EXHIBIT 10.28
THIS LEASE, made as of the 20th day of July, 1995, by and between 46.25
ASSOCIATES, L.P., a Delaware limited partnership having an office and P.0.
Address at c/o National Realty & Development Corp., 0 Xxxxxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000 (hereinafter referred to as "Landlord") and
MICROFRAME, INC., a New Jersey corporation, having its principal office at 00
Xxxxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, the Landlord has constructed a multi-use building (hereinafter
referred to as "Building") for the purposes of office use and processing
operations for distribution in conjunction with the business being conducted
in the office portions of the Building, commonly known as Building No. 300
located within the area designated as Lot No. 46.25 (hereinafter referred to
as "Lot No. 46.25") on the attached plot plan (hereinafter referred to as
"Plot Plan") which is annexed hereto as Exhibit "A" and made a part hereof;
and
WHEREAS, Landlord has constructed or may construct additional buildings
on Lot Nos. 46.24 and 46.25; and
WHEREAS, Tenant is desirous of leasing from Landlord and Landlord is
desirous of leasing to Tenant certain premises in the MIDDLESEX BUSINESS CENTER
(hereafter referred to as "Center") hereinafter described, upon and subject to
the provisions, agreements, covenants and conditions set forth herein;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE 1. DEMISED PREMISES AND TERM
Section 1.01.(a) In consideration of the rents and additional rents
hereinafter reserved and all of the provisions, agreements, covenants and
conditions hereinafter contained, Landlord hereby leases and demises to Tenant,
and Tenant hereby hires, leases and takes from Landlord approximately 5,112
square feet of floor space ("Floor Space") in the Building and the loading dock
facilities appurtenant thereto ("Loading Dock"), more particularly indicated
and described by cross-hatching on the Plot Plan (the Floor Space and Loading
Dock being hereinafter collectively referred to as the "Demised Premises")
located on Lot No. 46.25 in the Center located in the BOROUGH of SOUTH
PLAINFIELD, COUNTY OF MIDDLESEX and STATE OF NEW JERSEY, together with all
improvements to be constructed thereon by the Landlord for the use of the
Tenant, and all easements, tenements and appurtenances thereto.
Section 1.01.(b) The parties acknowledge that the Landlord intends to
erect or has erected other buildings on Lot Nos. 46.24 and 46.25 (which may be
different in design and construction from the Building) which buildings may be
constructed at the sole option of Landlord. Landlord shall have sole control
and discretion in connection with the scope, design and aesthetics of any such
additional construction. Landlord shall perform any such additional
construction in a manner so as to minimize interference with Tenant's use of
the Demised Premises for the purposes set forth in Section 2.01 hereof,
provided that in no event shall Landlord be required to use overtime or premium
pay labor. If any such additional construction prevents Tenant from using the
Demised Premises for the purposes set forth in Section 2.01 hereof for three
(3) consecutive days, then all annual minimum rent and all additional rent
payable pursuant to Section 7.03, Article 12 and Article 14 shall xxxxx from
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the day such additional construction prevented Tenant from using the Demised
Premises for the purposes set forth in Section 2.01 hereof to the day on which
such additional construction no longer prevents Tenant from using the Demised
Premises for the purposes set forth in Section 2.01 hereof.
Section 1.01.(c) The Demised Premises are demised and let subject to
(i) the existing state of the title thereof; (ii) any state of facts which an
accurate survey or physical inspection thereof might disclose; (iii) all
zoning regulations, restrictions, rules and ordinances now in effect or
hereafter adopted by any governmental authority having jurisdiction; and (iv)
any utility, sewer or drainage easements or agreements and the installations
made pursuant thereto now existing or hereafter granted or installed; all
without representation or warranty by Landlord, except as expressly set forth
herein. Landlord represents that to its knowledge, as of the date hereof, none
of the foregoing will prohibit the use of the Demised Premises for the purposes
set forth in Section 2.01 hereof.
Section 1.02. As long as Tenant occupies the Demised Premises, Tenant,
together with its employees, customers, invitees and business guests, shall
have the right to use, in common with Landlord, its successors, assigns,
tenants, subtenants, designees, concessionaires, licensees and any of their
customers, invitees, and business guests, all of the Common Areas (as such
term is defined in Section 12.01 hereof) at any time and from time to time
existing within Lot Nos. 46.24 and 46.25, except for areas reserved for the
exclusive use of other tenants, occupants, or designees and except for periods
of time during which the Common Areas are being repaired, altered or
reconstructed. Neither Landlord nor Tenant nor anyone holding under or through
either of them shall make any charge for the use of the Common Areas to the
other or to the customers, invitees or business guests of Landlord or Tenant or
of anyone else hereinbefore granted the right to use the Common Areas, except
as provided in Article 12 of this Lease.
Section 1.03. The term ("Term") of this Lease shall be FOUR (4) years
from and after the commencement date ("Commencement Date"), which date shall
be: (a) the date upon which the Demised Premises are first occupied by Tenant
and Tenant is actually conducting business in the Demised Premises, or (b)
thirty (30) days following the date upon which Landlord's Work (as hereinafter
defined) shall be duly certified by Landlord or Landlord's agent as being
substantially complete, except for those items, the completion of which will
not unreasonably or materially interfere with Tenant's use and occupancy of the
Demised Premises as provided herein, whichever date shall first occur, and
shall expire on the date which is the FOUR (4) year anniversary of the last
day of the calendar month in which said Commencement Date shall occur
("Expiration Date").
Section 1.04. The parties shall, within ten (10) days following request
of the other, execute a written document, in recordable form, expressing the
Commencement Date and Expiration Date of the Term hereof, as such have been
determined in accordance with the provisions of this Lease.
Section 1.05. The term "Lease Year" is defined to mean twelve (12)
consecutive calendar months; the first Lease Year to commence on the first day
of the immediately succeeding calendar month following the Commencement Date
and each succeeding Lease Year to commence on the anniversary date of the
commencement of the first Lease Year. The portion of the Term prior to the
first Lease Year shall be deemed a "Partial Lease Year" and any obligations of
Tenant for such Partial Lease Year shall be prorated on a per diem basis.
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ARTICLE 2. USE AND OPERATION
Section 2.01. Subject to the other provisions of this Lease, Tenant
shall occupy and use the Demised Premises solely for office purposes and
purposes incidential thereto and processing operations for products for
distribution in conjunction with the business being conducted in the office
portion of the Demised Premises, and for no other use. Tenant hereby covenants
and agrees that it, its successors and assigns, or anyone holding by, through
or under them, shall not use, nor permit the use of the Demised Premises for
any other use or purpose. Immediately following certification under Section
1.03 above, Tenant shall fixture, furnish and equip the Demised Premises for
Tenant's intended business purpose and upon the Commencement Date, Tenant shall
occupy and open for business in the Demised Premises.
ARTICLE 3. RENT
Section 3.01. The annual minimum rental during the Term shall be the
sum of FORTY THOUSAND EIGHT HUNDRED NINETY SIX and 00/100 ($40,896.00)
DOLLARS, which Tenant agrees to pay to Landlord in lawful money of the United
States in equal monthly installments of THREE THOUSAND FOUR HUNDRED EIGHT and
00/100 ($3,408.00) DOLLARS each, in advance, on the first day of each calendar
month during the Term hereof at the office of Landlord or such other place or
to such other person or party as Landlord may designate, without prior demand
therefor and without any setoff or deduction whatsoever, except as herein
provided. Annual minimum rent and additional rent shall be prorated for a
fraction of a month, if any, based on the number of days within such fractional
month.
Section 3.02. All taxes, charges, costs and expenses which Tenant
assumes or agrees to pay under any provision of this Lease, together with any
and all other sums which may become due, by reason of any default of Tenant or
failure on Tenant's part to comply with the provisions, covenants and
conditions of this Lease on Tenant's part to be performed, and each or any of
them, shall be collectible and recoverable as additional rent, and, in the
event of nonpayment thereof, Landlord shall have all the rights and remedies
herein provided as in the case of nonpayment of annual minimum rent.
ARTICLE 4. SUBORDINATION
Section 4.01. This Lease and all rights of Tenant hereunder are, and
shall be, subject and subordinate to any mortgages, deeds of trust (including
blanket mortgages or deeds of trust covering the Demised Premises and/or the
Center and/or other properties) or any other security interest which has been
or which hereinafter may affect the Demised Premises, and to any ground or
underlying leases of all or part of the Center, and to any renewals,
modifications, consolidations, replacements and extensions thereof (hereinafter
collectively referred to as "Landlord's Financing"). Upon request of Tenant,
Landlord shall request a non-disturbance agreement in favor of Tenant from any
of the foregoing parties; provided, Tenant understands that such granting of a
non-disturbance agreement is in the sole discretion of any of such parties and
Landlord shall not be deemed to be in default under this Lease in the event any
such party shall refuse to grant a non-disturbance agreement to Tenant. Tenant
acknowledges that the interest of Landlord under this Lease may be assigned by
Landlord as collateral security to any of the foregoing parties holding
interests to which this Lease is subject and subordinate. In the event of
foreclosure of any such interest, or termination of any such ground or
underlying lease, or in the event of an exercise of the power of sale under any
mortgage or other security interest made by Landlord covering the premises of
which the Demised Premises forms a part, Tenant shall recognize the rights of
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any such party under and pursuant to the provisions of such collateral
assignment and Tenant shall be deemed to have automatically attorned to and
acknowledged the purchaser or purchasers upon any foreclosure or sale and
recognized such purchaser or purchasers as the Landlord under this Lease.
Section 4.02. The provisions of Section 4.01 shall be self-operative,
but Tenant covenants and agrees that it shall, within fifteen (15) days
following request, at any time or times, execute, acknowledge and deliver to
Landlord any instruments in order to subordinate this Lease and Tenant's rights
hereunder, as aforesaid, said instruments to be in the form reasonably required
by any mortgagee, ground lessor or other secured party.
Section 4.03. There is no Section 4.03 to this Lease.
Section 4.04. Landlord and Tenant shall, at any time and from time to
time, upon not less than fifteen (15) days prior notice from the other party
hereto, execute, acknowledge and deliver to such other party a statement in
writing certifying that this Lease 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) and the dates to which the
rent and other charges have been paid in advance, if any, and stating whether
or not Landlord is in default in the performance of any provision, covenant or
condition contained in this Lease, and if so, specifying each such default, and
containing any other statements or certifications reasonably required by a
mortgagee, and/or ground lessor and/or other secured party, it being intended
that any statement or certification delivered pursuant to this Section may be
relied upon by any party to whom it may be delivered by Landlord or Tenant, as
the case may be.
ARTICLE 5. AS IS
Section 5.01. Tenant has examined the Demised Premises and has made a
complete inspection of same and is familiar with the physical condition
thereof. Landlord has not made and does not make any representation as to the
physical condition or any other matter affecting or relating to the Demised
Premises, except as is in this Lease specifically set forth, and Tenant
specifically acknowledges that no such representation has been made. Tenant
further acknowledges that Landlord has afforded Tenant the opportunity for a
full and complete investigation, examination, and inspection of the Demised
Premises and Tenant agrees to accept the Demised Premises "as is".
Notwithstanding the foregoing, Landlord shall, at Landlord's cost and expense,
perform the work set forth on Exhibit B annexed hereto and made a part hereof
(such work is herein referred to as "Landlord's Work").
Section 5.02. Landlord or Landlord's contractor may give Tenant notice
that Landlord's Work is substantially complete and that it is practicable for
Tenant to enter the Demised Premises for the performance of work by Tenant
necessary to occupy the Demised Premises and open for business, and if such
notice shall be given, Tenant shall promptly thereafter commence all work that
is necessary to open the Demised Premises for business. Subject to the
foregoing provisions of this Section, Tenant shall have the right to install
its fixtures and equipment during the period in which Landlord is performing
Landlord's Work, provided Tenant does not interfere with the progress of
Landlord's Work, and all work is performed by local union labor, and, further,
provided, that insurance meeting the requirements of Section 7.02 is furnished,
or caused by Tenant to be furnished, to Landlord prior to any such entry. Such
entry into the Demised Premises by Tenant prior to the Commencement Date is and
shall be at the Tenant's sole cost and risk, except for the negligence or
willful misconduct of Landlord or its employees, agents or contractors, and the
provisions of Section 7.01 and Section 7.02 shall be applicable during any such
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period prior to the Commencement Date. All fixturing and/or other work to be
performed by or on behalf of Tenant (other than Landlord's Work hereunder)
shall be done in accordance with plans and specifications therefor submitted to
and approved by Landlord prior to the commencement of such fixturing and/or
other work, which approval shall not be unreasonably withheld or delayed, and
in accordance with and subject to the provisions of Article 19 hereof. No
changes (other than immaterial changes necessitated by field conditions) shall
be made in said plans and specifications nor shall there be any deviation in
the prosecution of the work in accordance with said plans and specifications
without Landlord's prior written approval, which approval shall not be
unreasonably withheld or delayed. Notwithstanding the prohibition against non-
union labor set forth above, Tenant may use or employ non-union labor to
perform the work to be performed by Tenant under this Lease; provided, however,
if Tenant's use of non-union labor causes or results in a labor dispute
delaying or interfering with the progress of any other construction within the
Center or with the operation of the Center, Tenant shall within twenty-four
(24) hours following notice from Landlord (which may be oral or written) cause
each conflicting labor to leave the Demised Premises, and thereafter Tenant
shall prosecute its work only with local union labor.
Section 5.03. If Tenant claims that some or all of Landlord's Work has
not been performed by Landlord upon delivery of notice of substantial
completion of Landlord's Work, as provided herein, Tenant shall, within fifteen
(15) days of said date (or fifteen (15) days following the date Tenant opens
for the transaction of business, whichever date is sooner), submit to Landlord
a written list of the work Tenant claims remains to be performed by Landlord,
and Landlord shall have thirty (30) days thereafter to complete such work. If
Landlord fails to complete such work within such thirty (30) day period, the
sole remedy of Tenant shall be to complete such work and Tenant shall have the
right to set off the cost thereof from the rent due Landlord in order to
reimburse Tenant for the cost and expense of completion of the work. Upon
written request of Landlord, Tenant will, within five (5) days following
request (but not sooner than the expiration of the applicable fifteen (15) day
period set forth in the first sentence of this Section), furnish to Landlord a
written statement that Tenant is in occupancy of the Demised Premises, that
Landlord's Work has been completed in accordance with Landlord's obligations or
in lieu thereof, a list of the work Tenant claims to be incomplete.
Section 5.04. Notwithstanding anything contained in this Lease to the
contrary, Landlord will guaranty completion of Landlord's Work to provide for
beneficial occupancy by the Tenant no later than August 15, 1995 provided that
the Tenant has approved final floor plans and has furnished to Landlord carpet
and paint selections and all other necessary information needed for Landlord to
apply for a building permit (which permit shall be applied for no later than
July 15, 1995).
If possession of the Demised Premises (with Landlord's Work substantially
completed) shall not be delivered to Tenant on or prior to such date, Tenant
shall have the right to cancel this Lease upon ten (10) days notice to
Landlord, unless possession of the Demised Premises (with Landlord's Work
substantially completed) shall be delivered to Tenant prior to the expiration
of such ten (10) day period. If Tenant shall not exercise such right of
cancellation and Landlord's Work shall not be substantially completed (or
deemed substantially completed) on or before August 15, 1995, then Tenant shall
receive a credit against the payment of two (2) days of annual minimum rent
accruing hereunder for each day following August 15, 1995 on which Landlord's
Work shall not be substantially complete (or deemed substantially complete).
Tenant's right to cancel this Lease and the credit against the payment of
annual minimum rent accruing under this Lease, each as provided in this
paragraph, shall be Tenant's sole remedies in the event Landlord's Work shall
not be substantially complete (or deemed substantially complete) or prior to
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the dates required in this Section 5.04.
If the substantial completion of Landlord's Work is delayed by reason of:
(i) any act or omission of Tenant or any of its employees, agents or
contractors; or (ii) any failure (not due to any act or omission of Landlord or
any of its employees, agents or contractors) to plan or execute Tenant's work
necessary for Tenant's occupancy of the Demised Premises with reasonable speed
and diligence, or (iii) any changes by Tenant in Landlord's Work or any changes
or substitutions requested by Tenant; or (iv) Tenant's failure to furnish plans
and specifications required to be furnished by Tenant, or subsequent changes
thereto; or (v) Tenant's request for materials, finishes or installations other
than Landlord's typical building standard; or (vi) the performance or
incompletion of work by a party employed or retained by Tenant; then Landlord's
Work shall be deemed substantially completed on the date when the same would
have been substantially completed but for such delay and, in addition, Tenant
shall pay to Landlord all reasonable costs and damages which Landlord may
sustain by reason of such delay.
Section 5.05. If there shall be a delay in the construction, repair or
restoration of the Demised Premises or Center or any portion thereof caused by
strikes, riots, acts of God, shortages of labor or materials, national
emergency, governmental restrictions, laws or regulations, the act or failure
to act of Tenant, including without limitation, delays in delivering
construction criteria and plan approval, or for any other cause or causes
beyond Landlord's control, at Landlord's option such delay shall not be a
violation of this Lease, and the time periods set forth in this Lease for any
such work shall, at Landlord's option, be extended for a period of time equal
to the period of delay.
Section 5.06. The Plot Plan shows the approximate location of
existing buildings, buildings under construction, proposed buildings and
certain areas reserved for related site improvements and future construction at
the option of Landlord. Landlord shall have the right to develop the Center in
the manner it sees fit and in the sole and absolute discretion of Landlord: to
construct or not construct any buildings other than the Building, to change the
nature or identity of the occupants of any such buildings, and to vary the
floor areas, stories and heights, sizes, shapes and design of any such
buildings and the divisions or portions thereof. Landlord shall exercise its
rights under this Section 5.06 in a manner so as to minimize interference with
Tenant's use of the Demised Premises for the purposes set forth in Section 2.01
hereof, provided that in no event shall Landlord be required to use overtime or
premium pay labor. If Landlord's exercise of its rights under this Section
5.06 prevents Tenant from using the Demised Premises for the purposes set forth
in Section 2.01 hereof or from having access to the Demised Premises, in either
case, for three (3) consecutive days, then all annual minimum rent and all
additional rent payable pursuant to Section 7.03, Article 12 and Article 14
shall xxxxx from the day Landlord's exercise of such rights prevented Tenant
from using the Demised Premises for the purposes set forth in Section 2.01
hereof or having access to the Demised Premises, as the case may be, to the day
on which such exercise no longer prevents Tenant from using the Demised
Premises for the purposes set forth in Section 2.01 hereof or having access to
the Demised Premises, as the case may be.
ARTICLE 6. ALTERATIONS AND REPAIRS
Section 6.01. No structural (or electrical, plumbing or other building
system) alterations or additions shall at any time be made by or at the
instance of Tenant without Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed. Tenant may make any non-
structural non-electrical non-plumbing non-building system alteration upon
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prior notice thereof to Tenant accompanied by plans or drawings showing the
proposed work. All work, repairs, and/or alterations made by or at the
instance of Tenant shall be done in a good and workmanlike manner, with first
class new materials, in compliance with any applicable governmental rules and
regulations, and subject to Article 19 hereof, and the cost thereof shall be
paid by Tenant so that the Demised Premises shall at all times be free of
liens for labor or materials supplied or claimed to have been supplied to the
Demised Premises. Any alterations, installations, repairs, additions or
improvements (inclusive of paneling and other wall coverings), except Tenant's
trade fixtures, shall, at the option of Landlord, become the property of
Landlord and shall remain upon and be surrendered with the Demised Premises,
as part thereof, at the expiration or sooner termination of the term of this
Lease. If Tenant is in default hereunder or is dispossessed, or vacates the
premises, voluntarily or otherwise, and fails to remove any property, equipment
and fixtures within ten (10) days following notice by Landlord, then and in
that event, the said property, equipment and fixtures shall be deemed to be
abandoned and Landlord may remove and dispose of such property and charge the
cost and expense of removal and disposal to Tenant. Trade fixtures shall be
defined as fixtures and equipment used by Tenant in the operation of its
business, but not including any fixtures and equipment which are part of the
operation of the Demised Premises or the Building.
Section 6.02. Anything to the contrary contained herein
notwithstanding, it is expressly understood and agreed that Tenant may install,
connect and operate such machinery, fixtures and equipment as may be deemed
necessary or desirable by the Tenant for its business, subject to compliance
with applicable rules and regulations of governmental bodies and bureaus having
jurisdiction thereover. Subject to the terms and conditions of this Lease, the
machinery, fixtures and equipment belonging to Tenant shall, at all times, be
considered and intended to be personal property of Tenant, and not part of the
realty, and subject to removal by Tenant, provided, at the time of such
removal, that Tenant is not in default pursuant to any of the terms, covenants,
provisions or conditions of this Lease beyond any applicable notice and cure
periods. Tenant, at its own cost and expense, shall pay for any damage to the
Demised Premises or Building caused by the installation thereof or such
removal, and this obligation shall survive the expiration or sooner termination
of the term of this Lease.
Section 6.03. Landlord shall, following reasonable notice from Tenant,
promptly make all necessary repairs and replacements to (i) the exterior and
structural portions of the Demised Premises, including the foundations thereof,
and (ii) all utility and plumbing systems and other building wide systems
serving the Demised Premises to the extent such serve premises other than the
Demised Premises and are not maintained by any utility company or municipality,
provided, however, in no event shall Landlord be required to make any repairs
or replacements caused by any act, omission, or negligence of Tenant, any sub-
tenant, or concessionaire, or their respective employees, agents, invitees,
licensees or contractors. Tenant shall make all other repairs and replacements
to the Demised Premises. Tenant shall maintain throughout the term of this
Lease, including any extension term hereof, a protective service maintenance
contract with a contractor approved by Landlord, which approval shall not be
unreasonably withheld or delayed, providing for periodic maintenance of the
H.V.A.C. system serving the Demised Premises, including without limitation
periodic changing of any and all filters, changing of belts, lubricating of
equipment and maintenance of operating levels of freon in accordance with
manufacturers specifications. Said contract shall provide for maintenance
inspection and service not less than three (3) times per year. A copy of any
such maintenance contract shall be delivered to Landlord on a yearly basis.
Tenant shall keep all glass clean and in good condition, and Tenant shall
replace any glass which may be damaged or broken with glass of the same
quality. Tenant shall keep the sidewalk, if any, adjacent to the Demised
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Premises free and clear of trash, litter and rubbish.
Section 6.04. Nothing contained in this Lease shall authorize Tenant to
do any act which may create or be the foundation for any lien, mortgage or
other encumbrance upon the reversion or other estate of Landlord, or of any
interest of Landlord in the Demised Premises, or upon or in the Building or
Center of which the same form a part; it being agreed that should Tenant cause
any alterations, changes, additions, installations, improvements or repairs to
be made to the Demised Premises, or cause materials to be furnished or labor to
be performed therein or thereon, neither Landlord nor the Demised Premises
shall, under any circumstances, be liable for the payment of any expense
incurred or for the value of any work done or materials furnished to the
Demised Premises or any part thereof. All such alterations, changes, additions,
improvements, repairs, materials and labor shall be at Tenant's sole expense
and T enant shall be solely and wholly responsible to contractors,
subcontractors, laborers and materialmen furnishing labor and material to the
Demised Premises or any part thereof. If, because of any act or omission of
Tenant, any mechanic's or other lien or order for the payment of money shall be
filed against the Demised Premises or the Building or improvements thereon or
therein, or upon the Center, or against Landlord (whether or not such lien or
order is valid or enforceable as such), Tenant shall, at Tenant's own cost and
expense, within ten (10) days after notice of the filing thereof, cause the
same to be canceled and discharged of record, or furnish Landlord with a surety
bond issued by a surety company reasonably satisfactory to Landlord, protecting
Landlord from any loss because of nonpayment of such lien or claim, and Tenant
hereby indemnifies and saves harmless Landlord from and against any and all
costs, expenses, claims, losses or damages, including reasonable counsel fees,
resulting therefrom or by reason thereof.
Section 6.05. Except for the repair obligations of Landlord under
Section 6.03 above and the restoration obligations of Landlord under and as
set forth in Articles 8 and 10 hereof and except as otherwise specifically
provided in this Lease, the Tenant shall take good care of the Demised Premises
and, at its cost and expense, keep and maintain in good repair the interior of
the Demised Premises, including, but not limited to the air conditioning and
heating plant, the plumbing pipes and fixtures belonging thereto; and shall
repair or replace all mechanical and working parts used in connection with the
air conditioning, electrical, heating and plumbing plants, fixtures and
systems; and shall keep the water and sewer pipes and connections free from
other obstructions; and shall generally maintain and repair the interior of
the Demised Premises and shall, at the end or the expiration of the Term (or
Extension Term, whichever is applicable), deliver up the Demised Premises in
good order and condition, damages by the elements, ordinary wear and tear
excepted. Tenant covenants and agrees that it shall not cause or permit any
waste (other than reasonable wear and tear), damage or disfigurement to the
Demised Premises, or any overloading of the floors of the Building.
Section 6.06. At no time prior to or during the lease term shall
Tenant cause any penetrations through the roof of the Demised Premises. Any
proposed penetrations through the roof shall be made by Landlord's roofer or by
a roofer qualified to Landlord.
ARTICLE 7. INDEMNITY AND INSURANCE
Section 7.01. Tenant hereby indemnifies and saves harmless Landlord
from and against any claims and all loss, cost, liability, damage and/or
expense, including, but not limited to reasonable counsel fees, penalties and
fines, incurred in connection with or arising from (i) any default by Tenant in
the observance or performance of any of the provisions, covenants or conditions
of this Lease on Tenant's part to be observed or performed, (ii) the use or
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occupancy or manner of use or occupancy of the Demised Premises by Tenant or
any person claiming through or under Tenant, or (iii) any acts, omissions, or
negligence of Tenant or any such person, or any contractor, agent, servant,
employee, visitor or licensee of Tenant, or any such person, in or about the
Demised Premises. If any action or proceeding shall be brought against
Landlord based upon any such claim, Tenant, upon notice from Landlord, shall
cause such action or proceeding to be defended, at Tenant's expense, by counsel
acting for Tenant's insurance carriers in connection with such defense or by
other counsel reasonably satisfactory to Landlord. The express indemnification
obligation of Tenant pursuant to this Section 7.01 shall not apply to damage or
injury which occurs as a result of a structural fault in the Demised Premises,
or the failure of Landlord to perform its obligations with respect to the
Common Areas, provided same are not the result of any act, omission or
negligence or Tenant, or any contractor, agent, servant, employee, visitor or
licensee of Tenant, provided, however, nothing contained in this sentence shall
be deemed to relieve Tenant from its obligations under this Lease or for any
joint responsibility or joint contribution obligations permitted at law or in
equity.
Section 7.02. Tenant shall, during the Term (including any extension
term) and during any period prior to the commencement of the Term during which
Tenant or anyone acting by or on behalf of Tenant enters the Demised Premises,
at Tenant's own cost and expense, maintain and provide, or cause to be
maintained and provided: (a) comprehensive general liability insurance for the
benefit and protection of Landlord and Tenant (said policy to name Landlord,
ground lessor, if any, and any other parties designated by Landlord, as
additional insureds) in an amount not less than $1,000,000 for injuries or
death to any one person, and not less than $2,000,000 for injuries or death to
more than one person in any one accident or occurrence and for damage to
property in an amount not less than $500,000 arising out of any one accident or
occurrence; (b) worker's compensation insurance covering all persons employed
in connection with Tenant's use and occupancy of the Demised Premises or any
construction or alteration work therein; (c) insurance against loss or damage
to Tenant's contents, including without limitation, trade fixtures and
equipment, by fire, lightning, and other risks from time to time included under
standard "extended coverage" policies, and vandalism and malicious mischief, in
amounts sufficient to prevent Landlord and Tenant from becoming co-insurers of
any loss under such policy, but in any event, not less than 100 percent of the
full insurable value of such property; (d) boiler and pressure vessel insurance
on all of Tenant's equipment, parts thereof and appurtenances attached or
connected to the Demised Premises which by reason of their use or existence are
capable of bursting, erupting, collapsing or exploding, in the minimum amount
of Five Hundred Thousand ($500,000.00) Dollars for damage to property resulting
from such perils; and (e) insurance covering such other risks as may be
requested by Landlord occasioned by or attributable to the use or occupancy or
manner of use or occupancy of the Demised Premises by Tenant, provided, any
insurance required of Tenant pursuant to this clause (e) is also then being
required by other landlords of space in the state of New Jersey similar to the
Demised Premises (in terms of size and use). Said policies shall be issued by
companies having a Best's Insurance Guide rating of "A" or better (and if such
ratings shall no longer be available, then by companies reasonably
satisfactory to Landlord), licensed to do business in the state in which the
Demised Premises is located. Said policies or certificates thereof shall be
delivered to Landlord at the commencement of the Term (or prior thereto in the
event of earlier entry by Tenant upon the Demised Premises), together with
proof of payment of premium therefor, and renewal policies or certificates
therefor shall be delivered to Landlord not less than ten (10) days prior to
the expiration dates thereof. Said policies and/or certificates shall contain
an undertaking by the insurer to give Landlord not less than ten (10) days
written notice of any cancellation or change in scope or amount of coverage of
said policies.
9
Section 7.03. (a) Landlord shall, during the Term, maintain and provide
general hazard insurance against loss or damage to the Building by fire,
lightning, including "builder's risk endorsements" during the course of
construction, other risks from time to time included under standard "Extended
Coverage" policies, vandalism and malicious mischief, in amounts not less than
100 percent of the full replacement value of the Building and any other
Building or portion thereof covered by such insurance and rent loss insurance
covering all minimum and additional rental payable hereunder. Tenant shall pay
its proportionate share of the cost of maintaining and providing such
insurance, based upon the method of calculation set forth in Article 31 hereof.
Section 7.03. (b) Such payment shall be made to Landlord in monthly
installments on or before the first day of each calendar month, in advance, in
an amount reasonably estimated by Landlord. Periodically, Landlord shall
furnish Tenant with a written statement of the actual amount of Tenant's
proportionate share of said insurance costs. If the total amount paid by
Tenant under this section for any period during the Lease Term shall be less
than the actual amount due from Tenant for such period, as shown on such
statement, Tenant shall pay to Landlord the difference between the amount paid
by Tenant and the actual amount due, such deficiency to be paid within thirty
(30) days after demand therefor by Landlord; and if the total amount paid by
Tenant hereunder for any such period shall exceed the actual amount due from
Tenant for such period, the excess shall promptly be applied by Landlord to the
next accruing monthly installments thereof or, at Landlord's option, to any
other charges payable by Tenant. For the calendar years in which this Lease
commences and terminates, the provisions of this section shall apply and
Tenant's liability for its proportionate share thereof for such years shall be
subject to a pro rata adjustment based on the number of days of said calendar
years during the Lease Term. Prior to or at the commencement of the Lease Term
and from time to time thereafter throughout the Lease Term, Landlord will
notify Tenant in writing of Landlord's estimate of Tenant's monthly
installments due hereunder. Tenant's obligations under this section shall
survive the expiration of the Lease Term. Landlord shall provide Tenant copies
of the bills evidencing the insurance costs paid by Tenant pursuant to this
Section 7.03 upon Tenant's request therefor.
ARTICLE 8. FIRE DAMAGE
Section 8.01. If the Demised Premises shall be partially damaged by
fire or other insured casualty, the damages shall be repaired by and at the
expense of Landlord and the annual minimum rental and additional rent due
under Section 7.03, Article 12 and Article 14 of this Lease until such repairs
shall be made shall xxxxx equitably according to the part of the Demised
Premises which is unusable by Tenant or, if by reason thereof, the Demised
Premises are rendered untenantable, said rental and additional rent due under
Section 7.03, Article 12 and Article 14 of this Lease shall totally xxxxx until
such repairs shall be made. Notwithstanding the foregoing, if the Demised
Premises or the Building shall be damaged to such extent that Landlord shall
decide to demolish same, or not to rebuild same, then, and in such event,
Landlord may terminate this Lease upon notice to Tenant given within ninety
(90) days following such event, and upon the date specified in such notice,
which date shall not be less than thirty (30) days nor more than sixty (60)
days following the giving of said notice, this Lease shall terminate and Tenant
shall vacate and surrender the Demised Premises to Landlord. Any annual
minimum rental prepaid by Tenant beyond said date (after accounting for any
abatement of rent to which Tenant is entitled pursuant to this Section 8.01)
shall be promptly refunded to Tenant. Notwithstanding any of the foregoing
provisions of this Article, if Landlord or the holder of any superior mortgage
shall be unable to collect all of the insurance proceeds (including rent
insurance proceeds) applicable to damage or destruction of the Demised Premises
10
or the Building by fire or other cause, by reason of some action or inaction on
the part of the Tenant or any of its employees, agents or contractors, then,
without prejudice to any other remedies which may be available against Tenant,
the abatement of Tenant's rents provided for in this Article shall not be
effective to the extent of the uncollected insurance proceeds.
Section 8.02. If this Lease shall not be terminated as provided above
in this Article, Landlord shall, at its expense, proceed with the restoration
of the Demised Premises, provided, Landlord's obligations hereunder shall not
exceed the scope of the initial building standard construction of the Demised
Premises and further provided, that Landlord's restoration obligations shall
be subject to building and zoning laws then in effect. In the event Landlord
shall not substantially complete the restoration of the Demised Premises within
nine (9) months following the date of destruction, Tenant shall have the right
to terminate this Lease by notice received by Landlord prior to the date upon
which Landlord shall substantially complete the restoration of the Demised
Premises. No penalty shall accrue for reasonable delay which may arise by
reason of adjustment of insurance on the part of Landlord. If Landlord shall
so restore the Demised Premises, Tenant shall repair, restore and redecorate
the Demised Premises and reoccupy and reopen the Demised Premises, within
forty-five (45) days following notice of restoration, in a manner and to
substantially the condition existing prior to the event of damage, except to
the extent that Landlord is obligated above, and Tenant shall hold in trust
the proceeds of all insurance carried by Tenant on its property for the
purpose of such repair and restoration.
Section 8.03. Nothing hereinabove contained with respect to the
Tenant's right to xxxxx the rent under proper conditions shall be construed to
limit or effect the Landlord's right to payment under the rental loss coverage
to be provided pursuant to Section 7.03 hereof.
ARTICLE 9. WAIVER OF SUBROGATION
Section 9.01. Landlord, its officers, agents, employees, subsidiaries
and affiliated entities and corporations shall not be liable for any damage to
or destruction of any of Tenant's goods, merchandise, fixtures, furniture or
property of whatsoever nature, caused by fire or any other cause whatsoever,
except the negligence of any such parties, and Tenant hereby releases and
waives any right of recovery against Landlord, its officers, agents, employees,
subsidiaries and affiliated entities and corporations for any such loss. Tenant
shall procure a waiver of subrogation on the part of the insurer against such
parties by an endorsement to all insurance policies whereby the insurer
recognizes the provisions of this Section 9.01; provided that if such waiver of
subrogation requires the payment of additional premiums, such waiver does not
have to be procured unless the party requiring the waiver is willing to pay for
such additional premiums.
Section 9.02. Tenant, its officers, agents, employees, subsidiaries and
affiliated entities and corporations shall not be liable for any damage to or
destruction of any of Landlord's goods, merchandise, fixtures, furniture or
property of whatsoever nature, caused by fire or any other cause whatsoever,
except the negligence of any such parties, and Landlord hereby releases and
waives any right of recovery against Tenant, its officers, agents, employees,
subsidiaries and affiliated entities and corporations for any such loss.
Landlord shall procure a waiver of subrogation on the part of the insurer
against such parties by an endorsement to all insurance policies whereby the
insurer recognizes the provisions of this Section 9.02; provided that if such
waiver of subrogation requires the payment of additional premiums, such waiver
does not have to be procured unless the party requiring the waiver is willing
to pay for such additional premiums.
11
ARTICLE 10. CONDEMNATION
Section 10.01. If the whole of the Demised Premises shall be taken by
any governmental authority under the power of condemnation, eminent domain, or
expropriation, or in the event of a conveyance in lieu thereof, the Term of
this Lease shall cease as of the day possession shall be taken by such
governmental authority. If more than 25 percent of the Demised Premises shall
be so taken or conveyed, either Landlord or Tenant shall have the right to
terminate this Lease upon notice to the other party, effective as of the day
possession shall be taken by such governmental authority. If this Lease is so
terminated, annual minimum rental shall be prorated as of the date that
possession must be surrendered to the condemning authority.
Section 10.02. If this Lease continues after a partial taking, the
annual minimum rental shall xxxxx equitably as to the part of the Demised
Premises which is taken. If this Lease continues after any such taking or
conveyance, Landlord shall make all necessary repairs and restorations so as to
restore the remainder of the Demised Premises to a complete architectural unit.
Landlord's reconstruction obligations shall not exceed the amount of the award
or compensation for the taking, shall not exceed the scope of the initial
building standard construction of the Demised Premises, and shall be subject to
building and zoning laws then in effect.
Section 10.03. If so much of the Center, Common Areas or Building shall
be so taken or conveyed so that in the reasonable exercise of Landlord's
judgment, the continued operation of the Building for use by its tenants is
unfeasible, then, in such event, and provided that all other leases for space
in the Building are terminated to the extent Landlord may terminate the same
pursuant to the terms of such other leases, Landlord may, by notice to Tenant,
delivered not later than thirty (30) days following the date that possession of
the premises taken or conveyed is delivered to the governmental authority,
terminate this Lease, and rent shall be pro rated as of the date that
possession must be surrendered to the condemning authority.
Section 10.04. Tenant and not Landlord shall be entitled to any portion
of the award made to Tenant for the value of Tenant's removable trade fixtures
and equipment other than equipment necessary for the operation of the Building.
All compensation awarded for the taking of the Building, the fee and the
leasehold shall belong to and be the property of Landlord, and Tenant shall not
be entitled to and hereby waives any damages for the unexpired portion of the
Term of this Lease, or injury to its leasehold interest.
ARTICLE 11. ASSIGNMENT AND SUBLETTING
Section 11.01. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, as the case may
be, expressly covenants that it shall not assign, mortgage or encumber this
agreement, nor sublet or underlet nor suffer or permit the Demised Premises or
any part thereof to be used by others without the prior written consent of
Landlord in each instance. If, with consent of Landlord, this Lease may be
assigned, or the Demised Premises or any part thereof be underlet or occupied
by anybody other than Tenant, Landlord may collect rent from the assignee,
undertenant or occupant and apply the amount collected to the rent herein
reserved, but no such assignment, underletting, occupancy or collecting shall
be deemed to relieve Tenant or any guarantor of this Lease or guarantor of the
obligations of Tenant hereunder of any of its or their obligations hereunder
nor be deemed a waiver of this covenant, or the acceptance of the assignee,
undertenant or occupant as tenant, or a release of Tenant or any guarantor of
this Lease or any guarantor of the obligations of Tenant hereunder from its or
12
their obligations under the covenants, provisions and conditions hereof; it
being understood and agreed that Tenant and any guarantor of this Lease or any
guarantor of the obligations of Tenant hereunder shall remain obligated as
primary obligors under this Lease. The consent by Landlord to an assignment or
underletting shall not in any wise be construed to relieve Tenant or any other
Tenant, assignee, undertenant, or occupant of the Demised Premises from
obtaining the express consent in writing of Landlord to any further assignment
or underletting, and no such assignment or subletting shall be made to anyone
who shall occupy the Demised Premises for any use other than as permitted by
Section 2.01 or which would in any way violate the applicable ordinances, rules
and regulations of applicable governmental boards or bureaus having or
claiming jurisdiction thereof, or of the carrier of the fire insurance to be
provided under this Lease. Notwithstanding anything to the contrary in this
Lease, Landlord's consent shall not be required for any of the following
permitted transfers (each a "Permitted Transfer"): (a) the assignment of this
Lease or the subletting of the Demised Premises to any parent corporation
wholly-owning Tenant or any wholly-owned subsidiary of Tenant or Tenant's
parent corporation; (b) the assignment of this Lease or the subletting of the
Demised Premises to (i) any entity fifty (50%) percent or more of which is
owned by Tenant, (ii) any entity which owns fifty (50%) percent or more of
Tenant, or (iii) any entity fifty (50%) percent or more of which is under
common ownership with Tenant; (c) the assignment of this Lease to a corporation
or other entity acquiring all or substantially all of the Tenant's assets; or
(d) the transfer of this Lease to any successor of Tenant by consolidation,
merger or other corporate action.
Section 11.02. Supplementing the provisions of Section 11.01 of this
Lease, provided Tenant is not in default under any of the terms, covenants,
conditions and provisions of this Lease, Landlord shall not unreasonably
withhold or delay its consent to any proposed assignment of this Lease or
subletting of the entire Demised Premises. Any assignment or transfer of this
Lease and any subletting of all or a portion of the Demised Premises shall (i)
except as to a Permitted Transfer, be subject to Landlord's prior written
consent and (ii) be made only if, and shall not be effective until, the
assignee or subtenant shall execute, acknowledge and deliver to Landlord a
recordable agreement, in form and substance reasonably satisfactory to Landlord
and counsel for Landlord, whereby the assignee or subtenant shall assume for
the benefit of Landlord the obligations and performance of this Lease and agree
to be personally bound by and upon all of the covenants, agreements, terms,
provisions and conditions hereof on the part of Tenant to be performed or
observed, and whereby Tenant (and any guarantor of this Lease or of the
Tenant's obligations hereunder) covenants and agrees to remain liable as a
primary obligor for the due performance of all of the covenants, agreements,
terms, provisions and conditions of this Lease on the part of Tenant to be
performed or observed. In the event of any assignment of this Lease or any
subletting of all or any portion of the Demised Premises, the obligations of
Tenant and any guarantor of this Lease or any guarantor of the obligations of
Tenant under this Lease as a primary obligor shall be unaffected and shall
remain in full force and effect.
Section 11.03. Notwithstanding anything heretofore contained, in the
event that Tenant desires to assign this Lease or sublet all or a portion of
the Demised Premises, Tenant shall first notify Landlord in writing of its
intention, and such notice shall state the name of the proposed assignee or
subtenant, together with its full address and a description of its proposed use
(but nothing contained herein shall permit, nor obligate Landlord to permit, a
use other than the use permitted by Section 2.01 of this Lease, it being
understood that any change in use shall be subject to Landlord's consent, which
Tenant agrees may, notwithstanding anything contained herein to the contrary,
be unreasonably withheld). Tenant shall include therewith such financial
information as may be available concerning the proposed assignee or subtenant,
13
including without limitation current updated financial statements (which
financial information Tenant, and/or the proposed assignee or subtenant shall
supplement on demand if reasonably required by Landlord). In addition, Tenant
shall simultaneously tender a duplicate original of the instrument of
assignment or sublease reasonably satisfactory to counsel for Landlord.
Section 11.04. Except in the case of a Permitted Transfer, Tenant
hereby covenants and agrees to tender to Landlord upon receipt fifty (50%)
percent of any annual minimum rent or additional rent or lump sum or
installment payment or sum which Tenant shall receive from or on behalf of any
assignee(s) or subtenant(s) or any occupant by, through or under Tenant, which
is in excess of the annual minimum rent or additional rent payable by Tenant in
accordance with the provisions of this Lease (or in the event of a subletting
of less than the whole of the Demised Premises, the annual minimum rent or
additional rent allocable to that portion of the Demised Premises affected by
such sublease). At the time of submission of the proposed assignment or
sublease to Landlord, Tenant shall certify to Landlord in writing whether or
not the assignee or subtenant has agreed to pay any such monies to Tenant or
any designee of Tenant other than as specified and set forth in such
instruments, and if so Tenant shall certify the amounts and time of payment
thereof in reasonable detail.
ARTICLE 12. COMMON AREA MAINTENANCE
Section 12.01. As used in this lease, the term "Common Area Operating
Costs" shall include the total cost and expense incurred by Landlord in
operating, lighting, striping, maintaining, cleaning, landscaping, repairing
(including replacement and resurfacing) managing, signing, equipping and
insuring the Common Areas within Lot Nos. 46.24 and 46.25 plus ten (10%)
percent of the foregoing costs to cover Landlord's administrative and overhead
costs. Such costs and expenses shall include, without limitation: cleaning;
fire and police protection and general security (Landlord not incurring or
assuming any obligation to provide such protection or security or any liability
for the failure of the same); repairing and replacing paving; keeping the
Common Areas supervised, drained, reasonably free of snow, ice, rubbish and
other obstructions, and in a neat, clean, orderly and sanitary condition; the
charges for rubbish containers and removal (except that at Landlord's option,
Tenant shall be directly responsible for contracting for and for providing
(subject to Landlord's approval of the provisions and conditions of the
agreement therefor, such approval not to be unreasonably withheld or delayed)
rubbish containers and removal); the maintenance of any and all fire protection
systems servicing Lot Nos. 46.24 and 46.25; the cost of public liability
insurance; keeping the Common Areas suitably lighted; maintaining signs (other
than Tenant's signs), markers, painted lines delineating parking spaces, and
o t her means and methods of pedestrian and vehicular traffic control;
constructing, maintaining and repairing of onsite and offsite traffic
controls; maintaining adequate roadways, entrances and exits; maintaining any
plantings and landscaped areas; Lot Nos. 46.24 and 46.25 management fees
incurred by Landlord, including management fees payable to parties or entities
owned or controlled by Landlord or any of them; maintenance and repair of all
utilities, utility conduits and storm drainage systems situated within or
servicing Lot Nos. 46.24 and 46.25; fees for required licenses and permits; and
depreciation of machinery and equipment used in the operation and maintenance
of the Common Areas (to the extent the cost thereof is amortized with respect
to the year in question) and personal property taxes and other charges incurred
in connection with such equipment. Notwithstanding anything to the contrary
contained in this Lease, Common Area Operating Costs shall expressly exclude:
(a) the cost of any repairs made by Landlord because of the occurrence of any
casualty for which Landlord is actually reimbursed by insurance or otherwise
compensated, including direct reimbursement by any tenant or occupant of the
14
Center; (b) costs associated with any expansion of the buildings or other
permanent improvements comprising the Center provided the same are deemed to be
capital costs by generally accepted accounting principles; (c) the cost of
providing or performing renovations, improvements, maintenance or repairs to or
within any premises leased to any other tenant or occupant of the Center
(excluding any pipes, conduits, etc., located in any such premises which serve
premises in addition to such premises); (d) leasing commissions,
advertising expenses, architectural and engineering fees and other costs
incurred in connection with the leasing premises within the Center including
costs incurred in relocating or moving tenants; (e) legal fees and costs
incurred in enforcing leases of other tenants in the Center; (f) costs, fines
or penalties incurred due to willful violations by Landlord (and not caused or
otherwise reimbursable by Tenant) of any governmental rules or authority; (g)
principal and interest payable with respect to any financing for the Center
other than financing in connection with the purchase of equipment used in the
operations, repair and maintenance of the Common Areas;
(h) costs and fines assessed against Landlord for its violation of any leases
with other tenants in the Center; (i) rental attributed to any ground or
underlying lease of the Center; and (j) costs incurred for the removal or
remediation of hazardous materials and the costs incurred for compliance with
all applicable laws relating to hazardous materials. The term "Common Areas"
shall be defined as all paved areas, driveways, truckways, walkways, and
landscaped and planted areas within Lot Nos. 46.24 and 46.25. Landlord shall
maintain, light, clean and repair (including snow removal) the Common Areas so
that such Common Areas may be used for their intended purposes, and in order
to enable Landlord to perform its obligations as aforesaid, Landlord may incur
such Common Area Operating Costs as Landlord, in its sole discretion, may
determine. Landlord shall not include in one item of Common Area Operating
Costs costs included as another item of Common Area Operating Costs.
Section 12.02. During the initial term of this Lease and during any
extension term hereof, Tenant shall pay Landlord Tenant's proportionate share
of Common Area Operating Costs incurred or expended by Landlord as aforesaid.
Such payment shall be made to Landlord in monthly installments on or before
the first day of each calendar month, in advance, in an amount estimated by
Landlord. Following the expiration of each calendar year during the Lease
Term hereof, Landlord shall furnish Tenant with a written statement of the
actual amount of Tenant's proportionate share of the Common Area Operating
Costs for such year. If the total amount paid by Tenant under this section
for any calendar year during the Lease term shall be less than the actual
amount due from Tenant for such year, as shown on such statement, Tenant shall
pay to Landlord the difference between the amount paid by Tenant and the
actual amount due, such deficiency to be paid within thirty (30) days after
demand therefor by Landlord; and if the total amount paid by Tenant hereunder
for any such calendar year shall exceed such actual amount due from Tenant for
such calendar year, such excess shall promptly be applied by Landlord to the
next accruing monthly installments of Tenant's proportionate share of Common
Area Operating Costs or, at Landlord's option, to any other charges payable by
Tenant. For the calendar years in which this Lease commences and terminates,
the provisions of this section shall apply, and Tenant's liability for its
proportionate share of any Common Area Operating Costs for such years shall be
subject to a pro rata adjustment based on the number of days of said calendar
years during the Lease term. Prior to or at the commencement of the Lease
term and from time to time thereafter throughout the Lease term, Landlord will
notify Tenant in writing of Landlord's reasonable estimate of Tenant's monthly
installments due hereunder. Tenant's obligations under this section shall
survive the expiration of the Lease term. Tenant's proportionate share of
Common Area Operating Costs shall be a fraction, having as its numerator, the
number of square feet of floor area within the Demised Premises and as its
denominator, the total number of square feet of floor area of all buildings
within Lot Nos. 46.24 and 46.25 or, at Landlord's option, provided there shall
15
be a reasonable basis therefor, the portion thereof affected by such cost,
including the Demised Premises. Notwithstanding the foregoing provisions of
this Article, in the event the obligations of Tenant under this Article 12 are
specifically identifiable separate charges relating to Tenant and/or the
Demised Premises, then, and in such event, the obligations of Tenant under this
Article 12 may, at Landlord's option, be measured and payable in accordance
with such separate and specifically identifiable charge and not by the
provisions of the preceding sentence.
Tenant shall have the right, upon ten (10) days advance, written
notice by Tenant to Landlord, during regular business hours at Landlord's
office to audit, inspect and copy the books and records of Landlord for the
calendar year in which such audit, inspection or copying is made and/or the
calendar year immediately prior thereto with respect to any costs or item which
is passed through to Tenant as Common Area Operating Costs. Tenant shall keep
any information discovered in the course of any such audit, inspection and
copying confidential except as may be necessary in order for Tenant to enforce
its rights under this Lease or as may be required by law.
Section 12.03. Tenant, its concessionaires, officers, employees, and
agents may use the Common Areas, subject to such reasonable, non-discriminatory
rules and regulations as Landlord may from time to time impose, including the
designation of specific areas in which vehicles owned or operated by Tenant,
its concessionaires, officers, employees and agents must be parked. Tenant
shall abide by such rules and regulations and cause its concessionaires,
officers, employees, agents, customers and invitees to conform thereto.
Landlord may, at any time, close temporarily any Common Areas to make repairs
or changes therein or to effect construction repairs or changes within Lot Nos.
46.24 and 46.25, and Landlord may do such other acts in and to the Common Areas
as in its reasonable judgment may be desirable to improve the convenience
thereof. Landlord shall perform such other acts in a manner so as to minimize
interference with Tenant's use of the Demised Premises for the purposes set
forth in Section 2.01 hereof, provided that in no event shall Landlord be
required to use overtime or premium pay labor. If any such other acts are
performed in a manner which prevents Tenant from using the Demised Premises for
the purposes set forth in Section 2.01 hereof or from having access to the
Demised Premises, in either case, for three (3) consecutive days, then all
annual minimum rent and all additional rent payable pursuant to Section 7.03,
Article 12 and Article 14 shall xxxxx from the day such other acts prevented
Tenant from using the Demised Premises for the purposes set forth in Section
2.01 hereof or having access to the Demised Premises, as the case may be, to
the day on which such other acts no longer prevent Tenant from using the
Demised Premises for the purposes set forth in Section 2.01 hereof or having
access to the Demised Premises, as the case may be.
Section 12.04. Notwithstanding anything to the contrary herein
contained, Landlord hereby reserves the right (and Tenant hereby consents
thereto) to construct or permit the construction, use and maintenance within
the Common Areas of Lot Nos. 46.24 and 46.25 including without limitation, the
parking areas, of various commercial type buildings, structures, and
appurtenances, and equipment incidental thereto. Landlord shall exercise its
rights under this Section 12.04 in a manner so as to minimize interference with
Tenant's use of the Demised Premises for the purposes set forth in Section 2.01
hereof, provided that in no event shall Landlord be required to use overtime or
premium pay labor. If Landlord's exercise of its rights under this Section
12.04 prevents Tenant from using the Demised Premises for the purposes set
forth in Section 2.01 hereof or from having access to the Demised Premises, in
either case, for three (3) consecutive days, then all annual minimum rent and
all additional rent payable pursuant to Section 7.03, Article 12 and Article 14
shall xxxxx from the day Landlord's exercise of such rights prevented Tenant
from using the Demised Premises for the purposes set forth in Section 2.01
16
hereof or having access to the Demised Premises, as the case may be, to the day
on which such exercise no longer prevents Tenant from using the Demised
Premises for the purposes set forth in Section 2.01 hereof or having access to
the Demised Premises, as the case may be.
ARTICLE 13. UTILITIES
Section 13.01. Tenant shall pay, as and when they shall be due and
payable, all water charges, taxes, water rates and/or meter charges, sprinkler
charges (standby or otherwise), sewer taxes, sewer charges, sewer fees, and
sewer rental taxes and charges for utilities, including, without limitation,
the charges for gas, electricity, and other utilities furnished to Tenant and
consumed in the Demised Premises. Tenant shall heat the Demised Premises
whenever the weather shall require. If Landlord, or any property of Landlord,
shall be held responsible for any expense covered by this Article, Tenant shall
pay Landlord the amount thereof within thirty (30) days following written
request. Landlord shall not be responsible to Tenant for any failure or
interruption of any such services, irrespective of the cause thereof.
ARTICLE 14. TAXES
Section 14.01. (a) Subject to the reimbursement obligations of Tenant
hereinafter set forth, Landlord shall pay during the Term of this Lease, all
real estate taxes assessed or imposed upon or respecting the land and
improvements within and upon Lot No. 46.25. The term "real estate taxes" for
purposes of this Lease shall exclude income, franchise, estate or inheritance
taxes levied against Landlord or taxes based upon rental receipts, but shall
include any taxes levied in lieu of or as a substitute for real estate taxes.
Tenant shall pay to Landlord, as additional rent, at the time and in the manner
set forth in Section 14.01 (b), Tenant's proportionate share of such taxes,
which proportionate share shall be based upon the method of calculation set
forth in Article 31 hereof. Notwithstanding the foregoing, if the improvements
within the Demised Premises and/or the balance of the improvements or any part
thereof upon Lot No. 46.25 shall receive a separate assessment based upon the
certification of the Tax Assessor, then the taxes payable by Tenant for such
improvements may, at Landlord's option, be based thereon.
Section 14.01. (b) All amounts payable by Tenant pursuant to this
Article shall be paid to Landlord in monthly installments on or before the
first day of each calendar month, in advance, in an amount reasonably estimated
by Landlord; provided, that in the event Landlord is required under any
mortgage encumbering Lot No. 46.25 to escrow real estate taxes, Landlord may,
but shall not be obligated to, use the amount required to be so escrowed as a
basis for its estimate of the monthly installments due from Tenant hereunder.
As soon as shall be reasonably practicable following the expiration of each
calendar year during the Lease Term, Landlord shall furnish Tenant with a
written statement of the actual amount of Tenant's share of the taxes for such
year. If the total amount paid by Tenant under this section for any calendar
year during the Lease Term shall be less than the actual amount due from Tenant
for such year, as shown on such statement, Tenant shall pay to Landlord the
difference between the amount paid by Tenant and the actual amount due, such
deficiency to be paid within thirty (30) days after demand therefor by
Landlord; and if the total amount paid by Tenant hereunder for any such
calendar year shall exceed such actual amount due from Tenant for such calendar
year, such excess shall be applied by Landlord to the next accruing monthly
installments of taxes due from Tenant or, at Landlord's option, to any other
charges payable by Tenant. For the calendar years in which this Lease commences
and terminates the provisions of this Section shall apply, and Tenant's
liability for its share of taxes for such years shall be subject to a pro rata
17
adjustment based on the number of days of said calendar years during the Lease
Term. Prior to or at the commencement of the Lease Term and from time to time
thereafter throughout the Lease Term, Landlord may notify Tenant in writing of
Landlord's reasonable estimate of Tenant's monthly installments due hereunder.
Tenant's obligations under this Section shall survive the expiration of the
Lease Term. Landlord shall provide Tenant with a copy of the most recent tax
xxxx for Lot No. 46.25 upon request therefor.
Section 14.02. Tenant shall be liable for all taxes on or against
property and trade fixtures and equipment placed by Tenant in or about the
Demised Premises, or taxes on Tenant's right to occupy the Demised Premises.
If any such taxes are levied against Landlord or Landlord's property, and if
Landlord pays same, or if the assessed valuation of Landlord's property is
increased by the inclusion therein of a value placed upon such property, and if
the Landlord pays the taxes based on such increased assessment, Tenant, upon
demand, shall repay to Landlord the taxes so paid by Landlord or the portion of
such taxes resulting from such increase in assessment.
ARTICLE 15. REMEDIES OF LANDLORD
Section 15.01. (a) If Tenant shall default in the payment of the annual
minimum rental reserved herein, or in the payment of any item of additional
rent or other monies due hereunder, or any part of same, and any such default
shall continue for more than five (5) days after written notice of such
default; or
Section 15.01. (b) If Tenant shall default in the observance of any of
the provisions, covenants and conditions of this Lease (other than a default
covered by subsection (a) above and other than Sections which provide a
specific period or date for performance), and such default shall continue for
more than thirty (30) days after written notice of such default, or for such
other period provided in the relevant Section hereof; or
Section 15.01. (c) If Tenant shall fail to occupy the Demised Premises
and open for business at the commencement of the Term of this Lease, as above
provided, or if the Demised Premises shall be abandoned, deserted or vacated,
or if Tenant shall sublet the Demised Premises or assign this Lease, except as
herein provided; or
Section 15.01. (d) If Tenant or any guarantor of Tenant's obligations
hereunder shall make an assignment for the benefit of creditors, or if any such
party shall file or have filed against it a petition in bankruptcy, or be
adjudicated a bankrupt by any court and such adjudication shall not be vacated
within sixty (60) days, or if Tenant or any guarantor of Tenant's obligations
hereunder takes the benefit of any insolvency act, or if Tenant or any
guarantor of Tenant's obligations hereunder be dissolved voluntarily or
involuntarily or have a receiver of its property appointed in any proceedings
other than bankruptcy proceedings and such appointment shall not be vacated
within sixty (60) days after it has been made, or if any levy, sale or
execution of any kind is made upon or of any property of Tenant in the Demised
Premises; then, upon the happening of any one or more of the defaults or events
specified above, at the option of Landlord: (1) upon ten (10) days notice to
Tenant, this Lease and the Term hereof shall wholly cease and terminate
on the date specified within the notice, with the same force and effect as
though such termination was the date of the expiration of the Term of this
Lease, and thereupon, or at any time thereafter, Landlord may re-enter
said premises either by force, or otherwise, and have possession of the
same and/or may recover possession thereof by summary proceeding, or
otherwise (but Tenant
18
shall remain liable to Landlord as hereinafter provided); or (2) Landlord may,
without further notice, exercise any remedy available at law or in equity.
Section 15.02. In case of any default, event, re-entry, expiration,
termination and/or dispossession by summary proceedings, or otherwise, Tenant
shall, nevertheless, remain and continue liable to Landlord in a sum equal to
all annual minimum rental and additional rent herein reserved for the balance
of the Term herein demised as the same may become due and payable pursuant to
the provisions of this Lease. Landlord may repair or alter the Demised
Premises in such manner as Landlord may deem reasonably necessary or advisable,
and/or let or relet the Demised Premises and any and all parts thereof for the
whole or any part of the remainder of the original Term hereof or for a longer
period, in Landlord's name, or as the agent of Tenant, and, out of any rent so
collected or received, Landlord shall, first, pay to itself, the expense and
cost of retaking, repossessing, repairing and/or altering the Demised Premises,
and the expense of removing all persons and property therefrom, second, pay to
itself, any cost or expense sustained in securing any new tenant or tenants,
and third, pay to itself, any balance remaining on account of the liability of
Tenant to Landlord for the sum equal to the annual minimum rental and
additional rent reserved herein and unpaid by Tenant for the remainder of the
Term herein demised. Any entry or re-entry by Landlord, whether had or taken
under summary proceedings or otherwise, shall not absolve or discharge Tenant
from liability hereunder. Nothing in this Section 15.02 is intended to
constitute a waiver by Tenant of the duty of Landlord to mitigate damages in
the event of Tenant's default to the extent such duty exists pursuant to New
Jersey law, provided, however, Tenant agrees that Landlord shall not be
required to retain the services of an outside third party broker and Landlord
shall not be deemed to have failed to use reasonable efforts to mitigate
damages if Landlord shall not retain the services of an outside third party
broker.
Section 15.03. Should any rent so collected by Landlord after the
payment aforesaid be insufficient fully to pay to Landlord a sum equal to all
annual minimum rental and additional rent herein reserved, the balance or
deficiency shall be paid by Tenant on the rent days herein specified; that is,
upon each of such rent days Tenant shall pay to Landlord the amount of the
deficiency then existing and Tenant shall be and remain liable for any such
deficiency, and the right of Landlord to recover from Tenant the amount
thereof, or a sum equal to the amount of all annual minimum rental and
additional rent herein reserved if there shall be no reletting, shall survive
the issuance of any dispossessory warrant or other termination hereof.
Section 15.04. Suit or suits for the recovery of such deficiency or
damage, or for a sum equal to any installment or installments of annual minimum
rental or additional rent hereunder, may be brought by Landlord from time to
time at Landlord's election, and nothing herein contained shall be deemed to
require Landlord to await the date on which this Lease or the Term hereof would
have expired by limitation had there been no such default by Tenant or no such
termination or cancellation.
Section 15.05. Tenant hereby expressly waives service of any notice
of intention to re-enter subsequent to the giving of the aforesaid notices
under Section 15.01 above. Tenant hereby expressly waives any and all right
to recover or regain possession of the Demised Premises or to reinstate or to
redeem this tenancy or this Lease as is permitted or provided by or under any
statute, law, or decision now or hereafter in force and effect.
Section 15.06. Tenant shall reimburse Landlord, within thirty (30)
days following written demand, for any reasonable counsel fees or collection
charges incurred or expended by Landlord by reason of Tenant's default in the
performance of any provision, covenant, or condition of this Lease and any
19
such amounts, at the option of Landlord, may be recovered in the same action or
proceeding forming the basis of the default or in another action or proceeding.
Section 15.07. Notwithstanding any other remedy provided for hereunder
and without the requirement of notice, except as provided in this Section, if
Tenant shall not comply with any of its obligations hereunder, Landlord shall
have the right, at Landlord's sole option, at anytime in the event of an
emergency or otherwise after ten (10) days notice to Tenant, to cure such
breach at Tenant's expense. Tenant shall reimburse Landlord, within thirty
(30) days following demand, as additional rent, for all costs and expenses
incurred by Landlord in curing such breach, together with interest computed
thereon at the rate of fifteen (15%) percent per annum or the maximum rate
permitted by law, whichever shall be the lesser.
Section 15.08. Notwithstanding anything to the contrary contained in
this Lease, if Tenant fails to pay any rent, additional rent or any other
money item due hereunder within thirty (30) days after same are due and
payable, Landlord shall have the right (in addition to any other rights or
remedies of Landlord and without the requirement of any notice) to commence
immediate legal proceedings or action for dispossession and damages or Landlord
may avail itself of any other remedies at law or in equity and include in such
action or proceeding any amounts then due and payable as of the date of the
commencement of such action or proceeding. Notwithstanding anything contained
in this Lease, if Tenant fails to pay any monetary items due hereunder on or
prior to the date which is ten (10) days following the date on which the same
are due and payable, a late charge of four ($.04) cents for each ONE ($1.00)
DOLLAR so overdue shall become immediately due and payable to the Landlord as
damages for failure to make prompt payment and the same shall be considered as
additional rent hereunder payable together with the next installment of monthly
rent. In addition, all such unpaid monetary items shall bear interest at the
rate of fifteen (15%) percent per annum or the maximum rate permitted by law,
whichever shall be the lesser, from the date such monies were due until the
date on which Landlord shall receive payment.
Section 15.09. The rights and remedies whether herein or elsewhere
provided in this Lease shall be cumulative and the exercise of any one right or
remedy shall not preclude the exercise of or act as a waiver of any other right
or remedy of Landlord hereunder, or which may be existing at law, or in equity,
by statute or otherwise.
Section 15.10. Tenant covenants and agrees to give any mortgagee
and/or ground lessor of the Center or any portion thereof of whom Tenant has
notice, notice of any default by Landlord under this Lease and such mortgagee
and/or ground lessor shall be afforded the right (but shall not have the
obligation) to cure any default by Landlord within such reasonable period of
time as may be required by such mortgagee and/or ground lessor.
ARTICLE 16. WAIVER OF TRIAL BY JURY
Section 16.01. It is mutually agreed by and between Landlord, Tenant
and any guarantor of the obligations of Tenant hereunder, that the respective
parties hereto shall and they hereby do waive trial by jury in any action,
proceeding, or counterclaim brought by the parties hereto on any matters
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Demised
Premises, and/or any claim of injury or damage, and any emergency, summary or
statutory remedy. If Landlord commences any summary proceeding, or any other
action for collection of rent or additional rent hereunder, Tenant shall not
interpose any counterclaim (other than compulsory counterclaims) or cross claim
20
of any nature in any such proceeding or action, nor shall Tenant move to
consolidate any such claim with any claim being maintained by Landlord.
ARTICLE 17. ACCESS TO PREMISES
Section 17.01. Landlord and its designees shall have the right to enter
upon the Demised Premises at all times in the case of an emergency and
otherwise upon at least twenty-four (24) hours notice to inspect and examine
same, to make repairs, additions, alterations, or improvements to the Demised
Premises, the Building within which the Demised Premises are located or any
property owned or controlled by Landlord within such Building. Landlord's
rights of entry as aforesaid, and the taking of all property into and upon the
Demised Premises that may be required in connection therewith, shall not be
considered an eviction of Tenant, in whole or in part, constructive or
otherwise, and Landlord shall not be liable to Tenant for any expense, damage,
or loss or interruption of the business of Tenant by reason thereof, and the
rent reserved hereunder shall continue without abatement during the period of
any such entry and while such repairs, alterations, improvements or additions
are being made. Landlord or Landlord's designees shall have the right, upon at
least twenty-four (24) hours notice, to enter the Demised Premises at all
reasonable times to show the Demised Premises to prospective purchasers,
mortgagees or lessees of the Demised Premises or building of which the Demised
Premises form a part. During the six month period prior to the expiration of
the Term hereof, Landlord may exhibit the Demised Premises to prospective
tenants and Landlord may place upon the Demised Premises notices reading, "To
Let" or "For Rent", which notices Tenant shall allow to be posted conspicuously
without molestation.
If Landlord, in the exercise of its rights under this Article 17, shall
unreasonably interfere with Tenant's occupancy of the Demised Premises and such
interference results in Tenant being unable to use the Demised Premises for the
purposes set forth in Section 2.01 hereof for three (3) consecutive days, then
all annual minimum rent and all additional rent payable pursuant to Section
7.03, Article 12 and Article 14 shall xxxxx from the date on which such
interference resulted in Tenant being unable to use the Demised Premises for
the purposes set forth in Section 2.01 hereof until the earlier of the date on
which Tenant resumes, or is again able to resume, use of the Demised Premises
for the purposes set forth in Section 2.01 hereof.
ARTICLE 18. NO WAIVER
Section 18.01. No delay or omission of the exercise of any right by
either party hereto shall impair any such right or shall be construed as a
waiver of any default or as acquiescence therein. One or more waivers of any
provision, covenant, or condition of this Lease by either party shall not be
construed by the other party as a waiver of a subsequent breach of any other or
the same provisions, covenant, or condition. No requirements whatsoever of this
Lease shall be deemed waived or varied because of either party's failure or
delay in taking advantage of any default, and Landlord's acceptance of any
payment from Tenant with actual or constructive knowledge of any default shall
not constitute a waiver of Landlord's rights in respect to such default, nor of
any subsequent or continued breach of any such default or any other requirement
of this Lease.
Section 18.02. No payment by Tenant or receipt by Landlord of a lesser
amount than the rent or other sum stipulated to be paid or reserved shall be
deemed to be other than on account of the earliest stipulated or reserved sum
payable, nor shall any such payment and acceptance by Landlord be deemed an
accord and satisfaction or a modification or waiver of any rights or
obligations or liabilities hereunder notwithstanding any statement, written or
oral, accompanying such payment, or by way of endorsement or otherwise; and
21
Landlord may accept any such payment whether by check, draft or other means
whatsoever without prejudice to Landlord's right to recover the balance owing,
or to pursue any other remedy in this Lease or at law or in equity provided.
Landlord may, at Landlord's option, accept payment of rent or any other charge
hereunder from any person or entity other than the Tenant named herein and the
same shall not constitute a recognition by Landlord of, or vest in said person
or entity, any rights hereunder.
ARTICLE 19. REQUIREMENTS OF LAW;
INSURANCE REQUIREMENTS
Section 19.01. In Tenant's performance of its rights and obligations
under this Lease, including without limitation, any preterm right, obligation
or entry into the Demised Premises, Tenant covenants and agrees to comply with
all laws, orders, and regulations of federal, state, city, county, governmental
and municipal authorities, fire insurance rating organizations and fire
insurance underwriters, and insurance companies issuing coverage respecting the
Demised Premises and Tenant shall make all alterations or installations
necessary to comply therewith. Notwithstanding anything in this Lease to the
contrary, Tenant shall not be obligated to make any alterations or
installations necessary to comply with law to those portions of the Demised
Premises which Landlord is obligated to repair throughout the term of this
Lease pursuant to Section 6.03 hereof unless such alteration or installation is
required by law on account of Tenant's particular use or occupancy or manner of
use or occupancy of the Demised Premises. Tenant shall secure all permits or
approvals necessary to operate its business within the Demised Premises and
shall only operate its business within the Demised Premises in compliance with
all laws, orders and regulations of federal, state, city and county,
governmental and municipal authorities, fire insurance rating organizations and
fire insurance underwriters, and insurance companies issuing coverage
respecting the Demised Premises.
Section 19.02. Tenant shall not use or occupy the Demised Premises or
do or permit anything to be done therein in any manner which shall make it
impossible for Landlord and/or Tenant to obtain at standard rates any
insurance required or desired, or which will invalidate or increase the cost
to Landlord of any insurance.
Section 19.03. If, by reason of Tenant's failure to comply with the
provisions of Section 19.01 above, or if, by reason of any act or failure to
act of Tenant, its agents, servants, contractors, employees or licensees, or
if, by reason of the use of the Demised Premises, the fire insurance rates
applicable to the Demised Premises, or of the Building or any other premises
in said Building, shall be increased above the rate applicable to the
occupancy permitted hereunder, Tenant shall pay to Landlord, within thirty
(30) days following demand, the amount of additional premium for fire
insurance payable by reason thereof.
Section 19.04. No abatement, diminution, or reduction in annual
minimum rental or any sums constituting additional rent shall be claimed by or
allowed to Tenant for any inconvenience or interruption, cessation or loss of
business caused directly or indirectly, by any present or future laws,
ordinances, rules or regulations, requirements or orders of federal, state,
county, township or municipal governments or any other lawful authority
whatsoever, or by priorities, rationing, or curtailment of labor or materials,
or by war, civil commotion, strikes or riots, or any manner or thing resulting
therefrom, or by any other cause or causes beyond the control of Landlord, nor
shall this Lease be affected by any such causes.
22
ARTICLE 20. SIGNS
Section 20.01. Tenant shall not place, install or maintain any sign
upon or outside the Demised Premises or in the Center until approved by
Landlord, which approval shall not be unreasonably withheld or delayed; nor
shall Tenant place, install or maintain any awning, canopy, aerial, antenna or
the like in or upon the Demised Premises, the Building or the Center. Any sign
must conform to all applicable rules, regulations, codes and directives of
governmental agencies having jurisdiction, and Tenant shall, at its expense,
apply for and obtain all permits necessary in connection therewith. If
Landlord shall submit to Tenant a general sign criteria or specification,
Tenant shall comply therewith. Tenant shall be solely responsible for all
maintenance and repairs respecting its signs.
ARTICLE 21. TENANT'S ADDITIONAL COVENANTS
Section 21.01. Tenant covenants and agrees for itself, its officers,
employees, contractors, agents, servants, licensees, invitees, subtenants,
concessionaires, and all others doing business with Tenant (hereinafter for the
purposes of this Article, collectively referred to as "Tenant") that:
(a) There is no clause (a) to this Section 21.01;
(b) Tenant shall not encumber or obstruct the Center or sidewalks in
and about the Demised Premises;
(c) Tenant shall not display, advertise or sell its products or goods in
the Common Areas of the Center or sidewalk in and about the Demised Premises;
(d) Tenant shall not permit any deliveries to be made through the front
entrance of the Demised Premises unless there is no access thereto otherwise;
(e) Tenant shall not cause or permit trash, refuse, dirt or other
rubbish to accumulate on the Demised Premises or in the Center and shall cause
same to be promptly removed;
(f) Tenant shall not injure, overload, deface, commit waste or otherwise
harm the Demised Premises or any part thereof;
(g) Tenant shall not commit any nuisance;
(h) Tenant shall not permit the emission from the Demised Premises of any
objectionable noise or odor;
(i) Tenant shall not burn any trash, rubbish, dirt or refuse within the
Center;
(j) Tenant shall use the Demised Premises only for business and
commercial purposes (subject to the provisions of Article 2 hereof) and Tenant
shall not use, allow or permit any industrial, manufacturing or processing
activities within the Demised Premises, except as may be expressly permitted by
Section 2.01 of this Lease;
(k) Tenant shall conform and comply with all nondiscriminatory and
uniformly applicable rules and regulations which Landlord may reasonably
promulgate for the management and use of the Center;
(l) Tenant shall not use any advertising medium that may constitute a
nuisance, such as loudspeakers, sound amplifiers or phonographs, in a manner to
be heard outside the Demised Premises;
23
(m) Tenant shall cooperate with Landlord in promoting the use of the name
of the Center;
(n) Tenant shall not place a load on any floor of the Demised Premises
exceeding the floor load per square foot which such floor was designed to
carry;
(o) Tenant shall not install, operate or maintain in the Demised Premises
any electrical equipment which will overload the electrical system therein or
any part thereof beyond the capacity for proper and safe operation, as
determined by Landlord, in relation to the overall system and requirements for
electricity in the Building;
(p) Tenant shall not install, operate, or maintain any electrical
equipment in the Demised Premises which does not comply with applicable codes;
and
(q) No portion of the Demised Premises shall be used or occupied for the
sale, dispensing, storage or display of food, foodstuffs, or food products for
consumption on or off the Demised Premises, provided that the foregoing shall
not prohibit the use and occupancy of the Demised Premises as permitted by
Section 2.01 hereof nor the installation and use of vending machines serving
solely Tenant's employees.
ARTICLE 22. EASEMENTS FOR UTILITIES
Section 22.01. Landlord or its designee shall have the right and Tenant
shall permit Landlord or its designee to erect, use, maintain and repair pipes,
cables, conduits, plumbing, vents and wires in, to and through the Demised
Premises as and to the extent that Landlord may now or hereafter deem necessary
or appropriate for the use or proper operation and maintenance of the Demised
Premises, or the Building or any other portion of the Center. Landlord's
rights under this Article shall be exercised, as far as practicable, in such
manner as to avoid unreasonable interference with Tenant's occupancy of the
Demised Premises. If Landlord, in the exercise of its rights under this
Section 22.01, shall unreasonably interfere with Tenant's occupancy of the
Demised Premises and such interference results in Tenant being unable to use
the Demised Premises for the purposes set forth in Section 2.01 hereof for
three (3) consecutive days, then all annual minimum rental and all additional
rent payable pursuant to Section 7.03, Article 12 and Article 14 shall xxxxx
with respect to the Demised Premises from the date on which such interference
resulted in Tenant being unable to use the Demised Premises for the purposes
set forth in Section 2.01 hereof until the earlier of the date on which Tenant
resumes, or is again able to resume, use of the Demised Premises for the
purposes set forth in Section 2.01 hereof.
ARTICLE 23. CONSENTS AND APPROVALS
Section 23.01. With respect to any provision of this Lease providing
that Landlord shall not unreasonably withhold or unreasonably delay any consent
or any approval, Tenant, in no event, shall be entitled to make, nor shall
Tenant make, any claim for, and Tenant hereby waives any claim for money
damages; nor shall Tenant claim any money damages by way of setoff,
counterclaim or defense, based upon any claim or assertion by Tenant that
Landlord has unreasonably withheld or unreasonably delayed any consent or
approval; but Tenant's sole remedy shall be an action or proceeding to enforce
any such provision, or for specific performance, injunction or declaratory
judgment.
24
THERE IS NO ARTICLE 24 TO THIS LEASE
ARTICLE 25. END OF TERM HOLDOVER
Section 25.01. If the last day of the Term of this Lease falls on a
Sunday, or legal holiday, this Lease shall expire on the business day
immediately following. Upon the expiration or other termination of the Term of
this Lease, Tenant shall quit and surrender to Landlord the Demised Premises,
together with all buildings and improvements thereon, "broom-clean" and in
good order and condition, ordinary wear and tear and damage by the elements
excepted, and Tenant shall thereupon remove all property of Tenant and, failing
to do so, Landlord may cause all of the said property to be removed, stored
and/or disposed of at the expense of Tenant. Tenant shall pay all costs and
expenses thereby incurred. Any property not so removed shall be deemed to have
been abandoned by Tenant and may be retained or disposed of by Landlord as
Landlord, in its sole discretion, shall determine and Tenant hereby releases
Landlord from all claims for loss or damage to such property arising out of
such retention or disposition thereof. Tenant's obligations under this Article
shall survive the expiration or other termination of the Term of this Lease.
Section 25.02. If Tenant remains in possession of the Demised Premises
at the expiration of the Term hereof, Tenant, at Landlord's option, shall be
deemed to be occupying the Demised Premises as a tenant from month to month,
at a monthly rental equal to one hundred and fifty (150%) percent of the sum
of the monthly installment of annual minimum rent payable during the last
month of the Term hereof plus all additional rent coming due hereunder. In the
event of such holdover, Tenant's occupancy of the Demised Premises, except as
aforesaid, shall be subject to all other conditions, provisions and
obligations of this Lease, but only insofar as the same are applicable to a
month to month tenancy. Such month to month tenancy shall be terminable by
Landlord upon one (1) month's notice to Tenant, and if Landlord shall give
such notice, Tenant shall quit and surrender the Demised Premises to Landlord
as above provided.
Section 25.03. Notwithstanding anything to the contrary contained in
this Lease, if Landlord shall be unable to provide possession of the Demised
Premises because of the holding-over or retention of possession of any prior
tenant, undertenant or occupants, or for any other reason whatsoever, Landlord
shall not be subject to any liability for the failure to give possession on the
date herein provided, if any, and the validity of this Lease shall not be
impaired under such circumstances, but the term of the Lease shall be extended
proportionately until after Landlord shall have given Tenant written notice
that the Demised Premises are ready for Tenant's occupancy. If permission is
given to Tenant to enter into possession of the Demised Premises or to occupy
premises other than the Demised Premises prior to the date specified as the
commencement of the term of this Lease, Tenant covenants and agrees that such
occupancy shall be deemed to be under all of the terms, covenants, conditions
and provisions of this Lease. Nothing in this Section 25.03 shall impair
Tenant's right to terminate this Lease pursuant to Section 5.04 hereof.
ARTICLE 26. AUTHORITY TO EXECUTE
Section 26.01. Landlord and Tenant do hereby respectively represent to
the other that it has the capacity to enter into this Agreement.
ARTICLE 27. NOTICES
Section 27.01. All notices, demands, certifications, designations,
25
statements and other communications to be given pursuant to this Lease shall be
in writing and sent by prepaid certified or registered U.S. mail, return
receipt requested, or by a recognized overnight courier service which requires
acknowledgment of receipt of delivery from addressee, to the address of the
parties below specified or at such other address as may be given by written
notice in the manner prescribed in this paragraph. Landlord's address for
notice shall be c/o National Realty & Development Corp., 0 Xxxxxxxxxxxxxx
Xxxx, Xxxxxxxx, Xxx Xxxx 00000. Tenant's address for notices shall be the
address first set forth above for Tenant. Notice shall be deemed to be given
upon receipt or refusal of receipt by addressee. Addresses for notice may be
changed by giving notice pursuant to this Section.
ARTICLE 28. BROKER
Section 28.01. Tenant covenants, warrants and represents that it has
dealt with no broker except Prodevco Management Group, 0000 Xxxxxxx Xxxxxxx,
Xxxxxx, Xxx Xxxxxx 00000 ("PRODEVCO") respecting this Lease and that no
conversations, correspondence or negotiations were had by it with any broker
except with said PRODEVCO concerning the renting or leasing of the Demised
Premises. Tenant shall hold Landlord and National Realty & Development Corp.
harmless and defend (by counsel satisfactory to Landlord) said parties against
any claims for a brokerage commission arising out of any conversations,
correspondence or negotiations had by it with any broker except said PRODEVCO.
Section 28.02. Landlord covenants, warrants and represents that it has
dealt with no broker except Prodevco Management Group, 0000 Xxxxxxx Xxxxxxx,
Xxxxxx, Xxx Xxxxxx 00000 ("PRODEVCO") respecting this Lease and that no
conversations, correspondence or negotiations were had by it with any broker
except with said PRODEVCO concerning the renting or leasing of the Demised
Premises. Landlord shall hold Tenant harmless and defend (by counsel
satisfactory to Tenant) said parties against any claims for a brokerage
commission arising out of any conversations, correspondence or negotiations had
by it with any broker except said PRODEVCO. Landlord shall pay any commissions
owing to said PRODEVCO in accordance with separate agreement.
ARTICLE 29. MEMORANDUM OF LEASE
Section 29.01. Tenant agrees not to record this Lease. The parties
agree, upon request of either, to execute, in recordable form, a short form
lease entitled "Memorandum of Lease", it being the intention of the parties
that this Lease will not be recorded, but only a memorandum thereof. Such
short form lease shall contain those provisions of this Lease as shall be
desired in the reasonable discretion of counsel for the parties hereto,
provided that in no event shall such short form lease contain any provisions
relevant to the annual minimum rent and/or additional rent payable under this
Lease.
ARTICLE 30. AIR AND WATER POLLUTION
Section 30.01. Tenant hereby indemnifies and saves Landlord harmless
against any claim, damage, liability, costs, penalties or fines which the
Landlord may suffer as a result of air, land or water pollution caused by
Tenant in its use or occupancy or manner of use or occupancy of the Demised
Premises or in its storage, handling, possession, transportation and/or
disposal of any Hazardous Waste or Hazardous Substance (as such terms are
hereafter defined) within or about the Demised Premises. Tenant covenants and
26
agrees to notify Landlord immediately of any claim or notice served upon it
with respect to any such claim that Tenant is causing air, land or water
pollution; and Tenant, in any event, will take immediate steps to halt, remedy
and cure any pollution of air, land or water caused by Tenant by its use of
the Demised Premises, at its sole cost and expense.
Section 30.02. (a) Tenant shall comply with all state and federal
environmental laws, including the Spill Compensation and Control Act ("SCCA")
(N.J.S.A. 58:10-23.11 et seq.) and the Industrial Site Recovery Act ("ISRA")
(N.J.S.A. 13:1K-6 et seq.) as the same may have been or may hereafter be
amended (collectively, the "Environmental Statutes") as the same may relate to
Tenant's use and occupancy or manner of use and occupancy of the Demised
Premises or any act or failure to act of Tenant. Tenant shall supply Landlord
on demand with any information Landlord may require in order to enable
Landlord to comply with the Environmental Statutes, including, without
limitation, ISRA, whether upon the transfer of title or closing of operations
at the Demised Premises, or for any reason whatsoever.
Section 30.02. (b) Tenant shall not use the Demised Premises for the
purpose of refining, producing, storing, handling, transferring, processing or
transporting said "Hazardous Substances", except in de minimis amounts, as
such term is defined in N.J.S.A. 5B:10-23.llb(k) of the New Jersey Spill
Compensation and Control Act (N.J.S.A. 58:10-23.11 et seq.).
Section 30.02. (c) Tenant shall not use the Demised Premises to
generate, manufacture, refine, transport, treat, store or handle, except in de
minimis amounts, or dispose of "Hazardous Substances", or "Hazardous Wastes",
as such terms are defined in N.J.A.C. 7:1-3.3.
Section 30.02. (d) Tenant shall not cause or permit to exist, as a
result of an intentional or unintentional action or omission on its part, a
releasing, spilling, leaking, pumping, emitting, pouring, emptying or dumping
of a "Hazardous Substance", except in de minimis amounts, as such term is
defined in N.J.S.A. 58:10-23.llb(k) into waters of the State of New Jersey or
onto the lands from which it might flow or drain into said waters, or into
waters outside the jurisdiction of the State of New Jersey where damage may
result to the lands, waters, fish, shellfish, wildlife, biota, air and other
resources owned, managed, held in trust or otherwise controlled by the State of
New Jersey.
Section 30.02. (e) Tenant shall not use the Demised Premises as a
"Major Facility", as such term is defined in N.J.S.A. 58:00-00.xx(1).
Section 30.02. (f) Tenant shall not install nor permit to be installed
in the Demised Premises friable asbestos or any substance containing asbestos
and deemed hazardous by federal or state regulations respecting such material.
Section 30.03. Tenant represents that Tenant has not received a
summons, citation, directive, letter or other communication, written or oral,
from the New Jersey Department of Environmental Protection concerning any
intentional or unintentional action or omission on Tenant's part resulting in
the releasing, spilling, leaking, pumping, pouring, emitting, emptying or
dumping of "Hazardous Substances", as such term is defined in N.J.S.A.
58:10-23.llb(k), into the waters or onto the lands of the State of New Jersey,
or into the waters outside the jurisdiction of the State of New Jersey
resulting in damage to the lands, waters, fish, shellfish, wildlife, biota, air
and other resources owned, managed, held in trust or otherwise controlled by
the State of New Jersey.
Section 30.04. (a) In the event that Tenant does not expeditiously
proceed with any compliance with respect to the Demised Premises, the Building
27
or the Center required of it by any State or Federal authority under the
Environmental Statutes, Landlord may after two (2) days notice to Tenant, elect
to undertake such compliance in order to protect its interest in the Demised
Premises. Any monies expended by Landlord in efforts to comply with any
environmental statute (including but not limited to: the costs of hiring
consultants, undertaking sampling and testing, performing any cleanup necessary
or useful in the compliance process and reasonable attorney's fees), together
with interest at fifteen (15%) percent per annum or the maximum rate permitted
by law, whichever shall be the lesser, will be added to and payable with the
next payment of annual minimum rental due from Tenant, or will be payable on
demand of Landlord.
Section 30.04. (b) Upon demand by Landlord, Tenant will provide
Landlord with all information as to the use or manner of use of the Demised
Premises by Tenant, and an environmental audit of the Demised Premises which is
designed to describe any materials on the Demised Premises which would require
a filing and/or any disclosure under the Environmental Statutes in the event of
any transfer or closure, or which would require remedial action under any other
Environmental Statutes.
Section 30.04. (c) In the event that Tenant receives notice from the
Department of Environmental Protection or any other governmental authority or
bureau having or asserting jurisdiction thereover under SCCA of a discharge on
or about the Demised Premises, or any other notice of violation of the
Environmental Statutes or any alleged or claimed violation thereof, Tenant will
immediately send a copy of such notice to Landlord and Tenant will promptly
proceed to remedy the condition described in the notice. Tenant shall take all
action necessary to ensure that the SCCA administrator does not spend Spill
Fund monies to clean up the site. In the event that the SCCA administrator
should spend money cleaning up property owned by Landlord due to Tenant's use
or occupancy or manner of use or occupancy of the Demised Premises or the act
or failure to act of Tenant, and/or a lien is imposed on the Demised Premises
or any portion of the parcel of which it forms a part or any property of
Landlord, Landlord may take such actions as it deems necessary to remove such
lien, including satisfaction thereof, or may require it to be bonded by Tenant,
and Tenant agrees to defend, indemnify and hold Landlord free and harmless from
and against all loss, costs, damage and expense (including reasonable
attorney's fees and costs) Landlord may sustain by reason of the assertion
against Landlord by any party of any claim in connection therewith.
ARTICLE 31. METHOD OF CALCULATION
Section 31.01. (a) The parties hereto acknowledge that the
proportionate share payable by Tenant pursuant to Section 7.03 and Section
14.01 shall be determined by the type of use to which the Demised Premises is
to be put - i.e., processing or non-office space or office space, thereby
creating a weighted fraction representing Tenant's proportionate share. The
numerator of such fraction shall be the sum of (a) the gross leasable area of
processing or non-office space within the Demised Premises; plus, (b) two (2)
times the gross leasable area of office space within the Demised Premises. The
denominator of such fraction shall be the sum of all the numerators, including
the numerator of Tenant, as calculated in the foregoing manner for each and
every space or division thereof (whether or not such space is leased or
occupied) within the Building or buildings upon Lot No. 46.25. Notwithstanding
the foregoing provisions of this Article, in the event the obligations of
Tenant under either Section 7.03 and/or Article 14 of this Lease are
specifically identifiable separate charges relating to Tenant, the Building
and/or the Demised Premises, then, and in such event the obligations of Tenant
(including Tenant's proportionate share thereof) under this Lease may, at
Landlord's option, be measured and payable in accordance with such separate and
28
specifically identifiable charge. For purposes of this Lease, as of the date
hereof 3,696 square feet is deemed to be leased as office space and 1,416
square feet is deemed to be leased as non-office or processing space. In the
event Tenant shall hereafter make any alterations to the Demised Premises which
result in an increase in the amount of office space, Tenant hereby covenants
and agrees to execute upon demand a modification of lease agreement modifying
this Article 31 to evidence the resulting increase in office space. The
foregoing is not to be construed in any manner so as to relieve Tenant of its
obligations pursuant to Section 6.01 hereof.
Section 31.01. (b) Landlord shall have the right at any time during the
Term or any extension term hereof, and Tenant hereby consents thereto, to
subdivide Lot Nos. 46.24 and/or 46.25 into such additional lot or lots as
Landlord may in its sole discretion elect and to expand Lot Nos. 46.24 and/or
46.25 as Landlord may in its sole discretion elect, provided that the whole of
the Building shall remain entirely within one such subdivision.
Notwithstanding anything contained in this Lease to the contrary, in the event
of any such subdivision or expansion of Lot Nos. 46.24 and/or 46.25 by Landlord
then, at Landlord's option, (i) references in this Lease to Lot No. 46.24
and/or 46.25, as the case may be, may be deemed to be to the original
(pre-subdivision or pre-expansion) Lot No. 46.24 or 46.25, as the case may be,
or any portion(s) thereof of which the Demised Premises (or Common Areas) forms
a part, and (ii) in calculating Tenant's proportionate share(s), Landlord may
use as the denominator of the fraction(s) representing Tenant's proportionate
share(s) the building(s) or portions thereof within said original Lot Nos.
46.24 and 46.25 or any portion(s) thereof of which the Demised Premises (or
Common Areas) forms a part. In the event of such subdivision or expansion,
Tenant agrees to execute an agreement in recordable form setting forth the
description of Lot No. 46.24 and/or 46.25, as the case may be, as so subdivided
or expanded and as renamed and/or renumbered.
ARTICLE 32. SHIFT PREMISES
Section 32.01. Landlord hereby reserves the right (and Tenant hereby
acknowledges and consents thereto), after at least thirty (30) days written
notice to Tenant, to shift the location of the Demised Premises to an alternate
location of substantially equivalent size and condition within the Center,
provided Landlord shall reimburse Tenant for all reasonable actual out-of-
pocket expenses incurred by Tenant in connection with such shift upon demand
therefor accompanied by paid invoices evidencing such expenses.
THERE IS NO ARTICLE 33 TO THIS LEASE
ARTICLE 34. RELATIONSHIP OF PARTIES
Section 34.01. Nothing herein contained shall be deemed or construed
by the parties hereto, nor by any third party, as constituting the Landlord a
partner of Tenant in the conduct of Tenant's business, or as creating the
relationship of principal and agent or joint venturers between the parties
hereto, it being the intention of the parties hereto that the relationship
between them is and shall at all times be and remain that of Landlord and
Tenant only. Tenant agrees upon the demand of Landlord to deliver to Landlord
and any mortgagee of Landlord the most recently available financial statements
of Tenant and any guarantor of this Lease, certified to by an officer thereof,
and updated to the extent reasonably requested by Landlord or any such
mortgagee.
29
ARTICLE 35. CAPTIONS
Section 35.01. The Article captions contained herein are for convenience
only and do not define, limit, or construe the contents of such Articles and
are in no way to be construed as a part of this Lease.
ARTICLE 36. DEFINITIONS
Section 36.01. Words of any gender used in this Lease shall be held to
include any other gender, and words in the singular number shall be held to
include the plural, when the sense requires.
Section 36.02. If any provision of this Lease or the application thereof
to any person or circumstances shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby and each provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
ARTICLE 37. ENTIRE AGREEMENT
Section 37.01. This instrument of Lease contains the entire and only
agreement between the parties concerning the Demised Premises. No prior oral
or written statements or representation, if any, of any party hereto or any
representative of a party hereto, not contained in this instrument, shall have
any force or effect. This Lease shall not be modified in any way, except by a
writing executed by Landlord and Tenant. No oral agreement or representations
shall be deemed to constitute a lease other than this agreement. This
agreement shall not be binding until it shall have been executed and delivered
by Landlord and Tenant. The submission of this Lease to Tenant prior to its
execution by Landlord shall not be an offer to lease.
ARTICLE 38. SUCCESSORS IN INTEREST
Section 38.01. All provisions herein contained shall bind and inure to
the benefit of the respective parties hereto, their heirs, personal
representatives, successors and assigns, as the case may be. In the event
Landlord or any successor-lessor (owner) of the Demised Premises shall convey
or otherwise dispose of the Demised Premises and/or the Center and/or the Tax
Lot of which the Demised Premises forms a part, all liabilities and
obligations of Landlord or such successor-lessor (owner), as Landlord under
this Lease shall terminate upon such conveyance or disposal.
Section 38.02. If Landlord, or any successor in interest to Landlord,
shall be an individual, joint venturer, executor, estate, personal
representative, conservator, tenancy-in-common, trustee, trust, partnership,
general or limited, limited liability partnership, limited liability company,
firm or corporation, there shall be no personal liability on the part of such
individual or on the part of any members of such joint venture,
tenancy-in-common, trustee, trust, partnership, company, firm or corporation,
its officers, managers, directors, members or stockholders, or on the part of
such joint venture, estate, tenancy-in-common, trustee, trust, partnership,
company, firm or corporation as to any of the provisions, covenants or
conditions of this Lease. Tenant hereby acknowledges that it shall look
solely to the real property interest of Landlord in Lot No. 46.25 (or, in the
event of a subdivision of said Lot, such subdivided portion thereof which
includes the Demised Premises) for the satisfaction or assertion of any claims,
30
rights and remedies of Tenant against Landlord, in the event of breach by
Landlord of any of the terms, provisions, covenants or conditions of this
Lease.
ARTICLE 39. SECURITY
Section 39.01. Tenant has deposited with Landlord the sum of SIX
THOUSAND EIGHT HUNDRED SIXTEEN and 00/100 ($6,816.00) DOLLARS as security for
the faithful performance and observance by Tenant of the terms, provisions,
covenants and conditions of this Lease. In the event Tenant defaults in
respect of any of the provisions, covenants and conditions of this Lease,
including, but not limited to, the payment of annual minimum rental and
additional rent, Landlord may, from time to time, use, apply, or retain the
whole or any part of the security so deposited to the extent required for the
payment of any annual minimum rental and additional rent or any other sum as to
which Tenant is in default or for any sum which Landlord may expend or may be
required to expend by reason of Tenant's default in respect of any of the
provisions, covenants and conditions of this Lease, including, but not limited
to, reasonable counsel fees and other collection charges, or of any damages or
deficiency in the reletting, repairing or altering of the Demised Premises,
whether such damages or deficiency accrued before or after summary proceedings
or other re-entry by Landlord. In the event that Tenant shall fully and
faithfully comply with all the provisions, covenants and conditions of this
Lease, the security shall be returned to Tenant, without interest, after the
expiration of the Lease, and after delivery of entire possession of the Demised
Premises to Landlord. If, due to Tenant's default hereunder, Landlord shall be
entitled to apply or retain any portion of said security, Tenant shall within
thirty (30) days following demand, deposit with Landlord such amount as may be
necessary to restore the amount of security to the amount set forth in the
first sentence of this Article. Tenant shall not assign or encumber the
security deposited hereunder and neither Landlord or its successors or assigns
shall be bound by any such assignment or encumbrance. In the absence of
evidence satisfactory to Landlord of any assignment of the right to receive the
security, or the remaining portion thereof, Landlord may return the security to
the original tenant regardless of any number of assignments of the Lease
itself. In the event of a sale of the Demised Premises or larger premises of
which the Demised Premises form a part, Landlord shall transfer the security to
the purchaser for the benefit of Tenant and Landlord, after giving notice to
Tenant, shall be deemed released by Tenant from all liability for the return of
such security and Tenant shall look solely to the new owner for the return
thereof. No holder of any mortgage upon the Demised Premises or the larger
property of which the Demised Premises forms a part shall be responsible in
connection with the security deposited hereunder unless such mortgagee shall
have in fact received such security and acknowledged such receipt in writing to
Tenant.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
the day and year first above written.
ATTEST: 46.25 ASSOCIATES L.P.,
a Delaware limited partnership
By: Middlesex Business Development Corp.
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
President
31
MICROFRAME, INC.,
a New Jersey corporation
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
32
STATE OF NEW YORK )
SS.:
COUNTY OF WESTCHESTER )
BE IT REMEMBERED, that on the 20th day of July, 1995, before me, the
subscriber, a notary public of the State of New York, , personally appeared
Xxxxxx X. Xxxxx, President of Middlesex Business Development Corp., as general
partner of 46.25 ASSOCIATES L.P., who, I am satisfied, is the person who
signed the within instrument; and I having first made known to him the
contents thereof, he thereupon acknowledged that he signed, sealed with the
corporate seal, and delivered the said instrument as such officer aforesaid,
and that the within instrument is the voluntary act and deed of said
corporation as such general partner, made by virtue of the authority of its
board of directors.
/s/ Xxxxxxxx Xxxxxxx
NOTARY PUBLIC
XXXXXXXX XXXXXXX
Notary Public, State of New York
No. 4893560
Qualified in Westchester County
Commission Expires June 1, 0000
XXXXX XX XXX XXXXXX )
SS.:
COUNTY OF MIDDLESEX )
BE IT REMEMBERED, that on the 13th day of July, 1995, before me, the
subscriber, a notary public of the State of New Jersey, personally appeared
Xxxxxx X. Xxxxxxx, President and Chief Executive Officer of MICROFRAME, INC.,
who, I am satisfied, is the person who signed the within instrument; and I
having first made known to him the contents thereof, he thereupon acknowledged
that he signed, sealed with the corporate seal, and delivered the said
instrument as such officer aforesaid, and that the within instrument is the
voluntary act and deed of said corporation, made by virtue of the authority of
its board of directors.
/s/ Xxxxxxx Xxxxxxxxx
NOTARY PUBLIC
XXXXXXX XXXXXXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires Nov. 6, 1999
33
