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TROLL ASSOCIATES, INC.
Sublandlord
and
COMPONENT REMANUFACTURING SPECIALISTS, INC.
Subtenant
______________________
Space Sublease
______________________
Premises:
A Portion Of
000 XXXXXXXXX XXXXX
Xxxxxx, Xxx Xxxxxx 00000
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TABLE OF CONTENTS
PAGE
ARTICLE 1 - DEFINITIONS.................................................... 1
ARTICLE 2 - DEMISE AND TERM................................................ 6
ARTICLE 3 - RENT........................................................... 7
ARTICLE 4 - USE OF DEMISED PREMISES........................................ 8
ARTICLE 5 - PREPARATION OF DEMISED PREMISES................................10
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS.............................10
ARTICLE 7 - SECURITY.......................................................11
ARTICLE 8 - SUBORDINATION..................................................12
ARTICLE 9 - QUIET ENJOYMENT................................................15
ARTICLE 10 - ASSIGNMENT, SUBLETTING AND MORTGAGING.........................15
ARTICLE 11 - INSURANCE AND INDEMNITY.......................................17
ARTICLE 12 - ALTERATIONS AND SIGNS.........................................19
ARTICLE 13 - SUBLANDLORD'S AND SUBTENANT'S PROPERTY........................20
ARTICLE 14 - REPAIRS AND MAINTENANCE.......................................20
ARTICLE 15 - PUBLIC UTILITY CHARGES........................................21
ARTICLE 16 - EXTENSION OF TERM.............................................21
ARTICLE 17 - DETERMINATION OF FAIR MARKET RENT AND FAIR
MARKET VALUE FOR THE DEMISED PREMISES.......................22
ARTICLE 18 - RIGHT OF FIRST LEASE..........................................23
ARTICLE 19 - SUBLANDLORD SUBLEASE BACK.....................................23
ARTICLE 20 - ACCESS AND CHANGES............................................23
ARTICLE 21 - MECHANICS' LIENS AND OTHER LIENS..............................24
ARTICLE 22 - NON-LIABILITY AND INDEMNIFICATION.............................24
ARTICLE 23 - DAMAGE AND DESTRUCTION........................................25
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PAGE
ARTICLE 24 - EMINENT DOMAIN................................................26
ARTICLE 25 - SURRENDER.....................................................27
ARTICLE 26 - CONDITIONS OF LIMITATION......................................28
ARTICLE 27 - RE-ENTRY BY SUBLANDLORD.......................................29
ARTICLE 28 - DAMAGES.......................................................29
ARTICLE 29 - CURING DEFAULTS...............................................31
ARTICLE 30 - BROKER........................................................34
ARTICLE 31 - NOTICES.......................................................31
ARTICLE 32 - REPRESENTATION OF SUBTENANT...................................32
ARTICLE 33 - PARKING.......................................................32
ARTICLE 34 - SUBLEASE CONTINGENT UPON MUNICIPAL APPROVAL...................32
ARTICLE 35 - REPRESENTATIONS AND WARRANTIES................................33
ARTICLE 36 - ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES..................34
ARTICLE 37 - PERFORMANCE UNDER PROTEST.....................................35
ARTICLE 38 - EVENTS OF DEFAULT.............................................35
ARTICLE 39 - MISCELLANEOUS.................................................36
EXHIBITS
Exhibit A - Legal description of Land
Exhibit B - Survey of Land and Building and
Description of Demised Premises
Exhibit C-1 - Sublandlord's Work
Exhibit C-2 - Subtenant's Work
Exhibit D - Form of Non-Disturbance Agreements
Exhibit E - Parking Plan
Exhibit F - Restrictions of Record
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WHEREAS, this SUBLEASE dated April _, 1994, is executed by and between
TROLL ASSOCIATES, INC., a New Jersey Corporation, with offices at 000
Xxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000 ("SUBLANDLORD"), and COMPONENT
REMANUFACTURING SPECIALISTS, Inc., INC., a New Jersey corporation having
offices at 00 Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 (the "SUBTENANT").
WHEREAS, this SUBLEASE is subject and subordinate to a certain Net
Lease, dated December 16, 1987; as amended by the First Net Lease
Modification, dated June 30, 1992; the Second Net Lease Modification dated
January 28, 1993; the Third Net Lease Modification dated April 21, 1994; and
any further modifications (referred to herein collectively as the "Net Lease"
or "Superior Lease") executed by and between Xxxxxx Xxxxxxxx and Xxxxxx
Xxxxxxxx as landlord ("LANDLORD" or "SUPERIOR LESSOR") and Troll Associates,
Inc. as tenant ("SUBLANDLORD" or "SUBLESSOR");
WHEREAS, the term of the Net Lease commenced on January 1, 1988 and
presently expires on December 31, 2002, with two (2) renewals of ten (10)
years each.
NOW THEREFORE, in consideration of the mutual promises set forth below
and other good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged by both parties, the parties hereto agree as
follows:
ARTICLE 1 - DEFINITIONS
1.01. As used in this Sublease the following words and phrases shall
have the meanings indicated:
A. Additional Charges: All amounts that become payable by Subtenant to
Sublandlord hereunder, other than the Fixed Rent.
B. Architect: Designers of Bedminster, 0000 Xxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000.
C. Broker: Xxxxx X. Xxxxxxx Co., 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000, Att: Xxxxxx Xxxxxxxxx and Xxxx Xxxxxxx.
D. Building: The building consisting of approximately 146,000 total
square feet located on the Land in the Township of Mahwah, New Jersey and
known as 000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx.
E. Calendar Year: Any twelve-month period commencing on January 1.
F. Commencement Date: The Commencement Date of this Sublease shall be
May 1, 1994; or in the event Sublandlord has not obtained all municipal
approvals for Subtenant's use of the Demised Premises under Paragraph 33 of
this Sublease by May 1, 1994, the Commencement Date shall be the date upon
which Sublandlord so
obtains all municipal approvals for Subtenant's use of the Demised Premises
under Paragraph 33 of this Lease. On the Commencement Date, Subtenant shall
take possession of the Demised Premises but shall not begin to pay Rent, Real
Estate Taxes, Insurance and all of its other rent obligations until the Rent
Commencement Date.
G. Common Areas: Those areas of the Land designated by Sublandlord,
from time to time, which are used and enjoyed by not only Subtenant but other
users, occupants, Subtenants or owners of the Building and Land, including,
without limitation, parking areas, walkways, lawns and landscaped areas.
Sublandlord may change the designation of Common Areas, from time to time,
provided such change in designation (i) does not interfere with the
Subtenant's use and occupancy of the Demised Premises, parking,
ingress/egress and loading and unloading of Subtenant, as permitted by this
Sublease and (ii) does not result in any increase in the Subtenant's Common
Area Maintenance charges. The Building itself is specifically excluded as a
Common Area for the Term of this Sublease, as same may be extended.
H. Common Area Maintenance Charges: Forty-three percent (43%) of any
and all charges for the maintenance, operation, replacement and repair of the
Common Areas of the Land including, without limitation, all costs in
connection with the lighting, policing, landscaping, cleaning, snow removal,
janitorial services and utility charges as respects the Common Areas, all of
which services shall be determined by and performed by Sublandlord as
required by this Sublease and paid for by Subtenant as provided in Article
6.03 of this Lease. If the Common Areas are changed to include additional
parking spaces as provided in Article 32.01 (G) above, the Common Area
Maintenance Charges shall include the maintenance of said additional parking
spaces. The Common Area Maintenance Charges specifically exclude initial
repairs to the upper parking lot to the rear of the Building. To the extent
that the cost of any repairs or replacements to Common Areas are costs which
would be capitalized under Generally Accepted Accounting Practices, then for
purposes of this Sublease, only the applicable amortized cost of same, shall
be included, * on an annualized basis, as Common Area Maintenance Charges.
I. Demised Premises: The Demised Premises shall consist of the portion
of the Building located on the Land depicted as the "Demised Premises" on
Exhibit B hereto, consisting of 63,000 square feet, comprised of 3,000
square feet of office space (subject to Sublandlord's Work set forth on
Exhibit C hereto) and 60,000 square feet of warehouse space (subject to
Sublandlord's Work set forth on Exhibit C hereto) and also sometimes referred
to herein as the South Section of the Building.
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* during the term
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J. Expiration Date: The date which is the date immediately preceding
the fifth (5th) anniversary of the Rent Commencement Date, unless the Term is
extended by Subtenant as herein provided.
K. Extended Period: There will be two (2) five (5) year options to
renew.
L. Fixed Rent for the Demised Premises: The Fixed Rent during the Term
is as set forth below, and except as modified by Paragraph 1.01U of this
Sublease:
First through third year of Sublease $4.75 per sq. ft. ($24,937.50 per month)
Fourth through fifth year of Sublease $5.25 per sq. ft. ($27,562.50 per month)
M. Insurance Requirements: Rules, regulations, orders and other
requirements of insurance carriers, the applicable board of underwriters
and/or the applicable fire insurance rating organization and/or any other
similar body having jurisdiction over the Land and Building.
N. Land: The land described on Exhibit "A" and shown on Exhibit "B"
upon which the Building is located and designated as Block 68, Lot 9 on the
tax map of the Township of Mahwah, together with any and all rights
Sublandlord has, if any, in and to a certain roadway, open or proposed,
adjoining the said property.
0. Legal Requirements: Laws and ordinances of all federal, state,
county, and local governments, and rules, regulations, orders and directives
of all departments, subdivisions, bureaus, agencies of any other
governmental, public or quasi-public authorities having jurisdiction over the
Land and Building, including those pertaining to zoning and environmental
matters.
P. Permitted Uses: Warehouse, office, industrial, processing,
distribution, shipping and receiving, storage, light manufacturing, assembly
or other lawful purpose including, without limitation, remanufacturing of
transmissions including assemblage, cleaning, reconditioning, rebuilding and
remanufacturing of transmissions. However, and except as otherwise provided
in Articles 4 and 33 of this Sublease as respects municipal approvals,
Sublandlord makes no representations to Subtenant as to what uses are
permitted by applicable zoning ordinances.
Q. Person: A natural person or persons, a partnership, a corporation,
or any other form of business or legal association or entity.
R. Plans: All drawings, designs, plans and specifications prepared by
the Architect and other necessary engineers and professionals for
Sublandlord's Work to be performed at the Demised
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Premises, a schedule of which such work is attached hereto as Exhibit C.
S. Real Estate Taxes: The percentage of the real estate taxes, charges
and all other similar charges and impositions imposed upon the Building and
the Land, by any governmental body or authorities or any tax, charge, or
imposition imposed in substitution thereof or in addition thereto, which
percentage is arrived at by a comparison of the total office and warehouse
space in the Demised Premises to the total office and warehouse space in the
Building, and calculated in accordance with the following formula which shall
be adjusted to reflect any change in assessment of the Building or Demised
Premises:
For purposes of this formula, warehouse space shall have a designated
factor of one (1) and office space shall have a designated factor of
two (2).
1. The factors shall be multiplied by the square footage of warehouse and
office space in the Building to determine the total Building space as
follows:
BUILDING
Warehouse: ____________ sq. ft. x 1 = _____________
Office: _______________ sq. ft. x 2 = _____________
Building Total: _______________
2. The factors shall be multiplied by the square footage of warehouse
and office space in the Demised Premises to determine the total
Demised Premises space as follows:
DEMISED PREMISES
Warehouse: _____________ sq. ft. x 1 = _______________
Office: ______________ sq. ft. x 2.0 = _______________
Demised Premises Total: _______________
3. The Demised Premises Total shall be divided by the Building Total as
follows:
Demised Premises Total/Building Total
4. The resulting percentage shall represent the Subtenant's percentage
of Real Estate Taxes and shall be multiplied by the total real estate
taxes, assessments, charges, and other similar charges imposed upon
the Building and Land.
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5. EXAMPLE:
BUILDING
Warehouse: 103,000 sq. ft. x 1 = 103,000
Office: 11,300 sq. ft. x 2.0 = 22,600
-------
Building Total: 125,600
DEMISED PREMISES
Warehouse: 60,000 sq. ft. x 1 = 60,000
Office: 3,000 sq. ft. x 2.0 = 6,000
-------
Demised Premises Total: 66,000
PERCENTAGE
DEMISED PREMISES TOTAL: 66,000 = .53
-------
Building Total 125,600
Real Estate Taxes for Land and Building = $50,000 per year
Subtenant Share = .53 x $50,000 = $26,500.00 per year
T. Rent: The Fixed Rent and the Additional Charges.
U. Rent Commencement Date: * The sixtieth (60th) day following the
Commencement Date** On the Rent Commencement Date, Subtenant shall begin to
pay Rent for the Demised Premises. The Subtenant agrees that the Rent
Commencement Date shall not be delayed, notwithstanding the fact that
Sublandlord's Work is not complete, if Sublandlord's failure to complete same
by the Rent Commencement Date was caused by or contributed to by Subtenant's
contractors, agents or employees or otherwise by Subtenant's failure to
timely comply with its obligations hereunder, but only to the extent that
such delays were in fact so caused or contributed to by Subtenant.
Notwithstanding the foregoing to the contrary, provided Subtenant is not in
default under this Sublease beyond applicable grace periods as set forth in
this Sublease, Subtenant shall receive a Fixed Rent credit for 33,000 square
feet of the Demised Premises from the Rent Commencement Date to the earlier
to occur of i) the date which is the eighth (8th) month anniversary date of
the Commencement Date or ii) the date upon which Subtenant enters into either
a) any contract of sale and closes title for all or substantially all of
Subtenant's Existing Building or b) any lease for all or substantially all
of the leasable space in Subtenant's Existing Building and the Subtenant
thereunder commences paying rent to Subtenant. The total dollar value of the
aforesaid Subtenant's Rent credit shall be repaid (together with interest
calculated at the annual rate of five percent (5%), compounded quarterly,
from the Rent Commencement Date to April 1, 1996) by Subtenant to Sublandlord
as additional Fixed Rent over the last
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* The later of (a) the
** or (b) the date upon which Sublandlord substantially completes
Sublandlord's Work and a certificate of occupancy is issued covering the
Demised Premises (however, if a temporary certificate is obtained,
Sublanlord shall be responsible to obtain and deliver to Subtenant the
permanent certificate of occupancy as soon as possible).
5
three (3) years of the initial Term of this Sublease, in equal monthly
payments commencing on April 1, 1996.
V. Security Deposit: $47,875.00. Subtenant has an option of
delivering to Sublandlord either: (a) cash or check in the sum of
Forty-Seven Thousand Eight Hundred Seventy-Five Dollars ($47,875.00); or (b)
a clean irrevocable, unconditional Letter of Credit drawn on a financial
institution reasonably satisfactory to Sublandlord, payable to Sublandlord or
Sublandlord's nominee in the amount of $47,875.00. This Letter of Credit
shall be renewed by Subtenant annually, prior to the date of its expiration.
In the event that the replacement Letter of Credit is not delivered to
Sublandlord on or before thirty (30) days prior to the expiration of the
existing Letter of Credit, Sublandlord shall so notify Subtenant and provide
Subtenant the opportunity to deliver the replacement Letter of Credit to
Sublandlord within five (5) days of such notification. If Subtenant fails to
deliver such replacement Letter of Credit, Sublandlord shall cash the
existing Letter of Credit. Such cash shall be held by Sublandlord in a
segregated bank account for sixty (60) days, within which time period
Subtenant shall have the right to the return of the cash in exchange for a
renewed Letter of Credit. Notwithstanding the above, in the event Subtenant
elects to extend the Term of this Sublease pursuant to Article 16 of this
Sublease and provided Subtenant has not exceeded the allowed two (2) grace
periods for payment of Rent without incurring late charges during any
Calendar Year, as more specifically set forth in Paragraph 3.04 of this
Sublease, the Security Deposit for any Extended Period shall be reduced to
$23,937.50.
W. Superior Sublease*: The Net Lease as same may be extended or amended
from time to time, or any other lease now in existence or hereafter created
to which this Sublease is subject and subordinate, however, no such
extensions, amendments or other such leases shall diminish the rights of
Subtenant hereunder.
X. Superior Lessor: A lessor under any Superior Sublease or its
successors and/or assignees.
Y. Superior Mortgage: Any Mortgage given to a mortgagee to which this
Sublease is, at the time referred to, subject and subordinate, or shall
become subject and subordinate to in the future. As of the execution of this
Sublease, First Fidelity Bank, N.A., New Jersey, holds a blanket first
mortgage encumbering the Demised Premises and other properties, dated
December 23, 1988, as amended and modified on June 30, 1992, and as hereafter
amended or modified.
Z. Superior Mortgagee: Any mortgagee under any Superior Mortgage, or
any proposed or future mortgagee or any of their successors and/or assigns.
------------------------
* or Superior Lease
6
AA. Subtenant's Existing Building: Subtenant's building consisting of
approximately 33,000 square feet, located at 00 Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxx
00000-0000.
BB. Term: The period commencing on the Commencement Date and ending at
11:59 p.m. of the Expiration Date, or on the date when this Sublease is
earlier terminated, as herein provided.
ARTICLE 2 - DEMISE AND TERM
2.01. Sublandlord hereby leases to Subtenant, and Subtenant hereby
hires from Sublandlord, the Demised Premises for the Term. This Sublease is
subject to (a) any and all existing encumbrances, conditions, rights,
covenants, easements, restrictions and rights of way, of record, and other
matters of record set forth on Exhibit F annexed hereto provided same do not
interfere with Subtenant's use and occupancy of the Demised Premises or
Subtenant's parking, ingress/egress, loading and unloading, as herein
permitted; and (b) easements and restrictions hereafter created by
Sublandlord or Superior Lessor, or Superior Mortgagee provided same do not
interfere with Subtenant's use and occupancy of the Demised Premises or
Subtenant's parking, ingress/egress, loading and unloading, as herein
permitted.
ARTICLE 3 - RENT
3.01. Subtenant shall pay the Fixed Rent in equal monthly installments
in advance on the first day of each and every calendar month during the Term
beginning with the Rent Commencement Date. If the Rent Commencement Date
occurs at any time other than the first day of the month, the Fixed Rent due
shall be prorated so that Subtenant is responsible for Fixed Rent for the
number of days from and including the Rent Commencement Date until the end of
the month. If the Expiration Date occurs at any time other than the last day
of the month, the Fixed Rent due shall be prorated so that Subtenant is
responsible for Fixed Rent for the number of days from and including the
first day of the month in which the Expiration Date occurs to and including
the Expiration Date.
3.02. The Rent shall be paid in lawful money of the United States to
Sublandlord at its office. Subtenant shall pay the Fixed Rent promptly when
due without notice or demand therefor and without any abatement, deduction or
set off for any reason whatsoever except as expressly provided herein and
provided, however, that Sublandlord agrees to notify Subtenant if Sublandlord
has failed to receive the Rent on the first day of each and every month
during the Term. The giving of such Notification, or the failure to provide
same, shall not affect Subtenant's obligations under this Sublease. Any
check received by Sublandlord shall be deemed received subject to collection.
7
3.03. No payment by Subtenant or receipt or acceptance by Sublandlord
of a lesser amount than the correct Rent shall be deemed to be other than a
payment on account, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment be deemed an accord and
satisfaction, and Sublandlord may accept such check or payment without
prejudice to Sublandlord's right to recover the balance or pursue any other
remedy in this Sublease or at law provided.
3.04. If Subtenant is in arrears in payment of Rent, Sublandlord may
apply any payments made by Subtenant to such items as Sublandlord sees fit.
Any payment due Sublandlord under this Sublease which is paid more than ten
(10) days after the date such payment is due, shall, from the tenth (10th)
day after the due date, until such payment is received by Sublandlord, bear
interest at the prime rate of interest charged by First Fidelity Bank, N.A.,
New Jersey, plus two percent (2%) per annum (THE "LATE PAYMENT RATE"), except
that Subtenant shall be given two (2) grace periods of ten (10) days each
during any Calendar Year, during which the Late Payment Rate will not be
charged to Subtenant. Any such Late Charges if not previously paid shall, at
the option of the Sublandlord, be applied to and become part of the next
succeeding Rent payment to be made hereunder.
ARTICLE 4 - USE OF DEMISED PREMISES
4.01. Subtenant shall use and occupy the Demised Premises for the
Permitted Uses only, and Subtenant shall at all times comply with all Legal
Requirements. Subject to Article 33 hereof, if a Certificate of Use shall be
required pursuant to municipal ordinance to effectuate use of the Demised
Premises, Sublandlord shall procure same, at Sublandlord's expense, and
Subtenant shall maintain same and shall comply with the terms thereof.
Subject to Article 33 hereof, if a Certificate of Occupancy shall be required
pursuant to municipal ordinance for the proper and lawful conduct of
Subtenant's business in the Demised Premises, Sublandlord, with Subtenant's
cooperation as necessary and at Subtenant's * cost and expense, shall procure
same diligently and forthwith, and Subtenant shall comply with the terms
thereof. Sublandlord shall be solely responsible, at Sublandlord's cost and
expense for engaging the Architect to prepare the Plans, as defined in
Article 1 of this Sublease. Subtenant shall not at any time use or occupy,
or do or permit anything to be done in the Demised Premises, in any manner
which (a) violates the Certificate of Occupancy, the Certificate of Use or
other certificate issued by the municipality for the Demised Premises or for
the Building or any zoning ordinance; (b) causes or is liable to cause
injury to the Building or any equipment, facilities or systems therein or
require replacement thereof; (c) constitutes a violation of the Legal
Requirements or Insurance Requirements; or (d) impairs or tends to impair the
proper and
----------------------
* landlord
8
economic maintenance, operation and repair of the Building and/or its
equipment, facilities or systems.
4.02. Subtenant shall not and hereby represents, warrants and covenants
that it will not generate, manufacture, refine, transport, treat, store,
handle or dispose of hazardous substance or wastes, as defined in ECRA, now
ISRA, N.J.S.A. 13:1K-6 ET SEQ. and P.L. 1993, C. 139 (collectively "ISRA"),
the Spill Compensation and Control Act, N.J.S.A. 58:10-23:11 ET SEQ., or any
other federal or state environmental law, in or on the Demised Premises other
than those in connection with Subtenant's Permitted Use. Should Subtenant
cause any hazardous substance or waste, to be discharged in or on the Demised
Premises, Subtenant shall, at its sole cost and expense, clean up such
discharge in accordance with all applicable laws. Prior to cessation of
Subtenant's operation at the Demised Premises, Subtenant shall demonstrate
compliance with ISRA by delivering to the Sublandlord any of the following
ISRA approvals (the "ISRA" Approvals):
(I) a letter from the New Jersey Department of Environmental
Protection and Energy ("NJDEPE") certifying that ISRA does not apply to
the cessation of Subtenant's operation at the site, or
(II) a no further action letter or "Negative Declaration"
approved by the NJDEPE pursuant to ISRA, or
(III) a certification or letter of compliance that an
approved clean-up or remediation plan has been completed.
Subtenant shall pay all filing fees and expenses, including any testing
and remediation expenses, required to obtain the foregoing except that
Sublandlord shall pay for any environmental cleanup not caused by Subtenant,
that is required as a result of compliance herewith. Sublandlord shall fully
cooperate with Subtenant and provide all reasonably necessary information for
Subtenant's compliance. Subtenant shall indemnify and hold Sublandlord
harmless from and against any liability including attorney fees, incurred by
the Sublandlord as a result of the Subtenant's failure to comply with the
requirements of this Article. Subtenant shall keep Sublandlord informed of
all such proceedings and shall timely provide Sublandlord with copies of all
relevant documents. If Subtenant fails to obtain an ISRA Approval prior to
its ceasing operations at the Demised Premises, then, in addition to any
other remedy available to Sublandlord, Sublandlord may deem Subtenant to be a
holdover Subtenant until such time that an ISRA Approval is obtained.
Notwithstanding the foregoing, if Subtenant is proceeding with due diligence
and dispatch to obtain same, Subtenant shall be responsible for only regular
Fixed Rent (not 150% of Fixed Rent) and other charges which accrue under
this Sublease. This provision shall survive termination of the Sublease.
9
In the event Subtenant fails to timely comply with its obligations under
this Article, then Sublandlord, at its option, may do so on behalf of
Subtenant at Subtenant's cost and expense.
4.03. Notwithstanding the foregoing, it is understood and agreed that
Sublandlord shall be responsible for the cost of compliance with Legal
Requirements and Insurance Requirements which are applicable generally to the
Building and not the result of Subtenant's specific use, provided, however,
Subtenant shall not be responsible to comply with any Legal Requirements and
Insurance Requirements relating to the structure of the Building or relating
to conditions or repair which are the responsibility of the Sublandlord under
this Sublease.
4.04. Notwithstanding the foregoing, if compliance with ISRA becomes
necessary at the Demised Premises because of any ISRA triggering event
initiated by Sublandlord or Superior Lessor, as the case may be, Sublandlord
shall pay for all costs incurred in obtaining an ISRA Approval and Subtenant
shall fully cooperate with Sublandlord in completing and seeking a letter of
non-applicability from the NJDEPE and Sublandlord shall indemnify and hold
Subtenant harmless from any and all liability, costs and expenses, including
without limitation, reasonable attorneys fees, incurred by Subtenant as a
result of Sublandlord's failure to comply with the requirements of this
Article. Sublandlord shall comply with ISRA and all requirements of NJDEPE at
Sublandlord's sole expense, except that Subtenant shall pay for any
environmental cleanup caused by Subtenant that is required as a result of
compliance herewith.
ARTICLE 5 - PREPARATION OF DEMISED PREMISES
5.01. On the Commencement Date Subtenant shall take possession of the
Demised Premises and Subtenant is leasing the Demised Premises "as is" on the
date hereof, subject to Sublandlord's Work (which shall be Sublandlord's only
obligation to Subtenant as respects initial improvements to the Demised
Premises), as detailed in Exhibit C-1 attached hereto, to be performed * by
Sublandlord, ** in a good and workmanlike manner and in accordance with all
Legal Requirements and other provisions of this Sublease.
5.02. At the expense of Sublandlord, the Architect and necessary
engineers and professionals, including without limitation a space planner
design service, shall complete all Plans for all work set forth on Exhibit C
to be performed in the Demised Premises by Sublandlord.
-------------------------
* and completed
** within sixty (60) days from the Commencement Date
10
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01. Commencing with the * Commencement Date, Subtenant shall pay Real
Estates Taxes due for the Demised Premises or attributable to the Demised
Premises in accordance with the formula set forth in Paragraph 1.01S. Upon
Sublandlord's receipt of the tax xxxx pertaining to the Demised Premises,
Sublandlord shall promptly send a copy of the xxxx to Subtenant. On a
monthly basis, Sublandlord shall send Subtenant an invoice for the Real
Estate Taxes. Subtenant will promptly pay Sublandlord the amount of such Real
Estate Tax invoice. Sublandlord shall promptly provide to Subtenant, copies
of paid invoices from the municipality on a quarterly basis.
6.02. Real Estate Taxes, whether or not a lien upon the Premises shall
be apportioned between Sublandlord and Subtenant at the beginning and end of
the Term or Extended Period, as the case may be.
6.03. Commencing with the * Commencement Date, Subtenant shall pay the
Common Area Maintenance Charges promptly upon receipt of an invoice together
with paid invoices (or other reasonable evidence of charges) therefor from
Sublandlord, which invoice shall be sent by Sublandlord on a monthly basis.
6.04. Notwithstanding anything contained in this Sublease to the
contrary, Subtenant shall not be responsible for any income taxes, whatsoever
imposed upon the Sublandlord or Superior Lessor in connection with the
Demised Premises or otherwise.
6.05. Throughout the Term, Sublandlord shall have the right to contest
the amount or validity of any Real Estate Taxes in any manner permitted by
law. In the event Sublandlord, or any presently existing ** Sublandlord in
the Building with the right to do so, does not elect to do so, and after
prior written notice from subtenant to Sublandlord, Subtenant may contest the
amount or validity of any Real Estate Taxes in any manner permitted by law,
in the name of Subtenant, and whenever necessary in the name of Sublandlord
or Superior Lessor, as appropriate, provided and upon condition that
Subtenant does so with due diligence, in good faith, there is a reasonable
likelihood of success, and that such contest shall be without cost, liability
or expenses to Sublandlord or Superior Lessor. Superior Lessor and
Sublandlord shall cooperate with Subtenant and shall execute any documents or
pleadings reasonably required for that purpose. Such contest may include
appeals from any judgment decree of order until a final determination is made
by a court or governmental department or authority having final jurisdiction
in the matter.
-------------------------
* Rent
** subtenant
11
ARTICLE 7 - SECURITY
7.01. As set forth in Paragraph 1.01V, Subtenant shall deliver to
Sublandlord the Security Deposit as security for the full and faithful
payment and performance by Subtenant of Subtenant's obligations under this
Sublease. If Subtenant defaults in the full and prompt payment and
performance of any of its obligations under this Sublease, than after notice
to Subtenant and failure of Subtenant to cure any such defaults within
applicable grace periods, Sublandlord may use, apply or retain the whole or
any part of the security to the extent required for the payment of any Rent
or any other sums as to which Subtenant is in default or for any sum which
Sublandlord may expend or may be required to expend by reason of Subtenant's
default in respect of any of Subtenant's obligations under this Sublease,
including, without limitation, any damages or deficiency in the reletting of
the Demised Premises, whether such damages or deficiency accrue before or
after summary proceedings or other re-entry by Sublandlord. If Sublandlord
shall so use, apply or retain the whole or any part of the security,
Subtenant shall upon demand immediately deposit with Sublandlord a sum equal
to the amount so used, applied and retained, as security as aforesaid. If
Subtenant shall fully and faithfully pay and perform all of Subtenant's
obligations under this Sublease, the security or any balance thereof to which
Subtenant is entitled shall be promptly paid over to Subtenant after the date
on which this Sublease shall expire or sooner terminate, and after delivery
to Sublandlord of entire possession of the Demised Premises. In the event of
any sale or leasing of the Land, Sublandlord shall have the right to transfer
the security to which Sublandlord is entitled to the vendee or lessee upon
notice to Subtenant and, provided Sublandlord transfers the security as
provided for herein, Sublandlord shall thereupon be released by Subtenant
from all liability for the return or payment thereof; and Subtenant shall
look solely to the new landlord for the return or payment of the same to the
extent of such transfer; and the provisions hereof shall apply to every
transfer or assignment made of the same to a new landlord. Subtenant shall
not assign or encumber or attempt to assign or encumber the monies deposited
herein as security, and neither Sublandlord nor its successors or assigns
shall be bound by any such assignment, encumbrance, attempted assignment or
attempted encumbrance.
ARTICLE 8 - SUBORDINATION
8.01. This Sublease shall be subject and subordinate at all times to
the lien of any mortgages or other permitted encumbrances now or hereafter
placed on the Demised Premises, as set forth in Paragraph 2.01 of this
Sublease, including, without limitation, the Superior Mortgage, without the
necessity of any further instrument or act on the part of Subtenant to
effectuate such subordination, but Subtenant covenants and agrees to
execute and deliver upon
12
demand such further instrument or instruments evidencing such subordination
of this Sublease to the lien of any such mortgage or other encumbrance as
shall be desired by a mortgagee or proposed mortgagee. Subtenant shall have
twenty (20) days within which to execute, acknowledge or deliver any such
instruments after request.
8.02. If any act or omission of either Sublandlord or Subtenant would
give the other party the right to terminate this Sublease, neither
Sublandlord nor Subtenant shall exercise such right (a) until it has given
written notice of such act or omission to the other and each Superior
Mortgagee * and Superior Lessor, * and (b) until a reasonable period for
remedying such act or omission shall have elapsed following the giving of
such notice and following the time when such Superior Mortgagee or Superior
Lessor under such Superior Mortgage or Superior Sublease as the case may be,
to remedy the same (which reasonable period shall in no event be more than
the period to which Sublandlord would be entitled under this Sublease or
otherwise, after similar notice, to effect such remedy).
8.03. If any Superior Lessor shall succeed to the rights of Sublandlord
under this Sublease, then at the request of such party so succeeding to
Sublandlord's rights ("SUCCESSOR SUBLANDLORD") and upon such Successor
Sublandlord's written agreement to accept Subtenant's attornment, Subtenant
shall attorn to and recognize such Successor Sublandlord as Subtenant's
landlord under this Sublease and shall promptly execute and deliver any
instrument that such Successor Sublandlord may reasonably request to evidence
such attornment. Upon such attornment this Sublease shall continue in full
force and effect as a direct lease between the Successor Sublandlord and
Subtenant upon all of the terms, conditions and covenants as are set forth in
this Sublease.
8.04. If any then present or prospective Superior Mortgagee or Superior
Lessor shall require any modification(s) of this sublease, Subtenant shall
promptly execute and deliver to Sublandlord such instruments effecting such
modifications) as Sublandlord shall request, provided such modifications
shall not decrease Sublandlord's obligations, increase Subtenant's
obligations or increase the amount of Fixed Rent or Additional Rent due
hereunder or otherwise adversely affect Subtenant's interest hereunder.
8.05. Each party shall, at any time as requested by the other party,
within fifteen (15) days of such request, execute and deliver to the
requesting party a statement certifying that this Sublease is unmodified and
in full force and effect (or if there have been modifications, that the same
is in full force and effect as modified and stating the modifications),
certifying the dates to which the Fixed Rent and Additional Charges have been
paid, stating whether or not, to the best knowledge of the party giving the
statement, the requesting party is in default in performance of any
------------------
* (provided Sublandlord has sent to Subtenant notice of such Superior
Mortgagee and Superior Lessor together with the name and address of such
entity)
13
of its obligations under this Sublease, and, if so, specifying each such
default.
8.06. The parties hereto acknowledge that the Sublease shall be subject
to and subordinate to the Net Lease, the provisions of which shall not
conflict with any of the terms or provisions of this Sublease, which Sublease
shall control in the event of any conflict, and in connection with same the
parties hereto agree as follows:
(A) Sublandlord shall promptly transmit to tenant under the
Superior Lease any notice or demands received from Subtenant and shall
promptly transmit to Subtenant any notice or demands received from tenant
* under the Superior Lease. Subtenant shall promptly transmit to Subtenant
any notice or demands received from Sublandlord under the Superior Lease
any other party having an interest to which this Sublease is subordinate.
8.07. Sublandlord and Subtenant agree that in any case where the
provisions of this Sublease or the Net Lease require the consent or approval
of Sublandlord or Superior Lessor prior to the taking of any action, the
granting of consent by Sublandlord hereunder shall be deemed to be the
consent of Superior Lessor under the Net Lease. By its execution of the
Sublease, Superior Lessor grants Sublandlord the right to consent, on its
behalf, to any of the terms or provisions requiring the consent of Superior
Lessor under the Superior Lease.
8.08. To the extent applicable, Subtenant shall have the benefit of each
and every covenant and agreement made by Sublandlord to Subtenant under the
Net Lease.
8.09. In the event the Net Lease is terminated by Superior Lessor
thereunder on account of the default by Sublandlord thereunder or the Net
Sublease expires pursuant to its terms, in either event prior to the
expiration of the Term of this Sublease, then, in such event, provided
Subtenant is not in default of any of the terms and conditions of this
Sublease, the within Sublease shall be deemed to be a direct lease between
Superior Lessor under the Net Lease and Subtenant pursuant to the terms of
this Sublease.
8.10. Sublandlord and Superior Lessor warrant and covenant to Subtenant
that the Net Lease is in full force and effect, and Sublandlord is not in
default thereunder nor has any event taken place which with the passage of
time could result in a default, and, notwithstanding anything to the
contrary, Subtenant's rights herein are not and will not be affected by the
Net Lease. In the event of any conflict between the Net Lease and this
Sublease, the provisions of this Sublease shall prevail.
----------------------
* tenant
14
8.11. Notwithstanding anything else to the contrary in this Sublease,
Subtenant shall not be required to subordinate or attorn to any other party,
unless such subordination and attornment is specifically provided for in this
Sublease and the party whose interest Subtenant shall subordinate to or
attorn to, as the case may be, recognizes in writing Subtenant's right to the
continued quiet use and enjoyment of the Demised Premises under this Sublease
and all other rights as provided for under this Sublease.
8.12. Sublandlord shall, within thirty (30) days of the date hereof,
provide Subtenant with fully executed Subordination, Recognition and
Non-Disturbance Agreements from the current Superior Mortgagee and Superior
Lessor, substantially in the forms annexed hereto as Exhibit D
("Non-Disturbance Agreements") and shall provide a reasonably comparable
Non-Disturbance Agreement from any future Superior Mortgagee or Superior
Lessor.
ARTICLE 9 - QUIET ENJOYMENT
9.01. So long as Subtenant pays all of the Rent and performs all of
Subtenant's other obligations hereunder, Subtenant shall peaceably and
quietly have, hold and enjoy the Demised Premises, subject, nevertheless, to
the provisions of this Sublease.
ARTICLE 10 - ASSIGNMENT, SUBLETTING AND MORTGAGING
10.01. Subtenant shall not, voluntarily or involuntarily, (a) assign or
otherwise transfer this Sublease, (b) sublet the Demised Premises or any part
thereof, or allow the same to be used, occupied or utilized by anyone other
than Subtenant, or (c) mortgage, pledge, encumber or otherwise hypothecate
this Sublease in any manner whatsoever, except as provided in this Article 10.
10.02. Subtenant shall be permitted to sublet up to fifty percent (50%)
of the Demised Premises (a "Minor Sublease") without Sublandlord's consent,
provided however, (i) Subtenant shall notify Sublandlord in writing, promptly
after execution of any sublease and shall provide a copy of the sublease to
Sublandlord; (ii) Subtenant shall remain liable and responsible for all
obligations of Subtenant under this Sublease notwithstanding any further
sublease; and (iii) Subtenant shall not sublet the Demised Premises to any
person or entity which (a) is a then existing tenant in any building owned by
Sublandlord or Superior Lessor, within a radius of two (2) miles of the
Demised Premises, if Sublandlord or Superior Lessor has comparable space
available to let to the sublessee of Subtenant, in a building owned or
controlled by Sublandlord or Superior Lessor * or (b) which has a SIC code
that would subject the person or entity to ISRA compliance, unless the
proposed subtenant's use of hazardous substances is no greater in quantity or
degree than Subtenant's use of same (or Subtenant
----------------------
* within such two (2) mile radiuis
15
obtains Sublandlord's approval to different hazardous substances, such
approval not to be unreasonably withheld).
10.03. Subtenant shall be permitted to sublet in excess of fifty
percent (50%) of the Demised Premises or assign this Sublease (a "Major
Sublease") but only with Sublandlord's prior written consent, which shall not
be unreasonably withheld, provided however, (i) Subtenant shall notify
Sublandlord and request Sublandlord's consent prior to such subletting; (ii)
Subtenant shall remain liable and responsible for all obligations of
Subtenant under this Sublease notwithstanding any sublease; (iii) Subtenant
shall not sublet the Demised Premises to any person a entity which has an SIC
code that would subject the person or entity to ISRA, unless the proposed
subtenant's use of hazardous substances is no greater in quantity or degree
than Subtenants' use of same (or Subtenant obtains Sublandlord's approval to
different hazardous substances, such approval not to be unreasonably
withheld).
10.04. If Subtenant derives a profit from any Major Sublease,
Sublandlord and Subtenant shall share equally in Subtenant's profit to the
extent actually received by Subtenant. "Profit" shall mean the amounts, if
any, paid by the Sub-subtenant in excess of:
(I) the amounts including, without limitation, Rent paid by
Subtenant under this Sublease;
(II) an amount sufficient to reimburse Subtenant for its
reasonable costs incurred in the subletting, including, without
limitation, customary brokerage commissions, reasonable legal fees and
costs of renovating and preparing the Demised Premises for such subtenant;
and
(III) any portion of funds received by Subtenant for any
rentals which Subtenant, in turn, pays to any third party (i.e.
reimbursements for equipment rentals).
Profits shall be paid by Subtenant to Sublandlord, after Subtenant has
been fully reimbursed for the costs set forth in subparagraph (ii) above, as
and when monies are received and collected by Subtenant from sub-subtenant.
10.05. If this Sublease is assigned, whether or not in violation of
this Sublease, Sublandlord may collect rent from the assignee. No such
assignment, subletting, occupancy or collection shall be deemed a waiver of
any of the provisions of this Sublease, or the acceptance of the assignee,
Subtenant or occupant as Subtenant, or a release of Subtenant from the
performance by Subtenant of Subtenant's obligations under this Sublease.
16
10.06. Any assignment, whether or not made with Sublandlord's consent,
shall be made only if, and shall not be effective until, the assignee shall
execute, acknowledge and deliver to Sublandlord an agreement whereby the
assignee shall assume Subtenant's obligations under this Sublease and whereby
the assignee shall agree that all of the provisions in this Sublease shall,
notwithstanding such assignment, continue to be binding upon it in respect to
all future assignments. Notwithstanding any assignment, whether or not in
violation of the provisions of this Sublease, and notwithstanding the
acceptance of Rent by Sublandlord from an assignee, or any other party, the
original Subtenant shall remain fully liable for the payment of the Rent and
for Subtenant's other obligations under this Sublease.
10.07. The liability of the original Subtenant shall not be discharged,
released or impaired by any agreement made by Sublandlord extending the time
of, or modifying any of the obligations of, this Sublease, or by any waiver
or failure of Sublandlord to enforce any of the provisions of this Sublease.
10.08. If fifty (50%) percent or more of the Demised Premises becomes
available during the Term or extended Term of this Sublease which Subtenant
intends to offer for rent to third parties, prior to offering such space on
the market, Subtenant shall first notify Sublandlord and shall offer the
space to Sublandlord, upon such terms as Subtenant intends to market the
space (except the term shall be no longer than the Term of this Sublease).
Sublandlord shall have fifteen (15) days from receipt of such notice to
notify Subtenant of Sublandlord's intention to lease such space on such terms
as Subtenant has proposed. If Sublandlord fails to so notify Subtenant, or
notifies Subtenant that Sublandlord does not intend to lease such space on
such terms, Subtenant shall be free to market the space to third parties. As
respects a Major Sublease, in addition to Sublandlord's right of first lease
aforesaid, and Sublandlord's right to give or withhold consent as provided in
this Sublease, Sublandlord shall have the right to, but shall not be
obligated to, terminate the Sublease and recapture the part of the Demised
Premises to be sublet or assigned * If Sublandlord elects to recapture and upon
the date specified in such notice, which date shall be not less than thirty
(30) days and not more than sixty (60) days after the giving of said notice,
this Sublease shall terminate provided that with respect to a sublease of
less than all of the Demised Premises, the Sublease shall terminate only to
the extent of the portion of the Demised Premises being sublet, in which
event the Rent and Additional Charges shall be adjusted in accordance with
Article 1.01 (L) based upon the remaining square feet of the Demised
Premises. If Sublandlord elects to recapture all or any portion of the Demised
Premises, Sublandlord shall pay the cost of constructing any demising walls,
separating the utilities and HVAC, if necessary, that may be required in order
to separate the recaptured space from the remainder of the Demised Premises. If
--------------------
* to be executed by Sublandlord sending written notice thereof to Subtenant
within fifteen (15) days from notice by Subtenant requesting the consent of
the Sublanlord pursuant to the terms of Section 10.03.
17
Sublandlord elects to recapture all or any portion of the Demised Premises,
then Sublandlord must accept Subtenants' proposed tenants and contract
directly with such proposed tenants. Notwithstanding the provisions of
section 10.06 above, to the extent of such recaptured space, Subtenant shall
have no further liabilities or obligations to Sublandlord for Rent (prorated,
if applicable) or other obligations under this Sublease. If Sublandlord does
not so terminate this Sublease, and if Subtenant does not consummate the
subject transaction within one hundred and eighty (180) days after the last
day in which Sublandlord received notice of the proposed assignment or
sublet, Subtenant shall again be required to comply with the provisions of
this Article in connection with any such transaction as if the notice by
Subtenant referred to above in this Article had not been given.
10.09. Without limiting any of the default provisions of this Lease,
if pursuant to the Federal Bankruptcy Code (or any similar law hereafter
enacted having the same general purpose), Subtenant is permitted to assign
this Lease notwithstanding the restrictions contained in this Lease, adequate
assurance of future performance by an assignee expressly permitted under such
amount equal to the sum of six (6) month's Fixed Rent plus an amount equal to
the Additional Charges for the Calendar Year preceding the year in which such
assignment is intended to become effective, which deposit shall be held for
the balance of the Term by Sublandlord, without interest, as security for the
full performance of all of Subtenant's obligations under this Lease, and
applied in the manner specified for security in this Lease for Security
Deposit.
10.10. Notwithstanding the foregoing to the contrary, Subtenant shall
have the right to assign this Sublease, without Sublandlord's consent, to a
party or entity which (a) purchases all or substantially all of Subtenant's
business, or (b) is an affiliate, parent or wholly owned subsidiary of
Subtenant, or (c) merges with Subtenant, provided however, that in any such
instance, the assignee shall have a credit reputation and a net worth at
least equal to that of Subtenant as of the date hereof and Subtenant shall
provide Sublessor with reasonable proof of same prior to such assignment. In
the event of the foregoing assignment, and notwithstanding any other
provisions of this Sublease to the contrary, Sublandlord shall have no right
to any Profit to Subtenant or rights of recapture, as respects such
assignment.
ARTICLE 11 - INSURANCE AND INDEMNITY
11.01. Sublandlord or Superior Lessor shall maintain or cause to be
maintained at reasonably competitive rates, All Risk Insurance in respect of
the Building and other improvements (except for property Subtenant is
required (or may elect) to cover with insurance under Article 11.02), on the
Land and Building normally
18
covered by such insurance for the benefit of Subtenant, Superior Lessor and
Superior Mortgagee, in an amount equal to the replacement value of the
Building, and rent insurance equivalent to the aggregate amount of one year's
Fixed Rent, and Real Estate Taxes pursuant to this Sublease. Sublandlord
shall have the right to provide any insurance maintained or caused to be
maintained by it under blanket policies. Commencing with the * Commencement
Date, forty-three percent (43%) of the cost of such insurance carried by
Sublandlord hereunder, shall be paid by Subtenant in advance upon
presentation of a paid invoice or other evidence of payment by Sublandlord.
The annual cost of such insurance shall be paid by Subtenant in monthly or
quarterly assessments, at Sublandlord's option upon receipt by Subtenant of a
paid invoice or other written evidence of charges. Sublandlord shall deliver
to Subtenant and any additional insureds, certificates for such fully paid
for policies required by Article 11.01, before the Commencement Date and
Sublandlord shall deliver to Subtenant and any additional insured
certificates of renewal at least thirty (30) days before expiration.
11.02. Subtenant shall pay for and maintain the following insurance:
(a) comprehensive general public liability insurance in respect of the
Demised Premises and the operation of business therein, with Sublandlord and
its Superior Lessor and Superior Mortgagee, as additional insureds, with
limits of not less than $1,000,000 for single coverage and $2,000,000
umbrella coverage, (b) All Risk insurance for the sole benefit of Subtenant
in respect of Subtenant's stock in trade, fixtures, furniture, furnishings,
removable floor coverings, equipment, and all other property of Subtenant in
the Demised Premises in any amounts not less than 80% of the full insurable
value of the property covered and not less than the amount sufficient to
avoid the effect of the co-insurance provisions of the applicable policy or
policies. Subtenant shall deliver to Sublandlord and any additional
insured(s) certificates for such fully paid-for policies required by Article
11.02(a), before the Commencement Date and Subtenant shall deliver to
Sublandlord and any additional insured(s) certificates therefor at least
thirty (30) days before the expiration of any existing policy.
11.03. All policies required pursuant to Article 11 shall be issued
by companies licensed to do business in New Jersey and rated B+ or better by
A.M. Best or some other reputable company that rates insurance companies, and
all such policies shall contain a provision whereby the same cannot be
canceled unless Sublandlord and any additional insured(s) are given at least
thirty (30) days' prior written notice of such cancellation.
11.04. Neither party shall be liable or responsible for and each
party hereby releases the other party from, all liability to such party and
any person claiming by, through or under such party, by way of subrogation
or otherwise, for any injury, loss or damage
----------------------
* Rent
19
to any person or property in or around the Demised Premises or to Subtenant's
business and Sublandlord and Subtenant shall require each other's insurers to
include in all of the policies to be issued pursuant to this Sublease, a
clause or endorsement waiving the insurers rights of subrogation against the
other party and against the Superior Lessor and any Superior Mortgagee.
ARTICLE 12 - ALTERATIONS AND SIGNS
12.01. Subtenant shall submit to Sublandlord, a complete set of plans
and specifications for all initial work desired to be installed at the
Demised Premises by Subtenant (the "Subtenant Initial Work"), which Subtenant
Initial Work shall be at Subtenants sole cost and expense.
12.02. Except for non-structural alterations and changes (other than
to the roof) costing Fifty Thousand Dollars ($50,000) or less in the
aggregate at any one time (in which case no Sublandlord's consent shall be
required), Subtenant shall not i) make any structural alterations or
additions to the Demised Premises, or (ii) make any cuts or penetrations in
the roof of the Demised Premises, or (iii) any non-structural alterations and
changes costing more than Fifty Thousand ($50,000) Dollars at any one time,
without on each occasion, set forth in (i)-(iii) above, first obtaining the
consent of Sublandlord, such consent not to unreasonably withheld,
conditioned or delayed ("Subtenant's Additional Work"). Subtenant shall
submit to Sublandlord plans and specifications for Subtenant's Additional
Work at the time Sublandlord's consent is sought and with respect to
structural alterations only, Subtenant shall reimburse Sublandlord for the
out of pocket reasonable costs actually incurred by Sublandlord for
Sublandlord's review and approval of the plans and specifications, including,
without limitation, the reasonable cost to Sublandlord for engaging
architects and engineers (unless Subtenant obtains Sublandlord's approval of
Subtenant's architect or engineer, such consent not to be unreasonably
withheld, in which case Sublandlord shall not be entitled to such
reimbursement). Subtenant shall obtain all necessary governmental permits
and certificates for the commencement and prosecution of permitted
alterations and for final approval thereof upon completion. Notwithstanding
the above, Subtenant shall be permitted to perform: (i) Subtenant's * Work as
set forth in Exhibit C-2 and (ii) non-structural alterations and changes (not
affecting the roof) costing less than Fifty Thousand ($50,000) Dollars, each
without the need for Sublandlord's consent. However, in each such
instance, Subtenant shall, prior to commencement of such work, provide
Sublandlord, for informational purposes only, with prior written notice of
same together with a copy of plans for all proposed work.
12.03. At Subtenant's option, prior to undertaking Subtenant's
Additional Work, Subtenant may request that Sublandlord
----------------------
* Initial
20
notify Subtenant as to whether Sublandlord will require removal of
Subtenant's Additional Work upon expiration or sooner termination of the term
of this Sublease.
12.04. Subtenant's contractor or Subtenant shall furnish Sublandlord
with reasonably satisfactory evidence that worker's compensation insurance is
in effect at or before the commencement of alterations.
12.05. Subtenant may place a sign on the Demised Premises and/or on
the front lawn of the Land, subject to Sublandlord's prior approval which
approval shall not be unreasonably delayed or withheld, at Subtenant's sole
cost and expense, provided that any sign placed on the Demised Premises shall
be in compliance with all Legal Requirements.
12.06. At or before the Expiration Date, or earlier termination of
this Sublease, Subtenant shall, at its cost and expense, remove from the
Demised Premises all of Subtenant's Initial Work, Subtenant's Additional Work
and all of Subtenant's Property (defined hereinafter) and restore the Demised
Premises to their condition as of the date hereof. If Subtenant fully
complies with the above and leaves the Demised Premises in good order and
repair and in broom clean condition, Sublandlord shall reimburse Subtenant
for (a) up to Five Thousand ($5,000) Dollars towards the actual cost of such
removal and restoration if Subtenant vacates after the initial term, or (b)
up to Ten Thousand ($10,000) Dollars towards the actual cost of such removal
and restoration if Subtenant vacates after the initial term is extended *
as provided herein.
ARTICLE 13 - SUBLANDLORD'S AND SUBTENANT'S PROPERTY
13.01. All fixtures, equipment and improvements attached to or built
by Sublandlord into the Demised Premises at the commencement of or during the
Term, shall remain a part of the Demised Premises and same shall be deemed to
be the property of Sublandlord and shall not be removed by Subtenant.
13.02. All movable trade fixtures, machinery and equipment, which are
installed in the Demised Premises by Subtenant and all furniture,
furnishings, and other movable personal property owned by Subtenant and
located in the Demised Premises (COLLECTIVELY "SUBTENANT'S PROPERTY") shall
be and shall remain the property of Subtenant, provided that Subtenant shall
repair or pay the cost of repairing any damage to the Demised Premises,
resulting from the installation and/or removal thereof. Any items of the
Subtenant's Property which shall remain in the Demised Premises after the
Expiration Date may, at the option of Sublandlord, be deemed to have been
abandoned, and such items may be retained by Sublandlord
----------------------
* for at least the first five (5) year renewal option
21
as its property or disposed of by Sublandlord, without accountability, at
Subtenant's expense.
ARTICLE 14 - REPAIRS AND MAINTENANCE
14.01. As of the Commencement Date, Subtenant shall take good care of
the interior, non-structural portions of the Demised Premises. At
Subtenant's sole cost and expense, Subtenant shall promptly make or cause to
be made, all nonstructural maintenance repairs and replacements, to the
interior, in and to the Demised Premises including without limitation all
building equipment, glass, windows, doors, loading docks, loading bay doors,
plumbing and electrical systems, heating, ventilation and air-conditioning
("HVAC") systems, and maintaining same and the Demised Premises in a clean
and orderly condition, except Subtenant shall not be responsible for the
foregoing arising out of (a) fire or casualty, or (b) Sublandlord's or its
agents, employees or contractors', acts or omissions.
14.02. As of the Commencement Date, Sublandlord, at its own cost and
expense, shall be responsible for all exterior and structural repairs and
replacements to the Demised Premises, the roof on the Demised Premises and
all repairs and replacements to plumbing electrical systems located outside
the Demised Premises and serving the Demised Premises. Notwithstanding the
above, Subtenant shall be responsible for annual, normal and regular
maintenance of the roof above the Demised Premises, the cost of which shall
not exceed Five Hundred ($500.00) Dollars, annually.
14.03. As of the Commencement Date, Sublandlord, at its own cost and
expense, subject to Subtenant's obligations for payment of Common Area
Maintenance Charges under this Sublease, shall be responsible for and shall
take good care of the Common Areas, including without limitation, all
necessary repairs and replacements, striping, snow and ice removal.
ARTICLE 15 - PUBLIC UTILITY CHARGES
15.01. As of the Commencement Date, Subtenant shall pay all charges
for water, sprinkler, sewer, gas or other utility or service supplied to the
Demised Premises relating to Subtenant's use. If separate meters for such
utilities are not presently installed, Subtenant shall pay its proportionate
share of utilities as determined by Sublandlord, written proof and evidence
of which charges shall be provided by Sublandlord to Subtenant. Sublandlord
represents that the Demised Premises are separately metered for gas and
electric.
22
ARTICLE 16 - EXTENSION OF TERM
16.01. Provided Subtenant is not then in default of this Sublease
beyond applicable grace periods as set forth in this Sublease, Subtenant
shall have two (2) options to extend the term for an additional five (5)
years per option. If Subtenant elects to exercise either such option, it
shall do so by delivering written notice of such election to Sublandlord no
later than one hundred eighty (180) days prior to expiration of the then
existing Term. Subtenant agrees that it shall have forever waived its right
to exercise any such option if it shall fail for any reason whatsoever to
give such written notice to Sublandlord by the time provided for the giving
of such notice, time being of the essence as to the exercise of such option.
If Subtenant effectively elects to exercise said options, the Term shall be
automatically extended for the applicable Extended Period without execution
of an agreement of extension or renewal lease. Within ten (10) days after
request of either party after the effective exercise of any such option,
Sublandlord and Subtenant shall execute, acknowledge and deliver to each
other duplicate originals of an instrument in recordable form confirming that
such option was effectively exercised provided however, a failure of the
parties to execute such instrument within ten (10) days shall not affect the
validity of Subtenant's exercise of its option. Except as herein otherwise
provided, the applicable Extended Period shall be upon the same terms and
conditions as are in effect immediately preceding the commencement of such
applicable Extended Period, except that Subtenant shall have no right or
option to extend the Term for any period of time beyond the expiration of the
second Extended Period. The Fixed Rent for any Extended Period shall be
ninety five percent (95%) of the then Fair market Rent for the Demised
Premises as determined in accordance with Article 17 of this Sublease,
provided, however, that the annual Fixed Rent for any Extended Period shall
not be less than the annual Fixed Rent paid in the Calendar Year next
preceding the first year of the applicable Extended Period. Any termination,
expiration, cancellation or surrender of this Sublease * shall terminate any
right or option for the Extended Period not yet exercised.
16.02. If Subtenant elects to extend the initial Term as above
provided, Sublandlord shall extend the term of the Net Lease so that the term
of the Net Lease runs at least as long as the extended term of this Sublease.
The foregoing shall in no way diminish any rights of Subtenant, Sublandlord
or Superior Lessor set forth elsewhere in this Sublease as respects the Net
Lease.
16.03. If Subtenant does not exercise its option to extend the
initial Term, ** Subtenant shall, upon expiration of Subtenant's option period
to elect to extend with Subtenant not so electing to extend this Sublease,
pay Sublandlord $30,000.00 as reimbursement towards Sublandlord's Work,
provided that the Sublease has not been terminated earlier by reason of fire,
casualty, or condemnation.
----------------------
* in whole (and not in part)
** for the first five (5) year renewal option
23
ARTICLE 17 - DETERMINATION OF FAIR MARKET RENT AND FAIR
MARKET VALUE FOR THE DEMISED PREMISES
17.01. For purposes of this Sublease, Fair Market Rent shall be
determined in the following manner:
a. On or before the first day of the ninth (9th) month prior
to the expiration of the then existing term, Subtenant, if
Subtenant so elects, shall provide Sublandlord with written
notice of Subtenant's determination of fair market rent for the
Demised Premises for the next option period as to which the Term
may be extended by Subtenant, if Subtenant is interested in
exercising such option.
b. If by the first day of the eighth (8th) month prior to
expiration of the then existing Term, Sublandlord and Subtenant
have not reached agreement on the determination of Fair Market
Rent, at their own cost and expense, Sublandlord and Subtenant
each shall secure an appraisal of fair market rent for the
Demised Premises applicable as of the expiration of the existing
term from a licensed MAI real estate appraiser, the geographic
scope of which appraisal shall be limited to the area in New
Jersey along the New Jersey State Highway Route 17 corridor
north of Allendale.
c. If the fair market rent of the two appraisals are within
ten percent (10%) of each other, the two fair market rents shall
be averaged, and ninety five percent (95%) of the resulting
product shall be deemed the "Fair Market Rent".
d. If the fair market rents of the two appraisals are in
excess of ten percent (10%) of each other, the Sublandlord and
Subtenant shall select another mutually acceptable licensed MAI
real estate appraiser to perform an appraisal.
e. The fair market rent as determined by the third appraisal
shall be averaged with whichever of the two previous fair market
rents is closest in value to the third appraisal, and ninety
five percent (95%) of the resulting product shall be deemed the
"Fair Market Rent".
24
ARTICLE 18 - RIGHT OF FIRST LEASE
18.01. If any space becomes available in the Building during the Term
or extended Term of this Sublease which Sublandlord intends to offer for rent
to third parties, prior to offering such space on the market, Sublandlord
shall first notify Subtenant and shall offer the space to Subtenant, upon
such terms as Sublandlord intends to market the space (except the term shall
be coterminous with this Sublease). Subtenant shall have fifteen (15) days
from receipt of such notice to notify Sublandlord of Subtenant's intention to
lease such space on such terms as Sublandlord has proposed. The Sublandlord
agrees that the rent included in said proposed terms will be at fair market
value. * If Subtenant disputes said value and the parties cannot agree on same,
fair market value * shall be determined by appraisal method set forth in
Article 17 of this Sublease. If Subtenant fails to so notify Sublandlord, or
notifies Sublandlord that Subtenant does not intend to lease such space on
such terms, Sublandlord shall be free to market the space to third parties
and shall have no further obligations to Subtenant, unless the space becomes
available again after execution of a lease therefor.
ARTICLE 19 - SUBLANDLORD SUBLEASE BACK
19.01. From the Commencement Date through March 31, 1995 ("Sublease
Term"), Sublandlord hereby subleases from Subtenant a portion of the Demised
Premises consisting of 13,000 square feet of warehouse space with access to
one loading dock as depicted on Exhibit B ("Subleased Premises"). During the
Sublease Term, Subtenant shall be excused from its Rent obligation for the
Demised Premises during the Sublease Term, as respects the portion
representing the Subleased Premises only, in the amount of $5,145.83 per
month which shall be deducted from the Fixed Rent each month, unless, the
Subleased Premises are occupied in whole or in part by any occupant other
than Sublandlord, in which case all Rent as to the Subleased Premises shall
be prorated and excused for the applicable portion of the Sublease Term.
ARTICLE 20 - ACCESS AND CHANGES
20.01. Sublandlord and its agents shall have the right to enter the
Demised Premises, upon reasonable notice to Subtenant, during regular
business hours and at reasonable frequency, and without notice in the case of
emergency (a) to examine the Demised Premises and to show them to actual and
prospective mortgagees, or purchasers of the Demised Premises, and (b) to
make such repairs, alterations, additions and improvements in or to the
Demised Premises and/or in or to the Building or its facilities and equipment
as Subtenant is required to make.
----------------------
* rent
25
ARTICLE 21 - MECHANICS' LIENS AND OTHER LIENS
21.01. Nothing contained in this Sublease shall be deemed to imply
any consent on the part of Sublandlord to subject any interest or estate in
the Demised Premises to any liability under any mechanic's or other lien law.
If any mechanic's or other lien or any notice of intention to file a lien is
filed against the Demised Premises, or any part thereof, for any work, labor,
service or materials claimed to have been performed or furnished for or on
behalf of (i) Subtenant or anyone holding any part of the Demised Premises
through or under Subtenant, for Subtenant's Work, Subtenant's Additional Work
and/or any other work which Subtenant may perform during the Term, or (ii)
Sublandlord or anyone holding any part of the Demised Premises through or
under Sublandlord, for Sublandlord's Work and/or any other work which
Sublandlord may perform during the Term, Subtenant or Sublandlord as the case
may be shall cause the same to be discharged of record by payment, bond or
order of a court of competent jurisdiction within thirty (30) days after
notice by one to the other.
ARTICLE 22 - NON-LIABILITY AND INDEMNIFICATION
22.01. Neither Sublandlord, nor any director, officer, agent or
employee of Sublandlord shall be liable to Subtenant for any loss, injury or
damage to Subtenant or to any other Person, or to its or their property,
irrespective of the cause of such injury, damage or loss, unless caused by or
resulting directly from the negligence of Sublandlord, its agents, servants
or employees in the operation or maintenance of the Land or Building.
Further, neither Sublandlord nor any director, officer, agent, or employee of
subtenant shall be liable for any such damage caused by other Persons in,
upon or about the Land, Building or Demised Premises, or caused by operations
in construction of any private, public or quasi-public work.
22.02. Subtenant shall indemnify and hold harmless Sublandlord and
its and their respective directors, officers, agents, and employees, Superior
Lessor and Superior Mortgagee, and Sublandlord shall indemnify and hold
harmless Subtenant and its and their respective directors, officers, agents
and employees, from and against any and all claims arising from or in
connection with (a) the conduct or management of the Demised Premises or of
any business therein, or any work or thing whatsoever done, or any condition
created unless caused by the other party in the Demised Premises during the
Term or during any Extended Period; (b) any act, omission or negligence of
the other party or its or their directors, officers, agents, employees or
contractors; (c) any accident, injury or damage whatever (unless caused
solely by the other party's negligence) occurring in the Demised Premises;
and (d) any breach or default by the other party in the full and prompt
payment and performance of that party obligations under this
26
Sublease; together with all costs, expenses and liabilities incurred in or in
connection with each such claim or action or proceeding brought thereon,
including, without limitation, all attorneys, fees and expenses.
22.03. Notwithstanding any provision to the contrary, Subtenant shall
look solely to the estate and property of Sublandlord in and to the Demised
Premises * in the event of any claim against Subtenant arising out of or in
connection with this Sublease and Subtenant agrees that the liability of
Sublandlord arising out of or in connection with this Sublease shall be
limited to such estate and property of Sublandlord (or sale proceeds). No
other properties or assets of Sublandlord or any director, officer, agent, or
employee of Subtenant shall be subject to levy, execution or other
enforcement procedures for the satisfaction of any judgement or for the
satisfaction of any other remedy of Subtenant arising out of, or in
connection with, this Sublease, and if Subtenant shall acquire a lien on or
interest in any other properties or assets by judgment or otherwise,
Subtenant shall promptly release such lien on or interest in such other
properties and assets by executing, acknowledging and delivering to
Sublandlord an instrument to that effect prepared by Subtenant's attorneys.
Notwithstanding the foregoing to the contrary, Sublandlord's liability to
Subtenant, if any, for failure to comply with Sublandlord's obligations as
respects any and all environmental matters under this Sublease and the return
of Subtenant's security Deposit shall not be limited to Sublandlord's
interest in the estate and property of the Demised Premises, * but rather shall
extend to any and all interests of Sublandlord.
ARTICLE 23 - DAMAGE AND DESTRUCTION
23.01. If the Demised Premises shall be partially damaged or
destroyed by fire or other casualty, Sublandlord shall repair the damage and
restore and rebuild the Building and/or the Demised Premises as nearly as
practicable to its character and value immediately prior to such damage or
destruction, with reasonable dispatch after notice to it of the damage or
destruction. Notwithstanding the above, Sublandlord shall not be obligated to
expend any sum in excess of the insurance proceeds actually received by
Sublandlord to repair or restore the Building and/or the Demised Premises.
In the event of partial destruction of the Demised Premises, the Rent shall
be adjusted in accordance with Article 1.01(L), based upon the square footage
of the Demised Premises remaining for Subtenant's use.
23.02. If the Demised Premises shall be totally damaged or destroyed,
Sublandlord shall have the option, to be exercised within thirty (30) days of
such casualty, to either (a) terminate this Sublease, or (b) elect to rebuild
and/or restore the Demised Premises, consistent with the then existing zoning
ordinance.
----------------------
* Building and land
27
Sublandlord shall not be required to expend any sum in excess, of the
insurance proceeds actually received by Subtenant. Nothing herein contained
shall be construed to imply a duty upon Sublandlord to advance any money to
restore or rebuild the Demised Premises pursuant to the Superior Mortgage or
any other document. Notwithstanding anything to the contrary contained
herein, in the case of any damage or destruction of any part of the Demised
Premises by fire or casualty which shall render at least twenty-five (25%)
percent of the floor area of the Demised Premises untenantable or unfit for
occupancy which is not repaired within six (6) months after the occurrence of
such fire or casualty, using reasonable diligence, then in such event,
Subtenant shall have the right, upon written notice to the Sublandlord within
thirty (30) days following the expiration of the six (6) month period, to
terminate the Sublease. If such fire or casualty is not reasonably capable of
restoration with six (6) months, Subtenant may terminate this Sublease on
written notice to Sublandlord, such option to be exercised within thirty
(30) days of such casualty. In such event, Subtenant shall surrender the
Demised Premises and this Sublease to Sublandlord and all Rent shall be
pro-rated accordingly to the date of termination. Subtenant shall not be
entitled to any damages or compensation from Sublandlord for any
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises. In the case of total
destruction of the Demised Premises, the Rent shall xxxxx as of the date of
casualty, and, in the case of a partial destruction of the Demised Premises,
the Rent shall be adjusted proportionately on a per square foot basis.
23.03. Notwithstanding anything to the contrary contained herein,
neither Sublandlord (its Superior Lessor) nor Subtenant shall be liable or
responsible for, and each party hereby releases the other party from, all
liability to such party and any person claiming by, through or under such
party, by way of subrogation or otherwise, for any injury, loss or damage to
any person or property in or around the Demised Premises, the Building or the
Common Areas, or to Sublandlord's, Subtenant's or Superior Lessor's business
and Sublandlord, Superior Lessor and Subtenant shall require each other's
insurers to waive rights of subrogation against the other party and against
the Superior Lessor and any Superior Mortgagee.
23.04. Sublandlord hereby represents and warrants that if Sublandlord
is required by the operation of this Article to repair the Demised Premises,
the proceeds which are payable under policies of insurance carried by
Sublandlord shall first be made available for repair of the Demised Premises
to the extent required by this Sublease before such proceeds are applied in
any other manner, including the satisfaction of debts secured by
28
a mortgage or other lien instrument, or interest or penalties imposed
therein.
23.05. Notwithstanding the foregoing to the contrary, if Sublandlord
rightfully elects to restore the Demised Premises after a partial or total
destruction, and Sublandlord fails to substantially complete such restoration
within six (6) months of such casualty, then in such event, Subtenant shall
have the option to terminate this Sublease.
ARTICLE 24 - EMINENT DOMAIN
24.01. If the whole of the Demised Premises shall be taken by any
public or quasi-public authority under the power of condemnation, eminent
domain or expropriation, or in the event of conveyance of the whole of the
Demised Premises in lieu thereof, this Sublease shall terminate as of the day
possession shall be taken by such authority. If any of the floor space of
the Demised Premises shall be so taken or conveyed, Subtenant may, by notice
to Sublandlord, terminate this Sublease as of the day possession shall be
taken. If this Sublease shall continue in effect, as to any portion of the
Demised Premises not so taken or conveyed, the Rent shall be reduced
proportionally on a per square foot basis. If this Sublease shall continue in
effect Sublandlord shall promptly, at its expense make all necessary
alterations so as to constitute the remainder of the Demised Premises a
complete architectural and tenantable unit, and Subtenant shall make all
alterations or replacements to Subtenant's Property and its decorations in
the Demised Premises. All awards and compensation for any taking or
conveyance, whether for the whole or a part of the Land or Building, the
Demised Premised shall be property of Sublandlord, and Subtenant hereby
assigns to Sublandlord all of Subtenant's right, title and interest in and to
any and all such awards and compensation, including, without limitation, any
award or compensation for the value of the unexpired portion of the Term.
Notwithstanding the foregoing, if there is a taking hereunder, Subtenant
shall be entitled to appear, claim, prove and receive in the condemnation
proceeding the value of Subtenant's Property that is damaged, destroyed or
taken hereunder; the cost of relocation; and special awards or allowances
paid to Subtenants when their rental space is taken by eminent domain,
provided that none of the foregoing shall reduce any award to Sublandlord.
24.02. Notwithstanding the above, if as a result of any condemnation
proceeding, Subtenant is denied access to the Demised Premises and
Sublandlord is unable to provide suitable alternate access to the Demised
Premises reasonably acceptable to Subtenant, any of the loading docks are
taken and Sublandlord cannot provide Subtenant with replacement loading docks
reasonably acceptable to Subtenant, or if all or a portion of the parking
area is taken and Sublandlord cannot provide replacement parking reasonably
29
acceptable to Subtenant so that Subtenant would have at least eighty-five
percent (85%) of the number of parking spaces that were available to
Subtenant prior to institution of any condemnation proceeding, Subtenant
shall have the right to terminate the Sublease.
ARTICLE 25 - SURRENDER
25.01. On the Expiration Date, or upon any earlier termination of
this Sublease, Subtenant shall surrender the Demised Premises to Subtenant
"broom-clean" and in good order, condition and repair, except for ordinary
wear and tear and fire and casually and Subtenant shall remove all of
Subtenant's Property therefrom. If Subtenant remains in possession of the
Demised Premises after the expiration of the Term, or upon any earlier
termination of this Sublease, Subtenant shall be deemed to be occupying the
Demised Premises as a Subtenant from month to month subject to all of the
provisions of this Sublease, including, but not limited to, payment of Fixed
Rent. In the event Subtenant remains in possession of the Demised Premises
after the expiration of the Term or earlier termination of this Sublease, the
monthly Fixed Rent thereafter shall be one hundred fifty percent (150%) of
the monthly Fixed Rent in effect during the last month of the Term, provided,
however, that this amount shall be deemed liquidated damages and, however,
Sublandlord shall have available all remedies at law and equity for
dispossession of Subtenant remaining in possession of the Demised Premises.
ARTICLE 26 - CONDITIONS OF LIMITATION
26.01. This Sublease is subject to the limitation that whenever
Subtenant (a) shall make an assignment for the benefit of creditors, or (b)
(i) shall commence a voluntary case or (ii) have entered against it an order
for relief under any chapter of the Federal Bankruptcy Code (Title 11 of the
United States Code) or any similar order or decree under any federal or state
law, and such involuntary order is not discharged within sixty (60) days or
(c) shall cause, suffer, permit or consent to the appointment of a receiver,
trustee, administrator, conservator, sequestrator, liquidator or similar
official in any federal, state or foreign judicial or nonjudicial proceeding,
to hold, administer and/or liquidate all or substantially all of its assets,
then Sublandlord, at any time after the occurrence of any such event, may
give Subtenant a notice of intention to end the Term at the expiration of
five (5) days from the date of service of such notice of intention, and upon
the expiration of said five (5) day period, this Sublease shall terminate
with the same effect as if that day were the expiration date of this
Sublease, but Subtenant shall remain liable for damages as provided in
Article 28.
30
26.02. This Sublease is subject to the further limitations that: (a)
if Subtenant shall default in the payment of any Rent or any other monetary
obligation following notice from Sublandlord that the Rent or other monetary
obligation has not been received and does not cure the default within ten
(10) days of the date of Sublandlord's written notice advising Subtenant of
the default or (b) if Subtenant shall, be in default of any of its
obligations other than monetary obligations and does not cure same within
sixty (60) days of the date of Sublandlord's written notice advising
Subtenant of the Default under this Sublease or, if the default is not
capable of being cured within the sixty (60) day period and Subtenant does
not attempt to cure the default and continue to diligently pursue the
default, then in any of said cases Sublandlord may give to Subtenant a notice
of intention to end the Term at the expiration of five (5) days from the date
of the service of such notice of intention, and upon the expiration of said
five (5) days, this Sublease shall terminate, but Subtenant shall remain
liable for damages as provided hereinafter.
ARTICLE 27 - RE-ENTRY BY SUBLANDLORD
27.01. If Subtenant shall default in the payment of any Rent or if
this Sublease shall terminate as provided in this Sublease, Sublandlord may
re-enter the Demised Premises, either by summary dispossess proceedings or by
any suitable action or proceeding at law, without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove
any Person therefrom, to the end that Sublandlord may have, hold and enjoy
the Demised Premises. If this Sublease is terminated or if Sublandlord shall
re-enter the Demised Premises pursuant to legal action, Sublandlord may
cumulatively invoke any remedy allowed at law or in equity and Subtenant
shall pay to Sublandlord the Rent then due on the date of such termination
and shall also pay to Sublandlord damages as provided hereinafter.
ARTICLE 28 - DAMAGES
28.01. If this Sublease is terminated as provided herein or if
Sublandlord shall re-enter the Demised Premises under the provisions of the
Sublease, or pursuant to any judicial proceeding, Subtenant shall pay as
Additional Charges to Sublandlord, at the election of Sublandlord, either:
(a) a sum which at the time of such termination of this Sublease
or at the time of any such re-entry by Sublandlord, as the case may be,
represents the then present value of the excess, if any, of (i) the
aggregate amount of the * Rent and Additional Charges which would have
been payable by Subtenant for the period commencing with such earlier
termination of this Sublease or the
----------------------
* Fixed
31
date of any such re-entry, as the case may be, and ending with
the Expiration Date, less (ii) the aggregate * rental value of the
Demised Premises for the same period; or
(b) sums equal to the Fixed Rent and the Additional Charges
which would have been payable by Subtenant had this Sublease not so
terminated, or had Sublandlord not so re-entered the Demised Premises, as
and when same would be due and payable under this Sublease.
If Sublandlord shall relet the Demised Premises during said period,
Sublandlord shall credit Subtenant with the net rents received by Sublandlord
from such reletting, less the reasonable expenses of reletting, including,
without limitation, altering and preparing the Demised Premises for new
Subtenants, brokers, commissions, legal fees, and all other reasonable
expenses properly chargeable against the Demised Premises and the rental
therefrom, it being understood that any such reletting may be for a period
shorter or longer than the period ending on the Expiration Date; but in no
event shall Subtenant be entitled to receive any excess of such net rents
over the sums payable as Fixed Rent by Subtenant to Sublandlord hereunder.
If the Demised Premises or any part thereof be relet by Sublandlord before
presentation of proof of such damages to any court, commission or tribunal,
the amount of rent received upon such reletting shall, prima facie (but
subject to rebuttle), be the fair and reasonable rental value for the Demised
Premises, or part thereof, so relet during the term of the reletting.
Sublandlord shall use good faith efforts to mitigate damages as required by
law. However, Sublandlord shall not be liable in any way whatsoever for its
failure to relet, or to collect the rent under such reletting unless
Sublandlord failed to use good faith efforts, and no such failure to relet or
failure to collect rent shall release or affect Subtenant's liability for
damages or otherwise under this Sublease, unless, Sublandlord fails to use
good faith efforts.
28.02. Suit or suits for the recovery of such damages and other
damages may be brought by Sublandlord at any time and from time to time at
its election, and nothing contained herein shall be deemed to require
Sublandlord to postpone suit until the date when the Term would have expired
if it had not been so terminated under the provisions of this Sublease or
pursuant to Law or had Sublandlord not re-entered the Demised Premises.
28.03. Subtenant, on behalf of itself and any and all persons
claiming through or under Subtenant, does hereby waive and surrender all
right and privilege which it, they or any of them might have under or by
reason of any present or future law, to redeem the Demised Premises or to
have a continuance of this Sublease after being dispossessed or ejected from
the Demised Premises by process of law or under the terms of this Sublease
or
----------------------
* fair and reasonable
32
after the termination of this Sublease as provided in this Sublease.
Sublandlord and Subtenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Sublease, the
relationship of Subtenant and Subtenant, and Subtenant's use or occupancy of
the Demised Premises. Subtenant shall not interpose any counterclaim of any
kind in any action or proceeding commenced by Sublandlord to recover
possession of the Demised Premises unless such counterclaim is a defense to
Sublandlord's possession or would be lost if not then interposed.
ARTICLE 29 - CURING DEFAULTS
29.01. If either party shall default in the performance of any of its
obligations under this Sublease, or if Sublandlord shall default in the
performance of any of its obligations under the Superior Sublease the
non-defaulting party, after notice and reasonable opportunity to cure,
without thereby waiving such default, may perform the same for the account
and at the expense of the defaulting party, without notice in a case of
emergency, and in any other case only if such default continues after the
expiration of sixty (60) days from the date non-defaulting party gives the
other notice of the default. Bills for any expenses incurred by the
non-defaulting party in connection with any such performance by the
non-defaulting party for the account of the defaulting party, may be sent by
the defaulting party monthly, and such amounts shall be due and payable in
accordance with the terms of such bills. If Sublandlord fails to reimburse
Subtenant as provided for herein, said amount plus interest at the Late
Payment Rate may be deducted or offset from the next or succeeding payments
of Fixed Rent due hereunder.
29.02. If Sublandlord shall be in default of its obligations and does
not cure same within sixty (60) days of the date of Subtenant's written
notice advising the Sublandlord of the default under this Sublease or if the
default is not capable of being cured within the sixty (60) day period, and
Sublandlord does not attempt to cure the default and continue to diligently
pursue such default, and such default materially interferes with Subtenant's
use and enjoyment of the Demised Premises, then Subtenant may give to
Sublandlord notice of intention to end the Term at the expiration of five (5)
days from the date of service of such notice of intention, and upon the
expiration of said five (5) days, this Sublease shall terminate and
Sublandlord shall remain liable for damages incurred by Subtenant, subject to
the provisions of Article 22.03 of this Sublease. The remedies provided for
in this Sublease for Subtenant are in addition to any and all other remedies
available at law or in equity.
33
ARTICLE 30 - BROKER
30.01. Sublandlord and Subtenant each represent to each other that no
broker except the Broker was instrumental in bringing about this Sublease and
that neither party had any conversations or negotiations with any broker
except the Broker concerning the leasing of the Demised Premises. Each party
agrees to indemnify and hold harmless the other against and from any claims
for any brokerage commissions and all costs, expenses and liabilities in
connection therewith, including, without limitation, attorneys' fees and
expenses, arising therefrom. All fees due and payable to the Broker shall be
paid by the Sublandlord.
ARTICLE 31 - NOTICES
31.01. Any notice, statement, demand, or other communication required
pursuant to this Sublease shall be in writing and shall be deemed to have
been properly given, only if sent by Federal Express or registered or
certified mail, return receipt requested, addressed to the other party at the
address hereinabove set forth (except that after the Commencement Date
Subtenant's address shall be the Building), and as to Subtenant, with a
concurrent notice to Xxxxx X. Xxxxx, CEO, 00 Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxx
00000, telephone ( ) , telefax ( ) ; and
Xxxxxx Xxxxxxxx, Esq.; Xxxxxxx Xxxxxxxx X.X. Xxx 000, 00 Xxxxxxxx Xxxxx Xxxx,
Xxxxxxxx, Xxx Xxxxxx, 00000, telephone (000) 000-0000, telefax (201)
573-9736; and, as to Sublandlord, Xxxxxxx Xxxxx, CFO, Troll Associates, Inc.,
000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx 00000, with a concurrent Notice to
the attention of Xxxxx X. Xxxxx, Esq., of Waters, McPherson, McNeill, P.C.,
with offices at 000 Xxxxxxxx Xxx, Xxxxxxxx, Xxx Xxxxxx, (000) 000-0000,
telefax (000) 000-0000. Notices shall be deemed to have been given, rendered
or made on the second day after the day so mailed, unless mailed outside the
State of New Jersey, in which case it shall be deemed to have been given,
rendered or made on the third business day after the day so mailed.
ARTICLE 32 - PARKING
32.01. Sublandlord shall provide Subtenant with a total of ninety-six
(96) designated and exclusive parking spaces as depicted on the Parking Plan
attached hereto as Exhibit E.
32.02. If, after execution of this Sublease, Subtenant requests
additional parking spaces, not to exceed fifty (50) spaces ("the Additional
Parking Spaces") , Sublandlord shall make good faith efforts to secure such
Additional Parking Spaces for Subtenant from any of the following sources:
34
(a) From other presently existing spaces on the Land. If
Sublandlord is successful in securing such Additional Parking Spaces, but
Sublandlord has incurred costs in so doing (for example: reimbursements to
other tenants in the Building), Subtenant shall, if first approved by
Subtenant, reimburse Sublandlord for the actual costs incurred by
Sublandlord upon receipt of an invoice from Sublandlord.
(b) Sublandlord may construct new Additional Parking Spaces, if
permitted by applicable municipal zoning regulations, on the Land for
Subtenant. If so constructed, Subtenant shall pay Sublandlord as
additional Fixed Rent hereunder, the amortized (over 15 years) cost
(exclusive of any interest or borrowing charges) of such Additional Parking
Spaces.
(c) From the neighboring building owned and/or controlled by
Sublandlord and commonly known as 000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx.
If Sublandlord is successful in securing such Additional Parking Spaces,
but Sublandlord has incurred costs in so doing (for example: reimbursements
to other tenants at the property), Subtenant shall, if first approved by
Subtenant, reimburse Sublandlord for such actual costs incurred by
Sublandlord upon receipt of an invoice from Sublandlord.
32.03. Subtenant's liability to reimburse Sublandlord for Additional
Parking Spaces as provided above in Article 32.02 shall not exceed One
hundred ($100.00) dollars per new Additional Parking Space or Five Thousand
($5,000.00) dollars in the aggregate, annually.
ARTICLE 33 - SUBLEASE CONTINGENT UPON MUNICIPAL APPROVAL
33.01. The parties acknowledge that this lease is contingent upon
Sublandlord obtaining approval by the Township of Mahwah Planning Board,
approving the Subtenant's use of the Demised Premises. * Subtenant agrees to
cooperate with Sublandlord in applying to the Township as necessary, without
cost to Subtenant.
ARTICLE 34 - REPRESENTATIONS AND WARRANTIES
34.01. The Sublandlord hereby represents and warrants to Subtenant
the following:
(a) Sublandlord has no actual knowledge of, and has received no
notice of, any outstanding violation of any governmental law, rule,
statute, ordinance, or regulation affecting the Demised Premises, and if
there are any such violations as of the Commencement Date, Sublandlord
shall remove such violations.
----------------------
* on or before June 1, 1994
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(b) Sublandlord has no actual knowledge of any confirmed or
unconfirmed special assessments affecting the Demised Premises.
(c) Sublandlord has full power and right to enter into and
complete this Sublease with out the consent or approval of other parties.
(d) The Demised Premises are serviced by public gas, sewer,
water and electric, and are heated by gas, heat, and that the heating, air
conditioning, sprinkler, electrical and plumbing systems are now in good
working order and will be * on the Commencement Date, and Sublandlord shall
assign to Subtenant any warranties for the HVAC.
(e) To the best of its knowledge, there is no pending or
threatened litigation affecting the Demised Premises and Sublandlord is
unaware of any acts which may give rise to a claim against the Demised
Premises. To the best of the Sublandlord's knowledge, no Lis Pendens is
filed against the Demised Premises.
(f) Each party represents that upon the execution and delivery
of the Sublease by each party, the Sublease will be legally binding upon
Sublandlord and Subtenant in accordance with all of the terms and
conditions.
(g) Sublandlord represents that there is access to the Demised
Premises from what is currently known as "Corporate Drive".
(h) Sublandlord, at its sole cost and expense, has removed the
underground heating oil tanks which previously serviced the Demised
Premises and Building. Sublandlord shall comply with any requirements of
the NJDEPE and other laws, rules and regulations related to the underground
heating oil tanks, including, but not limited to, the removal of the tanks
in accordance with NJDEPE requirements and any remediation of
contamination. Sublandlord shall indemnify and hold harmless Subtenant and
shall be responsible for any expenses, claims, liabilities and penalties
which may be assessed by NJDEPE for all matters which may arise out of the
underground heating oil tanks.
ARTICLE 35 - ENVIRONMENTAL REPRESENTATIONS AND WARRANTIES
35.01. Sublandlord hereby represents and warrants to Subtenant that,
except as otherwise specifically set forth in this
----------------------
* so
36
Sublease, to the best of Sublandlord's knowledge, the following are true:
(i) There are no pending actions against the Sublandlord
with respect to any of its activities in the Demised Premises, under any
environmental law, regulation or ordinance, and the Sublandlord has not
received notice in any form of such an action, or of a possible action.
(ii) To the best of Sublandlord's knowledge, there has not
been, any release, of hazardous substance, as such term is defined under
any federal, state or local environmental law, regulation or ordinance
applicable to the Demised Premises, nor are there, to the best of
Sublandlord's knowledge, any hazardous substances, present in, or on, the
Demised Premises.
35.02. Each party shall immediately notify the other in the event it
receives: (i) any notices or correspondence from the Environmental Protection
Agency or NJDEPE alleging the presence or release of any hazardous substances
or environmental contaminants in, on, around or under the Demised Premises;
or (ii) any information suggesting or demonstrating the release or presence
of any hazardous substances or environmental contaminants in, on, around or
under the Demised Premises.
35.03. Each party hereby indemnities and holds harmless the other
(and shall, at the other party's option, defend) the other party, its
employees, agents, guests, visitors and invitees, or from and against any and
all cost, expense (including without limitation reasonable attorneys and
environmental consultants fees), loss, damage or liability arising directly
or indirectly from a breach by said party of any of the representations or
warranties contained in this Article 35.
35.04. Notwithstanding anything to the contrary contained herein,
Subtenant shall have absolutely no liability for any environmental conditions
including contamination or remediation that may be required pursuant to any
federal, state or local law unless such environmental conditions were caused
by the Subtenant or Subtenant's agents, servants, employees, guests,
invitees, sublessees or assigns. Sublandlord agrees that it will be
responsible to promptly and diligently remediate and comply with all
environmental laws (federal, state or local) with respect to the Land,
Building, Common Areas and Demised Premises except for those conditions which
are the responsibility of the Subtenant and hereby agrees to indemnify and
hold harmless Subtenant, its employees, agents, guests, visitors and invitees
from and against any and all costs, expenses (including, without limitation,
reasonable attorneys, fees and environmental consulting fees), loss, damage
or liability, arising directly or indirectly from same.
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ARTICLE 36 - PERFORMANCE UNDER PROTEST
36.01. If at any time a dispute shall arise as to any amount or sum
of money to be paid by one party to the other under the provisions hereof,
the party against whom the obligation to pay money is asserted shall have the
right to make payment "under protest" and such payment shall not be regarded
as a voluntary payment and there shall survive the right on the part of said
party to institute suit for the recovery of such sum, and if it shall be
adjudged that there was no legal obligation on the part of said party to pay
such sum or any part thereof, said party shall be entitled to recover such
sum or so much thereof as it was not legally required to pay under the
provisions of this Sublease; and if at any time a dispute shall arise between
the parties hereto as to any work to be performed by either of them under the
provisions hereof, the party against whom the obligation to perform the work
is asserted may perform such work and pay the costs thereof "under protest"
and the performance of such work shall in no event be regarded as a voluntary
performance, and there shall survive the right on the part of said party to
institute suit for the recovery of the cost of such work, and if it shall be
adjudged that there was no legal obligation on the part of said party to
perform the same or any part thereof, said party shall be entitled to recover
the cost of such work or the cost of so much of the work as said party was
not legally required to perform under the provisions of this Sublease, plus
reasonable legal fees and interest thereon, at the Late Payment Rate.
ARTICLE 37 - MISCELLANEOUS
37.01. With respect to this Sublease, neither party has relied upon
any statement or representation not embodied in this Sublease or any other
written agreements made concurrently herewith. No agreement shall be
effective to change, modify, waive, release, discharge, terminate or effect
an abandonment of this Sublease, unless such agreement is in writing, and is
signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of abandonment is
sought.
37.02. The obligations under this Sublease shall bind and benefit the
successors and assigns of the parties hereto.
37.03. Upon the request of any Superior Mortgagee in connection with
the financing of the Demised Premises, which such request shall be limited to
one (1) per calendar year, Subtenant shall furnish Sublandlord with a copy
of its last annual financial statement, if available, or if not, the last
annual unaudited financial statement certified by its chief financial
officer, together with any other document or information reasonably
38
requested by such mortgagee within ten (10) days of the request therefor.
Subtenant's failure to provide such financial statement to Subtenant within
said period shall constitute a default of this Sublease. All such financial
information shall be kept confidential by Sublandlord and Superior Mortgagee
and released by Sublandlord only to any Superior Mortgage, existing or
proposed.
37.04. Any liability for payments hereunder (including, without
limitation, Additional Charges) shall survive the expiration of the Term or
earlier termination of this Sublease.
37.05. This Sublease shall be governed by and construed in accordance
with the laws of the State of New Jersey. If any provision of this Sublease
shall be invalid or unenforceable, the remainder of this Sublease shall not
be affected and shall be enforced to the extent permitted by law.
37.06. Sublandlord and Subtenant shall not record this Sublease.
However, at the request of Sublandlord or Subtenant, each party shall
promptly execute, acknowledge and deliver a Memorandum of Sublease in respect
of this Sublease sufficient for recording at the expense of Subtenant.
IN WITNESS WHEREOF, Subtenant and Subtenant have duly executed the
Sublease as of the day and year first above written.
ATTEST: SUBLANDLORD:
TROLL ASSOCIATES, INC., A NEW
JERSEY CORPORATION
BY:____________________________ BY:__________________________________
XXXXXX XXXXXXXX XXXXXX XXXXXXXX
ITS: SECRETARY ITS: PRESIDENT
ATTEST: SUBTENANT:
COMPONENT REMANUFACTURING
SPECIALISTS, INC.
A NEW JERSEY CORPORATION
BY:____________________________ BY:___________________________________
XXXXX X. XXXXX
ITS: SECRETARY ITS: CHIEF EXECUTIVE OFFICER
39
Landlord has signed this Sublease below to indicate its consent to the terms
and conditions of this Sublease.
LANDLORD:
BY:___________________________________
XXXXXX XXXXXXXX
BY:___________________________________
XXXXXX XXXXXXXX
40
