Exhibit 10.9
AGREEMENT OF LEASE
Single Tenant Building
THIS AGREEMENT OF LEASE, BY AND BETWEEN LIBERTY PROPERTY LIMITED
PARTNERSHIP, A LIMITED PARTNERSHIP ORGANIZED AND EXISTING UNDER THE LAWS OF
PENNSYLVANIA (HEREIN CALLED "LANDLORD") AND LESLIE'S POOLMART, A CORPORATION
ORGANIZED AND EXISTING UNDER THE LAWS OF CALIFORNIA (HEREIN CALLED "TENANT").
WITNESSETH:
1. PREMISES. Landlord does hereby demise and let unto Tenant and Tenant
does hereby lease and take from Landlord for the term and upon the terms,
covenants, conditions and provisions set forth herein all that tract of land
located at 000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx, Xxx Xxxxxx (herein
called the "Lot") which is outlined in red on Exhibit "A" hereto, together with
the building (herein called the "Building") and improvements to be constructed
thereon in accordance with Article 2 hereof (the Lot, the Building and any other
improvements thereon being herein called the "Premises").
2. COMPLETION BY LANDLORD. The Premises shall be completed in accordance
with the plans to be attached hereto as Exhibit "B" (herein call the "Plans")
and the specifications to be attached hereto as Exhibit "C" (herein call the
"Specifications"). All necessary construction shall be commenced promptly and
shall be substantially completed ready for use and occupancy by Tenant on the
date set forth in Article 3. Provided, however, that the time for substantial
completion of the Premises shall be extended for additional periods of time
equal to the time lost by Landlord or Landlord's contractors, subcontractors or
suppliers due to strikes or other labor troubles, governmental restrictions and
limitations, scarcity, unavailability or delays in obtaining fuel, labor or
materials, war or other national emergency, accidents, floods, defective
material, fire damage or other casualties, adverse weather conditions, or any
cause similar or dissimilar to the foregoing beyond the reasonable control of
Landlord or Landlord's contractors, subcontractors or suppliers. ("Force
Majeure"). All construction shall be done in good and workmanlike manner and
shall comply at the time of completion with all applicable and lawful laws,
ordinances, regulations and orders of the federal, state, county or other
governmental authorities having jurisdiction thereof, Tenant and its authorized
agents, employees and contractors shall have the right, at Tenant's own risk,
expense and responsibility at all reasonable times prior to the Commencement
Date as hereinafter defined, to enter the Premises for the purpose of taking
measurements and installing its furnishings and equipment; provided that Tenant,
in so doing, shall not interfere with or delay the work to be performed
hereunder by Landlord, and Tenant shall use contractors and workmen compatible
with the contractors and workmen engaged in the work to be performed hereunder
by Landlord, and Tenant shall have obtained Landlord's written consent prior to
installing any furnishings or equipment. Landlord hereby consents to Tenant's
installation of the furnishings and equipment described on Exhibit E hereto.
See Rider.
3. TERM. The term of this lease shall commence on the later of December
1, 1994 or on the date when the Premises and the improvements required to be
constructed by Landlord
under Article 2 hereof shall have been substantially completed (herein call the
"Commencement Date"). If the date of substantially completion is delayed as a
result of changes requested by Tenant and Tenant was notified, in writing, that
such changes would result in delays, the term of the lease and the payment of
rent shall commence as if the Premises were substantially completed on the
originally scheduled date, as extended for reasons other than those caused by
Tenant. Unless__________terminated in accordance with the terms hereof, the term
of this lease shall end without the necessity for notice from either party to
the other at 12:01 local time on the tenth (10th) anniversary of the first day
of the first full calendar month during the term (herein call the "Expiration
Date").
4. USE OF PREMISES. Tenant shall occupy the Premises throughout the term
and shall use the same for and only for a warehouse for distribution of pool
supplies and such other items as Tenant may from time to time sell in its retail
stores with appurtenant offices, and other uses incidental thereto, including,
but not limited to, parking of tractors and trailers.
5. RENT.
(a) MINIMUM ANNUAL RENT. Tenant shall pay a minimum annual rent of
See Rider ($____________), without notice or demand, and without setoff, in
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equal monthly installments of See Rider ($____________) in advance, on the
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first day of each calendar month during the term of this lease. Provided,
however, that rent for the first full month shall be paid upon the signing of
this lease. If the Commencement Date shall fall on a day other than the first
day of a calendar month, the rent shall be apportioned pro rata on a per diem
basis for the period between the Commencement Date and the first day of the
following calendar month and such apportioned sum shall be paid on such
Commencement Date. In addition, Tenant shall pay Landlord without setoff the
additional rent as hereinafter set forth. Unless otherwise specifically
provided, all sums shall be paid to Landlord at the address given in Article 30
hereof.
6. TAXES AND OTHER IMPOSITIONS.
(a) PAYMENT. As additional rent hereunder, at least thirty (30) days
before any fine, penalty, interest or cost may be added thereto for the non-
payment thereof (or sooner if elsewhere herein required). Tenant shall pay
throughout the term of this lease a __________ ______ __________ waiver and
_________ rents and charges, liens, license and permit fees, charges for public
utilities and all other charges, imposts or burdens of whatsoever kind and
nature, general or special, foreseen and unforeseen, whether or not
particularized by name, ordinary or extraordinary, which are applicable to the
term of this lease, and which are created, levied, assessed, confirmed, adjudged
imposed or charged by any federal, state or municipal government or public
authority, or under any law, ordinance or regulation thereof, or pursuant to any
record covenants or agreements (all of which are hereinafter referred to as
"Impositions") upon or with respect to the Premises, the Lot or any improvements
made thereto, any part of the foregoing, any appurtenances thereto, or directly
upon this lease or the rent payable hereunder or amounts payable by the
subtenants or other occupants of the Premises, or upon this transaction or any
related documents to which the Tenant is a party or successor in interest, or
against Landlord because of Landlord's estate or interest herein. If Tenant is
permitted by the assessing and collecting authorities and by all mortgagees and
elects to pay any Imposition in installments,
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Tenant shall nevertheless pay all unpaid installments thereof prior to the
expiration or sooner termination of the term of this lease, * whether or not
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such installments are then due or payable. Tenant shall pay each Imposition
at Landlord's election to Landlord or directly to the government or other public
authority charged with the collection of such Imposition; and in the latter
event. ** Tenant shall furnish Landlord, not later than ten (10) days prior
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to the last day upon which they may be paid without any fine, penalty, interest
or cost, receipts or other evidence satisfactory to Landlord of the payment of
all such Impositions
(b) NEW METHODS OF TAXATION. Nothing herein contained shall be
interpreted as requiring Tenant to pay any income, excess profits, corporate
capital stock, *** or franchisee tax imposed or assessed upon Landlord,
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unless such tax or any similar tax is levied or assessed in lieu of all or any
part of any imposition or an increase in any Imposition. If under the
requirements of any state or local law with respect to such new method of
taxation, Tenant is prohibited from paying such new tax the minimum annual rent
shall increase by the amount of such new tax.
(c) MONTHLY DEPOSITS. Notwithstanding the foregoing provisions of
this Article 6 during any time that Tenant is in default under this Lease,
Landlord shall have the right, at its option, to require Tenant to pay to
Landlord or to any mortgagee, at the time when the monthly installment of
minimum rent is payable, an amount equal to one-twelfth (1/12th) of the annual
Impositions as estimated by Landlord. If Landlord elects to have Tenant make
such payments. Tenant also shall pay to Landlord or to such mortgagee, as the
case may be, at least thirty (30) days before any fine, penalty, interest or
cost may be added thereto for the non-payment thereof, the amount by which the
Impositions becoming due exceed the monthly payments on account thereof
previously made by Tenant. The amount paid by Tenant pursuant to this
Paragraph(c) shall be used to pay the Imposition, but such amounts shall not be
deemed to be trust funds and no interest shall be payable thereon.
(d) CONTESTS BY LANDLORD. Landlord may bring proceedings to contest
the validity or amount of any Imposition or to recover payments therefor.
Tenant shall cooperate with Landlord with respect to such proceedings to the
extent reasonably necessary and shall pay to Landlord all reasonable costs, fees
and expenses incurred in connection with such proceedings as additional rent
promptly upon being billed therefor.
(e) CONTESTS BY TENANT. Tenant, without postponement of payment, may
bring proceedings to contest the validity or amount of any Imposition or to
recover payments therefor. Tenant shall save Landlord harmless from all costs
and expenses in connection with such proceedings. Landlord shall cooperate with
Tenant with respect to such proceedings to the extent reasonably necessary, but
all costs, fees and expenses incurred in connection with such proceedings shall
be borne by Tenant. Tenant shall give Landlord advance written notice of
Tenant's intention to take any such action.
7. INSURANCE.
(a) Types. Tenant, at Tenant's sole cost and expense, shall maintain
and keep in effect throughout the term with policies from an insurer rated B+ or
better by Best's:
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(i) [deleted in its entirety]
(ii) insurance against liability for bodily injury (including
death) or property damage in or about the Premises, under a policy of
comprehensive general public liability insurance, with such limits as to each as
may reasonably be required by Landlord from time to time but not less than
$500,000 for each person and $1,000,000 for each occurrence of bodily injury
(including death) and $500,000 for property damage;
(iii) such other forms of insurance as may be reasonably
specified from time to time by Landlord and are regularly required of tenants in
similar situations; all such insurance shall be in such reasonable amounts as
may be specified from time to time by Landlord or by any mortgagee; and See
Rider.
(iv) any other reasonable and customary insurance coverage
regularly required of tenants in similar situations that may be required from
time to time by any mortgagee or that may be required generally by institutional
mortgages.
(b) INSURED PARTIES. The policies of insurance described in
Paragraphs (a)(i), (iii) and (iv) of this Article 7 shall name Landlord as the
insured party, and in addition shall contain a standard mortgagee endorsement in
favor of all mortgagees or, at the election of any such mortgagee, any
reasonable variation of such endorsement. The policies of insurance described
in Paragraph (a)(ii) of this Article 7 shall name both Landlord and Tenant as
the insured parties.
(c) POLICIES. Each policy of insurance required by Paragraph (a) of
this Article 7 shall provide that it shall not be canceled without at least
thirty (3) days prior written notice to Landlord and to any mortgagee named in
any endorsement thereto. Each policy shall have an executive notice endorsement
or comparable form of coverage attached thereto to the effect that no act or
omission of Tenant shall affect the obligation of the insurer to pay the full
amount of any loss sustained.
(d) EVIDENCE OF COVERAGE. At least ten (10) days prior to the
Commencement Date, the original and a signed duplicate of each policy shall be
delivered to Landlord by Tenant. Tenant may carry any insurance required by
this Article 7 under a blanket policy, applicable to the Premises, in which
event Tenant shall deliver the insurer's certification thereof showing all the
terms of such coverage applicable to the Premises and showing the insured
parties as aforesaid. If Tenant shall fail, refuse or neglect to obtain or to
maintain any insurance that it is required to provide, or to furnish Landlord
with satisfactory evidence or coverage within the time required, Landlord shall
have the right after five (5) days' notice to Tenant to purchase such insurance.
All payments for such insurance made by Landlord shall be recoverable by
Landlord from Tenant, together with interest thereon, as additional rent
promptly upon being billed therefor.
(e) WAIVER OF SUBROGATION. Each of the parties hereto hereby releases
the other, to the extent of the releasing party's insurance coverage, from any
and all liability for any loss or damage covered by such insurance which may be
inflicted upon the property of such party even if such loss or damage shall be
brought about by the fault of negligence of the other party, its
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agents or employees; provided, however, that this release shall be effective
only with respect to loss or damage occurring during such time as the
appropriate policy of insurance shall contain a clause to the effect that this
release shall not affect said policy or the right of the insured to recover
thereunder. If any policy does not permit such a waiver, and if the party to
benefit therefrom requests that such a waiver be obtained, the other party
agrees to obtain an endorsement to its insurance policies permitting such waiver
of subrogation if it is available. If an additional premium is charged for
waiver, the party benefiting therefrom agrees to pay the amount of such
additional premium promptly upon being applied therefor.
(f) SEE RIDER.
8. REPAIRS AND MAINTENANCE.
(a) Except as specifically otherwise provided in Paragraph (b) of this
Article, Tenant, at its sole cost and expense throughout the term of this lease,
shall keep and sustain in good order and condition the Buildings, and promptly
make all repairs necessary to keep and maintain such good order and condition,
whether such repairs are interior or exterior, ordinary or extraordinary,
foreseen or unforeseen. When used in this Article 8, the term "repairs" shall
include replacements and renewals when necessary. All repairs made by Tenant
utilize materials and equipment which are at least equal in quality and
usefulness to those originally used in constructing the Buildings. Tenant shall
maintain all HVAC systems appurtenant to the Building using a service firm(s)
acceptable to Landlord who shall provide service and maintenance in accordance
with the manufacturer's recommendations and shall provide a copy of the contract
to Landlord. See Rider.
(b) Landlord, throughout the term of this lease and at Landlord's sole
cost and expense, shall make all necessary repairs to the footings and
foundations and the structural steel columns and girders * forming a part of
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the Premises; provided, however, that the Landlord shall have no responsibility
to make any repair unless and until Landlord receives written notice of the need
for such repair, and provided further that Landlord shall have no responsibility
to repair any damage which arises out of or is caused by Tenant's use,
__________ of use or occupancy of the Premises, or by Tenant's installations in
or upon the Premises, or by any act or omission of Tenant or an employee, agent,
contractor or invitee of Tenant.
(c) Landlord shall keep and maintain all portions of the Premises and
any sidewalks, parking areas, curbs and access __________ adjoining the Premises
in a clean and orderly condition, free of accumulation of dirt, rubbish, snow
and ice and shall keep and maintain all landscaped areas in a neat and orderly
condition by performing all necessary tasks, including, but not limited to,
grass cutting, seeding, watering, weeding and replacing any dead or diseased
planting. SEE RIDER.
(d) SEE RIDER.
(e) SEE RIDER.
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9. REPAIRS AND MAINTENANCE. Tenant shall be solely responsible for all
rents, costs and charges for water service, sewer service, gas, electricity,
light, heat, steam, power, telephone and other communication services, and any
and all other utilities or services rendered or supplied upon or in connection
with the Premises.
10. NET LEASE. Except for the obligations of Landlord expressly set forth
herein, this lease is a "net lease" and Landlord shall receive the minimum
annual rent as hereinabove provided as net income from the Premises, not
diminished by any imposition or any expenses or charges required to be paid to
maintain and carry the Premises other than payment under any mortgages now
existing or thereafter created by Landlord, and Landlord is not and shall not be
required to render any service of any kind to Tenant.
11. GOVERNMENTAL REGULATIONS. With regard to all or any part of the
Premises or to the use or manner of use of the Premises, or to the sidewalks,
parking areas, curbs and access ways adjoining the Premises, or to the fixtures
and equipment in the Premises, throughout the term of this lease and at its sole
cost and expense, Tenant shall: (i) comply with all laws, ordinances, notices,
orders, rules, regulations and requirements of all federal, state and municipal
governments and all departments, commissions, boards and officers thereof, and
all recorded covenants, rules and regulations of Pureland Industrial Complex and
of the National Board of Fire Underwriters or any other body now or hereafter
constituted exercising similar functions; and (ii) keep in force at all times
all licenses, consents and permits necessary for the lawful use of the Premises
for the purposes herein provided; and (iii) comply with the requirements of all
public liability, ________, and other policies of insurance covering the
Premises whether any of the foregoing are foreseen or unforeseen, ordinary or
extraordinary. Provided, however, that Tenant shall not be required to comply
with the foregoing laws, ordinances and notices with respect to the footings and
foundations and the structural steel columns and girders ** forming a part
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of the Premises unless the need for such compliance arises out of or is caused
by Tenant's use, manner of use or occupancy of the Premises, or by Tenant's
installations in or upon the Premises or by any act or omission of Tenant or any
employee, agent, contractor or invitee of Tenant, ordinary wear and tear
excluded.
12. SIGNS. Except for signs which are located wholly within the interior
of the Building and which are not visible from the exterior of the Premises, no
signs shall be placed, erected, maintained or painted at any place upon the
Premises without the prior written consent of Landlord as to the size, design,
color, location, content, illumination, composition or material and mobility
thereof. All signs shall be maintained by Tenant in good condition during the
term of this lease, and Tenant shall remove all signs at the termination of this
lease and shall repair and restore any damage caused by the installation or
removal thereof. See Rider.
13. ALTERATIONS, ADDITIONS AND FIXTURES.
(a) Subject to the provisions of Article 14 hereof, Tenant shall have
the right to install in the Building any trade fixtures from time to time during
the term of this lease; provided, however, that no such installation or removal
thereof shall affect the structural portions of the Building and that Tenant
shall repair and restore any damage or injury to the Premises caused thereby.
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(b) Tenant shall not make or permit to be made any alterations,
improvements or additions to the Premises without on each occasion first
presenting to Landlord plans and specifications therefor and obtaining
Landlord's prior written consent thereto; except if such alterations will cost
in excess of $10,000 in one-year period, that Tenant may make minor
nonstructural changes to the interior of the Building without the consent of
Landlord provided that: (i) Tenant supplies Landlord with plans and
specifications and any necessary permits therefor at least ten (10) days in
advance of commencing construction thereof; (ii) such alterations and
improvements do not impair the structural strength of the Building or any other
improvements; (iii) Tenant shall take or cause to be taken all steps that are
required by Article 14 hereof and that are required or permitted by law in order
to avoid the imposition of any mechanic's, laborer's or materialman's lien upon
the Premises, Building or Lot; and (iv) the occupants of any adjoining real
estate are not disturbed by reason thereof. Any and all alterations,
improvements and additions to the Premises which are constructed, installed or
otherwise made by Tenant shall be the property of Tenant until the expiration or
sooner termination of this lease; at that time all such alterations and
additions shall remain on the Premises and become the property of Landlord
without payment therefor by Landlord; unless, Landlord's written consent to such
alterations, improvements or additions shall require Tenant to remove the same;
in which event Tenant will remove such alterations, improvements and additions,
and repair and restore any damage to the Premises caused by the installation or
removal thereof.
14. MECHANICS' LIENS. Tenant shall promptly pay any contractors and
materialmen who supply labor, work or materials to Tenant at the Premises so as
to minimize the possibility of a lien attaching to the Premises or the Lot.
Tenant shall take all steps permitted by law in order to avoid the imposition of
any mechanic's, laborer's or materialman's lien upon the Premises or the Lot.
Should any such lien or notice of lien be filed, for work performed for Tenant
other than by Landlord, Tenant shall bond against or discharge the same within
fifteen (15) days after the lien or claim is filed or formal notice of said lien
or claim has been issued regardless of the validity of such lien or claim.
Nothing in this lease is intended to authorize Tenant to do or cause any work or
labor to be done or any materials to be supplied for the account of Landlord,
all of the same to be solely for Tenant's account and at Tenant's risk and
expense. Throughout this lease the term "mechanic's lien" is used to include
any lien, encumbrance or charge levied or imposed upon the Premises or the Lot
or any interest therein or income therefrom on account of any mechanic's,
laborer's or materialman's lien or arising out of any debt or liability to or
any claim or demand of any contractor mechanic, supplier, materialman or laborer
and shall include without limitation any mechanic's notice of intention given to
Landlord or Tenant, any stop order given to Landlord or Tenant, any notice of
refusal to pay naming Landlord or Tenant and any injunctive or equitable action
brought by any person entitled to any mechanic's lien.
15. LANDLORD'S RIGHT OF ENTRY.
(a) Tenant shall permit Landlord and the authorized representatives of
Landlord and of any mortgagee or any live mortgagee to enter the Premises at all
reasonable times or making any necessary thereto or to the Property and
performing any work therein. During the progress of any work on the Premises
Landlord will _________ to inconvenience Tenant, but shall not be liable for
inconvenience, annoyance, disturbance, loss of business or other damage to
Tenant ______ reason of making any repair or by bringing or storing materials,
supplies, tools and
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equipment on the Premises during the performance of any work, and the
obligations of Tenant under this lease shall not be thereby affected in any
manner whatsoever.
(b) Landlord shall have the right at all reasonable times to enter and
to exhibit the Premises for the purpose of mortgage, and, during the last nine
(9) months of the term of this lease, to enter and to exhibit the Premises to
any prospective __________.
16. DAMAGE BY FIRE OR OTHER CASUALTY.
(a) If the Premises shall be damaged or destroyed by fire or other
casualty, Tenant shall promptly notify Landlord. Landlord, subject to any
mortgagee's consent and to the conditions set forth in this Article 16, shall
repair, rebuild or replace such ________ and restore the Premises to
substantially the same condition in which they were immediately prior to such
damage or destruction; provided, however, that Landlord shall only be obligated
to restore such damage which is covered by the fire and other extended coverage
insurance policies. Notwithstanding the foregoing, Landlord shall repair any
damage to the Building to the extent of 10% of the value of the Premises whether
or not covered by insurance.
(b) The work shall be commenced promptly and completed with due
diligence, taking into account the time required by Landlord to effect a
settlement with and procure insurance proceeds from the insurer, and for delays
beyond Landlord's reasonable control. If the restoration is reasonably expected
to take longer than 6 months to complete, Tenant may, at its option, terminate
this Lease.
(c) The net amount of any insurance proceeds (excluding proceeds
received pursuant to a rental coverage endorsement recovered by reason of the
damage or destruction of the Premises in excess of the cost of adjusting the
insurance claim and collecting insurance proceeds (such excess amount being
hereinafter called the "net insurance proceeds") shall be applied towards the
reasonable cost of restoration. If in Landlord's * the net insurance
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proceeds ** will not be adequate to complete such restoration, Landlord
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shall have the right to terminate this lease and all the unaccrued obligations
of the parties hereto by sending a written notice of such termination to Tenant,
the notice to specify a termination date no less then ten (10) days after its
transmission; provided, however, that except during the last two (2) years of
the term, Tenant may require Landlord to withdraw the notice of termination by
agreeing to pay cost of restoration in excess of the net insurance proceeds and
by giving Landlord adequate security for such payment prior to the termination
date specified in Landlord's notice of termination. If Landlord determines that
the net insurance proceeds ** are not adequate Landlord does not elect to so
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terminate the lease. Tenant shall pay, upon notice that Landlord shall restore,
out of funds other than _______ net insurance proceeds, the amount by which the
cost of restoration estimated by Landlord will exceed the net insurance proceeds
__________ sum payable by Tenant to be later readjusted to such actual excess
upon the completion of restoration. If such net insurance proceeds are more
than adequate, the amount by which such net insurance proceeds exceed the cost
of restoration will be retained by Landlord or ___________ to repayment of any
mortgage secured by the Premises.
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(d) Landlord's obligation or election to restore the Premises under
this Article shall not include the repair, restoration or replacement of the
fixtures, improvements, alterations, furniture or any other property owned,
installed, made by, or in the possession of Tenant.
(e) Landlord shall maintain a rental coverage endorsement or other
comparable form of coverage as part of its fire and extended coverage or all-
risk insurance policy. Tenant will receive an abatement of its minimum annual
rent *** to the extent equitable based upon the extent to which Tenant is
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reasonably unable to conduct business in the Premises.
17. NON-ABATEMENT OF RENT. Except as otherwise expressly provided as to
damage by fire or by any other casualty Paragraph 16(e) and as to condemnation
in Paragraphs 19(a) and (b) there shall be no abatement or reduction of the
minimum rent, additional rent or other sums payable hereunder for any cause
whatsoever, and this lease shall not terminate, and Tenant shall not be entitled
to surrender the Premises.
18. INDEMNIFICATION.
(a) Tenant will indemnify Landlord and save Landlord harmless from and
against any and all claims, actions, damages, liability and expense (including
without limitation fees of attorneys, investigators and experts) in connection
with loss of life, personal injury or damage to property caused to any person in
or about the Premises or arising out of the occupancy or use by Tenant of the
Premises or any part thereof or occasioned wholly or in part by any act or
omission of Tenant, its agents, contractors, employees, licensees or invitees;
unless such loss, injury or damage was caused by the negligence of Landlord, its
agents, employees, licensees or invitees. Without limiting the foregoing,
Tenant will forever release and hold Landlord harmless from all claims arising
out of damage to Tenant's property unless such damage occurs as a result of
Landlord's negligent failure to make repairs after having received written
notice of the need for such repair. In case any such claim, action or
proceeding is brought against Landlord, upon notice from Landlord and at
Tenant's sole cost and expense. Tenant shall resist or defend such claim,
action or proceedings or shall cause it to be resisted or defended by an
insurer.
(b) See Rider.
19. CONDEMNATION.
(a) TERMINATION. (i) If all of the Premises are covered by a
condemnation; or (ii) subject to the provisions of Paragraph (b)(i) hereof, if
any of the Premises is covered by a condemnation and, in Landlord's * , it
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would be impractical or the condemnation proceeds are insufficient to restore
the remainder of the Premises; then, in any such event, this lease shall
terminate and all obligations hereunder shall cease as of the date upon which
possession is taken by the condemnor and the rent herein reserved shall be
apportioned and paid in full by Tenant to Landlord to that date and all rent
prepaid for periods beyond that date shall forthwith be repaid by Landlord to
Tenant.
(b) PARTIAL CONDEMNATION.
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(i) If there is a partial condemnation and Landlord decides to
terminate pursuant to Paragraph (a) hereof, except during the last two (2) years
of the term, Tenant may require Landlord to withdraw its notice of termination
by: [A] giving Landlord written notice thereof within ten (10) days from
transmission of Landlord's notice to Tenant of Landlord's intention to
terminate, [B] agreeing to pay the cost of restoration in excess of the
condemnation proceeds reduced by those sums expended by Landlord in collecting
the condemnation proceeds, and [C] giving Landlord adequate security for such
payment within such ten (10) day period.
(ii) If there is a partial condemnation and this lease has not
been terminated pursuant to Paragraph (a) hereof * Landlord shall restore
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the Building and the improvements which are part of the Premises to a condition
and size as nearly comparable as reasonably possible to the condition and size
thereof immediately prior to the date upon which possession shall have been
taken by the condemnor. If the condemnation proceeds are more than adequate to
cover the cost of restoration and Landlord's expenses in collecting the
condemnation proceeds, any excess proceeds shall be retained by Landlord or
applied to repayment of any mortgage secured by the Premises.
(iii) If there is a partial condemnation and Landlord has not
exercised its right to terminate on the date upon which the condemnor shall have
obtained possession, the obligations of Landlord and Tenant under the lease
shall be unaffected by such condemnation except that there shall be an equitable
abatement for the balance of the term of the minimum annual rent according to
the value of the Premises before and after the date upon which the condemnor
shall have agreed upon the amount, either party may submit the issue to
arbitration.
(c) AWARD. In the event of a condemnation affecting Tenant, Tenant
shall have the right to make a claim against condemnor for removal expenses,
business dislocation damages and moving expenses; provided and to the extent,
however, that such claims or payments do not reduce the sums otherwise payable
by the condemnor to Landlord. Except as aforesaid, Tenant hereby waives all
claims against Landlord and against the condemnor, and Tenant hereby assigns to
Landlord all claims against the condemnor, including, without limitation, all
claims for _______________ damages and ________________ in value of Tenant's
_______.
(d) TEMPORARY TAKING. If the condemnor should take only the right to
possession for a fixed period of time or for the duration of an emergency or
other temporary condition, then, notwithstanding anything hereinabove provided,
this lease shall continue in full force and effect without any abatement of
rent, but the amounts payable by the condemnor with respect to any period of
time prior to the expiration or sooner termination of this lease shall be paid
by the condemnor to Landlord and the condemnor shall be considered subtenant of
Tenant. Landlord shall apply the amount received from the condemnor applicable
to the rent due hereunder net of costs _________ Landlord for the collection
thereof, or as much thereof as may be necessary for the purpose toward the
amount due from Tenant as __________ for that period; and, Tenant shall pay to
Landlord any deficiency between the amount thus paid by the condemnor and the
amount of the rent, or Landlord shall pay to Tenant any excess of the amount of
the award over the amount of the rent.
10
20. QUIET ENJOYMENT. Tenant, upon paying the minimum rent, additional
rent and other charges herein provided for, and observing and keeping all
covenants, agreements and conditions of this lease on its part to be kept, shall
quietly have and enjoy the Premises during the term of this lease without
hindrance or molestation by anyone claiming by or through Landlord, subject,
however, to the exceptions, reservations and conditions of this lease.
21. ASSIGNMENT AND SUBLETTING.
(a) RESTRICTED ASSIGNMENT. Tenant shall not assign, mortgage, pledge
or encumber this lease, or sublet the whole or any part of the Premises, without
the prior written consent of Landlord which consent shall not be unreasonably
withheld or delayed. This prohibition against assigning or subletting shall not
be construed to include a prohibition against any assignment or subletting by
operation of law (except in bankruptcy or similar proceedings) and/or a transfer
by any person or persons controlling Tenant on the date of the lease of such
control to a person or persons not controlling Tenant on the date of the lease.
In the event of any assignment of this lease made with or without Landlord's
consent, Tenant nevertheless shall remain liable for the performance of all of
the terms, conditions and covenants of this lease and shall require any assignee
to execute and deliver to Landlord an assumption of liability agreement in form
satisfactory to Landlord, including an assumption by the assignee of all of the
obligations of Tenant and the assignee's ratification of and agreement to be
bound by all the provisions of this lease. Landlord shall be entitled to, and
Tenant shall promptly remit to Landlord 50 percent of any profit which may inure
to the benefit of Tenant as a result of any subletting of the Premises or
assignment of this lease, whether or not consented to by Landlord.
(b) PERCENTAGE AGREEMENTS. It is agreed that Tenant shall not enter
into any assignment, sublease, license, concession or other agreement for use,
occupancy or utilization of the whole or any part of the Premises with or
without Landlord's consent, which provides for rental or other payment for such
use, occupancy or utilization based, in whole or in part on the net income or
profits derived by any person or entity from the space leased, used, occupied or
utilized (other than an amounts based on a fixed percentage or percentages of
receipts or sales), and any such purported assignment, sublease, license,
concession or other agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the possession, use, occupancy or
utilization of any part of the Premises.
22. SUBORDINATES. This lease and Tenant's rights hereunder shall be
subject and subordinate at all times in lien and priority to any first mortgage
or other primary encumbrance now or, upon receipt by Tenant or a nondisturbance
agreement reasonably satisfactory to Tenant, hereafter placed upon or affecting
the Premises, and to any second mortgage or encumbrance with the consent of the
first mortgagee, and to all renewals, modifications, consolidations and
extensions thereof, without the necessity of any further instrument or act on
the part of Tenant. Tenant shall, upon receipt by Tenant of a nondisturbance
agreement reasonably satisfactory to Tenant, execute and deliver upon demand any
further instrument or instruments confirming the subordination of this lease to
the lien of any such first mortgage or to the lien of any other mortgage if
requested to do so by Landlord with the consent of the first mortgagee, and any
further instrument or instruments of attornment that may be desired by any such
mortgagee or Landlord. Notwithstanding the foregoing, any mortgagee may at any
time subordinate its
11
mortgage to this lease, without Tenant's consent, by giving notice in writing to
Tenant, and thereupon this lease shall be deemed prior to such mortgage without
regard to their respective dates of execution and delivery, and in that event
such mortgagee shall have the same rights with respect to this lease as though
this lease had been executed prior to the execution and delivery of the mortgage
and had been assigned to such mortgages.
23. MEMORANDUM OF LEASE: TENANT'S CERTIFICATE.
See Rider.
24. CURING PARTY DEFAULTS.
See Rider.
25. SURRENDER.
(a) Subject to the terms of Paragraphs 13(b) and 16(a) and (c) hereof
at the expiration or earlier termination of the term hereof, Tenant shall
promptly yield up, clean and neat, and in the same condition, order and repair
in which they are required to be kept throughout the term hereof, the Premises
and all improvements, alterations and additions thereto, and all fixtures and
equipment servicing the Building, ordinary wear and tear excepted.
(b) If Tenant, or any person claiming through Tenant, shall continue
to occupy the Premises after the expiration or earlier termination of the term
or any renewal thereof, such occupancy shall be deemed to be under a month-to-
month tenancy under the same terms and conditions set forth in this lease;
except, however, that the minimum annual rent during such continued occupancy
shall be the amount set forth in Paragraphs 5(a) and (b) hereof. Anything to
the contrary notwithstanding, any holding over by Tenant without Landlord's
prior written consent shall constitute a default ______________ and shall be
subject to all the remedies set forth in Article 26.
26. DEFAULTS - REMEDIES.
(a) DEFAULTS.
(i) If Tenant does not pay in full when due and without demand any
and all installments of minimum rent or _______________ rent or any other
charges or payments whether or not herein included as rent; or
(ii) Tenant violates or fails to perform or otherwise breaches any
agreement, term, covenant or condition he contained; or
(iii) If Tenant abandons the Premises or removes or attempts to
remove Tenant's goods or property therefrom other than in the ordinary course of
business without having first paid to Landlord in full all minimum rent,
additional rent and of charges that may have become due or does not continue to
pay such charges as they come due in the future; or
12
(iv) If Tenant becomes insolvent or bankrupt in any sense or makes
an assignment for the benefit of creditors offers a composition or settlement to
creditors, or if a petition in bankruptcy or for reorganization or for an
arrangement with credit under any federal or state law is filed by or against
Tenant, or a xxxx in equity or other proceeding for the appointment of a
receiver, trustee, liquidator, custodian, conservator or similar official for
any of Tenant's assets is commenced, or if any of the real or personal property
of Tenant shall be levied upon by an sheriff, marshal or constable; provided,
however, that any proceeding brought by anyone other than the parties to this
lease under any bankruptcy, reorganization arrangement, insolvency,
readjustment, receivership or similar law shall not constitute a default until
such proceeding, decree, judgment or order has continued unstayed for more than
sixty (60) consecutive days.
(b) REMEDIES. Then, and in any such event, Landlord shall have the
following rights:
(i) To charge a late payment penalty of live (5%) percent of any
amount owed to Landlord pursuant to this lease which is not paid within five (5)
days of the date which is set forth in the lease if a date is specified [SEE
RIDER] or, if a date is not specified, within thirty (30) days of the mailing of
a xxxx therefor by Landlord, if Landlord incurs a penalty in connection with any
payment which Tenant has failed to make within the times required in this lease,
Tenant shall pay Landlord, in addition to such sums, the full amount of such
penalty incurred by Landlord.
(ii) To accelerate the whole or any part of the rent for the
entire unexpired balance of the term of this lease, as we _________ as all other
charges, payments, costs and expenses herein agreed to be paid by Tenant, and
any rent or other charges, payments, costs and expenses if so accelerated shall,
in addition to any and all installments of rent already due and payable and in
arrears, and any other charge or payment herein reserved, included or agreed to
be treated or collected as rent and any other charge, expense or cost herein
agreed to be paid by Tenant which may be due and payable and in arrears, be
deemed due and payable as if, by the terms and provisions of this lease such
accelerated rent and other charges, payments, costs and expenses were on that
date payable in advance. SEE RIDER.
(iii) To enter the Premises and without further demand or notice
proceed to distress and sale of the goods, chattels and personal property there
found and to levy the rent and other charges herein payable as rent, and Tenant
shall pay all costs and officers' commissions which are permitted by law,
including watchmen's wages and sums chargeable to Landlord, and further
including commission(s) charged by the constable or other person making the
levy, and in such case all cost, officers' commissions and other charges shall
immediately attach and become part of the claim of Landlord for rent, and any
tender of rent without said costs, commissions and charges made after the
issuance of a warrant of distress shall not be sufficient to satisfy the claim
of Landlord.
(iv) To re-enter the Premises, together with all additions,
alterations and improvements, and, at the option of Landlord, remove all persons
and all or any property therefrom, either by summary dispossess proceedings or
by any suitable action or proceeding at law or by force or otherwise, without
being liable for prosecution or damages therefor, and
13
repossess and enjoy the Premises. Upon recovering possession of the Premises as
a result of a default on the part of Tenant, Landlord may, at Landlord's option,
either terminate this lease or make such alterations and repairs as may be
necessary in order to relet the Premises and relet the Premises or any part or
parts thereof, either in Landlord's name or otherwise, for a term or terms which
may, at Landlord's option, be less than or exceed the period which would
otherwise have constituted the balance of the term of this lease and at such
rent or rents and upon such other terms and conditions as in Landlord's
reasonable discretion may seem advisable and to such person or persons as may in
Landlord's discretion seem best; upon each such reletting all rents received by
Landlord from such reletting shall be applied: first, to the payment of any
costs and expenses of such reletting, including brokerage fees and attorney's
fees and all costs of such alterations and repairs; second, to the payment of
any indebtedness other than rent due hereunder from Tenant to Landlord; third,
to the payment of rent due and unpaid hereunder; and the residue, if any, shall
be held by Landlord and applied in payment of future rent as it may become due
and payable hereunder. If such rentals received from such reletting during any
month shall be less than that to be paid during that month by Tenant, Tenant
shall pay any such deficiency to Landlord. Such deficiency shall be calculated
and paid monthly. No such re-entry or taking possession of the Premises or the
making of alterations or improvements thereto or the reletting thereof shall be
construed as an election on the part of Landlord to terminate this lease unless
written notice of such intention be given to Tenant. Landlord shall in no event
be liable in any way whatsoever for failure to relet the Premises or, in the
event that the Premises or any part or parts thereof are relet, for failure to
collect the rent under such reletting, provided that Landlord agrees to use its
reasonable efforts to mitigate its damages. Tenant for Tenant and Tenant's
successors and assigns, hereby irrevocably constitutes and appoints Landlord
Tenant's and their agent to collect the rents due and to become due under all
subleases of the Premises or any parts thereof without in any way affecting
Tenant's obligation to pay any unpaid balance of rent due or to become due
hereunder. Notwithstanding any such reletting without termination. Landlord may
at any time thereafter elect to terminate this lease for such previous breach.
(v) To terminate this lease and the term hereby created without any
right on the part of Tenant to waive the forfeiture by payment of any sum due or
by other performance of any condition, term or covenant broken. Whereupon
Landlord shall be entitled to recover, in addition to any and all sums and
damages for violation of Tenant's obligations hereunder in existence at the time
of such termination, damages for Tenant's default in an amount equal to the
amount of the rent reserved for the balance of the term of this lease, as well
as all other charges, payments, costs and expenses herein agreed to be paid by
tenant, all discounted at the rate of eight percent (8%) per annum to their then
present worth, less the fair rental value of the Premises for the remainder of
said term, also discounted at the rate of eight percent (8%) per annum to its
then present worth, all of which amount shall be immediately due and payable
from Tenant to Landlord.
(c) NON-WAIVER.
SEE RIDER.
(d) GRACE PERIOD. Notwithstanding anything hereinabove stated, except
in the case of emergency as set forth in Article 24 and except in the event of
any default enumerated in
14
Paragraphs (a)(iii), (iv) and (v) of this Article, neither party hereto will
exercise any right or remedy provided for in this lease or allowed by law
because of any default of the other, except those remedies contained in
Paragraph (b)(i) of this Article unless such party shall have first given ten
(10) days written notice thereof, or in the case of nonmonetary default, 30 days
notice thereof to the defaulting party, and defaulting party shall have failed
to cure the default within such period; provided, however, that if the default
consists of something other than the failure to pay money which cannot
reasonably be cured within thirty (30) days, neither party hereto will exercise
any such right or remedy if the defaulting party begins to cure the default
within the thirty (30) days and continues actively and diligently in good faith
to completely cure said default; and further provided that Landlord shall be
required to give such ten (10) days notice regarding monetary default more than
two (2) times during any twelve (12) month period.
(e) RIGHTS AND REMEDIES CUMULATIVE. No right or remedy herein
conferred upon or reserved to either party is intended to be exclusive of any
other right or remedy provided herein or by law or equity, but each shall be
cumulative and in addition to every other right remedy given herein or now or
hereafter existing at law or in equity or by statute.
27. CONDITION OF TITLE AND OF PREMISES.
(a) Tenant represents that the Premises, the zoning thereof, the
street or streets, sidewalks, parking areas, curbs and access ways adjoining
them, any surface conditions thereof, and the present uses and non-uses thereof
have been examined by Tenant, and Tenant accepts them in the condition or state
in which they now are, or any of them now is, without relying on any
representation, covenant or warranty, express or implied, in fact or in law, by
Landlord and without recourse to Landlord as to the nature, condition or
usability thereof or the use or uses of which the Premises or any part thereof
may be put, except as to work to be performed by Landlord pursuant to Article 2
hereof. Subject to the completion of a mutually agreed upon punchlist of items
need correction. SEE RIDER.
(b) Tenant shall not suffer or permit the Premises or any portion
thereof to be used by the public without restriction of in such manner as might
reasonably tend to impair Landlord's title to the premises or in such manner as
might reasonably make possible claim or claims of adverse usage or adverse
possession by the public, as such, or of implied dedication of the premises or
any portion thereof.
28. INTERPRETATION.
(a) CAPTIONS. The captions in this lease are for convenience only and
are not a part of this lease and do not in any way define, limit, describe or
amplify the terms and provisions of this lease or the scope or intent thereof.
(b) ENTIRE AGREEMENT. This lease represents the entire agreement
between the parties hereto and there are no reasonably collateral or oral
agreements or understandings between Landlord and Tenant with respect to the
Premises. No rights, easements or licenses are acquired in the Premises or any
land adjacent to the Premises by Tenant by implication or otherwise except as
expressly set forth in the provisions of this lease. Tenant agrees to make such
15
changes to this lease as are required by any mortgagee, provided such changes do
not in Tenant's reasonable judgment, substantially affect Tenant's rights and
obligations hereunder. This lease shall not be modified in any manner except by
an instrument in writing executed by the parties. The masculine (or neuter)
pronoun, singular number, shall include the masculine, feminine and neuter
genders and the singular and plural number.
(c) EXHIBITS. Each writing or plan referred to herein as being
attached hereto as an Exhibit or otherwise designated herein as an Exhibit
hereto is hereby made a part hereof.
(d) COVENANTS. The terms, covenants and obligations set forth herein
all constitute conditions and not covenants of this lease.
(e) ARBITRATION. Wherever arbitration is set forth herein as the
appropriate resolution of a dispute, issues shall be submitted for arbitration
to the American Arbitration Association in the city nearest to the Premises in
which offices of the American Arbitration Association are located for
arbitration by a mutually acceptable arbitrator or arbitrators experienced in
commercial real estate disputes. Landlord and Tenant will comply with the rules
then obtaining of the American Arbitration Association and the determination of
award rendered by the arbitrator(s) shall be final, conclusive and binding upon
the parties and not subject to appeal, and judgment thereon may be entered in
any court of competent jurisdiction. Landlord and Tenant agree that _______
arbitrator's determination of award may include an award of attorney's fees to
the prevailing party.
(f) INTEREST. Wherever interest is required to be paid hereunder,
such interest shall be at the highest rate permitted under law but not in excess
of twelve (12%) percent.
29. DEFINITIONS.
(a) "LANDLORD". The word "Landlord" is used herein to include the
Landlord named above as well as its heirs, successors and assigns, each of whom
shall have the same rights, remedies, powers, authorities and privileges as he
would have had had he originally signed this lease as Landlord. Any such
person, whether or not named herein, shall have no liability hereunder after he
ceases to hold title to the Premises except for obligations which may have
theretofore accrued. Neither Landlord nor any principal of Landlord nor any
owner of the Building or the Lot, whether disclosed or undisclosed, shall have
any personal liability with respect to any of the provisions of this lease or
the Premises and if Landlord is in breach or default with respect to Landlord's
obligations under this lease or otherwise, Tenant shall look solely to the
equity of Landlord in the Premises for the satisfaction of Tenant's claims.
(b) "TENANT". The word "Tenant" is used herein to include the Tenant
named above as well as its successors and assigns, each of which shall be under
the same obligations, liabilities and disabilities and each of which shall have
the same rights, privileges and powers as it would have possessed had it
originally signed this lease as Tenant. Each and every of the persons named
above as Tenant shall be bound formally and severally by the terms, covenants
and agreements contained herein. However, no such rights, privileges or powers
shall inure to the benefit of any assignee of Tenant immediate or remote, unless
the assignment to such assignee is
16
permitted or has been approved in writing by Landlord. Any notice required or
permitted by the terms of this lease may be given by or to any one of the
persons named above as Tenant, and shall have the same force and effect as if
given by or to all thereof.
(c) "MORTGAGE" AND "MORTGAGEE". The word "mortgage" is used herein to
include any lien or encumbrance on the Premises or the Lot or on any part of or
interest in or appurtenance to the Premises, including without limitation any
ground rent or ground lease if Landlord's interest is or becomes a leasehold
estate. The word "mortgagee" is used herein to include the holder of any
mortgage, including any ground lessor if Landlord's interest is or becomes a
leasehold estate. Wherever any right is given to a mortgagee, that right may be
exercised on behalf of such mortgagee by any representative or servicing agent
of such mortgagee.
(d) "PERSON". The word "person" is used herein to include a natural
person, partnership, a corporation, an association, and any other form of
business association or entity.
(e) "DATE OF THIS LEASE". The "date of this lease" shall be the date
upon which this lease has been fully executed by both parties.
(f) "INDEX". The word "index" is used herein to mean the Average
Consumer Price Index for Urban Wage Earners and Clerical Workers (revised series
1982-84) issued from time to time by the Federal Bureau of Labor Statistics or
any successor agency that shall issue the index or any other measure hereafter
employed by the Federal Bureau of Labor Statistics, or any successor agency in
lieu of such index. If there be any controversy as to the measure to be
substituted, then the controversy shall be resolved by arbitration. The
arbitrators shall be guided by the intention of the parties herein to modify the
minimum annual rent to reflect upward changes in the cost of living. The fees
and expenses of the arbitration shall be __________ by Landlord and Tenant.
(g) "LOT". The metes and bounds description of the Lot is set forth
in Exhibit "D" attached hereto.
17
30. NOTICES. All notices, demands, requests, consents, certificates and
waivers required or permitted hereunder from either party to the other shall be
in writing and sent by United States certified mail, return receipt requested,
postage prepaid. Notices to Tenant shall be addressed to Leslie's Poolmart,
00000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000, Attn: Xxxxx X. XxXxxxxxx,
President, or, after the Commencement Date, to the Premises, Notices to Landlord
shall be addressed to 00 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, XX 00000,
with a copy to any mortgagee or other party designated by Landlord. Either
party may at any time, in the manner set forth for giving notices to the other,
specify a different address to which notices to it shall be sent.
31. SECURITY DEPOSIT. At the time of signing this lease, Tenant shall
deposit with Landlord the sum of Ten Thousand Dollars ($10,000.00) to be treated
in the manner set forth in the letter of intent dated October 13, 1994.
32. ADDITIONAL ARTICLES. The following Additional Articles 33 through 40
[AND RIDER] attached hereto are hereby made a part hereof.
IN WITNESS WHEREOF, and in consideration of the mutual entry into this
lease and for other good and valuable consideration, and intending to be legally
bound, each party hereto has caused this agreement to be duly executed under
seal.
Date signed: Landlord:
___________________________ LIBERTY PROPERTY LIMITED
PARTNERSHIP
By: Liberty Property Trust, General Partner
By:___________________________________
Date signed: Tenant:
___________________________ LESLIE'S POOLMART
By:___________________________________
Attest:________________________________
[Corporate Seal]
18
RIDER ATTACHED TO AND FORMING PART OF
AGREEMENT OF LEASE BETWEEN
LIBERTY PROPERTY LIMITED PARTNERSHIP, AS LANDLORD, AND
LESLIE'S POOLMART, AS TENANT
PREMISES: 000 XXXXXXXX XXXXX
XXXXX XXXXXXXX
XXXXXXXX, XXX XXXXXX
(Paragraph numbers herein refer to paragraph numbers in the Agreement of Lease)
2. Landlord shall perform the improvements in accordance with plans and
specifications to be prepared based upon the layout prepared by Semco, Sweet &
Xxxxxx, Inc., dated November 1, 1994, a copy of which is attached hereto as
Exhibit "F", except that the racking system indicated thereon and finish work to
the office space will be performed by Tenant at its cost and expense and the
fire protection work for the Premises will be performed by Landlord in
accordance with the plan dated September 9, 1994. In the event the improvements
to be performed by Landlord (the "Improvements") are not substantially completed
on or before January 1, 1995, as such date may be extended for delays caused by
changes in the plans and specifications requested by Tenant or Force Majeure,
Tenant shall receive a credit against minimum rent in an amount equal to one (1)
day's prorated rent for each day thereafter until the improvements are
substantially completed.
Landlord further agrees that, promptly after completion of the Improvements
and subject to Force Majeure, it will extend a portion of the asphalt pad in the
loading area as shown on the Site Plan attached hereto as Exhibit "G", but the
failure to complete same, by January 1, 1995 shall not result in any rent credit
to Tenant or delay the Commencement Date of this Lease. During the term of this
Lease, if Tenant should require additional space in the loading area, Landlord
shall cooperate with Tenant, at no expense to Landlord, in obtaining required
variances and approvals to further extend the asphalt pad.
5. (a) Tenant shall pay rent as follows:
Lease Year Minimum Annual Rent Monthly Installment
---------- ------------------- -------------------
1 $285,033.00 $23,752.75
2 293,176.80 24,431.40
3 301,320.60 25,110.05
4 309,464.40 25,788.70
5 317,608.20 26,467.35
6 325,752.00 27,146.00
7 333,895.80 27,824.65
8 342,039.60 28,503.30
9 350,183.40 29,181.95
10 358,327.20 29,860.60
For purposes of this Lease, a "Lease Year" shall mean the period in any
calendar year during the term of this Lease commencing on the anniversary of the
first day of the first full month after the Commencement Date and ending one (1)
year thereafter, except that the first Lease Year shall commence on the
Commencement Date and end on the anniversary of the first day of the first full
mouth after the Commencement Date.
7. (a) (iii) Tenant may satisfy. all of its insurance requirements
hereunder by self-insurance provided that Tenant's net worth (as indicated on
financial statements to be delivered to Landlord on the Commencement Date and
each anniversary thereof ) is (A) equal to or greater than the net worth shown
on Tenant's most recent financial statement issued prior to the date hereof, or
(B) reasonably satisfactory to Landlord.
(f) Landlord shall maintain and keep in effect throughout the term of
this Lease insurance against loss or damage to the Building or the Premises by f
ire and such other casualties as may be included within either fire or extended
coverage insurance or all-risk insurance, and such other insurance as Landlord
may reasonably desire which is regularly required of tenants in similar
situations or may be reasonably required from time to time by any mortgagee or
as may be required generally by mortgage institutions. Tenant shall pay to
Landlord as additional rent the full amount of the cost of premiums required to
be paid by Landlord for insurance promptly upon being billed therefor.
8. (a) Tenant shall have the right to use portions of the Premises for
outdoor storage, subject to compliance by Tenant with all recorded covenants and
governmental requirements affecting the Premises. Landlord shall warrant that
the HVAC system in the Premises will be in good working order for a period of
ninety (90) days after the Commencement Date.
(c) Tenant shall pay the full, cost of all work to be performed by
Landlord pursuant to this subparagraph (c) as additional rent promptly upon
being billed therefor. Landlord covenants and agrees to at all times maintain
the Premises as a high quality industrial property consistent with the standards
of operation applicable to such facilities in the county in which it is located.
(d) Landlord, throughout the term of this Lease, shall make all
necessary repairs to the utility lines, equipment and other utility facilities
in the Building, and to any driveways, sidewalks, curbs, loading, parking and
landscaped areas, and other exterior improvements on the Premises; provided,
however, that Landlord shall have no responsibility to make any repairs unless
and until Landlord receives written notice of the need for such repair. Tenant
shall pay the full cost of all repairs to be performed by Landlord pursuant to
this subparagraph (d) as additional rent promptly upon being billed therefor.
(e) In consideration for the performance of repairs and maintenance by
Landlord hereunder, Tenant shall pay Landlord, without notice or demand,
together with each installment of minimum rent due hereunder, a management fee
in an amount equal to two (2%) percent of such monthly installment.
2
12. Tenant shall have the exclusive right to erect and maintain the
maximum amount of signage that Tenant deems appropriate to conduct its business,
provided any such sign or signs comply with all applicable governmental
regulations and recorded covenants of the industrial park in which the Premises
is located. Landlord agrees that no signs or advertising matter of any nature
other than Tenant's shall be permitted on any part of the Premises. Landlord
shall cooperate with Tenant at no expense to Landlord in obtaining any variance
from restrictions placed on the use-of signs by local authorities.
18. (b) Landlord will indemnify Tenant and save Tenant harmless from and
against any and all claims, actions, damages, liability and expense (including
without limitation fees of attorneys, investigators and experts) in connection
with loss of life, personal injury or damage to property caused to any person in
or about the Premises occasioned wholly or in part by any act or omission of
Landlord, its agents, contractors, employees, licensees or invitees; unless such
loss, injury, or damage was caused by the negligence of Tenant, its agents,
employees, licensees or invitees.
23. (a) Either party at any time and from time to time and within ten
(10) days after the other's written request, shall execute, acknowledge and
deliver to the other party a short form or memorandum of this lease for
recording purposes.
(b) Either party at any time and from time to time and within ten (10)
days after the other's written request, and so long as the other is not in
default of this lease, shall. execute, acknowledge and deliver to the requesting
party a written instrument in recordable form certifying that this lease is
unmodified and in full force and effect (or, if there have been modifications,
that it is in full force and effect as modified and stating the modifications);
stating that the improvements required by Article 2 hereof have been completed;
certifying that Tenant has accepted possession of the Premises; stating the date
on which the term of the lease commenced and the dates to which minimum rent,
additional rent and other charges have been paid in advance, if any; stating
that to the best knowledge of the signer of such instrument, the other party is
not in default of this lease; stating any other fact or certifying any other
condition reasonably requested by such party or required by any mortgagee or
prospective mortgagee or purchaser of the Premises or Tenant or any interest
therein; and stating that it is understood that such instrument may be relied
upon by any mortgagee or prospective mortgagee or purchaser of the Premises or
Tenant or any interest therein or by any assignee of the requesting party's
interest in this lease or by any assignee of any mortgagee. The foregoing
instrument shall be addressed to the requesting party and to any mortgagee,
prospective mortgagee, purchaser or other party specified by the requesting
party.
24. If either party shall be in default in the performance of any of its
obligations hereunder, the nondefaulting party without any obligation to do so,
in addition to any other rights it may have in law or equity, may elect to cure
such default on behalf of the defaulting party after thirty (30) days written
notice (except in the case of emergency) to the defaulting party. The
defaulting party shall reimburse the nondefaulting party upon demand for any
sums paid or costs incurred by the nondefaulting party in curing such default,
including interest thereon from the respective dates of making the payments and
incurring such costs, which sums and costs together with interest thereon shall
be payable promptly upon being billed therefor.
3
26. (b) (i) . . . provided that with respect only to the first payment
in any Lease Year which is in arrears in excess of the time set forth in this
subparagraph, such late payment penalty shall not be payable unless Tenant fails
to make such payment within five (5) days after receipt of written notice
thereof from Landlord.
(ii) Notwithstanding anything to the contrary herein contained,
Landlord may not recover under this subparagraph and subparagraph (v) an
aggregate amount in excess of sums recoverable by Landlord under subparagraph
(v).
(c) No waiver by either party of any breach by the other of any of
such party's obligations, agreement or covenants herein shall be a waiver of any
subsequent breach or of any obligation, agreement or covenant, nor shall any
forbearance by either party to seek a remedy for any breach by the other be a
waiver by such party of any rights and remedies with respect to such or any
subsequent breach.
27. The parties shall conduct an inspection of the Premises and prepare a
punchlist immediately prior to the Commencement Date. Landlord will promptly
thereafter proceed to remedy all items on the punchlist in a diligent manner
within a reasonable period of time.
33. Restricted Activities.
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(a) Tenant, at its sole cost and expense, shall comply with (i) all
federal, state and municipal laws, ordinances, notices, orders, rules,
regulations and requirements, (ii) any requirements of the National Board of
Fire Underwriters or any other body exercising similar functions and (iii) the
requirements of all public liability, fire and other policies of insurance
covering the Premises, relating to Tenant's treatment, production, storage,
handling, transfer, processing, transporting, use, disposal and release of
hazardous substances, toxic or radioactive matter. In addition Tenant shall
take similar precautions with any other materials or substance which, even it
not regulated by law or requirements as aforesaid, way or could pose a hazard to
the health and safety of the current or future occupants of the Premises, or the
owners or occupants of property adjacent to or in the vicinity of the Premises.
All of the above activities are hereinafter referred to as "Restricted
Activities." Tenant shall be solely responsible for and shall defend, indemnify
and hold Landlord, and its agents, successors and assigns, harmless from and
against all claims, actions, damages, liabilities and expenses (including
without limitation, fees of attorneys investigators and experts) arising out of
or in connection with (A) Restricted Activities by Tenant, its agents,
contractors, employees, licensees or invitees and (B) the removal, clean-up and
restoration work and materials necessary to return the Premises and any other
property adjacent to or in the vicinity of the Premises and the Building) to
their condition existing prior to the Restricted Activities. Tenant's
obligations hereunder shall survive the termination of this lease. If at any
time during or after the term and any term of -this lease, Tenant becomes aware
of any inquiry, investigation, administrative proceeding or judicial proceeding
regarding the Restricted Activities, Tenant shall, within five (5) days after
first learning of such inquiry, investigation or proceeding, give Landlord
written notice providing all available information regarding such inquiry,
investigation or proceeding.
4
(b) Landlord shall be solely responsible for and shall defend,
indemnify and hold Tenant, and its agents, successors and assigns, harmless from
and against all claims, actions, damages, liabilities and expenses (including
without limitation, fees of attorney, investigators and experts) arising out of
or in connection with the conduct of Restricted Activities on the Premises at
any time by any party other than Tenant, its agents, contractors, employees,
licensees or invitees, or the remediation thereof. Landlord's obligations
hereunder shall survive the termination of this lease.
34. Environmental Information. At all times during and after the term of
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this lease, Tenant shall furnish Landlord, upon request, with such information
with respect to Tenant's operations at the Premises as is necessary in order for
Landlord or any successor owner of the Premises to comply with the New Jersey
Industrial Site Recovery Act, N.J. Stat. Xxx 13:1K-6 et seq. and other federal
and New Jersey environmental laws regulations and ordinances, including without
limitation affidavits to be submitted to the New Jersey Department of
Environmental Protection and Energy in connection with requests for letters of
non-applicability and negative declarations. Tenant's obligations hereunder
shall survive the termination of this lease.
35. Options to Extend.
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(a) Provided Tenant is not then in default under this lease, Tenant
shall have the right and option, exercisable by giving Landlord prior written
notice thereof more than six (6) months in advance of the Expiration Date of the
original term or any additional term of. this lease, as the case may be, to
extend the term of this lease under the same terms and conditions as herein set
forth for three (3) additional terms of five (5) years each, the additional term
to begin on the Expiration Date;
(b) The minimum annual rent for each Lease Year of each additional
term hereof shall be set in accordance with the formula set forth in
subparagraph (c) below. In applying the formula, the following definitions
shall prevail:
(1) "Prior Index" is the monthly Index as defined in Article 29
issued in the month which is twelve (12) months prior to the
Commencement Date of each Lease Year of the additional term(s).
(2) "Latest Index" is the monthly Index issued for the calendar
month of the Commencement Date of each Lease Year of the additional
term(s).
(3) "Previous Rent" is the minimum annual rent applicable to the
immediately prior Lease Year.
(c) The minimum annual rent shall be adjusted for each Lease Year of
each additional term. The minimum annual rent for any Lease Year of an
additional term shall be equal to the lesser of (i) 102.5% of the Previous Rent
or (ii) the amount which bears the same ratio to the Previous Rent as the Latest
Index bears to the Prior Index, provided that in no event shall the minimum
annual rent for any Lease Year be less than the Previous Rent.
5
36. Landlord Charges.
-----------------
(a) Tenant shall have the right, upon reasonable prior written notice,
to audit at Landlord's principal place of business, Landlord's charges for
maintenance and repairs, insurance, utilities and other charges for which
Landlord has billed Tenant during the preceding calendar year or accounting
period, to determine if such charges are correct. Tenant shall have the right
to conduct this audit not more than once each calendar year, and Landlord shall
fully cooperate in such regard at no expense to Landlord. If an audit discloses
any charge to Tenant which is five percent (5%) or more in excess of the amount
actually owed by Tenant, Landlord shall reimburse Tenant for the reasonable
costs of the audit conducted. Any overpayment shall be promptly refunded to
Tenant and shall bear interest at twelve percent (12%) per annum or the highest
lawful interest rate, whichever is less.
(b) In any year, Tenant's payments to Landlord for maintenance and
repairs and insurance shall never increase by more than three percent (3%) over
the prior year. Expenses for snow removal shall not be included in this cap.
Expenses (legal or otherwise) which are incurred in connection with financing
costs or debt service for the Premises; depreciation of the Building and the
cost of repairing defective construction; work covered by insurance and
warranties; overhead and profit increments paid by or to Landlord for services
exceeding those charged by unaffiliated third parties on a competitive basis;
Landlord's costs related to conforming the Premises to present and future laws;
any fees for overhead, general, administrative or management expenses except the
two percent (2%) fee set forth in Section 8(e); and reserves maintained in
connection with the Premises, shall be excluded from expenses for which Tenant
is charged. Such expenses shall include capital expenditures only to the extent
of the annual amortized portion, if any, of the amount thereof provided such
amortization in spread over the reasonably anticipated useful life thereof.
37. Prevailing Party Attorney's Fees. In the event any action or suit is
--------------------------------
brought by a party hereto against the other party hereto, by reason of any
alleged breach or default arising hereunder, the party in whose favor the final
judgment is entered shall be entitled to recover from the other party reasonable
attorney's fees and costs incurred by the prevailing party in connection with
such action or suit.
38. Landlord Representations. Landlord represents and warrants that on
------------------------
the Commencement Date (a) Tenant's permitted use will not violate any
exclusivity clause or other restriction contained in any other lease with
respect to the Premises or in any other agreement or document to which Landlord
is or will be a party; (b) Landlord will have good and marketable title to the
Premises, free of liens and encumbrances which could prevent the use of the
Premises for the uses permitted under this Lease; (c) all taxes an the Premises,
except current taxes not delinquent, will be paid in full and (d) to the best of
Landlord's knowledge, the Premises will comply with all laws, rules, statutes
and regulations, including but not limited to the requirements of all
environmental laws.
39. Brokers. Landlord and Tenant each warrant and represent that they
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have had no dealings, negotiations or consultations with any broker in
connection with this lease, except for CB Commercial Realty Group, Inc., whose
commission shall be paid by Landlord. Landlord and
6
Tenant hereby agree to indemnify and hold each other harmless from all damages
(including reasonable attorneys' fees and costs) resulting from any claims that
may be asserted against them by any other broker, finder, or other person with
whom either party has dealt.
40. Contingency. This lease and the obligations of the parties hereunder
-----------
are contingent upon the acquisition by Landlord of title to the Premises. In
the event Landlord has not obtained title to the Premises on or before December
1, 1994, either party may, at its option, cancel this Lease, upon notice to the
other within five (5) days after such date, without further liability hereunder.
7
EXHIBIT "A"
Lot Outline
SEE EXHIBIT C
EXHIBIT "B"
Plans
SEE EXHIBIT F
EXHIBIT "C"
Specifications
SEE EXHIBIT F
EXHIBIT "D"
ALL THAT CERTAIN tract or parcel of land and premises, situate in the
Township of Xxxxx, County of Gloucester and State of New Jersey, bounded and
described as follows:
BEGINNING at a point in the centerline of Cardinal Drive Phase I (60 feet
wide), said point being the following courses along the centerline of Cardinal
Drive and the old centerline and title line of Pedricktown-Center Square Road;
(a) North 25 degrees 42 minutes 18 seconds West, a distance of 570.00
feet; thence
(b) A curve of the left, an arc distance of 471.99 feet, having a radius
of 750.00 feet, thence
(c) North 61 degrees 45 minutes 45 seconds West, a distance of 100.95
feet; thence
(d) a curve to the right, an arc distance of 222.08 feet, having a radius
of 1005.00 feet to the point of beginning, said tract of land having the
following courses;
(1) From said point of beginning and leaving the centerline of
Cardinal Drive, South 45 degrees 51 minutes 41 seconds West, a distance of
707.45 feet to a point; thence
(2) North 44 degrees 08 minutes 19 seconds West, a distance of 425.19
feet to a point in the Northerly title line of lot 2.02 Block 40.01; thence
(3) Leaving the Northerly title line of Lot 2.02 Block 40.01, North 45
degrees 51 minutes 41 seconds East, a distance of 681.42 feet to a point in the
centerline of proposed Cardinal Drive Phase II; thence
(4) Continuing along the proposed centerline of Cardinal Drive, an arc
length of 88.06 feet, having a radius of 500.00 feet and a chord bearing on
South 51 degrees 30 minutes 13 seconds East to a point of tangency in the
aforesaid centerline; thence
(5) Continuing along said proposed centerline, South 46 degrees 27
minutes 29 seconds East, a distance of 21.93 feet to a point, said point being
the end of Cardinal Drive Phase I centerline; thence
(6) Continuing along the centerline of Xxxxxxxx Xxxxx, 00 degrees 27
minutes 29 seconds East, a distance of 270.00 feet to a point of curvature;
thence
(7) Continuing along said centerline, an arc length of 46.37 feet,
having a radius of 1005.00 feet and a chord bearing of South 47 degrees 46
minutes 48 seconds East to the point of beginning.
CONTAINING within said bounds 6.80 Acres.
BEING shown and designated as Lot 2.01 Block 40.01 on Subdivision of
"Proposed Xxx 0.00, Xxxxx 00.00, Xxxxx Xxxxxxxx, Xxxxxxxxxx Xxxxxx, Xxx Xxxxxx,"
prepared by Pennoni Associates, Inc., dated October 12, 1988 and duly filed in
the Gloucester County Clerk's Office on November 17, 1988 as Map Number 7-499.
ALSO BEING shown and designated as Lot 2.01 Block 40.01 Plate 7 on the
Current Tax Map of the Township of Xxxxx, and assessed as Lot 2.01 Block 40 on
the Current Tax Assessment Rolls of said Township.
BEING further known as 000 Xxxxxxxx Xxxxx.
2
EXHIBIT "E"
Tenant's Furnishings and Equipment
EXHIBIT "F"
Layout Plan
SEE ATTACHED
