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Exhibit 10.65
LEASE AGREEMENT
BY AND BETWEEN:
XXXXXXX X. XXXXX, TRUSTEE UNDER
TRUST INDENTURE DATED DECEMBER 1, 1972,
"Landlord"
-and-
STERIGENICS, INC.,
a corporation,
"Tenant"
PREMISES: 000 XXXXX XXXX
LOT 4.01, BLOCK 86.01
FRANKLIN TOWNSHIP, NEW JERSEY
PREPARED BY: XXXXXX X. XXXXX, ESQ.
DATED: JUNE 4, 1998
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TABLE OF CONTENTS
1. LEASED PREMISES..................................................... 1
2. TERM OF LEASE....................................................... 2
3. RENT................................................................ 3
4. CONDITION OF LEASED PREMISES........................................ 4
5. USE................................................................. 6
6. REPAIRS AND MAINTENANCE............................................. 7
7. UTILITIES........................................................... 8
8. TAXES............................................................... 9
9. INSURANCE........................................................... 10
10. SIGNS............................................................... 13
11. FIXTURES............................................................ 13
12. GLASS............................................................... 14
13. ASSIGNMENT AND SUBLETTING........................................... 14
14. FIRE AND CASUALTY................................................... 15
15. COMPLIANCE WITH LAWS, RULES AND REGULATIONS......................... 17
16. INSPECTION BY LANDLORD.............................................. 21
17. DEFAULT BY TENANT................................................... 21
18. LIABILITY OF TENANT FOR DEFICIENCY.................................. 24
19. NOTICES............................................................. 25
20. NON-WAIVER BY LANDLORD.............................................. 25
21. RIGHT OF TENANT TO MAKE ALTERATIONS AND IMPROVEMENTS................ 25
22. NON-LIABILITY OF LANDLORD........................................... 26
23. WARRANTY OF TITLE................................................... 27
24. RESERVATION OF EASEMENT............................................. 27
25. AIR, GROUND AND WATER POLLUTION..................................... 27
26. STATEMENT OF ACCEPTANCE............................................. 28
27. FORCE MAJEURE....................................................... 28
28. STATEMENTS BY LANDLORD AND TENANT................................... 28
29. CONDEMNATION........................................................ 29
30. QUIET ENJOYMENT..................................................... 30
31. SURRENDER OF LEASED PREMISES........................................ 30
32. INDEMNITY........................................................... 31
33. SHORT FORM LEASE.................................................... 32
34. LEASE CONSTRUCTION.................................................. 32
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35. BIND AND INURE CLAUSE.............................................. 32
36. DEFINITIONS........................................................ 32
37. NET RENT........................................................... 32
38. DEFINITION OF TERM OF "LANDLORD"................................... 33
39. COVENANTS OF FURTHER ASSURANCES.................................... 33
40. LANDLORD'S REMEDIES................................................ 34
41. COVENANT AGAINST LIENS............................................. 35
42. BROKERAGE.......................................................... 35
43. SUBORDINATION OF LEASE............................................. 35
44. LIMIT OF LANDLORD'S LIABILITY...................................... 36
45. LOSS OF OPTION RIGHTS.............................................. 36
46. SECURITY........................................................... 37
47. SURVIVAL OF OBLIGATION............................................. 37
48. EXECUTION AND DELIVERY............................................. 37
49. OPTION TO RENEW.................................................... 38
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THIS AGREEMENT, made the ____ day of ___________, 1998, by and between
XXXXXXX X. XXXXX, TRUSTEE UNDER TRUST INDENTURE DATED DECEMBER 1, 1972, having
an office at 00 Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx 00000, hereinafter
called the "Landlord"; and STERIGENICS, INC., a _____________ corporation, about
to have an office at 000 Xxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx, hereinafter
called the "Tenant".
W I T N E S S E T H :
WHEREAS, the Landlord owns certain lands and premises in the Township of
Franklin, County of Somerset and State of New Jersey, which said lands and
premises are located at 000 Xxxxx Xxxx, and are more particularly referred to
and described by metes and bounds on Schedule "A" annexed hereto and made a part
hereof (the "Property"); and
WHEREAS, the Landlord has erected an industrial-type building, containing
approximately 59,939 square feet (hereinafter called the "Building"), on the
Property (which Building and Property are hereinafter called the "Leased
Premises"), all in accordance with the terms and conditions hereinafter
mentioned and the considerations herein expressed,
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that for the rents
reserved, the mutual considerations herein and the parties mutually intending to
be legally bound hereby, the Landlord does demise, lease and let unto the Tenant
and the Tenant does rent and take from the Landlord the Leased Premises as
described in Paragraph #1, and the Landlord and Tenant do hereby mutually
covenant and agree as follows:
1. LEASED PREMISES
The Leased Premises shall consist of the Building containing
approximately 59,939 square feet, based on outside dimensions, as said Building
is located on and together with the Property and all improvements thereon which
have been constructed by the Landlord for the use of the Tenant, and together
with all easements, improvements, tenements, appurtenances, hereditaments,
fixtures and rights and privileges appurtenant thereto.
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2. TERM OF LEASE
2.1 The Landlord leases unto the Tenant and the Tenant hires the
Leased Premises for the term of ten (10) years, to commence on or after
September 1, 1998, subject to the provisions of Article 2.2 hereof. The
Landlord shall give the Tenant no less than ten (10) business days' prior
written notice of the anticipated delivery date of the Leased Premises.
2.2 Subject to the terms and conditions of this lease, in the
event the Leased Premises are delivered to the Tenant in the manner provided in
Article 4 hereof after September 1, 1998, the lease term of ten (10) years
shall commence on the first day of the next succeeding month following delivery
of possession of the office area of the Leased Premises to the Tenant
(hereinafter called the "Commencement Date") and shall continue for a term of
ten (10) years thereafter. The Tenant shall, however, pay to the Landlord a sum
equal to the pro rata share of one (1) month's Base Rent for that portion of
the month between the date of delivery of the Leased Premises to the Tenant and
the Commencement Date. During any such period of partial monthly occupancy, if
any, all other terms and conditions of this lease shall be applicable to the
occupancy of the Leased Premises by the Tenant.
2.3 Notwithstanding anything hereinabove contained, in the event
the Landlord has not delivered the office area of the Leased Premises, with all
work to be performed therein by Landlord having been substantially completed, on
or before January 1, 1999, the Tenant shall have the right to terminate this
lease upon ten (10) days' prior written notice to the Landlord, subject to the
following:
(a) Tenant shall have obtained the approval of its use by
the Township of Franklin on or before May 31, 1998; for each day
beyond May 31, 1998 that passes until Tenant obtains such use
approval, the January 1, 1999 date set forth above shall be extended
by one (1) additional day. In the event, however, Tenant does not
receive such use approval on or before June 30, 1998, either
Landlord or Tenant may terminate this lease upon written notice to
the other party.
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(b) Tenant shall not have caused any delay in the work to be
performed by Landlord pursuant to Article 4 hereof.
(c) Landlord shall not be responsible to produce a
certificate of occupancy for the office space on or before the
Commencement Date hereunder, in the event the work to be performed
by Tenant is then still ongoing.
3. RENT
3.1 The Tenant covenants and agrees to pay the rent ("Base Rent")
as follows:
(a) During the first (1st) through fifth (5th) years of the
lease term, Tenant shall pay Base Rent in the amount of TWO HUNDRED EIGHTY FOUR
THOUSAND SEVEN HUNDRED TEN AND 25/100 ($284,710.25) DOLLARS per annum, payable
in equal installments in the sum of ($23,725.85) per month.
(b) During the sixth (6th) through tenth (10th) years of the
lease term, Tenant shall pay Base Rent in the amount of THREE HUNDRED TWENTY
THOUSAND SIX HUNDRED SEVENTY THREE AND 65/100 ($320,623.65) DOLLARS per annum,
payable in equal installments in the sum of TWENTY SIX THOUSAND SEVEN HUNDRED
TWENTY TWO AND 80/100 ($26,722.80) DOLLARS per month.
(c) The foregoing installments of Base Rent shall be paid
promptly, in advance, on the first day of each every month during the term of
this lease, without demand and without offset or deduction, together with such
additional rent and other charges required to be paid by Tenant as are
hereinafter set forth.
3.2 Any installment of Base Rent or additional rent (herein
collectively referred to as "Rent") accruing hereunder, and any other sum
payable hereunder by Tenant to Landlord which is not paid prior to the fifth
(5th) business day of any lease month, shall bear a late charge of ten (10%)
percent of such Base Rent or additional rent, to be paid therewith, and the
failure to pay such charge shall be a default. Such late charge shall be deemed
to be additional rent hereunder. It is expressly understood and agreed that the
foregoing late charge is not a penalty, but agreed upon compensation to the
Landlord for administrative costs incurred by
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Landlord in connection with any such late payment. The foregoing late charge
shall not be imposed in connection with the first episode of late payment
occurring during each twelve (12) month period of the lease term, provided that
the Rent in question is received by the Landlord on or before the tenth (10th)
day of the month in which it is due. In addition, any payment of Base Rent or
additional rent, which is not paid within thirty (30) days of the date upon
which it is due shall require the payment of interest at the rate of one and
one-half (1 1/2%) percent per month, calculated from the date that such payment
was due through the date that any such payment is actually made.
3.3 Receipt and acceptance by Landlord of any Base Rent,
additional rent and any other charge with knowledge of Tenant's default in any
covenant or condition of this lease shall not be deemed a waiver of such
default.
3.4 Simultaneously with the execution hereof, the Tenant has
delivered to the Landlord the first monthly installment of Base Rent payable
hereunder, together with the security deposit referred to herein.
4. CONDITION OF LEASED PREMISES
4.1 Anything herein contained to the contrary notwithstanding, it
is expressly understood and agreed that the Tenant shall take the Leased
Premises and improvements as of the Commencement Date of the within lease in an
"as is" condition, except for latent defects and any express representations or
warranties of Landlord which are set forth in this lease. In addition, prior to
delivery of the Leased Premises to the Tenant, the Landlord shall (a) install
leasehold improvements within the existing office area of the Leased Premises
in accordance with the plan which has been approved by Landlord and Tenant and
which is dated April 12, 1998, which improvements shall include building
standard carpeting, painting, the installation of new ceiling tiles and an
allowance of ONE THOUSAND AND 00/100 ($1,000.00) DOLLARS for the installation
or moving of electrical outlets, (b) deliver the
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warehouse area in a "broom clean" condition, (c) finish, as warehouse, the area
of the warehouse which had previously been office space, including raising the
sprinkler heads in said area and installing warehouse lighting, (d) perform
repairs to the masonry, roof, floor and other building components, as
necessary, (e) deliver the Leased Premises, including all mechanical systems,
in good working order and condition, (f) construct a 12' by 18' warehouse
manager's office with a vision panel, in an area to be mutually approved by
Landlord and Tenant, (g) install a 12' by 14' drive-in door in order to service
the warehouse area, (h) repair and repave the parking lot, as necessary, (i)
extend the demising wall surrounding the existing office area to the roof deck,
which extended demising wall shall be taped, spackled and painted, (j) replace
or resurface the counter top in the "break room", (k) deliver the bathrooms in
the office area in a good, clean and workable condition, with all bathroom
fixtures working and in condition reasonably acceptable to Tenant, (l) rebuild
the bathrooms in the warehouse area which are designated as Rooms 144 and 145
on and in accordance with the aforementioned plan, (m) finish off Rooms 141 and
142 as set forth on the plan as warehouse storage area, (n) install landscaping
as has been mutually approved in writing by Landlord and Tenant, and (o)
perform maintenance and repair of the Leased Premises in general conformance
with the report of KFA Engineering which is dated May 6, 1998. The Tenant shall
have thirty (30) days after delivery of the Leased Premises to inspect the
Leased Premises and to deliver to the Landlord a "punch list" of outstanding
repair items, which Landlord shall repair as soon as is reasonable possible
following the receipt by Landlord of such punch list.
4.2 It is understood and agreed that Tenant shall be installing a
"minicell" irradiation system within the warehouse area of the Leased Premises,
at Tenant's sole cost and expense. Tenant shall be responsible for the obtaining
of all permits and approvals necessary for the installation of said system and
shall
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install said system in accordance with all applicable laws, statutes, rules and
regulations of governmental entities having jurisdiction thereof. Tenant shall
indemnify, defend and save harmless the Landlord from and against any and all
claims or liabilities incurred in connection with the installation of said
"minicell" system within the Leased Premises. Upon expiration or earlier
termination of the lease, Tenant shall be responsible for the complete removal
of the "minicell" irradiation system and the repair and restoration of the
Leased Premises so that the same shall be redelivered to the Landlord in the
same condition in which the Leased Premises shall be delivered to the Tenant at
the commencement of this lease, reasonable wear and tear excepted.
5. USE
5.1 The Tenant covenants and agrees to use and occupy the Leased
Premises for offices, warehousing and the sterilization of medical and other
equipment and products only, which use by Tenant, however, is and shall be
expressly subject to all applicable zoning ordinances, rules and regulations of
any governmental boards or bureaus having jurisdiction thereof.
5.2 The Tenant shall be responsible, at its sole cost and expense,
to obtain all necessary permits and approvals which are required in connection
with the Tenant's specific use of the Leased Premises. Tenant expressly
covenants and agrees that it shall comply with the requirements of the New
Jersey Department of Environmental Protection, the United States Environmental
Protection Agency, the United States Nuclear Regulatory Commission and all
other governmental entities having jurisdiction over Tenant's use. Tenant shall
supply Landlord with supporting documentation evidencing Tenant's compliance
with all such requirements, upon written request of the Landlord.
5.3 Notwithstanding anything to the contrary herein contained,
Landlord agrees that it shall be responsible for compliance with all applicable
building codes and with the Americans with Disabilities Act (the "ADA") as the
same shall apply
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generally to the Building as an office/warehouse type building; Tenant,
however, shall be responsible for any required compliance with the ADA which is
necessary due to the specific use of the Leased Premises by the Tenant.
6. REPAIRS AND MAINTENANCE
6.1 The Landlord shall, with due diligence, at its own cost and
expense, make all repairs to the exterior bearing walls and foundation of the
Building, and Landlord shall be responsible for any required replacement of the
roof of the Building, provided that any damage to the foregoing is not caused
by the negligence of the Tenant, its servants, employees, agents or invitees,
in which case such damage shall be repaired by the Landlord at the Tenant's
sole cost and expense. Notwithstanding the above, Tenant shall be responsible
for the maintenance and repair of the roof of the Building, and for the
maintenance, repair and replacement, as necessary, of the roof leaders, drains,
metal gravel stops and flashings, all at Tenant's sole cost and expense.
6.2 The Tenant shall, except as provided in Article 6.1 above, take
good care of the Leased Premises and, at its cost and expense, maintain, repair
and replace, as necessary, the interior and exterior of the Building,
including, but not limited to the floor, loading dock, windows and doors, the
air-conditioning and heating plant, the plumbing, pipes and fixtures belonging
thereto; and shall replace all mechanical systems and working parts used in
connection with the air-conditioning, electrical, heating and plumbing plants,
fixtures and systems, including ballasts and fluorescent fixtures; and shall
keep the water and sewer pipes and connections free from ice and other
obstructions, and shall generally maintain and repair the interior and exterior
of the Building and shall, at the end of the expiration of the term, deliver up
the Leased Premises in good order and condition, damages by the elements,
ordinary wear and tear expected. Tenant shall enter into a maintenance contract
in connection with the maintenance and repair of all mechanical systems serving
the
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Building. Said contract shall be with a reputable, recognized contractor who is
reasonably acceptable to Landlord, and said contract shall provide for
inspection and service every three (3) months during the term of this lease.
Tenant shall promptly forward a copy of such contract, and all inspection
reports thereafter received by Tenant, promptly upon Tenant receipt of same.
Notwithstanding the above, Landlord hereby agrees that it shall be responsible
for the first required replacement of each of the HVAC units serving the office
area of the Leased Premises. In addition, Landlord shall guarantee the
operation of the warehouse heating units for a period of one (1) year following
the Commencement Date hereunder. The Tenant covenants and agrees that it shall
not cause or permit any waste (other than reasonable wear and tear), damage or
disfigurement to the Leased Premises, or any overloading of the floors of the
Building.
6.3 The Tenant shall maintain, repair and replace, as necessary,
the lawns, shrubbery, driveways and parking areas of the entire Property
described on Schedule "A", at Tenant's sole cost and expense. Tenant shall
enter into a maintenance and service contract with a landscaper who is
reasonably acceptable to the Landlord, providing for the services set forth on
Schedule "C" annexed hereto. In addition, the Tenant shall keep the walks and
parking area adjacent to the Building free and clear of ice, snow and debris.
At Tenant's request, Landlord will provide any of the foregoing services to the
Tenant, at Tenant's sole cost and expense, together with an additional ten
(10%) percent of any such cost for Landlord's overhead and profit. Any such
work will be billed to Tenant on a monthly basis, it being understood that
Tenant shall reimburse Landlord for the cost of such services, as additional
rent, within fifteen (15) days following receipt by Tenant of Landlord's
invoice therefor.
7. UTILITIES
The Tenant shall, at its own cost and expense, pay all
utility meter and service charges applicable to the Leased
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Premises, including gas, sewer, electric, water and pro rata standby sprinkler
charges, if any, janitorial and garbage disposal service.
8. TAXES
8.1 The Tenant shall, during the term of the lease, promptly pay
monthly, as additional tent, together with the Base Rent to be paid pursuant to
Article 3, one-twelfth (1/12th) of all real estate and personal property taxes
assessed against the Leased Premises for land, Building and improvements,
including such added assessment or omitted assessment which may be levied
against the Leased Premises for the year 1998, et seq., by the applicable
governmental taxing authority, said obligation to be prorated as of the
Commencement Date and as of the date of expiration hereunder as applicable. In
addition to the obligation to pay all real estate taxes as hereinabove set
forth, the Tenant shall, during the term of this lease, pay at its cost and
expense the full cost of any levy for the installation of local improvements
affecting the Leased Premises as may be assessed by any governmental boards or
bureaus having jurisdiction thereof. Any assessment or impositions for capital
or public improvements which may be payable by law at the option of the taxpayer
in installments, may be so paid by the Tenant in installments, together with any
required interest. The real estate tax obligation of the Tenant hereinabove set
forth shall include any tax or imposition which may be levied by any
governmental authority, agency or subdivision thereof having jurisdiction
applicable to parking lot usage. The Landlord shall furnish to Tenant annually
during the month of July a copy of the annual real estate tax xxxx. In the event
of any change in tax rate which shall require an adjustment of increase or
decrease in Tenant's annual tax obligation, such difference shall be adjusted by
Landlord and Tenant annually during the month of August of each lease year, or
as soon thereafter as is reasonably practicable.
8.2 If at any time during the term of this lease the method of scope
of taxation prevailing at the commencement of
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the lease term shall be altered, modified or enlarged so as to cause the method
of taxation to be changed, in whole or in part, so that in substitution for the
real estate taxes now assessed there may be, in whole or in part, a capital
levy or other imposition based on the value of the Building and the Property,
or the rents received therefrom, or some other form of assessment based in
whole or in part on some other valuation of the Landlord's real property
comprising the Leased Premises, then and in such event, such substituted tax or
imposition shall be payable and discharged by the Tenant in the manner required
pursuant to such law promulgated which shall authorize such change in the scope
of taxation, and as required by the terms and conditions of the within lease.
8.3 Nothing in this lease contained shall require the Tenant to pay
any franchise, estate, inheritance, succession, capital levy or transfer tax of
the Landlord, or Federal Income Tax, State Income Tax, or excess profits or
revenue tax, unless such taxes are in substitution for real property taxes as a
result of such change in the manner and scope of taxation as hereinbefore
provided in Article 8.2.
8.4 The Tenant shall have the right, during the term of this lease,
to contest any assessment of real estate taxes affecting the Building and
Property, the Landlord hereby agrees that it shall cooperate with Tenant in
connection with any such contest. The Tenant shall be entitled to any refund or
rebate of real estate taxes in connection with any such tax appeal, after
deducting the cost and expense of effectuating any such refund or rebate,
provided the Tenant shall have paid any portion of the taxes being refunded or
rebated.
9. INSURANCE
9.1 The Tenant shall obtain for the benefit of the
Landlord, wherein the Landlord shall be the named insured, fire insurance with
full extended coverage, including flood insurance if required by Landlord,
insuring the Property, in an amount and value equivalent to the full
replacement value of all of the insurable
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improvements on the Property, with a deductible not to exceed the sum of TEN
THOUSAND AND 00/100 ($10,000.00) DOLLARS (which deductible amount shall be
self-insured by the Tenant) which policy of insurance shall include broad form
boiler and machinery coverage (inclusive of air-conditioning system, if any),
together with insurance coverage against sprinkler damage to the Building and
its improvements. Said insurance, in any event, shall not be less than the
amount of any first mortgage which may be placed on the Property by the
Landlord and shall be in such form as any such bona fide mortgagee may
reasonably require. The insurance shall be written by a good and solvent
insurance company which is licensed to do business in the State of New Jersey
and which is reasonably satisfactory to the Landlord. The Landlord shall have
the right from time to time to determine the full replacement value as may be
required to comply with full replacement insurance requirements. The insurance
to be obtained by Tenant shall include casualty rent insurance payable to and
insuring the interest of the Landlord as to the value of the rental obligation
hereunder to the extent of one (1) year's gross rental value, (inclusive of
real estate taxes and applicable insurance premiums). The Tenant shall have the
right to request that Landlord carry the above insurance, at Tenant's sole cost
and expense, provided that coverage of the Property shall no otherwise
adversely affect the Landlord blanket fire and casualty insurance policy.
9.2 The Tenant covenants and agrees that it will, at its sole cost
and expense, carry liability insurance covering the Leased Premises in the
minimum amount of FIVE MILLION ($5,000,000.00) DOLLARS. Said policy shall be a
single limit policy. The Tenant further covenants and agrees that it will add
as a party insured by such policy the interest of the Landlord and will furnish
Landlord with a certificate of said liability insurance prior to the
commencement of the term of this lease. The Tenant agrees that such insurance
coverage will be maintained in full force and effect during the term of the
lease.
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9.3 Tenant hereby agrees to reimburse Landlord for Tenant's pro
rata share of the cost of excess liability coverage in the amount of up to
SIXTY MILLION ($60,000,000.00) DOLLARS, pursuant to an "umbrella policy" to be
obtained by Landlord, with respect to any premium or portion thereof applicable
solely to the Leased Premises. The Tenant's obligation pursuant to this Article
9.3 shall not exceed the sum of THREE THOUSAND AND 00/100 ($3,000.00) DOLLARS
per annum during the first five (5) years of the lease term, or SIX THOUSAND AND
00/100 ($6,000.00) DOLLARS per annum during the last five (5) years of the
original term of this lease.
9.4 The Landlord and Tenant mutually waive all right of recovery
against each other, their agents, servants or employees, for any loss, damage
or injury of any nature whatsoever to property or person for which either party
is insured. Each party shall obtain from its insurance carrier waivers of
subrogation rights under their respective policies which shall be included
within the terms of the policies and will furnish evidence of such waiver upon
request.
9.5 It is expressly understood and agreed that, in the event the
net worth of the Tenant shall decrease below FIFTY MILLION AND 00/100
($50,000,000.00) DOLLARS at any time during the term of this lease, Tenant
shall provide to Landlord pollution liability insurance (including rent
insurance) with limits of no less than the greater of (a) the amount of any
first mortgage affecting the Property (but not to exceed $3,000,000.00) or (b)
the amount of $1,000,000.00, which insurance shall be in such form and written
by such company as shall be reasonably acceptable to Landlord, and which shall
thereafter be carried for the balance of the lease term. In the event Tenant
fails to provide such policy, Landlord shall have the right to obtain a
pollution liability policy with limits as above set forth and to charge the
premiums for such insurance to Tenant, as additional rent. Tenant shall
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forward evidence of its net worth to Landlord on an annual basis, on or before
June 30th of each lease year.
10. SIGNS
The Tenant shall have the right and privilege of erecting on and at
the Leased Premises only such signs as are required by Tenant for the purpose of
identifying the Tenant, subject to the prior written approval thereof by
Landlord, which approval shall not be unreasonably withheld. The said signs
shall comply with the applicable rules and regulations of the applicable
governmental boards and bureaus having jurisdiction thereof. The erection of
such signs shall not cause any structural damage to the Building. It is
expressly understood and agreed that the Tenant shall not erect roof signs.
11. FIXTURES
11.1 The Tenant is given the right and privilege of installing and
removing property, equipment and fixtures in the Building during the term of
the lease. However, if the Tenant is in default and moves out, or is
dispossessed, and fails to remove any property, equipment and fixtures or
other property prior to any such dispossess or removal, then and in that event,
the said property, equipment and fixtures or other property shall be deemed at
the option of the Landlord to be abandoned; or in lieu thereof, at the
Landlord's option, the Landlord may remove such property and charge the
reasonable cost and expense of removal, storage and disposal to the Tenant.
11.2 Anything to the contrary contained herein notwithstanding, it is
expressly understood and agreed that the Tenant may install, connect and
operate equipment as may be deemed necessary by the Tenant for its business,
subject to compliance with applicable rules and regulations of governmental
boards and bureaus having jurisdiction thereof. Subject to the terms and
conditions of this lease, the machinery, fixtures and equipment belonging to
the Tenant shall at all times be considered and intended to be personal property
of the Tenant, and not part of the
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realty, and subject to removal by the Tenant, provided at the time of such
removal, that the Tenant is not in default pursuant to the terms and conditions
of this lease, and that the Tenant, at its own cost and expense, pays for any
damage to the Leased Premises caused by such removal.
12. GLASS
The Tenant expressly covenants and agrees to replace any broken glass
in the windows or other apertures of the Building which may become damaged or
destroyed at Tenant's cost and expense.
13. ASSIGNMENT AND SUBLETTING
13.1 The Tenant may not assign this lease or sublet the Leased
Premises, or any part thereof, unless it shall first advise the Landlord in
writing, by certified mail, return receipt requested, of its intention to assign
or sublease. In such event, the Landlord shall have thirty (30) days from
receipt of such notice to (a) elect to recapture the Leased Premises and
terminate the within lease [in the event of any proposed assignment of the lease
or the subletting of more than fifty (50%) percent of the Building] or (b) to
consent to the assignment of the lease or the sublease of the Leased Premises,
which consent shall not be unreasonably withheld, providing the proposed
assignee or subtenant is financially responsible, and shall assume in writing
the terms and conditions of the within lease on the part of the Tenant to be
performed. In connection with any permitted assignment or subletting, the Tenant
shall pay to the Landlord one half of any increment in Rent, or other
consideration received by Tenant in lieu thereof, per square foot per annum over
the annual Base Rent then in effect.
13.2 The Landlord's consent shall not be required and the terms and
conditions of Article 13.1 shall not apply as to Landlord's right of first
refusal to recapture if the Tenant assigns or subleases the Leased Premises to
a parent, subsidiary, affiliate or a company into which Tenant is merged or
with which
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Tenant is consolidated, or to the purchaser of all or substantially all of the
assets of Tenant.
13.3 In the event of any assignment or subletting permitted by the
Landlord, the Tenant shall remain and be directly and primarily responsible for
payment and performance of the within lease obligations, and the Landlord
reserves the right, at all times, to require and demand that the Tenant pay and
perform the terms and conditions of this lease. No such assignment or
subletting shall be made to any Tenant who shall occupy the Leased Premises for
any use other than that which is permitted to the Tenant, for any use which
would trigger the applicability of ISRA, as hereinafter defined, or for any use
which may be reasonably deemed by the Landlord to be extra hazardous, or which
would in any way violate applicable laws, ordinances or rules and regulations
of governmental boards and bodies having jurisdiction.
14. FIRE AND CASUALTY
14.1 In case of any damage to or destruction of the Building by fire
or other casualty occurring during the term of this lease which is not covered
by the insurance required to be carried by Article 9.1, or in the case of
damage to or destruction of the Building which cannot be repaired within one
hundred eighty (180) days from the happening of such casualty, then, in such
event, the term hereby created shall, at the option of either party, upon
written notice to the other by certified mail, return receipt requested, within
thirty (30) days of such fire or casualty, cease and become null and void from
the date of such destruction or damage. However, if neither party shall elect
to cancel this lease within the thirty (30) day period hereinabove provided,
the Landlord shall thereupon repair and restore the Building with reasonable
speed and dispatch, and the Rent shall not be accrued after said damage or
while the repairs and restorations are being made, but shall recommence
immediately after said Building is restored. Landlord, in any event, shall
advise Tenant in writing as to whether or not the Building can be restored
within
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the one hundred eighty (180) day period from the date of such casualty. Anything
in this Article 14 to the contrary notwithstanding, it is expressly understood
and agreed that the Landlord shall be obligated to restore the Building only to
the extent of such cost as will be equivalent to the proceeds (including any
permitted deductible) received by Landlord pursuant to the fire insurance
coverage to be provided to Landlord as in Article 9 provided. If the insurance
proceeds are not sufficient to restore the Building to substantially the same
condition which they were in prior to the casualty, then the Landlord shall
have a period of thirty (30) days within which to determine whether to
terminate the term hereby created unless the Landlord and Tenant shall mutually
agree to the funding of any such excess construction costs. In the event of
cancellation in accordance with this Article, the Tenant shall immediately
surrender the Leased Premises and the Tenant's interest in said lease to the
Landlord, and the Tenant shall only pay Rent to the time of such destruction or
damage, in which event, the Landlord may re-enter and repossess the Leased
Premises thus discharged from this lease and may remove all parties therefrom.
14.2 In the event of any other insured casualty, which shall be
repairable within one hundred eighty (180) days from the happening of such
damage or casualty, the Landlord shall repair and restore the Building with
reasonable speed and dispatch, and the Rent shall xxxxx and be equitably
apportioned as the case may be as to any portion of the Building which shall be
unfit for occupancy by the Tenant, or which cannot be used by the Tenant so as
to conduct its business. The Rent, however, shall accrue and recommence
immediately upon restoration of the Building.
14.3 Nothing hereinabove contained with respect to the Tenant's right
to xxxxx Rent under proper conditions shall be construed to limit or affect the
Landlord's right to payment under any claim for damages covered by the rent
insurance policy pursuant
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to the contract therefor required to be provided pursuant to Article 9 of this
lease.
14.4 For the purposes of this Article 14, in determining what
constitutes reasonable speed and dispatch, consideration shall be given for
delays which would be excuses for non-performance as in Article 27 hereinafter
provided (Force Majeure).
14.5 In the event of such fire or casualty as above provided, wherein
the Landlord shall rebuild, the Tenant agrees, at its cost and expense, to
forthwith remove any and all of its equipment, fixtures, stock and personal
property as the same may be required to permit Landlord to expedite rebuilding
and/or repair. In any event, the Tenant shall assume at its sole risk the
responsibility for damage or security with respect to such fixtures and
equipment in the event the Building area where the same may be located has been
damaged, until the Building shall be restored and made secure.
14.6 Anything in this Article 14 to the contrary notwithstanding, it
is expressly understood and agreed that wherever reconstruction shall be
undertaken, in the event of damage or casualty as in this Article 14 provided,
the Landlord shall prosecute such reconstruction with reasonable speed and
dispatch. In the event, however, such reconstruction or repair shall not be
completed within seven (7) months from the date of such damage or casualty,
then, in the event, the Tenant shall have the option at the expiration of the
seven (7) month period to terminate the lease by notice in writing by Tenant to
Landlord by certified mail, return receipt requested. In the event of such
termination, neither party shall thereafter have any further liability, one to
the other, in accordance with the terms and conditions of the lease.
15. COMPLIANCE WITH LAWS, RULES AND REGULATIONS
15.1 (i) The Tenant covenants and agrees that upon acceptance and
occupancy of the Leased Premises, it will, during
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the lease term, promptly, at Tenant's cost and expense, execute and comply with
all statutes, ordinances, rules, orders, regulations and requirements of the
Federal, State and City Government and of any and all their departments and
bureaus, applicable to the Leased Premises, as the same may require correction,
prevention and abatement or nuisances, violations or other grievances, in, upon
or connected with the Leased Premises, arising from the operations of the
Tenant therein.
(ii) The Tenant covenants and agrees, at its own cost and
expense, to comply with such regulations or requests as may be required by the
fire or liability insurance carriers providing insurance for the Leased
Premises regarding the Tenant's use of the Leased Premises, and will further
comply with such other requirements that may be promulgated by the Board of
Fire Underwriters, in connection with the use and occupancy by the Tenant of
the Leased Premises in the conduct of its business.
(iii) The Tenant covenants and agrees that it will not commit
any nuisance, nor permit the emission of any objectionable sound, noise, or
odors which would be violative of any applicable governmental rule or
regulation or would per se create a nuisance. The Tenant further covenants and
agrees that it will handle and dispose of all rubbish, garbage and waste in
connection with the Tenant's operations in the Leased Premises in accordance
with reasonable regulations established by the Landlord from time to time in
order to keep the Leased Premises in an orderly condition and in order to avoid
unreasonable emission of dirt, fumes, odors or debris which may constitute a
nuisance or induce pests or vermin.
15.2 In case the Tenant shall fail or neglect to comply with the
aforesaid statutes, ordinances, rules, orders, regulations and requirements or
any of them, or in case the Tenant shall neglect or fail to make any necessary
repairs, then the Landlord or the Landlord's agents may after thirty (30) days'
notice (except for emergency repairs, which may be made
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immediately) enter said Leased Premises and make said repairs and comply with
any and all of the said statutes, ordinances, rules, orders, regulations or
requirements, at the cost and expense of the Tenant and in case of the Tenant's
failure to pay therefor, the said cost and expense shall be added to the next
month's Rent and be due and payable as such, or the Landlord may deduct the
same from the balance of any sum remaining in the Landlord's hands. This
provision is in addition to the right of the Landlord to terminate this lease
by reason of any default on the part of the Tenant, subject to the rights of
the Tenant as hereinabove mentioned in the manner as in this lease otherwise
provided.
15.3 Without limiting anything hereinabove contained in this
Article 15, Tenant expressly covenants and agrees to fully comply with the
provisions of the New Jersey Industrial Site Recovery Act (N.J.S.A. 13:1K-6, et
seq.), or any successor statute, hereinafter referred to as "ISRA", and all
regulations promulgated thereto (or under the New Jersey Environmental Clean-Up
Responsibility Act, the predecessor statute of ISRA, as applicable) prior to the
expiration or earlier termination of the within lease, or at any time that any
action of the Tenant triggers the applicability of ISRA. In particular, the
Tenant agrees that it shall comply with the provisions of ISRA in the event of
any "closing, terminating or transferring" of Tenant's operations, as defined by
and in accordance with the regulations which have been promulgated pursuant to
ISRA. In the event evidence of such compliance is not delivered to the Landlord
prior to surrender of the Leased Premises by the Tenant to the Landlord, it is
understood and agreed that the Tenant shall be liable to pay to the Landlord an
amount equal to one and one-half (1 1/2) times the Base Rent then in effect,
prorated on a monthly basis, together with all applicable additional rent from
the date of such surrender until such time as evidence of compliance with ISRA
has been delivered to the Landlord, and together with any costs and expenses
incurred by Landlord in enforcing Tenant's obligations under this Article 15.3.
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Evidence of compliance, as used herein, shall mean a "letter of
non-applicability" issued by the New Jersey Department of Environmental
Protection, hereinafter referred to as "NJDEP", or an approved "negative
declaration", "no further action letter" or a "remediation work plan" which has
been fully implemented and approved by NJDEP. Evidence of compliance shall be
delivered to the Landlord, together with copies of all submissions made to, and
received from, the NJDEP, including all environmental reports, test results and
other supporting documentation. In addition to the above, Tenant hereby agrees
that it shall cooperate with Landlord in the event of the termination or
expiration of any other lease affecting the Property, or a transfer of any
portion of the property indicated on Schedule "A", or any interest therein,
which triggers the provisions of ISRA. In such case, Tenant agrees that it
shall fully cooperate with the Landlord in connection with any information or
documentation which may be requested by the NJDEP. In the event that any
remediation of the Property is required in connection with, and to the extent
caused by, the conduct by Tenant of its business at the Leased Premises, Tenant
expressly covenants and agrees that it shall be responsible for that portion of
said remediation which is attributable to the Tenant's use and occupancy
thereof. Tenant hereby represents and warrants that its Standard Industrial
Classification No. is 7389, and that Tenant shall not generate, manufacture,
refine, transport, treat, store, handle or dispose of "hazardous substances" as
the same are defined under ISRA and the regulations promulgated pursuant
thereto. Tenant hereby agrees that it shall promptly inform Landlord of any
change in its SIC number of the nature of the business to be conducted in the
Leased Premises. Notwithstanding anything to the contrary herein contained, it
is understood and agreed that Landlord shall indemnify, defend and save
harmless the Tenant from and against any and all claims or liabilities incurred
in connection with the environmental condition of the Leased Premises existing
as of the
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Commencement Date hereunder. The within covenants shall survive the expiration
or earlier termination of the lease term.
16. INSPECTION BY LANDLORD
The Tenant agrees that the said Landlord's agents, and other
representatives, shall have the right, during normal business hours, upon prior
written or telephonic notice to enter into and upon the Leased Premises, or any
part thereof, at all reasonable hours for the purpose of examining the same, or
for exhibiting the same to prospective tenants and purchasers in the presence
of a representative of Tenant or making such repairs or alterations therein as
may be necessary for the safety and preservation thereof, without unduly or
unreasonably disturbing the operations of the Tenant (except in the event of
emergency).
17. DEFAULT BY TENANT
17.1 Each of the following shall be deemed a default by
Tenant and breach of this lease:
(1) (i) filing of a petition by the Tenant for
adjudication as a bankrupt, or for reorganization, or for an arrangement under
any federal or state statute;
(ii) dissolution or liquidation of the Tenant;
(iii) appointment of a permanent receiver or a
permanent trustee of all or substantially all the property of the Tenant, which
receiver or trustee is not removed within thirty (30) days of his or her
appointment;
(iv) taking possession of the property of the
Tenant by a governmental officer or agency pursuant to statutory authority for
dissolution, rehabilitation, reorganization or liquidation of the Tenant which
action is not removed or stayed within thirty (30) days following such taking
of possession;
(v) making by the Tenant of an assignment for the
benefit of creditors; or
(vi) abandonment, desertion or vacation of the
Leased Premises by Tenant.
If any event mentioned in this subdivision (1) shall occur,
Landlord may thereupon or at any time thereafter elect to cancel this lease by
ten (10) days' notice to the Tenant, and this lease shall terminate on the day
in such notice specified with the same force and effect as if that date were
the date herein fixed for the expiration of the term of the lease.
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(2) (i) Default in the payment of the Base Rent or
additional rent herein reserved or any part thereof for a period of seven (7)
days after the same is due and payable as in this lease required.
(ii) a default in the performance of any other
covenant or condition of this lease on the part of the Tenant to be performed
for a period of thirty (30) days after notice. For purposes of this subdivision
(2)(ii) hereof, no default on the part of Tenant in performance of work
required to be performed or acts to be done or conditions to be modified shall
be deemed to exist if steps shall have been commenced by Tenant diligently
after notice to rectify the same and shall be prosecuted to completion with
reasonable diligence, subject, however, to unavoidable delays.
17.2 In case of any such default under Article 17.1(2) and
at any time thereafter following the expiration of the respective grace periods
above mentioned, or in the event that Tenant is consistently late in the
punctual payment of Base Rent and/or additional rent required to be paid under
this lease as shall be evidenced by notices delivered to Tenant of late
payments made during any period of four (4) months during any twelve (12) month
period measured from the date of the first late payment, Landlord may, at its
option, terminate this lease by serving a notice upon the Tenant electing to
terminate this lease upon a specified date not less than seven (7) days after
the date of serving such notice and this lease shall then expire on the date so
specified as if that date has been originally fixed as the expiration date of
the term herein granted; however, a default under Article 17.1(2) hereof shall
be deemed waived if such default is made good before the date specified for
termination in the notice of termination served on Tenant.
17.3 In case this lease shall be terminated as hereinbefore
provided, or by summary proceedings or otherwise, Landlord or its agents may,
immediately or any time thereafter, re-enter and resume possession of the
Leased Premises or such part thereof, and remove all persons and property
therefrom, either by summary proceedings or by a suitable action or proceeding
at law without being liable for any damages, provided any entry pursuant to the
foregoing shall be in accordance with law. No re-entry by Landlord shall be
deemed an acceptance of a surrender of this lease.
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17.4 In case this lease shall be terminated as hereinafter
provided, or by summary proceedings or otherwise, Landlord may, in its own name
and in its own behalf, relet the whole or any portion of the Leased Premises,
for any period equal to or greater or less than the remainder of the then
current term, for any sum which is commercially reasonable, to any tenant which
it may reasonably deem suitable and satisfactory, and for any use and purpose
which it may reasonably deem appropriate, and in connection with any such lease
Landlord may make such changes in the character of the improvements on the
Leased Premises as Landlord may determine to be appropriate or helpful in
effecting such lease, and Landlord may grant concessions or free rent. Landlord
agrees that it will take reasonable steps to mitigate Tenant's damages. It is
specifically understood and agreed that Landlord, by listing the Leased Premises
for lease with a recognized real estate broker doing business in the Somerset
County, New Jersey area, shall be conclusively deemed to have utilized
reasonable efforts to mitigate Tenant's damages. Landlord shall not in any
event be required to pay Tenant any surplus of any sums received by Landlord on
a reletting of the Leased Premises in excess of the rent reserved in this Lease.
17.5 (1) In case this lease be terminated by summary
proceedings, or otherwise, as provided in this Article 17, and whether or not
the Leased Premises be relet, Landlord shall be entitled to recover from the
Tenant, the following:
(i) A sum equal to all expenses, if any, including
reasonable counsel fees, incurred by Landlord in recovering possession of the
Leased Premises, and all reasonable costs and charges for the care of said
Leased Premises while vacant, which damages shall be due and payable by Tenant
to Landlord at such time or times as such expenses shall have been incurred by
Landlord; and
(ii) A sum qual to all damages set forth in this
Article 17 and in Article 18 hereinafter referred to.
(2) Without any previous notice or demand, separate actions
may be maintained by Landlord against Tenant from time to time to recover any
damages which, at the commencement of any such action, have then or theretofore
become due and payable to
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the Landlord under this Article 17 and subsections hereof without waiting until
the end of the then current term.
(3) All sums which Tenant has agreed to pay by way of
taxes, sewer charges, water rents or water meter charges, insurance premiums
and other similar items becoming due from time to time under the terms of this
lease, shall be deemed additional rent reserved in this lease within the
meaning of this Article 17 and subsections hereof. Notwithstanding anything in
this lease to the contrary, all amounts payable by Tenant to or on behalf of
Landlord under this lease, whether or not expressly denominated as rent, shall
constitute rent for the purposes of section 502(b)(6) of the Bankruptcy Code,
11 U.S.C. Section 502(b)(6), or any successor statute.
18. LIABILITY OF TENANT FOR DEFICIENCY
----------------------------------
In the event that the relation of the Landlord and Tenant may
cease or terminate by reason of the default by the Tenant and the re-entry of
the Landlord as permitted by the terms and conditions contained in this lease
or by the ejectment of the Tenant by summary proceedings or other judicial
proceedings, or after the abandonment of the Leased Premises by the Tenant, it
is hereby agreed that the Tenant shall remain liable to pay in monthly payments
the Rent which shall accrue subsequent to the re-entry by the Landlord, and the
Tenant expressly agrees to pay as damages for the breach of the covenants
herein contained the difference between the Rent reserved and the Rent
collected and received, if any, by the Landlord, during the remainder of the
unexpired term, as the amount of such difference or deficiency shall from time
to time be ascertained. Anything herein contained to the contrary
notwithstanding, the Rent referred to shall include the stated reserved Base
Rent together with all additional rent and charges required to be paid by the
Tenant under the lease including but not limited to taxes and insurance costs,
and the costs of re-renting.
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19. NOTICES
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All notices required or permitted to be given to the Landlord
shall be given by certified mail, return receipt requested, at the address
hereinbefore set forth on the first page of this lease, and/or such other place
as the Landlord may designate in writing.
All notices required or permitted to be given to the Tenant
shall be given by certified mail, return receipt requested, at the address
hereinbefore set forth on the first page of this lease, and/or such other place
as the Tenant shall designate in writing.
20. NON-WAIVER BY LANDLORD
----------------------
The failure of the Landlord to insist upon strict performance
of any of the covenants or conditions of this lease, or to exercise any option
of the Landlord herein conferred in any one or more instances, shall not be
construed as a waiver by the Landlord of any of its rights or remedies in this
lease, and shall not be construed as a waiver, relinquishment or failure of any
such covenants, conditions, or options, but the same shall be and remain in
full force and effect.
21. RIGHT OF TENANT TO MAKE ALTERATIONS AND IMPROVEMENTS
----------------------------------------------------
21.1 The Tenant may make alterations, additions or
improvements to the Building only with the prior written consent of the
Landlord, which consent shall not be unreasonably withheld, provided such
alterations, additions or improvements do not require structural changes in the
Building, or do not lessen the value of the Leased Premises or the Building.
Any consent which Landlord may given shall be conditioned upon Tenant
furnishing to Landlord, detailed plans and specifications with respect to any
such changes, to be approved by Landlord in writing. As a condition of such
consent, Landlord reserves the right to require Tenant to remove, at Tenant's
sole cost and expense, any such alterations or additions prior to the
expiration of the lease term, which election shall be made by Landlord at the
time it gives its consent to any
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such alteration or addition. If Landlord does not require such removal, any
such alterations or additions shall be deemed to be part of the realty upon
installation, provided that Tenant, at its option, shall have the right to
remove the same, provided it shall be responsible to repair any damage to the
Leased Premises or the Building occasioned by such removal, provided such
removal is made prior to the expiration of the lease term. All such
alterations, additions or improvements shall be only in conformity with
applicable governmental and insurance company requirements and regulations
applicable to the Leased Premises. Tenant shall hold and save Landlord harmless
and indemnify Landlord against any claim for damage or injury in connection
with any of the foregoing work which Tenant may make as hereinabove provided.
21.2 Nothing herein contained shall be construed as a consent on the
part of the Landlord to subject the estate of the Landlord to liability under
the Construction Lien Law of the State of New Jersey, it being expressly
understood that the Landlord's estate shall not be subject to such liability.
21.3 It is expressly understood and agreed that in the event
alterations or improvements required by Tenant are performed by Landlord's
designated contractor, Tenant shall make payments to said contractor strictly
in accordance with the agreement entered into between said parties. Default in
payment by Tenant under said construction contract shall be deemed to be a
default under this lease for which Landlord shall have the right of termination
as hereinbefore set forth in Article 17.
22. NON-LIABILITY OF LANDLORD
22.1 It is expressly understood and agreed by and between the parties
to this agreement that the Tenant shall assume all risk of damage to its
property, equipment and fixtures occurring in or about the Leased Premises,
whatever the cause of such damage or casualty.
22.2 It is expressly understood and agreed that in any event, the
Landlord shall not be liable for any damage or
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injury to property or person caused by or resulting from steam, electricity,
gas, water, rain, ice or snow, or any leak or flow from or into any part of the
Building, or from any damage or injury resulting or arising from any other
cause or happening whatsoever, except to the extent of Landlord's negligence or
willful misconduct.
23. WARRANTY OF TITLE
Landlord represents that it has title to the lands and Leased
Premises which are the subject of this lease and that it has the full right,
capacity and authority to enter into the within lease agreement.
24. RESERVATION OF EASEMENT
The Landlord reserves the right, easement and privilege to
enter on the Leased Premises in order to install, at its own cost and expense,
any storm drains and sewers and/or utility lines in connection therewith as
may be required by the Landlord. It is understood and agreed that if such work
as may be required by Landlord requires an installation which may displace any
paving, lawn, seeded area or shrubs, the Landlord, shall, at its own cost and
expense, restore said paving, lawn, seeded area or shrubs. The Landlord
covenants that the foregoing work shall not unreasonably interfere with the
normal operation of Tenant's business, and the Landlord shall indemnify and
save the Tenant harmless in connection with such installations.
25. AIR, GROUND AND WATER POLLUTION
The Tenant expressly covenants and agrees to indemnify,
defend, and save the Landlord harmless against any claim, damage, liability,
costs, penalties, or fines which the Landlord may suffer as a result of air,
ground or water pollution caused by the Tenant in its use of the Leased
Premises. The Tenant covenants and agrees to notify the Landlord immediately of
any claim or notice served upon it with respect to any such claim the Tenant is
causing water, ground or air pollution; and the Tenant, in any event, will take
immediate steps to halt, remedy or cure any
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pollution of air, ground or water caused by the Tenant by its use of the Leased
Premises. This covenant shall survive the expiration or earlier termination of
this lease.
26. STATEMENT OF ACCEPTANCE
During the term of this lease, the Tenant agrees that it will furnish
to the Landlord a statement that the lease is in full force and effect in
accordance with its terms, together with such other affirmative covenants as
may be required by Landlord's mortgagee or for other business purposes, so as
to provide for Landlord's benefit, and estoppel certificate as the same may be
required from time to time for legitimate business purposes of Landlord. Said
statement shall set forth the Date of Commencement and the Date of Expiration
of the lease term.
27. FORCE MAJEURE
Except for the obligation of the Tenant to pay Rent and other charges
as in this lease provided, the period of time during which the Landlord or
Tenant is prevented from performing any act required to be performed under this
lease by reason of fire, catastrophe, strikes, lockouts, civil commotion, acts
of God or the public enemy, government prohibitions or preemptions, embargoes,
inability to obtain material or labor by reason of governmental regulations or
prohibitions, the act or default of the other party, or other events beyond the
reasonable control of Landlord or Tenant, as the case may be, shall be added to
the time for performance of such act.
28. STATEMENTS BY LANDLORD AND TENANT
Landlord and Tenant agree at any time and from time to time upon not
less than ten (10) days' prior notice from the other to execute, acknowledge
and deliver to the party requesting same, a statement in writing, 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), that it is not in default (or if claimed to be in
default, stating the amount and nature of
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the default) and specifying the dates to which the Base Rent and other charges
have been paid in advance, if any; it being intended that any such statement
delivered pursuant to this paragraph may be relied upon as to the facts
contained therein.
29. CONDEMNATION
29.1 If due to condemnation or taking or seizure by any authority
having the right of eminent domain, (i) more than fifteen (15%) per cent of the
Building is taken, or (ii) in the event that more than twenty-five (25%) per
cent of the Property is taken (including the parking areas, but exclusive of
front, side and rear set back areas), or (iii) if access to the Leased Premises
be denied, which taking in the manner hereinabove referred to and in excess of
the foregoing percentage amounts shall unreasonably or unduly interfere with the
use of the Building, ground area, parking area, or deny access to the Leased
Premises, then and in either of such events as hereinabove provided, the lease
term created shall, at the option of the Tenant, terminate, cease and become
null and void from the date when the authority exercising the power of eminent
domain takes or interferes with the use of the Leased Premises, its use of the
ground area, parking area, or area of access to the Leased Premises. The Tenant
shall only be responsible for the payment of Rent until the time of surrender.
In any event, no part of the Landlord's condemnation award shall belong to or
be claimed by the Tenant. Without diminishing Landlord's award, the Tenant
shall have the right to make a claim against the condemning authority for such
independent claim which it may have and as may be allowed by law, for costs and
damages due to relocating, moving and other similar costs and charges directly
incurred by the Tenant and resulting from such condemnation.
29.2 In the event of any partial taking which would not be cause for
termination of the within lease or in the event of any partial taking in excess
of the percentage provided in Article 29.1, and in which event the Tenant shall
elect to retain the balance of the Leased Premises remaining after such taking,
then
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and in either event, the Rent shall xxxxx in an amount mutually to be agreed
upon between the Landlord and Tenant based on the relationship that the
character of the property taken bears to the property which shall remain after
such condemnation. In any event, no part of the Landlord's condemnation award
shall belong to or be claimed by the Tenant. However, the Landlord shall, to
the extent permitted by applicable law and as the same may be practicable on
the site of the Leased Premises, at the Landlord's sole cost and expense,
promptly make such repairs and alterations in order to restore the Building
and/or improvements to the extent of the condemnation award.
30. QUIET ENJOYMENT
The Landlord further covenants that the Tenant, on paying the rental
and performing the covenants and conditions contained in this lease, shall and
may peaceably and quietly have, hold and enjoy the Leased Premises for the term
aforesaid.
31. SURRENDER OF LEASE PREMISES
On the last day, or earlier permitted termination of the lease term,
Tenant shall quit and surrender the Leased Premises in good orderly condition
and repair (reasonable wear and tear, and damage by fire or other casualty
excepted) and shall deliver and surrender the Leased Premises to the Landlord
peaceably, together with all alterations, additions and improvements in, to or
on the Leased Premises made by Tenant as permitted under the lease. The
Landlord reserves the right, however, to require the Tenant at its costs and
expense to remove any alterations or improvements installed by the Tenant and
not permitted or consented to by the Landlord pursuant to the terms and
conditions of the lease, which covenant shall survive the surrender and the
delivery of the Leased Premises as provided hereunder. Prior to the expiration
of the lease term the Tenant shall remove all of its property, fixtures,
equipment and trade fixtures from the Leased Premises. All property not removed
by Tenant shall be deemed abandoned by Tenant, and Landlord reserves the right
to charge the reasonable cost of
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such removal to the Tenant, which obligation shall survive the lease termination
and surrender hereinabove provided. If the Leased Premises are not surrendered
at the end of the lease term, Tenant shall be responsible to pay Landlord,
monthly, an amount equal to one and one-half (1 1/2) times the monthly
installment of Base Rent payable by Tenant prior to the expiration or earlier
termination of this lease for each month or part thereof that Tenant holds over
in the Leased Premises. In the event any environmental condition requiring
remediation exists on the Property at the time of expiration or earlier
termination of this lease, which was caused by the Tenant's operations at the
Leased Premises, Tenant shall be deemed to be a holdover Tenant and the Leased
Premises shall not be considered to be properly surrendered to the Landlord
until the remediation of such environmental condition has been completed.
32. INDEMNITY
Anything in this lease to the contrary notwithstanding, and without
limiting the Tenant's obligation to provide insurance pursuant to Article 9
hereunder, the Tenant covenants and agrees that it will indemnify, defend and
save harmless the Landlord against and from all liabilities, obligations,
damages, penalties, claims, costs, charges and expenses, including without
limitation reasonable attorneys' fees, which may be imposed upon or incurred by
Landlord by reason of any of the following occurring during the term of this
lease:
(i) Any matter, cause or thing arising out of use, occupancy,
control or management of the Leased Premises and any part thereof;
(ii) Any negligence on the part of the Tenant or any of its agents,
contractors, servants, employees, licensees or invitees;
(iii) Any accident, injury, damage to any person or property
occurring in, or about the Leased Premises;
(iv) Any failure on the part of Tenant to perform or comply with any
of the covenants, agreements, terms or conditions contained in this lease on its
part to be performed or complied with.
(v) Subject to the exception set forth in Article 22.1, the
foregoing shall not require indemnity by Tenant in the event of damage or injury
occasioned by the negligence or acts of
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commission or omission of the Landlord, its agents, servants or employees.
Landlord shall promptly notify Tenant of any such claim asserted against
it and shall promptly send to Tenant copies of all papers or legal process
served upon it in connection with any action or proceeding brought against
Landlord by reason of any such claim.
33. SHORT FORM LEASE
It is understood between the parties hereto that this lease will
not be recorded, but that a short form lease, describing the property leased
hereby, giving the term of this lease, and making particular mention of any
special clauses as herein contained, may be recorded by Landlord in accordance
with the laws governing and regulating the recording of such documents in the
State of New Jersey.
34. LEASE CONSTRUCTION
This lease shall be construed pursuant to the laws of the State of
New Jersey.
35. BIND AND INURE CLAUSE
The terms, covenants and conditions of the within lease shall be
binding upon and inure to the benefit of each of the parties hereto, their
respective executors, administrators, heirs, successors and assigns, as the
case may be.
36. DEFINITIONS
The neuter gender, when used herein and in the acknowledgement
hereafter set forth, shall include all persons and corporations, and words used
in the singular shall include words in the plural where the text of the
instrument so requires.
37. NET RENT
It is the purpose and intent of the Landlord and Tenant that the
Rent shall be absolutely net to Landlord, so that this lease shall yield, net,
to Landlord, the Rent specified in Article 3 hereof in each month during the
term of the lease, and that all costs, expenses and obligations of every kind
and nature whatsoever relating to the Leased Premises which may arise or
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become due during or out of the term of this lease, shall be paid by the
Tenant, except for such obligations and charges as have otherwise expressly
been assumed by the Landlord in accordance with the terms and conditions of
the lease. Nothing herein shall require the Tenant to undertake obligations in
connection with the sale or mortgaging of the Leased Premises, unless otherwise
expressly provided in accordance with the terms and conditions of this lease.
38. DEFINITION OF TERM OF "LANDLORD"
When the term "Landlord" is used in this lease it shall be
construed to mean and include only the owner of the fee title of the Leased
Premises. Upon the transfer by the Landlord of the fee title hereunder, the
Landlord shall advise the Tenant in writing by certified mail, return receipt
requested of the name of the Landlord's transferee. In such event, the then
Landlord shall be automatically freed and relieved from and after the date of
such transfer of title of all personal liability with respect to the
performance of any of the covenants and obligations on the part of the Landlord
herein contained to be performed, provided any such transfer and conveyance by
the Landlord is expressly subject to the assumption by the grantee or
transferee of the obligations of the Landlord to be performed pursuant to the
terms and conditions of the within lease.
39. COVENANTS OF FURTHER ASSURANCES
If, in connection with obtaining financing for the improvements on
the Leased Premises, the Mortgage Lender shall request reasonable modifications
in this lease as a condition to such financing, Tenant will not unreasonably
withhold, delay or refuse its consent thereto, provided that such modifications
do not in Tenant's reasonable judgment increase the obligations of Tenant
hereunder or materially adversely affect the leasehold interest hereby created
or Tenant's use and enjoyment of the Leased Premises.
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40. LANDLORD'S REMEDIES
40.1 The rights and remedies given to the Landlord in this lease are
distinct, separate and cumulative remedies, and no one of them, whether or not
exercised by the Landlord, shall be deemed to be in exclusion of any of the
others.
40.2 In addition to any other legal remedies for violation or breach
by or on the part of the Tenant or by any undertenant or by anyone holding or
claiming under the Tenant or any one of them, of the restrictions, agreements or
covenants of this lease on the part of the Tenant to be performed or fulfilled,
such violation or breach shall be restrainable by injunction at the suit of the
Landlord.
40.3 No receipt of money by the Landlord from any receiver, trustee
or custodian, debtor in possession, or any permitted subtenant, shall reinstate,
continue or extend the term of this lease or affect any notice theretofore given
to the Tenant, or to any such receiver, trustee or custodian, debtor in
possession, or any permitted subtenant, or operate as a waiver or estoppel of
the right of the Landlord to recover possession of the Leased Premises for any
of the causes therein enumerated by any lawful remedy; and the failure of the
Landlord to enforce any covenant or condition by reason of its breach by the
Tenant shall not be deemed to void or affect the right of the Landlord to
enforce the same covenant or condition on the occasion of any subsequent default
or breach.
40.4 Each party agrees that, in the event of litigation to enforce
this lease or to interpret its provisions, the losing party shall reimburse the
prevailing party for the prevailing party's reasonable attorney's fees incurred
in such litigation. Tenant further agrees to reimburse Landlord for Landlord's
reasonable attorney's fees incurred in connection with the review by Landlord of
any Landlord's waiver, assignment or sublet agreement or any other documentation
reviewed by Landlord at Tenant's request.
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41. COVENANT AGAINST LIENS
Tenant agrees that it shall not knowingly encumber, or suffer or
permit to be encumbered, the Leased Premises or the fee thereof by any lien,
charge or encumbrance, and Tenant shall have no authority to mortgage or
hypothecate this lease in any way whatsoever. The violation of this Article
shall be considered a breach of this lease.
42. BROKERAGE
The parties mutually represent to each other that XXXXXXX & XXXXXXXXX
OF NEW JERSEY, INC. and XXXXXXX & CO. REALTORS are the sole brokers who
negotiated and consummated the within transaction, and that neither party dealt
with any other broker in connection with the within lease, it being understood
and agreed that the Landlord shall be responsible, at its sole cost and
expense, to pay the real estate brokerage in connection with this lease
transaction. Landlord agrees to indemnify, defend and save harmless Tenant in
connection with the claims of any other real estate brokers claiming
commissions in connection with the within transaction and claiming authority
from Landlord. Tenant agrees to indemnify, defend and save harmless Landlord in
connection with the claims of any other real estate brokers claiming
commissions in connection with the within transaction and claiming authority
from Tenant.
43. SUBORDINATION OF LEASE
This lease shall be subject and subordinate at all times to the lien
of any bona fide mortgages, ground leases or other encumbrances now or
hereafter placed on the Leased Premises without the necessity of any further
instrument or act on the part of Tenant to effectuate such subordination, but
Tenant covenants and agrees to execute and deliver upon demand such further
instrument or instruments evidencing such subordination of the lease to the lien
of any such mortgages or ground leases or other encumbrances as shall be
desired by a mortgagee or proposed mortgagee or by any person. Landlord hereby
agrees that it shall
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use its best efforts to obtain, for the benefit of Tenant, a subordination,
non-disturbance and attornment agreement from Landlord's current mortgagee.
Landlord shall obtain such an agreement from all future mortgagees of the
Property, for Tenant's benefit. It is expressly understood and agreed that any
subordination, non-disturbance and attornment agreement to be delivered by
Landlord shall be written on the applicable mortgagee's customary form.
44. LIMIT OF LANDLORD'S LIABILITY
In case the Landlord shall be a joint venture, partnership, tenancy
in common, trust, association or other form of joint ownership, the individual
members thereof shall have absolutely no personal liability or obligation with
respect to any provision of this lease, or any obligation or liability arising
therefrom or in connection therewith, except to the extent of any individual
member's equity ownership of the land, Building and improvements located on the
Property, which covenant hereinabove referred to, shall be deemed effective as
of the date Landlord completes and delivers the Leased Premises in accordance
with the terms and conditions of the lease.
45. LOSS OF OPTION RIGHTS
Anything in this lease to the contrary notwithstanding, it is
expressly understood and agreed that the Option to Renew as provided in Article
49 shall be deemed null and void and of no further force and effect upon notice
by Landlord to Tenant in the event (i) Landlord is obligated to institute
litigation to enforce payment and performance as required under this lease, and
providing Landlord is successful and prevails in such action; or (ii) Tenant is
consistently late in the punctual payment of annual Base Rent and/or additional
rent required to be paid under this lease as shall be evidenced by Landlord
delivering notices of late payments made during any period of four (4) months
during any twelve (12) month period measured from the date of the first late
payment.
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46. SECURITY
Upon execution of this lease, the Tenant shall deposit with
the Landlord the sum of FORTY SEVEN THOUSAND FOUR HUNDRED FIFTY ONE AND 70/100
($47,451.70) DOLLARS as security for the full and faithful performance of this
lease upon the part of the Tenant to be performed. Upon termination of this
lease, and providing the Tenant is not in default hereunder and has performed
all of the conditions of this lease, the Landlord shall return the said sum of
FORTY SEVEN THOUSAND FOUR HUNDRED FIFTY ONE AND 70/100 ($47,451.70) DOLLARS to
the Tenant. Anything herein contained to the contrary notwithstanding, it is
expressly understood and agreed that the said security deposit shall not bear
interest. Tenant covenants and agrees that it will not assign, pledge,
hypothecate, mortgage or otherwise encumber the aforementioned security during
the term of this lease. It is expressly understood and agreed that the Landlord
shall have the right to co-mingle the security funds with its general funds and
said security shall not be required to be segregated.
47. SURVIVAL OF OBLIGATION
It is expressly understood and agreed that in the event there
are any obligations of Tenant with respect to payment or performance as
required under the terms and conditions of this lease that shall have not been
performed prior to the expiration or termination of the lease in accordance
with its terms, such obligation, including the obligation to make Rent
adjustments and other lease adjustments, shall survive the expiration or
termination of the lease term and surrender of the Leased Premises by the
Tenant to the Landlord.
48. EXECUTION AND DELIVERY
The submission of the within lease by Landlord to Tenant for
review and approval shall not be deemed an option to lease, an offer to lease,
or a reservation of the Leased Premises in favor of Tenant, it being intended
that no rights or obligations shall be created by Landlord or Tenant until the
execution and
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delivery of the within lease by Landlord and Tenant, one to the other.
49. OPTION TO RENEW
Provided the Tenant is not in default beyond any applicable
cure period pursuant to the terms and conditions of this lease, the Tenant is
hereby given the right and privilege to renew the within lease, for two (2)
five (5) year periods, to commence at the end of the initial term of this
lease, which renewals shall be upon the same terms and conditions as in this
lease contained, except as follows:
(1) Tenant shall pay during the each five (5) year renewal
term annual Base Rent based upon the fair market value per square foot
applicable to the Leased Premises. The fair market value shall be determined as
follows: After Tenant has given written notice to the Landlord, as hereinafter
provided, of its exercise or the within option, the Landlord shall deliver to
Tenant a written notice stating the fair market value to be paid for the Leased
Premises during the applicable five (5) year renewal term. In the event that
the Tenant objects to the fair market value quoted by Landlord, the issue of
fair market value shall be open to negotiation between Landlord and Tenant. In
the event the parties cannot agree within thirty (30) days after Landlord's
notice of the then fair market rental value, the parties shall agree on the
appointment of a real estate appraiser (the "Appraiser") having the M.A.I.
designation, the cost of which shall be shared equally by Landlord and Tenant,
which Appraiser shall be knowledgeable in the Somerset County, New Jersey
market rental area, who shall make a fair market rental determination. If the
parties cannot agree within thirty (30) days subsequent to the appointment of
the Appraiser, then the matter shall be submitted to binding arbitration
pursuant to the rules for commercial arbitration of the American Arbitration
Association, at the equal administration cost of Landlord and Tenant. It is
expressly understood and agreed that in any event the renewal Base Rent for the
first five (5) year
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renewal term shall not be less than the annual Base Rent of THREE HUNDRED
TWENTY THOUSAND SIX HUNDRED SEVENTY THREE AND 65/100 ($320,673.65) DOLLARS, and
that the renewal Base Rent for the second five (5) year renewal term shall not
be less than the annual Base Rent payable by the Tenant during the first five
(5) year renewal term, in the event fair market rent shall be determined to be
less than said sum as such determination shall be made in the manner
hereinabove provided.
(2) The right, option, and privilege of the Tenant to renew
this lease as hereinabove set forth is expressly conditioned upon the Tenant
delivering to the Landlord, in writing, by certified mail, return receipt
requested, nine (9) months' prior notice of its intention to renew, which notice
shall be given to the Landlord by the Tenant no later than nine (9) months prior
to the date fixed for termination of the original term, or first renewal term,
of this lease, as applicable.
(3) The obligation to pay the Base Rent as hereinabove
provided shall be in addition to the obligation to pay all additional rent and
other charges required by the terms and conditions of this lease.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
or caused these presents to be signed by its proper corporate officers and
caused its proper corporate seal to be hereunto affixed, the day and year first
above written.
WITNESS:
[SIG] [SIG] (L.S.)
------------------------------------- -------------------------------------
XXXXXXX X. XXXXX, TRUSTEE UNDER TRUST
INDENTURE DATED DECEMBER 1, 1972
ATTEST: STERIGENICS, INC.
[SIG] By: [SIG]
------------------------------------- ---------------------------------
XXXXXX X. XXXXXX XXXXX X. XXXXX
Vice-President, Medical Sterilization President, Medical Sterilization
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STATE OF NEW JERSEY )
) SS.:
COUNTY OF )
BE IT REMEMBERED, that on this day of , 1998, before me,
the subscriber, personally appeared XXXXXXX X. XXXXX,
TRUSTEE UNDER TRUST INDENTURE DATED DECEMBER 1, 1972, who, I am satisfied, is
the Landlord mentioned in the within Instrument, and thereupon he acknowledged
that he signed, sealed and delivered the same as his act and deed, for the uses
and purposes therein expressed.
--------------------------------------
STATE OF NEW JERSEY )
) SS.:
COUNTY OF UNION )
BE IT REMEMBERED, that on this 4th day of June, 1998, before me, the
subscriber, a Notary Public, personally appeared XXXXX X. XXXXX, who, I am
satisfied, is the person who signed the within Instrument as President, of
STERIGENICS, INC., a Corporation, the Tenant named therein, and he thereupon
acknowledged that the said instrument made by the corporation and sealed with
its corporate seal, was signed and sealed with the corporate seal and delivered
by him as such officer, and is the voluntary act and deed of the corporation,
made by virtue of authority from its Board of Directors.
/s/ Xxxxx Xxxxxxxx
--------------------------------------
XXXXX XXXXXXXX
NOTARY PUBLIC OF NEW JERSEY
MY COMMISSION EXPIRES MARCH 20, 1999
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EXHIBIT "A"
BEGINNING at the intersection of the proposed Northwesterly line of Xxxxx
Road as measured fifty feet from the center line at right angles thereto with
the proposed Southwesterly line of Commerce Drive (sixty feet wide), said point
of intersection being distant 60.16 feet on a course of South 37 degrees 59' 5"
West along the proposed Northwesterly line of Xxxxx Road from the line dividing
lands owned by Xxxxxx Xxxxxx and Xxxxxxx X. Xxxxx, formerly of Xxxxxx and
Xxxxxxx Xxxx, thence running,
(1) Along the proposed northwesterly line of Xxxxx Road aforesaid, South 37
degrees 59' 5" West, a distance of 311.76 feet to a point, thence
(2) Through lands of Xxxxxxx X. Xxxxx, North 47 degrees 50' 55" West, a
distance of 570.95 feet to a point, thence
(3) Again through property of Xxxxxxx X. Xxxxx, North 42 degrees 9' 5" East, a
distance of 310.94 feet to a point in the proposed Southwesterly line of
Commerce Drive, thence
(4) Along the proposed Southwesterly line of Commerce Drive and parallel to a
line dividing lands of Xxxxxx Xxxxxx and Xxxxxxx X. Xxxxx aforesaid, South
47 degrees 50' 55" East, a distance of 548.30 feet to the point and place
of BEGINNING.
Together with and subject to right to use a proposed roadway as hereinabove
designated as Commerce Drive, sixty feet wide, for access, ingress and egress,
in and to the premises hereinabove described.
Containing 3.995 acres of land as surveyed by Xxxxxxxxx & Associates,
Engineering, Surveying and Planning, 00 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, New
Jersey.
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Schedule "C"
Landscaping Services
(A) Grass Cutting - Grass cutting is to be done once a week, March through
November.
(B) Fertilization - Lawns are to be fertilized spring, summer and fall.
(C) Seeding - Lawns are to be seeded in the spring and fall.
(D) Shrubs and Trees - Shrubs and trees are to be pruned in the spring and
fall.
(E) Tenant is to provide Landlord with copies of maintenance and service
contracts.
