Exhibit 10.12
LEASE AGREEMENT
THIS LEASE AGREEMENT, made this 26th day of June , 1998 by and between
MT. BETHEL CORPORATE CENTER
c/o Atlantic Development & Management Corp.
00 Xxxxxxxxxx Xxxxx, X.X. Xxx 0000
Xxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as "Landlord")
and
XXXXXXXXX TECHNOLOGIES, INC.
a Delaware Corporation
00 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as "Tenant")
WITNESSETH:
The parties hereto, in consideration of the rents, covenants and
conditions herein obtained, do mutually agree as follows:
1. THE DEMISE
A. Landlord does hereby demise and lease to Tenant, and Tenant does
hereby lease and hire from Landlord, premises consisting of approximately 21,128
square feet of "as is" offices and approximately 7,000 square feet of "as is"
warehouse space subject to the performance of Landlord to install demising fence
within the warehouse portion of the premises, both of which are as shown
highlighted in yellow on Exhibit "A" (the "Premises") located in a high
technology building comprised of approximately 95,000 sq. ft. (the "Building")
commonly know as 00 Xxxxxxxxxx Xxxxx, Xxxxxx Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxx
Xxxxxx together with right of access through Lots 16 & 19.03 Block 78 on the
private driveway identified as "Technology Drive". The tract of land upon which
the Premises are located and all improvements thereon, including the Building,
are sometimes hereinafter referred to collectively as "Landlord's Tract", and as
shown on Lease Exhibit "B". Landlord's tract consists of land and improvements
included on the aforesaid Xxxx 00 xxx 00.00, Xxxxx 00. Xxxxxxxx'x Xxxxx includes
land upon which multiple buildings have been constructed (with more buildings
being planned), together with the commonly used areas, including roadways and
detention facilities. It is the parties' intention that when this lease
obligates Tenant to pay "Tenant's Proportionate Share" (or similar term) of
taxes and other costs or expenses attributable to Landlord's Tract, any such
provision shall be interpreted to mean such share set forth in section 6(a) (1)
applied to (a) the taxes or other costs directly attributable only to the
Building, plus (b) the Buildings fair and ratable share of such costs for
maintaining and repairing the common areas of the Landlord's Tract.
Landlord reserves unto itself, its successors and assigns and public
utility companies, the right to install, repair,
replace and realign utility lines serving the Premises and/or other
improvements, through and in the land beneath the Building, provided that in
doing so, neither Landlord nor any public utility company shall unreasonably
interfere with the use, enjoyment or business operation of Tenant, provided,
however, that if Landlord needs to enter the Building for such purposes, it
shall give Tenant reasonable advance notice.
Subject to the provisions below, Landlord hereby grants to Tenant, at
no additional cost or charge to Tenant, except as hereinafter provided, the
right to use in common with other tenants the portions of the Landlord's Tract
outside of the Premises which are intended to be for common use, including but
not limited to lobbies, hallways, elevator, sidewalks, roofs, access roads and
landscaped areas. Access and all building services shall be provided t all times
during the term of this Lease on a 24 hour, 7 day basis, if allowed by
governmental authorities. It is agreed that sixty five (65) unassigned parking
spaces at the Premises are for the use of Tenant, its employees, agents,
invitees and licensees. Landlord shall not specifically designate any parking
space for any other tenant, except as already so designated as of the date
hereof. Tenant, its employees, agents, invitees and licensees, shall not be
permitted to utilize parking spaces anywhere except at the Premises.
2. TERM: RENEWAL
A. The term of this Lease (the "Initial term") shall be for a period
of ten (10) years commencing on July 1, 1998 or such later date as Landlord
obtains a continuing Certificate of Occupancy for Tenant.. The expiration date
of the Initial Term shall be June 30, 2008.
B. If Tenant is not in default hereunder, Tenant shall have the
option, exercisable by written notice by certified mail return receipt requested
to Landlord not later than nine (9) months prior to the expiration of the
Initial Term to extend the Term for one additional period of ten (10) years on
the same conditions contained herein, except that the basic rent shall be at
Fair Market Value for one such additional ten year period. In no event shall the
basic rental for any renewal term be less than the basic rent being paid for the
last year of the immediately preceding term. The Initial Term and any such
additional periods are referred to collectively as the "Term". The basic rental
for the second five years of the renewal term of the ten (10) year renewal
period shall be adjusted in the same manner that the Base Rent shall be
readjusted during the second five years of the initial term, except that the
increase in the Index shall be measured for the first five (5) years of the
renewal period.
C. At any time not later than twelve (12) months prior the expiration
of the initial term and not earlier than thirteen (13)
months prior to the expiration of the initial term, Tenant may notify Landlord
that it has an interest in renewing this Lease. Within ten (10) days following
its receipt of such notice, Landlord shall give Tenant a written notice stating
the per-square-foot amount which it would be willing to accept as the Fair
Market Rental Value of the Premises for the Renewal Term. Within ten (10) days
following Tenant's receipt of Landlord's notice, Tenant shall give Landlord a
written notice stating either that Tenant accepts such amount as the Fair Market
Rental Value of the Premises for the applicable Renewal Term or that Tenant does
not accept such amount. If Tenant shall so accept such amount, such amount shall
be the Fair Market Rental Value of the Premises for the Renewal Term. If Tenant
shall give such notice that it does not accept such amount, then Landlord and
Tenant shall promptly initiate, and thereafter cooperate with one another in the
conduct of, negotiations to determine said Fair Market Rental Value. If the
parties have not agreed as to said Fair Market Rental Value within eleven (11)
months prior to the expiration date of the Term or first Renewal Term, as the
case may be, Landlord and Tenant shall attempt to agree upon a single MAI
appraiser to determine the Fair Market Rental Value. If landlord and Tenant
cannot agree upon a single MAI appraiser within eleven (11) days after such
date, then Landlord and Tenant shall each appoint an MAI real estate appraiser
within five (5) days thereafter, each of whom shall have a minimum of ten year's
experience in the area of High-Technology building appraisals and leasing in the
County of Somerset, New Jersey, and neither of whom shall be employees or former
employees of either Landlord or Tenant (although the prospective appraiser may
be an independent consultant to either party). If the two MAI appraisers cannot
agree upon the Fair Market Rental Value, then within ten (10) days after their
selection, the two appraisers shall select a third MAI appraiser who shall meet
the same standards. The three appraisers shall meet at the earliest practicable
date, and in no event later than twenty (20) days after the selection of the
third appraiser, and shall, by a majority vote, determine the Fair Market Rental
Value. If the first two appraisers cannot agree upon a third appraiser within
the aforesaid ten-day period, Landlord and/or Tenant shall promptly apply to the
local office of the American Arbitration Association or a New Jersey court of
competent jurisdiction for the appointment of the third appraiser. If a majority
of the appraisers cannot agree upon such Fair Market Rental Value, then the
third appraiser shall determine the same; provided, however, that the
determination of such appraiser shall not be lower than the lowest Fair Market
Rental Value or higher than the highest Fair Market Rental Value proposed by the
other two appraisers. Each party hereto shall use bona fide efforts (and shall
be responsible for any failure of the appraiser which it selects to use bona
fide efforts) to assure that the determination of the Fair Market Rental Value
is made no later than six (6) months prior to the expiration date of Initial
Term or First Renewal Term, as the case may be, so that Tenant may timely notify
Landlord, if at all, of
Tenant's exercise of its option to renew the term of the Lease.
The Fair Market Rental Value is to be determined by the appraisers
based upon the condition of the Premises at the Initial Commencement Date of the
Lease and shall not take into account any special tenant improvements. For
purposes of this paragraph, the appraisers shall base their appraisal on the
amount of office space and warehouse space being used and the "net" nature of
this Lease.
3. RENT: ADDITIONAL RENT: SECURITY
A. Tenant shall pay to Landlord, as fixed minimum rent ("Basic Rent")
during the Term, constituting annual and monthly Basic Rent, in accordance with
the Lease Payment Schedule on Exhibit "C". The Basic Rent shall be payable
monthly in advance without set-off, deduction or counterclaim and without
previous notice or demand therefor, with the first installment to be due and
payable upon the execution hereof, and the second and each subsequent
installment to be due and payable on the first day of each and every month of
the Term (the installment for any partial calendar month to be pro-rated based
upon the number of days in the applicable month).
B. In addition to the Basic Rent, Tenant shall pay to Landlord or to
the appropriate third party (as may be specified herein below), as additional
rent, without previous notice or demand therefor except as otherwise herein
provided (subject to no offset, deduction or counterclaim of any kind or
nature), and in the manner and upon the conditions herein set forth, all other
charges provided for hereunder to be paid by Tenant. Any and all sums required
to be paid by Tenant hereunder, whether to Landlord or otherwise, shall for
purposes of Landlord's rights including the non-payment thereof and for all
other purposes for which the same shall be relevant, be deemed additional rent
subject to the same duties and obligations of Tenant with respect to, and the
same remedies of Landlord for the non-payment of, Basic Rent ("Additional
Rent"). If Landlord shall pay any monies or incur any expenses in correction of
Tenant's violation of the covenants contained in this Lease, the amounts so paid
or incurred shall, upon notice to Tenant, be considered Additional Rent payable
by Tenant with the next installment of Basic Rent thereafter to become due and
payable or, if at expiration of the Term or at other termination of this Lease,
within thirty (30) days of demand therefor by Landlord, it being agreed that the
responsibility for payment thereof shall survive expiration of the Term or other
termination of this Lease. All rentals of any nature shall be paid and delivered
to Landlord at Landlord's address as set forth at the head of this Lease, or to
such other place or person as Landlord may from time to time designate by
written notice to Tenant.
C. Basic Rent and Additional Rent are sometimes hereinafter
collectively referred to as "Rent", "Rent" or "Rental".
D. On or before August 31, 2001, Tenant shall deposit with Landlord
the sum of One Hundred Twenty One Thousand Five Hundred Dollars ($121,500.00),
as security for the faithful performance by Tenant of all of the terms,
covenants and conditions of this Lease by Tenant to be kept and performed (the
"Deposit"). If at any time during the Term, any of the rent herein reserved or
provided to be paid shall be overdue and unpaid beyond any applicable grace
period, then Landlord may, at its option, appropriate and apply any portion of
the Deposit to the payment of any such overdue rent; and in the event of the
failure of Tenant to keep and perform any other term, covenant and/or condition
of this Lease to be kept and performed by Tenant, then Landlord, at its option,
may appropriate and apply the Deposit, or so much thereof as may be necessary,
to compensate Landlord for the loss or damage suffered by Landlord due to the
breach on the part of Tenant. If there shall occur any increase in the Basic
Rent during the Term, Tenant shall, at or prior to the time of such increase,
deposit such additional sum(s) so that the Deposit at all times equals three (3)
months of the prevailing Basic Rent and Additional Rent. Non-payment of the
Security Deposit when due shall be a default in the Lease and Landlord in
addition to all of its remedies under this Lease as to default shall be relieved
of providing free Basic Rent as Landlord's work letter obligation specified in
Exhibit "E".
4. USE OF PREMISES
The Premises shall be used for offices, light assembly and warehouse
operations, and distribution of Tenant's products and for no other purpose.
Tenant represents that it shall not create any odors or noises (which in the
reasonable opinion of Landlord, would devalue the building,) which will disturb
neighboring tenants or properties, and that it will conform at all times with
all applicable municipal zoning ordinances and all laws and regulations as set
forth in Section 12. Tenant represents its use shall not be hazardous.
5. NET LEASE
It is understood and agreed that, except as may otherwise in this
Lease be expressly provided, Tenant has the responsibility of paying all charges
of any kind or nature attributable to the Premises, whether or not specifically
set forth in this Lease, it being the intention of the parties hereto that the
Rent payable to Landlord under this Lease be absolutely net and that Landlord
have no expense whatsoever attributable to the Premises or to the operation or
maintenance of Tenant's operations at the Premises, unless otherwise expressly
stated herein.
6. REAL ESTATE TAXES
A. Tenant shall pay, as Additional Rent during the Term, upon demand
from time to time by Landlord and together with the next payment of Basic Rent
due after such demand (or within ten (10) days of demand if the Term is about to
expire or this Lease otherwise about to terminate after the making of such
demand), Tenant's Proportionate Share (as defined below) of all real estate
taxes, assessments and other charges and levies which may be made or imposed
upon Landlord's Tract, other than income, franchise, gross receipts,
corporation, capital levy, excess profits, revenue, inheritance, gift, estate,
payroll or stamp tax, or other tax not in lieu of or as substitute for real
estate tax or charges stemming from Landlord's failure to pay taxes as due;
provided, however, that if any time during the Term the methods of taxation
prevailing at the Commencement Date shall be altered so as to cause the whole or
any part of the taxes, assessments and other charges and levies referred to
hereinabove in this Section to be imposed, wholly or partly, as a capital levy,
on the rents received from Landlord's Tract or otherwise, or if any tax shall be
measured by or based in whole or in part upon the value of Landlord's Tract and
shall be imposed upon Landlord, then, to the extent that such other tax is a
substitute for, and is enacted in lieu of, existing real estate tax, as
described above, Tenant shall be responsible for payment, as Additional Rent, of
all such taxes, assessments, levies or charges. The maximum obligation of
Tenant, however, shall be achieved by computing such tax as if the Premises
shall be the sole property of Landlord. Upon request of Tenant, Landlord shall
execute all documents necessary for, and will cooperate with Tenant with respect
to, the prosecution, in Landlord's name, of appeals of the tax assessment
against Landlord's Tract, provided that no such appeal shall be prosecuted if
the prosecution thereof would, in Landlord's reasonable judgment, jeopardize
Landlord's ownership of the Premises or create any lien or encumbrance thereon,
and further provided that Landlord shall incur no expense or obligation in
connection with any such appeals. If payments are made by Tenant directly to the
taxing authority or authorities, Tenant shall submit to Landlord, within ten
(10) days after the due date from time to time, evidence of payment. Landlord
shall provide Tenant with proof of payment of real estate taxes within a
reasonable period of time, if requested.
(1) For purposes of the foregoing and as elsewhere used in this
Lease, "Tenant's Proportionate Share" at the Commencement Date of the Lease
shall be 17.89 percent increasing to 27.59% eighteen (18) months later and to
29.61% as of August 31, 2001. It is understood that these increases may occur
sooner if Tenant occupies additional space during the term of the Lease. This
percentage shall be adjusted as square
footage increases or decreases over the term of the Lease, or if the Building
size changes.
B. At the option of Landlord, the real estate taxes and/or other
charges for which Tenant is responsible hereunder shall be paid in monthly
installments in such amounts as are estimated and billed by Landlord, each such
installment being due with each monthly basic rental payment. If Landlord elects
such option, which it may do from time to time, then within sixty (60) days
after receipt by Landlord of final real estate tax bills and/or a reasonable
accounting of any other charges so billed for the applicable year, Landlord
shall so notify Tenant and make available for Tenant's inspection, upon request,
until at least 90 days after any calendar year, copies of such tax bills and/or
such accounting, and the monthly payments to be made by Tenant thereafter shall
be adjusted to compensate for any overpayment or underpayment made by Tenant in
the preceding period. It is understood and agreed that the responsibility of
Tenant to pay costs of any nature which may be due under this Lease shall, if
not paid as of the time of expiration of the Term or other termination of this
Lease, survive expiration of the Term or other termination of this Lease.
7. UTILITY CHARGES
Tenant shall pay for all utility services of any nature serving the
Premises. Said utilities for office space shall be separately metered, if
reasonably possible in Tenant's name. Tenant shall not overload the electrical
wiring serving the Premises nor use any other utility beyond its normal
capacity. It is possible that warehouse space may not be sub-metered in which
case, Tenant shall pay Tenant's Proportionate Share based upon the square
footage of said space.
8. LANDLORD'S OPERATING COSTS
A. Tenant shall pay to Landlord, upon demand by Landlord from time to
time, Tenant's Proportionate Share of Landlord's Operating Costs (as defined
below). The phrase "Landlord's Operating Costs" shall mean all reasonable costs,
charges or expenses of any nature actually incurred by Landlord in connection
with owning, operating, maintaining and/or carrying Landlord's Tract. By way of
example, and not in limitation of the generality of the foregoing nor in
limitation of the nature or types of costs, charges or expenses included in the
definition of Landlords Operating Costs, it is understood that Landlord's
Operating Costs shall include costs, charges and expenses for the following with
respect to Landlord's Tract (including the Building and all other exterior and
interior portions, common and otherwise, of Landlord's Tract): maintenance,
repairs and replacements, including roof, structural frame and concrete floor
slabs; paving, repaving and striping; landscaping; cleaning, lighting, snow and
0ice removal; trash removal and/or janitorial or cleaning service; utility
charges, such as, but not limited to, costs or charges for providing electric
energy (except for electric energy required to be paid for directly by tenants),
heating, air conditioning, lighting, water, gas or other fuel; and costs or
charges for any other type of service supplied to the common areas of Landlord's
Tract; insurance for Landlord's Tract (e.g., fire and extended, liability,
rental, workers' compensation);a management fee equal to no more than five
percent (5%) of Basic Rent and costs for equipment and supplies.
B. Notwithstanding the foregoing, Landlord's Operating Costs shall not
include: the cost of any of the services set forth in Section 8-A above the
responsibility for which are assumed by Tenant with the approval of Landlord,
such as Premises janitorial or security services; costs of repair to the
Premises to the extent reimbursed by payment of insurance proceeds received by
Landlord or recovery from a third party (but less costs of obtaining such
recovery); debt service on loans to Landlord or secured by mortgage or deed of
trust covering the Premises; salaries of executive officers or other employees
of Landlord; and costs relating to new improvements added to the Premises (as
distinguished from repair or replacement of existing improvements), nor shall
Landlord's Operating Costs include items which are capital items during the last
two (2) years of the Initial Term and the last two years of the renewal term, if
any, or the cot of repairs or replacement of structural members, floor slabs or
footings.
C. Tenant shall have the right from time to time, at Tenant's expense,
upon reasonable notice during reasonable business hours, to have an independent
certified public accountant or a qualified employee of Tenant inspect the
portion of Landlord's books and records that are relevant to Landlord's
calculation of Landlord's Operating Costs and Tenant's Proportionate Share
thereof, for a preceding period not to exceed two (2) years.
D. Tenant shall not be responsible for Landlord's Operating Costs and
real estate taxes attributable to the time period prior to the Commencement
Date. Tenant's Proportionate Share of Landlord's Operating Costs and real estate
taxes for the calendar year in which Tenant's obligation to share therein
commences and in the calendar year in which such obligation ceases, shall be
prorated based upon the applicable time periods.
E. The aforesaid Landlord's Operating Costs may be based on monthly
estimates of Landlord but shall be reconciled and adjusted annually.
F. It is anticipated that the Landlord may contribute the building of
this Lease to a condominium association. In the event same is contributed to
said association, the Tenant shall be responsible for any share of additional
expenses, costs and charges of any nature incurred by the Landlord as a result
of the owning, operating and maintaining of the Landlord's Tract as part of a
condominium. The Tenant shall not be responsible for any share of the costs for
the formation or operation of said association or related entities; but shall be
responsible for its Proportionate Share of certain costs and charges as set
forth in Section 1(A) of this lease.
G. "Landlord's Operating Costs" as referred to in the Lease shall not
include the following: (a) the cost of construction of any improvements on the
Landlord's Tract, including any addition, alteration or refurbishing of space
leased to other tenants in the Building, except that capital expenses for
improvements which result in savings of labor other costs in connection with the
operation of the common area of the Landlord's Tract shall be included at the
cost of such for repairs or other work occasioned by fire, windstorm or other
casualty in excess of a reasonable deductible amount provided in Landlord's
insurance policy; (c) expenses incurred in leasing or procuring new tenants for
the Building (e.g. commission, advertising, renovation and legal); (d) legal
expenses in enforcing the terms of any lease; (e) interest or principal
amortization payments on any mortgage; (f) any real estate taxes, other than as
referred to in the Lease, corporate franchise or net worth taxes income taxes
(state and federal), personal property taxes and excess profit taxes; (g) any
expenses incurred for which Landlord has a right of reimbursement from a tenant
in the Building, an insurer or other person or entity; (h) claims paid by
landlord in satisfaction or settlement of liability in tort; (i) any payment to
the ground lessor, if any; (j) depreciation of the Building or other
improvements; (k) any expense relating to the environmental condition of the
Landlord's Tract; and (1) wages of salaries (y) persons above the level of
building manager, and (z) persons not engaged in full time employment at the
Building, and (m) management or leasing fees or expenses other than the 5%
charge set forth above. All expenses affiliated in any way with Landlord must be
reasonable and comparable to similar expenses paid by landlords generally in
arms-length transactions in order to be includable in operating expenses.
9. MAINTENANCE AND REPAIRS
A. Tenant will take good care of the Premises and shall be responsible
for maintaining the Premises in good condition and state of repair at all times;
(notwithstanding anything herein to the contrary) and Tenant will surrender the
Premises, at the expiration of the Term or earlier termination of the Lease, as
the case may be, in as good a condition as when received. Tenant shall be
directly responsible to notify Landlord promptly of any maintenance or repairs
required to the Premises, to include but not limited to utilities serving the
Premises, i.e.: gas, water, sewer, plumbing, electrical, or H.V.A.C. Landlord
shall, at Tenant's sole cost and expense, perform any reasonable repairs in the
Premises which are cosmetic, plumbing, mechanical or electrical and Tenant shall
have the right to perform any other repairs at its own cost and expense. Tenant
will not overload the electrical wiring serving the Premises. Tenant may install
only electrical connections conforming to code to its apparatus and equipment,
at Tenant's sole cost and expense. Tenant shall be responsible for changing its
own light bulbs, or may request Landlord to provide such service at Tenant's
cost and expense.
B. Landlord shall at Tenant's cost and expense, as part of Landlord's
Operating Costs, obtain appropriate annual service contracts for maintenance of
the mechanical systems, including compressor replacement, and for landscape
maintenance services. Any costs associated with same shall be paid by Tenant in
full if only attributable to premises or if not, Tenant shall pay its
Proportionate Share.
C. Tenant shall comply with all present and future applicable laws,
ordinances and codes and all applicable governmental rules, regulations and
requirements with respect to the condition of the Premises and the use thereof,
including but not limited to regulations promulgated by the Occupational Safety
and Health Administration of the federal government, and shall pay any and all
fines and penalties imposed upon Landlord, by reason of any violation by Tenant
of the foregoing covenants made by Tenant. (See Section 12).
10. ALTERATIONS AND SIGNAGE
A. Tenant shall have the right, at Tenant's cost and expense, to
perform, make and effect installations, alterations, restorations, changes and
replacements (hereinafter called
"Alterations") in, of, or to the Premises as Tenant deems necessary or
desirable, which shall require Landlord's reasonable approval which shall not be
unreasonably withheld, conditioned or delayed and shall be made in full
compliance with all applicable laws, orders and regulations of federal, state,
county and municipal authorities, with any direction pursuant to law or given by
any public officer, and with all regulations of any board of fire underwriters
having jurisdiction. Landlord hereby approves Tenant's initial Alterations
described on Schedule 1, Landlord shall have the right to increase the Security
Deposit to cover the cost of any alteration, removal and subsequent restoration.
Notwithstanding any provision in this Lease to the contrary, the office space
initial Alterations need not be restored at the end of the Term, but the
warehouse space Alterations must be restored at the end of the Term.
B. Tenant shall obtain or cause to be obtained through Landlord, all
building permits, licenses, temporary and permanent certificates of occupancy
and other governmental approvals which may be required in connection with the
making of the Alterations, and Landlord shall cooperate with Tenant in the
obtaining thereof (at no out-of-pocket expense to Landlord) and both parties
shall execute any documents reasonably required in furtherance of such purpose.
C. In requesting Landlord's approval for any Alterations, Tenant shall
submit to Landlord (with said request for approval) detailed working drawings of
the proposed Alterations. Landlord shall have the right to charge Tenant as an
item of Additional Rent a reasonable review and supervisory fee based upon the
hourly rates set forth below (Principals of Landlord $300.00 per hour, Landlord
Supervisory Personnel $75.00 per hour, Outside Architects and Engineers on an
"as billed" basis). Landlord will use every reasonable effort to minimize any
such charges. Upon completion of said Alteration, Tenant shall, as soon as is
practical, provide Landlord with "as built" drawings of said Alteration. Tenant
at its own cost and expense shall be responsible for any direct damages due to
Tenant's Alterations.
D. Each party shall indemnify and hold each other harmless against and
from any claims arising out of its work or other activities at or relating to
the Premises..
E. The Alterations shall be and remain the property of Landlord;
provided, however, that Landlord shall have the option, to be exercised, if at
all, at least sixty (60) days prior to expiration of the Term or of any other
termination hereof, to give notice to Tenant that Tenant is to remove all or any
part of Alterations made by Tenant, upon the giving of which notice Tenant shall
be obligated to have the specified Alterations removed prior to such expiration
or termination and to repair any damage caused by the removal and restore the
Premises to their condition as existed prior to the making of the applicable
Alterations.
F. No signs may be placed or maintained on the exterior of the
Premises by Tenant without the prior written approval of Landlord, and any such
sign as is placed or maintained by Tenant on the exterior of the Premises, must
be kept in good condition and repair at all times and must be installed and
maintained in compliance with all applicable laws, rules and regulations. Tenant
shall be included in the exterior monument sign and in all other Building signs
or registries of Tenant, the cost of which is included in Landlord's Operating
Cost.
11. ALTERATIONS BY LANDLORD
Landlord hereby reserves the right at any time to make alterations at
Landlord's Tract (excluding the Premises unless needed for purpose of doing work
associated with other parts of the building or Tract), including additions to,
subtractions from or rearrangements of the Building and parking areas thereon.
Landlord also reserves the right from time to time to construct other buildings
or improvements on Landlord's Tract and to make alterations thereof or additions
or deletions thereto, provided that any such constructions, alterations,
additions, or deletions shall result in appropriate adjustments to Tenant's
Proportionate Share of real estate taxes and Landlord's Operating Costs.
Landlord shall have right of access to the Premises, provided Landlord uses all
reasonable efforts to minimize any inconvenience to Tenant's operation.
12. OBSERVANCE OF LAWS, ORDINANCES, RULES AND REGULATIONS
A. Tenant and Landlord shall each comply with all statutes,
ordinances, rules, orders, regulations and requirements of all federal, state,
county and municipal and other applicable governmental authorities relating to
the Premises and shall faithfully observe in the use of the Premises all
municipal and county ordinances and regulations and state and federal statutes
and regulations of the Board of Fire Underwriters or similar agency for the
prevention of fires. In case Tenant shall fail or neglect to comply with the
aforesaid statutes, ordinances, rules, orders, regulations and requirements, or
any of them, within the period of time for compliance as contained therein or
such shorter time as may be required in this Lease, then (not in limitation of
any other rights which Landlord may have under this Lease or by law in the case
of a default by Tenant) Landlord or its agents may enter the Premises and make
necessary repairs and comply with any and all of the said statutes, ordinances,
rules, orders, regulations or requirements, at the cost and expense of Tenant.
In case of 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 promptly as Additional
Rent, together with interest as in this Lease provided. Each of the parties
shall perform the work normally attributable to its respective
responsibility. If one fails to perform within a reasonable time, the other may
complete the work.
B. Tenant may contest any of the above-stated statutes, ordinances,
rules, orders, regulations or requirements, provided that Tenant shall indemnify
Landlord for any resulting loss or liability (including but not limited to
reasonable attorney's fees incurred by Landlord), and shall not do so in any
circumstances as would, in Landlord's reasonable judgment, jeopardize Landlord's
ownership of the Premises or cause any lien or encumbrance to be placed upon the
Premises. Landlord agrees to cooperate with any said contest, provided that
Landlord shall entail no out-of-pocket cost or expense.
13. ASSIGNMENT OR SUBLETTING
A. Tenant may not assign this Lease in whole or in part, nor sublet
all or any part of the Premises, without the prior written consent of Landlord,
which consent shall not be unreasonably withheld, delayed or conditioned. In all
circumstances of assignment or subletting, the assignee or Sub-Tenant shall
assume in writing the obligations of Tenant hereunder (in the case of a
subletting, such assumption to relate only to the premises sublet) and the
existing Tenant and each subsequent assignee, Sub-Tenant and guarantor hereunder
(if any) and each subsequent assignee, Sub-Tenant and guarantor shall remain
liable under this Lease. Consent to any particular assignment or subletting
shall not be deemed consent to any further or subsequent assignment or
subletting.
B. If Tenant shall assign this Lease or sublet the Premises and at any
time the rent per square foot to be received by Tenant pursuant to such
assignment or subletting is in excess of the then applicable rent per square
foot hereunder, the Landlord and Tenant shall share the entire amount of such
excess on a 50/50 basis, less Tenant's costs in arranging and obtaining
approvals for such assignment or subletting, which excess shall be due and
payable from time to time by Tenant promptly upon receipt by Tenant of payment
of rent by the assignee or Sub-Tenant. In addition, Landlord shall be entitled
to receive fifty (50&) percent of any other rental differential or lump sum
payment or payment in lieu of rent paid to Tenant on account of an assignment or
subletting. Anything to the contrary notwithstanding, if less than twenty-five
percent (25%) of the aggregate premises is sublet or assigned, the Landlord
shall not terminate this lease under Section 13 (D). Once greater than
twenty-five percent (25%) of the aggregate premises is sublet or assigned, the
Landlord shall share, as set forth above, in all of the rental differential for
premises sublet or assigned.
C. If Tenant wishes to assign this Lease or sublet to any party,
Tenant first shall give written notice to Landlord of such intention ("Tenant's
Notice"), specifying the name of the
proposed assignee or sublessee, the name of and character of its business, the
terms of the proposed assignment or sublease, and shall provide Landlord with
such other information as Landlord reasonably requests including financial
statements in certified form.
D. Landlord may, within thirty (30) days after its receipt of Tenant's
Notice, by notice to Tenant ("Landlord's Notice"), either consent to or reject
the proposal, or Landlord at its option, may terminate this Lease (if, in
connection with a sublease of less than the entire Premises, only to the extent
of the premises sublet) and enter into a lease directly with the proposed
Sub-Tenant as of a date set forth in Landlord's Notice, such date of termination
having the same effect as if that date were the original expiration date of this
Lease, with all rents being apportioned and adjusted as of such date of
termination (and thereafter adjusted on the basis of the remaining square
footage, in the case of a sublease of less than the entire Premises).
14. INSURANCE AND INDEMNITY; NONLIABILITY
A. Tenant shall, during the Term, at its sole cost and expense, keep
in full force and effect a Comprehensive General Liability Policy with respect
to the leased Premises. The total limits of liability shall be Five Million
Dollars ($5,000,000). The total limits can be on a Combined Single Limit or
split limits basis listing Bodily Injury and Property Damage separately. The
required limit of liability can be in combination of Primary and Umbrella
Policies. The policies shall be with a company authorized to do business in the
State of New Jersey. The Tenant will not change or terminate the insurance
without first giving to Landlord at least thirty (30) days prior written notice.
A copy of the policy or certificate of insurance shall be delivered to Landlord
on or before the Commencement Date or, as the case may be, any earlier date upon
which Tenant shall enter into occupancy of the Premises or any portion thereof.
Each year a Certificate of Insurance outlining the required insurance coverages
outlined above shall be sent to the Landlord upon written request. For each
renewal term under this Lease, the insurance amounts shall be increased an
appropriate amount to be agreed to by the parties.
B. Tenant shall indemnify and save Landlord harmless against and from
any and all claims, actions, damages, losses, liability and expense, including
court costs and reasonable attorneys' fees incurred by Landlord, in connection
with loss of life, personal injury and/or damage to property arising from or out
of any occurrence in, upon, or at the Premises, or the occupancy or use by
Tenant of the Premises, or any part thereof, or occasioned wholly or in part by
any negligence of Tenant, it's agents, contractors, employees, servants,
licensees or
concessionaires, except to the extent any of the foregoing represents damage to
the building or is caused by acts or negligence of Landlord or Landlord's
agents, contractors, employees, servants, licensees or concessionaires. It is
understood that Landlord shall not be liable for any damage or injury which may
be sustained by Tenant or any other person as a consequence of the failure,
breakage, leakage or obstruction of the water, plumbing, steam, sewer, waste or
soil pipes, roof, drains, leaders, gutters, valleys, downspouts or the like, or
of the electrical, gas, power, conveyor, refrigeration, sprinklers, air
conditioning or heating systems; (unless any of the foregoing have not been
maintained or repaired by Landlord in a timely manner after proper notification
by Tenant consistent with their obligations under Section 9 hereof) or by reason
of the elements; or resulting from the carelessness, negligence or improper
conduct on the part of Tenant or Tenant's agents, employees, guests, licensees,
invitees, subtenants, assignees or successors. Tenant shall not be liable for
negligent acts of Landlord or Landlord's agents, employees, contractors,
licensees, servants, or guests, or other tenants in the building.
C. If Tenant shall fail, refuse or neglect to obtain any of the
insurance called for by this Lease or maintain the same and to show Landlord
evidence of the same as aforesaid, Landlord shall have the right (but not the
obligation) after 30 days notice to Tenant, to procure any such insurance and
charge the cost thereof to Tenant.
D. Each party hereby releases the other from liability for property
damage from any cause whatsoever to the extent such releasing party shall
receive insurance proceeds (or have the availability of the receipt thereof) on
account of such damage or injury. Landlord and Tenant agree to include in their
respective property insurance policies, the following: (I) a waiver of the
insurer's right of subrogation against the other party, or (ii) an express
agreement that such policy shall not be invalidated if the assured waives the
right to recovery against any party responsible for a casualty, or (iii) any
other form of permission for the release of the other party.
E. Landlord shall obtain and maintain throughout the Term of this
Lease, fire, extended and special multi-risk coverage property insurance in an
amount not less than the full replacement cost of the Building, and upon request
therefor, shall provide Tenant with evidence of the same. Landlord's insurance
shall include rent insurance for a period of 12 months following a casualty. In
the event use by Tenant causes increase in insurance premium, Tenant shall be
responsible for said premium increase.
F. Tenant assumes all risk for damage to its contents and shall carry
whatever insurance it deems necessary.
G. Tenant shall not be liable to Landlord with respect to any damages
suffered by Landlord which are covered by insurance required by this lease. The
parties agree that each hereby waives any claim it might have against the other
for loss, damage or destruction with respect to its property, by fire or other
casualty that is generally insured against under the terms of standard fire and
extended coverage insurance policies. The parties agree to use best efforts to
obtain waiver of subrogation clauses in their respective insurance policies,
such clauses extending to the other party and its employees and agents.
H. Nothing contained in the Lease shall be construed to absolve
Landlord from responsibility for acts or omissions deemed to be negligence,
gross negligence or willful misconduct of Landlord, its agents, employees,
servants or others acting on its behalf. Each party shall protect, indemnify,
hold harmless and defend the other party and its successors and assigns and
their respective employees and agents from any and all damages or liability
resulting from any claims or demands, including the costs, expenses and
reasonable attorneys' fees incurred, that may be made by a party's employees or
any other person for bodily injury or damage to property occasioned by the acts
or omissions of the other party or its subcontractors, or the employees or
agents of any of them. However, any liability of Landlord shall be limited to
Landlord's equity in the Landlord's Tract.
15. QUIET ENJOYMENT
Upon performing its obligations under this Lease, Tenant shall have
and enjoy quiet and peaceable possession of the Premises during the Term,
subject to the terms of this Lease, to include, but not limited to, Sections 9,
10 and 11.
16. FIXTURES AND PERSONAL PROPERTY
Any trade fixtures, equipment and other property installed in or
attached to the Premises, by and at the expense of Tenant, shall remain property
of Tenant, and Tenant shall have the right, at any time, and from time to time,
to remove any and all of its trade fixtures, equipment and other property which
it may have stored or installed in the Premises. Tenant shall make all repairs
required as a result of the removal of said items so as to restore the Premises
to their original condition except normal wear and tear (including but not
limited to repair of any holes in the walls of the Building).
17. DAMAGES TO PREMISES
A. If the Premises shall be damaged by fire, the elements, unavoidable
accident or other casualty, then, subject to the provisions below, Landlord
shall cause the damage to be repaired. In doing so, Landlord shall commence its
repairs
promptly and diligently proceed with same, but shall not be required, in any
event, to expend more than the net amount of insurance proceeds received on
account of the damage.
B. If the Premises shall be so damaged or destroyed as would render
the Premises 25% untenantable for a period in excess of one hundred eighty (180)
days, or if then applicable laws or zoning requirements do not permit the
necessary repair or restoration after occurrence of damage or destruction of the
Premises to whatever extent, then either party shall have the right to cancel
this Lease by written notice to the other served within thirty (30) days of the
occurrence, effective as of the occurrence.
C. Tenant shall immediately notify Landlord in case of fire or other
damage to the Premises.
D. The repair and restoration of any damage to the property of Tenant
or to the decorations and Alterations of Tenant shall not be the responsibility
of Landlord.
E. In the event any damage or destruction of the Premises renders the
Premises untenantable, all Rent shall be abated during such period of
untenantability, except if the damage or destruction shall be due to the
negligence or misconduct of Tenant, its agents or employees provided that all
Rent shall be abated regardless of cause of damage or destruction to the extent
that rent insurance is in effect for the Premises. If any such damage or
destruction renders the Premises partially untenantable, all Rent shall be
equitably apportioned, subject to the above-stated exception. For purposes of
this Paragraph E, the word "Rent" shall not include any Additional Rent as may
be due from Tenant by reason of default by Tenant under any term, covenant or
condition of this Lease.
F. Landlord's insurance proceeds shall be and remain the exclusive
property of Landlord.
G. Notwithstanding anything to the contrary herein, if the Premises is
damaged to the extent of fifty percent (50%) or more thereof, and if insurance
proceeds received on account of the damage would not be sufficient to repair or
reconstruct the building or tract, Landlord shall have the right, within sixty
(60) days after occurrence of the damage, to elect, upon written notice to
Tenant, not to repair or reconstruct the Building or Tract, in which event, this
Lease and the tenancy hereby created, shall cease as of the date of such
occurrence. Upon such termination, all Rent and Additional Rent shall be
apportioned as of the date of the occurrence.
18. EMINENT DOMAIN
If the whole or any part of the Premises shall be taken under the
power of eminent domain or acquired in lieu thereof, then this Lease shall
terminate as to the part so taken on the day when Tenant is required to yield
possession thereof to the condemning authority, and, subject to the rights of
mortgagees and further subject to the sufficiency in amount of the award or
price paid on account of the taking or acquisition in lieu thereof, Landlord
shall make such repairs and alterations as may be necessary in order to restore
the part not taken to useful condition; and the Basic Rent and Tenant's
Proportionate Share shall be reduced, proportionately, as to the portion of the
Premises so taken. If the amount of the Premises so taken or acquired is such as
to impair substantially the usefulness of the Premises for the purposes for
which the same are hereby leased, then either party shall have the option to
terminate this Lease as of the date when Tenant is required to yield possession.
All compensation awarded or paid for such taking or acquisition shall belong to
and be the property of Landlord except to the extent that any such compensation
is specifically designated for the leasehold interest. Anything herein to the
contrary notwithstanding, if a substantial part of the Building and/or of
Landlord's Tract is taken or acquired in the manner aforesaid, whether or not
the Premises are so taken or acquired to any extent and irrespective of the
extent of any award of proceeds to Landlord by virtue of the taking or
acquisition in lieu thereof, Landlord shall have the right, upon written notice
to Tenant within sixty (60) days after such taking or acquisition, to terminate
this Lease.
19. DEFAULT AND REMEDIES
A. If Tenant defaults in the payment of Basic Rent (and such payment
is not made within ten (10) days of written notice of such default given by
Landlord), or if the Premises shall be deserted, abandoned or vacated, or if
Tenant defaults in a material respect in compliance with any of the other
covenants or conditions of this Lease and fails to cure the same within fifteen
(15) days after the receipt of notice specifying the default, then at the
expiration of said ten (10) days or fifteen (15) days, as the case may be,
Landlord may (a) cancel and terminate this Lease upon written notice to Tenant
(whereupon the Term shall terminate and expire, and Tenant shall then quit and
surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided) and/or (b) at any time thereafter re-enter and resume
possession of the Premises as if this Lease had not been made. Anything above to
the contrary notwithstanding, the said fifteen (15) day period of time for cure
of non-monetary defaults shall extend beyond such fifteen (15) days for the
period of time necessary to effect the cure provided that Tenant shall
diligently commence the cure during
such fifteen (15) day period and shall diligently and continuously prosecute the
cure to completion.
B. If this Lease shall be terminated or if Landlord shall be entitled
to re-enter the Premises, and dispossess or remove Tenant under the provisions
of this Section (either or both of which events are hereinafter referred to as a
"Termination"), Landlord or Landlord's agents or servants may immediately or at
any time thereafter re-enter the Premises and remove therefrom Tenant, its
agents, employees, servants, licensees, and any Sub-Tenants and other persons,
firms or corporations, and all or any of its or their property therefrom, either
by summary dispossess proceedings or by any suitable action or proceeding at law
or by peaceable re-entry or otherwise, without being liable to indictment,
prosecution or damages therefor, and may repossess and enjoy the Premises,
including all additions, alterations and improvements thereto.
C. In case of Termination, the Basic Rent and all other charges
required to be paid by Tenant hereunder shall thereupon become due and shall be
paid by Tenant up to the time of the Termination, and Tenant shall also pay to
Landlord all reasonable expenses which Landlord may then or thereafter incur as
a result of or arising out of a Termination, including but not limited to court
costs, attorneys' fees, brokerage commissions, and costs of terminating the
tenancy of Tenant, re-entering, dispossessing or otherwise removing Tenant and
restoring the Premises to good order and condition, and from time to time
altering and otherwise preparing the same for re-letting (including but not
limited to costs of removing all or any part of the Alterations made by Tenant).
Upon a Termination, Landlord shall, use commercially reasonably efforts to
re-let the Premises, in whole or in part, either in its own name or as Tenant's
agent, for a term or terms which, at Landlord's option, may be for the remainder
of the Term or Renewal Term, or for any longer or shorter period.
D. In addition to the payments required hereinabove in this Section,
Tenant shall be obligated to, and shall, pay to Landlord, upon demand and at
Landlord's option:
(i) liquidated damages in an amount which, at the time of
Termination, is equal to the present value, discounted at the rate of 5% per
annum, of the excess, if any, of the then present amount of the installments of
Basic Rent and Additional Rent reserved hereunder, for the period which would
otherwise have constituted the unexpired portion of the Term over the then
present rental value of the Premises for such unexpired portion of the Term or,
(ii) damages payable in monthly installments, in advance, on the
first day of each calendar month following the Termination, and continuing until
the date originally fixed herein for the expiration of the Term, in amounts
equal to the
excess, if any, of the sums of the aggregate expenses paid by Landlord during
the month immediately preceding such calendar month for all such items as, by
the terms of this Lease, are required to be paid by Tenant, plus an amount equal
to the installment of Basic Rent which would have been payable by Tenant
hereunder in respect to such calendar month, had this Lease not been terminated,
over the sum of rents, if any, collected by or accruing to Landlord in respect
to such calendar month pursuant to a re-letting or to any holding over by any
Sub-Tenants of Tenant.
E. Landlord shall in no event be liable for failure to re-let the
Premises, or in the event that the Premises are re-let, for failure to collect
rent due under such re-letting; and in no event shall Tenant be entitled to
receive any excess of rents over the sums payable by Tenant to Landlord
hereunder but such excess shall be credited to the unpaid rentals due hereunder,
and to the expenses of re-letting and preparing for re-letting as provided
herein.
F. Suit or suits for the recovery of damages hereunder, or for any
installments of rent, may be brought by Landlord from time to time at its
election, and nothing herein contained shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired if it had not been
terminated under the provisions of this Lease, or under any provision of law, or
had Landlord not re-entered into or upon the Premises. G. Landlord, at its
option, in addition to any and all remedies available to it, shall have the
right to charge a fee for payment for rent received later than five (5) days
after the date due, which fee, constituting Additional Rent, shall be the
greater of five percent (5%) of the delinquent payment or one and one-half
percent (1-1/2%) per month for each and every month of the amount of the overdue
rent.
H. Tenant hereby waives all rights of redemption to which Tenant or
any person claiming under Tenant might be entitled, after an abandonment of the
Premises, or after a surrender and acceptance of the Premises and the Tenant's
leasehold estate, or after a dispossession of Tenant from the Premises, or after
a termination of this Lease, or after a judgment against Tenant in an action in
ejectment, or after the issuance of a final order or warrant of dispossess in a
summary proceeding, or in any other proceeding or action authorized by any rule
of law or statute now or hereafter in force or effect.
I. No mention in this Lease of any specific right or remedy shall
preclude Landlord from exercising any other right or from having any other
remedy or from maintaining any action to which Landlord may otherwise be
entitled hereunder or at law or inequity.
20. NOTICES
Wherever in this Lease it shall be required or permitted that notice
or demand be given or served by either party to this Lease to or on the other,
such notice or demand shall be in writing and shall either be served personally
or sent by registered or certified mail, return receipt requested, to the
parties at the addresses described below -- Landlord to , at its address stated
at the head of this Lease, with a copy to Xxxxxx X. Xxxxxxxxx, 0 Xxxxx Xxxx,
Xxxxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000 and Xxxxxxx X. Xxxxxxxx, P.A. 000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000; to Tenant, at its address stated at the
head of this Lease, with a copy to Xxxx Xxxxxxxx, Esq., Xxxxxxxxxx Xxxxxxx,
P.C., 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, XX 00000. Such addresses may be changed
from time to time by either party by written notices served upon the other, as
above provided. Notices shall be effective upon delivery or mailing, as the case
may be, except that a mailed notice changing an address for notice purposes
hereunder shall be effective upon actual receipt.
21. ATTORNMENT: DEFINITION OF TERM "LANDLORD"
A. Tenant shall attorn to any new owner of Landlord's Tract including
Landlord's mortgagee, and shall execute such attornment instrument as shall
reasonably be requested by such new owner; and Tenant waives any right it may
have to surrender possession of the Premises or terminate this Lease in the
event of change of ownership of Landlord's Tract. The term "Landlord", as used
in this Lease, means only the owner for the time being of Landlord's Tract, so
that in the event of any sale or conveyance thereof, Landlord (and any successor
selling or conveying Landlord) shall be and hereby is entirely freed and
relieved of all Landlord's covenants and obligations thereafter arising
hereunder, and it shall be determined and construed, without further agreement
between the parties and the purchaser or transferee at or of any such sale or
conveyance, that the purchaser or transferee has assumed and agreed to carry out
any and all covenants and obligations of Landlord hereunder.
B. Upon any transfer or mortgaging of title by Landlord, Tenant agrees
to give to the grantee, at the request of Landlord, an estoppel or offset
statement (as provided for in Section 25 below ("Estoppel or Offset Statements")
each in form reasonably requested by Landlord.
22. COST OF PERFORMING OBLIGATIONS
Unless otherwise specified, the respective obligations of the parties
to keep, perform and observe any terms, covenants or conditions of this Lease
shall be at the sole cost and expense of the party so obligated.
23. RE-ENTRY BY LANDLORD
Should Tenant make an assignment for the benefit of creditors or file
a voluntary petition in bankruptcy or be adjudicated a bankrupt or take benefit
of any insolvency act or if a receiver or trustee of Tenant and/or of its
property shall be appointed in any proceedings other than bankruptcy proceedings
and such appointment, if made in proceedings instituted by Tenant, shall not be
vacated within thirty (30) days after it has been made, or if made in
proceedings instituted by other than Tenant, shall not be vacated within sixty
(60) days after it has been made, any of the foregoing shall constitute a
default hereunder and Landlord, in addition to all other rights or remedies
hereunder and by law or equity, shall have the immediate right of re-entry and
may remove all persons and property from the Premises, and such property may be
removed and stored in a public warehouse or elsewhere at the cost and expense of
Tenant, all without Landlord being deemed guilty of trespass or becoming liable
for any loss or damage which may be occasioned thereby.
24. MORTGAGE SUBORDINATION
This Lease shall be subordinate to the lien of any present or future
mortgage(s) on the Premises. Notwithstanding the automatic nature of the
subordination described in this Section, Tenant shall, with due diligence,
execute, acknowledge and deliver to Landlord or its mortgagee or other
designee(s), any and all standard forms of documents evidencing such
subordination as may be reasonably requested by Landlord or by any proposed
mortgagee. If any mortgagee elects to have Tenant's interest in this Lease
rendered superior in priority to that mortgagee's lien on the Premises, then by
notice to Tenant, this Lease shall be deemed superior to that mortgagee's lien,
whether this Lease was executed before or after execution or recording of the
instrument creating that mortgagee's lien. Any such attornment and or
subordination referenced in this Lease shall be conditioned on Tenants being
allowed to remain in the Premises on the terms otherwise set forth in this Lease
provided that Tenant is not in default of its obligations under the Lease. Any
subordination provision contained in the Lease, relating either to ground leases
or mortgages, is subject to the express condition that so long as Tenant is not
in material default under the Lease, (a) Tenant will not be made a party in any
action or proceeding brought by any person having rights superior to Tenant to
recover possession of the Premises or to foreclose any mortgage or for any other
relief sought, and (b) Tenant's possession under the Lease shall not be
disturbed. Landlord agrees to deliver to Tenant letters from any holder of
rights superior to Tenant, including mortgages and ground lessors, recognizing
Tenant's rights hereunder, such delivery to take place as a condition of and
prior to the Commencement Date of Lease. Anything to the contrary
notwithstanding, Landlord shall
only use its best efforts to obtain non-disturbance agreement from its present
mortgage lender(s).
25. ESTOPPEL OR OFFSET STATEMENTS
Each party shall, upon the reasonable request from time to time of
Landlord, execute and deliver an estoppel or offset statement to the extent it's
accurate in the form of Exhibit "D" annexed hereto.
26. HOLDOVER
In the event that Tenant shall for any reason remain in possession of
the Premises after the expiration of the Term, such possession shall at the
option of Landlord be on a month-to-month basis subject to the terms and
conditions of this Lease except as to duration of term and except that the Basic
Rent shall be two hundred percent (200%) of that in effect at expiration of the
Term. The foregoing is not intended to afford to Tenant the right to remain in
possession of the Premises after expiration of the Term without Landlord's prior
written consent.
27. FORCE MAJEURE
The period of time during which either party is prevented or delayed
in the making of any improvements or repairs (including but not limited to the
initial Landlord work to ready the Premises for Tenant's occupancy) or
fulfilling any obligation required under this Lease with the exception of
obligations of the payment of Rent or Additional Rent, due to unavoidable delays
caused by fire, catastrophe, strikes, labor trouble, civil commotion, Acts of
God or public enemies, government prohibitions or regulations or inability to
obtain materials or any other causes beyond such party's reasonable control,
shall be added to such party's time for performance thereof, and such party
shall have no liability by reason thereof. It is understood, not in limitation
of the generality of the foregoing, that Landlord shall under no circumstances
be liable to Tenant in damages or otherwise for any interruption in service of
water, electricity, heating, air conditioning and/or other utilities and
services of any nature caused by an unavoidable delay, by the making of any
necessary repairs or improvements or by any cause beyond Landlord's reasonable
control.
28. ENTRY BY LANDLORD
For a period commencing nine (9) months prior to the termination of
this Lease, Landlord may have reasonable access, during business hours, to the
Premises for the purpose of exhibiting the same to prospective purchasers.
Landlord shall exercise its right of access for such purposes, if exercised at
all, upon reasonable advance notice to Tenant and in a manner not
unreasonably to interfere with Tenant's business at the Premises. At all times
during the Term, Tenant will permit Landlord, its agents, employees and
contractors, and Lenders or prospective Lenders to enter the Premises during
business hours in order to inspect the same and/or to enforce or carry out any
provision of this Lease.
29. BROKERS
Each party represents to the other it knows of no broker or other
person who introduced the parties to this transaction other than Atlantic Real
Estate Services and the Box Company, who Landlord authorized to represent them
in this transaction and for whose commissions Landlord shall be liable by
separate agreement. In the event of a claim by any broker or person for
commissions arising out of a misrepresentation by one of the parties hereto,
that party shall indemnify and hold the other harmless from that claim, such
indemnity and hold harmless agreement to include court costs and reasonable
attorneys' fees incurred in respect to or in defense against such claim.
30. END OF TERM
Upon expiration of the Term or other termination of this Lease, Tenant
shall peaceably and quietly quit and surrender the Premises, broom clean, in
good order and condition, reasonable wear and tear and damage by fire or other
casualty excepted. Tenant shall also, subject to Landlord's rights under
"Default and Remedies", remove all trade fixtures and movable partitions, and
shall repair any damage caused in so moving and restore the Premises to such
condition as existed prior to installation of such fixtures and partitions. All
Alterations of Tenant shall be left by Tenant and shall remain part of the
Premises except to the extent Landlord may have otherwise specified in a notice
to Tenant given pursuant to Section 10 ("Alterations and Signage"). In addition
to the foregoing responsibilities, Tenant shall, upon expiration of the Term or
other termination of this Lease, restore all portions of the Premises to such
condition as existed at the Commencement Date, reasonable wear and tear
excepted, and Tenant shall repair any damage caused in so restoring the
Premises.
31. LIABILITY OF LANDLORD
Tenant agrees that the liability of Landlord (or of any subsequent
Landlord) in the event of breach by Landlord shall be limited to Landlord's
interest in the Landlord's Tract known as 00 Xxxxxxxxxx Xxxxx, Xxxxxx, XX.
Tenant expressly agrees that any judgment or award which Tenant may obtain
against Landlord shall be recoverable and satisfied solely out of said interest.
Tenant shall have no personal rights against any principals or partners of
Landlord, and shall have no rights of lien or levy against other property of
Landlord.
32. PERFORMANCE OF TENANT'S OBLIGATIONS
If Tenant shall be in default hereunder, in any respect, Landlord may,
after giving Tenant requisite notice thereof and time to cure, at Landlord's
option and without waiving its rights hereunder, cure such default on behalf of
Tenant, in which event Tenant shall, promptly upon demand by Landlord, reimburse
Landlord for all expenses incurred by Landlord in effecting such cure, including
but not limited to reasonable attorneys' fees, together with interest thereon at
eighteen percent (18%) per annum (whether or not elsewhere in this Lease it is
provided for Landlord to recover interest upon occurrence of a specified default
by Tenant and cure thereof by Landlord). In order to collect such reimbursement,
Landlord shall have all the remedies available under this Lease and/or by law or
equity for a default in the payment of Rent. Tenant shall also be responsible
for all reasonable attorneys' fees incurred by Landlord in connection with any
default by Tenant, and the enforcement by Landlord of any covenant made by
Tenant.
33. FLOOR LOADS
Tenant shall not place a load upon any floor of the Premises exceeding
the floor load per square foot area which it was designed to carry and which is
allowed by law. Any equipment or property of any nature placed or installed by
Tenant in the Premises shall be placed and maintained in settings sufficient to
absorb and prevent vibration, noise and annoyance.
34. ENVIRONMENTAL PROVISIONS.
A. Additional Definitions .For purposes of this Section,
(a) "Regulated Substances" include any contaminants, materials,
substances. pollutants, dangerous substances or any "hazardous wastes" or
"hazardous substances" as defined in or pursuant to the Industrial Site Recovery
Act (N.J.S.A. 13:1K-6 et seq.) ("ISRA"), the Spill Compensation and Control Act
(N.J.S.A. 58:10-23.11 et seq.), the Resource Conservation and Recovery Act (42
U.S. Section 6901 et seq.), the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. Section 9601 et seq.) or any other
state or federal environmental or occupational health or safety law or
regulation and any amendment of or rule, regulation, order, directive or
guidance issued thereunder ("Environmental Requirements").
(b) "Enforcement Notice" means a summons, citation, directive,
order, claim. litigation, investigation, judgment, letter or other
communication, written or oral, actual or threatened, from the New Jersey
Department of Environmental Protection ("NJDEP"), the United States
Environmental Protection
Agency("USEPA") or other federal, state or local agency or authority, or any
other entity or any individual, concerning any intentional or unintentional
action or omission resulting or which might result in the Releasing of Regulated
Substances into the air, waters or groundwaters. or onto the lands of the State
of New Jersey, or into the air or waters outside the jurisdiction of the State
of New Jersey where damage may have resulted or may result to the air, lands,
waters, groundwaters, fish, shellfish, wildlife, biota, air or other resources
owned, managed, held in trust or otherwise controlled by, or within the
jurisdiction of, the State of New Jersey, or into the "environment," as such
term is defined in 42 U.S.C. 9601(8).
(c) "Releasing" or "Release" means releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing or dumping.
B. No Regulated Substances. The Premises shall not be used and/or
occupied to generate, manufacture, refine, transport, treat, store, handle,
dispose, transfer or process Regulated Substances, except for the use, in
accordance with law, of such substances in de minimus amounts as is customary in
connection with the Permitted Use. Tenant shall comply with all applicable
federal, state and local environmental laws, ordinances, rules and regulations,
and shall obtain and comply with any and all permits required thereunder. The
Tenant shall not suffer or permit (a) any intentional or unintentional action or
omission of the Tenant or any other occupant, user and/or operator of the
Premises, resulting in the Releasing of Regulated Substances into the air,
waters or groundwaters, or onto the lands of the State of New Jersey, or into
the air or the waters outside the jurisdiction of the State of New Jersey where
damage may result to the air, lands, waters, groundwaters, fish, shellfish.
wildlife, biota, air or other resources owned, managed, held in trust or
otherwise controlled by, or within the jurisdiction of, the State of New Jersey,
or (b) any Enforcement Notice or any facts which might result in any Enforcement
Notice with respect to the Premises.
C. ISRA Compliance. In connection with the termination of this Lease
or Tenant's operations hereunder or the change of ownership or other status of
Tenant or other person acting by, through or under Tenant. Tenant shall obtain
ISRA clearance, which for the purpose of this Lease means that Tenant shall
either (a) obtain from the NJDEP a "Letter of NonApplicability, " or (b) submit
to and obtain the approval by the NJDEP of a "Negative Declaration" or (c)
obtain the issuance by NJDEP of a "No Further Action Letter" pursuant to ISRA
and applicable regulations, guidance and guidelines implementing ISRA ("ISRA
Requirements") and the Environmental Requirements. As part of its obligation to
obtain either a "Negative Declaration" or a "No Further Action Letter" ("ISRA
Compliance"), Tenant shall prepare and submit to NJDEP a General Information
Notice and perform and
report to NJDEP on, as appropriate, a Preliminary Site Assessment, a Site
Investigation, a Remedial Investigation and a Remedial Action Workplan. Tenant
shall also, as part of its compliance with ISRA Requirements, obtain and
maintain a remediation funding source in form and amount acceptable to NJDEP.
The Tenant agrees not to submit any Remedial Action Workplan (or its regulatory
equivalent) which would return the Premises to the Landlord at the end of the
Term in a condition which includes the presence of Regulated Substances in
concentrations which were not present at the Premises on the date when Tenant
first used or occupied the Premises. The Tenant warrants and represents that the
Standard Industrial Code ("SIC") classification for the activities to be carried
on within the Premises is 3829, which is the SIC for the Permitted Use, and no
other activities shall be conducted on the Premises. In any event, Tenant shall
have the sole and exclusive responsibility to comply at its own cost and expense
with ISRA (subject to Tenant's right of indemnification as set forth in Section
8.4.2) in connection with the termination of this Lease, any sale or other
change in of Tenant, the cessation of Tenant's operations on the Premises and,
to the extent any tests, sampling or remediation are required on, at, or under
the Premises in connection with a change in ownership of Landlord's interest in
the Premises (Landlord being responsible for filing fees in such case). Landlord
shall cooperate with Tenant by supplying Tenant with relevant information within
Landlord's exclusive control. Notwithstanding anything to the contrary herein,
Landlord shall not be required to enter a Deed Restriction or undertake any
other institutional control in aid of Tenant's ISRA compliance obligation.
Tenant shall commence its compliance efforts at least 6 months prior to the end
of the Term and diligently pursue such efforts to conclusion. Tenant shall keep
Landlord fully informed of its progress in obtaining the ISRA clearance by
sending a copy of all correspondence and documents to Landlord and by delivering
an ISRA Compliance status report to Landlord every 30 days during the six-month
clearance period. It is understood and agreed by Tenant that Landlord shall have
the right to rely on and shall rely on all statements, representations,
warranties and undertakings made by Tenant to the NJDEP pursuant to this Section
8 as if such statements, representations, warranties and undertakings had been
made directly to the Landlord. If Tenant fails to obtain ISRA clearance on or
before the end of the Term, and if such failure prevents Landlord from
re-renting all or any portion of the Premises, then without limiting any other
liability of Tenant to Landlord resulting from its default under this Lease.
Tenant shall be liable to Landlord as a holdover tenant for such portion of the
Premises.
D. Indemnity.
(a) Tenant Indemnity. Tenant hereby agrees to save, defend with
counsel reasonably satisfactory to Landlord,
indemnify and hold harmless Landlord and its principals. officers, directors,
trustees, agents and employees, from and against any and all claims' losses,
liabilities, damages and expenses (including reasonable cleanup costs and
attorneys fees arising under this indemnity) which may arise directly or
indirectly from any use or any Release of Regulated Substances on or under the
Premises, and losses of and claims against Landlord resulting from Tenant's
failure to comply strictly with the provisions of this Section 8, with respect
to the Term of this Lease and any other period of possession of the Premises by
Tenant. Tenant shall have no liability for any consequential, punitive, or other
speculative damages suffered by Landlord or by any party claiming through
Landlord.
(b) Landlord Indemnity. Landlord hereby agrees to save, defend
with counsel reasonably satisfactory to Tenant, indemnify and hold harmless
Tenant and its principals, officers, directors, trustees, agents and employees,
from and against any and all claims, losses, liabilities, damages and expenses
(including reasonable cleanup costs and attorneys fees arising under this
indemnity) which may arise directly or indirectly from the use or Release of
Regulated Substances on or under the Premises prior to the Commencement Date.
Landlord shall have no liability for any consequential damages suffered by
Tenant or by any party claiming through Tenant.
E. Environmental Inspections. At the request of Landlord during and
after the Term, in the event of an Enforcement Notice or other circumstances
leading Landlord reasonably to conclude that an Enforcement Notice could issue
relating to occurrences during the Term of this Lease or otherwise attributable
to Tenant's use or occupancy of the Premises and if Landlord reasonably
determines that it would be advantageous to hire an environmental consultant to
provide advise and/or remedy the condition, then the Tenant will retain an
environmental consultant acceptable to the Landlord to conduct a complete and
thorough on-site inspection of the Premises, including a geohydrological survey
of soil and subsurface conditions as well as other tests, to determine the
presence of Regulated Substances, and the consultant shall certify to the
Landlord whether, in his professional judgment, there exists any evidence of the
presence of Regulated Substances on, in or under the Premises.
F. Other Laws; Survival. Whenever the terms ISRA, Spill Fund and
similar terms and regulatory and statutory references are used in this Lease,
they shall be deemed to include any similar, predecessor, future or successor
regulatory and statutory references and/or terms under past or future laws as
may apply to the Premises and its use and occupancy under this
Lease. Tenant's obligations under this Section 8 shall survive the termination
of this Lease.
G. Landlord represents to the best of its knowledge, that there are no
adverse environmental conditions in, around or affecting the Landlord's Tract,
including the presence of asbestos, radon gas or PCBs.
35. INVALIDITY OF PARTICULAR PROVISIONS
Wherever in this Lease any portion or part thereof has been stricken
out, whether or not any relative provision has been added, this Lease shall be
read and construed as if the material so stricken were never included herein and
no implication shall be drawn from the text of the materials so stricken which
would be inconsistent in any way with the construction or interpretation which
would be appropriate if such material were never contained herein.
36. GENDER AND PERSON
Words of any gender used in this Lease shall be held to include any
other gender, and words in the singular number shall be held to include the
plural, when the sense of the words require same.
37. MODIFICATION
This Lease may not be modified except by an instrument in writing
signed by the parties hereto.
38. COVENANTS TO BIND RESPECTIVE PARTIES
The covenants and agreements contained in this Lease shall inure to
the benefit of the parties hereto and their heirs, legal representatives,
successors and permitted assigns and subject to Section 21 ("Attornment;
Definition of Term "Landlord"'), shall be binding on the parties hereto, their
heirs, legal representatives, successors and assigns.
39. NO WAIVER OF BREACHES
The failure of Landlord or Tenant to insist upon strict performance of
any of the covenants or conditions of this Lease or to exercise any option
herein conferred in any one or more instances shall not be construed as a waiver
or relinquishment for the future of any such covenants, conditions or options,
but the same shall be and remain in full force and effect. Acceptance by
Landlord of current rent shall not be deemed a waiver of past obligations of
Tenant, nor shall acceptance by Landlord at any time of any monies preferred by
Tenant constituting less than the entire amount of rent then due be deemed other
than receipt of
partial payment on account of the rent due, and shall not constitute an accord
or satisfaction.
40. CAPTIONS
Captions have been used solely for the sake of reference and shall in
no way govern or affect the interpretation hereof.
41. THIS SECTION INTENTIONALLY DELETED.
42. INTEGRATION
The agreements contained in this Lease constitute the full and final
agreement between the parties hereto as to the subject matter hereof, and all
prior agreements or writings of any nature between the parties hereto are hereby
superseded and are integrated herein. This Lease may not be amended except in
writing signed by both parties hereto.
43. JOINT AND SEVERAL LIABILITY
In the event that two or more individuals, corporations, partnerships
or other business associations (or any combination two or more thereof) shall
sign this Lease as Tenant, the liability of each such individual, corporation,
partnership or other business association to pay rent and perform all other
obligations hereunder shall be joint and several. In like manner, in the event
that the Tenant named in this Lease shall be a partnership or other business
association the members of which are, by virtue of statute or general law,
subject to personal liability, then and in that event, the liability of each
such member shall be joint and several.
44. NO OPTION OR OFFER
The submission of this Lease for examination does not constitute a
reservation to lease, or option to lease the Premises and this Lease becomes
effective only upon execution hereof by Landlord, Tenant and any guarantor, if
any.
45. CHANGES REQUIRED BY LENDER
Tenant shall consent in writing to any changes in this Lease required
by any prospective mortgage lender provided that no such changes shall adversely
affect Tenant's rights hereunder or increase Tenant's obligations hereunder.
46. CONSENTS AND APPROVALS
Unless it is provided in this Lease that a party hereto shall not
unreasonably withhold a consent or approval required to
be received from that party, the consent or approval shall be at the sole
discretion of the party required to give same. The withholding of consent or
approval in contravention of any requirement of this Lease shall not afford to
the other party a right to damages of any nature on account of such withholding
or on account of any delay in the granting of the consent or approval, but the
sole remedy of the other party shall be to maintain an action for specific
performance.
47. WAIVER OF JURY TRIAL
The parties waive the right to a jury trial with respect to any
action, including an action for damage or injury, arising out of this Lease or
Tenant's use or occupancy of the Premises.
48. NO LEASE RECORDING
Tenant agrees that it will not record this Lease or any memorandum
hereof.
49. AMENDMENTS
This Lease form shall not be changed in format or context, except by
rider or amendment.
50. SCHEDULES AND EXHIBITS
The following schedules and exhibits are enclosed herein and made a
part hereof:
Exhibit "A" Floor Plan of Demised Premises
Exhibit "B" Landlord's Tract
Exhibit "C" Lease Payment Schedule
Exhibit "D" Estoppel of Mortgage
Exhibit "E" Landlord's Work letter
Schedule 1 Initial Alterations/Reserved Space
51. RELOCATION
Landlord hereby reserves the right, at its sole expense and on at
least sixty (60) days prior written notice, to require Tenant to move the
warehouse portion of the Premises to other space within the Building Area of
comparable size (+- 700 sq. ft.) in order to permit Landlord to consolidate the
space leased to Tenant with any other space leased or to be leased to another
Tenant. In the event of any such relocation, Lessor will pay all expenses of
preparing the new premises so that they will be substantially similar to the
Premises from which Tenant is moving and Lessor will also pay the expense of
moving Tenant's equipment to the relocated premises. In such event, this Lease
and each and all of the terms, covenants and conditions hereof, shall remain in
full force and effect and thereupon be deemed applicable to such new space
except that the description of the Premises shall be revised and if applicable
Tenant's Percentage and Rental shall likewise be revised. Tenant shall not be
responsible for any restoration of the vacated space.
52. SATELLITE COMMUNICATION DISH
A. Tenant shall have the right with Landlord's approval to install and
maintain one (1) satellite communications dish on the roof of the Building in a
location acceptable to Landlord. Landlord in its sole and absolute discretion
may withhold its consent if the satellite dish is visible from the ground or any
other building and if Landlord feels it would damage or devalue its Building.
B. The Tenant shall bear the full cost of the installation of the
satellite dish, including Landlord approved modifications to the Building
required for the installation:
(a) The Tenant shall coordinate with the Landlord the actual location
of the installation on the roof of the Building, interfering to
the least extent possible with the actual and/or potential use of
the Building.
(b) The Tenant shall secure all applicable building permits, FAA and
FCC approvals, and any other state and/or local agency approvals
required for the installation, and provide copies to the Landlord
as required. The Tenant shall provide installation specifications
and drawings required for the determination of installation
suitability.
(c) If required by local codes or ordinances, the Tenant shall supply
stamped engineering drawings for the state in which the
installation is to be accomplished, certifying that the proposed
site will safely and legally support the satellite dish
installation.
(d) The Tenant shall install, maintain, and at the end of the Term of
this Lease and its extensions, remove the satellite dish all in a
manner which does not disturb the watertight integrity of the
Building and restore the Building to its original condition.
Landlord shall have the right to increase Tenant's security
deposit to cover the cost of removing the satellite dish and
restoring the Building to its original condition. If Tenant does
not maintain the satellite dish, Landlord may do so and charge
Tenant the cost thereof as additional rent.
(e) Prior tot he operation of the satellite dish, the Tenant shall
certify that the radio frequency transmissions of the satellite
dish will not endanger persons in the Premises or surrounding
premises. The Tenant shall hold the Landlord blameless and
indemnify the landlord from any and all claims arising from
satellite dish.
(f) The Tenant shall insure that the installation is accomplished so
that the satellite dish is securely attached to the roof, and the
Tenant assumes total responsibility for any and all physical
damage which might be caused by the satellite dish, its support
equipment, or any consequential damages that might arise
therefrom.
(g) Tenant will not assign, transfer, pledge or otherwise hypothecate
the rights to the use of the satellite dish. IN WITNESS WHEREOF,
the parties hereto have hereunder set their hands and seals the
day and year first above written.
[SIGNATURES NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have hereunder set theier hands and
seals the day and year first above written.
ATTEST: TENANT:
XXXXXXXXX TECHNOLOGIES, INC.
/s/Xxxx Xxxxx III /s/ Xxxxxxx X. Xxxxxxxxx
Vice-President
WITNESS: LANDLORD:
MT. BETHEL CORPORTE CENTER
/s/Xxxxxx X. Xxxxxx By:/s/ Xxxx X. Gottra
EXHIBIT C
LEASE PAYMENT SCHEDULE
for
XXXXXXXXX TECHNOLOGIES, INC.
Rental Annual Monthly
Period Rentable Area Basic Rent Basic Rent
7/1/98 - Office
6/30/2008 21,128 sq. feet $348,612.00 $29,051.00
7/1/98 - Warehouse $ 38,500.00 $ 3,208.33
6/30/2008 7,000 sq. feet
Total Basic Rent Due $387,112.00 $32,259.33
During the first one hundred twenty days 120 days of Term, Tenant may
utilize the entire Premises during Tenant's initial fix-up and Alterations, but
shall only be obligated to pay Basic Rent and Additional Rental based upon 12000
square feet of office space and 5,000 square feet of warehouse space. Upon
inspection of such work, the following revisions shall apply:
(a) During the first 18 months of the Lease, Tenant shall pay for only
12,000 sq. feet of office space unless Tenant utilizes more than 12,000 sq. ft.,
in which event they will pay rent on the entire 21,128 sq. feet. If Tenant does
not use the 12,000 sq. ft. during the first 18 months, Tenant will be obligated
to pay Basic Rent and Additional rent for the 12,000 sq. feet but shall be
obligated after 18 months to pay Basic Rent and Additional Rent for the entire
21,128 sq. ft. If Basic Rent is only being paid for 12,000 sq. ft. of office
space the annual rent for that portion will be $198,000 and the monthly rent
will be $16,500.
(b) Tenant shall pay for warehouse space of 5,000 sq. feet until
August 31, 2001 at which time it will be obligated to pay for 7,000 sq. feet
until August 31, 2001 at which time it will be obligated to pay for 7,000 sq.
ft. If Tenant utilizes any more than 5,000 sq. ft., before August 31, 2001, it
will be obligated to pay for a full 7,000 sq. ft. If Basic Rent is only being
paid for 5,000 sq. ft. of warehouse space, the annual rental will be $27,500 and
the monthly rental will be $2,291.67.
(c) Limited to the first one hundred twenty days (120) days of the
Term the incidental use of space for temporary storage, access, to other space
or similar limited purposes shall not be deemed utilization by Tenant.
Increase in rent for 2nd five years of lease shall be as follows:
The Yearly Basic Rent to be paid during the period 7/1/2003 through
6/30/2008 shall accrue at the rate equal to the Yearly Basic Rent paid during
the fifth year of the lease Term, Three Hundred Eighty Seven Thousand One
Hundred Twelve Dollars ($387,112.00), increased by the aggregate of the annual
percentages of increase (subject to the limitations set forth below) in the
index now know n as the Revised Consumer Price Index for All Urban Consumers of
the New York, N..Y. - Northeastern, new Jersey area as published by the Bureau
of Labor Statistics of the United States Department of labor (hereinafter
"Index") between 7/1/1998 and 6/30/2003, but in no event less than the yearly
Basic Rent paid for the Demised Premises from 7/1/1998 through 6/30/2003. If at
the time required for the determination of the renewal rent the aforesaid Index
is no longer published or issued, the parties shall use such other index as is
then generally recognized and accepted for similar determinations of cost of
living increase. The increase for consumer price index shall be a minimum of 2%
and a maximum of 5% per year.
For example, if the annual increases in the index are as follows,
Year Applied
Ending 6/30 Increase Increase
1999 1% 2%
2000 2% 2%
2001 8% 5%
2002 4% 4%
2003 -3% 2%
Total 12% 15%
then the Basic Rent for years 5 through 10 of the Term shall be 115% of the
Basic Rent for the first 5 years of the Term.
SCHEDULE D
LEASE ESTOPPEL CERTIFICATE
Landlord:
Tenant:
Premises:
Area: Lease Date:
The undersigned Landlord and Tenant of the above-referenced lease (the
"Lease") hereby ratify the Lease and certify to Lender as mortgagee of the Real
Property of which the premises demised under the Lease (the "Premises") is a
part, as follows:
1. That the term of the Lease commenced on ________________________ 199 and
the Tenant is in full and complete possession of the premises demised under the
Lease and has commenced full occupancy and use of the Premises, such possession
having been delivered by the original landlord and having been accepted by the
Tenant.
2. That the Lease calls for monthly rent installments of $ ________________
to date and that the Tenant is paying monthly installments of rent of
$_______________ which commenced to accrue on the ________ day of
_____________________, 199 .
3. That no advance rental or other payment has been made in connection with
the Lease, except rental for the current month, there is no "free rent" or other
concession under the remaining term of the lease and the rent has been paid to
and including __________________ 199 .
4. That a security deposit in the amount of $ _________________ is being
held by Landlord, which amount is not subject to any set-off or reduction or to
any increase for interest or other credit due to Tenant.
5. That all obligations and conditions under said Lease to be performed to
date by landlord or Tenant have been satisfied, free of defenses and set-offs
including construction work in the Premises.
6. That the Lease is a valid lease and in full force and effect and
represents the entire agreement between the parties; that there is no existing
default on the part of the Landlord or the Tenant in any of the terms and
conditions thereof and no event has occurred which, with the passing of time or
giving of notice or both, would constitute an event of default; and that said
Lease has: (initial one)
(__) not been amended, modified, supplemented, extended, renewed or
assigned.
(__) been amended modified, supplemented, extended, renewed or assigned as
follows by the following described agreements.
______________________________________________________________________
7. That the Lease provides for a primary term of ________________ months;
the term of the Lease expires on the _____ day of _____________, 199 ; and that
(initial one)
(__) neither the Lease nor any of the documents listed above in Paragraph
6, (if any), contain an option for any additional term or terms.
(__) the Lease and/or the documents listed above in Paragraph 6 contain an
option for ______________ additional term(s) of _____________ year(s)
and _______________ month(s) (each ) at a rent to be determined as
follows: _________________________
______________________________________________________________________
_____________________________________________________________________.
8. That Landlord has not rebated, reduced or waived any amounts due from
Tenant under the lease, either orally or in writing, nor has Landlord provided
financing for, made loans or advances to, or invested in the business of Tenant.
9. That, to the best of Tenant's knowledge, there is no apparent or likely
contamination of the Real Property of the Premises by Hazardous Materials, and
Tenant does not use, nor has Tenant disposed of, Hazardous Materials in
violation of Environmental Laws on the Real Property or the Premises.
10. That there are no actions, voluntary or involuntary, pending against
the Tenant under the bankruptcy laws of the United States or any state thereof.
11. That this certification is made knowing that Lender is relying upon the
representations herein made.
Date: Tenant _______________________________
_______________________________
By: _______________________________
Typed Name:
Title
Date: Landlord _____________________________
_____________________________
By: _____________________________
Typed Name:
Title
EXHIBIT E
LANDLORD WORK LETTER
Landlord will contribute the equivalent of $8.50 per sq. feet based on
21,128 sg. Ft. for the Teneant improvements ($179,588.00). This allowance shall
be given in the form of free Basic Rent commencing with the August 1, 2001
rental payment. Free Basic Rent shall be given until the amount of the allowance
is utilized in full. It is understood that the Landlord will erect a floor to
ceiling fence in the Warehouse to separate the 7,000 sq. Ft set forth int he
Lease from the balance of the warehouse space. The cost of said fence shall be
the responsibility of the Landlord.
