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Exhibit
10.22
LEASE
AGREEMENT
1. PARTIES
TO THIS LEASE AGREEMENT : The parties to this Lease
Agreement (this “Lease”) are DONLY CORPORATION, a New
Jersey corporation, P.O. Box 344, Mountain Lakes, New Jersey 07046
(“Landlord”) and FBN NJ Holdings Corp. DBA VitroCom, a
Delaware corporation, having a principal place of business located
at 8 Morris Avenue, Mountain Lakes, New Jersey 07046
(“Tenant”).
2. EFFECTIVE
DATE OF THIS LEASE : The effective date of this
Lease shall be January 1, 2007.
3. LEASED
PREMISES : The Landlord has agreed to lease to the
Tenant and the Tenant has agreed to rent from the Landlord a
portion of the property designated as Lot 1, Block 89 on the tax
maps of the Borough of Mountain Lakes and Lot 1, Block 106 on the
tax maps of the Town of Boonton, also known as 8 Morris Avenue,
Mountain Lakes, Morris County, New Jersey (the
“Property”) consisting of approximately 21,000 rentable
square feet (the “Premises”) in the building located on
the Property (the “Building”). The Premises includes
certain common elements and Tenant’s Proportionate Share (as
defined below) of the parking spaces at the Property. The Premises
are currently occupied by Tenant.
4. TERM AND
USE : The term of the lease (the “Term”)
shall commence on January 1, 2007 (the “Commencement
Date”) and end on June 30, 2010. The Premises may be
used and occupied for any lawful manufacturing purpose, including
the manufacture of glass products.
5. BASE
RENT : The Tenant covenants and agrees to pay to the
Landlord as rent for and during the Term the sum of Seven Hundred
Thousand and 00/100 Dollars ($700,000.00) and taxes of One Hundred
Twenty-one Thousand Eight Hundred and 00/100 Dollars ($121,800.00)
which together shall be payable in monthly installments on the
first day of each and every month in the amount of Nineteen
Thousand Five Hundred Sixty-six and Sixty-seven cents ($19,566.67).
This payment shall be termed “Base Rent”. The fixed tax
rate of $2,900 per month shall be retroactively effective as of
January 1, 2006. The parties agree that Tenant shall pay
$2,900 per month for real estate taxes during the Term and Landlord
shall not look to Tenant for additional real estate tax payments if
real estate taxes are more than $2,900, nor shall Tenant be
entitled to a refund or reimbursement if real estate taxes are less
than $2,900 per month.
6.
ADDITIONAL RENT : Tenant acknowledges and agrees
that this is a net lease and that Base Rent is intended to be
absolutely net to Landlord after payment by Tenant of all
Additional Rent required to be paid by Tenant pursuant to this
Lease, excluding only those costs which Landlord has expressly
hereby agreed to pay. In addition to the Base Rent, the Tenant
agrees to pay as additional rent (“Additional Rent”,
and together with Base Rent, “Rent”) its Proportionate
Share (as defined below) of the following expense items for the
Property, prorated as of the Commencement Date, so that the Base
Rent shall be absolutely net of an expenses: water taxes/charges
levied by the Town of Boonton and/or the Borough of Mountain Lakes;
sewer taxes/charges levied by the Borough of Mountain Lakes; snow
plowing, lawn maintenance and landscaping costs; refuse collection
and disposal costs; and all other actual expenses incurred by the
Landlord for the following enumerated items: Base Rent shall
however include real estate taxes levied by the Borough of Mountain
Lakes and the Town of Boonton;
a. Maintenance,
repair and replacement of the air-conditioning, ventilation and
heating system (HVAC).
b. Sprinkler
and plumbing system repairs.
c. Electric
repairs.
d. Sewer pumping
system maintenance, repair and replacement.
e. Fire, public
liability and casualty insurance payments as it pertains to
insurance coverage for the Property and Building, as opposed to
Tenant’s insurance for its operations covered in
Section 9.
With respect to the HVAC
system, Tenant shall obtain and pay for a maintenance contract for
the servicing and care of the HVAC equipment at the Premises with
AC&R or equivalent.
7. TENANT’S
PROPORTIONATE SHARE : For purposes of this lease,
the Tenant’s Proportionate Share of expenses shall mean a
fraction whose denominator is the rentable square foot area of the
Building, stipulated to be twenty-nine thousand
(29,000) square feet, and whose numerator shall be the
rentable square foot area of the Premises, stipulated to be
twenty-one thousand (21,000) square feet. It is agreed that
the Tenant’s Proportionate Share shall be seventy-two
(72%).
8. COLLECTION OF
ADDITIONAL RENT : The Landlord shall bill the Tenant
for the items set forth in Section 6 when billing occurs to
the Landlord. The Landlord shall furnish Tenant with a written
statement setting forth the expenses incurred by the Landlord and
include such written statement on the monthly rental invoice.
Tenant shall pay to Landlord this ADDITIONAL RENT on the first of
the month following receipt of the monthly invoice.
9.
LIABILITY AND PROPERTY
INSURANCE; WAIVER AND SUBROGATION:
a. Tenant, at
its own expense will maintain with admitted insurers authorized to
do business in the State of New Jersey and which are rated
“A-/X” or equivalent in Best’s Key Rating Guide,
or any successor thereto (or if there is none, a rating
organization having a national reputation) commercial general
liability (in the broadest form then available in New Jersey)
against claims for bodily injury, personal injury, death or
property damage occurring on, in or about the Premises or as a
result of ownership of facilities located on the Premises in
amounts not less than $2,000,000.00 per occurrence/aggregate for
bodily injury, personal injury or death, $2,000,000.00 with respect
to anyone occurrence, and $1,000,000.00 with respect to all claims
for property damage with respect to anyone occurrence with an
aggregate of $1,000,000.00. From time to time during the Term such
limits shall be increased to the prevailing level customarily
carried with respect to similar properties in Morris County, New
Jersey and the surrounding area. Tenant shall be responsible to
maintain casualty insurance on all of its goods, personal property
or effects, including removable trade fixtures located in the
Premises. The policy shall insure against all costs, expenses
and/or liability arising out of or based upon any and all claims,
accidents, injuries, and damages caused to any person or property
arising within the Premises or as a result of an act or omission on
the part of the Tenant or Tenant’s contractors, licensees,
agents, invitees, visitors, servants or employees on or about the
Property and shall include a contractual liability endorsement
evidencing coverage of Tenant’s obligation to indemnify
Landlord pursuant to Section 23 hereof. Each policy shall be
non-cancelable with respect to Landlord without thirty
(30) days’ prior written notice to Landlord. Prior to
the Commencement Date, Tenant shall provide to the Landlord
certificates evidencing the procurement of the insurance required
under this Section together with proof of payment of the
premium therefor.
b. Landlord and
Tenant shall each secure an appropriate clause, or an endorsement
upon any policy of insurance in force, covering the Property, the
Premises, or any personal property, fixtures
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and equipment
located therein or thereon, including, without limitation,
casualty, liability and business interruption policies in force,
pursuant to which the respective insurance companies waive
subrogation or permit the insured, prior to any loss, to agree with
a third party to waive any claim it might have against said third
party. The waiver of subrogation or permission for waiver of any
claim hereinbefore referred to shall extend to the agents of each
party and also extend to all other persons and entities occupying
or using the Premises in accordance with the terms of this Lease.
In the event that either Landlord or Tenant shall be unable at any
time to obtain one of the provisions referred to above in any of
its insurance policies, Landlord or Tenant, as the case may be,
shall promptly notify the other. Subject to the foregoing
provisions of this Section 9(b), and insofar as may be
permitted by the terms of the insurance policies carried by it, and
notwithstanding any provision of this Lease to the contrary, each
party hereby releases the other and its partners, agents and
employees (and in the case of Tenant, all other persons and
entities occupying or using the Premises in accordance with the
terms of this Lease) with respect to any claim (including a claim
for negligence) which it might otherwise have against the other
party for loss, damages or destruction with respect to its property
by fire or other casualty (including rental value or business
interruption, as the case may be) occurring during the Term covered
by (but only to the extent of the limits of coverage of) such
insurance policies.
10.
SPECIFIC REPAIR OBLIGATIONS OF TENANT : In
addition to the obligations undertaken in Sections 5 and 6,
Tenant agrees, at its own cost and expense, to make all reasonable
and necessary repairs and to keep maintained all equipment
fixtures, improvements and property within the Premises. Tenant
shall not be obligated to make structural repairs to the building
or repairs to the roof; but shall reimburse Landlord for any such
repairs the necessity of which is due to any act of Tenant, its
contractor, licensee, agent, invitee, visitor, servant or employee.
Landlord shall make structural repairs to the building or repairs
to the roof in a timely manner.
11.
UTILITY EXPENSES : The Tenant shall be
responsible for payment of its utility expenses.
12.
ASSIGNMENT AND SUBLEASING : This lease shall not
be assigned or sublet in whole or in part without the express
written permission of the Landlord, which permission shall not be
unreasonably withheld. Notwithstanding the forgoing, this lease may
be assigned by Tenant to any affiliate of Tenant, successor by
merger or consolidation, or acquirer of substantially all of the
business and assets of Tenant (“Affiliate”) without the
consent of Landlord; provided Tenant shall give notice to Landlord
of an assignment to an Affiliate at least ten (10) days prior
to the effective date of such assignment and provide Landlord with
a copy of the assignment document. No assignment or subletting
shall serve to release Tenant from liability hereunder.
13.
PERMITTED SIGNS : The Tenant shall be entitled to
place a sign as permitted by applicable laws and ordinances,
subject to Landlord’s consent, which shall not be
unreasonably withheld.
14.
COMPLIANCE WITH LAWS : The Tenant shall promptly
comply with all laws, ordinances, rules, regulations, requirements
and directives of all governmental or public authorities and of all
their subdivisions, applicable to and affecting the Premises, their
use and occupancy, and shall promptly comply with all orders,
regulations requirements and directives of the Board of Fire
Underwriters or similar authority and of any insurance companies
which have issued or are about to issue policies of insurance
covering the Premises and its contents, for the prevention of fire
or other casualty, damage or injury, at the Tenant’s own cost
and expense.
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15.
ENVIRONMENTAL REQUIREMENTS :
a. Definitions.
(i) “Hazardous
material” shall mean any substance, the presence of which
requires investigation or remediation under any federal, state or
local statute, regulation, ordinance, order, action, policy, or
common law; or (a) which is, or becomes, defined as a
hazardous waste, hazardous substance, pollutant, or contaminant
(including gasoline, petroleum products and their derivatives)
under any federal, state, or local statute, regulation, rule, or
ordinance or amendments thereto including, without limitation, the
New Jersey Spill Compensation and Control Act (“Spill
Act”), N.J.S.A. 58:10-23.11 et seq., (including N.J.A.C. 7:1E
Appendix A); the Industrial Site Recovery Act (“ISRA”),
N.J.S.A. 13:1K-6 et seq., Water Pollution Control Act, N.J.S.A.
58:10A-1 et seq., the Underground Storage Tank Act, N.J.S.A.
58:10A-2 et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901 et seq., as amended, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601 et seq.; or (b) which is toxic, explosive,
corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic, or otherwise hazardous and is, or becomes, regulated by
any governmental authority, agency, department, commission, board,
agency, or instrumentality of the United States, the State of New
Jersey or any political subdivision thereof.
(ii) “Environmental
Documents” shall mean all environmental documentation in the
possession or under the control of Landlord concerning the Property
or its environs, including without limitation all sampling plans,
cleanup plans, preliminary assessment plans and reports, site
investigation plans and reports, remedial investigation plans and
reports, remedial action plans and reports or the equivalent,
sampling results, sampling result reports, data, diagrams, charts,
maps, analyses, conclusions, quality assurance/quality control
documentation, correspondence to or from the New Jersey Department
of Environmental Protection (“NJDEP”) or any other
municipal, county, state or federal governmental authority,
submissions to the NJDEP or any other municipal, county, state or
federal governmental authority and directives, orders, approvals,
and disapprovals issued by the NJDEP or any other municipal,
county, state or federal governmental authority.
(iii) In this
Section, all references to Tenant or Landlord shall mean Tenant or
Landlord and Tenant’s or Landlord’s, employees, agents,
contractors, licensees, invitees, assigns, subtenants or occupants,
respectively (i.e., any act or omission by any one of
Tenant’s employees, agents, contractors, licensees, invitees,
assigns, subtenants or occupants shall be deemed to be the act or
omission of Tenant; any act or omission by any one of
Landlord’s employees, agents, contractors, licensees,
invitees, assigns, subtenants or occupants shall be deemed to be
the act or omission of Landlord).
b. Industrial
Site Recovery Act Requirements.
(i) Tenant’s
Standard Industrial Classification Number, as designated in the
Standard Industrial Classification Manual prepared by the Office of
Management and Budget and in the Executive Office of the President
of the United States, is 3674, “Semiconductors and Related
Devices”. Tenant will immediately notify Landlord of any
change in this number during the Term hereof.
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(ii) Tenant
shall, at Tenant’s own expense, comply with the Industrial
Site Recovery Act N.J.S.A, 13:lK-6 et seq., the regulations
promulgated thereunder and any amending or successor legislation
and regulations (“ISRA”) in the event of a closing of
Tenant’s operations, a transfer of Tenant’s operations,
or a change in the ownership of Tenant. Compliance with the
Industrial Site Recovery Act (“ISRA”), N.J.S.A. 13:1
K-6 et seq., shall include, but is not limited to, the preparation
and submission of documents for a negative declaration, remedial
action workplan, no further action letter, remediation agreement,
any investigation, reporting and remediation required by the NJDEP
pursuant to this Section (except as otherwise exempted below)
or as otherwise set forth in ISRA. If Tenant is required to comply
with ISRA, Tenant shall be responsible only for the payment of that
portion of the cost of ISRA compliance which is applicable to the
discharge of a hazardous materials at the Premises by Tenant during
the Term. Landlord shall be responsible for all other ISRA costs,
including, but not limited to costs incurred by reason of any prior
operations at the Property and/or Premises or because of the
operation of other tenants at the Premises.
(iii) Notwithstanding
the foregoing, in the event that Tenant’s compliance
hereunder shall extend beyond the time which this Lease is
otherwise set to expire or beyond the time which this Lease is for
any reason terminated. Tenant shall be required to continue to pay
Rent to Landlord for so long as it shall take for Tenant to
satisfactorily discharge its obligations under ISRA. The acceptance
of a Negative Declaration by the NJDEP or No Further Action Letter
or as otherwise provided in section 6 of P.L. 1983, c. 330
(C.13:1K-11), and sections 13, 16, 17 and 18 of P.L. 1993, c. 139
(C.13:1K-11.2, 13:1K-11.5, 13:1K-11.6 and 13:1K-11.7), shall
constitute satisfactory discharge of Tenant’s obligations
with respect to compliance with ISRA. This provision shall only
apply where the discharge of any hazardous material is caused by
Tenant. If Tenant begins remediation activities and it is
discovered that the discharge of any hazardous material was caused
only by Landlord, a prior tenant or owner, or a third party, this
provision will not apply. It is understood and agreed with respect
to this Section that Landlord shall cooperate fully with
Tenant and the NJDEP (and any other governmental agency having
authority) in expediting the processing and approval of any and all
applications required to be submitted by Tenant and/or executed
(without the assumption or admission of liability except as set
forth herein), by Landlord in connection with the, discharge of
Tenant’s obligations under ISRA.
(iv) Tenant
shall, at no cost to Landlord, provide all information within
Tenant’s control reasonably requested by Landlord or the
NJDEP, or Division thereof, for preparation of a non-applicability
affidavit or other type of submission, should Landlord or NJDEP so
request, and Tenant shall promptly execute such affidavit or
submission should the information contained in the affidavit or
submission be found by Tenant to be complete and accurate and
Tenant’s execution of such affidavit or submission be
required by NJDEP.
(v) Landlord
shall provide, at no cost to Tenant, all information reasonably
available to it requested by Tenant and reasonably necessary or
required for and in connection with the preparation of all ISRA
submissions and/or in connection with any requests for information
by the NJDEP or any division thereof.
(vi) If ISRA
compliance becomes necessary at Premises due to any action or
non-action on the part of Landlord or any third party, including
but not limited to a change in ownership
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of the Premises, a
closing of operations, or a transfer of ownership or operations,
then Landlord shall comply with ISRA and all requirements of the
NJDEP and any division thereof, at Landlord’s own
expense.
(vii) Tenant and
Landlord shall indemnify, defend and hold each other harmless from
and against all claims, liabilities, losses, damages, penalties and
costs, foreseen and unforeseen, including without limitation
counsel, engineering and other professional or expert fees, which
the indemnified party may incur resulting directly or indirectly,
wholly or partly, from the other’s action or non-action with
regard to its respective obligations under this Article or breach
of its respective representations and warranties under this
Article.
c. Additional
Environmental Requirements by Tenant.
(i) Tenant
shall, at Tenant’s sole cost and expense, without notice or
demand from Landlord, comply with all the requirements of all
county, municipal, state, federal and other applicable governmental
authorities, now in force, or which may hereafter be in force to
the extent such compliance is required as a result of
Tenant’s specific manner in which it is using the
Premises.
(ii) During the
Term, Tenant shall at all times handle any hazardous materials in
such fashion as to avoid any discharge of hazardous materials on
the site of the Premises. Prior to signing this Lease, Tenant shall
supply a list of hazardous materials (including quantities) which
Tenant intends to store/utilize at the Premises.
(iii) Tenant
agrees that it will register with the New Jersey Department of
Environmental Protection and any other applicable federal, state,
county or local agency, as required, and within the time periods
set forth in the applicable statutes, any underground storage tanks
which Tenant uses or installs on the Premises.
(iv) In the
event that there shall be filed a lien against the Premises by the
New Jersey Department of Environmental Protection, pursuant to and
in accordance with the provisions of N.J.S.A. 58:10-23.11f(f), as a
result of the Chief Executive of the New Jersey Spill Compensation
Fund having expended monies from said fund to pay for
“Cleanup and Removal Costs”, as such term is defined in
N.J.S.A. 58:10-23.11b(d), arising from an intentional or
unintentional action or omission of the Tenant, resulting in the
releasing, spilling, pumping, pouring, emitting, emptying or
dumping of “Hazardous Materials”, into waters of the
State of New Jersey or onto the lands from which it might flow or
drain into said waters, then Tenant shall, within thirty
(30) days from the date that Tenant is given notice that the
lien has been placed against the Premises or within such shorter
period of time in the event that the State of New Jersey has
commenced steps to cause the Premises and/or Compliance Are to be
sold pursuant to the lien either, at Tenant’s option
(subject, however, in all respects to any reasonable requirements
of Landlord’s mortgagee), (a) pay the claim and remove
the lien from the Premises, or (b) furnish a cash deposit with
the Landlord in the amount of the claim out of which the lien
arises, or (c) provide other security reasonably satisfactory
to Landlord in an amount sufficient to discharge the claim out of
which the lien arises.
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(v) Should the
Tenant cause the releasing, spilling, leaking, pumping, pouring,
emitting, emptying or dumping of hazardous materials into waters or
onto lands of the State or into waters outside the jurisdiction of
the State resulting in damage to the lands, waters, fish,
shellfish, wildlife, biota, air or other resources owned managed or
held in trust or otherwise controlled by the State, without having
a permit issued by the appropriate governmental authorities, the
Tenant shall promptly clean up the same in accordance with the
provisions of the New Jersey Spill Compensation and Control
Act.
(vi) Tenant
further agrees to indemnify, defend and hold harmless Landlord from
any and all claims, damages, fines, judgments and penalties, costs,
liabilities (including strict liabilities) or losses (including
without limitation reasonable attorneys’ fees and
environmental consultant or expert fees) in connection with the
existence and or discharge of any hazardous materials that has
taken place at or from Premises as a result of Tenant’s acts,
negligence, willful misconduct or other acts of the Tenant,
Tenant’s agents, employees or invitees, including any and all
costs incurred by Landlord concerning the investigation and
remedial work mandated by any Federal, State, County or local
environmental law, regulation or ordinance, including but not
limited to, the New Jersey Spill Compensation and Control Act,
N.J.S.A. 58:10-23.11 et seq., Industrial Site Recovery Act,
N.J.S.A. 13:lK-6 et seq., and the New Jersey Water Pollution
Control Act, N.J.S.A. 58:10A-1 et seq., and New Jersey Underground
Storage Tank Act, N.J.S.A. 58:10A-21 et seq., and the regulations
promulgated thereunder and any amending or successor legislation
and regulations.
(vii) Landlord
reserves the right from time to time, but not more than once a
year, except in the event of an emergency, during the Term hereof
and any extension, to have the Premises inspected by environmental
engineers and/or specialists for the purpose of determining
compliance by Tenant with any environmental laws, rules and
regulations applicable to Tenant’s operations in or about the
Premises and with the terms and conditions of this Lease dealing
with environmental matters, including without limitation, the
provisions of this Section, which inspection shall be at
Landlord’s sole cost and expense. If the environmental
assessment or report resulting from such inspection discloses any
non-compliance, Tenant shall immediately following receipt of the
environmental assessment take all such steps as are necessary to
put the Premises into compliance, including without limitation,
cleaning up any spills or other emissions of hazardous and/or toxic
substances or wastes, and Tenant shall reimburse Landlord for the
cost of the inspection.
16.
ALTERATIONS : Tenant shall not make or suffer to
be made any alterations, additions or improvements to or of the
Premises or any part thereof, or attach any fixtures or equipment
thereto, without first obtaining Landlord’s prior written
consent. Any such alterations, additions or improvements to the
Premises consented to by Landlord shall, at Landlord’s
option, be made by Landlord for Tenant’s account and Tenant
shall pay Landlord for the cost thereof (including a reasonable
charge for Landlord’s overhead) within ten (10) days
after receipt of Landlord’s statement. All such alterations,
additions and improvements shall (without compensation to Tenant)
immediately become Landlord’s property (except moveable
furniture and trade fixtures) and, at the end of the term hereof,
shall remain on the Premises without compensation to Tenant unless
Landlord elects by notice to Tenant to have Tenant remove the same,
in which event Tenant shall promptly restore the Premises to their
condition prior to the installation of such alterations, additions
and improvements. Tenant will obtain at Tenant’s expense all
necessary permits and certificates and Tenant shall furnish
Landlord copies of all such permits and certificates.
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17.
LIENS : Tenant shall keep the Premises free from
any liens arising out of any work performed, materials furnished or
obligations incurred by or for Tenant. In the event that Tenant
shall not, within ten (10) days following the imposition of
any such lien, cause the same to be released of record by payment
or posting of a proper bond, Landlord shall have, in addition to
all other remedies provided herein and by law, the right but not
the obligation, to cause the same to be released by such means as
it shall deem proper, including payment of or defense against the
claim giving rise to such lien. All sums paid by Landlord and all
expenses incurred by it in connection therewith (including, without
limitation, reasonable legal fees and costs), shall create
automatically an obligation of Tenant to pay an equivalent amount
as Additional Rent, which shall be payable by Tenant on
Landlord’s demand with interest at the maximum rate per annum
permitted by law until paid. For purposes of this Section,
“liens” shall include, but not be limited to,
mechanic’s notices of intention, contractor’s liens,
stop notices and filing of contracts. Tenant shall require all
Tenant’s contractors and materialmen to waive any and all
rights they may have to file any liens.
18. FIRE OR CASUALTY
:
a. If the
Premises or any part thereof shall be damaged by fire or other
casualty, Tenant shall immediately inform Landlord thereof, and
this Lease shall continue in full force and effect, except as
hereinafter set forth.
b. Except as
specifically provided in this Section, Tenant agrees that it shall
not be relieved of the obligations to pay Rent in case of damage to
or destruction of the Premises or Building or any portion thereof.
Tenant waives the benefit of any law to the contrary.
c. If all or a
material portion of the Premises are damaged or rendered unusable
by fire or other casualty, and the damages to the Premises can, in
Landlord’s reasonable judgment, be reasonably repaired within
one hundred eighty (180) days of the occurrence of such
damage, the damages, to the extent covered by insurance and
affecting the tenant installation provided or paid for by Landlord,
shall be repaired by and at the expense of Landlord and the Rent,
until such repair shall be substantially completed, shall abate in
proportion to the area of the Premises which was damaged or
unusable by Tenant for so long as the Premises, or each such
portion thereof, is damaged or unusable, it being the intent that
such abatement shall not affect or reduce Landlord’s rent
insurance coverage. Notwithstanding anything to the contrary
herein, Landlord shall not be obligated to repair or restore any
personal property of Tenant or any fixtures or Tenant installation
not installed by and paid for by Landlord.
d. If Landlord
repairs and restores the Premises in accordance with
Section 18.c such repairs and restorations shall be made with
all reasonable expedition. After any such fire or other casualty,
Tenant shall cooperate with Landlord’s restoration by
removing from the Premises as promptly as reasonably possible and
to the extent reasonably necessary, all of Tenant’s and any
sublessee’s salvageable inventory and movable equipment,
furniture, and other property. Tenant’s liability for Rent
shall resume five (5) business days after written notice from
Landlord of substantial completion of repairs to the Premises. For
purposes hereof, “substantial completion” shall mean
the date upon which Landlord has procured a temporary or permanent
certificate of occupancy permitting occupancy of the Premises by
Tenant
e. If all or
substantially all of the Premises are damaged or rendered unusable
by fire or other casualty, or (whether or not the Premises are
damaged in whole or in part) if the Building shall be substantially
damaged so that Landlord in its reasonable opinion, cannot rebuild
both the Premises
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and the Building to
their pre-existing condition within one hundred eighty
(180) days, then, in either of such events, either Landlord or
Tenant may elect to terminate this Lease by written notice to the
other, specifying a date for the expiration of the Lease, which
date shall not be more than one hundred eighty (180) days
after such fire or other casualty, and upon the date specified in
such notice the term of this Lease shall expire as fully and
completely as if such date were the expiration date of the Term and
Tenant shall forthwith quit, surrender and vacate the Premises
without prejudice however, to Landlord’s rights and remedies
against Tenant under the Lease provisions in effect prior to such
termination; and any Rent owing shall be paid up to such date and
any payments of Rent made by Tenant which were on account of any
period subsequent to such date shall be credited against amounts
owed by Tenant to Landlord or refunded to Tenant. If neither party
terminates the Lease, to the extent of the insurance proceeds
available to Landlord therefor, Landlord shall repair and restore
the Building and/or the Premises to substantially the same
condition in which they were immediately prior to the fire or other
casualty, except that Landlord shall not be required to rebuild,
repair, or replace any part of Tenant’s furniture, fixtures,
furnishings, or equipment or any alterations, additions, or
improvements made by Tenant to the Premises. Landlord’s
repair and restoration work shall not exceed the scope of work done
in originally constructing the Premises. Landlord shall not be
liable for any inconvenience, annoyance, or injury done to the
business of Tenant resulting in any way from such damage or the
repair therefor, and Tenant’s obligations to pay Rent shall
continue unabated, except that Landlord shall allow Tenant an
equitable reduction of Rent during the time and to the extent the
Premises are unfit for occupancy, save for Tenant’s fault or
negligence herein below described.
f. Notwithstanding
anything to the contrary contained in this Section or any law,
should the Premises or Building be damaged by fire of other
casualty as a result of the negligence of Tenant or any sublessee
or any employee, agent or visitor of either, Tenant shall have no
right to terminate this Lease and there shall be no abatement of
Rent under this Section, and Tenant shall be liable to Landlord for
such damage, subject to the other provisions hereof.
19. EMINENT DOMAIN
:
a. If all or
substantially all of the Premises or a substantial portion of the
Building should be acquired or condemned by eminent domain by any
governmental authority, then Landlord or Tenant may terminate this
Lease as of the date when ti
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