Exhibit 10.20
Consult your lawyer before signing this lease. It has important legal _________
BUSINESS LEASE
The Landlord and the Tenant agree to lease the Rental Space for the
Term and at the Rent stated, as follows: (The words Landlord and Tenant include
all landlords and all tenants under this Lease.)
Landlord 000 Xxxxxxx Xxxx Corp. Tenant Xxxxxxxxxxx.xxx, Inc.*
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Print or type Print or type
c/o Safer Development & Management Corp. 000 Xxxxxxx Xxxx
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Address Residence address
0000 XxXxxxxx Xxxxxxx, Xxxxxx, XX 00000 Xxxxxxx Xxxx, Xxx Xxxxxx 00000
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Zip
Rental Space. Approximately One hundred forty three thousand seven hundred fifty
(143,750+/-) square feet, as delineated on Exhibit "A" attached to and made part
of this Lease (sometimes referred to as "Demised Premises")
in the Building at 000 Xxxxxxx Xxxx, (Block 22, Lot 338) Lincoln Park, New
Jersey
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Address
Date of Lease April 1999
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Xxxx Xxxx (5) Years
Beginning June 1 1999
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Ending May 31 2004
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Security $105,416.00
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Broker. The Landlord and the Tenant recognize SBW&E, Inc.
(see separate agreement)
as the Broker who brought about this Lease. The Landlord
143,750 shall pay the Broker's commission.
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Liability Insurance. See Paragraph 6
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Rent for the Term is $3,162,500.00
The Rent is payable in advance on the first day of each month as follows:
Months 1-36 $47,916.67
Months 37-60 $59,895.83
-calculated based upon 143,750
square feet of rentable space;
together with all payments
designated as Additional Rent
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Use of Rental Space solely, by TENANT, for the purpose of warehousing and
distributing of computer and electronic equipment and supplies, and related
offices, and for no other use or purpose.
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Additional agreements are set forth on the Rider which is attached to,
incorporated in and made part of this Lease. Whenever there is an inconsistency
between the printed language of this Lease and the language of the Rider, the
language of the Rider shall control.
* a Delaware corporation authorized to transact business in New Jersey.
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Table of Contents
1. Possession and Use 16. No Alterations
2. Delay in Giving of Possession 17. Signs
3. No Assignment or Subletting 18. Access to Rental Space
4. Rent and Additional Rent 19. Fire and Other Casualty
5. Security 20. Eminent Domain
6. Liability Insurance 21. Subordination to Mortgage
7. Unavailability of Fire Insurance, 22. Tenant's Certificate
Rate Increases
8. Water Damage 23. Violation, Eviction,
9. Liability of Landlord and Tenant Re-entry and Damages
10. Real Estate Taxes 24. Notices
11. Acceptance of Rental Space 25. No Waiver
12. Quiet Enjoyment 26. Survival
13. Utilities and Services 27. End of Term
14. Tenant's Repairs, Maintenance, 28. Binding
and Compliance
15. Xxxxxxxx's Repairs and Maintenance 29. Full Agreement
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ADDENDUM TO LEASE AGREEMENT
BY AND BETWEEN
000 XXXXXXX XXXX CORP. AS LANDLORD
AND
XXXXXXXXXXX.XXX, INC. AS TENANT
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This Addendum is attached to and made part of the Lease Agreement as referenced
above.
EXHIBIT A
DIAGRAM
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1. Possession and Use
The Landlord shall give possession of the Rental Space to the Tenant
for the Term. The Tenant shall take possession of and use the Rental Space for
the purpose stated above. The Tenant may not use the Rental Space for any other
purposes without the written consent of the Landlord.
The Tenant shall not allow the Rental Space to be used for any unlawful
or hazardous purpose. The Tenant is satisfied that the Rental Space is zoned for
the Use stated. The Tenant shall obtain any necessary certificate of occupancy
or other certificate permitting the Tenant to use the Rental Space for that Use.
The Tenant shall not use the Rental Space in any manner that results in
(1) an increase in the rate of fire or liability insurance or (2) cancellation
of any fire or liability insurance policy on the Rental Space. The Tenant shall
comply with all requirements of the insurance companies insuring the Rental
Space. The Tenant shall not abandon the Rental Space during the Term of this
Lease or permit it to become vacant for extended periods.
See Rider Paragraph 1.
2. Delay in Giving of Possession
This paragraph applies if (a) the Landlord cannot give possession of
the Rental Space to the Tenant on the beginning date and (b) the reason for the
delay is not the Landlord's fault. The Landlord shall then have 30 days in which
to give possession. If possession is given within that time, the Tenant shall
accept possession and pay the Rent from that date. The ending date of the Term
shall not change. If possession is not given within that time this Lease may be
cancelled by either party on notice to the other.
3. No Assignment or Subletting
The Tenant may not do any of the following without the Landlord's
written consent: (a) assign this Lease (if the Tenant is a corporation, the sale
of a majority of its shares shall be treated as an assignment), (b) sublet all
or any part of the Rental Space or (c) permit any other person or business to
use the Rental Space. See Rider Paragraph 3.
4. Rent and Additional Rent
Tenant shall pay the Rent to the Landlord at the Landlord's address.
If the Tenant fails to comply with any agreement in this Lease, the
Landlord may do so on behalf of the Tenant. The Landlord may charge the cost to
comply, including reasonable attorney's fees, to the Tenant as "additional
rent". The additional rent shall be due and payable as Rent with the next
monthly Rent payment. Non-payment of additional rent shall give the Landlord the
same rights against the Tenant as if the Tenant failed to pay the Rent.
See Rider Paragraph 4.
5. Security
The Tenant has given to the Landlord the Security stated above. The
Security shall be held by the Landlord during the Term of this Lease. The
Landlord may deduct from the Security any expenses incurred in connection with
the Tenant's violation of any agreement in this Lease. For example, if the
Tenant does not leave the Rental Space in good condition at the end of the Term,
the Security may be used to put it in good condition. If the amount of damage
exceeds the Security, the Tenant shall pay the additional amount to the Landlord
on demand.
If the Landlord uses the Security or any part of it during the Term,
the Tenant shall on demand pay the Landlord for the amount used. The amount of
the Security is to remain constant throughout the Term. The Security is not to
be used by the Tenant for the payment of Rent. The Landlord shall repay to the
Tenant any balance remaining within a reasonable time after the end of the Term.
The Tenant shall not be entitled to interest on the Security.
If the Landlord's interest in the Rental Space is transferred, the
Landlord shall turn over the Security to the new Landlord. The Landlord shall
notify the Tenant of the name and address of the new Landlord. Notification must
be given within 5 days after the transfer, by registered or certified mail. The
Landlord shall then no longer be responsible to the Tenant for the repayment of
the Security. The new Landlord shall be responsible to the Tenant for the return
of the Security in accordance with the terms of this Lease. See Rider Paragraph
5.
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6. Liability Insurance
The Tenant shall obtain, pay for, and keep in effect for the benefit of
the Landlord and the Tenant public liability insurance on the Rental Space. The
insurance company and the broker must be acceptable to the Landlord. This
coverage must be in at least the minimum amounts stated above.
All policies shall state that the insurance company cannot cancel or
refuse to renew without at least 10 days written notice to the Landlord.
The Tenant shall deliver the original policy to the Landlord with proof
of payment of the first year's premiums. This shall be done not less than 15
days before the Beginning of the Term. The Tenant shall deliver a renewal policy
to the Landlord with proof of payment not less than 15 days before the
expiration date of each policy.
Continued on Rider Paragraph 6.
7. Unavailability of Fire Insurance, Rate Increases
If due to the Tenant's use of the Rental Space the Landlord cannot
obtain and maintain fire insurance on the Building in an amount and form
reasonably acceptable to the Landlord, the Landlord may cancel this Lease on 30
days notice to the Tenant. If due to the Tenant's use of the Rental Space the
fire insurance rate is increased, the Tenant shall pay the increase in the
premium to the Landlord on demand.
8. Water Damage
The Landlord shall not be liable for any damage or injury to any
persons or property caused by the leak or flow of water from or into any part of
the Building.
9. Liability of Landlord and Tenant
The Landlord shall not be liable for injury or damage to any person or
property unless it is due to the Landlord's act or neglect. The Tenant is liable
for any loss, injury or damage to any person or property caused by the act or
neglect of the Tenant or the Tenant's employees. The Tenant shall defend the
Landlord from and reimburse the Landlord for all liability and costs resulting
from any injury or damage due to the act or neglect of the Tenant or the
Tenant's employees.
10. Real Estate Taxes See Rider Paragraph 10
See Rider Paragraph 10.
11. Acceptance of Rental Space
The Tenant has inspected the Rental Space and agrees that the Rental
Space is in satisfactory condition. The Tenant accepts the Rental Space "as is".
12. Quiet Enjoyment
The Landlord has the right to enter into this Lease. If the Tenant
complies with this Lease, the Landlord must provide the Tenant with undisturbed
possession of the Rental Space.
13. Utilities and Services
The Tenant shall arrange and pay for all utilities and services
required for the Rental Space, including the following:
(a) Heat
(b) Hot and cold water
(c) Electric
(d) Gas
(e) sewer
(f) trash removal
The Landlord is not liable for any inconvenience or harm caused by any
stoppage or reduction of utilities and services beyond the control of the
Landlord. This does not excuse the Tenant from paying Rent. See Rider Paragraph
13.
14. Tenant's and Compliance
The Tenant shall:
(a) Promptly comply with all laws, orders, rules and requirements of
governmental authorities, insurance carriers, board of fire underwriters, or
similar groups.
(b) Maintain the Rental Space and all equipment and fixtures in it in
good repair and appearance.
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(c) Make all necessary repairs to the Rental Space and all equipment
and fixtures in it, except structural repairs.
(d) Maintain the Rental Space in a neat, clean, safe, and sanitary
condition, free of all garbage.
(e) Keep the walks, driveway, parking area, yard, entrances, hallways,
and stairs clean and free from trash, debris, snow and ice.
(f) Use all electric, plumbing and other facilities in the Rental
Space safely., and to maintain and replace all fixtures as required.
(g) Use no more electricity than the wiring or feeders to the Rental
Space can safely carry.
(h) Promptly replace all broken glass in the Rental Space.
(i) Do nothing to destroy, deface, damage, or remove any part of the
Rental Space.
(j) Keep nothing in the Rental Space which is inflammable, dangerous
or explosive or which might increase the danger of fire or other casualty.
(k) Promptly notify the Landlord when there are conditions which need
repair.
(l) Do nothing to destroy the peace and quiet of the Landlord, other
tenants, or persons in the neighborhood.
(m) Avoid littering in the building or on its grounds.
The Tenant shall pay any expenses involved in complying with the above.
15. Landlord's Repairs and Maintenance
The Landlord shall:
(a) Maintain the public areas, roof and exterior walls in good
condition.
(b) Make all structural repairs unless these repairs are necessary by
the act or neglect of the Tenant or the Tenant's employees.
(c) Make necessary replacements of the plumbing, cooling, heating and
electrical systems, except when made necessary by the act or neglect of the
Tenant or the Tenant's employees.
(d) See Rider Paragraph 15(d) and Paragraph 46.
16. No Alterations
The Tenant may not make any changes or additions to the Rental Space
without the Landlord's written consent. Any changes or additions made without
the Landlord's written consent shall be removed by the Tenant on demand.
All changes or additions made with the Landlord's written consent shall
become the property of the Landlord when completed and paid for by the Tenant.
They shall remain as part of the Rental Space at the end of the Term. The
Landlord may demand that the Tenant remove any changes or additions at the end
of the Term. The Tenant shall promptly pay for all costs of any permitted
changes or additions. The Tenant shall not allow any mechanic's lien or other
claim to be filed against the Building. If any lien or claim is filed against
the Building, the Tenant shall have it promptly removed. See Rider Paragraph 16.
17. Signs
The Tenant shall obtain the Landlord's written consent before placing
any sign on or about the Rental Space. Signs must conform with all applicable
municipal ordinances and regulations.
18. Access to Rental Space
The Landlord shall provide reasonable notice to the Tenant to (a)
inspect the Rental Space, (b) make necessary repairs, alterations, or
improvements, (c) supply services, and (d) show it to prospective buyers,
mortgage lenders, contractors or insurers, and to real estate appraisers.
The Landlord may show the Rental Space to rental applicants at
reasonable hours on notice to the Tenant within 6 months before the end of the
Term.
The Landlord may enter the Rental Space at any time without notice to
the Tenant in case of emergency.
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19. Fire and Other Casualty
The Tenant shall notify the Landlord at once of any fire or other
casualty in the Rental Space. The Tenant is not required to pay Rent when the
Rental Space is unusable. If the Tenant uses part of the Rental Space, the
Tenant must pay Rent pro-rata for the usable part.
See Rider Paragraph 19.
20. Eminent Domain See Rider Paragraph 20.
See Rider Paragraph 20.
21. Subordination to Mortgage
In a foreclosure sale all mortgages which now or in the future affect
the Building have priority over this Lease. This means that the holder of a
mortgage may end this Lease on a foreclosure sale. The Tenant shall sign all
papers needed to give any mortgage priority over this Lease. If the Tenant
refuses, the Landlord may sign the papers on behalf of the Tenant.
22. Tenant's Certificate
At the request of the Landlord, the Tenant shall sign a certificate
stating that (a) this Lease has not been amended and is in effect, (b) the
Landlord has fully performed all of the Landlord's agreements in this Lease, (c)
the Tenant has no rights to the Rental Space except as stated in this Lease, (d)
the Tenant has paid all Rent to date, and (e) the Tenant has not paid Rent for
more than one month in advance. The Certificate shall also list all the property
attached to the Rental Space owned by the Tenant.
23. Violation, Eviction, Re-entry and Damages
The Landlord reserves a right of re-entry which allows the Landlord to
end this Lease and re-enter the Rental Space if the Tenant violates any
agreement in this Lease. This is done by eviction. Eviction is a court procedure
to remove a tenant. Eviction is started by the filing of a complaint in court
and the service of a summons on a tenant to appear in court. The Landlord may
also evict the Tenant for any one of the other grounds of good cause provided by
law. After a court order of eviction and compliance with the warrant of removal,
the Landlord may re-enter and take back possession of the Rental Space. If the
cause for eviction is non-payment of Rent, notice does not have to be given to
the Tenant before the Landlord.
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RIDER TO LEASE AGREEMENT, dated the ____ day of May, 999 by and between 510
Ryerson Road Corp. (Landlord) and Xxxxxxxxxxx.xxx, Inc. a Delaware corporation
authorized to do business in New Jersey (Tenant).
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USE: Tenant shall use the Premises solely for the purpose as stated on the first
page of the Lease, which must be a zoned use, and for no other use or purpose.
Tenant shall not create a nuisance or use the Premises for any immoral or
illegal purposes.
The Landlord shall give possession of the Premises to the Tenant for
the Term. The Tenant shall take possession of and use the Premises for the
purposes stated above. The Tenant may not use the Premises for any other purpose
without the written consent of the Landlord.
The Tenant shall not allow the Premises to be used for any unlawful or
hazardous purpose. The Tenant is satisfied that the Premises is zoned for the
Use stated. The Tenant shall obtain any necessary certificate of occupancy or
other certificate permitting the Tenant to use the Premises for that Use.
The Tenant shall not use the Premises in any manner that results in:
(1) an increase in the rate of fire or liability insurance or (2) cancellation
of any fire or liability insurance policy on the Premises. The Tenant shall not
abandon the Premises during the Term of this Lease or permit it to become vacant
for extended periods.
If the Landlord cannot give possession of the Premises to the Tenant on
the beginning date and the reason for the delay is not the Landlord's fault, the
Landlord shall not be held liable for the delay. The Landlord shall then have
thirty (30) days in which to give possession. If possession is given within that
time, the Tenant shall accept possession and pay the Rent from that date. The
ending date of the Term shall not change.
Tenant shall not use or occupy the Demised Premises in any manner
which:
(i) impairs or tends to impair the character or appearance of the
Demised Premises or the Building or improvements; or
(ii) impairs or tends to impair the proper and economic maintenance,
operations and/or repair of the Demised Premises or the Building or
improvements; or
(iii) annoys or inconveniences or tends to annoy or inconvenience other
tenants of the Landlord or neighbors of the Building.
The Tenant will not conduct any auction, fire, bankruptcy, selling out
or going out of business, or similar sales on or about the premises unless given
written permission by the Landlord which permission shall not be unreasonably
withheld or delayed.
The Tenant shall not do or permit any act or thing to be done in,
about, or to the Demised Premises which shall or might subject the Landlord to
any liability or responsibility to any person or for property damage.
RENT: The Rent shall be paid:
(i) in advance, without notice, demand, offset, or deduction except as
provided in Paragraph 19 herein.
(ii) by the first day of each month during the Term; and
(iii) to Landlord at 0000 XxXxxxxx Xxxxxxx, Xxxxxx, Xxx Xxxxxx 00000,
or as Landlord may specify in writing to Tenant.
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If Tenant fails to pay part or all of the Rent or Additional Rent
within ten (10) days after it is due, the Tenant shall also pay, as Additional
Rent a late charge equal to five (5%) percent of the unpaid Rent and Additional
Rent.
If the Tenant fails to comply with any agreement in this Lease, the
Landlord may do so on behalf of the Tenant. The Landlord may charge the cost to
comply, including reasonable attorney's fees, to the Tenant as "Additional
Rent". The Additional Rent shall be due and payable as Rent with the next
monthly rent payment. Non-payment of Additional Rent shall give the Landlord the
same rights against the Tenant as if the Tenant failed to pay the Rent. The
Additional Rent shall be due and payable as Rent within thirty (30) days
following written Notice from the Landlord of the assessment sums due and owing.
FIRST OPTION TO EXTEND: Tenant is given the option to extend the term on all the
provisions contained in this Lease, except for minimum monthly rent, for a three
[3] year period ("the first extended term") following expiration of the initial
term, by giving notice of exercise of the option ("the first option notice") to
Landlord at least six [6] months but not more than one [one] year before the
expiration of the initial term, TIME BEING OF THE ESSENCE as Landlord's receipt
of the first option notice. Provided that, if Tenant is in default on the date
of giving the first option notice, the first option notice shall be totally
ineffective, or if Tenant is in default on the date the first extended term is
to commence, the first extended term shall not commence and this Lease shall
expire at the end of the initial term.
The monthly rent for the first extended term shall be fixed at ninety (90%)
percent of the Fair Market Rental Value of the Demised Premises at the time of
the expiration of the initial Lease term, but in no event shall the base monthly
rental be less than the base monthly rental for the last month of the initial
Lease term. The parties shall have fifteen (15) days after Landlord receives the
first option notice in which to agree on minimum monthly rent during the first
extended term. If the parties agree on the minimum monthly rent for the first
extended term during that period, they shall immediately execute an amendment to
this Lease stating the minimum monthly rent.
If the parties are unable to agree on the minimum monthly rent for the first
extended term within that period, then within fifteen [15] days after the
expiration of that period, LANDLORD shall provide to TENANT a list of three (3)
real estate appraisers, each with at least 5 years' full-time industrial
appraisal experience in the Xxxxxx County, New Jersey area and licensed by the
State of New Jersey. Within ten (10) days of TENANT receiving the list of
appraisers, TENANT shall notify LANDLORD of TENANT's choice of appraiser.
Failure by TENANT to notify LANDLORD within this period shall cancel this First
Option to Extend. Upon completion, the appraisal report shall be sent to TENANT
and LANDLORD by certified mail, return receipt requested. Within ten (10) days
of receiving the report, TENANT shall notify LANDLORD in writing of its intent
to accept the Fair Market Rental Value rate determined by the appraiser. If
TENANT accepts the appraisal rate and renews the Lease, the rate shall be used
to determine the minimum monthly rent and LANDLORD and TENANT shall equally
share the expense of the appraisal cost. If TENANT does not accept the appraisal
and does not renew the Lease, which right is reserved to TENANT, TENANT shall
pay the full cost of the appraisal report.
In setting the minimum monthly rent for the first extended term, the appraiser
shall base the appraisal upon the use of the Premises for warehousing,
distributing and the other rights granted in the "Use" paragraph of this Lease.
In no event shall the minimum monthly rent for the first extended term be less
than the minimum monthly rent for the last year of the initial term of this
Lease.
Anything in this option provision to the contrary notwithstanding, if TENANT
does not exercise the first option to extend then not less than four (4) months
prior to the end of the initial Term, TENANT shall prepare, file and diligently
pursue obtaining ISRA approval in connection with the cessation of its operation
at the Premises. TENANT shall provide to LANDLORD copies of all filings with any
responses from the NJDEPE in connection with this ISRA compliance.
SECOND OPTION TO EXTEND: Tenant is given the option to extend the term on all
the provisions contained in this Lease, except for minimum monthly rent, for a
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three [3] year period ("the second extended term") following expiration of the
first extended term, by giving notice of exercise of the option ("the second
option notice") to Landlord at least six [6] months but not more than one [one]
year before the expiration of the first extended term, TIME BEING OF THE ESSENCE
as to Landlord's receipt of the second option notice. Provided that, if Tenant
is in default on the date of giving the second option notice, the second option
notice shall be totally ineffective, or if Tenant is in default on the date the
second extended term is to commence, the second extended term shall not commence
and this Lease shall expire at the end of the first extended term.
The monthly rent for the second extended term shall be fixed at ninety (90%)
percent of the Fair Market Rental Value of the Demised Premises at the time of
the expiration of the first extended term, but in no event shall the base
monthly rental be less than the base monthly rental for the last month of the
first extended term. The parties shall have fifteen (15) days after Landlord
receives the second option notice in which to agree on minimum monthly rent
during the second extended term. If the parties agree on the minimum monthly
rent for the second extended term during that period, they shall immediately
execute an amendment to this Lease stating the minimum monthly rent.
If the parties are unable to agree on the minimum monthly rent for the second
extended term within that period, then within fifteen [15] days after the
expiration of that period, LANDLORD shall provide to TENANT a list of three (3)
real estate appraisers, each with at least 5 years' full-time industrial
appraiser experience in the Xxxxxx County, New Jersey area and licensed by the
State of New Jersey. Within ten (10) days of TENANT receiving the list of
appraisers, TENANT shall notify LANDLORD of TENANT's choice of appraiser.
Failure by TENANT to notify LANDLORD within this period shall cancel this Second
Option to Extend. Upon completion, the appraisal report shall be sent to TENANT
and LANDLORD by certified mail, return receipt requested. Within ten (10) days
of receiving the report, TENANT shall notify LANDLORD in writing of its intent
to accept the Fair Market Rental Value rate determined by the appraiser. If
TENANT accepts the appraisal rate and renews the Lease, the rate shall be used
to determine the minimum monthly rent and LANDLORD and TENANT shall equally
share the expense of the appraisal cost. If TENANT does not accept the appraisal
and does not renew the Lease, which right is reserved to TENANT, TENANT shall
pay the full cost of the appraisal report.
In setting the minimum monthly rent for the second extended term, the appraiser
shall base the appraisal upon the use of the Premises for warehousing,
distributing and the other rights granted in the "Use" paragraph of this Lease.
In no event shall the minimum monthly rent for the second extended term be less
than the minimum monthly rent for the last year of the first extended term.
Anything in this option provision to the contrary notwithstanding, if TENANT
does not exercise the second option to extend then not less than four (4) months
prior to the end of the first extended term TENANT shall prepare, file and
diligently pursue obtaining ISRA approval n connection with the cessation of its
operation at the Premises. TENANT shall provide to LANDLORD copies of all
filings with any responses from the NJDEPE in connection with this ISRA
compliance.
OPTION TO PURCHASE: Landlord grants to Tenant the option to purchase the Land
and the Building of which the Demised Premises form a part in accordance with
the provisions of this Lease, provided that Tenant is not in default of any of
its obligations under this Lease either at the time Tenant exercises the option
or at the time of closing.
Tenant shall have the right to exercise this option to purchase at any
time during the last eighteen months of the term, between December 1, 2002 and
November 30, 2003.
Tenant shall exercise the option by delivering to Landlord written
notice (the "Option Notice") within the option period started in the preceding
paragraph. In order to be effective, the Option Notice shall be accompanied by a
Bank Check or Certified Check in an amount equal to ten (10%) percent of the
purchase price (as set forth in the following paragraph) (the "deposit"),
payable to the order of Xxxxxx X. Xxxxx, Esq., escrow agent and shall be
received by the Landlord on or before November 30, 2003. TIME BEING OF THE
ESSENCE. The deposit shall constitute liquidated damages in the event Tenant,
after exercising this option shall default and fail to close title. The parties
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agree that Xxxxxxxx's actual damages may not be ascertainable and for that
reason have agreed to this liquidated damage provision.
The purchase price shall be Nine Million Three Hundred Forty-Three
Thousand Seven Hundred Fifty ($9,343,750.00) Dollars.
The purchase price shall be payable in full in lawful money of the
United States of America by Xxxxxx at the closing.
Landlord shall deliver a Bargain and Sale Deed with Covenants against
Grantor's Acts, executed and acknowledged in recordable form, conveying the Land
and Building. Title shall be conveyed free and clear of all liens, encumbrances,
covenants, restrictions, easements and other matters of record, except all
tenancies which may then be in existence and all matters of record at the time
this Lease is executed (it being the intention of the parties that Landlord
shall convey to Tenant title which is consistent with the title which exists at
this time), current real property taxes and current assessments not yet due and
payable, and anything whether of record or not of record which is in any way
affects title resulting from the acts or omissions of Tenant. Xxxxxxxx's title
insurance policy is attached to and made part of this Lease as Exhibit "B".
Tenant shall accept title subject to all matters set forth in Exhibit "B".
All rent, utilities, real property taxes, insurance premiums and all
other customary items for like properties shall be adjusted as of the date of
the closing. Landlord shall pay the Realty Transfer Fee. Tenant shall pay all
recording costs.
Tenant shall not assign its interest, or any portion of its interest,
in the option granted by this paragraph, except to an entity controlled by the
Tenant or by its present majority shareholder, and then, only after the option
is exercised and Tenant remains liable.
If Tenant does not properly and timely exercise the option strictly in
accordance with this Paragraph on or before November 30, 2003, Time Being of the
Essence, then this option shall automatically expire.
Subject to the provisions of the following subparagraphs, closing of
title shall take place not later than the first day of the seventh (7th) month
following Xxxxxxxx's receipt of the option notice. After the first day of the
seventh month either Landlord or Tenant may declare Time to Be of the Essence
for the closing of title by delivering written notice to the other party not
less than 21 days prior to the closing date established in that notice.
In the event that Landlord elects to effectuate a tax-deferred
like-kind exchange as presently provided for in Internal Revenue Code Section
1031 in connection with the transaction described in this paragraph, the Tenant
agrees to cooperate with the Landlord provided that:
A. Tenant shall not incur any additional costs, tax liability or
expense in effectuating such exchange;
B. The closing date shall not be unduly delayed by reason of such
exchange;
C. Landlord shall remain fully liable for all of its obligations
under this Lease; and
X. Xxxxxxxx shall indemnify and hold Tenant harmless from and
against any liability, cost, claim or expense arising from
such exchange.
Subject to the foregoing, Xxxxxx agrees to execute such documents as
may be reasonably required to effectuate the like-kind exchange described above.
In the event Landlord is unable to complete the Like-kind exchange
prior to the closing date, Xxxxxx's obligations under this paragraph shall
remain in full force and effect for a period not to exceed three hundred sixty
five (365) days after closing, it being understood that completion of such
exchange is not a condition of the closing.
- 4 -
Tenant covenants and agrees that it shall be responsible for compliance
with the New Jersey Industrial Site Recovery Act in connection with the
conveyance of the property from Landlord to Tenant. Xxxxxxxx agrees that an
Administrative Consent Order shall be sufficient evidence of compliance.
Tenant shall have the right to inspect the Land and the Building of
which the Demised Premises form a part at any time or at various times prior to
the exercise of the option to purchase.
1. Paragraph 1 is amended and supplemented by adding the following:
Landlord at its cost and expense shall prepare a site plan drawing, provide
public notice and the testimony of the Engineer who prepares the site plan.
Tenant is responsible for all other costs, expenses and aspects of obtaining
site plan approval, any and all variances that may be required, and the
Certificate of Occupancy.
3. Paragraph 3 is amended and supplemented by adding the following: The
Tenant may not do any of the following without the Landlord's written consent:
(a) assign this Lease (if the Tenant is a corporation, the sale of a majority of
its shares shall be treated as an assignment), (b) sublet all or any part of the
Premises or (c) permit any other person or business to use the Premises.
Landlord shall not be required to consent to any assignment or sublease
to any individual or entity which:
(a) engages in manufacturing activities; or
(b) operates a business with an SIC Code which will subject the
property to the provisions of the Industrial Site Recovery Act
(ISRA); or
(c) increases the potential for environmental impacts to the land,
the building or the demised premises; or
(d) in the exercise of the Landlord's sound business judgment does
not posses the requisite financial stability, management
expertise or business history to warrant being approved as an
assignee or sub-tenant.
In no event shall the pro rata rental to be paid by any assignee or
subtenant be less than that specified in this Lease.
If the Tenant desires to assign this Lease or sublet any portion of the
Demised Premises, then the Tenant must first offer this Lease back to the
Landlord at no cost to the Landlord. The Tenant must make or pay for all repairs
which are its obligation under this Lease or any sublease or any other agreement
prior to its surrender of this Lease and must assign to the Landlord all of its
right, title and interest in or to any assignments or subleases then in
existence for any portion of the Demised Premises. Basic Rent, Additional Rent
and all other monetary obligations of the Tenant shall be apportioned to such
date and the Tenant shall surrender the Demised Premises on such date. Subject
to payment of required Lease adjustments, the parties shall thereafter have no
further liability one to the other and Tenant shall not be entitled to any
portion of the rental nor other receipts from any existing or future assignee,
tenant or subtenant. The Landlord may lease the Demised Premises to any party
whatsoever, without any liability to the Tenant nor to any other party for any
amount whatsoever, including, but not limited to, brokerage fees or commissions,
even if the said party was engaged in the previous negotiations with or
introduced to the Demised Premises by the Tenant. Upon acceptance by the
Landlord of the surrender of this Lease, the Tenant must notify each existing
assignee and subtenant, if any, by receipted delivery service that its full
future rent and all other payments must be made to the Landlord herein.
If the Landlord decides not to accept the surrender of the Lease, the
Tenant may assign this Lease or sublet more than one-half of the Demised
Premises to the proposed assignee or subtenant upon the same terms and
conditions as those specified in the proposed assignment or sublease agreement
sent to the landlord for its consent, subject, however, to the Landlord's rights
under this article and this Lease. The Landlord shall have the right to demand,
- 5 -
as a condition of consent to any sublease or assignment, security or additional
security from the Tenant, the assignee or the sublessee, as the case may be.
In the event of a default by the Tenant, the Landlord, at its option,
may collect all Basic Rent, Additional Rent, and any other monetary obligations
from any and all present or future assignees, subtenants and/or occupants and
apply the amount collected toward the Tenant's obligations under this Lease. No
such collection on the part of the Landlord shall be deemed a waiver of any of
the Landlord's rights under this lease; nor shall it be deemed an acceptance of
the assignee, subtenant or occupant by the Landlord as a tenant; nor shall it be
deemed an acceptance of any assignment or sublease not previously approved by
the Landlord; nor shall it release the Tenant from the further performance of
its covenants and obligations under the Lease. The Tenant shall remain fully
liable for any deficiency in the amounts so received by the Landlord and the
amounts specified to be paid under this Lease. Any excess in the amounts so
received shall remain the property of the Landlord and the Tenant shall have no
interest in same.
4. Paragraph 4 is amended and supplemented by adding the following: In the
event additional rent is assessed, Landlord shall give written Notice to Tenant
of each such claims expense, the payment of which shall be due within thirty
(30) days of this Notice.
5. Paragraph 5 is amended and supplemented by adding the following: Upon
execution of this Lease, Tenant shall pay to Landlord the Security Deposit
("Security") in the amount of One hundred five thousand four hundred sixteen
Dollars ($105,416.00). The Security shall be held by the Landlord during the
term of this Lease. The Landlord may deduct from the Security any expenses
incurred in connection with the Tenant's violation of any agreement in this
Lease. If the amount of damage exceeds the Security, the Tenant shall pay the
additional amount to the Landlord on demand.
If the Landlord uses the Security or any part of it during the Term,
the Tenant shall on demand pay the Landlord for the amount used. The amount of
the Security is to remain constant throughout the Term. The Security is not to
be used by the Tenant for the payment of Rent. The Landlord shall repay to the
Tenant any balance remaining within a reasonable time after the end of the Term.
The Tenant shall not be entitled to interest on the Security.
If the Landlord's interest in the Premises is transferred, the Landlord
shall turn over the Security to the new Landlord. The Landlord shall notify the
Tenant of the name and address of the new Landlord. Notification must be given
within five (5) days after the transfer, by registered or certified mail. The
Landlord shall then no longer be responsible to the Tenant for the repayment of
the Security. The new Landlord shall be responsible to the Tenant for the return
of the Security in accordance with the terms of this Lease.
The Tenant covenants that it will not assign or encumber or attempt to
assign or encumber the monies deposited herein as Security and that neither the
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance. The Landlord or its
successors in interest will return the Security to the original Tenant
regardless of one or more assignments of the Tenant's interest in the Premises.
Upon the return of such Security, or balance thereof, to the original Tenant,
the Landlord or its successor in interest shall be completely relieved of
liability hereunder. Landlord may commingle the Security with its other funds.
The use, application or retention of all or any portion of the Security
by the Landlord shall not prevent the Landlord from exercising any other right
or remedy provided for under this Lease or at law or equity and shall not
operate as a limitation on any recovery to which the Landlord may otherwise be
entitled. It is specifically agreed and understood that the Tenant is liable to
the Landlord for the payment of any sums due to the Landlord under the Lease
regardless of any application by the Landlord of the amount of Security provided
for herein. In consideration of the agreed to rental specified herein, the
Tenant does hereby grant to the Landlord the right to use said Security for its
own purposes and it shall not be considered as trust funds. No interest on the
said Security nor other sums shall be payable hereunder to the Tenant by the
Landlord.
- 6 -
Based upon the annual reconciliation of Xxxxxx's Proportionate Share of
actual Operating Expenses and Taxes, the actual amount due from Tenant for the
final estimate period of the Term of this Lease shall be due and payable even
though it may not be finally calculated until after the expiration of the Term.
Accordingly, Landlord shall have the right to continue to hold a portion, as
reasonably estimated by Landlord in good faith, of the Security Deposit
following the expiration of the Term until Tenant's Proportionate Share of
actual Operating Expenses or Taxes, or both, has or have been calculated by
Landlord and paid by Xxxxxx.
6. Paragraph 6 is amended and supplemented by adding the following: The
Tenant shall maintain liability insurance in the amount of which shall be
combined minimum amount of four million ($4,000,000.00) dollars. The Tenant
shall obtain, pay for as Additional Rent and keep in effect for the benefit of
the Landlord and the Tenant public liability insurance on the Premises. The
insurance company and the broker must be acceptable to the Landlord. This
coverage must be in at least the minimum amounts stated above.
All policies shall state that the insurance company cannot cancel or
refuse to renew without at least ten (10) days written notice to Landlord.
The Tenant shall deliver the original Form XXXXX 27 policy to the
Landlord with proof of payment of the first year's premium. This shall be done
not less than fifteen (15) days before the Beginning of the Term. The Tenant
shall deliver a renewal policy to the Landlord with proof of payment not less
than fifteen (15) days before the expiration date of each policy.
The Tenant shall pay all premiums and charges for the insurance that it
is required to maintain under this Lease. If the Tenant shall fail to make any
such payment when due or otherwise fail to maintain any required insurance or
satisfy the requirements of the Landlord or the mortgagees designated by the
Landlord, the Landlord, at its option, may, but shall not be obligated to,
either make such payments as shall be required to maintain any such insurance as
aforesaid or obtain a separate insurance policy to provide the required coverage
without waiving or releasing any default by the Tenant.
The Tenant shall give prompt notice to the Landlord of any claims made
under the insurance policies on the Premises, Building and/or Land. The
Landlord, may, at its option, participate in any and all settlement negotiations
with any insurance company concerning any and all claims to which it is a party.
In the event of any loss or damage covered by insurance, the Tenant shall
execute and deliver to the Landlord, if requested, such proof of loss and other
instruments as may be required to obtain insurance monies payable to the
Landlord and/or the said mortgagees. In the event the Tenant fails to so execute
the aforesaid documents in a timely manner, the Tenant hereby constitutes and
appoints the Landlord as its attorney in fact and authorizes the Landlord to
execute the aforesaid documents on its behalf without any further authorization
from the Tenant. The Tenant shall not violate or permit to be violated any of
the conditions or provisions of any policy of insurance placed at any time on
the Demised Premises, Building and/or Land.
Each such insurance policy or certificate therefor obtained by the
Tenant pursuant to this Lease shall be (a) issued for terms of not less than
twelve (12) full consecutive calendar months, and shall contain a clause that
the policy shall not be canceled without at least ten (10) days prior written
notice to the Landlord and the mortgagees designated by the Landlord, (b)
written on a form satisfactory to the Landlord and the mortgagees designated by
the Landlord by a good and solvent insurance company of recognized standing,
admitted to do business in the State of New Jersey, and shall be without
co-insurance clauses nor any deductible feature (except as specifically
permitted by the Landlord in writing provided that the Tenant remains at all
times liable for the payment to the Landlord of such deductible amount in the
event of a loss), (c) shall name 000 Xxxxxxx Xxxx Corp. as Landlord and its
mortgagees each as a "named insured", (d) shall contain a provision that no act
or omission of the Tenant shall affect or limit the obligations of the insurance
company issuing such policy to pay in the event of a loss, and (e) shall contain
a Loss Discovery Clause.
In the event that the Tenant performs any negligent act or omission
which results in a loss, forfeiture or reduction of said insurance coverage or
payments, the Tenant shall pay to the Landlord upon demand, as Additional Rent,
the amount of such loss, forfeiture or reduction not otherwise covered by
Xxxxxxxx's insurance policy proceeds. In the event of any loss or damage not
- 7 -
covered or only partially covered by insurance, the Tenant shall bear its
proportionate share of the full cost of repairing such loss or damage above any
amount obtained from the insurance company. The Tenant shall pay the full cost
of any increase in the insurance premiums on the Land, Building or the Demised
Premises if such increase is due to the Tenant's or its permittees' use, tenancy
or occupancy. The Landlord and the Tenant specifically waive any and all rights
of subrogation as against the other.
The Tenant shall be responsible to carry its own fire, contents and
sprinkler damage insurance and all and all other insurance upon its own and its
permittee's personal property, its contents, its work, its alterations, its
improvements, and the like. The Landlord shall not be liable for the Tenant's
failure to do so.
Paragraph 9 is amended and supplemented by adding the following: The
Landlord shall not be liable for injury or damage to any person or property
unless it is due to the Landlord's act or neglect. The Tenant is liable for any
loss, injury or damage to any person or property caused by the act or neglect of
the Tenant or the Tenant's employees. The Tenant shall defend the Landlord and
reimburse the Landlord for all liability and costs resulting from any injury or
damage due to the act or neglect of the Tenant or the Tenant's employees.
The Landlord shall not be liable for any damage or injury to any
persons or property caused by the leak or flow of water from or into any part of
the Building.
The Tenant shall look solely to the Landlord's interest in the Real
Estate for the enforcement of any judgment or decree requiring the payment of
money to the Tenant by reason of any default or breach by the Landlord under
this Lease or for any other reason, and to no other property or asset of the
Landlord, its partners, owners, principals, officers, directors or the like. In
no event shall there be any personal liability on the part of the Landlord, its
partners, owners, principals, officers, directors or the like beyond its
interest in the Building and Land, and no other asset of the Landlord, its
partners, owners, principals, officers, directors or the like shall be subject
to levy, execution, attachment or any other legal process.
10. REAL ESTATE TAXES AND GOVERNMENTAL IMPOSITIONS: In addition to the
Rent, the Tenant shall pay to the Landlord upon demand, as Additional Rent, its
proportionate share of all real estate taxes, all assessments and all special
assessments and any other governmental impositions, levies and charges or the
like of every kind and nature whatsoever, or any governmental charges levied in
substitution thereof, which shall, during the Term of this Lease, be imposed
upon or charged against the Demised Premises, Building and/or Land or any part
thereof, together with any interest and penalties thereon.
If at any time during the Term of this Lease, the method or scope of
taxation prevailing as the date of execution of this Lease shall be modified or
enlarged so as to cause the method of taxation to be changed, so that in lieu
of, or as an addition to the governmental impositions named herein, there may be
a capital levy or other imposition based on the value of the Building and/or
Land, or the rents received therefrom, or some other form of assessment based in
whole or in part on some other valuation of the Landlord's real property
including the Demised Premises, then and in such event, such substituted tax or
imposition shall be payable in accordance with the obligations set forth in this
article. Such substitute tax shall be computed as if the Building and Land of
which the Demised Premises are a part were the only property owned by the
Landlord.
It is the intent of the parties hereto that the Rent to be paid by the
Tenant to the Landlord as provided for in this Lease shall be an absolute net
return to the Landlord and that the Tenant shall, in all events, and in addition
to the Rent be responsible for its proportionate share of all charges (other
than the Landlord's income franchise, estate, inheritance or transfer taxes
unless such taxes are reasonably deemed imposed in substitution for the
aforesaid governmental impositions) imposed by any governmental authority upon
the Land, the buildings thereon, the improvements thereto, the contents thereof,
or caused by the Tenant's use thereof. This Lease shall always be construed in
order to effectuate this declared intent of the parties.
The Tenant shall pay to the Landlord its proportionate share of the
real estate taxes due on the Building and the Land upon which it is located as
an escrow payable in twelve (12) equal installments on the first day of every
month, in advance. The Tenant shall initially pay a one (1) month escrow to the
Landlord. Said escrow amount is to be adjusted annually in accordance with the
- 8 -
tax bill from the Borough of Lincoln Park. The Landlord is authorized to hold
the Tenant's proportionate share of the real estate taxes plus one (1) month as
tax escrow prior to the date each quarterly tax payment is due to the Borough of
Lincoln Park.
The Landlord shall have the sole and unrestricted right, but not the
obligation, to contest the validity or amount of any imposition. If the Landlord
shall institute any such contest, it shall have the sole and unrestricted right
to settle any negotiations, proceeding or action upon any terms the Landlord may
in its sole discretion determine. The Tenant shall not have the right to
institute any such proceedings, it being understood that the commencement,
settlement and conduct thereof shall be in the sole discretion of the Landlord.
The Tenant shall pay its proportionate share of such imposition when due. Upon
final determination, the Tenant shall be entitled to its proportionate share of
the net amount (after deduction for experts, attorneys, witnesses and all other
fees and expenses) of any refund of such impositions to the extent the same may
have been paid by the Tenant. Tenant shall have the right to contest a real
estate tax increase only with the written consent of the Landlord.
14. Paragraph 14 is amended and supplemented by adding the following:
Anything in the Paragraph 14(a) to the contrary notwithstanding, it is agreed
that all costs of compliance which are caused by or related to TENANT's manner
of use of the Demised Premises shall be the sole responsibility of the TENANT.
Where compliance is required of the Building, generally, and not as a specific
result of TENANT's manner of use, then the TENANT shall only pay its
proportionate share of such compliance, which cost of compliance shall be
amortized over the useful life of each such improvement as reasonably determined
by the parties.
15. Paragraph 15 is amended and supplemented by adding the following:
(d) The Landlord shall:
(i) maintain the public areas, roof and exterior walls in
good condition;
(ii) make all structural repairs unless these repairs are made
necessary by the act or neglect of the Tenant or the Tenant's
employees;
The Landlord shall have no liability to the Tenant, nor shall there be
any allowance nor abatement whatsoever to the Tenant for diminution in the
rental value of the Demised Premises, nor shall the Tenant's covenants and
obligations under the Lease be reduced, abated or affected in any manner
whatsoever, by reason of any inconvenience, annoyance, disturbance,
interruption, loss of business or other damage or injury arising from either the
Landlord's doing or failing to do any repairs, maintenance, alterations,
additions, improvements, replacements, changes or work of any nature or type
whatsoever to any portion of the Building, Land, Demised Premises or their
fixtures, appurtenances or equipment.
16. Paragraph 16 is amended and supplemented by adding the following:
"Alterations" means alterations, additions, substitutions,
installations, changes, and improvements, but excludes minor decorations.
The Tenant shall not make Alterations without the Landlord's advance
written consent. Any alterations made without the Landlord's written consent
shall be removed by the Tenant on demand.
All alterations made with the Landlord's written consent shall become
the property of the Landlord when completed and paid for by the Tenant. They
shall remain as part of the Premises at the end of the Term. The Landlord may
demand that the Tenant remove any Alterations at the end of the Term. The Tenant
shall promptly pay for all costs of any permitted Alterations. The Tenant shall
not allow any mechanic's lien or other claim to be filed against the Building.
If any lien or claim is filed against the Building, the Tenant shall have it
promptly removed.
- 9 -
Prior to performing any work permitted hereunder, the Tenant shall
first submit plans and specifications to the Landlord for its approval. No work
may be commenced and no permits may be applied for unless and until the Landlord
has issued its written approval for all work which Xxxxxx proposes to perform.
Upon receiving Landlord's written approval, then Tenant shall obtain, at the
Tenant's cost and expense, all permits, approvals, certificates and the like
required by any governmental or quasi-governmental bodies and, upon completion,
certificate of final approval thereof and shall deliver promptly duplicates of
all such permits, approvals, certificates and the like to the Landlord. In
addition, before commencing any work on the Demised Premises, the Tenant and its
contractors and subcontractors shall provide the Landlord with acceptable
insurance certificates insuring the Landlord against all risks and liabilities
relating to the Tenant's construction on the Demised Premises. The Tenant agrees
to carry, and will cause its contractors and subcontractors to carry such
builder's risk, xxxxxxx'x compensation, general liability, personal and property
damage insurance as the Landlord may require. Any change in or additional
plumbing or electrical wiring for installations made by the Tenant in the
Demised Premises shall be made at the Tenant's own cost and expense by a
licensed plumber or electrical contractor as appropriate, with proper permits
for same. Upon completion of such work, the Tenant shall obtain and deliver to
the Landlord certificates of inspection and approval from the authorities having
jurisdiction.
The Tenant shall not and is specifically prohibited from doing any of
the following:
(i) installing or hanging or in any way attaching any equipment,
machinery, appurtenances, or the like on any structural element of the
Building, on the exterior of the Building, on the roof, or anywhere on
the Land,
(ii) cutting any holes into any structural elements of the Building, or
into the exterior of the Building or into the roof,
(iii) making any structural modifications to the Demised Premises or to
the Building,
(iv) making any modifications or alterations to the Building's systems
as they existed at the Commencement Date.
19. Paragraph 19 is amended and supplemented by adding the following:
The Tenant shall notify the Landlord at once of any fire or other
casualty, in the Premises. The Tenant is not required to pay Rent when the
Rental Space is unusable. If the Tenant uses part of the Premises, the Tenant
must pay Rent pro-rata for the usable part.
If the Rental Space is partially damaged by fire or other casualty, the
Landlord shall repair it as soon as possible. This includes the damage to the
Rental Space and fixtures installed by the Landlord. The Landlord need not
repair or replace anything installed by the Tenant.
If the fire or other casualty is caused by the negligent act or neglect
of the Tenant or the Tenant's employees, agents or invitees, the Tenant shall
pay for all repairs and all other damages.
In case of any damage to the Building by fire or other casualty
occurring during the Term or previous thereto, which renders the Demised
Premises totally untenantable and that the same cannot be repaired within six
(6) months from the happening of such damage, then the Term of this Lease shall
terminate from the date of the surrender of the Demised Premises by the Tenant
to the Landlord. The Tenant shall pay rent only to the time of such surrender.
Upon such termination, the Landlord, discharged from all of the terms,
conditions and provisions of this Lease and any liability thereunder, may
re-enter and repossess the Demised Premises without any liability whatsoever to
any party. If the Demised Premises shall be so damaged, but the damage is
repairable within six (6) months from the happening of such damage, the Landlord
agrees that if required to do so by the other terms and conditions of this Lease
to repair the same with due diligence and reasonable speed and dispatch subject
to the terms and conditions of this Lease. In such event, this Lease shall
remain in full force and effect during the period of the Landlord's restoration
and the rent shall xxxxx during the period of restoration. The payment of rent
- 10 -
shall resume upon such restoration and delivery by the Landlord to the Tenant.
Landlord need not repair or replace anything installed by the Tenant.
If the Demised Premises shall be partially damaged then, if required to
do so by the other terms and conditions of this Lease, the Landlord agrees to
repair the same with due diligence and reasonable speed and dispatch subject to
the terms and conditions of this Lease. In such event, this Lease shall remain
in full force and effect during the period of the Landlord's restoration. The
rent accrued and accruing shall not xxxxx, except for that portion of the
Demised Premises that has been rendered untenantable and as to only that portion
the rent shall xxxxx pro rata. The payment of rent for such portion shall resume
upon its restoration and delivery by the Landlord to the Tenant.
In all events, the Landlord shall receive the insurance proceeds and
the Tenant shall assign and deliver to the Landlord all insurance proceeds or
rights thereto arising from the damage to or destruction of the Demised
Premises. Provided the damage shall be covered by insurance as aforesaid, and
provided the insurance applicable shall be in an amount equal to the full
replacement value of the property damaged, the Landlord shall pay from these
proceeds the cost of repairing such damage as may have occurred, whether total
or partial. It is the intent of the parties hereto that the Landlord shall be
responsible for the repair of all damage to the Demised Premises only to the
extent that the cost of such repairs is covered by insurance and only after the
Landlord receives the appropriate insurance proceeds and not otherwise. In the
event the damage shall not be covered by insurance or if the insurance proceeds
are insufficient to cover the full cost of repairing the damage, including both
temporary and permanent repairs, and the damage has been caused by the negligent
act of Tenant, its employees, agents or invitees, then the cost of repairing,
replacing or restoring the Demised Premises shall be payable by the Tenant to
the Landlord but only to the extent that the insurance proceeds are insufficient
to cover the cost of repairing the damage. It is further understood that the
responsibility of the Landlord to repair, replace or restore damaged property
covered by insurance shall not extend to items of the Tenant's personal property
maintained on the Demised Premises nor to any removable improvements made by the
Tenant. Such items shall be restored, replaced or repaired by the Tenant at its
option. All insurance proceeds as are applicable to the repair, replacement or
restoration of damaged property which is the responsibility of the Landlord,
shall be paid to the Landlord or to the mortgagee designated by the Landlord
prior to the Landlord's commencement of permanent repairs. The Tenant hereby
consents to and assigns to the Landlord all its right, title and interest in
such insurance proceeds. In all events, the Tenant is responsible to pay the
amount of any deductions which the insurance company may make for any reason
from the payment of the claim. Anything in the foregoing to the contrary
notwithstanding, Xxxxxx does not assign any insurance proceeds to Landlord which
have been paid to Tenant for the repair or replacement of Tenant's property.
20. Paragraph 20 is amended and supplemented by adding the following:
If the Land, Building or Demised Premises or any portion thereof are
taken under Eminent Domain or condemnation proceedings as defined herein and the
Demised Premises cannot be reasonably restored to a complete architectural unit,
then this Lease shall terminate, and the Term hereof shall end as of such date
as the Landlord shall fix by notice in writing to the Tenant. The Tenant shall
have no claim against the Landlord for the value of any unexpired Term.
In the event that the Demised Premises can be so restored and the
amount of any separate award received by the Landlord for such restoration is
sufficient to pay for such work, then the Landlord shall with reasonable
dispatch restore and make a complete architectural unit of Demised Premises and
shall pay the cost of such work. In such event, this Lease shall continue in
full force and effect except that the rent shall be abated proportionately as
appropriate for the portion of the Demised Premises taken in condemnation. If,
however, the amount of any separate award received by the Landlord is
insufficient to pay for such restoration, then this Lease, at the option of the
Landlord, shall terminate and the Term hereof shall end as of such date as the
Landlord shall fix by notice in writing to the Tenant. In such event, the Tenant
shall have the option of paying for any deficiency in such separate award. If
the Tenant chooses to pay for such deficiency, then the Landlord shall with
reasonable dispatch restore and make a complete architectural unit of the
Demised Premises and shall pay the cost of such work, but in no event shall the
Landlord be required to expend more than a sum equal to the amount of a separate
award received by the Landlord for such restoration plus Tenant's deficiency
payment. Under such circumstances, any deficiency in such separate award will be
- 11 -
paid by the Tenant and this Lease shall continue in full force and effect except
that the rent shall be abated proportionately as appropriate for the portion of
the Demised Premises so taken in condemnation. This Lease, at the option of
Landlord or Tenant, shall terminate in the event the Building cannot be
restored.
The award, proceeds or settlement on all or any part of the Demised
Premises, in any such condemnation proceeding shall be payable to the Landlord.
No part of any award made to the Landlord shall belong to the Tenant, nor shall
the Tenant make any claim against the governmental or other authority for the
value of its leasehold. All rights of the Tenant, if any, to damages are hereby
assigned to the Landlord and the Tenant hereby assigns to the Landlord all of
its interest and rights in and to such awards, proceeds or settlements. The
Tenant agrees to execute and deliver to the Landlord any instruments or
documents as may be required or deemed necessary to facilitate or expedite any
aforesaid proceedings, or to obtain such awards, proceeds or settlements for the
Landlord, or to effectuate a proper transfer of title to such governmental or
other authority, agency, body or public utility seeking to take or acquire the
said Land, Building or Demised Premises or any part thereof. In the event the
Tenant fails to so execute the aforesaid documents in a timely manner, the
Tenant hereby constitutes and appoints the Landlord as its attorney in fact and
authorizes the Landlord to execute the aforesaid documents on its behalf without
any further authorization from the Tenant.
Provided the Landlord's condemnation proceedings are not thereby
interfered with or delayed, the Tenant may, by separate application and at its
own cost and expense, enter into condemnation proceedings in its own right for
the purpose of asserting any claim it may have with respect to such improvements
as it may have installed in the Demised Premises which improvements would not
otherwise be the property of the Landlord upon the termination of this Lease and
for which it would be entitled to compensation under existing law, provided,
however, that such award shall be made in addition to, and shall not result in a
reduction of, the award payable to the Landlord. The Tenant may not participate
in nor interfere with nor delay the condemnation proceedings nor any settlement
thereof of the Landlord nor may the Tenant make any claim for the value of the
portion of this Lease then remaining. Such separate awards as may result from
the Tenant's separate claims shall be payable to the Tenant.
If the taking of the whole or any part of Demised Premises, as would
render the use of the premises unsuitable for the Tenant as set forth above,
shall be for a period of six (6) months or less, the rent payable by the Tenant
to the Landlord shall xxxxx from the date possession of the premises is
surrendered to the condemning authority and recommence when possession is
restored to the Tenant. If such taking shall extend beyond six (6) months, then
this Lease may be terminated at the option of either party. The party exercising
such option must do so within thirty (30) days of the date possession of the
premises is surrendered to the condemning authority. If any party does not so
terminate within the said thirty (30) days, it loses its right to do so. In the
event of such temporary taking, neither the Term of this Lease nor the
Expiration Date hereunder shall be affected.
If there is a termination of this Lease pursuant to this article, then
the Tenant covenants and agrees to immediately vacate the Demised Premises,
remove all of its personal property and other items therefrom, and deliver
peaceable possession thereof to the Landlord or to such party designated by the
Landlord. If the Tenant fails to remove all of its personal property and other
items from the Demised Premises within fourteen (14) days of the finalization of
the condemnation proceedings the Landlord, as it sees fit, may remove and
dispose of any and all property or other items found in or on the Demised
Premises, Building or Land at the sole cost and expense of the Tenant and the
Tenant shall indemnify and hold the Landlord harmless from and against any and
all claims from any and all parties whatsoever in connection with such removal
or disposal. Failure by the Tenant to comply with any provisions in this article
shall subject Tenant to such costs, expenses, damages, losses and the like as
the Landlord may incur by reason of the Tenant's breach hereof including, but
not limited to, attorney's fees (whether for litigation or otherwise) and the
like.
21. Paragraph 21 is amended and supplemented by adding the following:
Landlord shall utilize its best efforts to obtain from each mortgagee a
non-disturbance and attornment agreement which would provide that so long as the
Tenant is not in default each such mortgagee will recognize this Lease provided
that Tenant attorns to such mortgagee.
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31. XXXXXXXX'S WORK: Xxxxxx has inspected the Premises and agrees to accept the
Premises in an "as is" condition. Tenant shall perform all work required in
order to obtain a Certificate of Occupancy at its sole cost and expense, obtain
any municipal permits that may be required, and comply with all municipal
construction codes.
32. FIRE INSURANCE: In addition to the Rent, the Tenant shall, as
Additional Rent, pay its proportionate share of the premiums comprehensive fire
and extended coverage insurance covering the Building and the improvements upon
the Land and the Demised Premises with full extended coverage, and such other
insurance (including flood insurance and war risk insurance) as may from time to
time by available and reasonably required by the Landlord or its mortgagees or
any governmental authority, all for the benefit of the Landlord and said
mortgagees, and in an amount equal to one hundred percent (100%) of the full
replacement value of all of the buildings and improvements upon the Land without
deduction for depreciation including, but not limited to, such added replacement
costs as may result by reason of any change or changes in applicable ordinances
and building codes. The Landlord reserves the right to adjust the amount of
insurance coverage from time to time as may be required or desirable to provide
adequate coverage consistent with then existing economic conditions. Fire and
extended coverage policies insuring the Building shall not name the Tenant as an
insured party.
The Tenant shall pay its portion of such insurance premiums in twelve
(12) equal monthly installments to the Landlord on the first day of every month,
in advance.
If due to the Tenant's use of the Premises the Landlord cannot obtain
and maintain fire insurance on the Building in an amount and form reasonably
acceptable to the Landlord, the Landlord may cancel this Lease on thirty (30)
days notice to the Tenant. If due to the Tenant's use of the Premises the fire
insurance rate is increased, the Tenant shall pay the increase in the premium to
the Landlord on demand.
33. COMPLIANCE WITH LAW AND INSURANCE REGULATIONS: During Terms of this
Lease, the Tenant shall, at its sole cost and expense, promptly observe and
comply with the legal requirements and with all federal, state, county and
municipal laws, ordinances, statutes, rules, orders, requirements, regulations,
rulings, and the like of any and all governmental authorities, present and/or
future, having jurisdiction over the Demised Premises, or over the Tenant's or
its permittees' use or occupancy of the Demised Premises, or over the business
at any time transacted thereon by the Tenant or its permittees, or by anyone
using or occupying the premises by, through or under the Tenant. It is expressly
understood that the Tenant is obligated to make or reimburse Landlord for all
changes, structural and nonstructual, foreseen and unforeseen, ordinary and
extraordinary, in order to comply with such governmental regulations, whether or
not arising out of the Tenant's or its permittees' use or occupancy of the
Demised Premises. The Tenant shall also, at the Tenant's cost and expense,
comply with reasonable rules promulgated by the Landlord in writing, for the
correction, prevention and abatement of nuisances, violations or other
grievances, in, upon or connected with the Demised Premises, Building or Land
during said Term. The Tenant shall also, at its sole cost and expense, promptly
observe and comply with all regulations of the Fire Department and any insurance
underwriting board, insurance inspection bureau and other body exercising
similar functions, and with all insurance companies writing policies covering
the Demised Premises, Building and/or Land or any part thereof, and with any
other body exercising similar functions, including, but not limited to, the
installation of fire extinguishes and other safety equipment.
Anything in the foregoing to the contrary notwithstanding, it is agreed
that all costs of compliance which are caused by or related to TENANT's manner
of use of the Demised Premises shall be the sole responsibility of the TENANT.
Where compliance is required of the Building, generally, and not as a specific
result of TENANT's manner of use, then the TENANT shall only pay its
proportionate share of such compliance, which cost of compliance shall be
amortized over the useful life of each such improvement as reasonably determined
by the parties.
The Tenant and/or its permittees and/or anyone using or occupying the
premises by, through or under the Tenant shall not refine, produce, store,
handle, use, transfer, process, transport, dispose of or the like any hazardous
or toxic substances or wastes as same may be described or defined in any
federal, state or local law, ordinance or statute at, on, in or about the
Demised Premises, Building or Land. Should the Tenant or its permittees or
anyone using or occupying the premises by, through or under the Tenant cause or
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permit any intentional or unintentional action or omission resulting in the
releasing, spilling, leaking, pumping, pouring, emitting, emptying, dumping, or
the like of any such hazardous wastes, or substances, the Tenant shall promptly
clean up such wastes or substances and repair any related damage in accordance
with the provisions of all applicable laws including, but not limited to, the
New Jersey Spill Compensation and Control Act and pay and discharge any and all
fines, penalties, costs, interest charges, expenses and like which may be impose
as a result of such actions or omissions. In the event that there shall be filed
a lien against the Demised Premises, then the Tenant shall immediately either
(a) pay the claim and remove the lien from the Demised Premises, or (b) furnish
a bond, cash deposit or other security satisfactory to the Landlord, the
Landlord's title insurance company, and mortgagee, if any, in an amount
sufficient to discharge the claim out of which the lien arises.
Without limiting anything contained in this Lease, the Tenant covenants
and agrees that it shall fully comply with all federal, state, county and
municipal environmental laws including, but not limited to, the New Jersey
Industrial Site Recovery Act (ISRA), the New Jersey Spill Compensation and
Control Act, and all acts, laws, rules, regulations, directives, modifications,
changes and the like presently or hereafter promulgated by the state and/or the
federal government and/or their various divisions and agencies and/or any other
authority having jurisdiction. In addition, prior to the Expiration Date or
earlier termination of this Lease, the Tenant agrees to supply to the Landlord
appropriate Evidence of Compliance with the aforesaid laws, rules and
regulations. "Evidence of Compliance", as used herein, shall be deemed to
include a letter of non-applicability regarding ISRA or a letter of negative
declaration issued by the New Jersey Department of Environmental Protection and
Energy. Without limitation of the foregoing, the Tenant's obligations shall
include the proper filing of all forms and the performance to the State's and
the Landlord's satisfaction of all soil, ground, water and surface water
sampling and tests required by the State of New Jersey. The Tenant shall
immediately provide the Landlord with copies of all filings, correspondence,
reports, notices, orders, findings, declaration and other materials pertinent to
the Tenant's compliance. The Tenant's SIC number is . The Tenant shall be
obligated to continue to make monthly payments to the Landlord in the sum
equivalent to the monthly Fixed Rent for the last month of the Term together
with all Additional Rent without occupancy of the premises until the delivery of
the appropriate Evidence of Compliance. The foregoing notwithstanding, if Tenant
is eligible to receive a Letter of Nonapplicability and has filed the necessary
affidavit, filing fee an other document pursuant to NJDEP regulations not less
than sixty (60) days prior to the expiration of the Term, then the preceding
sentence concerning rent payments shall not be applicable. If, however, Xxxxxx's
application for a Letter of Nonapplicability is rejected by NJDEP and some other
form of compliance would be required, then the obligations provided above shall
be immediately reinstated.
In the event appropriate Evidence of Compliance is not delivered to the
Landlord prior to the surrender of the Demised Premises by the Tenant, it is
agreed and understood that the Tenant shall furnish for the benefit of the
Landlord a bond or other security satisfactory to the Landlord in an amount
equal to two hundred percent (200%) of the total cost of effecting such
compliance. Said bond or other security shall remain effective until the time as
appropriate Evidence of Compliance has been delivered to the Landlord. The
Landlord may draw upon said bond or other security if such Evidence of
Compliance is not delivered to the Landlord within six (6) months of the
Expiration Date or earlier termination of this Lease. The Tenant shall be solely
liable for and shall pay to the Landlord as Additional Rent, any and all costs,
fees, expenses and the like incurred by the Landlord in enforcing or satisfying
the Tenant's obligations under this article and this Lease, including, but not
limited to, engineering, sampling, inspection, cleanup, removal, damages, fines,
attorney's fees (whether for litigation or otherwise) and the like.
If, as of the Effective Date of this Lease, ISRA or any other
environmental statute, law or ordinance, does not apply to the Tenant's business
or operations, it may not engage in any future activity on the Demised Premises
which would subject it to the regulation of ISRA or any other environmental
statute, law or ordinance. The Tenant may not increase or expand in any new or
additional operations which are subject to the regulations of ISRA or any other
environmental statute, law, or ordinance of any operations which may be
considered hazardous, above which it may be engaging in as of the Effective Date
of this Lease.
34. DEFAULT, ADDITIONAL REMEDIES: In addition to the matters set forth
elsewhere in this Lease, during the Term of this Lease and any renewals or
extensions thereof, events of default shall include, but shall not be limited
to, the following, whether by act, omission or by operation of law:
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(i) any voluntary or involuntary assignment, transfer or sale of
the Tenant's assets for the benefit of creditors, or
(ii) an adjudication that the Tenant is bankrupt or insolvent, or
(iii) the filing of any voluntary or involuntary petition in bankruptcy
by or against the Tenant or instituting a proceeding under the Revised
Bankruptcy Act, or
(iv) the Tenant's dissolution, liquidation, break up, transfer, sale,
or decrease of fifty percent (50%) or more in the Tenant's assets or
net worth, or
(v) if the Tenant is a partnership or consists of more than one
person and any partner of the partnership or any other person or entity
making up the Tenant in this Lease is or becomes bankrupt or insolvent,
or makes an assignment for the benefit of creditors, or
(vi) an appointment of a receiver for the assets of the Tenant for
insolvency or alleged insolvency of having the authority to take
possession of the Demised Premises, or
(vii) an attachment of or levy on or writ of execution against the
Tenant's leasehold interest by any third party, or
(viii) failure by the Tenant to pay, at the time the same are due and
payable, any installment of rent or other sum due under this Lease to
be paid by the Tenant, or
(ix) any subletting or assignment of this Lease by the Tenant which
not approved by the Landlord in accordance with the terms of this
Lease or otherwise not permitted under this Lease, or (x) the Tenant's
loss of authorization to do business in New Jersey, or
(xi) the Tenant's abandoning, deserting or vacating the Demised
Premises, or
(xii) any execution or attachment or the like issued against the
Tenant or any of the Tenant's property whereupon the Demised Premises
shall be taken or occupied by someone other than the Tenant, or
(xiii) failure by the Tenant to perform or observe any other
requirement of this Lease which is its obligation to perform or
observe.
The Landlord shall be entitled to the following additional remedies in
the Event of Default by or Eviction of the Tenant:
(i) In the event of default, the Landlord may, at any time thereafter,
terminate this Lease, upon giving notice of such termination to the
Tenant or to any one of any trustees, receivers, assignees or other
persons in charge of or acting as a custodian or owner of the assets
or property of the Tenant. This Lease shall terminate on the date
fixed in such notice. Notwithstanding any such termination, the
Landlord may still enforce its rights pursuant to this Lease.
(ii) No payment by the Tenant or receipt or acceptance by the Landlord
of a lesser amount than the full amount of any payment shall be deemed
to be other than a payment on account, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment
be deemed an accord and satisfaction, and the Landlord may accept such
check or payment without prejudice to the Landlord's right to recover
the balance or to pursue any other remedy provided in this Lease or at
law or equity.
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(iii) If the Tenant fails to pay any installment of rent or any other
monetary obligation for more than five (5) days after the same becomes
due and payable, the Tenant shall pay to the Landlord upon demand, as
Additional Rent, a late fee of five percent (5%) of the outstanding
installment or payment due. In addition, rent or any other monetary
obligation, including but not limited to late fees, not paid when due
shall bear interest from the date due until paid at the lesser of one
percent (1%) per month or the maximum rate permitted by law to charge.
The Tenant, on behalf of itself and any and all persons claiming
through or under the Tenant, does hereby waive and surrender all right and
privilege which it, they or any of them have or might have, under or by reason
of any present or future law, to redeem the Demised Premises or to have a
continuance of this Lease after being dispossessed, removed or ejected from the
Demised Premises by process of law or under the provisions of this Lease or
after the Expiration Date or earlier termination of this Lease.
The specified remedies to which the Landlord may resort under the
provisions of this Lease are cumulative and are not intended to be exclusive of
any other remedies or means of redress to which the Landlord may be lawfully
entitled in case of any breach or threatened breach by the Tenant of any
provision of this Lease. If the Landlord pursues any remedy granted by the
provisions of this Lease or at law or equity, it shall not be construed as a
waiver or relinquishment of any other remedy afforded thereby. For the purposes
of any suit brought or based hereon, this Lease shall be construed to be a
divisible contract, and successive actions may be maintained on this Lease on
successive periodic sums which mature hereunder. For the purposes of any suit
brought or based herein, this Lease shall be construed to be a divisible
contract and successive actions may be maintained on this Lease on successive
periodic sums which mature hereunder.
No waiver by the Landlord of any term, covenant, condition, provision,
agreement or the like of this Lease shall be deemed to have been made unless
expressed in writing and signed by the Landlord. In addition, any assumption by
the Landlord of any payment to be made by or any duty to be performed by the
Tenant shall not obligate the Landlord, nor relieve the Tenant from the
responsibility, to make any such payment or to perform any such duty in the
future. The consent or approval of the Landlord to or of any act by the Tenant
shall not be deemed to waive or render unnecessary consent to or approval of any
subsequent similar act. Any inaction by the Landlord shall not be deemed to be
an approval of any act of the Tenant.
The Landlord reserves a right of re-entry which allows the Landlord to
end this Lease and re-enter the Premises if the Tenant violates any agreement in
this Lease. This is done by eviction. Eviction is a court procedure to remove a
Tenant. Eviction is started by filing a complaint in court and the service of a
summons on a Tenant to appear in court. The Landlord may also evict the Tenant
for any one of the other grounds of good cause provided by law. After a court
order of eviction and compliance with the warrant of removal, the Landlord may
re-enter and take back possession of the Premises. If the cause for eviction is
non-payment of Rent, notice does not have to be given to the Tenant before the
Landlord files a complaint. If there is any other cause to evict, the Landlord
must give notice to the Tenant the notice required by law before the Landlord
files a complaint for eviction.
The Tenant is liable for all damages caused by the Tenant's violation
of any agreement in this Lease. This includes reasonable attorney's fees and
costs.
After eviction the Tenant shall pay the Rent for the Term or until the
Landlord re-rents the Premises, if sooner. If the Landlord re-enters the
Premises for less than the Tenant's Rent, the Tenant shall pay the difference
until the end of the Term. The Tenant shall not be entitled to any excess
resulting from the re-renting. The Tenant shall also pay (a) all reasonable
expenses incurred by the Landlord in preparing the Premises for re-renting and
(b) commissions paid to a broker for finding a new tenant.
35. REQUEST BY MORTGAGEE OR PROSPECTIVE MORTGAGEE FOR CHANGE OF LANGUAGE:
Provided that the same do not increase any of the Tenant's duties, obligations
or liabilities, and further provided that the same do not limit the Tenant's
rights with respect to the Demised Premises and the common areas, then in the
event that a mortgagee or prospective mortgagee of the Demised Premises shall
request a change in the language or provisions of this Lease or shall require a
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separate agreement of any kind, the Tenant shall execute such consents without
delay.
36. SEVERABILITY: If any term or provision of this Lease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest extent
permitted by law. If any provision of this Lease is capable of two
constructions, one of which would render the provision invalid and the other of
which would render the provision valid, the provision shall be the meaning which
renders it valid.
37. CONSTRUCTION: It is agreed and understood that this Lease, its terms
and conditions and any interpretation hereof shall be construed (i) in
accordance with the laws of the State of New Jersey and (ii) as a work product
jointly drafted by counsel for the parties.
38. NO REPRESENTATIONS BY LANDLORD: The Landlord and the Landlord's agents
and representatives have made no representations or promises, by implication or
otherwise, with respect to the said Demised Premises, Building, Land,
neighboring surroundings, rents, leases, expenses of operation, or any other
matter or thing affecting or related to the Demised Premises or the leasing of
same except as herein expressly set forth. The Tenant has inspected the Land,
Building, and Demised Premises and is thoroughly acquainted with their condition
and agrees to take the same "as is" except as expressly provided for in this
Lease. The Tenant agrees that in taking this Lease, it is governed by its own
inspection of the premises and plans, and by its own judgement of their
desirability for its purpose, and it has not been governed or influenced by any
representatives of the Landlord or the Broker, if any, as to the condition,
suitability and/or character of the Demised Premises including, but not limited
to, the Building, site, location, and all other matters.
39. WAIVER OF TRIAL BY JURY: The Landlord and Xxxxxx shall and hereby do
waive trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other party on any matters whatsoever arising
out of or in any way connected with this Lease, the relationship of the Landlord
and the Tenant, the Tenant's use or occupancy of said premises, any claim or
injury or damage, and any emergency statutory or any other statutory remedy. It
is further mutually agreed that in the event the Landlord commences any summary
proceeding for possession of the Demised Premises, the Tenant will not interpose
any counterclaim of whatever nature or description in any such proceedings. The
Tenant may only file its counterclaim, if any, in a separate and distinct action
or proceedings.
40. MEMORANDUM OF LEASE: Neither this Lease nor a memorandum of any of its
contents shall be recorded by the Tenant without the Landlord's prior written
consent, which consent shall or shall not be given in the sole discretion of the
Landlord. Should the Tenant record this Lease or a memorandum of the contents
hereof without the Landlord's prior written consent, the Landlord may, upon
written notice to the Tenant, terminate this Lease as of the date of such
notice.
41. BROKER: The Tenant represents that it has dealt with no realtors,
brokers, salespersons, agents or the like in connection with the negotiation of
this Lease and the renting of the Demised Premises hereunder, other than SBWE,
Inc. (the "named Broker"), and that no person, firm, corporation or other entity
is or shall be entitled to the payment of any fee, commission, compensation or
the like or other form of remuneration in connection with this Lease in any
manner. The Tenant also represents that it has no prior agreement for any
payments of commissions or the like to any such person for the Demised Premises.
Should any claims be made for brokerage commissions, other than those payable to
the above named Broker, through or on account of dealings, conversations,
statements, negotiations or the like of the Tenant or its agents or
representatives, the Tenant shall indemnify the Landlord against any and all
losses, costs, claims, damages, liability, expenses or the like including, but
not limited to, costs of litigation, attorney's fees (whether for litigation or
otherwise) and the like, in connection therewith. The Landlord agrees to pay a
real estate commission to the named Broker in accordance with a separate written
agreement between the Landlord and the named Broker, all of the terms of which
are incorporated in this Lease. This obligation to pay a real estate commission
to the named Broker, including but not limited to installment payments, or
- 17 -
commissions for lease renewals, extension or the like, if any, shall run with
this Lease and the right to receive the rent. The written agreement between the
Landlord and the named Broker, and the obligation to pay the real estate
commission referred to herein, shall be binding upon any person who, or entity
which, becomes the Landlord under this Lease, by any means whatsoever.
42. INDEMNIFICATION: The Landlord shall not be liable for injury or damage
to any person or property unless it is due to the Landlord's act or neglect. The
Tenant is liable for any loss, injury or damage to any person or property caused
by the act or neglect of the Tenant or the Tenant's employees. The Tenant shall
defend the Landlord and reimburse the Landlord for all liability and costs
resulting from any injury or damage due to the act or neglect of the Tenant or
the Tenant's employees.
The Tenant further agrees to indemnify and save the Landlord harmless
from and against any and all claims by or on behalf of any person, firm,
corporation, entity, or the like and any and all other parties, arising from the
conduct about or management of or condition of the Demised Premises, or from the
Tenant's or its permittees' use or occupancy of or operations in the Demised
Premises or that of anyone using or occupying the premises by, through or under
the Tenant, or from any accident in or on the Demised Premises. The Tenant will
further indemnify and save the Landlord harmless from and against any and all
claims arising from any breach or default on the part of the Tenant or any of
its permittees or anyone using or occupying the premises by, through or under
the Tenant in the performance of any covenant or agreement to be performed
pursuant to the provisions of this Lease, or arising from any negligence or act
or failure to act of the Tenant or any of its permittees or anyone using or
occupying the premises by, through or under the Tenant, and from and against all
costs, counsel fees, expenses, liabilities and the like incurred as a result of
any such claim, action or proceeding brought thereon. In case any action or
proceeding is brought against the Landlord by reason of any such claim, the
Tenant, upon notice from the Landlord and at the Tenant's sole cost and expense,
covenants to immediately resist or defend such action or proceeding by counsel
reasonably satisfactory to the Landlord or to pay for the Landlord's legal fees
for such defense at the Landlord's option. Anything is this Lease to the
contrary notwithstanding, the Tenant hereby waives, for itself and all of its
insurance carriers, any and all rights of subrogation against the Landlord
and/or its permittees for any loss or damage, regardless of cause or origin, and
the Tenant agrees to obtain from its insurance carrier or carriers a waiver of
its and/or their right to subrogation against the Landlord. A copy of this
waiver shall be delivered to the Landlord along with the evidence of insurance
described in this Lease. The inability to obtain a written waiver of subrogation
from any insurance carrier shall in no way limit the enforceability of this
paragraph against any such insurance carrier. Nothing in this Article is to be
construed to limit the coverage for the protection of the Landlord under the
Tenant's liability policy as provided in this Lease.
Neither the Landlord nor its permittees shall be liable for any damage
or injury to property or person caused by or resulting from (i) theft,
electricity, gas, water, sewer, any utility service, ice or snow (except
resulting from Landlord's negligence in performing snow plowing), any weather
condition, or any leak, flow or obstruction from or into any part of the Demised
Premises, Building or Land; (ii) from any action or non-action of itself or the
Tenant or their respective permittees or any other person or party; or (iii)
from any damage or injury resulting or arising from any other cause or happening
whatsoever. The within covenant by the Tenant is an express inducement to the
Landlord to enter into this Lease.
Anything hereinabove contained to the contrary notwithstanding, the
Tenant in all events shall assume all risk of damage or loss to its property,
equipment, machines, inventory, fixtures and the like occurring in or about the
Demised Premises, Building or Land, whatever the case of such damage or loss.
The Tenant waives all right of recovery against the Landlord and its permittees
for any loss, damage, injury or the like of any nature whatsoever including work
interruption. The Tenant shall obtain from its insurance carrier waivers of
recovery and insurance rights under its policies which shall be included within
the terms of the policies and will furnish evidence of such waivers to the
Landlord upon request.
The Tenant agrees to save the Landlord harmless from and against any
and all claims, liability, responsibility or the like of any nature whatsoever
with regard to the Tenant's or its permittees' non-compliance with any or all
environmental acts, laws, rules, regulations or the like or that of anyone using
or occupying the premises by, through or under the Tenant or with regard to any
conditions caused by the Tenant or its permittees or anyone using or occupying
- 18 -
the premises by, through or under the Tenant which may be in violation of any of
the provisions of any and all environmental acts, laws, rules, regulations or
the like.
The Tenant shall look solely to the Landlord's interest in the Real
Estate for the enforcement of any judgement or decree requiring the payment of
money to the Tenant by reason of any default or breach by the Landlord under
this Lease or for any other reason, and to no other property or asset of the
Landlord, its partners, owners, principals, officers, directors or the like. In
no event shall there be any personal liability on the part of the Landlord, its
partners, owners, principals, officers, directors or the like beyond its
interest in the Building and Land, and no other asset of the Landlord, its
partners, owners, principals, officers, directors or the like shall be subject
to levy, execution, attachment or any other legal process.
43. HOLDOVER: In the event that the Tenant shall remain in the Demised
Premises after the expiration of the Term of this Lease or after the termination
of this Lease, without having executed a new written lease with the Landlord nor
an extension to this Lease, such holding over shall not constitute a renewal or
extension of this Lease. The Landlord may, at its option, elect to treat the
Tenant as one who has not removed at the end of its term and as one who is
occupying the premises illegally, and thereupon be entitled to all the remedies
against the Tenant provided at law or equity in that situation. Or the Landlord
may, at its option, elect to construe such holding over as tenancy from
month-to-month, subject to all terms and conditions of this Lease, except as to
duration thereof and rent payable thereunder, and any other term or condition
which the Landlord, in its sole discretion, chooses to change, delete or add.
The Landlord shall give the Tenant thirty (30) days written notice of any
changes, deletions or additions to this Lease. In the event that the Landlord
chooses to treat the Tenant as having a holding over or month-to-month tenancy,
the Tenant shall be liable for all amounts provided for in N.J.S.A. 2A:42-6,
without prior demand or notice being required.
44. DUTY TO PAY RENT: The Tenant may not withhold all or any portion of,
nor may the Tenant offset nor deduct any amount from the Rent and Additional
Rent specified herein for any reason whatsoever except as provided in Paragraph
19 herein. This Lease and the obligation of the Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on the part of the
Tenant to be performed, shall in no way be affected, impaired or excused, in
whole or in part, for any reason whatsoever. The Tenant's sole remedy is to seek
an enforcement of the provisions of this Lease under operation of law by an
action or proceeding for specific performance, injunction or declaratory
judgement.
Rent, Additional Rent and any other monetary obligation of the Tenant
shall be paid in lawful money of the United States to the Landlord at its
office, or to the Landlord's agent or such other place as the Landlord shall
designate by notice to the Tenant. The Tenant shall pay all sums due promptly
without notice or demand therefor, and without any abatement, deduction, set off
or the like for any reason whatsoever, except as may be expressly provided in
this Lease. If the Tenant makes any payment to the Landlord by check, same shall
be by check of the Tenant and the Landlord shall not be required to accept the
check of any other person. Any check received by the Landlord shall be deemed
received subject to collection. Any acceptance by the Landlord of any payment
made by any other person for the account of the Tenant shall not be deemed to be
a consent by the Landlord to any assignment or subletting, nor shall it relieve
the Tenant of its obligations hereunder. If any check is mailed by the Tenant,
the Tenant shall post such check in sufficient time prior to the date when
payment is due so that such check will be received by the Landlord on or before
the day when payment is due. No lateness or failure of delivery of the mails
will excuse the Tenant from its obligation to have made the payment in question
when required under this Lease.
The Landlord is not liable for any inconvenience or harm caused by any
stoppage or reduction of utilities and services beyond the control of the
Landlord. This does not excuse Tenant from paying Rent.
45. LIMIT OF LANDLORD'S LIABILITY: The Tenant shall look solely to the
Landlord's interest in the Real Estate for the enforcement of any judgement or
decree requiring the payment of money to the Tenant by reason of any default or
breach by the Landlord under this Lease or for any other reason, and to no other
property or asset of the Landlord, its partners, owners, principals, officers,
directors or the like. In no event shall there be any person liability on the
part of the Landlord, its partners, owners, principals, officers, directors or
the like beyond its interest in the Building and Land, and no other asset of the
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Landlord, its partners, owners, principals, officers, directors or the like
shall be subject to levy, execution, attachment or any other legal process.
46. OPERATING EXPENSES: The Landlord shall make a reasonable estimate of
the Operating Expenses for each calendar year and the Tenant shall pay as
Additional Rent the Tenant's pro rata share of the Operating Expenses in twelve
(12) equal monthly installments, due and payable on the first day of each month.
If the last day of the Term ends on any day other than the last day of
a calendar year, any payment due to the Landlord or to the Tenant by reason of
any increase or decrease in Operating Expenses shall be pro rated as applicable
within ten (10) days of written notice.
Operating Expenses are the sum of the following, without limitation and
whether or not within the contemplation of the parties, including, but not
limited to: (i) the cost and expenses for the repair, replacement, maintenance,
policing, insurance and operation of the Building, Land, and common areas; (ii)
the cost for fire, rent, casualty, glass, flood, liability, fidelity and such
other insurance required by the Landlord or other parties having an insurable
interest; (iii) the fees payable to a managing agent appointed by the Landlord
(provided same are competitive with the fees payable to independent managing
agents of comparable facilities in Xxxxxx County), not to exceed five percent
(5%) of the Rent; (iv) professional fees other than legal and accounting; (v)
wages and fringe benefit payments to persons engaged in such operation,
maintenance and repair (for persons not engaged on a full-time basis at this
Property, these costs shall be allocated equitably); (vi) the cost of building
and cleaning supplies and service and maintenance contracts with independent
contractors; (vii) utilities covering all common areas, including heat, air
conditioning and storage areas, and parking areas; (viii) utility, water and
other charges for the Premises which are not separately metered; and (ix) the
cost for fire alarm systems.
Tenant shall have the right to receive copies, if available, of
invoices reflecting amounts billed as Operating Expenses and Real Estate Taxes
if requested in writing no later than thirty (30) days following Xxxxxx's
receipt of Landlord's annual recap. Tenant shall then have the right to audit
Landlord's charges for Operating Expenses and Real Estate Taxes. Such audit
shall be requested, in writing, not later than thirty (30) days following
Xxxxxx's receipt of Landlord's invoices of Operating Expenses and Real Estate
Tax charges and shall provide not less than thirty (30) days notice of the date
of such audit. Tenant shall be entitled to audit only the expenses for the year
in question and no others. Landlord shall afford Tenant access to its books and
records at Landlord's offices during normal business hours. If the audit reveals
that Xxxxxxxx's charges are not overstated by an amount in excess of five
percent (5%), then Tenant shall reimburse Landlord for its reasonable costs
incurred in preparing for the audit, including but not limited to administrative
and bookkeeping expenses of Landlord's employees and employees of its duly
appointed managing agent. Landlord and Tenant shall, within thirty (30) days
after the audit, adjust any underpayment or overpayment and make any required
payment or credit for any overpayment.
The Landlord reserves the right to adjust the amount of insurance
coverage from time to time as may be required or desirable to provide adequate
coverage consistent with then existing economic conditions.
"Operating Expenses" shall not include the cost and expenses for the
replacement of the roof, floor, walls and structural elements of the Building.
"Operating Expenses" shall not include expenses for any improvements
made to the Land or Building which are capitalized except those expenses for
improvements which result in a savings of labor, energy, utility or material
costs shall be included at the lesser of the cost of such improvement amortized
over the useful life of the improvement or the annual savings in costs resulting
from the improvement.
47. LANDLORD AND TENANT RELATIONSHIP: Nothing contained in this Lease shall
be deemed or construed by the parties hereto or by any other party to create the
relationship of principal and agent or of partnership or joint venture or of any
other association whatsoever between the Landlord and the Tenant. It is
expressly understood and agreed that such relationship and association between
the parties hereto is one solely of landlord and tenant.
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48. TENANT'S CARE OF PREMISES:
The Tenant shall:
(i) promptly comply with all laws, orders, rules and requirements of
governmental authorities, insurance carriers, board of fire
underwriters, or similar groups;
(ii) maintain the Premises and all equipment and fixtures in it in
good repair and appearance;
(iii) make all necessary repairs to the Premises and all equipment and
fixtures in it, except structural repairs;
(iv) maintain the Premises in a neat, clean, safe, and sanitary
condition, free of all garbage;
(v) use all electric, plumbing, and other facilities in the Premises
safely, and maintain and replace all fixtures as required;
(vi) use no more electricity than the wiring or feeders to the Premises
can safely carry;
(vii) promptly replace all broken glass in the Premises;
(viii) do nothing to destroy, deface, damage, or remove any part of the
Premises;
(ix) keep nothing in the Premises which is inflammable, dangerous or
explosive or which might increase the danger of fire or other casualty;
(x) promptly notify the Landlord when there are conditions which need
repair;
(xi) do nothing to destroy the peace and quiet of the Landlord, other
tenants, or persons in the neighborhood;
(xii) avoid littering in the building or on its grounds.
The Tenant shall pay any expenses involved in complying with the above.
The Tenant agrees to cooperate with the Landlord and other tenants,
occupants and neighbors, if any, so as not to create any interference with the
normal use of the Demised Premises, the Building, the Land, and the surrounding
area. The Tenant shall not interfere with the proceedings of other tenants,
occupants or neighbors, if any.
The removal of all garbage, trash, rubbish, refuse and the like shall
be made only by way of the proper areas provided therefor. Garbage, trash,
refuse and the like shall be kept neatly in appropriate, sanitary and adequate
containers. The Tenant will separate all debris in accordance with any federal,
state, county and municipal regulations, directives and laws which may apply.
49. SURVIVAL OF REMEDIES: Any liability for payments hereunder including,
but not limited to, the payment of rent, repairs, maintenance and the like,
shall survive the termination, expiration or sooner cancellation of this Lease.
50. TRAILER STORAGE: The Tenant will not permit any storage of trailers nor
any storage inside trailers on the Land.
51. AUTHORITY OF PARTIES: Each party warrants that it is authorized to
enter into the Lease, that the person signing on its behalf is duly authorized
to execute the Lease, and that no other signatures are necessary.
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52. ATTORNEY'S FEES: The Tenant is liable for all damages caused by the
Tenant's violation of any agreement in this Lease. This includes reasonable
attorney's fees and costs.
53. NOTICES: Unless a Lease provision expressly authorizes verbal notice,
all notices under this Lease shall be in writing and sent by registered or
certified mail, postage prepaid, to the address for each party stated above in
this Lease.
Either party may change these persons or addresses by giving notice as
provided above. Tenant shall also give required notices to Xxxxxxxx's mortgagee
after receiving notice from Landlord of the mortgagee's name and address. Notice
shall be considered given and received on the latest original delivery or
attempted delivery date as indicated on the postage receipt(s) of all persons
and addresses to which notice is to be given.
54. PARTIAL INVALIDITY: If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law. If any provision of this Lease is capable of two
constructions, one of which would render the provision invalid and the other of
which would render the provision valid, the provision shall be the meaning which
renders it valid.
55. WAIVER: The failure of the Landlord to exercise any of its rights is
not a waiver of those rights. The Landlord waives only those rights specified in
writing and signed by the Landlord. The Landlord's failure to enforce any
agreement in this Lease shall not prevent the Landlord from enforcing the
agreement for any violations occurring at a later time.
56. CONSTRUCTION: It is agreed and understood that this Lease, its terms
and conditions and any interpretation hereof shall be construed (i) in
accordance with the laws of the State of New Jersey and (ii) as a work product
jointly drafted by counsel for the parties.
57. BINDING ON SUCCESSORS: This Lease shall bind the parties' heirs,
successors, representatives, subtenants and assigns.
58. GOVERNING LAW: This Lease shall be governed by the laws of the State of
New Jersey.
59. INSURANCE INCREASE: If due to Tenant's particular use of the Premises
the Landlord's insurance rates are increased, Tenant shall pay the increase.
60. WAIVER OF TRIAL BY JURY: The Tenant shall and hereby does waive trial
by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other party on any matters whatsoever arising out of
or in any way connected with this Lease, the relationship of the Landlord and
the Tenant, the Tenant's use or occupancy of said premises, any claim or injury
or damage, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event the Landlord commences any summary
proceeding for possession of the Demised Premises, the Tenant will not interpose
any counterclaim of whatever nature or description in any such proceedings. The
Tenant may only file its counterclaim, if any, in a separate and distinct action
or proceedings.
61. RECORDING: Neither this Lease nor a memorandum of any of its contents
shall be recorded by the Tenant without the Landlord's prior written consent,
which consent shall or shall not be given in the sole discretion of the
Landlord. Should the Tenant record this Lease or a memorandum of the contents
hereof without the Landlord's prior written consent, the Landlord may, upon
written notice to the Tenant, terminate this Lease as of the date of such
notice.
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62. SURVIVAL OF REMEDIES: Any liability for payments hereunder including,
but not limited to, the payment of rent, repairs, maintenance and the like,
shall survive the termination, expiration or sooner cancellation of this Lease.
64. BUSINESS DAYS: Business days means Monday through Friday inclusive,
excluding holidays. Throughout this Lease, wherever "days" are used the term
shall refer to calendar days. Wherever the term "business days" is used the term
shall refer to business days.
65. ENTIRE AGREEMENT: This Lease contains the entire agreement between the
parties about the Premises and Building. Except for the Rules for which
paragraph 9.01(a) controls, this Lease shall be modified only by a writing
signed by both parties.
66. REQUEST FOR CHANGE OF LANGUAGE: Provided that the same do not increase
any of the Tenant's duties, obligations or liabilities, and further provided
that the same do not limit the Tenant's rights with respect to the Demised
Premises and the common areas, then in the event that a mortgagee or prospective
mortgagee of the Demised Premises shall request a change in the language or
provisions of this Lease or shall require a separate agreement of any kind, the
Tenant shall execute such consents without delay.
At no time may the Tenant use this Lease or the value of this Lease or
its leasehold as collateral for loans or for any similar purpose. The Tenant
shall not mortgage or encumber this Lease in any manner. The Tenant shall have
no authority to create or place any lien or encumbrance of any kind whatsoever
upon this Lease or upon the Demised Premises, Building or Land nor in any manner
to bind the interest of the Landlord in the Demised Premises, Building or Land.
67. NO REPRESENTATIONS BY LANDLORD: The Landlord and the Landlord's agents
and representatives have made no representations or promises, by implication or
otherwise, with respect to the said Demised Premises, Building, Land,
neighboring surroundings, rents, leases, expenses of operation, or any other
matter or thing affecting or related to the Demised Premises or the leasing of
same except as herein expressly set forth. The Tenant has inspected the Land,
Building, and Demised Premises and is thoroughly acquainted with their condition
and agrees to take the same "as is" except as expressly provided for in this
Lease. The Tenant agrees that in taking this Lease, it is governed by its own
inspection of the premises and plans, and by its own judgement of their
desirability for its purpose, and it has not been governed or influenced by any
representatives of the Landlord or the Broker, if any, as to the condition,
suitability and/or character of the Demised Premises including, but not limited
to, the Building, site, location, and all other matters.
68. LANDLORD AND TENANT RELATIONSHIP: Nothing contained in this Lease shall
be deemed or construed by the parties hereto or by any other party to create the
relationship of principal and agent or of partnership or joint venture or of any
other association whatsoever between the Landlord and the Tenant. It is
expressly understood and agreed that such relationship and association between
the parties hereto is one solely of landlord and tenant.
68. UTILITY DEREGULATION: Landlord has advised Tenant that presently
General Public Utilities ("GPU") is the utility company which provides
electricity service for the Premises, Property and Land. The foregoing
notwithstanding, Landlord shall have the right, in Landlord's sole discretion,
at any time and from time to time during the Term, to either contract for
service from a different company or companies providing electricity service
(each to be referred to as an "Alternate Service Provider") or continue to
contract for electricity service from GPU. In all such events, Tenant shall be
responsible for and liable to either GPU or each Alternate Service Provider
where electricity service to the Premises is separately metered. If there is no
separate meter for the Premises, the Tenant shall pay Landlord for electricity
service as an operating expense, regardless of the utility provider.
Tenant shall cooperate with Landlord, GPU and any Alternate Service
Provider at all times. Tenant shall, as reasonably necessary, allow Landlord,
GPU and any Alternate Service Provider access to the electric lines, feeders,
risers, wiring, and any other accouterments or machinery within the Premises.
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Landlord shall in no way be liable or responsible for any loss, damage,
or expense that Tenant may sustain or incur by reason of any change, failure,
interference, disruption, or defect in the supply or character of the electric
energy furnished to the Premises, or if the quantity or character of the
electric energy supplied by either GPU or any Alternate Service Provider is no
longer available or suitable for Tenant's requirements, and no such change,
failure, defect, unavailability, or unsuitability shall constitute an actual or
constructive eviction, in whole or in part, or entitle Tenant to any abatement
or diminution of rent, or relieve Tenant from any of its obligations under this
Lease.
69. SURRENDERING THE PREMISES: Upon the Ending Date, Tenant shall surrender
the Premises to Landlord in broom clean condition. On surrender, Tenant shall
remove from the Premises its personal property, trade fixtures, signs, and any
alterations required to be removed under Paragraph 16 and repair any damage to
the Premises caused by the removal or by Xxxxxx's moving. Any items not removed
by Tenant as required above shall be considered abandoned. Landlord may dispose
of abandoned items as Landlord chooses and xxxx Xxxxxx for the cost of their
disposal, or keep it as abandoned property.
70. MECHANIC'S LIENS: Tenant shall, within twenty (20) days after receiving
notice of any mechanic's lien for material or work claimed to have been
furnished to the Premises on Tenant's behalf and at Xxxxxx's request, except for
work contracted by Landlord:
(i) discharge the lien; or
(ii) post a bond equal to the amount of the disputed claim with
companies reasonably satisfactory to Landlord.
If Tenant posts a bond, it shall contest the validity of the lien.
Tenant shall indemnify, defend, and hold Landlord harmless from losses incurred
from these liens.
If Tenant does not discharge the lien or post the bond within the
twenty (20) day period, Landlord may pay any amounts, including interest and
legal fees, to discharge the lien. Tenant shall then be liable to Landlord for
the amounts paid by Landlord.
Paragraph 70 is not a consent to subject Xxxxxxxx's property to these
liens.
See Addendum Attached.
ATTEST: 000 XXXXXXX XXXX XXXX.,
XXXXXXXX:
------------------------------- By:
Xxxxxx X. Xxxxx --------------------------------------
Secretary Xxxxxx Xxxxx, President
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WITNESS: XXXXXXXXXXX.XXX, INC.
TENANT:
------------------------------- By:
--------------------------------------
Xxxxxxx X. Xxxxxx, Executive Vice
President and Chief Operating Officer
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EXHIBIT A
DIAGRAM
