LEASE AGREEMENT
THIS LEASE AGREEMENT, prepared this eleventh day of February,
1996 between CHERRY HILL INDUSTRIAL SITES, INC., a New Jersey Corporation having
its principal office at 0000 Xxxxxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000,
(hereinafter referred to as LANDLORD), and INTEST, having an office at 00
Xxxxxxxxxx Xxxx, Xxxxxxxx Xx. 00, Xxxxxx Xxxx, XX 00000 (hereinafter referred to
as TENANT).
Landlord and Tenant hereby covenant as follows:
1. LEASED PREMISES. Landlord hereby agrees to lease to
Tenant, and Tenant hereby agrees to rent from Landlord approximately 28,630
square feet, in building number 16 and land adjacent thereto, situated in Cherry
Hill Township, Block 468.04 Lot 4, as shown and defined on Exhibit A attached
hereto and made a part hereof (hereinafter referred to as the PREMISES) for the
term of: Seven (7) years (or until such prior termination as hereinafter
provided) to commence on the first day of June, 1996, and end on the thirty
first day of May, 2003, both dates inclusive. Tenant agrees that this Lease
shall, unless sooner terminated, pursuant to the terms and conditions hereof,
expire absolutely on the expiration date without the requirement of any further
notice from Landlord.
2. USE. Tenant shall use and occupy the Premises only for the
following use, which Tenant represents shall conform to the I-R zoning of Cherry
Hill Township or any subsequent zone designated for the Premises by Cherry Hill
Township: Light Manufacturing, Offices, Warehousing and Distribution.
3. RENT. The Term rental shall be $1,111,992.00 except as
same may be modified elsewhere in this Lease, payable by Tenant to Landlord, in
lawful money of the United States, in equal monthly rental installments of
$13,238.00 on the first day of each month, in advance, during the Term, at the
office of the Landlord or such other place as Landlord may designate.
Tenant shall assume the risk of lateness or failure of
delivery of the mails, and no lateness or failure of the mails will excuse
Tenant from its obligation to have made any payment of rent or additional rent
as required under this Lease.
No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct rent or additional rent shall be deemed to be
other than a payment on account, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance or pursue any other remedy in this Lease
or at law provided.
4. ADDITIONAL RENT. Additional rent charges shall be paid to
Landlord within five (5) days of notice of a xxxx sent by Landlord to Tenant.
5. LANDSCAPING. Tenant shall pay, as additional rent $70.00
per month for grass cutting and landscape maintenance pursuant to standards as
established by Landlord. Landlord, at its option, and at no cost to Landlord,
may utilize any exterior water sources located on the Premises for the purpose
of watering landscaping. Tenant shall ensure that water is available for use by
Landlord at exterior water sources.
Tenant shall keep the lawn, landscaped areas, paved surfaces,
sidewalks and similar areas free of debris and other waste material at all
times. In the event debris and/or other waste material is present upon any of
the aforementioned areas, or if, in Landlord's reasonable determination debris
and/or waste material originating from Tenant's Premises is upon other
properties owned by Landlord, Landlord may, at its option and WITHOUT PRIOR
NOTICE OR APPROVAL OF TENANT, remove same. All costs and charges relating
thereto shall be payable by Tenant as additional rent. The minimum charge for
this service shall be $50.00 per instance and/or occurrence.
6. SNOW REMOVAL. Tenant agrees to pay, as additional rent,
the sum of $65.00 per month for snow removal subject to the following
conditions:
a. Landlord's contractor shall remove snow from the paved
surfaces within the Premises within 24 hours after the cessation of any
particular snowstorm provided the average accumulation from said storm exceeds
two inches on the paved surfaces, as measured by Landlord.
b. In the event Landlord's contractor is unable to remove
the snow by reason of vehicles thereon, or other blockages or similar
occurrences not caused by Landlord's contractor, there shall be no further
obligation or responsibility on the part of Landlord or Landlord's contractor to
remove snow from that particular snowstorm. In such event no credit or abatement
shall be due Tenant.
c. Snow of less than a 2 inch average accumulation on the
paved surfaces of the Premises, as measured by Landlord, are not subject to
removal by Landlord or Landlord's contractor, but are the sole responsibility of
Tenant.
d. Landlord or Landlord's contractor shall have the sole
right to determine the number and location of snow storage areas.
e. Tenant shall look solely to Landlord's contractor for
recovery of any injury or damage to property or any person (including death)
resulting from accidents, or any other cause, ensuing from or occurring during
snow removal operations. Tenant shall not hold Landlord in any way responsible
or liable therefor and hereby releases and remises Landlord therefrom.
f. The responsibility of Landlord and Landlord's
contractor is restricted to the work specified herein. Work related, but not
limited, to the clearing of snow
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from sidewalks, platforms, steps or other similar items is excluded. Any work
related to de-icing, sanding or similar items or operations, or the removal,
correction, and/or abatement of any other hazard is the sole responsibility of
Tenant.
7. SPRINKLER SYSTEM SERVICE. Tenant shall pay, as additional
rent, fifty-six percent (56%) of all charges relating to Building #16 for
sprinkler supervisory service and sprinkler standby fees.
8. UTILITIES. Tenant shall pay for all deposits, costs and
charges relating to heat, water, sewer, electricity, gas and similar services
rendered or supplied to or upon the Premises, or in connection with the use and
occupation of the Premises on or prior to the date same are due.
In the event there is a common water and/or sewer meter
servicing the building of which the Premises forms a part Tenant shall pay to
Landlord, as additional rent, fifty-six percent (56%) of any costs or charges
related to such service.
Tenant shall not be released or excused from the performance
of any of its obligations under this Lease for any failure, interruption or
curtailment of any utilities or services; nor shall any such failure,
interruption or curtailment constitute a constructive or partial eviction.
9. PERSONAL PROPERTY TAXES. Tenant shall pay all personal
property taxes and other taxes and assessments pertaining to its goods,
chattels, machinery, equipment, fixtures, personal property and similar items
prior to the date same are due.
10. REAL PROPERTY TAXES. Tenant shall pay to Landlord, as
additional rent, fifty-six percent (56%) of all real property taxes and
assessments levied upon Block 468.04, Lot 4 (Bldg #16, with adjoining land)
under or by virtue of any present or future laws or regulations of any
governmental or lawful authority having jurisdiction over the Premises.
If at any time during the Term any governmental or
quasi-governmental authority having jurisdiction over the Premises imposes (a) a
tax, assessment, levy, imposition, license fee or other charge on the rents
collected by Landlord, or (b) any other additional or substitute tax,
assessment, levy, imposition or charge relating to Block 468.04 Lot 4, any such
items shall be deemed to be included within the term "Real Estate Taxes" for the
purposes hereof.
Landlord may, at its option, contest or appeal any real
property tax or assessment affecting the Premises utilizing such attorneys
and/or experts as Landlord deems advisable. In the event of any tax reduction
Tenant shall pay to Landlord, as additional rent, either the tax savings to the
Tenant for one year or one half of the total tax savings to the Tenant during
the remainder of the Term, whichever is less.
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11. INSURANCE. In respect to Landlord's fire insurance policy
with standard extended coverage and difference in condition policy, Tenant
agrees: (a) it will not do nor permit any acts or things which will invalidate
or be in conflict with any provisions thereof or which shall cause the insurance
rate on the Premises to be higher than on the date of the commencement of this
Lease; (b) it shall comply with all present and future rules, regulations and
recommendations thereof and shall promptly make all changes, modifications,
replacements and alterations as are necessary and/or required. Tenant shall not
use or occupy the Premises or do or permit anything to be done thereon in any
manner which shall prevent Landlord and/or Tenant from obtaining at standard
rates any insurance required or desired, or which would invalidate or increase
the cost to Landlord of any existing insurance, or which might cause structural
injury to any building, or which would constitute a public or private nuisance
or which would violate any present or future laws, regulations, ordinances or
requirements (ordinary or extraordinary, foreseen or unforeseen) of the federal,
state or municipal governments, or of any departments, subdivisions, bureaus or
offices thereof, or of any other governmental public or quasi-public authorities
now existing or hereafter created having jurisdiction in the Premises, or the
Industrial Center of which they form a part.
The aforementioned policy shall insure only the Landlord's
property against damage and/or losses for perils specified therein. In no event
will Landlord be responsible for charges and/or costs related to damage, loss,
or repair and/or replacement of any property: (a) caused by conditions,
exclusions or reasons not covered therein; (b) within the deductible provisions
of the aforementioned policies; and/or (c) any property not owned by Landlord.
Landlord's and Tenant's fire insurance policy with standard
extended coverage policy, difference in condition policy and rental income
insurance policy shall contain a waiver of subrogation of the rights of the
Landlord's or Tenant's insurance carrier to proceed against the Landlord or
Tenant for matters covered therein.
Tenant is invited and encouraged to review and ascertain the
type, deductibles and limits related to Landlord Insurance policies referenced
herein. Tenant is responsible for, and hereby saves and holds harmless Landlord,
for all costs, charges and expenses relating to or ensuing from damage, loss,
and/or replacement to/of any property, of whatever nature and from any cause
whatsoever, not covered by or within the deductible limits of Landlords
insurance policies referenced herein.
Tenant shall pay, as additional rent, fifty-six percent (56%)
of Landlord's premiums for fire insurance with standard extended coverage
policy, difference in condition policy and rental income insurance policy to the
extent the aforementioned policies relate to Building #16, as determined by
Landlord.
12. TENANT'S INSURANCE OBLIGATIONS. Tenant, as a minimum,
shall carry the following insurance policies applicable to the Premises (and
other areas as
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may be required herein) with reputable companies authorized to issue policies in
the State of New Jersey having a Xxxxx rating of at least A:
a. Comprehensive Public Liability Insurance. Such
insurance shall be for a Combined Single Limit (CSL) for bodily injury
(including death) and property damage or loss (for occurrences in or about the
Premises or arising out of Tenants ownership, maintenance, use or occupancy of
the Premises) in the amount of $1,000,000 for each occurrence, and $3,000,000 in
the aggregate.
b. Personal Property Insurance in amounts and types of
coverage to insure against damage or loss to any property including, but not
limited to any Tenant alterations, improvements or betterments in or about the
Premises that is not the property of Landlord caused by: (1) water, rain, sleet,
snow, or ice entering, seeping or leaking into or through the Premises or any
portion thereof; (2) fire, explosion, tornado, wind, earthquake or any other
casualty or any other similar occurrences; (3) theft, burglary, vandalism,
malicious mischief, or other similar occurrences; (4) accidents of any kind,
type or nature; (5) electrical, gas or water failure, cutoffs, surges or similar
occurrences; (6) loss or damage to property not owned by Landlord by any similar
reason.
c. Boiler and pressure vessel insurance (when equipment
relating to this type of insurance is located in/and or upon the Premises) with
Landlord as a named insured in sufficient amount to insure against damage or
loss to any property whether belonging to Tenant, Landlord, or others.
d. Such other insurance, and in such amount, as may from
time to time be reasonably required by Landlord or required by law. No insurance
requirements as set forth in this Lease shall preclude Tenant from obtaining
whatever additional insurance coverages Tenant shall deem necessary or prudent.
e. NOTE: Tenant shall have the right to procure its
required insurance on a blanket master policy basis and/or an umbrella basis;
provided, however, that all such coverage shall otherwise comply with all of the
requirements contained herein.
f. Prior to the commencement date of this Lease and by the
fifteenth day of March of each year thereafter Tenant shall deliver to the
Landlord proof that all the insurance coverages required of Tenant pursuant to
the terms and conditions of this Lease are in force and that premiums related
thereto are paid. Upon execution of this Lease, Tenant shall provide Landlord
with evidence of prepayment of the insurance premiums described herein for one
(1) year in advance.
g. All insurance policies required of Tenant shall: (a)
provide at least thirty (30) days prior notice to Landlord and Tenant of any
change, modifications or cancellation; and (b) contain a waiver of subrogation
of the rights of the Tenant's insurance
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carrier to proceed against the Landlord for matters which are required to be or
are covered by the Tenant's insurance policies.
Upon execution of this Lease, Tenant shall provide Landlord
with evidence of prepayment of the insurance premiums described herein for one
(1) year in advance. Tenant shall give prompt notice to Landlord in case of any
fire, casualty, accident or similar occurrence.
13. UPGRADING. Tenant agrees to pay to Landlord, as additional
rent, during the term of this Lease the sum of $596.00 per month toward
Landlord's contribution and assistance to the Cherry Hill Industrial Center
Steering Committee (and other committees associated with the Steering Committee
that are authorized by Landlord). It is understood that Landlord has the sole
discretion as to the disbursement of funds (or non disbursement of funds if such
is the case) related to such activities as may be authorized by Landlord.
14. [Deleted].
15. FIRE. If the Premises shall be partially damaged by fire
or similar casualty as is covered under insurance policies carried by Landlord,
the damage shall be repaired by and at the expense of Landlord to the extent
provided for pursuant to the provisions thereof. Any fire or similar casualty
damage to the Premises, within the deductible limits of the aforementioned
policies shall be repaired by Landlord, but paid for by Tenant as additional
rent.
The rent, until such repairs are made, shall be apportioned
according to the portion of the Premises which was damaged or which has been
made unusable, whichever is less. Nevertheless the Lease shall continue in full
force and effect.
If the Premises are totally or substantially damaged by fire
or similar casualty, and if Landlord, at its sole option, decides not to restore
or not to rebuild same, Landlord shall then, within sixty (60) days after such
fire, give Tenant notice of such decision, and thereupon this Lease shall expire
by lapse of time upon the fifth day after such notice is given. Tenant shall
then vacate the Premises and surrender same to Landlord.
For the purpose of this Lease substantial damage is defined as
that which is greater than twenty (20%) percent of the insured value of the
premises as determined by the cost estimate of Landlord.
In the event Landlord, at its option, decides to restore or
rebuild the Premises, no penalty shall accrue for reasonable delay which may
arise by reason of adjustment of insurance on the part of Landlord and/or
Tenant, or for delays on account of labor troubles or other reasons or causes
beyond Landlord's control.
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In accordance with this paragraph, Tenant explicitly waives
applicability of N.J.S.A. 46:8-6 and N.J.S.A. 46:8-7.
16. REPAIRS, REPLACEMENTS. Tenant shall keep the Premises in
good order and repair and shall promptly make any and all repairs, maintenance,
and replacements to the Premises of whatever nature, ordinary and extraordinary,
foreseen and unforeseen, except as is specifically provided for herein. All
repairs, maintenance and replacements shall be in quality, usefulness, and class
at least equal to the original installation.
Landlord shall not be required to furnish any services,
improvements, alterations, or similar items, nor to make any repairs,
maintenance, or replacements to the Premises except as is specifically provided
for herein.
17. ALTERATIONS. Tenant shall not make any alterations,
additions or improvements without Landlord's approval, which shall not be
unreasonably withheld or delayed.
In the event Tenant proposes any alterations, additions, or
improvements, it shall submit a complete set of plans and specifications
relating thereto, prepared by any architect or professional engineer registered
in the State of New Jersey to Landlord. Landlord, at its option, shall grant or
deny approval within 15 days after receipt. Landlord may impose any conditions
and/or requirements upon Tenant as Landlord considers necessary or prudent to
protect Landlord's interest in the Premises. Tenant must agree in writing to
adopt any such conditions and/or requirements before any approval is effective.
If Landlord shall grant approval for the proposed work and
provided Tenant has agreed to any conditions and/or requirements made a part of
such approval, the following additional conditions shall apply:
a. Prior to making any alterations, additions, or
improvements Tenant shall assure itself that the work will not impair the
structural integrity of the Premises, or any portion thereof. Approval of the
proposed work by Landlord shall not constitute or imply a warranty or
representation by Landlord that the existing Premises, or any part thereof, is
adequate to withstand work proposed by Tenant. By making any alterations,
additions, or improvements, Tenant expressly warrants that the same will not
impair the structural integrity of the Premises nor any part thereof and are in
full compliance with the requirements of all governmental agencies or
authorities having jurisdiction. Landlord reserves the right to approve or
reject Tenant's contractor. If Tenant's proposed alteration involves a tie-in to
building systems, Landlord further reserves the option of requiring Tenant to
use Landlord's contractor.
b. All costs related to the proposed work, irrespective of
their nature, are the sole responsibility of Tenant and shall be promptly paid
by Tenant at such time as they may be due.
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c. All contractors, labor and/or material suppliers, and
similar parties shall agree, in writing, prior to the commencement of any work
or procurement of materials: (1) to jointly comply with Tenant with the
mechanics lien restrictions contained elsewhere in this Lease; (2) that they are
entering into any agreements for labor and/or material with Tenant and not on
behalf or for the benefit of Landlord; (3) that the work to be done shall be in
conformance with the last plans and specifications approved by Landlord and that
no changes shall be made thereto without the approval of Landlord and Tenant;
and (4) that they, and their employees and other agents, shall comply with all
rules and regulations contained in Tenant's Lease regarding their conduct on the
Premises. Proof of such agreements shall be given to Landlord prior to the
commencement of the proposed work.
d. Tenant shall insure, indemnify and hold Landlord
harmless for any loss to which Landlord may be subject or which Landlord may
sustain relating to accidents, injury to persons (including death), property
loss or damage of any nature whatsoever, regardless of cause, arising during or
ensuing from the work undertaken by Tenant.
e. All such alterations, additions and improvements upon
completion shall immediately become the property of Landlord, without
compensation by Landlord to Tenant or any other party, and simultaneously become
part of the Premises, and Tenant's obligations and responsibilities pursuant to
the terms and conditions of this Lease shall thenceforth apply to the
aforementioned alterations, additions, or improvements. Upon the termination of
Tenant's lease and/or Tenant's vacating of the premises, Tenant shall remove
said alterations, additions and improvements at Tenant's expense, if so
requested by Landlord.
f. Upon completion of the work, Tenant will submit to
Landlord as-built drawings and certifications of inspections certifying the
completion of the alteration, addition or improvement.
18. COMPLIANCE WITH LAWS. With respect to the Premises or the
use and occupation thereof Tenant shall promptly comply with all laws, orders,
regulations, and requirements now in force, or which may hereafter be in force,
of (a) Federal, State, County, and Municipal authorities and (b) private,
quasi-public and public utility companies and similar parties providing
services.
Tenant shall immediately notify Landlord upon receipt of
notice of a violation or alleged violation of any of the foregoing. Tenant shall
also provide Landlord, upon Landlord's request, affidavits and/or
representations executed by a knowledgeable officer or principal of the company
concerning Tenant's best knowledge and belief regarding Tenant's compliance with
particular laws, orders, regulations and requirements as may be cited by
Landlord in its request.
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19. RULES AND REGULATIONS. Without limiting Tenant's
obligations pursuant to any of the terms and conditions of this Lease, Tenant
has the following duties:
a. Between April 15 and May 15 of each year Tenant shall
provide to Landlord, in form and content satisfactory to Landlord, a
certification from a reputable heating, ventilating and air conditioning
contractor acceptable to Landlord, or a professional engineer licensed to
practice in the State of New Jersey, confirming that all heating, ventilating
and air conditioning systems within the Premises are in good working order and
repair and are being properly serviced by Tenant.
b. Tenant shall keep: (1) the roof and exterior wall
systems in a watertight condition; (2) gutters, downspouts, drainage, and
sewerage systems free from obstructions and blockages; (3) all yard and exterior
wall mounted lighting on during night-time hours; (4) parking areas, driveways,
walkways, and similar items free from snow, ice, potholes and all other defects
and/or hazards; (5) the Premises in a clean, safe, and orderly condition free
from debris, refuse, trash, vermin, pests, defects and/or hazards; (6) the
dissemination of smoke, dust, odors, fumes, and other noxious gases shall be
within the limits of the industrial tolerance standards of the State Department
of Health, Bureau of Adult and Industrial Health.
c. Tenant shall not cause, commit or permit: (1) areas
allocated for driveways, walkways, or the parking of automobile vehicles to be
used for any other purpose; (2) any public or private nuisance; (3) use or
occupancy in a manner reasonably offensive or objectionable to the Landlord by
reason of, but not limited to, noise and/or vibrations; (4) debris, dirt, holes,
scuff marks, smears, graphics and/or similar items on wall, floor, or ceiling
surfaces; (5) any utility service or equipment to be overloaded; (6) anything
that will impair or tend to impair, in Landlord's reasonable judgement, the
character, value, or appearance of the Premises; (7) outside storage of any kind
except as is specifically provided for herein; (8) parking of inoperable
vehicles, non-motorized vehicles or trailers in or about the Premises; (9) any
part or the whole of the sidewalks, entrances, passages, stairways, corridors or
halls of the premises to be obstructed or encumbered or used for any purpose
other than ingress and egress to and from the Premises; (10) any signs,
advertisements, objects, notices or other lettering to be exhibited, inscribed,
painted, or affixed on any part of the outside or inside of the Premises, so as
to be visible from the exterior without prior approval of Landlord; (11) any
show cases or other items to be put in front of or affixed to any part of the
exterior of the building; (12) any water and wash closets and other plumbing
fixtures to be used for any purposes other than those for which they were
designed/constructed, and no sweepings, rubbish, rags or other substances shall
be thrown therein; (13) any wires to be installed except in conduits, ducts or
outlets established for that purpose, unless prior written consent of Landlord
has been obtained; (14) disturbance or interference with other Tenants or
occupants of the building or neighboring buildings; (15) canvassing, soliciting
or peddling within the Premises; (16) installation of a television, radio, or
two-way radio antenna, or any other similar antenna, on the roof, in the windows
or upon the exterior of the Premises, without the prior approval of Landlord;
(17) any
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cooking within the Premises, without the prior written consent of Landlord,
provided, however, that the heating, refrigerating and preparing of beverages
and light snacks for employees shall be permitted if there are appropriate and
adequate facilities and equipment for such purposes; (18) unusual or
objectionable odors to be produced upon or emanate from the Premises; (19)
storage, manufacture or sale of liquor, narcotics or illegal drugs; (20) any
portion of the Premises to be used for lodging or sleeping or for any immoral or
illegal purpose; (21) animals of any kind to be brought or kept about the
Premises without Landlord's prior approval; (22) notices, posters, or
advertising media, except for purposes of emergency, to be affixed on the
exterior of the building; and (23) burning of trash or garbage of any kind in or
about the Premises.
d. Tenant shall: (1) store discarded material temporarily
being stored outside of the building, forming part of the Premises, within
fence-enclosed waste storage containers of a type and at locations approved by
Landlord; (2) arrange for and enforce good housekeeping procedures and practices
satisfactory to Landlord; (3) arrange for liquid wastes and effluents to be
discharged into an approved existing sewage treatment plant in accordance with
that plant's regulations and state and federal regulations, or shall treat its
own wastes and effluents in a treatment plant or process which is in compliance
with the New Jersey State and Federal Statutes and with the requirements of the
New Jersey State Department of Health; (4) shall comply with the New Jersey
State Statutes and requirements of the New Jersey State Department of Labor and
Industry Precaution against fire hazards, radiation, explosion, proper handling
and storage of materials and structural design, and safeguards for the health of
workers.
e. Tenant, its agents, employees, contractors, invitees,
licensees, and similar parties shall not: (1) interfere with the business of
Landlord or other Tenants or persons on any other property owned by Landlord;
(2) bring or keep within the premises any flammable, combustible or explosive
fluid, chemical or substance of types or quantities not permitted by law and/or
Landlord's fire and casualty insurance carrier.
f. Tenant, its agents, employees, contractors, invitees,
licensees, and similar parties shall: (1) obey speed limit, warning and related
type signs posted within the road/driveway system of the Cherry Hill Industrial
Center; (2) obey fire regulations and procedures governing the premises; (3)
keep access lids on exterior waste storage containers in a closed position
except when waste is actually being placed within said containers.
g. Landlord shall have the right to prohibit any
advertising by any Tenant which, in Landlord's reasonable judgment, tends to
impair the reputation of said Tenant's Premises or the Cherry Hill Industrial
Center, and upon notice from Landlord, such Tenant shall refrain from or
discontinue such advertising. Landlord shall have the right to enforce this
provision by injunction.
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h. Landlord's employees shall not be required to perform,
and shall not be required by tenant to perform, any work outside of their
regular duties, unless under specific instructions from the office of Landlord.
i. Tenant shall immediately notify Landlord of any serious
breakage, or fire or disorder, occurring within the Premises.
j. Landlord reserves the right to rescind, amend, alter or
waive any of the foregoing Rules and Regulations at any time when, in its
judgment, it deems it necessary, desirable or proper for its best interest
and/or for the best interest of the tenants, and no such recession, amendment,
alteration or waiver of any rule or regulation in favor of one Tenant shall
operate as an alteration or waiver in favor of any other Tenant. Any such
rescission, amendment, alteration, or waiver shall become effective ten (10)
days after notice by Landlord to Tenant.
k. Nothing contained in this Lease shall be construed to
impose upon Landlord any duty or obligation to impose the rules and regulations
against any other Tenant or any employees or agents of any other Tenant, and
Landlord shall not be responsible or liable to Tenant or others for
non-observance or violation of the rules and regulations by any other Tenant or
its employees, agents, invitees or licensees at any time.
l. Tenant, its employees, contractors, agents, assignees,
sublessees, invitees, licensees and similar parties shall obey and observe all
reasonable rules and regulations established by Landlord from time to time for
the conduct of Tenant and/or the welfare, care, cleanliness, preservation of
good order, and/or safety of the Cherry Hill Industrial Center. Landlord shall
give Tenant at least (10) days notice of the establishment thereof. Nothing
contained in this Lease shall be construed to impose upon Landlord any duty or
obligation to enforce the rules and regulations against any other Tenant or any
employees or agents of any other Tenant, and Landlord shall not be liable to
Tenant or others for violations of the rules and regulations by any other Tenant
or its employees, contractors, agents, invitees, licensees or similar parties.
20. EMINENT DOMAIN. If the Premises or any portion thereof are
taken under the power of eminent domain, this Lease shall terminate as to the
part so taken as of the date the condemning authority takes title. If more than
10% of the floor area of the Premises, or more than 25% of the non floor area of
the Premises is taken by condemnation, Tenant may, at Tenant's option, to be
exercised by written notice to the Landlord within 10 days after the Landlord
shall have given Tenant notice of such taking, terminate this Lease as of the
date the condemning authority takes title. If Tenant does not terminate this
Lease in accordance with the foregoing, this Lease shall remain in full force
and effect as to the portion of the Premises remaining, except that the rent
shall be reduced in proportion to the floor area of the Premises taken to the
total floor area of the Premises. Any award for the taking of all or any part of
the Premises under the power of eminent domain or any payment made under threat
of the exercise of such power shall be the property of the Landlord,
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whether such award shall be made as compensation for diminution in value of the
Leasehold or for the taking of the fee, or as severance damages, or other
compensation to which Landlord may be entitled. Tenant may make a separate
application for compensation relating to its trade fixtures or personal
property.
21. FORCE MAJEURE. Except as the effect of this paragraph may
be expressly excluded in other provisions hereof, Landlord shall be excused for
the period of any delay in the performance of any obligation hereunder when
prevented from so doing by cause or causes beyond Landlord's control which shall
include, without limitation, all labor disputes, civil commotion, war, war-like
operations, invasion, rebellion, hostilities, military or usurped power
sabotage, governmental regulations or controls, fire or other casualty,
inability to obtain any material, services or financing or through Acts of God.
22. LANDLORD'S NON-LIABILITY. Except as is specifically
provided for herein:
Landlord shall not be liable or responsible for any loss or
damage to any property regardless of its nature or ownership at any time on or
about the Premises arising from any cause or reason whatsoever. Nor shall
Landlord be liable or responsible for any harm or injury (including death) to
any person at any time on or about the Premises, arising from any cause or
reason whatsoever. Tenant shall not hold Landlord in any way responsible or
liable therefor and hereby releases and remises Landlord therefrom.
Without limiting or diminishing Landlord's non-liability as
provided for herein, Landlord shall not be responsible or liable to Tenant, its
employees, invitees, agents, or any other party for any loss or damage to any
property or harm or injury to any persons (including death): (a) which is and/or
should have been covered by an insurance policy required of Tenant or which
Tenant failed to obtain or keep in force and effect; (b) caused by work
stoppages, business interruptions, or similar events; (c) caused by other
Tenants, its agents, invitees, employees, and similar parties; (d) caused by
operations in construction of any private, public or quasi-public works; (e)
caused by any latent or patent defects in the Premises or in any part of the
building of which the Premises may form a part; (f) arising out of the design or
construction of the Premises; (g) caused by snow, wind, rain, leakage, and
similar events into or out of any portion of the Premises; (h) caused by
leakage, overflows, obstructions, blockages, explosions, collapse, bursts,
surges, and similar events of any mechanical, structural or other component
and/or part thereof; (i) arising from or caused by Tenant's business operation,
occupancy and/or use of the Premises and/or the streets, rights of way, and
walkways adjacent thereto, or any other similar reason.
All non-liability, waivers of liability, and save and hold
harmless references in this Lease given Cherry Hill Industrial Sites, Inc., as
Landlord, shall apply to: (a) Cherry Hill Industrial Sites, Inc., as General
Contractor, Designer, Contractor, or Subcontractor; and (b) any partner, joint
venturer, director, officer, agent, stockholder, and employee of Cherry Hill
Industrial Sites, Inc.
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23. INDEMNIFICATION. Tenant shall not do, nor permit to be
done, any act or thing in or upon the Premises, which may, will, or does subject
Landlord to any claims, penalties, expenses, judgments, responsibility,
liability, damages or similar occurrence by reason of damage or loss to any
property or harm and/or injury (including death) to any persons at any time.
Tenant agrees to and shall hold and save harmless and
indemnify the Landlord from and for any and all payments, expenses, costs,
attorney fees, claims and liability for losses or damage to property and/or
injury to any person (including death) resulting from any acts or omissions by
the Tenant, or its agents, employees, guests, licensees, invitees, sub-tenants,
contractors and similar parties, or for any cause or reason arising out of or by
reason of Tenant's use and/or occupancy of the Premises and/or the conduct of
Tenant's business and/or the breach by Tenant of any of the terms and conditions
of this Lease and/or similar reason.
24. FAILURE TO GIVE POSSESSION. If Landlord, for any reason,
shall be unable to give possession of the Premises on the date set for the
commencement of the Term, Landlord shall not be subject to any liability for
such failure. Under such circumstances, provided the delay is not caused or
contributed to by Tenant, the rent payments shall not commence until possession
of the Premises is given or the Premises are available for occupancy by Tenant,
whichever occurs first. Failure to give possession on the date of commencement
of the term shall in no way affect the validity of this Lease or the obligations
of Tenant hereunder nor shall it be construed in any way as an extension to the
Term or expiration date of this Lease.
If Landlord, at its option, grants Tenant permission to enter
into the possession of the Premises prior to the date specified as the
commencement of the Term, Tenant agrees that such occupancy shall be pursuant to
the terms and conditions of this Lease.
25. MECHANICS LIEN. Tenant shall not permit nor allow any
notice of intention to file a mechanic's lien to be filed against the Premises.
However, in the event any notice of intention to file a mechanic's lien is filed
for work to be performed or material to be furnished, or a mechanic's lien is
filed for work claimed to have been done or for materials claimed to have been
furnished to Tenant, same shall be discharged of record and satisfied by Tenant
within five (5) days thereafter at Tenant's own cost and expense, or Tenant
shall file a bond pursuant to statute releasing such liens. Failure to do so
shall entitle Landlord to resort to such remedies as are provided herein in case
of any default of this Lease, in addition to such as are permitted by law.
26. ACCESS TO PREMISES. Landlord, its employees and agents
shall have the right to enter the Premises at all reasonable times for the
purpose of: (a) examining or inspecting the same; (b) showing the same to
prospective purchasers, mortgagees or Tenants; (c) making such alterations,
repairs, improvements or additions to the Premises or to the Building as may be
necessary; (d) any other similar or reasonable purpose.
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If representatives of Tenant shall not be present to open and
permit entry into the Premises at an time when such entry by Landlord is
necessary or permitted hereunder, Landlord may enter by means of a master key
(or forcibly in the event of an emergency) without: (a) liability to Landlord,
its employees, agents, invitees and similar parties; (b) hinderance or
molestation from Tenant, its employees, and agents; and (c) such entry
constituting an eviction of Tenant or termination of this Lease.
27. ASSIGNMENT.
a. Tenant shall not assign, mortgage, pledge, encumber or
in any manner transfer this Lease or any portion thereof, or any interest
herein, or sublet the whole or any part of the Premises, without obtaining the
approval of Landlord. In the event of any such occurrence, with or without
Landlord's approval, Tenant shall, nevertheless, remain liable for the
performance of all of the terms and conditions of this Lease and will require
any assignee/sublessee to execute and deliver to Landlord an assumption of all
of the terms and conditions of this Lease in form satisfactory to Landlord.
Landlord shall be entitled to, and Tenant shall promptly remit to Landlord, any
profit which may inure to the benefit of Tenant as a result of any partial or
entire subletting of the Premises or assignment of this Lease, whether or not
approved by Landlord.
b. For the purposes of this paragraph, Tenant understands
that the transfer of a majority of Tenant's stock is tantamount to an
assignment.
c. As a condition precedent to Tenant's right to sublease
the Premises or to assign this Lease, Tenant shall, at Tenant's own expense,
first comply with ECRA and fulfill all of Tenant's environmental obligations
under this Lease pursuant to paragraph 51 which also arise upon termination of
Tenant's lease term. If this condition is not satisfied, then Landlord shall
have the right to withhold consent to sublease or assignment.
Tenant shall promptly furnish to Landlord true and complete
copies of all documents, submissions and correspondence provided by Tenant to
the Element and all documents, reports, directives and correspondence provided
by the Element to Tenant. Tenant shall also promptly furnish to Landlord true
and complete copies of all sampling and test results obtained from samples and
tests taken at and around the Premises. Tenant shall notify Landlord in advance
of all meetings scheduled between Tenant and NJDEP, and Landlord may attend all
such meetings.
d. Should Tenant make an assignment or sublet the Premises
or any portion thereof without the approval of Landlord, then Landlord may, at
its option, terminate this Lease by giving Tenant five (5) days notice of
Landlord's intention to do so and, upon the expiration of five (5) days, this
Lease shall terminate and Tenant shall peaceably quit and surrender the Premises
to Landlord; nevertheless Tenant shall remain liable as provided
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elsewhere in this Lease. This Lease shall not, nor shall any interest therein,
be assignable as to the interest of Tenant by operation of law, without the
approval of Landlord.
e. Subletting or assigning this Lease to anyone other than
an actual user of the Premises is positively prohibited.
f. Tenant may assign this Lease or sublet the Premises or
any part thereof to a subsidiary or controlled or affiliated concern of Tenant
and of its parent, or a surviving company of a merger or consolidation of any of
the foregoing without the Landlord's consent. Tenant is expressly granted
consent to assign or sublet the Premises, or any portion thereof, to a wholly
owned subsidiary.
28. SUBORDINATION. This Lease shall be subject and subordinate
at all times to the lien of any mortgages and/or other encumbrances, common
right-of-way's, easements and similar items existing or hereafter placed upon
the Premises by Landlord, or with the permission of Landlord, without the
necessity of any further instrument or act on the part of Tenant to effectuate
such subordination. Tenant agrees, however, at the election of a mortgagee, to
attorn to any holder of any mortgage to which this Lease is subordinate. Tenant
agrees to execute and deliver promptly upon demand, and without charge, such
further instrument or instruments evidencing such subordination of this Lease to
the lien of any mortgage and/or other encumbrance. Tenant hereby irrevocably
appoints Landlord as Tenant's attorney-in-fact to execute and deliver such
instrument or instruments for and in the name of the Tenant provided same have
not been executed by Tenant within ten (10) days after Landlord's notice to
Tenant.
Landlord agrees that the subordination of the Lease to any
future mortgage relating to the Premises shall be conditional and contingent
upon any such mortgagee's agreeing that, so long as Tenant is not in default
under the terms and conditions of the Lease, such mortgages shall not disturb
Tenant's use, possession and occupancy of the Premises.
29. CERTIFICATIONS. Tenant agrees, within ten (10) days after
Landlord's notice, to execute, acknowledge and deliver to Landlord a written
instrument in recordable form certifying: (1) that this Lease is unmodified and
in full force and effect (or if there have been modifications, that the same are
in full force and effect as modified and stating the modifications); (2) that
the Tenant has accepted possession of the Premises and the date on which the
term of the Lease commenced; (3) the dates to which rent and additional rent
have been paid in advance, if any; (4) whether or not to the best knowledge of
the signer of such certificate, Landlord is in default in the performance of any
covenant of this Lease, and, if so, specifying each such default of which the
signers may have knowledge; (5) any other reasonable stipulation as may be
required and/or requested by Landlord. It is understood that such instrument may
be relied upon by a prospective purchaser of the fee or any mortgagee of the
Premises.
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Tenant shall provide to Landlord, if requested, its latest
audited financial statement, accurately reflecting its financial condition for
the latest fiscal year of Tenant. It is understood that such statement may be
relied upon by a prospective purchaser of the fee or any mortgagee of the
Premises.
30. DEFAULT. The occurrence of any of the following shall
constitute a material default and breach of this Lease by Tenant:
a. Failure of Tenant to accept possession of the Premises
within thirty (30) days after the effective date of the Lease;
b. The vacating or abandonment of the Premises by Tenant;
c. The failure by Tenant to pay, when due, any installment
of rent hereunder or any additional rent or any such other sum herein required
to be paid by Tenant;
d. A failure by Tenant to observe and perform any other
provision or terms and conditions of this Lease to be observed or performed by
Tenant, where such failure continues for fifteen (15) days (or a lesser time
period when an emergency or law requires or makes such a reduction for abatement
and/or correction prudent; or when a lessor or non-notice provision is
specifically provided for in any covenant of this Lease) after written notice
thereof from Landlord to Tenant provided, however, that if the nature of the
default is such that the same cannot reasonably be cured within such fifteen
(15) day period, Tenant shall not be deemed to be in default if Tenant shall
within such period commence such cure and thereafter diligently prosecute the
same to completion;
e. The filing of a petition by or against Tenant for
adjudication as a bankrupt or insolvent or for its reorganization or for the
appointment pursuant to any local, state or Federal bankruptcy or insolvency law
of a receiver or trustee of Tenant's property; or an assignment by Tenant for
the benefit of creditors; or the taking of possession of the property of Tenant
by any local, state or Federal governmental officer or agency or court appointed
official for the dissolution or liquidation of Tenant or for the operating,
either temporary or permanent, of Tenant's business; provided, however, that if
any such action is commenced against Tenant, the same shall not constitute a
default if Tenant causes the same to be dismissed within thirty (30) days after
the filing of same.
REMEDIES
Upon the occurrence of any such event of default set forth
above:
a. Landlord may (but shall not be required to) perform for
the account of Tenant the curing of any default of Tenant and immediately
recover as additional rent any expenditure made and the amount of any
obligations incurred in connection
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therewith, plus interest at the rate of four percent (4%) per annum over the
Midlantic National Bank/South prime rate from the date of such expenditure;
b. Tenant may cure any monetary default by making payment
of the monies due, together with a late charge of 5% of the amount due not later
than ten (10) calendar days after notice of the default has been given to
Tenant. If said default should continue for a longer period, Landlord may
accelerate all rent and additional rent due for the succeeding nine (9) months
of the term of this Lease and declare the same to be immediately due and
payable.
c. Tenant may cure any non-monetary default by correcting
the default condition described in Landlord's notice to Tenant if said
corrections are completed within twenty (20) calendar days after notice of the
default has been given to Tenant. If said default should continue for a longer
period, Landlord may accelerate all rent and additional rent due for the
succeeding nine (9) months of the term of this Lease and declare the same to be
immediately due and payable.
d. In the event of default, and the failure of Tenant to
cure same within the designated time period, Landlord, at its option, may serve
notice upon Tenant that this Lease and the then unexpired term hereof and all
renewal options shall cease and expire and become absolutely void on the date
specified in such notice, to be not less than five (5) days after the date of
such notice without any right on the part of the Tenant to save the forfeiture
by payment of any sum due or by the performance of any terms, provision,
covenant, agreement or condition broken; and, thereupon and at the expiration of
the time limit in such notice, this Lease and the term hereof granted, as well
as the right, title and interest of the Tenant hereunder, shall wholly cease and
expire and become void in the same manner and with the same force and effect
(except as to Tenant's liability) as if the date fixed in such notice were the
date herein granted for expiration of the term of this Lease. Thereupon, Tenant
shall immediately quit and surrender to Landlord the Premises, and Landlord may
enter into and repossess the Premises by summary proceedings, detainer,
ejectment or otherwise and remove all occupants thereof and, at Landlord's
option, any property thereon without being liable to indictment, prosecution or
damages therefor. No such expiration or termination of this Lease shall relieve
Tenant of its liability and obligations under this Lease, whether or the
Premises shall be relet;
e. Landlord may, at any time after the occurrence of any
event of default, re-enter and repossess the Premises and any part thereof and
attempt in its own name, as agent for Tenant if this Lease not be terminated or
in its own behalf if this Lease be terminated, to relet all or any part of such
Premises for and upon such terms and to such persons, firms or corporations and
for such period or periods as Landlord, in its sole discretion, shall determine,
including the term beyond the termination of this Lease; and Landlord shall not
be required to accept any tenant offered by Tenant or observe any instruction
given by Tenant about such reletting or do any act or exercise any care or
diligence with respect to such reletting or to the mitigation of damages. For
the purpose of
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such reletting, Landlord may decorate or make repairs, changes, alterations or
additions in or to the Premises to the extent deemed by Landlord desirable or
convenient; and the cost of such decoration, repairs, changes, alterations or
additions shall be charged to and be payable by Tenant as additional rent
hereunder, as well as any reasonable brokerage and legal fees expended by
Landlord; and any sums collected by Landlord from any new tenant obtained on
account of the Tenant shall be credited against the balance of the rent due
hereunder as aforesaid. Tenant shall pay to Landlord monthly, on the days when
the rent would have been payable under this Lease, the amount due hereunder less
the amount obtained by Landlord from such new Tenant;
f. The parties recognize and agree that the damage to
Landlord resulting from any failure by Tenant to timely surrender possession of
the Premises will be substantial, will exceed the amount of the monthly
installments of the Rent payable hereunder, and will be impossible to measure
accurately. Tenant therefore agrees that if possession of the Premises is not
surrendered to Landlord upon the expiration date or sooner termination of the
Lease, in addition to any other rights or remedies Landlord may have hereunder
or at law, Tenant shall pay to Landlord, as liquidated damages, for each month
and for each portion of any month during which Tenant holds over in the Premises
after the expiration date or sooner termination of this Lease, a sum equal to
two times the aggregate of that portion of Base Annual Rent and Additional Rent
that was payable under this Lease during the last month of the Term.
Nothing herein contained shall be deemed to permit Tenant to
retain possession of the Premises after the expiration date or sooner
termination of the Lease.
g. In addition to all remedies provided herein or by law,
Tenant shall pay to Landlord reasonable attorneys fees and court costs and any
other expenses incurred as a result of such breach or default.
31. EXPIRATION. Upon the expiration date of this Lease or
prior termination specified by Landlord pursuant to notice as provided for
elsewhere in this Lease: (a) Tenant shall remove all of its personal property
from the Premises; (b) Tenant shall peacefully quit and surrender to Landlord
the Premises, broom clean and in the same condition in which Tenant has agreed
to keep it during the Term. Tenant's obligation to observe or perform this
covenant shall survive the expiration or prior termination date of this Lease;
(c) Tenant, for itself and on behalf of any and all persons claiming through or
under it, including, but not limited to, creditors of every kind, shall and does
hereby waive and surrender all rights and privileges which it may have under or
by reason of any present or future law, to redeem the Premises or to have a
continuance of this Lease; (d) Landlord may enter and repossess the Premises as
of Landlord's former estate and expel Tenant, and those claiming through or
under Tenant from the Premises; (e) Landlord may remove from the Premises any
property of Tenant and/or the property of those claiming through or under Tenant
and, without notice to Tenant or others, sell such property or any part thereof
at public or private sale or Landlord may treat such property or any part
thereof as abandoned
-18-
and dispose of same in any manner as Landlord, at its option, elects, all at the
risk and cost of Tenant and without any liability to Landlord whatsoever.
If during the last month of the term or prior termination,
Tenant has removed all or substantially all of the Tenant's property from the
Premises, Landlord may, without notice to Tenant, immediately enter the Premises
to renovate and decorate the Premises, without liability to Tenant and without
reducing or otherwise affecting Tenant's obligations hereunder.
32. NON-WAIVER BY LANDLORD. Landlord may restrain any breach
or threatened breach of any covenant of this Lease by Tenant. However, the
recitation herein of any particular remedy shall not preclude the Landlord from
any other remedy it may have, either at law or in equity. Landlord, at its
option, may pursue more than one remedy available either concurrently or
separately. The failure of Landlord to insist upon the strict performance of any
one of the terms and conditions of this Lease or to exercise any right, remedy
or election provided for in this Lease, or permitted by law, shall not
constitute or be construed as a waiver or relinquishment of such right, remedy
or election. Landlord may, at its option, mitigate any damages caused or arising
out Tenant's breach of any of the terms and conditions of this Lease, but shall
not be under any obligation or duty to do so. Any rights and remedies of
Landlord, whether created by the terms of this Lease or existing at law, in
equity, or otherwise, shall be distinct, separate and cumulative and no one of
them, whether exercised by Landlord or not, shall be deemed to be in exclusion
of any other.
No covenant of this Lease shall be deemed to have been waived
by Landlord unless such waiver is in writing, signed by Landlord.
33. QUIET ENJOYMENT. Landlord covenants that upon Tenant
observing and performing all the terms and conditions of this Lease, Tenant
shall and may peaceably and quietly have, hold and enjoy the Premises for the
term aforementioned.
34. SECURITY. Tenant has deposited with Landlord the sum of
$5,234.00 (carried over) as security for the faithful performance and observance
by Tenant of the terms and conditions of this Lease. The depositing of said sum
with the Landlord is a condition precedent to the valid execution of the Lease.
Landlord, at its option, may use, apply or retain the whole or any part of the
security so deposited for the payment of any sum for which Tenant is in default
or for any sum which Landlord, at its option, may expend by reason of Tenant's
default of any of the terms and conditions of this Lease. Any expenditures made
by Landlord as herein stipulated shall be paid by Tenant as additional rent.
Landlord shall be permitted to co-mingle Tenant security funds with other funds
of Landlord and shall not be required to pay interest on any sum so held.
In the event that Tenant shall fully and faithfully comply
with all the terms and conditions of this Lease, the security shall be returned
to Tenant after the date fixed as the
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end of the Lease and after delivery of the Premises by Tenant to Landlord
pursuant to the terms and conditions of this Lease.
In the event of a sale of the Premises, Landlord shall have
the right to transfer the security to the buyer and Landlord shall thereupon be
relieved by Tenant from all liability for the return of such security and Tenant
agrees to look to the buyer solely for the return of said security. The
provisions hereof shall apply to every transfer or assignment made of the
security to a new buyer. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and that neither the Landlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
35. BILLS/NOTICES. Except as otherwise provided in this Lease,
any xxxx, statement, or notice shall be deemed sufficient if written and
delivered to Tenant personally or sent by certified mail, return receipt
requested, to Tenant at the Premises. The time of mailing of such xxxx or
statement and of the giving of such notice or communication shall be deemed to
be the time when same is mailed to Tenant as herein provided. Any notice by
Tenant to Landlord must be served by certified mail, return receipt requested,
to Landlord at the address herein given or at such other address as Landlord
shall designate.
36. WAIVER OF TRIAL BY JURY. Landlord and Tenant agree that
the respective parties shall and hereby do waive trial by jury in any action or
proceeding brought by either of the parties hereto against the other on any
matters arising out this Lease.
In any action brought by the Landlord against the Tenant,
Tenant shall not interpose any counterclaim against Landlord, but same shall be
subject to an independent action which is not to be consolidated with the
Landlord's action.
This Lease shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Lease to be drafted.
If Landlord institutes a dispossess or eviction action in
response to Tenant's refusal to vacate the Premises, Tenant waives its right to
invoke N.J.S.A. 2A:18-60. In any action brought by the Landlord against the
Tenant, Tenant shall not interpose any counterclaim against Landlord, but same
shall be subject to an independent action which is not to be consolidated with
the Landlord's action.
37. SIGNS. The Tenant shall not place nor allow to be placed
any signs upon or about the exterior of the building or the grounds of the
Premises, or other property of Landlord unless of a design and structure and at
such locations as shall be first approved by the Landlord and then the
appropriate governmental authorities and/or agencies, if required.
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Tenant, shall pay, as additional rent, all costs and charges
incurred by Landlord related to the installation, repair, maintenance, or
replacement of all signs related to the Tenant within the Cherry Hill Industrial
Center.
38. BROKER. Tenant represents to Landlord that it has not
dealt with any broker or similar service in connection with this Lease. Tenant
shall hold and keep Landlord harmless from and against any claim for brokerage
commissions and all liabilities and expenses arising therefrom.
39. NO REPRESENTATIONS. (a) Tenant has rented the Premises
after a complete inspection and examination of its present condition and without
any representation on the part of the Landlord, its agents, employees, and
similar parties as to the condition or usefulness of the Premises; (b) Tenant
does not acquire any rights, easements or licenses by implication or otherwise,
except as are specifically provided for herein; (c) Tenant's possession of the
Premises shall be conclusive evidence that the Premises were in good and
satisfactory condition at the time Tenant took possession and that Tenant
accepted same "as is" and in its present condition without any express or
implied warranties; (d) upon execution of this Lease or anytime thereafter
Tenant assumes the full and sole responsibility for the condition, safety,
operation and management of the Premises pursuant to the terms and conditions
contained herein.
40. LANDLORD'S APPROVAL. Except where specifically stated
otherwise:
Whenever Landlord's approval or consent is required pursuant
to any term or condition of this Lease, such approval shall be in writing and in
advance for each occurrence. Landlord is under no duty or obligation to grant
approvals.
Whenever this Lease provides for a Landlord's option, it is
agreed such does not imply or constitute a duty or an obligation of Landlord.
Whenever this Lease provides for Landlord's approval which
shall not be unreasonably withheld, it is agreed that Tenant's remedy in the
event of Landlord's non-approval is limited to specific performance.
41. NET LEASE. It is intended that the rent and additional
rent reserved hereunder shall be an absolutely net return to the Landlord
throughout the Term. The rent and additional rent reserved hereunder shall be
paid to the Landlord without any claim on the part of Tenant, or those claiming
under Tenant, for diminution, setoff, deduction, or abatement except as is
specifically provided for herein.
Tenant's obligation to pay rent and additional rent hereunder,
and to perform the terms and conditions of this Lease shall in no way be
affected, impaired or excused because Landlord is unable to fulfill any of its
obligations hereunder, or because Tenant's use
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and occupancy of the Premises is disturbed for any reason other than as is
specifically provided for herein.
42. LANDLORD'S BREACH. Tenant shall look solely to a sum that
shall not exceed five percent (5%) of the net annual rental for the satisfaction
of the remedies of Tenant in the event of a breach by Landlord of any of the
covenant(s) of this Lease.
43. TENANTS WARRANTY. Tenant warrants that if it is a
corporation that: (a) it is duly incorporated and/or qualified under the laws of
the State of New Jersey and is authorized to do business in the State of New
Jersey and is in good standing; (b) all necessary corporate action necessary to
authorize the execution of this Lease upon the terms and conditions set forth
herein have been duly taken; and (c) the officer(s) executing and delivering
this Lease have been duly authorized to bind the corporation to the terms and
conditions herein contained.
44. ADVERSE POSSESSION. Tenant shall not suffer or permit the
Premises, or any portion thereof, to be used without restriction or in such a
manner as might reasonably tend to impair Landlord's title to the Premises or in
such manner as might reasonably make possible claims of adverse usage or adverse
possession, or of implied dedication of the Premises or any portion thereof.
45. COMPLIANCE WITH THE NJ ENVIRONMENTAL CLEANUP
RESPONSIBILITY ACT.
a. Tenant shall, at Tenant's own expense, comply with the
Environmental Cleanup Responsibility Act, N.J.S.A. 13:1K-6 et seq., the
regulations promulgated thereunder and any successor legislation and
regulations, and any amendments or additions thereto, (hereinafter referred to
as "ECRA"). Tenant shall, at Tenant's own expense, make all submissions to,
provide all information to, and comply with all requirements of, the Industrial
Site Evaluation or its successor ("Element") of the New Jersey Department of
Environmental Protection ("NJDEP").
b. Tenant's obligations under this paragraph shall arise
if there is any closing, terminating or transferring of operations of an
industrial establishment at the premises pursuant to ECRA, whether triggered by
Landlord or Tenant.
c. Provided this Lease is not previously cancelled or
terminated by either party or by operation of law, Tenant shall commence its
submission to the Element in anticipation of the end of the lease term no later
than one (1) year prior to the expiration of the lease term. Tenant shall
promptly furnish to Landlord true and complete copies of all documents,
submissions, correspondence and oral or written communications provided by
Tenant to the Element, and all documents, reports, directives, correspondence
and oral or written communications by the Element to Tenant. Tenant shall also
promptly furnish to Landlord true and complete copies of all sampling and test
results and reports obtained and
-22-
prepared from samples and tests taken at and around the Premises. Tenant shall
notify Landlord in advance of all meetings scheduled between Tenant and NJDEP,
and Landlord may attend all such meetings.
d. Should the Element or any other division of NJDEP
determine that a cleanup plan be prepared and that a cleanup be undertaken
because of a spill or discharge of a hazardous substance or waste at the
Premises which occurred during the term of the Lease, Tenant shall, at Tenant's
own expense, promptly prepare and submit the required plan and financial
assurances and shall promptly carry out the approved plans.
e. At no expense to Landlord, Tenant shall promptly
provide all information requested by Landlord or NJDEP for preparation of a
non-applicability affidavit, de minimus quantity exemption application, negative
declaration application, limited conveyance application or other submission and
shall promptly sign such affidavits and submissions when requested by Landlord
or NJDEP.
f. Should Tenant's operations at the Premises be outside
of those industrial operations covered by ECRA, Tenant shall, at Tenant's own
expense, obtain a letter of non-applicability or de minimus quantity exemption
from the Element prior to termination of the Lease term and shall promptly
provide Tenant's submission and the Element's exemption letter to Landlord.
Should Tenant obtain a letter of non-applicability or de minimus quantity
exemption from the Element, then Tenant shall, at Landlord's option, hire a
consultant satisfactory to Landlord to undertake sampling at the Premises
sufficient to determine whether or not Tenant's operations have resulted in a
spill or discharge of a hazardous substance or waste at/or around the Premises.
Should the sampling reveal any spill or discharge of a hazardous substance or
waste, then Tenant shall, at Tenant's expense, promptly clean up the Premises to
the satisfaction of Landlord and NJDEP.
g. If Tenant fails to obtain either: (i) a
non-applicability letter; (ii) a de minimus exemption; (iii) a negative
declaration; or (iv) final approval of cleanup; (collectively referred to as
"ECRA clearance") from the Element; or fails to clean up the Premises pursuant
to subparagraph (f) above, prior to the expiration or earlier termination of the
lease term, then upon the expiration or earlier termination of the lease term
Landlord shall have the option either to consider the Lease as having ended or
to treat Tenant as a holdover tenant in possession of the Premises. If Landlord
considers the Lease as having ended, then Tenant shall nevertheless be obligated
to promptly obtain ECRA clearance and to fulfill the obligations set forth in
subparagraph (f) above. If Landlord treats Tenant as a holdover tenant in
possession of the Premises, then Tenant shall monthly pay to Landlord double the
regular and additional monthly rent which Tenant would otherwise have paid,
until such time as Tenant obtains ECRA clearance and fulfills its obligations
under subparagraph (f) above, and during the holdover period all of the terms of
this Lease shall remain in full force and effect.
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h. Tenant represents and warrants to Landlord that Tenant
intends to use the Premises for light manufacturing, offices, warehousing and
distribution which operations have the following Standard Industrial
Classification ("SIC") numbers as defined by the most recent edition of the
Standard Industrial Classification Manual published by the Federal Executive
Office of the President, Office of Management and Budget: 3999. Tenant's use of
the Premises shall be restricted to the classifications set forth above unless
Tenant obtains Landlord's written prior written consent to any change in use of
the Premises. Prior to the commencement date of Tenant's lease term, Tenant
shall supply to Landlord an affidavit of an officer of Tenant ("Officer's
Affidavit") setting forth Tenant's SIC numbers and a detailed description of the
operations and processes Tenant will undertake at the Premises, organized in the
form of a narrative report including a description and quantification of
hazardous substances and wastes to be generated, manufactured, refined,
transported, treated, stored, handled or disposed of at the Premises. Following
commencement of the lease term, Tenant shall notify Landlord by way of a
supplemental Officer's Affidavit, as to any changes in Tenant's operation, SIC
number or use or generation of hazardous substances and wastes. Tenant shall
also supplement and update Officer's Affidavit upon each anniversary of the
commencement of the lease term. Tenant shall not commence or alter any
operations at the Premises prior to (i) obtaining all required operating and
discharge permits or approvals, including, but not limited to, air pollution
control permits and pollution discharge elimination system permits from NJDEP,
all governmental or public authorities having jurisdiction over Tenant's
operations or the Premises, and (ii) providing copies of permits and approvals
to Landlord.
i. Tenant shall permit Landlord and Landlord's agents,
servants and employees, including, but not limited to, legal counsel and
environmental consultants and engineers, access to the Premises for the purposes
of environmental inspections and sampling during regular business hours, or
during other hours either by agreement of the parties or in the event of any
environmental emergency. Tenant shall not restrict access to any part of the
Premises, and Tenant shall not impose any conditions to access. In the event
that Landlord's environmental inspection shall include sampling and testing of
the Premises, Landlord shall use its best efforts to avoid interfering with
Tenant's use of the Premises, and upon completion of sampling and testing shall
repair and restore the affected areas of the Premises from any damage caused by
the sampling and testing.
j. Tenant's indemnification of Landlord as set forth
elsewhere within this Lease shall extend to any and all claims, liabilities,
losses, damages and costs, foreseen or unforeseen, including without limitation
counsel, engineering and other professional or expert fees, which Landlord may
incur by reason of Tenant's action or non-action with regard to Tenant's
obligations under this paragraph.
k. This paragraph shall survive the expiration or earlier
termination of this Lease. Tenant's failure to abide by the terms of this
paragraph shall be restrainable by injunction without limiting Landlord's right
to remedy as provided for elsewhere in this Lease.
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46. HAZARDOUS MATERIALS. Tenant shall not bring, allow, use,
dispose, or permit upon the Premises or generate, create, emit, or dispose at or
upon the Premises any toxic or hazardous substances, materials or wastes as
those substances, materials or wastes are defined by any applicable state or
federal statutes and/or regulations or any applicable municipal or county
ordinances, and any amendments or additions thereto, without being in full
compliance with said statutes, regulations or ordinances. Tenant shall obtain
and maintain all applicable state, federal, municipal and county permits
relating to Tenant's processes or operations or the generation, storage or
disposal of hazardous substances, materials or wastes on the Premises. Tenant
shall not allow the disposal of hazardous substances, materials, or wastes on
the Premises.
Tenant acknowledges that during the term of this Lease,
chemical(s) or material(s) which Tenant uses, generates, repackages, stores or
permits on the Premises may be legally banned or subject to mandatory
modification or conversion. Tenant agrees that it will not, on the basis of such
legal ban or mandatory modification or conversion, claim frustration of purpose,
seek termination of the Lease, or seek abatement of rent. Tenant further agrees
that it will comply fully, and at Tenant's own expense, with any said legal ban
or mandatory modification or conversion.
47. ENVIRONMENTAL REPORTS. Tenant shall promptly provide
Landlord with:
a. all documentation and correspondence provided to NJDEP
pursuant to the Worker and Community Right to Know Act, N.J.S.A. 34:5A-1, et
seq. and the regulations promulgated thereunder ("Right to Know Act"), and any
amendments or additions thereto,
b. all reports and notices made by Tenant pursuant to the
Hazardous Substance Discharge--Reports and Notices Act, N.J.S.A. 13:1K-15 et
seq., and the regulations promulgated thereunder ("Reports and Notices Act"),
and any amendments or additions thereto, and
c. any notices, correspondence and submissions made by
Tenant to NJDEP, the United States Environmental Protection Agency (EPA), the
United States Occupational, Safety and Health Administration (OSHA), or any
other local, state or federal authority which requires submission of any
information concerning environmental matters or hazardous waste or substances.
48. ENVIRONMENTAL LIENS. Tenant shall promptly notify Landlord
as to any liens threatened or attached against the Premises pursuant to the
Spill Act or any other environmental law. In the event that such a lien is filed
against the Premises, then Tenant shall, within thirty (30) days from the date
that the lien is placed against the Premises, and at any rate prior to the date
any governmental authority commences proceedings to sell the Premises pursuant
to the lien, either: (a) pay the claim and remove the lien from the
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Premises; or (b) furnish either (i) a bond satisfactory to Landlord in the
amount of the claim out of which the lien arises, (ii) a cash deposit in the
amount of the claim out of which the lien arises, or (iii) other security
satisfactory to Landlord in an amount sufficient to discharge the claim out of
which the lien arises.
49. EXISTING CONDITIONS. Tenant agrees that Landlord is not in
default of any of the provisions, terms, covenants or conditions of any prior
leases. Tenant further agrees that it does not now have or hold any defenses,
setoffs, or counterclaims against Landlord arising out of any prior leases or in
any way relating thereto, or arising out of any other transaction between Tenant
and Landlord which might be set off or credited against the accruing rents or
additional rents.
50. BINDING OFFER. It is understood and agreed by the Landlord
and Tenant that this Lease is an offer only and is submitted to Tenant for
signature with the understanding that it shall not bind Landlord unless and
until it has been executed by Landlord.
51. ENTIRE AGREEMENT. This Lease constitutes the entire
agreement between the parties. No representative, agent, or employee of the
Landlord has been authorized to make any representations or promises or to vary,
alter or modify the covenants hereof. No additions, changes, modifications,
renewals or extensions of this Lease shall be binding unless reduced to writing
and signed by the Landlord and the Tenant.
This Lease may not be cancelled or terminated by Tenant
without the consent of Landlord except as is specifically provided for elsewhere
in this Lease.
52. APPLICATION AND DURATION. Wherever in this Lease an
obligation is imposed upon or required of Tenant, same shall be at Tenant's sole
cost and expense.
Obligations of Tenant pursuant to the terms and conditions of
this Lease are: (a) for the Premises as set forth in exhibit "A" unless extended
in scope pursuant to any particular provision and/or as the sense and
circumstances of the text may require; (b) for the duration/term of the Lease
unless having application before the commencement date and/or if they survive
the expiration date or prior termination date pursuant to any provision
contained herein.
53. VALIDITY. The terms and conditions of this Lease shall be
deemed severable, if any clause or provision herein shall be adjudged to be
invalid or unenforceable by a court of competent jurisdiction or by the
operation of any applicable law, such an occurrence shall not affect the
validity of any other clause and/or provision herein, and this Lease and such
other clauses and provisions shall remain in full force and effect.
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Landlord, however, at its option, may pursue the relief or
remedy sought in any invalid clause by conforming the said clause with the
provisions of the statutes or the regulations of any governmental agency as if
the particular provisions of the applicable statutes or regulations were set
forth herein at length.
54. COUNTERPARTS. This Lease may be executed in several
counterparts, each of which shall be deemed to be an original copy, and all of
which taken together shall constitute one agreement binding on all parties
hereto, notwithstanding that the parties shall not have signed the same
counterpart.
55. GENDER NEUTER. In all references herein to any pronouns,
parties, persons, entities, or corporation, the use of any particular gender or
the plural or singular number is intended to include the appropriate gender or
number as the sense and circumstances of the context may require.
56. BINDING AGREEMENT. All the terms and conditions contained
herein shall be for and shall inure to the benefit of and shall bind the
respective parties hereto, their heirs, successors and assigns.
57. APPLICABLE LAW. Landlord and Tenant agree that this Lease
and any suits and/or special proceedings under it will be governed and construed
pursuant to the laws of the State of New Jersey.
58. CAPTIONS. The captions are inserted only as a matter of
convenience and in no way define, limit or describe the scope of this Lease nor
the intent of any covenant thereof.
59. EXISTING CONDITIONS. Tenant agrees that Landlord is not in
default of any of the provisions, terms, covenants or conditions of the lease
dated April 22, 1985. Tenant further agrees that it does not now have or hold
any defenses, setoffs, or counterclaims against Landlord arising out of the
April 22, 1985 lease or in any way relating thereto, or arising out of any other
transaction between Tenant and Landlord which might be set off or credited
against the accruing rents or additional rents of the April 22, 1985 lease.
All prior leases between Landlord and Tenant shall terminate
with the commencement of this lease.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively
signed and sealed this Lease as of the date written.
CHERRY HILL INDUSTRIAL SITES, INC.
/s/ Xxxxxxx Xxxxx By: /s/ Xxxx X. Xxxxx
--------------------------------- ----------------------------
Witness as to Landlord Xxxx Xxxxx, President
INTEST
/s/ Xxxxxxx Xxxxx By: /s/ Xxxx Xxxxxxx
--------------------------------- ----------------------------
Witness as to Tenant
Date: February 16, 1996
--------------------------
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