L E A S E A G R E E M E N T
Between
MIDLAND HOLDING CO., INC.
Landlord,
-and-
XXXXX BROS. ELECTRONICS, INC.
Tenant.
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DATED: July 15, 1990
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TABLE OF CONTENTS
Article Topic Page
------- ----- ----
I Description of Premises.................................. 1
II Term of Lease............................................ 1
III Rent..................................................... 2
IV Taxes, Assessments, Utility Charges...................... 2
V Use and Occupancy........................................ 3
VI Alteration, Maintenance and Repair....................... 5
VII Indemnification and Subrogation.......................... 6
VIII Insurance................................................ 6
IX Damage or Destruction.................................... 7
X Eminent Domain -- Condemnation........................... 7
XI Default and Remedies..................................... 8
XII Security................................................. 9
XIII Assignment and Subletting................................ 10
XIV Subordination............................................ 11
XV Bankruptcy............................................... 11
XVI Expiration of Lease...................................... 11
XVII Inspection and Exhibition................................ 12
XVIII Ingress and Egress....................................... 12
XIX Notice................................................... 13
XX Recordation.............................................. 13
XXI Limitation of Landlord's Liability....................... 13
XXII Brokerage Commissions.................................... 13
XXIII Estoppel Certificates.................................... 13
XXIV Governmental Permits..................................... 14
XXV Quiet Enjoyment.......................................... 14
XXVI Force Majeure............................................ 14
XXVII Miscellaneous............................................ 14
XXVIII Rider.................................................... 16
L E A S E A G R E E M E N T
THIS LEASE, made and entered into this 15th day of JULY, 1990 by and
between
MIDLAND HOLDING CO., INC. (hereinafter "Landlord"), a New Jersey Corporation
having an address for the purposes hereof at 000 X. Xxxxxxx Xxxxxx, Xxxxxx
Xxxxx, Xxx Xxxxxx 00000,
and
XXXXX BROS. ELECTRONICS, INC. (hereinafter "Tenant"), a New Jersey Corporation
having an address for the purposes hereof at
East 00 Xxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
WITNESSETH:
ARTICLE I
DESCRIPTION OF PREMISES
LANDLORD, for and in consideration of the rents to be paid and of the
covenants and agreements hereinafter mentioned, to be kept and performed by
TENANT, does hereby lease, demise and let unto TENANT, and TENANT does hereby
hire and accept from Landlord, the following described premises (sometimes
hereinafter referred to as the "demised premises"), situated in the Township of
Saddle Brook, County of Bergen, State of New Jersey:
Approximately 17,055 square feet in a building
presently existing at 000 X. Xxxxxxx Xxxxxx,
Xxxxxx Xxxxx, Xxx Xxxxxx, known as "Building M-2"
as shown on the diagram annexed hereto as Exhibit
A, in an area commonly referred to as Zuckerberg's
Industrial Park, and more particularly described
as a portion of Block 1202, Lot 32.01 of the
Township of Saddle Brook Tax Assessment Map, to
include parking for twenty-five (25) vehicles.
ARTICLE II
TERM OF LEASE
2.1 The term of this lease shall be for a period of FIVE (5) years
commencing SEPTEMBER 1, 1990 and expiring
AUGUST 31, 1995
2.2 Provided that TENANT is not in default in the performance of any of the
terms, conditions and covenants of this Lease, TENANT shall have the option to
negotiate a new lease for the demised premises, for an additional five years.
2.3 The option shall be exercised, if at all, by Tenant giving written
notice to Landlord of its election to renegotiate this Lease at least six (6)
months prior to the expiration of said lease.
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ARTICLE III
RENT
3.1 TENANT covenants and agrees to pay to LANDLORD as fixed rental on
the demised premises the sum of SEVENTY-TWO THOUSAND FOUR HUNDRED EIGHTY and
00/100 ($72,480.00) per annum, without demand, set-off or deduction of any
kind.
3.2 The rent shall be paid in advance in equal monthly installments of
SIX THOUSAND FORTY DOLLARS and 00/100********************** ($6,040.00) on
or before the first day of each month, the rent to begin on
OCTOBER 1, 1990
3.3 The rent reserved hereunder shall be paid to LANDLORD without any
claim on the part of TENANT for diminution or abatement. TENANT'S obligation
to pay rent hereunder and to perform the covenants and agreements on its
part to be performed hereunder, shall in no way be affected, impaired or
excused in any respect because the LANDLORD is unable, for any reason
whatsoever, to fulfill any of its obligations hereunder or because TENANT'S
use and occupancy shall be disturbed or prevented from any cause whatsoever,
shall be disturbed or prevented from any cause whatsoever, except the LANDLORD'S
acts, or as otherwise specifically provided in this Lease.
3.4 All rents shall be payable at the office of LANDLORD, MIDLAND HOLDING
CO., INC. 000 X. Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000,
or at such other place as LANDLORD may from time to time designate by notice
in writing.
3.5 Whenever under the terms of the Lease any sum of money is required
to be paid by TENANT in addition to the rental reserved, and said additional
amount so to be paid is not designated as "additional rent," then said amount
shall nevertheless, at the option of LANDLORD, if not paid when due, be deemed
"additional rent" and collectible as such with any installment of rental
thereafter falling due hereunder. Nothing herein contained shall be deemed to
suspend or delay the payment of any sum at the time the same becomes due and
payable hereunder, or limit any other remedy of LANDLORD.
ARTICLE IV
TAXES, ASSESSMENTS, UTILITY CHARGES
4.1 As additional rental, TENANT agrees to reimburse LANDLORD a portion
of real estate taxes as follows: TENANT shall pay a "base tax" of FIVE
THOUSAND ONE HUNDRED TWENTY and 00/100 ($5,120.00) per annum for Building H-2
plus the percentage increase for Block 1202 - Lot 32.03 based on the year 1989.
Notices shall be delivered to TENANT on or before July 1st of each year and
reimbursement shall be made to LANDLORD within ten (10) days of receipt of
such notice. In the event that the Township of Saddle Brook performs a
reevaluation of the municipality, the base tax shall be adjusted accordingly.
Tax reimbursement shall commence on JULY 1, 1991.
4.2 Utilities and services, including but not limited to gas, oil, water,
sewerage and electricity, furnished to the demised premises for the benefit of
TENANT shall be provided and paid for by TENANT, LANDLORD shall not be liable
for any interruption or delay in any utility for any reason.
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ARTICLE V
USE AND OCCUPANCY
5.1 TENANT has leased the demised premises after a full and complete
examination thereof, and TENANT accepts the same without any representation or
warranty, express or implied, in fact or by law, by LANDLORD and without
recourse to LANDLORD, as to the nature, condition or usability thereof or the
use or uses to which the demised premises or any part thereof may be put.
5.2 TENANT shall use and occupy the premises for the purpose of operating
its business including Corporate offices, sales offices, warehousing, repair and
manufacture of electronic equipment, and related items.
5.3 TENANT shall not use the premises for any other purpose without the
prior written consent of LANDLORD, which shall not be unreasonably withheld.
5.4 Notwithstanding the foregoing, TENANT shall not use or occupy or permit
the demised premises to be used or occupied, nor do or permit anything to be
done in or on the demised premises, in whole or in part, in a manner which would
in any way:
(i) violate any certificate of occupancy affecting the demised
premises;
(ii) make void or voidable any insurance then in force with respect to
the demised premises;
(iii) make it impossible to obtain fire or other insurance required to
be furnished by TENANT hereunder;
(iv) cause structural injury to any part of the demised premises;
(v) constitute a public or private nuisance;
(vi) interfere with the rights of other tenants;
(vii) suffer any waste or damage or injury to any building or
improvement now or hereafter on the demised premises, or the fixtures or
equipment hereof, or permit or suffer any overloading of the floors or roofs
thereon.
(viii) violate any present or future law, regulation, or requirement of
any governmental, public or quasipublic authorities at any time having
jurisdiction of the demised premises. TENANT shall maintain the demised premises
in compliance with all of the foregoing during the term of this Lease.
5.5 (a) TENANT agrees to observe and comply with all present or future
laws, ordinances, rules and regulations of the Federal, State, County, and
Municipal authorities applicable to the business to be conducted by TENANT in
the demised premises.
(b) TENANT shall indemnify, defend and save harmless LANDLORD from all
fines, suits, procedures, claims and actions of any kind arising out of or in
any way connected with TENANT'S non-compliance or violation of any of the
aforementioned.
(c) Should any situation at the demised premises be deemed hazardous or
otherwise unacceptable by any governmental authority, such situation may be
remedied by LANDLORD at TENANT'S sole expense. Any amounts so expended by
LANDLORD shall be owed by TENANT as additional rent.
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(d) LANDLORD'S right to remedy any hazardous situation hereby given
shall in no way be deemed to impose a duty on LANDLORD to inspect the demised
premises for such situations.
5.6 (a) TENANT shall, at TENANT'S own expense, comply with the
Environmental Cleanup Responsibility Act, N.J.S.A. 13:1K-6 et seq. and the
regulations promulgated thereunder (hereinafter "ECRA"). TENANT shall, at
TENANT's own expense, make all submissions to, provide all information to, and
comply with all requirements of, the Bureau of Industrial Site Evaluation
(hereinafter "the Bureau") of the New Jersey Department of Environmental
Protection (hereinafter "DEP"). Should the Bureau or any other division of NJDEP
determine that a cleanup plan be prepared and that a cleanup be undertaken
because of any spills or discharges of hazardous substances or wastes at the
premises which occur during the term of this Lease, then TENANT shall, at
TENANT's own expense, prepare and submit the required plans and financing
assurances, and carry out the approved plans. TENANT'S obligations under this
part shall arise if there is any closing, terminating or transferring of
operations of an industrial establishment at the demised premises pursuant to
ECRA.
(b) At no expense to LANDLORD, TENANT shall promptly provide all
information requested by LANDLORD for preparation of non-applicability
affidavits and shall promptly sign such affidavits when requested by LANDLORD.
(c) TENANT shall indemnify, defend and save harmless LANDLORD from all
fines, suits, procedures, claims and actions of any kind arising out of or in
any way connected with any spills or discharges of hazardous substances or
wastes at the demised premises which occur during the term of this Lease, and
from all fines, suits, procedures, claims and actions of any kind arising out of
TENANT'S failure to provide all information, make all submissions and take all
actions required by the Bureau or any other division of NJDEP.
(d) TENANT'S obligations and liabilities under this section shall
continue so long as LANDLORD remains responsible for any spills or discharges or
hazardous substances or wastes at the demised premises which occur during the
term of this Lease.
(e) TENANT'S failure to abide by the terms of this section shall be
restrainable by injunction.
5.7 (a) TENANT shall promptly provide LANDLORD with all documentation and
correspondence provided to NJDEP pursuant to the Worker and Community Right to
Know Act, N.J.S.A. 34:5A-1 et seq. and the regulations promulgated thereunder.
(b) TENANT shall promptly supply to LANDLORD all reports and notices
made by TENANT pursuant to the Hazardous Substance Discharge--Reports and
Notices Act, N.J.S.A. 13:1K-15 et seq. and the regulations promulgated
thereunder.
(c) TENANT shall promptly supply LANDLORD with any notices,
correspondence and submissions made by TENANT to NJDEP, the United States
Environmental Protection Agency, the United States Occupational Safety and
Health Administration, or any other local, state or federal authority which
requires submission of any information concerning environmental matters or
hazardous wastes or substances.
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ARTICLE VI
ALTERATION, MAINTENANCE AND REPAIR
6.1 Except as otherwise provided in this Lease, throughout the term of this
Lease LANDLORD shall not be required to furnish any services or facilities or to
make any repairs or alterations in or to the demised premises, TENANT hereby
accepting said premises "as is" and assuming the full and sole responsibility
for the condition, operation, repair, replacement, maintenance and management of
the entire demised premises.
6.2 (a) TENANT agrees to keep the exterior doors and the interior portion
of the demised premises including, but not limited to, the plumbing, heating,
air conditioning, wiring, windows and sprinklers, in as good order and repair
as it is on the date TENANT obtains possession of the premises, reasonable
wear and tear and damage caused by LANDLORD and its agents, and damage by fire,
explosion, storm or other casualty excepted.
(b) TENANT shall keep the demised premises and the area adjacent
thereto, including any landscaped area, in a clean and sanitary condition and
free from litter, debris, trash, and other objectionable matter.
(c) TENANT shall maintain in good repair those exterior improvements,
if any, which TENANT caused to be erected upon the demised premises.
(d) At all times during the term of this Lease, TENANT shall keep and
maintain in good condition and repair and shall keep clean and cleared of snow
and ice all that portion of the parking area designated on Exhibit A annexed
hereto, at the sole cost and expense of TENANT.
6.3 LANDLORD shall, at its expense, maintain and repair, if necessary and
upon reasonable notice by Tenant, the structural supports and exterior of the
demised premises including, but not limited to, the foundation, exterior walls,
roof, cornices, guttering, downspouts, all utility and sewer line connections to
the demised premises, the sidewalks, driveways, loading and parking areas,
except for any repairs caused by the wrongful act of TENANT and its agents.
6.4 (a) Upon obtaining the prior written consent of LANDLORD, TENANT shall
have the right to make, at its sole cost and expense, additions, alterations and
changes in and to the demised premises, provided that TENANT shall not then be
in default in the performance of any of TENANT'S covenants or agreements in this
Lease.
(b) No sign, advertisement or notice shall be affixed to or placed upon
any part of the demised premises by TENANT, except in such manner, and of such
size, design and color as shall conform to government regulations and be
approved in advance in writing by LANDLORD, which approval shall not be
unreasonably withheld.
(c) If a mechanic's lien is filed against the demised premises as a
result of erections, alterations, additions or improvements made by TENANT, then
LANDLORD may, at its sole option, upon thirty (30) days' notice to TENANT
terminate this Lease, and may discharge said lien without inquiring into the
validity thereof, and TENANT shall forthwith reimburse LANDLORD for the total
expenses, including but not limited to attorney's fees, incurred by LANDLORD in
discharging the same.
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ARTICLE VII
INDEMNIFICATION AND SUBROGATION
7.1 LANDLORD shall not be responsible for the loss of or damage to
property, or injury to persons, occurring in or about the demised premises, by
reason of any existing or future condition, defect, matter, or thing on said
premises or the property of which the premises are a part, or for the acts,
ommissions or negligence of other persons or tenants in and about the said
property.
7.2 TENANT agrees to indemnify and save LANDLORD harmless from all claims
and liability for losses of or damage to property, or injuries to persons
occurring in or about the demised premises.
7.3 To the extent TENANT carries hazard insurance on the demised premises
or on the property therein, whether or not required hereby, each such policy of
insurance shall contain a provision waiving subrogation against LANDLORD. TENANT
hereby releases LANDLORD from any liability which LANDLORD may have for damages
by fire or other casualty with respect to which TENANT shall be insured under a
policy of insurance containing such provision waiving subrogation.
ARTICLE VIII
INSURANCE
8.1 (a) LANDLORD will insure, and keep insured during the term of this
Lease, the demised premises against loss or damage by fire and such other
casualties and events as may be procurable now or hereafter under extended
coverage in an amount sufficient to prevent LANDLORD from becoming a co-insurer
under the terms of the applicable policies.
(b) TENANT agrees to pay all premium increases in fire and extended
coverage insurance premiums upon the demised premises if the increase is caused
by any unauthorized use or neglect of TENANT or the nature of TENANT'S business.
(c) TENANT further agrees to insure and keep insured during the term of
this Lease, at its sole cost and expense, policies of insurance insuring all
improvements, additions, fixtures and contents installed or owned by TENANT in
or on the demised premises.
(d) TENANT shall carry fire and extended coverage and vandalism
insurance on TENANT'S contents contained in the demised premises.
8.2 TENANT shall purchase from and keep in force during the term of this
Lease public liability insurance providing coverage in the minimum amounts of
$500,000.00 against liability or injury to or death of any one person,
$1,000,000.00 against liability for personal injury arising out of any one
accident or occurrence, and $500,000.00 for property damage.
8.3 (a) TENANT agrees to deliver to LANDLORD, at least fifteen (15) days
prior to the time any insurance is first required to be carried by TENANT, and
thereafter at least fifteen (15) days prior to when renewal is required, either
a duplicate original or a CERTIFICATE OF INSURANCE and a true and certified copy
of all policies procured by TENANT in compliance with its obligations hereunder,
together with evidence of payment therefor.
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(b) All of said policies shall name LANDLORD as an "ADDITIONAL INSURED"
party and shall be in form and with insurance companies satisfactory to
LANDLORD.
(c) All such policies shall contain an endorsement stating that such
insurance may not be cancelled or amended except upon not less than thirty (30)
days prior written notice to LANDLORD.
(d) Upon TENANT'S failure to deliver a CERTIFICATE OF INSURANCE or
other proof of insurance as required by this Lease, LANDLORD shall have the
right to obtain any insurance required to protect LANDLORD'S interests, pay the
premiums therefor, and add said premiums to the monthly installment of rent next
due.
ARTICLE IX
DAMAGE OR DESTRUCTION
9.1 LANDLORD agrees that if the demised premises shall, during the term of
this Lease, be damaged by fire, explosion, storm, flood or other casualty, and
the damage is such as in the judgment of TENANT not to unreasonably hinder the
occupancy by TENANT in the normal conduct of its business, then LANDLORD shall,
at no expense to LANDLORD except to the extent of resulting insurance proceeds
collected by LANDLORD, repair the damage as soon as possible and restore the
demised premises to the same physical condition as it was immediately prior to
the damage.
9.2 If the demised premises shall be damaged as aforesaid to the extent
that TENANT cannot use and enjoy the same in the normal conduct of its business,
but repairs may reasonably be made and completed thereon so as to render the
premises suitable for use and occupancy by TENANT within a period of one hundred
twenty (120) days from the date of such damage, and more than twenty (20%)
percent of the term of this Lease remains, then and in that event LANDLORD
shall, at no expense to LANDLORD except to the extent of resulting insurance
proceeds collected by LANDLORD, promptly make the required repairs within said
period and the rent during the time required for the making of the repairs shall
be proportionately abated, taking into account the area of the demised premises
rendered unsuitable for use and occupancy by TENANT. Upon completion of repairs,
the full rents shall be reinstated.
9.3 In the event that the demised premises shall be totally destroyed by
fire, explosion, storm, floor or other casualty, or in the event that the
premises shall be so substantially destroyed that it cannot be repaired or
rendered fit for occupancy by TENANT in its normal course of business within a
period of one hundred twenty (120) days from the date of such damage, then this
Lease, at the option of either LANDLORD or TENANT, may be terminated, and
neither LANDLORD nor TENANT shall after such termination, be liable hereunder.
In the event of such termination, any rents paid by TENANT for occupancy
subsequent to such termination shall be returned by LANDLORD to TENANT.
ARTICLE X
EMINENT DOMAIN -- CONDEMNATION
10.1 If the entire demised premises shall be permanently taken under the
exercise of the power of eminent domain by any competent governmental authority,
or sold under the threat of the exercise of said power (all of which are herein
called condemnation), this Lease shall terminate as of the date the condemning
authority takes title or possession, whichever first occurs.
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10.2 If less than the entire demised premises shall be permanently taken
under the exercise of the power of eminent domain, LANDLORD, at its expense,
shall restore the remaining portion of the demised premises to the extent
necessary to render it a complete architectural unit suitable for the purposes
herein leased, and this Lease shall remain in full force and effect as to the
remaining portion of the premises, except that the rent shall be reduced in the
proportion that the area of the demised premises taken bears to the total area
of the demised premises.
10.3 Notwithstanding the foregoing, in the event more than thirty (30%)
percent of the demised premises is permanently taken, TENANT shall have the
option to terminate this Lease on thirty (30) days prior written notice to
LANDLORD, and rent shall be apportioned and paid by TENANT as of the date of
termination.
10.4 In the event of any taking, whether total or partial, permanent or
temporary, TENANT shall have no claim in or to any award of damages for such
taking. TENANT hereby expressly assigns any and all of its right, title, and
interest in and to such award or any part thereof, to LANDLORD.
10.5 TENANT may prosecute a separate action or proceeding for the value of
its improvements, fixtures, relocation expenses, loss of good will or any other
value lost as a result of such taking, provided same in no way reduces
LANDLORD'S award, or impairs or impedes LANDLORD'S proceeding regarding its
award.
ARTICLE XI
DEFAULT AND REMEDIES
11.1 (a) If TENANT shall fail to pay any rent when due or within ten (10)
days thereafter, or if TENANT shall continue to default in the performance of
any other covenant, agreement, term, provision or condition herein contained for
thirty (30) days after receipt of written notice from LANDLORD specifically
describing such failure on TENANT'S part, or if TENANT shall abandon, vacate or
surrender the premises, then the LANDLORD may, at its option, cause the
forfeiture and termination of this Lease.
(b) Possession of the demised premises and all permanent improvement
and additions shall be delivered to LANDLORD within ten (10) days after TENANT
receives notice from LANDLORD that it has exercised said option to terminate,
LANDLORD shall promptly take all reasonable steps to secure a new tenant, and
make a diligent effort to obtain a good rental, and should said rental be less
than the rent reserved hereunder, TENANT shall pay LANDLORD, monthly in advance
on the first day of each month, the difference between the rent so realized and
the rental reserved hereunder for the balance of the term of this Lease, or the
entire monthly rental reserved hereunder during the period LANDLORD has not been
able to secure a new tenant, whichever is greater, together with all other
damages, costs, expenses and reasonable attorney's fees incurred by LANDLORD as
a result of TENANT'S default.
(c) Should TENANT fail to pay any rent when due or within ten (10)
days thereafter, then and in such event interest on the amount of said rent at
the rate of fifteen (15%) percent per annum to the date of payment shall be
deemed additional rent due by TENANT under this Lease and shall be promptly paid
by TENANT to LANDLORD.
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(d) Should TENANT fail to make any repair or replacement provided
herein or shall TENANT fail to pay any taxes or make any other payment required
to be made under this Lease, then and in such event LANDLORD may, but shall not
be required to, make any such repair or replacement at the expense of TENANT, or
make any other payments required to be made by TENANT hereunder, and any amount
so paid or expended by LANDLORD, together with interest on such sums and
expenses from the date of payment by LANDLORD until payment in full at the rate
of fifteen (15%) percent per annum to the date of payment, shall be deemed
additional rent due by TENANT under this Lease and shall be promptly paid by
TENANT to LANDLORD.
11.2 (a) LANDLORD may restrain any breach or threatened breach of any
covenant, agreement, term, provision or condition herein contained, but the
mention herein of any particular remedy shall not preclude LANDLORD from any
other remedy it might have, either in law or in equity.
(b) The failure of LANDLORD to insist upon the strict performance of
any one of the terms of this Lease or to exercise any right, remedy or election
herein contained or permitted by law shall not constitute or be construed as a
waiver or relinquishment for the future of such term, right, remedy or election,
but the same shall continue and remain in full force and effect.
(c) Any right or remedy that LANDLORD may have at law, in equity or
otherwise upon breach by TENANT of any covenant contained in this Lease, shall
be distinct, separate and cumulative rights or remedies and no one of them
whether exercised by LANDLORD or not, shall be deemed to be in exclusion of any
other.
(d) No term of this Lease shall be deemed to have been waived by
LANDLORD unless such waiver is in writing, signed by LANDLORD or LANDLORD'S
agent duly authorized in writing. Receipt or acceptance of rent or additional
rent by LANDLORD shall not be deemed to be a waiver of any default under this
Lease, or of any right which LANDLORD may be entitled to exercise under this
Lease.
11.3 In the event that LANDLORD shall fail to preform any of the covenants
of this Lease, TENANT shall serve written notice on LANDLORD specifically
describing such failure on LANDLORD'S part. LANDLORD shall have thirty (30) days
from receipt of such notice within which to cure any such failure so described.
If at the expiration of such thirty (30) days such failure on LANDLORD'S part
shall not be cured, it shall, at the option of the TENANT, cause the forfeiture
and termination of this Lease without further notice, and TENANT shall have no
further liability hereunder, and LANDLORD shall return to TENANT any rents paid
for occupancy subsequent to such termination.
ARTICLE XII
SECURITY
12.1 Simultaneously herewith, TENANT has deposited with LANDLORD **SEE
RIDER**, the equivalent of three (3) months rental, as security for the faithful
performance and observance by TENANT of the terms, provisions and conditions of
this Lease. It is agreed that in the event TENANT defaults in this respect to
any of the terms, provisions and conditions of this Lease, including without
limitation the payment of fixed or additional rent, LANDLORD may use, apply or
retain all or any portion of the security so deposited, to the extent so
required for the payment of any fixed and/or additional rent and all other sums
as to which TENANT is in default, and for all sums which LANDLORD has expended
or may be required to expend by reason of TENANT'S
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default in respect to any of the terms, covenants and conditions of this Lease,
including without limitation all damages and deficiencies arising from the
reletting of the demised premises, whether such damages or deficiencies arose
before, during or after summary proceedings or other reentry by LANDLORD or
otherwise.
12.2 In the event that TENANT shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this Lease, the aforesaid
security shall be returned to TENANT, without interest, upon the expiration of
the term of this Lease, and after delivery of the entire possession of the
demised premises to LANDLORD pursuant to the terms of this Lease.
12.3 In the event of a sale, assignment or transfer of LANDLORD'S interest
in the demised premises, LANDLORD shall have the right to deliver the security
to the transferee of the premises, and LANDLORD shall thereupon be released by
TENANT from all liability for the return of such security. TENANT agrees in such
event to look solely to the new Landlord for the return of said security.
12.4 TENANT further covenants that it will not assign or encumber the
monies deposited herein as security, and that neither LANDLORD nor its
successors or assigns shall be bound by any such actual or attempted assignment
or encumbrance.
ARTICLE XIII
ASSIGNMENT AND SUBLETTING
13.1 TENANT shall not assign, mortgage, pledge, encumber, or in any manner
transfer this Lease, or any part hereof, or sublease all or any part of the
demised premises, without the prior written consent of LANDLORD, which consent
shall not be unreasonably withheld.
13.2 In the event that this Lease or any part hereof is transferred, or all
or any part of the demised premises is subleased, without the prior written
consent of LANDLORD, TENANT shall be in default of this Lease and said Lease
may, at the option of LANDLORD, be terminated.
13.3 Should the demised premises be subleased with LANDLORD'S consent,
LANDLORD shall collect as additional rent from TENANT eighty (80%) percent of
any excess in the total rental charged by TENANT over the fixed rental reserved
under this Lease.
13.4 (a) As a condition precedent to TENANT'S sublease of the demised
premises or assignment of this Lease, TENANT shall, at TENANT'S own expense,
comply with ECRA.
(b) TENANT shall promptly furnish to LANDLORD true and complete copies
of all documents, submissions and correspondence provided by TENANT to the
Bureau and all documents, reports, directives and correspondence provided by the
Bureau to TENANT. TENANT shall also promptly furnish to LANDLORD true and
complete copies of all sampling and test results obtained from tests taken at
and around the demised premises.
(c) As a condition precedent to TENANT'S sublease of the demised
premises or assignment of this Lease, TENANT shall have received from the Bureau
either (i) a non-qualified approval of TENANT'S negative declaration or (ii) a
non-applicability letter, for which TENANT shall promptly apply pursuant to
ECRA.
-10-
13.5 In the event of any voluntary or involuntary bankruptcy, arrangement,
plan of reorganization, assignment for the benefit of creditors or other
insolvency or related proceeding filed, instituted or conducted by, against or
otherwise on behalf of TENANT, the leasehold created hereby shall not be
assigned nor the demised premises sublet, nor shall either this leasehold or the
premises be otherwise conveyed or transferred, in whole or in part, to any party
without the prior written consent of LANDLORD, which consent shall not be
unreasonably withheld.
ARTICLE XIV
SUBORDINATION
14.1 LANDLORD shall have the right, at any time or from time to time during
the continuance of the lease, as security for any indebtedness with respect to
the demised premises, to mortgage or refinance a mortgage on said premises or
any part thereof.
14.2 This lease is subject and is hereby subordinated to all present and
future mortgages, deeds of trust and other encumbrances affecting the demises
premises or the property of which said premises is a part. This provision shall
be self-operative and no further instrument shall be required to subordinate
this Lease to any such mortgage or mortgages; however, TENANT will execute and
deliver such further instrument or instruments as may be desired by any
mortgagee or proposed mortgagee evidencing said subordination. TENANT hereby
irrevocably appoints LANDLORD the attorney-in-fact of TENANT to execute and
deliver any such instrument or instruments for TENANT.
14.3 LANDLORD shall use its best efforts to obtain from all future
mortgagees a non-disturbance agreement in favor of TENANT for so long as TENANT
is not in default under this Lease, and provided TENANT agrees to attorn to the
said mortgagee in the event it comes into possession of the demised premises.
ARTICLE XV
BANKRUPTCY
If at any time during the term of this Lease TENANT shall make any
assignment for the benefit of creditors, or be decreed insolvent or bankrupt
according to law, or if a receiver shall be appointed for TENANT, then LANDLORD
may, at its option, terminate this Lease, exercise of such option shall be
evidenced by notice to that effect served upon the assignee, receiver, trustee
or other person in charge of the liquidation of the property of TENANT or
TENANT'S estate, but such termination shall not release or discharge any payment
of rent payable hereunder and then accrued, or any liability then accrued by
reason of any agreement of covenant herein contained on the part of TENANT.
ARTICLE XVI
EXPIRATION OF LEASE
16.1 upon the expiration of the term of this Lease or on the sooner
termination thereof, TENANT shall peaceably and quietly leave, surrender and
yield up unto LANDLORD all the demised premises free of occupants.
-11-
16.2 TENANT may remove from the demised premises any decorations,
furniture, shelving, fixtures and equipment which TENANT shall, at its own
expense, have installed in the premises. Any damage caused to the demised
premises by such removal shall be repaired at TENANT'S expense.
16.3 Any removable property of TENANT which shall remain in or upon the
demised premises after the termination or expiration of this Lease and the
removal of TENANT from the premises may, at the option of LANDLORD, be deemed to
have been abandoned, and either may be retained by LANDLORD as its property, or
may be disposed of in such manner as LANDLORD may see fit, at the sole expense
of TENANT.
16.4 At the termination or expiration of this Lease, all erections,
alterations, additions and improvements, whether temporary or permanent in
character, which may be made upon the demised premises by any person, except
furniture, movable trade fixtures or movable machinery or equipment of TENANT,
shall, at LANDLORD'S option, either (i) become the property of LANDLORD, and
shall remain upon and be surrendered with the demised premises as a part thereof
without compensation to TENANT or to anyone else, or (ii) be removed by TENANT
at its sole cost and expense.
16.5 Notwithstanding anything to the contrary provided in this Lease, at
the expiration or earlier termination of the term hereof, TENANT shall deliver
the demised premises to LANDLORD in a clean and orderly condition, substantially
as it exists on the date hereof, ordinary wear and tear excepted.
16.6 TENANT agrees that during the six months prior to the expiration of
the term of this Lease, LANDLORD may place on the demised premises any usual or
ordinary "For Lease" or "For Sale" signs.
ARTICLE XVII
INSPECTION AND EXHIBITION
LANDLORD and its agents and invitees shall have the right at any reasonable
time to enter upon the demised premises for the purposes of inspection, posting
notices, showing to a prospective purchaser or tenant, or making any
alterations or repairs which LANDLORD shall deem necessary for the protection,
improvement or preservation of the premises or for any other lawful purposes.
ARTICLE XVIII
INGRESS AND EGRESS
LANDLORD hereby grants the right of ingress and egress to Midland Avenue, a
public road, to TENANT, its employees and all persons doing business with
TENANT. TENANT agrees that LANDLORD may post and enforce reasonable speed limits
and driving controls on any private road leading to said public road.
-12-
ARTICLE XIX
NOTICE
Any notice herein required or permitted to be given must be in writing and
shall be deemed to have been given properly on the date of mailing by United
States registered or certified mail, postage prepaid, return receipt requested
and properly addressed to the addresses of the parties heretofore set forth or
to such addresses as a party shall specify to the other in like manner.
ARTICLE XX
RECORDATION
Neither this lease nor any short form or memorandum hereof shall be
recorded by TENANT. Such recordation shall be a default under this Lease, and
TENANT hereby irrevocably appoints LANDLORD its attorney in fact for the limited
purpose of causing the removal from the record of any such recordation.
ARTICLE XXI
LIMITATION OF LANDLORD'S LIABILITY
If LANDLORD or any successor in interest or assignee shall be an
individual, joint venture, tenancy in common, firm or partnership, general or
limited, or a trust, it is specifically understood and agreed that there shall
be no personal liability upon such individual or the members of the joint
venture, tenancy in common, firm or partnership, or the trustee(s) under such
trust or the beneficiaries thereunder, or upon such joint venture, tenancy in
common, firm, partnership or trust, in respect to any of the covenants or
conditions of this Lease. TENANT shall look solely to LANDLORD'S equity in the
demised premises for the satisfaction of the remedies of TENANT in the event of
a breach by LANDLORD'S equity in the demised premises for the satisfaction of
the remedies of TENANT in the event of a breach by LANDLORD of any of the terms,
covenants and conditions of the Lease to be performed by LANDLORD.
ARTICLE XXII
BROKERAGE COMMISSIONS
Each party warrants and represents to the other that no brokerage
commission is due to any person, firm or entity with respect to this Lease, and
each party agrees to indemnify and hold the other party harmless with respect to
any judgment, damages, legal fees, court costs and any and all liabilities of
any nature whatsoever arising from a breach of said representation.
ARTICLE XXIII
ESTOPPEL CERTIFICATES
Within ten (10) days of the request of either party, the other party shall
deliver a certificate to it, certifying to the best of its knowledge that (i)
this Lease has not been modified in any respect, or specifying the manner in
which it has been supplemented, amended or modified; (ii) this Lease is in
full force and effect, or if it is alleged that this Lease is not in full force
and effect, specifying the reasons therefor; (iii) there exists no default under
this Lease and no event or condition which with the giving of notice or lapse of
time, or both, would become a default under this Lease; and (iv) there are no
defenses or claims of any nature whatsoever by or on behalf of TENANT against
LANDLORD with respect to this lease.
-13-
ARTICLE XXIV
GOVERNMENT PERMITS
TENANT shall at its own cost and expense, where necessary, immediately
apply and diligently seek to obtain any governmental permits or certificates
required for occupancy of for any other transaction or occurrence.
ARTICLE XXV
QUIET ENJOYMENT
LANDLORD covenants that it is lawfully seized of the demised premises and
of the parking area, driveways and footways and has good right and lawful
authority to enter into this Lease for the full term aforesaid, that LANDLORD
will put the TENANT in actual possession of the demised premises at the
beginning of the term hereof, and that TENANT, on paying the rent and performing
the other covenants herein agreed by it to be performed, shall and may peaceably
and quietly have, hold and enjoy the demised premises and use the appurtenances
thereto as hereinabove referred to for the said term.
ARTICLE XXVI
FORCE MAJEURE
26.1 The period of time during which LANDLORD is prevented from performing
any act required to be performed under this Lease by reason of fire,
catastrophe, labor difficulties, strikes, lock-outs, civil commotion, acts of
Nature or of the public enemy, governmental prohibitions or preemptions,
embargoes, inability to obtain materials or labor by reason of governmental
regulations or prohibitions, or other events beyond the reasonable control of
LANDLORD, as the case may be, shall be added to the time for performance of such
act, and neither party shall be liable to the other or in default under this
Lease as a result thereof.
26.2 The aforementioned provision shall not apply to or in any manner
extend or defer the time for any obligation to make payment of monies required
to either party hereunder.
ARTICLE XXVII
MISCELLANEOUS
27.1 This instrument and all of the rights and liabilities herein given to,
or imposed upon, the respective parties hereto shall extend to and be binding
upon the heirs, personal representatives, assigns and successors in interest of
the parties hereto.
27.2 The interpretation and validity of this Lease shall be governed by the
laws of New Jersey.
27.3 The provisions of this Lease are severable and if any provision,
clause, sentence, section or part thereof is held illegal, invalid,
unconstitutional or inapplicable to any person or circumstances, such
illegality, invalidity, unconstitutionality or inapplicability shall not affect
or impair any of the remaining provisions, sentences, clauses, sections or parts
of the Lease or their application to LANDLORD, TENANT or other persons or
circumstances.
-14-
27.4 This Lease embodies the final and entire agreement and understanding
between the parties, supersedes all prior negotiations, agreements and
understandings, and neither LANDLORD nor TENANT nor their agents shall be bound
by any terms, conditions, statements, warranties or representations, oral or
written, not herein contained.
27.5 Any provision of this Lease may be modified, waived or discharged only
by an instrument in writing signed by the party against which enforcement of
such modification, waiver or discharge is sought.
27.6 The foregoing rights and remedies are not intended to be exclusive but
as additional to all rights and remedies LANDLORD would otherwise have by law.
27.7 The plural shall be substituted for the singular number in any place
herein in which the context may require such substitution.
27.8 The term "LANDLORD," as used in this Lease, means only the owner for
the time being of the demised premises, and in the event of a sale, assignment
or transfer by such owner of its interest in all or part of said premises, such
owner shall thereupon be released and discharged from all covenants and
obligations of LANDLORD thereafter accruing with respect to the portion of the
premises so transferred; but such covenants and obligation shall be binding upon
each new owner for the time being of the demised premises or any part thereof.
27.9 The captions and headings herein are used for convenience of reference
only and shall not affect the interpretation of this lease.
IN WITNESS WHEREOF, the parties hereto have executed the foregoing
instrument the day and year first above written.
ATTEST: Landlord
Xxxxxxx X. X'Xxxxxxxx By Xxxxxx Zuckerberg
------------------------- ---------------------
Xxxxxxx X. D'Xxxxxxxx Xxxxxx Zuckerberg
Secretary President
Tenant
Xxxxx Xxxxxxxx, V.P./Sec. By Xxxxx X. Xxxxx, President
------------------------- -------------------------
Xxxxx Xxxxxxxx Xxxxx X. Xxxxx
Secretary President
-15-
ARTICLE XXVIII
RIDER
28.1 Landlord shall repair or replace any heating or air conditioning units
in the demised premises that are not working, and guarantees each system for one
season.
28.2 Article XII, SECURITY, Paragraph 12.1 is amended as follows:
(a) $6,040.00 to be deposited with the Landlord upon the signing of
this agreement.
(b) $6,040.00 to be deposited with the Landlord on MARCH 1, 1991
(c) $6,040.00 to be deposited with the Landlord on SEPTEMBER 1, 1991.
The total security deposit with the Landlord shall be $18,120.00
All other terms and conditions of the original paragraph shall remain in
full force and effect except where herein modified.
-16-
EXHIBIT "A"
[MAP]
LEASE EXTENSION AGREEMENT
THIS LEASE EXTENSION AGREEMENT is made this 20 day of March, 1998, by
and between MIDLAND HOLDING CO., INC., a New Jersey corporation, having an
office at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000 ("Landlord")
and XXXXX BROS. ELECTRONICS, INC., a New Jersey corporation, having an office
at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000 ("Tenant").
W I T N E S S E T H:
WHEREAS, by Lease dated July 15, 1990 (the "Lease"), Landlord leased to
Tenant certain premises known as Building "M-2" at 000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx; and
,
WHEREAS, by Lease Modification and Extension Agreements dated February
11, 1992, January 8, 1997, and November 18, 1997, the term of the Lease
was extended to June 30, 1998; and
WHEREAS, Tenant desires to extend the term of the Lease for an
additional three (3) years commencing July 1, 1998:
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. TERM. The term of the Lease shall be extended for three (3) years
from July 1, 1998 ending at midnight on June 30, 2001 (the "Extended Term"),
unless sooner terminated pursuant to the Lease.
2. RENT. Tenant covenants and agrees to pay to Landlord as fixed rental
throughout the Extended Term the sum of Two Hundred Sixty-one Thousand, Six
Hundred Dollars ($261,600.00) as follows:
July 1, 1998 through June 30, 1999: $7,000.00/month
July 1, 1999 through June 30, 2001: $7,400.00/month
The rent shall be paid in advance and without demand, set-off or
deduction of any kind throughout the Extended Term on or before the first day
of each month beginning on July 1, 1998.
3. SECURITY DEPOSIT. Upon the execution of this Lease Extension
Agreement, Tenant shall deposit with Landlord an additional one Thousand, Two
Hundred Dollars ($1,200.00) so that the total amount deposited with
Landlord shall be Twenty-two Thousand, Two Hundred Dollars ($22,200.00), the
equivalent of three (3) months' rent during the last two years of the Extended
Term. All sums
L. initial:
T. initial: [signature illegible]
so deposited shall serve as security for the full and faithful Performance by
Tenant of all the terms, covenants and conditions of the Lease upon Tenant's
part to be performed.
4. OPTION TO NEGOTIATE NEW LEASE. Notwithstanding anything to the
contrary in Paragraphs 2.2 and 2.3 of the Lease, Tenant shall have the option to
negotiate a new lease for the demised premises provided that Tenant exercises
its option by giving written notice to Landlord by no later than December 31,
2000.
5. ISRA COMPLIANCE. Tenant acknowledges and agrees that references in
the Lease to the Environmental Cleanup Responsibility Act ("ECRA") shall be
replaced by the Industrial Site Remediation Act ("ISRA").
6. SIC NUMBER. Tenant represents and warrants to Landlord that its
business operations are assigned the Standard Industrial Classification number
"3665" in the most recent edition (1987) of the Standard Industrial
Classification Manual published by the Executive Office of the President, Office
of Management and Budget, Washington, D.C. This representation and warranty
shall expressly survive the expiration or termination of the Lease.
7. OTHER TERMS AND CONDITIONS. Except as modified by this Lease
Extension Agreement, all the terms, provisions and conditions of the Lease shall
remain in full force and effect and shall govern the rights and obligations of
the parties. Wherever the provisions of this Lease Extension Agreement and the
Lease conflict, the provisions of this Lease Extension Agreement shall govern.
IN WITNESS WHEREOF, the parties hereto have caused this Lease Extension
Agreement to be signed and sealed as of the day and year first above written.
ATTEST: MIDLAND HOLDING CO., INC.
Landlord
By:
---------------------------------- -------------------------
XXXXXX X'XXXXXXXX, XXXXXXX X. X'XXXXXXXX,
Secretary President
ATTEST: XXXXX BROS. ELECTRONICS, INC.
Tenant
Xxxxx Xxxxxxxx By: Xxxxx X. Xxxxx
---------------------------------- --------------------------
XXXXX XXXXXXXX, XXXXX X. XXXXX,
Secretary President
-2-
LEASE EXTENSION AGREEMENT
THIS LEASE EXTENSION AGREEMENT is made this 20 day of March, 1998, by
and between MIDLAND HOLDING CO., INC., a New Jersey corporation, having an
office at 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000 ("Landlord")
and XXXXX BROS. ELECTRONICS, INC., a New Jersey corporation, having an office at
000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000 ("Tenant").
W I T N E S S E T H:
WHEREAS, by Lease dated July 15, 1990 (the "Lease"), Landlord leased to
Tenant certain premises known as Building "M-2" at 000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx; and
WHEREAS, by Lease Modification and Extension Agreements dated February
11, 1992, January 8, 1997, and November 18, 1997, the term of the
Lease was extended to June 30, 1998; and
WHEREAS, Tenant desires to extend the term of the Lease for an
additional three (3) years commencing July 1, 1998:
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. TERM. The term of the Lease shall be extended for three (3) years
from July 1, 1998 ending at midnight on June 30, 2001 (the "Extended Term"),
unless sooner terminated pursuant to the Lease.
2. RENT. Tenant covenants and agrees to pay to Landlord as fixed rental
throughout the Extended Term the sum of Two Hundred Sixty-one Thousand, Six
Hundred Dollars ($261,600.00) as follows:
July 1, 1998 through June 30, 1999: $7,000.00/month
July 1, 1999 through June 30, 2001: $7,400.00/month
The rent shall be paid in advance and without demand, set-off or
deduction of any kind throughout the Extended Term on or before the first day
of each month beginning on July 1, 1998.
3. SECURITY DEPOSIT. Upon the execution of this Lease Extension
Agreement, Tenant shall deposit with Landlord an additional One Thousand, Two
Hundred Dollars ($1,200.00) so that the total amount deposited with Landlord
shall be Twenty-two Thousand, Two Hundred Dollars ($22,200.00), the equivalent
of three (3) months' rent during the last two years of the Extended Term. All
sums
L. initial: [signature illegible]
T. initial: [signature illegible]
so deposited shall serve as security for the full and faithful performance by
Tenant of all the terms, covenants and conditions of the Lease upon Tenant's
part to be performed.
4. OPTION TO NEGOTIATE NEW LEASE. Notwithstanding anything to the
contrary in Paragraphs 2.2 and 2.3 of the Lease, Tenant shall have the option to
negotiate a new lease for the demised premises provided that Tenant exercises
its option by giving written notice to Landlord by no later than December 31,
2000.
5. ISRA COMPLIANCE. Tenant acknowledges and agrees that references in
the Lease to the Environmental Cleanup Responsibility Act ("ECRA") shall be
replaced by the Industrial Site Remediation Act ("ISRA").
6. SIC NUMBER. Tenant represents and warrants to Landlord that its
business operations are assigned the Standard Industrial Classification number
"3665" in the most recent edition (1987) of the Standard Industrial
Classification Manual published by the Executive Office of the President, Office
of Management and Budget, Washington, D.C. This representation and warranty
shall expressly survive the expiration or termination of the Lease.
7. OTHER TERMS AND CONDITIONS. Except as modified by this Lease
Extension Agreement, all the terms, provisions and conditions of the Lease shall
remain in full force and effect and shall govern the rights and obligations of
the parties. Wherever the provisions of this Lease Extension Agreement and the
Lease conflict, the provisions of this Lease Extension Agreement shall govern.
IN WITNESS WHEREOF, the parties hereto have caused this Lease Extension
Agreement to be signed and sealed as of the day and year first above written.
ATTEST: MIDLAND HOLDING CO., INC.
Landlord
Xxxxxx X'Xxxxxxxx By: Xxxxxxx X. X'Xxxxxxxx
-------------------------------- ---------------------------
XXXXXX X'XXXXXXXX, XXXXXXX X. X'XXXXXXXX,
Secretary President
ATTEST: XXXXX BROS. ELECTRONICS, INC.
Tenant
Xxxxx Xxxxxxxx By: Xxxxx X. Xxxxx
---------------------------------- --------------------------
XXXXX XXXXXXXX, XXXXX X. XXXXX,
Secretary President
-2-
