a deed of
trust.
V. Intentionally Omitted.
W. Permitted Uses: Warehousing and distribution of styrofoam cups
and associated offices and no other use.
X. Person: A natural person or persons, a partnership, a
corporation, or any other form of business or legal association or entity.
Y. Ready for Occupancy: The condition of the Demised Premises when
for the first time the Landlord's Work shall have been substantially completed
and a temporary or permanent Certificate of Occupancy shall have been issued
permitting use of the Demised Premises for the Permitted Uses. The Landlord's
Work shall be deemed substantially completed notwithstanding the fact that minor
or insubstantial details of construction, mechanical adjustment or decoration
remain to be performed, the noncompletion of which does not materially interfere
with Tenant's use of the Demised Premises.
Z. Real Estate Taxes: The real estate taxes, assessments and special
assessments, sewer rents, water charges and all other similar charges and
impositions imposed upon the Building and Land by any federal, state, municipal
or other governments or governmental bodies or authorities, and any expenses
incurred by Landlord in contesting such taxes or assessments and/or the
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assessed value of the Building and Land, which expenses shall be allocated to
the period of time to which such expenses relate. If at any time during the Term
the methods of taxation prevailing on the date hereof shall be altered so that
in lieu of, or as an addition to or as a substitute for, the whole or any part
of such real estate taxes, assessments and special assessments now imposed on
real estate there shall be levied, assessed or imposed (a) a tax, assessment,
levy, imposition, license fee or charge wholly or partially as a capital levy or
otherwise on the rents received therefrom, or (b) any other such additional or
substitute tax, assessment, levy, imposition or charge, then all such taxes,
assessments, levies, impositions, fees or charges or the part thereof so
measured or based shall be deemed to be included within the term "Real Estate
Taxes" for the purposes hereof.
AA. Rent: The Fixed Rent and the Additional Charges.
BB. Rules and Regulations: The reasonable rules and regulations that
may be promulgated by Landlord from time to time, which may be reasonably
changed by Landlord from time to time. The Rules and Regulations now in effect
are attached hereto and made a part hereof as Exhibit D.
CC. Security Deposit: None
DD. Successor Landlord: As defined in Section 9.03.
EE. Superior Lease: Any lease to which this Lease is, at the time
referred to, subject and subordinate.
FF. Superior Lessor: The lessor of a Superior Lease or its successor
in interest, at the time referred to.
GG. Superior Mortgage: Any Mortgage to which this Lease is, at the
time referred to, subject and subordinate.
HH. Superior Mortgagee: The Mortgagee of a Superior Mortgage at the
time referred to.
II. Intentionally Omitted.
JJ. Tenant's Property: As defined in Section 16.02.
KK. Tenant's Work: The facilities, materials and work which may be
undertaken by or for the account of Tenant (other than the Landlord's Work) to
equip, decorate and furnish the Demised Premises for Tenant's occupancy.
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LL. Term: The period commencing on the Commencement Date and ending at
11:59 p.m. of the Expiration Date, but in any event the Term shall end on the
date when this Lease is earlier terminated.
MM. Unavoidable Delays: A delay arising from or as a result of a
strike, lockout, or labor difficulty, explosion, sabotage, accident, riot or
civil commotion, act of war, fire or other catastrophe, Legal Requirement, the
time period required to adjust an insurance claim, or an act of the other party
and any cause beyond the reasonable control of that party, provided that the
party asserting such Unavoidable Delay has exercised its best efforts to
minimize such delay.
ARTICLE 2 - DEMISE AND TERM
2.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term. This Lease is subject to (a) any
and all existing encumbrances, conditions, rights, covenants, easements,
restrictions and rights of way, of record, and other matters of record
applicable zoning and building laws, regulations and codes, and such matters as
may be disclosed by an inspection or survey, and (b) easements now or hereafter
created by Landlord in, under, over, across and upon a strip of land twenty feet
(20') in width running along all lot lines of the Building for sewer, water,
electric, gas and other utility lines and services now or hereafter installed;
provided, however, Landlord represents, covenants and warrants to Tenant that
the Demised Premises may be used and occupied for the purposes set forth herein;
and that the foregoing shall in no manner materially interfere with Tenant's use
and quiet enjoyment of the Premises. Promptly following the Commencement Date,
the parties hereto shall enter into an agreement in form and substance
satisfactory to Landlord setting forth the Commencement Date and confirming the
Fixed Rent payable.
ARTICLE 3 - RENT
3.01. Tenant shall pay the Fixed Rent in equal monthly installments in
advance on the first day of each and every calendar month during the Term
(except that Tenant shall pay, upon the execution and delivery of this Lease by
Tenant, the Advance Rent, to be applied against the first installment or
installments of Fixed Rent becoming due under this Lease). If the Commencement
Date occurs on a day other than the first day of a calendar month, the Fixed
Rent for the partial calendar month at the commencement of the Term shall be
prorated.
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3.02. The Rent shall be paid in lawful money of the United States to
Landlord at its office, or such other place, or to Landlord's agent, as Landlord
shall designate by notice to Tenant. Tenant shall pay the Rent promptly when due
without notice or demand therefor and without any abatement, deduction or setoff
for any reason whatsoever, except as may be expressly provided in this Lease. If
Tenant makes any payment to Landlord by check, same shall be by check of Tenant
and Landlord shall not be required to accept the check of any other Person, and
any check received by Landlord shall be deemed received subject to collection.
3.03. No payment by Tenant or receipt or acceptance by Landlord of a lesser
amount than the correct Rent shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law
provided.
3.04. If Tenant is in arrears in payment of Rent, Tenant waives Tenant's
right, if any, to designate the items to which any payments made by Tenant are
to be credited, and Landlord may apply any payments made by Tenant to such items
as Landlord sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items to which any such payments shall be credited.
3.05. Any Payment due Landlord under this Lease which is not paid on or
before five (5) days after the same is due (a "Late Payment"), shall, from the
due date, until such payment is received by Landlord, bear interest at the prime
rate of Chemical Bank of New York (the "Late Payment Rate"). In addition, Tenant
shall pay to Landlord an amount equal to five (5%) percent of any such late
payment to cover Landlord's cost of collecting and handling such late payment.
Notwithstanding the foregoing, Tenant shall not be charged a late charge for its
first late payment during the Term.
ARTICLE 4 - USE OF DEMISED PREMISES
4.01. Tenant shall use and occupy the Demised Premises for the Permitted
Uses, and Tenant shall not use or permit or suffer the use of the Demised
Premises or any part thereof for any other purpose.
4.02. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business in the Demised Premises or any
part thereof, Tenant shall duly procure and thereafter maintain such license or
permit and submit the same to
7
Landlord for inspection. Tenant shall at all times comply with the terms and
conditions of each such license or permit. Tenant shall not at any time use or
occupy, or suffer or permit anyone to use or occupy the Demised Premises, or do
or permit anything to be done in the Demised Premises, in any manner which (a)
violates the Certificate of Occupancy for the Demised Premises or for the
Building; (b) causes or is liable to cause injury to the Building or any
equipment, facilities or systems therein; (c) constitutes a violation of the
Legal Requirements or Insurance Requirements; (d) impairs or tends to impair
the character, reputation or appearance of the Building; (e) impairs or tends
to impair the proper and economic maintenance, operation and repair of the
Building and/or its equipment, facilities or systems; or (f) annoys or
inconveniences or tends to annoy or inconvenience other tenants or occupants of
the Building.
ARTICLE 5 - PREPARATION OF DEMISED PREMISES
5.01 The Demised Premises shall be completed and prepared for Tenant's
occupancy in the manner described in, and subject to the provisions of, Exhibit
C and Exhibit E. Tenant shall occupy the Demised Premises promptly after the
same are Ready for Occupancy and possession thereof is delivered to Tenant by
Landlord giving to Tenant a notice of such effect. Except as expressly provided
to the contrary in this Lease, the taking of possession by Tenant of the Demised
Premises shall be conclusive evidence as against Tenant the Demised Premises
and the Building were in good and satisfactory condition at the time such
possession was taken. Except as expressly provided to the contrary in this
Lease, Tenant is leasing the Demised Premises "as is" on the date hereof,
subject to reasonable wear and tear and the rights of the present occupant(s) of
the Demised Premises to remove its or their trade fixtures and other property
from the Demised Premises.
5.02 If the substantial completion of the Landlord's Work shall be delayed
due to (a) any act or omission of Tenant or any of its employees, agents or
contractors (including, without limitation, [i] any delays due to changes in or
additions to the Landlord's Work, or [ii] any delays by Tenant in the submission
of plans, drawings, specifications or other information or in approving any
working drawings or estimates or in giving any authorizations or approvals), or
(b) any additional time needed for the completion of the Landlord's Work by the
inclusion in the Landlord's Work of any long lead time items, then the Demised
Premises shall be deemed Ready for Occupancy on the date when they would have
been ready but for such delay(s). The Demised Premises shall be conclusively
presumed to be in satisfactory condition on the Commencement Date except for the
minor or insubstantial details
8
of which Tenant gives Landlord notice within thirty (30) days after the
Commencement Date specifying such details with reasonable particularity.
5.03. If Landlord is unable to give possession of the Demised Premises on
the Commencement Date because of the holding-over or retention of possession by
any tenant, undertenant or occupant, Landlord shall not be subject to any
liability for failure to give possession, the validity of this Lease shall not
be impaired under such circumstances, and the Term shall not be extended, but
the Rent shall be abated if Tenant is not responsible for the inability to
obtain possession.
5.04. Landlord reserves the right, at any time and from time to time, to
increase, reduce or change the number, type, size, location, elevation, nature
and use of any of the Common Areas and the Building, including, without
limitation, the right to move and/or remove same, provided same shall not
unreasonably block or interfere with Tenant's means of ingress or egress to and
from the Demised Premises.
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01. Tenant shall pay the Real Estate Taxes in respect of the Land and
Building for the period in question prior to the due date of such Real Estate
Taxes, and shall send Landlord a copy of the paid receipt promptly upon Tenant's
receipt thereof. Any Real Estate Taxes for a real estate fiscal tax year, a part
of which is included within the term and a part of which is not, shall be
apportioned on the basis of the number of days in the real estate fiscal tax
year included in the Term, and the real estate fiscal tax year for any
improvement assessment will be deemed to be the one-year period commencing on
the date when such assessment is due, except that if any improvement assessment
is payable in installments, the real estate fiscal tax year for each installment
will be deemed to be the one-year period commencing on the date when such
installment is due. Upon request by a Superior Mortgagee, or upon request by
Landlord (which request by Landlord may be made only in the event of Tenant's
default under the terms of this Lease), Tenant shall pay to Landlord or to the
Superior Mortgagee, monthly, one-twelfth (1/12) of the amount which will be
sufficient to pay such Real Estate Taxes, as determined by Landlord.
6.02. Each such statement or invoice given by Landlord pursuant to Section
6.01 shall be conclusive and binding upon Tenant unless within thirty (30) days
after the receipt of such statement Tenant shall notify Landlord that it
disputes the
9
correctness of the statement, specifying the particular respects in which the
statement is claimed to be incorrect. If such dispute is not settled by
agreement, either party may submit the dispute to arbitration as provided in
Article 34. Pending the determination of such dispute by agreement or
arbitration as aforesaid, Tenant shall, within ten (10) days after receipt of
such statement, pay the Additional Charges in accordance with Landlord's
statement, without prejudice to Tenant's position. If the dispute shall be
determined in Tenant's favor, Landlord shall forthwith pay to Tenant the amount
of Tenant's overpayment resulting from compliance with Landlord's statement.
6.03. Tenant shall be responsible for and shall promptly pay for all
expenses of operating the Building.
ARTICLE 7 - INTENTIONALLY OMITTED
ARTICLE 8 - INTENTIONALLY OMITTED
ARTICLE 9 - SUBORDINATION
9.01. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate to all ground leases and underlying leases of the Land
and/or the Building now or hereafter existing and to all Mortgages which may now
or hereafter affect the Land and/or building and/or any of such leases, whether
or not such Mortgages or leases shall also cover other lands and/or buildings,
to each and every advance made or hereafter to be made under such Mortgages, and
to all renewals, modifications, replacements and extensions of such leases and
such Mortgages and spreaders and consolidations of such Mortgages. The
provisions of this Section 9.01 shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord, the lessor under any such lease or the Mortgagee of
any such Mortgage or any of their respective successors in interest may
reasonably request to evidence such subordination; and if Tenant fails to
execute, acknowledge or deliver any such instruments within ten (10) days after
request therefor, Tenant hereby irrevocably constitutes and appoints Landlord as
Tenant's attorney-in-fact, coupled with an interest, to execute and deliver any
such instruments for and on behalf of Tenant.
9.02. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right (a) until it has given written
10
notice of such act or omission to Landlord and each Superior Mortgagee and each
Superior Lessor whose name and address shall previously have been furnished to
Tenant, and (b) until a reasonable period for remedying such act or omission
shall have elapsed following the giving of such notice and following the time
when such Superior Mortgagee of Superior Lessor shall have become entitled under
such Superior Mortgage or Superior Lease, as the case may be, to remedy the same
(which reasonable period shall in no event be less than the period to which
Landlord would be entitled under this Lease or otherwise, after similar notice,
to effect such remedy), provided such Superior Mortgagee or Superior Lessor
shall with due diligence give Tenant notice of intention to, and commence
and continue to, remedy such act or omission.
9.03. If any Superior Lessor or Superior Mortgagee shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights ("Successor Landlord") and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
to and recognize such Successor Landlord as Tenant's landlord under this Lease
and shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that the Successor Landlord
shall not (a) be liable for any previous act or omission of Landlord under this
Lease; (b) be subject to any offset, not expressly provided for in this Lease,
which therefore shall have accrued to Tenant against Landlord; or (c) be bound
by any previous modification of this Lease or by any previous prepayment of more
than one month's Fixed Rent or Additional Charges, unless such modification or
prepayment shall have been expressly approved in writing by the Superior Lessor
of the Superior Lease or the Mortgagee of the Superior Mortgage through or by
reason of which the Successor Landlord shall have succeeded to the rights of
Landlord under this Lease.
9.04. If any then present or prospective Superior Mortgagee shall
require any modification(s) of this Lease, Tenant shall promptly execute and
deliver to Landlord such instruments effecting such modification(s) as Landlord
shall request, provided that such modification(s) do not adversely affect in any
material respect any of Tenant's rights under this Lease.
11
ARTICLE 10 - QUIET ENJOYMENT
So long as Tenant pays all of the Rent and performs all of Tenant's other
obligations hereunder, Tenant shall peaceably and quietly have, hold and enjoy
the Demised Premises without hindrance, ejection or molestation by Landlord or
any person lawfully claiming through or under Landlord, subject, nevertheless,
to the provisions of this Lease and to Superior Leases and Superior Mortgages.
ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING
11.01. Tenant shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise, (a) assign or otherwise transfer this Lease, or
offer or advertise to do so, (b) sublet the Demised Premises or any part
thereof, or offer or advertise to do so, or allow the same to be used, occupied
or utilized by anyone other than Tenant, or (c) mortgage, pledge, encumber or
otherwise hypothecate this Lease in any manner whatsoever, without in each
instance obtaining the prior written consent of Landlord, which consent shall
not be unreasonably withheld. Consent by Landlord shall not be required if a
corporate tenant assigns this Lease to its parent corporation or to its wholly
owned subsidiary, subject, however, to the further provisions of this Article II
and prior notice to Landlord.
11.02. If at any time (a) the original Tenant named herein, (b) the then
Tenant, (c) any Guarantor, or (d) any Person owning a majority of the voting
stock of, or directly or indirectly controlling the then Tenant shall be a
corporation or partnership, any transfer of voting stock or partnership interest
resulting in the person(s) who shall have owned a majority of such corporation's
shares of voting stock or the general partners' interest in such partnership, as
the case may be, immediately before such transfer, ceasing to own a majority of
such shares of voting stock or general partner's interest, as the case may be,
except as the result of transfers by inheritance, shall be deemed to be an
assignment of this Lease as to which Landlord's consent shall have been
required, and in any such event Tenant shall notify Landlord. The provisions of
this Section 11.02 shall not be applicable to any corporation all the
outstanding voting stock of which is listed on a national securities exchange
(as defined in the Securities Exchange Act of 1934, as amended) or is traded in
the over-the-counter market with quotations reported by the National Association
of Securities Dealers through its automated system for reporting quotations and
shall not apply to transactions with a corporation into or which the then Tenant
is merged or consolidated or to which substantially
12
all of the then Tenant's assets are transferred or to any corporation which
controls or is controlled by the then Tenant or is under common control with the
then Tenant, provided that in any of such events (i) the successor to Tenant has
a net worth computed in accordance with generally accepted accounting principles
at least equal to the greater of (1) the net worth of Tenant immediately prior
to such merger, consolidation or transfer, or (2) the net worth of the original
Tenant on the date of this Lease, and (ii) proof satisfactory to Landlord of
such net worth shall have been delivered to Landlord at least ten (10) days
prior to the effective date of any such transaction. For the purposes of this
Section, the words "voting stock" shall refer to shares of stock regularly
entitled to vote for the election of directors of the corporation. Landlord
shall have the right at any time and from time to time during the Term to
inspect the stock record books of the corporation to which the provisions of
this Section 11.02 apply, and Tenant will produce the same on request of
Landlord.
11.03 If this Lease is assigned, whether or not in violation of this
Lease, Landlord may collect rent from the assignee. If the Demised Premises or
any part thereof are sublet or used or occupied by anybody other then Tenant,
whether or not in violation of this Lease, Landlord may, after default by
Tenant, and expiration of Tenant's time to cure such default, collect rent from
the subtenant or occupant. In either event, Landlord may apply the net amount
collected to the Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of any of the provisions of Section
11.01 or Section 11.02, or the acceptance of the assignee, subtenant or occupant
as tenant, or a release of Tenant from the performance by Tenant of Tenant's
obligations under this Lease. The consent by Landlord to any assignment,
mortgaging, subletting or use or occupancy by others shall not in any way be
considered to relieve Tenant from obtaining the express written consent of
Landlord to any other or further assignment, mortgaging or subletting or use or
occupancy by others not expressly permitted by this Article 11. References in
this Lease to use or occupancy by others (that is, anyone other than Tenant)
shall not be construed as limited to subtenants and those claiming under or
through subtenants but shall be construed as including also licensees and others
claiming under or through Tenant, immediately or remotely.
11.04. Any permitted assignment or transfer, whether made with Landlord's
consent pursuant to Section 11.01 or without Landlord's consent if permitted by
Section 11.02, shall be made only if, and shall not be effective until, the
assignee shall execute, acknowledge and deliver to Landlord an agreement in
form and substance satisfactory to Landlord whereby the assignee shall
13
assume Tenant's obligations under this Lease and whereby the assignee shall
agree that all of the provisions in this Article 11 shall, notwithstanding such
assignment or transfer, continue to be binding upon it in respect to all future
assignments and transfers. Notwithstanding any assignment or transfer, whether
or not in violation of the provisions of this Lease, and notwithstanding the
acceptance of Rent by Landlord from an assignee, transferee, or any other party,
the original Tenant and any other person(s) who at any time was or were Tenant
shall remain fully liable for the payment of the Rent and for Tenant's other
obligations under this Lease.
11.05. The liability of the original Tenant and any other Person who was
responsible for Tenant's obligations under this Lease shall not be discharged,
by any agreement made by Landlord extending the time of performance of, or any
waiver or failure of Landlord to enforce, any of this Lease.
11.06. The listing of any name other than that of Tenant, whether on the
doors of the Demised Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Demised Premises,
nor shall it be deemed to be the consent of Landlord to any assignment or
transfer of this Lease or to any sublease of the Demised Premises or to the use
or occupancy thereof by others.
11.07. Without limiting any of the provisions of Article 25, if pursuant
to the Federal Bankruptcy Code (or any similar law hereafter enacted having the
same general purpose), Tenant is permitted to assign this Lease notwithstanding
the restrictions contained in this Lease, adequate assurance of future
performance by an assignee expressly permitted under such Code shall be deemed
to mean the deposit of cash security in an amount equal to the sum of one (1)
year's Fixed Rent plus an amount equal to the Additional Charges for the
Calendar Year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord for the balance of the Term,
without interest, as security for the full performance of all of Tenant's
obligations under this Lease, to be held and applied in the manner specified for
security in Section 8.01.
11.08. In the event of any permitted assignment or sublet, Tenant and
any assignee shall promptly pay to Landlord one-half (1/2) of any net
consideration received for any assignment or one-half (1/2) of the net rent
(Fixed Rent and Additional Charges) as and when received, in excess of the Fixed
Rent and Additional Charges required to be paid by Tenant for the period
affected by said assignment or sublease for the area sublet, computed on the
basis of an average square foot rent for the gross square footage
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Tenant has leased. As used herein net consideration and/or net rent shall mean
gross rent (Fixed Rent and Additional Charges) less any reasonable brokerage or
tenant work paid by Tenant or in connection with the assignment or sublet, said
Tenant or brokerage work to be amortized over the term of the assignment or
sublet.
ARTICLE 12 - COMPLIANCE WITH LAWS
12.01. Tenant shall comply with all Legal Requirements which shall, in
respect of the Demised Premises or the use and occupation thereof, or in respect
of the abatement of any nuisance in, on or about the Demised Premises, impose
any violation, order or duty on Landlord or Tenant; and Tenant shall pay all the
cost, expenses, fines, penalties and damages which may be imposed upon Landlord
or any Superior Lessor by reason of or arising out of Tenant's failure to fully
and promptly comply with and observe the provisions of this Section 12.01.
However, Tenant need not comply with any such law or requirement of any public
authority so long as Tenant shall be contesting the validity thereof, or the
applicability thereof to the Demised Premises, in accordance with Section 12.02.
12.02. Tenant may contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any Legal Requirement, provided that (a) Landlord shall not be
subject to criminal penalty or to prosecution for a crime, and neither the
Demised Premises nor any part thereof shall be subject to being condemned or
vacated, by reason of non-compliance or otherwise by reason of such contest; (b)
before the commencement of such contest, Tenant shall furnish to Landlord either
(i) the bond of a surety company satisfactory to Landlord, which bond shall be,
as to its provisions and form, satisfactory to Landlord, and shall be in an
amount at least equal to 125% of the cost of such compliance (as estimated by a
reputable contractor designated by Landlord) and shall indemnify Landlord
against the cost thereof and against all liability for damages, interest,
penalties and expenses (including reasonable attorneys' fees and expenses),
resulting from or incurred in connection with such contest or non-compliance, or
(ii) other security in place of such bond satisfactory to Landlord; (c) such
non-compliance or contest shall not constitute or result in any violation of any
Superior Lease or Superior Mortgage, or if any such Superior Lease and/or
Superior Mortgage shall permit such non-compliance or contest on condition of
the taking of action or furnishing of security by Landlord, such action shall be
taken and Tenant shall keep Landlord advised as to the status of such
proceedings. Without limiting the application of the above, Landlord shall be
deemed subject to prosecution for a crime if Landlord, or its managing
15
agent, or any officer, director, partner, shareholder or employee of Landlord or
its managing agent, as an individual, is charged with a crime of any kind or
degree whatsoever, whether by service of a summons or otherwise, unless such
charge is withdrawn before Landlord or its managing agent, or such officer,
director, partner, shareholder or employee of Landlord or its managing agent (as
the case may be) is required to plead or answer thereto.
ARTICLE 13 - INSURANCE AND INDEMNITY
13.01. Tenant shall maintain or cause to be maintained All Risk
insurance in respect of the Land and Building and other improvements on the Land
normally covered by such insurance for the benefit of Landlord, any Superior
Lessors, any Superior Mortgagees and any other parties Landlord may at any time
and from time to time designate, as their interests may appear. The All Risk
insurance will be in the amounts required by any Superior Lessor or any Superior
Mortgagee but not less than the amount sufficient to avoid the effect of the
co-insurance provisions of the applicable policy or policies. Landlord reserves
the right to require Tenant to increase the amount of casualty insurance
required to be maintained hereunder. Landlord may also maintain any other forms
and types of Insurance which Landlord shall deem reasonable in respect to the
Building and Land.
13.02 Tenant shall also maintain the following insurance: (a)
comprehensive general public liability insurance in respect of the Demised
Premises and the conduct and operation of business therein, with Landlord as an
additional named insured, and at Landlord's request with any Superior Lessors as
additional named insured(s), with limits of not less than $3,000,000 for bodily
injury or death to any one person and $5,000,000 for bodily injury or death to
any number of persons in any one occurrence, and $1,000,000 for property damage,
including water damage and sprinkler leakage legal liability, (b) All Risk
insurance in respect of Tenant's stock in trade, fixtures, furniture,
furnishings, removable floor coverings, equipment, signs and all other property
of Tenant in the Demised Premises in any amounts required by any Superior Lessor
or any Superior Mortgagee but not less than 80% of the full insurable value of
the property covered and not less than the amount sufficient to avoid the effect
of the co-insurance provisions of the applicable policy or policies, (c) rental
income insurance for the benefit of Landlord, insuring the Landlord against the
loss of Fixed Rent and Additional Charges, as in the Lease provided from the
perils of fire and extended coverage for a period of not less than one (1) year,
and (d) any other insurance required for compliance with the Insurance
Requirements. Landlord may at any time and from time to time require that the
limits for the
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comprehensive general public liability insurance to be maintained by Tenant be
increased to the limits that new Tenants in the Building are required by
Landlord to maintain. Tenant shall deliver to Landlord and any additional named
insured(s) certificates for such fully paid-for policies at least 10 days
before the Commencement Date. Tenant shall procure and pay for renewals of such
insurance from time to time before the expiration thereof, and Tenant shall
deliver to Landlord and any additional insured(s) certificates therefor at least
thirty (30) days before the expiration of any existing policy. All such policies
shall be issued by companies of recognized responsibility licensed to do
business in New Jersey, and all such policies shall contain a provision whereby
the same cannot be cancelled unless Landlord and any additional insured(s) are
given at least twenty (20) days' prior written notice of such cancellation.
13.03. Tenant shall not do, permit or suffer to be done any act, matter,
thing or failure to act in respect of the Demised Premises or use or occupy the
Demised Premises or conduct or operate Tenant's business in any manner
objectionable to any insurance company or companies whereby the fire insurance
or any other insurance then in effect in respect to the Land and Building or any
part thereof shall become void or suspended or whereby any premiums in respect
of insurance maintained by Landlord shall be higher than those which would
normally have been in effect for the occupancy contemplated under the Permitted
Uses. In case of a breach of the provisions of this Section 13.03, in addition
to all other rights and remedies of Landlord hereunder, Tenant shall (a)
indemnify Landlord and the Superior Lessors and hold Landlord and the Superior
Lessors harmless from and against any loss which would have been covered by
insurance which shall have become void or suspended because of such breach by
Tenant and (b) pay to Landlord any and all increases of premiums on any
insurance, including, without limitation, rent insurance, resulting from any
such breach.
13.04. Tenant shall indemnify and hold harmless Landlord and all
Superior Lessors and its and their respective partners, joint venturers,
directors, officers, agents, servants and employees from and against any and all
claims arising from or in connection with (a) the conduct or management of the
Demised Premises or of any business therein, or any work or thing whatsoever
done, or any condition created (other than by Landlord) in the Demised Premises
during the Term or during the period of time, if any, prior to the Commencement
Date that Tenant may have been given access to the Demised Premises; (b) any
act, omission or negligence of Tenant or any of its subtenants or licencees or
its or their partners, joint ventures, directors, officers, agents, employees or
contractors; (c) any accident, injury or damage whatever (unless caused solely
17
by Landlord's gross negligence or intentional act) occurring in the Demised
Premises; and (d) any breach or default by Tenant in the full and prompt payment
and performance of Tenant's obligations under this Lease; together with all
costs, expenses and liabilities incurred in or in connection with each such
claim or action or proceeding brought thereon, including, without limitation,
all attorneys' fees and expenses. In case any action or proceeding is brought
against Landlord and/or any Superior Lessor and/or its or their partners, joint
venturers, directors, officers, agents and/or employees by reason of any such
claim, Tenant, upon notice from Landlord or such Superior Lessor, shall resist
and defend such action or proceeding by counsel reasonably satisfactory to
Landlord.
13.05. Neither Landlord nor any Superior Lessor shall be liable or
responsible for, and Tenant hereby releases Landlord and each Superior Lessor
from, all liability and responsibility to Tenant and any person claiming by,
through or under Tenant, by way of subrogation or otherwise, for any injury,
loss or damage to any person or property in or around the Demised Premises or to
Tenant's business irrespective of the cause of such injury, loss or damage, and
Tenant shall require its insurers to include in all of Tenant's insurance
policies which could give rise to a right of subrogation against Landlord or any
Superior Lessor a clause or endorsement whereby the insurer waives any rights of
subrogation against Landlord and such Superior Lessors or permits the insured,
prior to any loss, to agree with a third party to waive any claim it may have
against said third party without invalidating the coverage under the insurance
policy.
ARTICLE 14 - RULES AND REGULATIONS
Tenant and its employees and agents shall faithfully observe and comply
with the Rules and Regulations and such reasonable changes therein (whether by
modification, elimination or addition) as Landlord at any time or times
hereafter may make and communicate to Tenant, which in Landlord's judgment,
shall be necessary for the reputation, safety, care or appearance of the Land
and Building, or the preservation of good order therein, or the operation or
maintenance or the Building or its equipment and fixtures and which do not
unreasonably affect the conduct of Tenant's business in the Demised Premises;
provided, however, that in case of any conflict or inconsistency between the
provisions of this Lease and any of the Rules and Regulations, the provisions of
this Lease shall control.
ARTICLE 15 - ALTERATIONS AND SIGNS
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15.01. Tenant shall not make any alterations or additions to the Demised
Premises, or make any holes or cuts in the walls, ceilings, roofs, or floors
thereof, or change the exterior color or architectural treatment of the Demised
Premises, without on each occasion first obtaining the consent of Landlord.
Tenant shall submit to Landlord plans and specifications for such work at the
time Landlord's consent is sought. Tenant shall pay to Landlord upon demand the
reasonable cost and expense of Landlord in (a) reviewing said plans and
specifications and (b) inspecting the alterations to determine whether the same
are being performed in accordance with the approved plans and specifications and
all Legal Requirements and Insurance Requirements, including, without
limitation, the fees of any architect or engineer employed by Landlord for such
purpose. Before proceeding with any permitted alteration which will cost more
than Fifty Thousand and 00/100 Dollars ($50,000.00) (exclusive of the costs of
decorating work and items constituting Tenant's Property), as estimated by a
reputable contractor designated by Landlord, Tenant shall obtain and deliver to
Landlord either (i) a performance bond and a labor and materials payment bond
(issued by a corporate surety licensed to do business in New Jersey), each in an
amount equal to 125% of such estimated cost and in form satisfactory to
Landlord, or (ii) such other security as shall be satisfactory to Landlord.
Tenant shall fully and promptly comply with and observe the Rules and
Regulations then in force in respect of the making of alterations. Any review or
approval by Landlord of any plans and/or specifications with respect to any
alterations is solely for Landlord's benefit, and without any representation or
warranty whatsoever to Tenant in respect to the adequacy, correctness or
efficiency thereof or otherwise.
15.02. Tenant shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of permitted alterations and
for final approval thereof upon completion, and shall cause alterations to be
performed in compliance therewith and with all applicable Legal Requirements and
Insurance Requirements. Alterations shall be diligently performed in a good and
workmanlike manner, using new materials and equipment at least equal in quality
and class to the better of (a) the original installations of the Building, or
(b) the then standards for the Building established by Landlord. Alterations
shall be performed by contractors first approved by Landlord; provided, however,
that any alterations in or to the mechanical, electrical, sanitary, heating,
ventilating, air conditioning or other systems of the Building shall be
performed only by the contractor(s) designated by Landlord. Alterations shall be
made in such manner as not to unreasonably interfere with or delay and as not to
impose any additional expense upon Landlord in the construction, maintenance,
repair or operation
19
of the Building; and if any such additional expense shall be incurred by
Landlord as a result of Tenant's making of any alterations, Tenant shall pay any
such additional expense upon demand. Throughout the making of alterations,
Tenant shall carry, or cause to be carried, workmen's compensation insurance in
statutory limits and general liability insurance, with completed operation
endorsement, for any occurrence in or about the Building, under which Landlord
and its managing agent and any Superior Lessor whose name and address shall
previously have been furnished to Tenant shall be named as parties insured, in
such limits as Landlord may reasonably require, with insurers reasonably
satisfactory to Landlord. Tenant shall furnish Landlord with reasonably
satisfactory evidence that such insurance is in effect at or before the
commencement of alterations and, on request, at reasonable intervals thereafter
during the making of alterations.
15.03. Tenant shall not place any signs on the roof, exterior walls or
grounds of the Demised Premises without first obtaining Landlord's written
consent thereto. In placing any signs on or about the Demised Premises, Tenant
shall comply with the Legal Requirements and obtain all required permits and/or
licenses at its expense.
ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY
16.01 All fixtures, equipment, improvements and appurtenances attached
to or built into the Demised Premises at the commencement of or during the Term,
whether or not by or at the expense of Tenant, shall be and remain a part of the
Demised Premises, shall be deemed to be the property of Landlord and shall not
be removed by Tenant, except as provided in Section 16.02. Further, any
carpeting or other personal property in the Demised Premises on the Commencement
Date, unless installed and paid for by Tenant, shall be and shall remain
Landlord's property and shall not be removed by Tenant.
16.02. All movable partitions, business and trade fixtures, machinery
and equipment, communications equipment and office equipment, whether or not
attached to or built into the Demised Premises, which are installed in the
Demised Premises by or for the account of Tenant without expense to Landlord and
can be removed without structural damage to the Building and all furniture,
furnishings, and other movable personal property owned by Tenant and located in
the Demised Premises (collectively, "Tenant's Property") shall be and shall
remain the property of Tenant and may be removed by Tenant at any time during
the Term; provided that if any of the Tenant's Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Demised Premises or the
20
Building resulting from the installation and/or removal thereof. Any equipment
or other property for which Landlord shall have granted any allowance or credit
to Tenant shall not be deemed to have been installed by or for the account of
Tenant without expense to Landlord, shall not be considered as the Tenant's
Property and shall be deemed the property of Landlord.
16.03. At or before the Expiration Date or the date of any earlier
termination of this Lease, or within fifteen (15) days after such an earlier
termination date, Tenant shall remove from the Demised Premises all of the
Tenant's Property (except such items thereof as Landlord shall have expressly
permitted to remain, which property shall become the property of Landlord if not
removed), and Tenant shall repair any damage to the Demised Premises, and the
Building resulting from any installation and/or removal of the Tenant's
Property. Any items of the Tenant's Property which shall remain in the Demised
Premises after the Expiration Date or after a period of fifteen (15) days
following an earlier termination date, may, at the option of Landlord, be deemed
to have been abandoned, and in such case such items may be retained by Landlord
as its property or disposed of by Landlord, without accountability, in such
manner as Landlord shall determine at Tenant's Expense.
ARTICLE 17 - REPAIRS AND MAINTENANCE
17.01. Upon substantial completion of Landlord's Work, Tenant and Landlord
shall have a "walk through" of the Demised Premises to confirm that Landlord's
Work has been substantially completed in accordance with Exhibit C. Tenant
shall, throughout the Term, take good care of the Demised Premises, the fixtures
and appurtenances therein, and shall not do, suffer, or permit any waste with
respect thereto. Except as provided for in Paragraph 17.02, Tenant shall be
responsible for all repairs, interior and exterior, structural and
nonstructural, ordinary and extraordinary, in and to the Demised Premises, the
Building and the Land (including the facilities and systems thereof). In
addition, Tenant shall keep and maintain all interior portions of the Demised
Premises including, without limitation, all building equipment, windows, doors,
loading bay doors and shelters, plumbing and electrical systems, heating,
ventilating and air conditioning ("HVAC") systems in a clean and orderly
condition. The phrase "keep and maintain" as used herein includes repairs,
replacement and/or restoration as appropriate. Tenant shall paint the exterior
of the Building during the first year of each Extended Period (as hereinafter
defined). Tenant shall also remove all debris from the roof and gutters two
(2) times per year during the months of November and March. Provided Tenant
complies with such obligation,
21
all repairs to the roof shall be Landlord's responsibility. Should any roof
failure not be corrected by Landlord within ten (10) business days of receipt of
written notice from Tenant, notifying Landlord of such failure, Tenant shall
have the right to undertake such repairs, at Landlord's expense, provided such
repair work is undertaking in compliance with any applicable guaranties. Tenant
shall not permit or suffer the over-loading of the floors of the Premises beyond
Two Hundred Fifty (250) pounds per square foot. Tenant shall promptly replace
all scratched, damaged or broken doors and glass in and about the Demised
Premises and shall be responsible for all repairs, maintenance and replacement
of wall and floor coverings in the Demised Premises and for the repair and
maintenance of all sanitary and electrical fixtures and equipment therein.
Tenant shall promptly make all repairs in or to the Demised Premises for which
Tenant is responsible, and any repairs required to be made by Tenant to the
mechanical, electrical, sanitary, heating, ventilating, air-conditioning or
other systems of the Building shall be performed by contractor(s) designated by
Landlord or by Tenant's own duly qualified technicians. All work shall be
completed in a good and workmanlike manner in compliance with all Legal
Requirements. Any other repairs in or to the Building and the facilities and
systems thereof for which Tenant is responsible shall be performed by Landlord
at Tenant's expense; but Landlord may, at its option, before commencing any such
work or at any time thereafter, require Tenant to furnish to Landlord such
security, in form (including, without limitation, a bond issued by a corporate
surety licensed to do business in New Jersey) and amount, as Landlord shall deem
necessary to assure the payment for such work by Tenant.
17.02. Landlord shall only be responsible for repairs to the structural
integrity of the Building to include walls, floors, roof, beams and supports.
Additionally, Landlord shall repair the parking area and guarantees such work
for the initial term of the Lease. Thereafter, all repairs to the parking area,
excluding any resurfacing, shall be Tenant's responsibility. Tenant shall also
be responsible for any repair required as a result of the negligent actions of
Tenant or its agents, employees, guests and invitees.
17.03. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
reasonable inconvenience, annoyance, interruption or injury to business arising
from Landlord's doing any repairs, maintenance or changes which Landlord is
required or permitted by this Lease, or required by Law, to make in or to any
portion of the Building.
22
ARTICLE 18 - ELECTRIC ENERGY; HVAC
18.01. Tenant shall purchase the electric energy required by it in the
Demised Premises at its own expense on a direct metered basis from the public
utility servicing the Demised Premises. Tenant expressly agrees that Landlord
shall not be liable for any failure, inadequacy or defect in the character or
supply of electric current furnished to the Demised Premises.
18.02. Tenant's use of electric energy in the Demised Premises shall not
at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises. In order to insure that
such capacity is not exceeded and to avert possible adverse effect upon the
Building's electric service, Tenant shall not, without Landlord's prior consent
in each instance (which shall not be unreasonably withheld), connect any
fixtures, appliances or equipment to the Building's electric distribution
system or make any alteration or addition to the electric system of the Demised
Premises existing on the Commencement Date. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall be provided by
Landlord and the cost thereof shall be paid by Tenant to Landlord on demand.
18.03. Tenant shall maintain and operate the heating, ventilation and
air-conditioning systems ("HVAC") servicing the Building and shall furnish its
own water and any other utilities required for operation of the Demised
Premises. The temperature maintained in the Building shall at all times be
within the limits prescribed in the Legal Requirements.
ARTICLE 19 - ACCESS, CHANGES AND NAME
19.01. Landlord and its agents shall have the right to enter and/or pass
through the Demised Premises at any time or times (a) to examine the Demised
Premises and to show them to actual and prospective Superior Lessors, Superior
Mortgagees, or prospective purchasers of the Building, and (b) to make such
repairs, alterations, additions and improvements in or to the Demised Premises
and/or in or to the Building or its facilities and equipment as Landlord is
required or desires to make. Landlord shall be allowed to take all materials
into and upon the Demised Premises that may be required in connection therewith,
without any liability to Tenant and without any reduction of Tenant's
obligations hereunder. During the period of eighteen (18) months prior to the
Expiration Date, Landlord and its agents may exhibit the Demised Premises to
prospective tenants.
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19.02. If at any time any windows of the Demised Premises are temporarily
darkened or obstructed by reason of any repairs, improvements, maintenance
and/or cleaning in or about the Building, or if any part of the Building or the
Common Areas, other than the Demised Premises, is temporarily or permanently
closed or inoperable, the same shall not be deemed a constructive eviction and
shall not result in any reduction or diminution of Tenant's obligations under
this Lease.
19.03. If, during the last month of the Term, Tenant has removed all or
substantially all of the Tenant's Property from the Demised Premises, Landlord
may, without notice to Tenant, immediately enter the Demised Premises and later,
renovate and decorate the same, without liability to Tenant and without
reducing or otherwise affecting Tenant's obligations hereunder.
19.04. Landlord reserves the right, at any time and from time to time, to
make such changes, alterations, additions and improvements in or to the Building
and the fixtures and equipment thereof as Landlord shall deem necessary or
desirable.
19.05. Landlord may adopt any name for the Building. Landlord reserves the
right to change the name and/or address of the Building at any time.
ARTICLE 20 - MECHANICS' LIENS AND OTHER LIENS
Nothing contained in this Lease shall be deemed, construed or interpreted
to imply any consent or agreement on the part of Landlord to subject Landlord's
interest or estate to any liability under any mechanic's or other lien law. If
any mechanic's or other lien or any notice of intention to file a lien is filed
against the Land, or any part thereof, or the Demised Premises, or any part
thereof, for any work, labor, service or materials claimed to have been
performed or furnished for or on behalf of Tenant or anyone holding any part of
the Demised Premises through or under Tenant, Tenant shall cause the same to be
cancelled and discharged of record by payment, bond or order of a court of
competent jurisdiction within fifteen (15) days after notice by Landlord to
Tenant.
ARTICLE 21 - NON-LIABILITY
21.01. Neither Landlord nor any partner, joint venturer, director,
officer, agent, servant or employee of Landlord shall be liable to Tenant for
any loss, injury or damage to Tenant or to any other Person, or to its or their
property, irrespective of the
24
cause of such injury, damage or loss, unless caused by or resulting from the
negligence of Landlord, its agents, servants or employees in the operation or
maintenance of the Land or Building without contributory negligence on the part
of Tenant or any of its subtenants or licensees or its or their employees,
agents or contractors. Further, neither Landlord nor any partner, joint
venturer, director, officer, agent, servant or employee of Landlord shall be
liable (a) for any such damage caused by other tenants or Persons in, upon or
about the Land or Building, or caused by operations in construction of any
private, public or quasi-public work; or (b) even if negligent, for
consequential damages arising out of any loss of use of the Demised Premises or
any equipment or facilities therein by Tenant or any Person claiming through or
under Tenant.
21.02. Notwithstanding any provision to the contrary, Tenant shall look
solely to the estate and property of Landlord in and to the Land and Building
(or the proceeds received by Landlord on a sale of such estate and property but
not the proceeds of any financing or refinancing thereof) in the event of any
claim against Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises or
the Common Areas, and Tenant agrees that the liability of Landlord arising out
of or in connection with this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Demised Premises or the Common Areas shall be limited to
such estate and property of Landlord (or sale proceeds). No other properties or
assets of Landlord or any partner, joint venturer, director, officer, agent,
servant or employee of Landlord shall be subject to levy, execution or other
enforcement procedures for the satisfaction of any judgement (or other judicial
process) or for the satisfaction of any other remedy of Tenant arising out of,
or in connection with, this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Demised Premises or the Common Areas and if Tenant shall
acquire a lien on or interest in any other properties or assets by judgment or
otherwise, Tenant shall promptly release such lien on or interest in such other
properties and assets by executing, acknowledging and delivering to Landlord an
instrument to that effect prepared by Landlord's attorneys. Tenant hereby waives
the right of specific performance and any other remedy allowed in equity if
specific performance or such other remedy could result in any liability of
Landlord for the payment of money to Tenant, or to any court or governmental
authority (by way of fines or otherwise) for Landlord's failure or refusal to
observe a judicial decree or determination, or to any third party.
ARTICLE 22 - DAMAGE OR DESTRUCTION
25
22.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this Lease shall
not be terminated as in this Article 22 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the Demised
Premises (except for the Tenant's Property) with reasonable dispatch after
notice to it of the damage or destruction and the collection of the insurance
proceeds attributable to such damage.
22.02. Subject to the provisions of Section 22.05, if all or part of the
Demised Premises shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, the Rent shall be
abated or reduced, as the case may be, in the proportion that the untenantable
area of the Demised Premises bears to the total area of the Demised Premises,
for the period from the date of the damage or destruction to (a) the date the
damage to the Demised Premises shall be substantially repaired, or (b) if the
Building and not the Demised Premises is so damaged or destroyed, the date on
which the Demised Premises shall be made tenantable; provided, however, should
Tenant reoccupy a portion of the Demised Premises during the period the repair
or restoration work is taking place and prior to the date that the Demised
Premises are substantially repaired or made tenantable the Rent allocable to
such reoccupied portion, based upon the proportion which the area of the
reoccupied portion of the Demised Premises bears to the total area of the
Demised Premises, shall be payable by Tenant from the date of such occupancy.
22.03. If (a) the Building or the Demised Premises shall be totally damaged
or destroyed by fire or other casualty, or (b) the Building shall be so damaged
or destroyed by fire or other casualty (whether or not the Demised Premises are
damaged or destroyed) that its repair or restoration requires the expenditure,
as estimated by a reputable contractor or architect designated by Landlord, of
more than twenty percent (20%) (or ten percent [10%] if such casualty occurs
during the last two [2] years of the Term) of the full insurable value of the
Building immediately prior to the casualty, or (c) the Building shall be damaged
or destroyed by fire or other casualty (whether or not the Demised Premises are
damaged or destroyed) and either the loss shall not be covered by Landlord's
insurance or the net insurance proceeds (after deducting all expenses in
connection with obtaining such proceeds) shall, in the estimation of a reputable
contractor or architect designated by Landlord be insufficient to pay for the
repair or restoration work, then in either such case Landlord may terminate this
Lease by giving Tenant notice to such effect within ninety (90) days after the
date of the fire or other casualty.
26
22.04. Tenant shall not be entitled to terminate this Lease and no
damages, compensation or claim shall be payable by Landlord for inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Demised Premises or of the Building pursuant to this Article 22.
Landlord shall use its best efforts to make such repair or restoration promptly
and in such manner as to not unreasonably interfere with Tenant's use and
occupancy of the Demised Premises, but Landlord shall not be required to do
such repair or restoration work except during Business Hours on Business Days.
22.05. Notwithstanding any of the foregoing provisions of this Article 24,
if by reason of some act or omission on the part of Tenant or any of its
subtenants or its or their partners, directors, officers, servants, employees,
agents or contractors, either (a) Landlord or any Superior Lessor or any
Superior Mortgagee shall be unable to collect all of the insurance proceeds
(including, without limitation, rent insurance proceeds) applicable to damage
or destruction of the Demised Premises or the Building by fire or other
casualty, or (b) the Demised Premises or the Building shall be damaged or
destroyed or rendered completely or partially untenantable on account of fire or
other casualty, then, without prejudice to any other remedies which may be
available against Tenant, there shall be no abatement or reduction of the Rent.
Further, nothing contained in this Article 22 shall relieve Tenant from any
liability that may exist as a result of any damage or destruction by fire or
other casualty.
22.06. Landlord will not carry insurance of any kind on the Tenant's
Property, and, except as provided by law or by reason of Landlord's breach of
any of its obligations hereunder, shall not be obligated to repair any damage to
or replace the Tenant's Property.
22.07. The provisions of this Article 22 shall be deemed an express
agreement governing any case of damage or destruction of the Demised Premises
and/or Building by fire or other casualty, and any law providing for such a
contingency in the absence of and express agreement, now or hereafter in force,
shall have no application in such case.
ARTICLE 23 - EMINENT DOMAIN
23.01 If the whole of the Demised Premises shall be taken by any public or
quasi-public authority under the power of condemnation, eminent domain or
expropriation, or in the event of conveyance of the whole of the Demised
Premises in lieu thereof,
27
this Lease shall terminate as of the day possession shall be taken by such
authority. If 25% or less of the Floor Space of the Demised Premises shall be so
taken or conveyed, this Lease shall terminate only in respect of the part so
taken or conveyed as of the day possession shall be taken by such authority. If
more than 25% of the Floor Space of the Demised Premises shall be so taken or
conveyed, this Lease shall terminate only in respect of the part so taken or
conveyed as of the day possession shall be taken by such authority, but either
party shall have the right to terminate this Lease upon notice given to the
other party within 30 days after such taking possession. If more than 25% of
the Floor Space of the Building shall be so taken or conveyed, Landlord may,
by notice to Tenant, terminate this Lease as of the day possession shall be
taken. If so much of the parking facilities shall be so taken or conveyed that
the number of parking spaces necessary, in Landlord's judgment, for the
continued operation of the Building or the Entire Premises shall not be
available, Landlord shall, by notice to Tenant, terminate this Lease as of the
day possession shall be taken. If this Lease shall continue in effect as to any
portion of the Demised Premises not so taken or conveyed, the Rent shall be
computed as of the day possession shall be taken on the basis of the remaining
Floor Space of the Demised Premises. Except as specifically provided herein, in
the event of any such taking or conveyance there shall be no reduction in Rent.
If this Lease shall continue in effect, Landlord shall, at its expense, but
shall be obligated only to the extent of the net award or other compensation
(after deducting all expenses in connection with obtaining same) available to
Landlord for the improvements taken or conveyed (excluding any award or other
compensation for land or for the unexpired portion of the term of any Superior
Lease), make all necessary alterations so as to constitute the remaining
Building a complete architectural and tenantable unit, except for the Tenant's
property, and Tenant shall make all alterations or replacements to the Tenant's
property and decorations in the Demised Premises. All awards and compensation
for any taking or conveyance, whether for the whole or a part of the Land or
Building, the Demised Premised or otherwise, shall be property of Landlord,
and Tenant hereby assigns to Landlord all of Tenant's right, title and interest
in and to any and all such awards and compensation, including, without
limitation, any award or compensation for the value of the unexpired portion of
the Term. Tenant shall be entitled to claim, prove and receive in the
condemnation proceeding such award or compensation as may be allowed for the
Tenant's property and for loss of business, good will, and depreciation or
injury to and cost of removal of the Tenant's property, but only if such award
or compensation shall be made by the condemning authority in addition to, and
shall not result in a reduction of, the award or compensation made by it to
28
Landlord.
23.02. If the temporary use or occupancy of all or any part of the Demised
Premises shall be taken during the Term, Tenant shall be entitled, except as
hereinafter set forth, to receive that portion of the award or payment for such
taking which represents compensation for the use and occupancy of the Demised
Premises, for the taking of the Tenant's Property and for moving expenses, and
Landlord shall be entitled to receive that portion which represents
reimbursement for the cost of restoration of the Demised Premises. This Lease
shall be and remain unaffected by such taking and Tenant shall continue
responsible for all of its obligations hereunder insofar as such obligations are
not affected by such taking and shall continue to pay the Rent in full when due.
If the period of temporary use or occupancy shall extend beyond the Expiration
Date, that part of the award or payment which represents compensation for the
use and occupancy of the Demised Premises (or a part thereof) shall be divided
between Landlord and Tenant so that Tenant shall receive (except as otherwise
provided below) so much thereof as represents compensation for the period up to
and including the Expiration Date and Landlord shall receive so much thereof as
represents compensation for the period after the Expiration Date. All monies to
be paid to Tenant as, or as part of, an award or payment for temporary use and
occupancy for a period beyond the date to which the Rent has been paid shall be
received, held and applied by the first Superior Mortgagee (or if there is no
Superior Mortgagee, by Landlord as a trust fund) for payment of the Rent
becoming due hereunder.
ARTICLE 24 - SURRENDER
24.01. On the Expiration Date, or upon any earlier termination of this
Lease, or upon any re-entry by Landlord upon the Demised Premises, Tenant shall
quit and surrender the Demised Premises to Landlord "broom-clean" and in good
order, condition and repair, except for ordinary wear and tear and such damage
or destruction as Landlord is required to repair or restore under this Lease,
and Tenant shall remove all of Tenant's property therefrom except as otherwise
expressly provided in this Lease.
24.02. If Tenant remains in possession of the Demised Premises after the
expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises as a tenant from month to month at the sufferance of Landlord subject
to all of the provisions of this Lease, except that the monthly Fixed Rent shall
be twice the Fixed Rent in effect during the last month of the Term.
24.03. No act or thing done by Landlord or its agents shall
29
be deemed an acceptance of a surrender of the Demised Premises, and no agreement
to accept such surrender shall be valid unless in writing and signed by
Landlord.
ARTICLE 25 - CONDITIONS OF LIMITATION
25.01. This Lease is subject to the limitation that whenever Tenant or any
Guarantor (a) shall make an assignment for the benefit of creditors, or (b)
shall commence a voluntary case or have entered against it an order for relief
under any chapter of the Federal Bankruptcy Code (Title 11 of the United States
Code) or any similar order or decree under any federal or state law, now in
existence, or hereafter enacted having the same general purpose, and such order
or decree shall have not been stayed or vacated within thirty (30) days after
entry, or (c) shall cause, suffer, permit or consent to the appointment of a
receiver, trustee, administrator, conservator, sequestrator, liquidator or
similar official in any federal, state or foreign judicial or nonjudicial
proceeding, to hold, administer and/or liquidate all or substantially all of its
assets, and such appointment shall not have been revoked, terminated, stayed or
vacated and such official discharged of his duties within thirty (30) days of
his appointment then Landlord, at any time after the occurrence of any such
event, may give Tenant a notice of intention to end the Term at the expiration
of five (5) days from the date of service of such notice of intention, and upon
the expiration of said five (5) day period, whether or not the Term shall
theretofore have commenced, this Lease shall terminate with the same effect as
if that day were the expiration date of this Lease, but Tenant shall remain
liable for damages as provided in Article 27.
25.02. This Lease is subject to the further limitations that: (a) if
Tenant shall default in the payment of any Rent, and such default shall continue
for five (5) days after notice or (b) if Tenant shall, whether by action or
inaction, be in default of any of its obligations under this Lease (other than a
default in the payment of Rent) and such default shall continue and not be
remedied within fifteen (15) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a default which cannot with due
diligence be cured within a period of fifteen (15) days and the continuance of
which for the period required for cure will not subject Landlord or any Superior
Lessor for prosecution for a crime (as more particularly described in the last
sentence of Section 12.02) or termination of any Superior Lease or foreclosure
of any Superior Mortgage, if Tenant shall not, (i) within said fifteen (15) day
period advise Landlord of Tenant's intention to take all steps necessary to
remedy such default, (ii) duly commence within said fifteen (15) day period, and
thereafter
30
diligently prosecute to completion all steps necessary to remedy the default,
and (iii) complete such remedy within a reasonable time after the date of said
notice by Landlord, or (c) if any event shall occur or any contingency shall
arise whereby this Lease would, by operation of law or otherwise, devolve upon
or pass to any person, firm or corporation other than Tenant, except as
expressly permitted by Article 11, or (d) if Tenant shall vacate or abandon the
Demised Premises, or (e) if there shall be any default by Tenant (or any person
which, directly or indirectly, controls, is controlled by, or is under common
control with Tenant) under any other lease with Landlord (or any person which,
directly or indirectly, controls is controlled by, or is under common control
with Landlord) which shall not be remedied within the applicable grace period,
if any, provided therefor under such other lease, then in any of said cases
Landlord may give to Tenant a notice of intention to end the Term at the
expiration of five (5) days from the date of the service of such notice of
intention, and upon the expiration of said five (5) days, whether or not the
Term shall theretofore have commenced, this Lease shall terminate with the same
effect as if that day were the expiration date of this Lease, but Tenant shall
remain liable for damages as provided in Article 27.
ARTICLE 26 - RE-ENTRY BY LANDLORD
26.01. If Tenant shall default in the payment of any Rent, and such
default shall continue for five (5) days after notice, or if this Lease shall
terminate as provided in Article 25, Landlord or Landlord's agents and employees
may immediately or at any time thereafter re-enter the Demised Premises, or any
part thereof, either by summary dispossess proceedings or by any suitable action
or proceeding at law without being liable to indictment, prosecution or damages
therefor, and may repossess the same, and may remove any person therefrom, to
the end that Landlord may have, hold and enjoy the Demised Premises. The word
"re-enter," as used herein, is not restricted to its technical legal meaning. If
this Lease is terminated under the provisions of Article 25, or if Landlord
shall re-enter the Demised Premises under the provisions of this Article 26, or
in the event of the termination of this Lease, or of re-entry, by or under any
summary dispossess or other proceedings or action or any provision of law by
reason of default hereunder on the part of Tenant, Tenant shall thereupon pay to
Landlord the Rent payable up to the time of such termination of this Lease, or
of such recovery of possession of the Demised Premises by Landlord, as the case
may be, and shall also pay to Landlord damages as provided in Article 27.
26.02. In the event of a breach or threatened breach by Tenant
31
of any of its obligations under this Lease, Landlord shall also have the right
or injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any remedy
allowed at law or in equity as if specific remedies were not provided for
herein.
26.03. If this Lease shall terminate under the provisions of Article 25,
or if Landlord shall re-enter the Demised Premises under the provisions of this
Article 26, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all monies, if any, paid by Tenant to Landlord, whether as
Advance Rent, security or otherwise, but such monies shall be credited by
Landlord against any Rent due from Tenant at the time of such termination or re-
entry or, at Landlord's option, against any damages payable by Tenant under
Article 27 or pursuant to law.
ARTICLE 27 - DAMAGES
27.01. If this Lease is terminated under the provisions of Article 25, or
if Landlord shall re-enter the Demised Premises under the provisions of Article
26, or in the event of the termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Tenant shall pay as
Additional Charges to Landlord as a condition precedent to the dismissal of any
summary dispossess or other proceeding or action as damages, at the election of
Landlord, either:
(a) a sum which at the time of such termination of this Lease or at
the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of (i) the aggregate
amount of the Rent which would have been payable by Tenant
(conclusively presuming the average monthly Additional Charges to be
the same as were the average monthly Additional Charges payable for
the year, or if less than 365 days have then elapsed since the
Commencement Date, the partial year, immediately preceding such
termination or re-entry) for the period commencing with such earlier
termination of this Lease or the date of any such re-entry, as the
case may be, and ending with the Expiration Date, over (ii) the
aggregate rental value of the Demised Premises for the same period; or
32
(b) sums equal to the Fixed Rent and the Additional Charges which
would have been payable by Tenant has this Lease not so terminated, or
had Landlord not so re-entered the Demised Premises, payable upon the
due dates therefor specified herein following such termination or such
re-entry and until the Expiration Date, provided, however, that if
Landlord shall relet the Demised Premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting from the
gross rents as and when received by Landlord from such reletting the
expenses incurred or paid by Landlord in terminating this Lease or in
re-entering the Demised Premises and in securing possession thereof,
as well as the expenses of reletting, including, without limitation,
altering and preparing the Demised Premises for new tenants, rent
concessions, brokers' commissions, legal fees, and all other expenses
properly chargeable against the Demised Premises and the rental
therefrom, it being understood that any such reletting may be for a
period shorter or longer than the period ending on the Expiration
Date; but in no event shall Tenant be entitled to receive any excess
of such net rents over the sums payable by Tenant to Landlord
hereunder, nor shall Tenant be entitled in any suit for the collection
of damages pursuant to this subdivision (b) to a credit in respect of
any rents from a reletting, except to the extent that such net rents
are actually received by Landlord. If the Demised Premises or any part
thereof should be relet in combination with other space, then proper
apportionment on a square foot basis shall be made of the rent
received from such reletting and of the expenses of reletting.
If the Demised Premises or any part thereof be relet by Landlord before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting. Landlord shall not be liable in any way
whatsoever for its failure or refusal to relet the Demised Premises or any part
thereof, or if the Demised Premises or any part thereof are relet, for its
failure to collect the rent under such reletting, and no such refusal or failure
to relet or failure to collect rent shall release or affect Tenant's liability
for damages or otherwise under this Lease.
33
27.02. Suit or suits for the recovery of such damages or, any installments
thereof, may be brought by Landlord at any time and from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired if it had not been
so terminated under the provisions of Article 25, or under any provision of law,
or had Landlord not re-entered the Demised Premises. Nothing herein contained
shall be construed to limit or preclude recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder on
the part of Tenant. Nothing herein contained shall be construed to limit or
prejudice the right of Landlord to prove for and obtain as damages by reason of
the termination of this Lease or re-entry of the Demised Premises for the
default of Tenant under this Lease, an amount equal to the maximum allowed by
any statute or rule of law in effect at the time, whether or not such amount be
greater than, equal to, or less than any of the sums referred to in Section
27.01.
27.03. In addition, if this Lease is terminated under the provisions of
Article 25, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 26, Tenant covenants that: (a) the Demised Premises then
shall be in the same condition as that in which Tenant has agreed to surrender
the same to Landlord at the Expiration Date; (b) Tenant shall have performed
prior to any such termination any obligation of Tenant contained in this Lease
for the making of any alteration or for restoring or rebuilding the Demised
Premises or the Building, or any part thereof; (c) Tenant shall comply with its
obligations pursuant to Article 37 hereof (Environmental Compliance) and (d) for
the breach of any covenant of Tenant set forth above in this Section 27.03,
Landlord shall be entitled immediately, without notice or other action by
Landlord, to recover, and Tenant shall pay, as and for liquidated damages
therefor, the cost of performing such covenant (as estimated by an independent
contractor selected by Landlord).
27.04 In addition to any other remedies Landlord may have under this Lease,
and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 27, if any Rent or damages payable hereunder by
Tenant to Landlord are not paid within five (5) days after demand therefor, the
same shall bear interest at the Late Payment Rate or the maximum rate permitted
by law, whichever is less, from the due date thereof until paid, and the amounts
of such interest shall be Additional Charges hereunder.
ARTICLE 28 - AFFIRMATIVE WAIVERS
28.01. Tenant, on behalf of itself and any and all persons
34
claiming through or under Tenant, does hereby waive and surrender all right and
privilege which it, they or any of them might have under or by reason of any
present or future law, to redeem the Demised Premises or to have a continuance
of this Lease after being dispossessed or ejected from the Demised Premises by
process of law or under the terms of this Lease or after the termination of this
Lease as provided in this Lease.
28.02. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Demised Premises and use of the Common Area, including, without limitation, any
claim for injury or damage, and any emergency and other statutory remedy with
respect thereto. Tenant shall not interpose any counterclaim of any kind in any
action or proceeding commenced by Landlord to recover possession of the Demised
Premises.
ARTICLE 29 - NO WAIVERS
The failure of either party to insist in any one or more instances upon the
strict performance of any one or more of the obligations of this Lease, or to
exercise any election herein contained, shall not be construed as a waiver or
relinquishment for the future of the performance of such one or more obligations
of this Lease or of the right to exercise such election, but the same shall
continue and remain in full force and effect with respect to any subsequent
breach, act or omission. The receipt by Landlord of Fixed Rent or Additional
Charges with knowledge of breach by Tenant of any obligation of this Lease shall
not be deemed a waiver of such breach.
ARTICLE 30 - CURING TENANT'S DEFAULTS
If Tenant shall default in the performance of any of Tenant's obligations
under this Lease, Landlord, without thereby waiving such default, may (but shall
not be obligated to) perform the same for the account and at the expense of
Tenant, without notice in a case of emergency, and in any other case only if
such default continues after the expiration of fifteen (15) days from the date
Landlord gives Tenant notice of the default. Bills for any expenses incurred by
Landlord in connection with any such performance by it for the account of
Tenant, and bills for all costs, expenses and disbursements of every kind and
nature whatsoever, including reasonable attorneys' fees and expenses, involved
in collecting or endeavoring to collect the Rent or any part thereof or
enforcing or endeavoring to enforce any rights against Tenant or Tenant's
35
obligations hereunder, under or in connection with this Lease or pursuant to
law, including any such cost, expense and disbursement involved in instituting
and prosecuting summary proceedings or in recovering possession of the Demised
Premises after default by Tenant or upon the expiration of the Term or sooner
termination of this Lease, and interest on all sums advanced by Landlord under
this Article at the rate of 4% percent per month or the maximum rate permitted
by law, whichever is less, may be sent by Landlord to Tenant monthly, or
immediately, at Landlord's option, and such amounts shall be due and payable in
accordance with the terms of such bills.
ARTICLE 31 - BROKER
Tenant represents that no broker except the Broker was instrumental in
bringing about or consummating this Lease and that Tenant had no conversations
or negotiations with any broker except the Broker concerning the leasing of the
Demised Premises. Tenant agrees to indemnify and hold harmless Landlord against
and from any claims for any brokerage commissions and all costs, expenses and
liabilities in connection therewith, including, without limitation, attorneys'
fees and expenses, arising out of any conversations or negotiations had by
Tenant with any broker other than the Broker. Landlord shall pay any brokerage
commissions due the Broker pursuant to a separate agreement between Landlord and
the Broker.
ARTICLE 32 - NOTICES
Any notice, statement, demand, consent, approval or other communication
required or permitted to be given, rendered or made by either party to the
other, pursuant to this Lease or pursuant to any applicable Legal Requirement,
shall be in writing and shall be deemed to have been properly given, rendered or
made only if hand delivered or sent by United States registered or certified
mail, return receipt requested, addressed to the other party at the address
hereinabove set forth (except that after the Commencement Date, Tenant's
address, unless Tenant shall give notice to the contrary, shall be ▇▇▇▇▇ River
Corporation, Attention: Real ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ with a copy to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Legal Counsel, ▇/▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ with a copy to Tenant, at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.) as to Landlord, to the
attention of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, with a concurrent Notice to Landlord's
attorneys, Verde, ▇▇▇▇▇▇▇▇▇ & Pontell (attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.),
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and shall be deemed to have
been given, rendered or made on the second day after the day so mailed, unless
mailed outside the State of New Jersey, in which case it shall be deemed
36
to have been given, rendered or made on the third business day after the day so
mailed. Either party may, by notice as aforesaid, designate a different address
or addresses for notices, statements, demands, consents, approvals or other
communications intended for it.
ARTICLE 33 - ESTOPPEL CERTIFICATES
33.01. Each party shall, at any time and from time to time, as requested
by the other party, upon not less than ten (10) days' prior notice, execute and
deliver to the requesting party a statement certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), certifying the dates to which the Fixed Rent and Additional
Charges have been paid, stating whether or not, to the best knowledge of the
party giving the statement, the requesting party is in default in performance of
any of its obligations under this Lease, and, if so, specifying each such
default of which the party giving the statement shall have knowledge, and
stating whether or not, to the best knowledge of the party giving the statement,
any event has occurred which with the giving of notice or passage of time, or
both, would constitute such a default of the requesting party, and, if so,
specifying each such event; any such statement delivered pursuant hereto shall
be deemed a representation and warranty to be relied upon by the party
requesting the certificate and by others with whom such party may be dealing,
regardless of independent investigation. Tenant also shall include in any such
statement such other information concerning this Lease as Landlord may
reasonably request.
ARTICLE 34 - ARBITRATION
34.01. Landlord may at any time request arbitration, and Tenant may at any
time when not in default in the payment of any Rent request arbitration, of any
matter in dispute but only where arbitration is expressly provided for in this
Lease. The party requesting arbitration shall do so by giving notice to that
effect to the other party, specifying in said notice the nature of the dispute,
and said dispute shall be determined in Newark, New Jersey, by a single
arbitrator, in accordance with the rules then obtaining of the American
Arbitration Association (or any organization which is the successor thereto).
The award in such arbitration may be enforced on the application of either party
by the order or judgment of a court of competent jurisdiction. The fees and
expenses of any arbitration shall be borne by the parties equally, but each
party shall bear the expense of its own attorneys and experts and the additional
expenses of presenting its own
37
proof. If Tenant gives notice requesting arbitration as provided in this
Article, Tenant shall simultaneously serve a duplicate of the notice on each
Superior Mortgagee and Superior Lessor whose name and address shall previously
have been furnished to Tenant, and such Superior Mortgagees and Superior Lessee
shall have the right to participate in such arbitration.
ARTICLE 35 - MEMORANDUM OF LEASE
35.01. Tenant shall not record this Lease. However, at the request of
Landlord, Tenant shall promptly execute, acknowledge and deliver to Landlord a
memorandum of lease in respect of this Lease sufficient for recording. Such
memorandum shall not be deemed to change or otherwise affect any of the
obligations or provisions of this Lease. Whichever party records such memorandum
of Lease shall pay all recording costs and expenses, including any taxes that
are due upon such recording.
ARTICLE 36 - ENVIRONMENTAL COMPLIANCE
36.01. Tenant shall provide for the proper disposal of all chemical
solvents, wastes, and other products used and produced in the operation of
Tenant's business. Tenant shall not spill or discharge any "Hazardous
Substances", "Hazardous Wastes" or other pollutants as defined in the
Environmental Cleanup Responsibility Act N.J.S.A. 13:1K-6 et seq. and other
-- ---
State, Federal and local environmental laws or regulations (collectively
"ECRA"), on or about the Demised Premises or to any sewer, septic system or
waste treatment facility or system serving the Building. In the event Tenant
receives any notice, whether written or oral, concerning the occurrence of any
spill, discharge or cleanup of any "Hazardous Substances", "Hazardous Wastes" or
other pollutants on or about the Demised Premises or into any sewer, septic
system or waste treatment facility or system serving the Building, from the New
Jersey Department of Environmental Protection ("DEP") or other state, federal or
local environmental agency ("Hazardous Discharge"), or any complaint, order,
citation or notice with regard to air emissions, water discharge, noise
emissions or any other environmental, health or safety matter affecting Tenant
or the operations of Tenant at the Demised Premises ("Environmental Complaint")
from any person, entity, or governmental agency, then Tenant shall give
immediate oral notice of same to Landlord, and written notice within twenty-four
(24) hours to Landlord which notice shall set forth specifically all relevant
facts and circumstances with respect thereto. Failure to give such notice shall
be a default under this Lease.
36.02. Landlord shall have the right, but not the obligation
38
to enter onto the Demised Premises and/or take any action as it shall deem
necessary or advisable, to remove, cleanup, minimize the impact of, or otherwise
deal with, any Hazardous Discharge or any Environmental Complaint pertaining to
the Demised Premises, and all costs and expenses incurred by Landlord in the
exercise of such rights shall be deemed an "Additional Charge" and shall be
immediately due and payable by Tenant to Landlord. Landlord's right, as set
forth in the preceding sentence, shall be exercised only in the event that
Landlord determines in Landlord's sole judgment, that Tenant is not taking, in a
timely manner, all actions necessary to remove, cleanup, minimize the impact of,
or otherwise deal with, such Hazardous Discharges or Environmental Complaint.
36.03. In the event Tenant's operations at the Demised Premises now or
hereafter constitute an "Industrial Establishment" within the meaning of ECRA,
or in the event any other action is required to be taken by Tenant under ECRA,
then, upon the expiration or earlier termination of this Lease and upon any and
every event which shall constitute a closing, termination or transfer of
operations within the meaning of ECRA, or whenever other action is required to
be taken by Tenant in compliance with ECRA, Tenant shall comply with all
requirements of ECRA, at Tenant's sole cost and expense, to the satisfaction of
DEP or other environmental agency having jurisdiction, and Landlord. Tenant
shall immediately provide the Landlord copies of all correspondence, reports,
notices, orders, findings, declarations and other material pertinent to Tenant's
compliance with the provisions of ECRA immediately upon receipt of the same as
issued or received by Tenant from time to time. Tenant agrees to indemnify
Landlord from any and all liabilities that may result from an environmental
condition or an Environmental Complaint arising on or existing with respect to
the Demised Premises. This indemnity contained in this Paragraph 36.03 shall
survive the termination of this Lease.
36.04. In the event Tenant's operations at the Demised Premises shall not
subject it to the provisions of ECRA, then upon the expiration or earlier
termination of this Lease and upon any and every event which shall constitute a
closing, termination or transfer of operations within the meaning of ECRA,
Tenant shall obtain and deliver to Landlord, prior to any such termination, a
Letter of Non-Applicability confirming that the provisions of ECRA do not apply
to such closing or termination.
ARTICLE 37 - MISCELLANEOUS
37.01. Tenant expressly acknowledges and agrees that Landlord
39
has not made and it not making, and Tenant, in executing and delivering this
Lease, is not relying upon, any warranties, representations, promises or
statements, except to the extent that the same are expressly set forth in this
Lease or in any other written agreement(s) which may be made between the parties
concurrently with the execution and delivery of this Lease. All understandings
and agreements heretofore had between the parties are merged in this Lease and
any other written agreement(s) made concurrently herewith, which alone fully and
completely express the agreement of the parties and which-are entered into after
full investigation. Neither party has relied upon any statement or
representation not embodied in this Lease or in any other written agreement(s)
made concurrently herewith.
37.02. No agreement shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, unless such agreement is in writing, refers expressly to this Lease and is
signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of abandonment is
sought.
37.03. If Tenant shall at any time request Landlord to sublet or let the
Demised Premises for Tenant's account, Landlord or its agent is authorized to
receive keys for such purposes without releasing Tenant from any of its
obligations under this Lease, and Tenant hereby releases Landlord of any
liability for loss or damage to any of the Tenant's Property in connection with
such subletting or letting.
37.04. Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to; provided, however, that (a) no violation
of the provisions of Article 11 shall operate to vest any rights in any
successor or assignee of Tenant and (b) the provisions of this Section 37.04
shall not be construed as modifying the conditions of limitation contained in
Article 25.
37.05. Except for Tenant's obligations to pay Rent, the time for Landlord
or Tenant, as the case may be, to perform any of its respective obligations
hereunder shall be extended if and to the extent that the performance hereof
shall be prevented due to any Unavoidable Delays.
37.06. Any liability for payments hereunder (including, without
limitation, Additional Charges) shall survive the
40
expiration of the Term or earlier termination of this Lease.
37.07. If Tenant shall request Landlord's consent and Landlord shall fail
or refuse to give such consent, Tenant shall not be entitled to any damages for
any withholding by Landlord of its consent; Tenant's sole remedy shall be an
action for specific performance or injunction, and such remedy shall be
available only in those cases where Landlord has expressly agreed in writing not
to unreasonably withhold or delay its consent or where as a matter of law
Landlord may not unreasonably withhold its consent.
37.08. Tenant shall not exercise its rights under Article 15 or any other
provision of this Lease in a manner which would violate Landlord's union
contracts or create any work stoppage, picketing labor disruption or dispute or
any interference with the business of Landlord or any tenant or occupant of the
Building.
37.09. Tenant shall give prompt notice to Landlord of (a) any occurrence in
or about the Demised Premises for which Landlord might be liable, (b) any fire
or other casualty in the Demised Premises, (c) any damage to or defect in the
Demised Premises, including the fixtures and equipment thereof, for the repair
of which Landlord might be responsible, and (d) any damage to or defect in any
part of the Building's sanitary, electrical, heating, ventilating, air-
conditioning, elevator or other systems located in passing through the Demised
Premises or any part thereof.
37.10. This Lease shall be governed by and construed in accordance with the
laws of the State of New Jersey. If any provision of this Lease shall be invalid
or unenforceable, the remainder of this Lease shall not be affected and shall
be enforced to the extent permitted by law. The table of contents, captions,
headings and titles in this Lease are solely for convenience of reference and
shall not affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. If any words or phrases in this Lease shall
have been stricken out or otherwise eliminated, whether or not any other words
or phrases have been added, this Lease shall be construed as if the words or
phrases so stricken out or otherwise eliminated were never included in this
Lease and no implication or interference shall be drawn from the fact that said
words or phrases were so stricken out or otherwise eliminated. Each covenant,
agreement, obligation or other provision of this Lease on Tenant's part to be
performed, shall be deemed and construed as a separate and independent covenant
of Tenant, not dependent on any other provision of this Lease. All terms and
words used in this Lease, regardless of the number or gender in which they are
used, shall
41
be deemed to include any other number and any other gender as the context may
require.
37.11. Within thirty (30) days of each anniversary date of this Lease,
Tenant shall annually furnish to Landlord a copy of its then current audited
financial statement which shall be employed by Landlord for purposes of
financing the Premises and not distributed otherwise without prior
authorization of Tenant. In the event Tenant shall not furnish such financial
statement as set forth above, Tenant shall pay to Landlord a late charge equal
to one (1) month's Fixed Rent for each thirty (30) day period or part thereof
which expires from the due date to the date of actual receipt by Landlord of
such statement. Any material adverse change of Tenant's financial condition
shall be furnished to Landlord in writing forthwith and without request by
Landlord for same.
ARTICLE 38 - EXTENSION OF TERM
38.01. Provided Tenant is not in default of any of the terms and
conditions of this Lease, Tenant shall have two (2) option (s) (the "First
Option" and the "Second Option", respectively) to extend the term of this Lease
for two additional periods of five (5) years each (the "First Extended Period"
and "Second Extended Period", respectively, or collectively, the "Extended
Periods"). The First Extended Period shall commence upon the day following the
date upon which the Lease would otherwise expire and the Second Extended Period
shall commence upon the day following the date upon which the First Extended
Period would otherwise expire.
38.02. If Tenant elects to exercise the First Option, it shall do so by
giving notice of such election to Landlord in writing not more than fifteen (15)
months and not less than twelve (12) months before the Expiration Date. If
Tenant elects to exercise the Second Option, it shall do so by giving notice of
such election to Landlord in writing not more than fifteen (15) months and not
less than twelve (12) months before the last day of the First Extended Period.
38.03. Tenant agrees that it shall have forever waived its right to
exercise either option if it shall fail for any reason whatsoever to give such
notice to Landlord by the time provided for the giving of such notice, whether
such failure is inadvertent or intentional, time being of the essence as to the
exercise of such Option.
38.04. If Tenant elects to exercise either Option, the Term shall be
automatically extended for the applicable Extended Period covered by the Option
so exercised without execution of an
42
extension or renewal lease. Within ten (10) days after request of either party
after the effective exercise of any such Option, Landlord and Tenant shall
execute, acknowledge and deliver to each other duplicate originals of an
instrument in recordable form confirming that such Option was effectively
exercised.
38.05. The Extended Periods shall be upon the same terms and conditions as
are in effect immediately preceding the commencement of such Extended Period,
except that (a) Tenant shall have no right or option to extend the term for any
period of time beyond the expiration of the Second Extended Period, (b) in the
Extended Period the Fixed Rent shall be adjusted as provided in Paragraph 38.06
hereof and (c) Tenant shall accept the Premises in its "AS IS" condition and
Landlord shall have no obligation to perform any work to the Premises. Any
termination, expiration, cancellation, surrender, assignment or sublet of this
Lease shall terminate any right or option for the Extended Periods not yet
exercised. Landlord shall have the right, for thirty (30) days after receipt of
notice of Tenant's election to exercise any option to extend the Term, to reject
Tenant's election if Tenant gave such notice during the continuance of an event
of default beyond any applicable grace period and such rejection shall
automatically render Tenant's election to exercise such Option null and void and
of no effect. The Options to extend the Term may not be severed from this Lease
or separately sold, assigned or otherwise transferred.
38.06. The Fixed Rent for the Extended Periods shall be at ninety (90%)
percent of Fair Market Value. Fair Market Value shall be determined by mutual
agreement of the parties within a reasonable time following Tenant's exercise of
its option to extend the term of the Lease. If the parties are unable to agree
on the Fair Market Value, the parties shall choose a licensed Real Estate
Appraiser who shall determine the Fair Market Value. The cost of said Real
Estate Appraiser shall be borne equally by the parties. If the parties are
unable to agree on a licensed Real Estate Appraiser, each party shall select one
licensed Real Estate Appraiser to appraise the Fair Market Value. If the
difference between the two appraisals is 20% or less of the lower appraisal then
the Fair Market Value shall be the average of the two appraisals. If the
difference between the two appraisals is greater than twenty (20%) percent of
the lower appraisal, the two
43
appraisers shall select a third licensed Real Estate Appraiser to appraise the
Fair Market Value. The cost of the third appraisal shall in such case be borne
equally by the parties.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
WITNESS: LANDLORD:
ETZIONI PARTNERS
[SIGNATURE APPEARS HERE] By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------- -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
Manager and General Partner
ATTEST: TENANT:
▇▇▇▇▇ RIVER CORPORATION
[SIGNATURE APPEARS HERE] By: [SIGNATURE APPEARS HERE]
---------------------------- -------------------------
44
EXHIBIT A
---------
ALL that certain lot, tract or parcel of land and premises, with the
buildings and improvements thereon erected, situate, lying and being in the
Township of Edison, in the County of Middlesex and State of New Jersey.
BEGINNING at a point in the northwesterly side line of Brunswick Avenue, as
said Brunswick Avenue is delineated 60.00 feet wide on a map entitled "Map of
Brunswick Avenue & ▇▇▇▇▇▇ Road Right of Way", situated in the Township of
Edison, Middlesex County, N.J. and filed in the Clerk's Office of Middlesex
County October 26, 1966 as Map #3029, File #954, said point being the
southeasterly corner of land now or formerly of ▇▇▇▇▇▇ & Bodses; said beginning
point being also described along the following two courses from the intersection
of the northwesterly side line of a 100.00 foot Railroad Right of Way, formerly
lands of the United States of America, now or formerly of the Township of
Edison, with the southwesterly side line of ▇▇▇▇▇▇▇▇ Road 60.00 feet wide: (1)
South 29 degrees 18 minutes west a distance of 224.49 feet along the aforesaid
northwesterly line of the 100.00 foot wide Railroad Right of Way: (2) South 72
degrees 18 minutes West along the prolongation of the aforementioned
northwesterly line of Brunswick Avenue extended northeasterly and to and along
the aforesaid northwesterly line of Brunswick Avenue, a distance of 290.91 feet
to the place of Beginning, and from said beginning point running thence (1) 72
degrees 18 minutes west along the aforesaid northwesterly line of Brunswick
Avenue a distance of 357.00 feet to a point: thence (2) north 13 degrees 38
minutes 09 seconds West, parallel with the southwesterly line of land now or
formerly of ▇▇▇▇▇▇ & Bodses, a distance of 696.73 feet to a point: thence
(3) north 76 degrees 21 minutes 51 seconds east at right angles to the second
course of this description a distance of 364.73 feet to a point in the
northeasterly line of land now or formerly of ▇▇▇▇▇▇ & Bodses: thence (4) along
the same, South 12 degrees 54 minutes East a distance of 671.48 feet to a point,
the aforementioned northwesterly line of Brunswick Avenue and place of
BEGINNING.
EXHIBIT B
[MAP APPEARS HERE]
EXHIBIT C - LANDLORD'S WORK
---------------------------
Exterior
--------
1. The rear parking lot shall be completely repaved, including preparation of
a new base and the entire area enclosed with an eight (8) foot high cyclone
fence with angled barbed wire on top with gate as shown in red on Exhibit
B. The side parking lot shall be resurfaced.
2. A new roof shall be applied to the building.
3. The exterior non-brick of the building shall be re-painted.
4. Front yard landscaping shall be cleaned up.
5. Existing parking lot lighting shall be repaired.
6. Provided eight (8) 110 outlets for tractor engine heaters on the exterior
of the north wall (rear parking area). Space at twelve foot spacing from
west to east.
Docks
-----
1. Three additional loading docks shall be installed.
2. Drainage will be provided at the loading docks to prevent standing water.
3. New shelters will be installed at all docks which do not have them.
4. Edge of door dock plates shall be installed on all loading docks.
5. Trailer lighting units shall be supplemented so that each door has one.
6. An unheated "air curtain" blower shall be installed up over each loading
dock.
Interior - General
------------------
1. 1 1/2 to 2 air changes per hour guaranteed.
2. New halogen or sodium lighting shall be installed.
3. A new overhead gas heating system shall be installed.
4. The interior of the building shall be painted.
5. The existing alarm system shall be delivered intact.
6. A 110 volt outlet shall be provided at each loading dock for tractor engine
heaters.
7. All sprinkler heads in front warehouse shall be changed to 286 degrees F
1/2" heads.
8. All sprinkler heads in rear warehouse shall be changed to 286 degrees F
17/32" heads.
Interior - Office
-----------------
1. New exterior door shall be installed between the front parking area, and
the new office area to be built.
2. A three room office area consisting of approximately 600 sq. ft. shall be
built in accordance with Exhibit 'E', Landlord's Standard Building
Criteria.
3. One of the existing shipping offices shall be renovated.
4. All office areas shall be provided with heat and air conditioning.
5. Demolish all existing mezzanine space.
EXHIBIT D
---------
Rules and Regulations
---------------------
1. The rights of each tenant in the entrances, and corridors servicing
the Building (other than the loading docks) are limited to ingress and egress
from such tenant's premises for the tenant and its employees, licensees and
invitees, and no tenant shall use, or permit the use of, the entrances or
corridors, for any other purpose. Fire exits and stairways are for emergency use
only, and they shall not be used for any other purpose by the tenants, their
employees, licensees or invitees. No tenant shall encumber or obstruct, or
permit the encumbrance or obstruction of, any of the side walks, plazas,
entrances, corridors, fire exits or stairways of the Building. Subject to the
term of the lease between landlord and Tenant (the "Lease"), Landlord reserves
the right to control and operate the public portions of the Building and the
public facilities, as well as facilities furnished for the common use of the
tenants, in such manner as it deems best for the benefit of the tenants
generally.
2. Any person whose presence in the Building at any time shall, in the
judgement of Landlord, be prejudicial to the safety, character or reputation of
the Building or of its tenants may be denied access to the Building or may be
ejected therefrom. During any invasion, riot, public excitement or other
commotion, Landlord may prevent all access to the Building by closing the doors
or otherwise for the safety of the tenants and protection of property in the
Building.
3. No awnings or other projections shall be attached to the outside walls
of the Building.
4. No showcase or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the halls, corridors or
vestibules.
5. No animals, fish or birds of any kind shall be brought into or kept
in or about the premises of any tenant of the Building, except fish kept for
decorative or recreational purposes, confined to the office space.
6. No noise, including, but not limited to, music or the playing of
musical instruments, recordings, radio or television, which, in the judgement
of Landlord, might disturb other tenants in the building, shall be made or
permitted by any tenant. Subject to the terms of the Lease, nothing shall be
done or permitted in the premises of any tenant which would impair or interfere
with the use or enjoyment by any other tenant of any other space in the
Building.
7. No tenant, nor any tenant's contractors, employees, agents, visitors
or licensees, shall at any time bring into or keep upon the premises or the
Building any inflammable, combustible, explosive or otherwise dangerous fluid,
chemical or substance. Contrary to this article, Tenant shall operate motor lift
trucks, operated by electric, propane, or petroleum fuels.
8. Additional locks or bolts of any kind which shall not be operable by
the grand master key for the Building shall not be placed upon any of the doors
or windows by any tenant, nor shall any changes be made in locks or the
mechanism thereof which shall make such locks inoperable by said grand master
key. Each tenant shall, upon the termination of its tenancy, turn over to
Landlord all keys of stores, offices and toilet rooms, either furnished to, or
otherwise procured by, such tenant, and in the event of the loss of any keys
furnished by landlord such tenant shall pay to Landlord the cost thereof.
9. Landlord shall in no way be liable to any tenant for damages or loss
arising from the admission, exclusion or ejection of any person to or from the
premises or the Building under the provisions of this Rule or Rule 2 hereof.
10. No tenant shall occupy or permit any portion of its premises to be
occupied as an office for a public stenographer or public typist, or for the
possession, storage, manufacture, or sale of liquor, narcotics, dope, tobacco in
any form, or as a ▇▇▇▇▇▇, beauty or manicure shop, or as a school.
11. Landlord, its contractors, and their respective employees, shall have
the right to use, without charge therefore all lights, power and water in the
premises of any tenant while cleaning or making repairs or alterations in the
premises of such tenant.
12. No premises of any tenant shall be used for lodging or sleeping or for
any immoral or illegal purposes.
13. Employees of Landlord shall not perform any work or do anything
outside of their regular duties, unless under special instructions from
Landlord.
14. Canvassing, soliciting and peddling in the Building are prohibited and
each tenant shall cooperate to prevent the same.
15. No tenant shall cause or permit any unusual objectionable odors to
emanate from its premises which would annoy other tenants or create a public or
private nuisance. No cooking shall be done in the premises of any tenant except
as is expressly permitted in such tenant's Lease.
16. No acids, vapors or other materials shall be discharged or permitted
to be discharged into the waste lines, vents or flues of the Building which may
damage them. The water and wash closets and other plumbing fixtures in or
servicing any tenant's premises shall not be used for any purpose other than the
purposes for which they were designed or constructed, and no sweepings, rubbish,
rags, acids or other foreign substances shall be deposited therein. All damages
resulting from any misuse of the fixtures shall be borne by the tenants who, or
whose servants, employees, agents, visitors or licensees shall have caused the
same. Any cuspidors or containers or receptacles used as such in the premises or
any tenant or for garbage or similar refuse, shall be emptied, cared for and
cleaned by, and at the expense of such tenant.
17. All entrance doors in each tenant's premises shall be left locked and
all windows shall be closed by the tenant when the tenant's premises are not
in use.
18. Hand trucks not equipped with rubber tires and slide guards shall not
be used within the Building.
19. Subject to Section 14.01 of the Lease, landlord reserves the right to
rescind, alter or waive any rule or regulation of any prescribed for the
Building when, in its reasonable judgement, it deems it necessary, desirable or
proper for its best interest and for the best interest of the tenants, and no
alteration or waiver of any rule or regulation in favor of one tenant shall
operate as an alteration or waiver in favor of any other tenant.
EXHIBIT E
---------
Landlord Standard Building Criteria
-----------------------------------
I. INTERIOR PARTITIONS
-------------------
1.1 Interior standard partitions shall be constructed of steel studs faced on
each side with one layer of gypsum board. Studs shall be spaced 24" o.c.
and partitions shall extend to underside of suspended ceiling.
1.2 Demising walls shall be constructed as above except with batt sound
deadening insulation with openings as required to accommodate ductwork,
pipes and beams above suspended ceiling.
1.3 Partition allowance is 55 linear feet for each 1,000 sq. ft. of rentable
office space.
1.4 Curved, angular partitions, and interior windows are excluded. Partitions
terminating at exterior perimeter of building shall adjoin a window mullion
or column.
II. DOORS AND FRAMES
----------------
2.1 Doors shall be 3'0" x 6'8" x 1-3/4" flush solid core paint grade wood
single swing in steel frames. Typical frames shall be steel knockdown type
with factory prime finish.
2.2 Fire-rate doors, where required, shall be flush hollow metal 3'0" x 6'8" x
1-3/4" with door, frames and hardware conforming to requirements of
Underwriters' Laboratories.
2.3 Sliding or bi-fold door units shall be 6'8" high x 1-3/4" thick, width as
required, flush hollow core paint grade wood. Openings up to 6'-0" wide
shall count as one door unit.
2.4 Door allowance is three doors per 1,000 sq. ft. of rentable office space.
2.5 One single glass entry at exterior entrance.
III. HARDWARE
--------
3.1 Building standard hardware shall be ▇▇▇▇▇▇▇ 6 line equal US 26D brushed
chrome or US 10 Satin Bronze as selected by Tenant. Knobs shall be either
Orbit or Tulip design.
3.2 Typical interior doors shall have 1-1/2 pair of 4 1/2" x 4 1/2" butts,
lockset or latch set and door stop.
3.3 All locks shall be keyed to master key system.
IV. CEILINGS
--------
4.1 Materials and Installation
A. Ceiling suspension materials
1. Ceilings throughout shall be manufacturer's standard exposed
runners, cross-runners and accessories mechanically suspended on
a 2' x 4' metal grid to receive acoustical ceiling boards.
2. Ceiling members shall have uniform factory-applied finish on
exposed surfaces of ceiling suspension system, including molding,
trim and accessories. Finish shall be manufacturer's standard
white baked enamel.
B. Acoustical panels
1. Acoustical ceiling boards shall be 2' x 4' x 5/8" Celotex mosaic
pattern or equal lay-in fissured mineral acoustical boards with an NRC
of 50-65.
4.2 Ceiling height to be 8'-0" minimum, except where required to accommodate
mechanical installations.
V. FLOORING
--------
5.1 Materials and installation
A. Carpet
1. Carpeting in office areas shall be building standard wall-to-wall
glue down installation, color selected by Tenant from Landlord's
sample board.
2. Flame spread Rating: Provide only carpet which has been tested
and passed ASTM E84 (Tunnel Test) for Class "B" carpet.
B. Vinyl tile
1. Vinyl tile shall be 12" x 12" x 3/16".
2. Adhesives (Cements): Waterproof, stabilized type as recommended
by flooring manufacturer to suit material and substrate
conditions.
C. Resilient Base
1. Resilient base shall be building standard 4" high vinyl or rubber,
straight or cove continuous runs with premolded corners, color as
selected by Tenant.
VI. ELECTRICAL
----------
6.1 The work to be installed shall consist of the furnishing of all electrical
work in accordance with all rules and regulations of the municipality and
all other authorities having jurisdiction including National Electric Code.
6.2 Fixtures shall be mounted individually or continuous as indicated and shall
be suitable for type of mounting shown. Only fluorescent fixtures are
included.
6.3 Lighting shall consist of recessed 2' x 4' florescent lighting fixtures
with four (4) 40 watt lamps and acrylic lenses. Lighting fixtures shall be
installed at a rate of one (1) fixture for every 80 square feet of net
floor area.
6.4 Landlord shall initially install lamps at Landlord's expense. Lamps shall
be as manufactured by Westinghouse, G.E. or Sylvania. All fluorescent lamps
shall be Cool White, unless otherwise noted.
6.5 Each private office shall receive one (1) single pole switch. Open office
areas shall be switched in an adequate number to meet code requirements.
All switches shall be located in either columns or gypsum board partitions.
6.6 One (1) 110 volt duplex receptacle shall be installed for each 100 SF of
floor area.
6.7 The Landlord shall make available telephone service. The Tenant shall be
responsible for all telephone service throughout his demised premises.
VII. HVAC
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7.1 Building office standard air conditioning system is based on an average
electrical load of 3-1/2 ▇▇▇▇▇ per square foot and one (1) person per 200
square feet of useable area in accordance with the following design
conditions.
7.2 DESIGN CONDITIONS:
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Summer Outside 90 degrees F.D.B. 75 degrees F.W.B
Summer Inside 78 degrees F.D.B.+2 degrees F.
Winter Outside 13 degrees F. 15 Mile/Hr. Wind
Winter Inside 70 degrees F.D.B.
7.3 The air conditioning, heating and ventilating system will be designed and
installed to conform to local codes, ordinances, as well as the BOCA Code.
VIII.PAINTING AND DECORATING
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8.1 The building standard shall include two (2) coats of latex flat paint. All
metal and wood doors and frames shall receive two (2) coats of semi-gloss
enamel.
8.2 Minimum Coating Thickness: Apply material at not less than manufacturer's
recommended spreading rate to establish a total dry film thickness as
indicated or if not indicated, as recommended by coating manufacturer.
8.3 Tenant may select colors from building standard color chart but in no event
shall colors exceed one (1) color per room or four (4) colors total.
8.4 All vinyl or paper wallcovering shall be furnished and installed at the
expense of the Tenant.
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT, made this 13th day of April, 1992, between
----
Etzioni Partners, having an office c/o MGS Development, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Landlord") and ▇▇▇▇▇ River Paper Company,
Inc., a Virginia corporation with offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Tenant"), hereby amends a Warehouse Lease dated February 13,
1992 between Landlord and Tenant ("Lease") for approximately 94,400 square feet
of warehouse space located at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇.
NOW, THEREFORE, in consideration of the rents and covenants herein
specified to be paid by Tenant and the obligations and covenants herein
undertaken by the Landlord, Landlord and Tenant agree as follows:
1. Unless specifically amended by the terms hereof, the Lease shall
in all respects remain unmodified.
2. Paragraph 36.03 is deleted in its entirety and the following
substituted in its place: "In the event Tenant's operations at the Demised
Premises now or hereafter constitute an "Industrial Establishment" within the
meaning of ECRA, or in the event any other action is required to be taken by
Tenant under ECRA, then, upon the expiration or earlier termination of this
1
Lease and upon any and every event which shall constitute a closing, termination
or transfer of operations within the meaning of ECRA, or whenever other action
is required to be taken by Tenant in compliance with ECRA, Tenant shall comply
with all requirements of ECRA, at Tenant's sole cost and expense, to the
satisfaction of DEP or other environmental agency having jurisdiction, and
Landlord. Tenant shall immediately provide the Landlord copies of all
correspondence, reports, notices, orders, findings, declarations and other
material pertinent to Tenant's compliance with the provisions of ECRA
immediately upon receipt of the same as issued or received by Tenant from time
to time. Tenant agrees to indemnify Landlord from any and all liabilities that
may result from an environmental condition, Hazardous Wastes, Hazardous
Substances, Hazardous Discharge (collectively "Hazardous Substances") or an
Environmental Complaint caused by the operation of Tenant's business on the
Demised Premises after the Commencement Date and during Tenant's occupancy of
the Demised Premises. Tenant, at its expense, has hired an environmental testing
firm which has performed a non-invasive baseline site assessment on the Demised
Premises to learn of any preexisting or potential environmental condition. Such
testing did not reveal the existence of any Hazardous Substance at, in or upon
the Demised Premises except for the possible existence of asbestos containing
materials ("ACM") in the roofing and the existence of an underground storage
2
tank (the "Tank"). In the event any Environmental Requirement (as hereinafter
defined) requires removal or encapsulation of any ACM from the Demised Premises,
such removal or encapsulation shall be undertaken by Landlord at its cost and
expense. Additionally, Landlord shall use reasonable efforts to remove the Tank
on or before June 1, 1992, such removal to be in accordance with any Legal
Requirements. In the event the Tank is not removed prior to Tenant's occupancy
of the Demised Premises, Landlord's removal during Tenant's occupancy shall not
materially interfere with Tenant's use of the Demised Premises. Any reports,
letters, communication or any other documentation, written or oral, shall remain
confidential and shall not be disclosed to any person or entity (other than
those employees, agents and consultants of Landlord or Tenant with an actual
need to be aware of this information). Notwithstanding the foregoing, in no
event shall Tenant be or become liable for any preexisting environmental
condition, Hazardous Substances, or any Environmental Complaint arising from the
use or occupancy of the Demised Premises before the Commencement Date of the
Lease. Landlord shall indemnify Tenant from any and all liability arising from
the presence of Hazardous Substances upon, about or beneath the Demised
Premises, or having migrated from the Demised Premises, or arising in any manner
whatsoever out of the violation of any Environmental Requirement pertaining to
the Demised Premises, and the activities
3
thereon, provided such environmental condition existed at or prior to the
Commencement Date. The term "Environmental Requirement" means any laws,
ordinances, statutes, codes, rules, regulations (including zoning or subdivision
regulations), order, directives, permits or licenses addressing environmental,
health, or safety issues or requirement of or by any Federal, state, local or
other political subdivision exercising jurisdiction over the property, including
but not limited to the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. (S) 9601 et. seq.), the Hazardous Materials
Transportation Act (49 U.S.C. (S) 1801 et seq.), the Resource Conservation and
Recovery Act (42 U.S.A. (S) 6901 et. seq.), the Toxic Substances Control Act (15
U.S.C. (S) 2601 et. seq.)., the Clean Air Act (942 U.S.C. (S) 7401 et. seq.),
the Federal Water Pollution Control Act (33 U.S.C. (S) 1251 et. seq.), and the
Safe Drinking Water Act (42 U.S.C. (S) 300f et. seq.), all as presently in
effect and as the same may hereafter be amended from time to time, and any
regulation pursuant thereto. Landlord shall indemnify Tenant from any and all
liability arising from the presence of Hazardous Substances upon, about or
beneath the Demised Premise, or migrating to or from the Demised Premises,
caused by Landlord during the term of this Lease. Tenant shall indemnify
Landlord from any and all liability arising from the presence of Hazardous
Substances upon, about or beneath the Demised Premises, or migrating to or from
the Demised Premises,
4
caused by Tenant. The obligation of the indemnifying party shall include, but
shall not be limited to, the burden and expense of defending all claims, suits,
and administrative proceedings, even if such claims, suits or proceedings are
groundless, false or fraudulent, and conducting all negotiations of any
description, and paying and discharging, when as the same become due, any and
all judgments, penalties or other sums due against such indemnified persons. The
obligations of the indemnifying party shall survive, without limitation, the
expiration or earlier termination of the Lease.
Within thirty (30) days of Tenant vacating the Demised Premises and prior
to any new Tenant taking occupancy of the Demised Premises, Landlord, at its
option, may hire an environmental testing firm to conduct a closeout site
assessment of the Demised Premises to determine compliance by Tenant with ECRA
and any Environmental Requirement. The expense of the closeout site assessment
shall be borne by Landlord, provided, however, in the event it is determined
that Tenant has violated ECRA or any Environmental Requirement requiring any
clean up or remediation, Tenant shall reimburse Landlord for the cost of such
environmental testing. Any reports, letters, communication or other
documentation, written or oral, shall remain confidential and shall not be
disclosed to any person or entity (other than those employees, agents and
consultants of Landlord or Tenant with an
5
actual need to be aware of this information) except in the event Landlord
determines that any such factual data generated in connection with the closeout
site assessment creates an obligation of Tenant or Landlord, under any
applicable law, to notify any government or private entity or individual of the
data, in which event Landlord shall provide prior written notification to
Tenant. In the event that Landlord chooses not to perform the closeout site
assessment, or, in the event that the closeout site assessment, if performed,
does not reveal the presence of Hazardous Substances upon, about or beneath the
Demised Premises, or migrating to or from the Demised Premises, caused by
Tenant, in an amount which is in violation of any ECRA or any Environmental
Requirement, Landlord shall indemnify Tenant from and against any and all
liability as between Landlord and Tenant relating to the presence of any
Hazardous Substances at, in, or upon the Demised Premises, provided, however,
that Landlord does not notify Tenant, in writing, within one year of Tenant
vacating the Demised Premises, that Landlord has discovered any Hazardous
Substances at, in or upon the Demised Premises which Landlord reasonably
believes to have been caused by Tenant. Landlord shall have the burden of
establishing that the presence of any such Hazardous Substances at, in or upon
the Demised Premises was caused by Tenant. To the extent that the closeout site
assessment report or any subsequent inspections (subject to the Landlord's one
year notice requirement)
6
reveals environmental violations and/or the deposit at the Demised Premises of
Hazardous Substances caused by Tenant, Tenant shall commence removal of the same
within 30 days of written notice from Landlord and shall thereafter diligently
pursue such removal, in compliance with ECRA and any Environmental Requirement.
The responsibility of the Tenant to remove any Hazardous Substances caused by
Tenant during the term hereof shall survive the expiration or earlier
termination of this Lease. Notwithstanding the foregoing, in no event shall
Tenant be or become liable for any environmental condition, Hazardous
Substances, or any Environmental Complaint not caused by Tenant and arising from
the use or occupancy of the Demised Premises after the expiration or earlier
termination of this Lease.
3. The Lease is modified to provide that the correct name of the Tenant
is ▇▇▇▇▇ River Paper Company, Inc. By executing below, Tenant ratifies and
confirms its execution of the Lease and warrants and represents that the
individual signing on behalf of Tenant was a corporate officer duly authorized
to bind the Corporation and that the execution and delivery of the Lease and
this Modification has been approved as required by the Tenant's Certificate of
Incorporation and By-Laws.
4. Paragraphs 1.01E and 1.01K are modified to provide that the Building
and the Demised Premises contain approximately 94,940 square feet of Floor
Space. Prior to the Commencement Date,
7
Landlord shall forward to Tenant a certification form Landlord's architect
verifying the Floor Space of the Demised Premises. Tenant, at its option, may,
within thirty (30) business days of receipt of Landlord's certification, measure
the Demised Premises and certify to Landlord its calculation of the Floor Space
of the Demised Premises. In the event Landlord and Tenant are unable to agree
upon the Floor Space of the Demised Premises, the matter shall be submitted to
arbitration pursuant to Paragraph 34.01 of the Lease.
5. Tenant acknowledges that it is aware that Landlord, in reliance on
Tenant's execution of the Lease, will release its current Tenant from its
obligations under its lease (the "Prior Lease") with respect to the Demised
Premises. Accordingly, in the event Tenant defaults under the Lease, Tenant,
shall be responsible for any damages Landlord has suffered as a result of
terminating the Prior Lease, in addition to any other damages Landlord may be
entitled to pursuant to any applicable default provisions in the Lease.
6. In the fifth line of Paragraph 1.01I "May" is changed to "June".
7. In the seventh and eighth lines of Paragraph 37.11 "equal to one (1)
month's Fixed Rent" is deleted and the following substituted in its place: "in
the amount of Two Thousand Five Hundred and 00/100 ($2,500.00) Dollars.
8
8. Tenant is currently a tenant in premises located at ▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, pursuant to a written lease agreement (the "Tenant
Lease") dated May 9, 1989, executed by LMP Joint Venture, as Landlord, and
Tenant. Tenant has represented to Landlord that pursuant to the Tenant Lease,
Tenant will be deemed a holdover tenant as of May 1, 1992 and, accordingly, be
required to pay rent at a holdover rate equal to one and on-half times the rent
payable under the Tenant Lease (the "Holdover Rent"). Landlord has agreed to
reimburse Tenant for fifty (50%) percent of the difference between the Holdover
Rent and the basic monthly rent payable under the Lease for the month of May,
1992 (the "Holdover Reimbursement"), provided, however, that Landlord's
obligation under this paragraph shall not exceed Seven Thousand Five Hundred and
00/100 ($7,500.00) Dollars. Such reimbursement shall be effected by granting to
Tenant an offset to its first monthly payment of Fixed Rent payable under the
Lease in the amount of the Holdover Reimbursement. Prior to such reimbursement,
Tenant shall furnish Landlord with a certified statement setting forth the
amount of the Holdover Rent, which statement shall have annexed thereto
certified true copies of the applicable provisions of the Tenant Lease
confirming the amount of the Holdover Rent. Tenant shall use its best efforts to
negotiate with the Landlord under the Tenant Lease in order to obtain a
reduction in the amount of the Holdover Rent payable to said Landlord. In the
event of any such
9
reduction, the Holdover Reimbursement shall be recalculated so that Landlord
shall reimburse Tenant for fifty (50%) percent of the difference between the
reduced Holdover Rent and the basic monthly rent payable under the Lease for the
month of May, 1992, subject to the $7,500.00 cap provided for above.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands and
seals the date and year first above written, and acknowledge, the one to the
other, that they possess the requisite authority to enter into this transaction
and to sign this Agreement.
WITNESS: ETZIONI PARTNERS, Landlord
[SIGNATURE APPEARS HERE] By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------ ------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Manager and General Partner
ATTEST: ▇▇▇▇▇ RIVER PAPER COMPANY, INC.,
Tenant
[SIGNATURE APPEARS HERE] By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------ -----------------------------------
PRINT NAME: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
TITLE: VP, Corporate Finance & Treasurer
---------------------------------
10
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT, made this 9th day of December, 1992, between ETZIONI
---
PARTNERS, having an office c/o MGS Development, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ("Landlord") and ▇▇▇▇▇ RIVER PAPER COMPANY, INC., a Virginia
Corporation with offices at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("Tenant"), hereby amends a Warehouse Lease dated February 13, 1992 (which
Warehouse Lease was amended pursuant to a First Amendment dated April 13, 1992)
between Landlord and Tenant (the "Lease") for approximately 94,400 square feet
of warehouse space located at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and conditions hereinafter contained, and for good and valuable
consideration the receipt of which is hereby acknowledged, Landlord and Tenant
agrees as follows:
1. Unless specifically amended by the terms hereof, the Lease shall in
all respects remain unmodified.
2. Paragraph 13.02(c) is deleted in its entirety.
3. A new Paragraph 13.06 is added as follows:
13.06 Landlord shall maintain, at Tenant's expense, rental income
insurance for the benefit of Landlord, insuring the Landlord against the loss of
Fixed Rent and Additional Charges, as in the Lease provided from the perils of
fire and extended coverage for a period of not less than one (1) year. Tenant
shall reimburse Landlord for the cost of such insurance within ten (10) days of
receipt of an invoice for same from Landlord and such reimbursement
shall be deemed an Additional Charge for purposes of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands and
seals the date and year first above written, and acknowledge, the one to the
other, that they possess the requisite authority to enter into this transaction
and to sign this Agreement.
WITNESS: ETZIONI PARTNERS, Landlord
[SIGNATURE APPEARS HERE] By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------ ------------------------------------
Manager and General Partner
WITNESS: ▇▇▇▇▇ RIVER PAPER COMPANY, INC.,
Tenant
[SIGNATURE APPEARS HERE] By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ ------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
(Print Name)
Lease and Property Administrator
----------------------------------------
(Title)