EXHIBIT 10.10
LEASE
THIS INDENTURE OF LEASE (hereinafter called "LEASE") dated the 23rd day of July
1991, by and between:
FORSGATE INDUSTRIAL COMPLEX, a New Jersey Limited Partnership with offices
at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, (hereinafter called
"LANDLORD"), and,
DELTA COMPUTEC INC., a Corporation of the State of New York, having its
principal office at 00 Xxxxxxxxx Xxxxxx X. Xxxxxxxx, Xxx Xxxx, 00000,
(hereinafter called "TENANT").
WITNESSETH:
ARTICLE 1
DEMISED PREMISES - TITLE - TERM OF LEASE
Section 1.01 Demised Premises In consideration of the rents, covenants and
agreements hereinafter reserved and contained on the part of the Tenant to be
observed and performed, Landlord does hereby lease and demise to the Tenant and
the Tenant does hereby hire, lease and take from Landlord, for the term subject
to and upon the covenants and conditions hereinafter set forth, the real
property described in Schedule "A" attached hereto, together with an industrial
building ("Building") and the pertinent fixtures and equipment erected thereon
by Landlord (together, known as "Demised Premises"), commonly known as 000
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx. The Tenant shall take the Premises in an
"as is" condition except as hereinafter provided.
Section 1.02 Title At the commencement of the term of the Lease ("Term"),
Landlord shall own the fee title to the Demised Premises, subject to
restrictions of record, if any, zoning regulations affecting such premises and
any state of facts shown on an accurate survey or as a visual inspection of the
Demised Premises would disclose. As of the date hereof, Landlord represents
that there are no existing mortgages on the Premises. Nothing contained herein
shall prohibit Landlord from placing a mortgage on the Demised Premises.
Landlord represents that the title policy previously submitted dated October
13, 1970, accurately states the encumbrances of record except for the mortgage
which has been removed as of this date.
Section 1.03 Term of Lease To have and to hold unto the Tenant, its
permitted successors and permitted assigns, for a Term of 10 years to commence
on August 1, 1991 and to terminate on July 30, 2001, unless sooner terminated
as otherwise herein provided.
Section 1.04 Certificates and Permits The Tenant shall be responsible, at
Tenant's sole cost and expense, to obtain any and all permits, certificates of
occupancy or the like as may be required for Tenant to use and occupy the
building. Landlord shall not incur any expense by reason of the foregoing.
ARTICLE 2
USE OF PREMISES
Section 2.01 Use The Tenant shall use and occupy the Demised Premises for
offices and warehousing, of computers and computer parts as well as the
servicing of computers. At no time during this Lease may tenant store, upon the
premises, hazardous substances as that term may be defined from time to time by
the New Jersey Department of Environmental Protection or, by the Federal
Environmental Protection Agency pursuant to section 311 of the "Federal Water
Pollution Act, amendments of 1972" (33 U.S.C. Section 1321) and the list of
toxic pollutants designated by Congress or its Environmental Protection Agency
pursuant to Section 307 of that Act (33 U.S.C. Section 1317). Such use does not
permit the stacking of merchandise or materials against the exterior walls, so
as to create a load or weight factor upon such walls, or to tie in, Tenant's
racking systems with such walls, nor the hanging of equipment from (or
otherwise loading) the roof or structural members of the building without the
express written consent of the Landlord. The Tenant shall not use or occupy or
permit the Demised Premises to be used or occupied, nor do or permit anything
to be done in or on the Demised Property, in a manner which will in any way
violate any Certificate of Occupancy affecting the Demised Premises, or make
void or voidable any insurance then in force with respect thereto, or which
will make it impossible to obtain fire or other insurance required to be
furnished by the Tenant hereunder or which will cause or be likely to cause
structural damage to the Building or any part thereof, or likely to cause or
constitute an environmental hazard as hereinafter provided or which will
constitute a public or private nuisance, as defined by a court of competent
jurisdiction and shall not use or occupy or permit the Demised Premises to be
used or occupied in any manner which will violate any present or future laws or
regulations of any governmental authority. Nothing herein contained shall be
deemed or construed to constitute a representation or guaranty by the Landlord
that any specific business may be conducted in the Demised Premises or is
lawful under the Certificate of Occupancy.
ARTICLE 3
RENT AND OTHER CHARGES
Section 3.01 Net Basic Rent The Tenant shall pay to the Landlord as net
annual basic rent (the "Net Basic Rent") for the Demised Premises commencing on
the commencement date to and through July 31, 1992 the sum of Two Hundred and
One Thousand, Three Hundred and Eighty Five ($201,385.00) DOLLARS payable in
equal monthly installments of Sixteen thousand Seven hundred Eighty Two and
Eight cents ($16,782.08) DOLLARS, from August 1, 1992 through July 31, 1993 the
sum of Two Hundred and Ten Thousand, Nine Hundred and Seventy Five
($210,975.00) Dollars payable in equal monthly installments of Seventeen
Thousand Five hundred eighty one and twenty five cents ($17,581.25) DOLLARS,
from August 1, 1993 through July 31, 1994 the sum of Two Hundred and Twenty
Thousand, Five hundred and Sixty Four ($220,564.00) DOLLARS payable in equal
monthly installments of Eighteen thousand three hundred and eighty and thirty
three cents ($18,380.33) DOLLARS from August 1, 1994 through July 30, 1995 the
sum of Two Hundred and Thirty Thousand one hundred and fifty four ($230,154.00)
DOLLARS payable in
equal monthly installments of Nineteen Thousand One hundred and Seventy Nine
Dollars and fifty cents ($19,179.50) DOLLARS from August 1, 1995 through July
31, 1996 the sum of Two Hundred and thirty nine Thousand, Seven Hundred and
Forty four ($239,744.00) DOLLARS payable in equal monthly installments of
Nineteen Thousand and Nine hundred and seventy eight and sixty six cents
($19,978.66) DOLLARS from August 1, 1996 through July 31, 2001 the sum of Two
Hundred and Eighty Seven Thousand, Six Hundred and Ninety two ($287,692.00)
DOLLARS payable in equal monthly installments of Twenty three Thousand and Nine
hundred and seventy four and thirty three cents ($23,974.33) DOLLARS due and
payable the first day of each and every month, in advance, except, the first
month's rent which shall be paid upon the execution hereof. Said rent and all
payments due hereunder shall be paid to the Landlord at its address hereinabove
first specified, or as the Landlord may otherwise direct in writing. It is the
intention of the parties that the Basic Rent shall be net to the Landlord, so
that this Lease shall yield to the Landlord, the Basic Rent during the Term and
that all costs, expenses and obligations of every kind and nature whatsoever
relating to the Demised Premises shall be paid by the Tenant, except as
otherwise specifically provided in this Lease.
Section 3.02 First Month Proration If the Term shall begin on a date other
than the first day of a calendar month, the Basic Rent for the initial month of
the Term shall be prorated.
Section 3.03 Additional Rent All payments Tenant is required to make
pursuant to this Lease shall constitute additional rent ("Additional Rent")
and, if Tenant defaults in any such payment so as to create an Event of Default
(as hereinafter defined), Landlord shall have (in addition to any rights and
remedies granted hereby) all rights and remedies provided by law for nonpayment
of Basic Rent.
Section 3.04 Late Charge If payment of rental or any part thereof shall not
be made on or prior to a date which is five (5) business days after the date on
which it is due and payable, a late charge or $250.00/day on the sums so
overdue, shall accrue from the due date as liquidated damages for Tenant's
failure to make prompt payment, and the late charges that accrue during any
month shall be payable on the first day of the following month. These late
charges have been arrived at through negotiations of what Landlord's liquidated
damages would be in the even of non-payment of rent by Tenant. In the event of
non-payment of any late charges Landlord shall have, in addition to all other
rights and, remedies, all the rights and remedies provided for herein and by law
in the case of non-payment of rent. No failure by Landlord to insist upon the
strict performance by Tenant of Tenant's obligations to pay late charges shall
constitute a waiver by Landlord of its rights to enforce the provisions of this
section in any instance thereafter occurring, nor shall acceptance of late
charges be deemed to extend the time of payment of rental or any part thereof
hereunder. Tenant shall be allowed to be late in the payment of rent without the
imposition of a late charge one time in each calendar year.
Section 3.05 No Abatement, Deduction, or Set-off etc. The Basic Rent and
Additional Rent shall be paid to Landlord without notice or demand and without
abatement, deduction, set-off or counterclaim, except as provided herein.
ARTICLE 4
TAXES
Section 4.01 Real Estate Taxes Tenant shall, throughout the Term, pay
directly to the appropriate taxing authorities, on or before the taxes are due
and payable, without interest or penalty, all water and sewer rents, rates and
charges, licenses and permit fees, real estate taxes and assessments levied,
assessed, confirmed, imposed upon or against the Demised Premises or any part
thereof, including those presently in effect as well as those which may be
enacted in the future (collectively the "Impositions"). Tenant shall forward
copies of all receipted bills or statements therefor to Landlord upon receipt
thereof from said taxing authorities. Tenant shall also forward to Landlord all
notices which may be delivered to Tenant by reason of Tenant being listed on
the tax rolls as taxpayer.
Section 4.02 Other Taxes and Payment Thereof
(a) Other Taxes Arising Out of Tenant's Use and Occupancy. In addition to the
Impositions, Tenant shall pay, prior to its due date, each and every item of
expense in the nature of a tax or charge or assessment for which Landlord is
or shall become liable by reason of its estate or interest in the Demised
Premises, or any part thereof, including, without limiting the generality
thereof, all personal property taxes, gross receipts taxes, use and occupancy
taxes, and excise taxes levied or assessed against Landlord or Tenant by reason
of the use, occupancy or any other activity by the Tenant in connection with
the Demised Premises or any part thereof, or which may be levied or assessed or
imposed upon any rents or rental income, as such, payable to Landlord or
payable to Tenant from any Subtenant in connection with the Demised Premises or
any part thereof. Tenant shall forthwith forward copies of receipted bills or
statements therefor to Landlord evidencing the payment thereof.
(b) Payment of Bills In the event that the bills or statements issued by
the appropriate taxing authorities in respect of any Imposition or tax required
to be paid by Tenant pursuant to paragraph (a) of this Section 4.02 shall be
forwarded directly to Landlord, Landlord shall promptly forward the same to
Tenant, and Tenant shall pay the same before expiration of the time period set
forth above or within thirty (30) days after receipt of such xxxx or statement,
whichever is later. Landlord agrees, to cause to be served upon Tenant, copies
of such tax bills which Tenant is obligated to pay.
Section 4.03 Certain Taxes Not Payable by Tenant Tenant shall not be
required to pay any of the following taxes or governmental impositions which
shall be levied or imposed against Landlord by any governmental authority:
(i) Any estate inheritance, devolution, succession, transfer, legacy or gift
tax which may be imposed upon or with respect to any transfer of Landlord's
interest in the Demised Premises.
(ii) Any income tax levied upon or against the taxable income of the Landlord
from all sources provided, however, that if at any time during the Term the
method of taxation prevailing at the commencement of the Term shall be altered
so that any new tax, assessment, levy, imposition or charge,
shall be measured by or be based in whole or in part upon the Demised Premises
or the gross rental income thereof and shall be imposed upon Landlord then all
such taxes, assessments, levies, imposition or charges to the extent that they
are so measured or based, shall be deemed to be an imposition for the purpose
hereof, to the extent that such imposition would be payable if the Demised
Premises were the only property of Landlord subject to such Imposition and
Tenant shall pay and discharge the same as herein provided in respect of the
payment of any Imposition.
Section 4.04 Apportionment During First and Last Year of Term. All Impositions
which shall become payable during the fiscal tax year in which this Lease
commences or ends shall be apportioned between Landlord and Tenant in
accordance with the portion of the tax year within the Term.
Section 4.05 Tenant's Right to Contest Tenant may contest any Imposition by
diligently conducting proceedings in which event, upon Tenant's request and if
permitted by law, Tenant may postpone payment of such Imposition during such
contest if:
(a) Such postponement would not constitute a default under any Landlord's
mortgage;
(b) Landlord's interest in the Demised Premises would not be endangered
thereby; and
(c) Tenant deposits with Landlord the amount so contested unpaid, and annually
thereafter adds to such deposit such accrued interest and penalties as Landlord
reasonably estimates might be assessed against the Demised Premises in such
proceeding.
Upon the termination of such proceeding, Tenant shall pay the amount of such
Imposition (as finally therein determined) remaining unpaid and all interest
and penalties relating thereto or, upon Tenant's request, Landlord shall pay
such amount to the extent of the funds so deposited. Upon payment in full of
such amount, interest and penalties (whether by Landlord or Tenant), Landlord
shall return any then balance of the amount so deposited. Landlord shall, if
required through such proceedings and requested by Tenant, join in such
proceedings, cooperate with Tenant and execute requisite documents, provided
Tenant pays Landlord's resultant expenses.
Section 4.06 Assessments Payable in Installments With respect to any
assessment levied by any governmental or municipal agency or authority which is
or may be payable, at the option of the taxpayer, in installments, Tenant
agrees to pay Landlord, as additional rent, annually, from the date of payment
of the assessment, the installment due therefor, at least thirty (30) days
before the last day on which each such installment may be paid without penalty
or interest. Tenant shall not be required by pay any installment which shall
fall due after the expiration of this Lease.
ARTICLE 5
SECURITY
Section 5.01 Security Tenant has deposited with Landlord $50,000.00 as
security for the performance of Tenant's
obligations under the Lease. Landlord may use, apply or retain the whole or any
part of the security to the extent required to cure any default of Tenant's and
to reimburse Landlord for any damages or expenses (including, without
limitation, counsel fees) incurred by reason of such default, including, but
not limited to, any damages, deficiency or expenses in the reletting of the
Demised Premises, whether accrued before or after summary proceedings or other
re-entry by Landlord. This security shall be held by Landlord without interest
accruing to Tenant. If Tenant complies with all of its obligations hereunder,
the security shall be returned to it after the end of the Term and delivery of
possession of the Demised Premises to Landlord. In the event the Landlord shall
sell or assign the Premises then, upon such transfer, Landlord agrees to
transfer the security deposit to such transferee and Landlord shall thereupon
be released from all liability with respect to such security provided
transferee accepts the responsibility for the return of the security deposit.
Tenant shall not assign or encumber the security and neither Landlord nor its
successors or assigns shall be bound by any such assignment or encumbrance.
ARTICLE 6
INSURANCE TO BE PROVIDED BY TENANT
Section 6.01 Coverage and Amount During the Term, Tenant shall maintain
policies of insurance at its sole cost and expense as follows:
(i) Insurance against loss or damage to the Demised Premises by fire and from
such other hazards as may be covered by the form of "Special Causes of Loss"
then in effect (including specifically damage by water,) all in an amount
sufficient to prevent any co-insurance provision from becoming effective but in
any event in an amount not less than 100% of the then replacement value of the
Building without depreciation. This insurance shall include but not be limited
to the following:
a. Comprehensive coverage for boiler and other pressure vessels, and elevator
liability and collision if building contains such insurable objects; and
b. Insurance against riot or civil commotion, vandalism, aircraft, sprinkler
leakage, Special Causes of Loss or the equivalent, Agreed Amount endorsement,
"Demolition", "Increased Cost of Construction" and "contingent liability from
operation of building laws/increased time to rebuild". In addition to the
foregoing, such insurance shall include, but not be limited to windstorm, hail,
explosion, riot and civil commotion, damage from aircraft and vehicles, smoke
damage, flood, earthquake and such coverage as may be deemed necessary by the
Landlord. These insurance provisions shall in no way limit or modify any of the
obligations of the Tenant under any provision of this lease to restore the
Demised Premises.
Anything contained herein to the contrary withstanding, the insurance required
by this paragraph shall in all events be sufficient to comply with the
requirements of any fee mortgage and the replacement value which is agreed to be
$2,400,000 at the commencement of this lease. Landlord may in its reasonable
business judgment have Tenant change the replacement value but no more than
once annually. Landlord may demand that such replacement value be redetermined
from
time to time by an appraiser, engineer, architect or contractor designated and
paid for by Landlord. No omission on the part of Landlord to request any such
determination shall relieve Tenant of any of its obligations under this Article
6.
(ii) Rent insurance with "Special Causes of Loss" risk coverage in an amount
sufficient to cover the Basic Rent and Additional Rent for the period necessary
to reconstruct and restore the Premises to use and up to 360 days after
restoration of the Premises is completed shall be maintained by the Tenant with
the benefits payable to the Landlord.
(iii) If appropriate, boiler and machinery insurance including coverage for
pressure vessels with such limits as from time to time may be reasonably
required by Landlord, but not less than $500,000.00 per occurrence with
endorsement for actual replacement cost without depreciation.
(iv) Comprehensive public liability insurance (containing the so-called
"occurrence clause") against claims for personal injury, death and property
damage occurring in or about the Demised Premises, including but not limited
to, all, elevators, escalators and garages and any streets, alleys, sidewalks,
or parking areas, malls, vaults, passageways or common area appurtenant to the
Demised Premises; such insurance to afford minimum protection of $2,000,000.00
with respect to the property damage, personal injury or death of any one
person, $3,500,000.00 with respect to property damage, personal injury or death
occurring or resulting from one occurrence.
(v) If a sprinkler shall be located in any part of the Demised Premises,
sprinkler leakage insurance in amounts reasonably satisfactory to Landlord.
(vi) Such other insurance and in such amounts as may from time to time be
reasonably required by any fee mortgagee holding a first mortgage on the
Demised Premises against other insurable hazards, which at the time are
commonly insured against, in the case of premises similarly situated.
If by reason of changed economic conditions the insurance amounts referred to
above become inadequate, Tenant agrees to increase the amounts of such
insurance promptly upon Landlord's reasonable request.
All policies of insurance carried pursuant to this Article 6 shall name as
insured, the Tenant, Landlord, and if required, any fee mortgagee, as their
respective interests may appear, provided however, that rent insurance shall be
carried solely in favor of Landlord. To the extent Landlord receives and
applies proceeds of rent insurance, Tenant shall receive a credit against rent
payable hereunder.
Subject to the rights of any fee mortgagee, all losses paid under the policy or
policies under Article 6 shall be adjusted by Landlord and the proceeds
thereof shall be payable to the Landlord and Tenant as their interests may
appear and all such policies shall so provide.
Section 6.02 Forms, Certificates, Blanket Policies, Renewal, Cancellation All
premiums on policies referred to in this Lease shall be paid by the Tenant. The
originals of such policies or certificates shall be delivered to Landlord except
when such originals are required to be held by any fee mortgage, in which case,
certificates of insurance
shall be delivered to Landlord. Policies or certificates with respect to renewal
policies shall be delivered to Landlord by Tenant not less than thirty (30) days
prior to the expiration of the original policies or succeeding renewals, as the
case may be. In the event the Tenant is not able to deliver the insurance
policies or certificates prior to the renewal date as aforesaid, the Tenant may
deliver binders in lieu of such policies or certificates to the Landlord,
provided, however, that the insurance policies or certificates shall be
delivered within sixty (60) days after the expiration of the original policies
or succeeding renewals but in no event later than fifteen (15) days prior to the
expiration date of the binder. Premiums on policies shall not be financed in any
manner whereby the lender, on default or otherwise, shall have the right or
privilege of surrendering or cancelling the policies, provided however, that
Tenant may pay premiums in monthly installments. Each policy of insurance
required under this paragraph shall have attached there to an endorsement that
such policy shall not be cancelled or modified without at least thirty (30) days
prior written notice to the Landlord, unless, such cancellation is for
non-payment, and in that event, upon prior written notice of (15) days, and if
required, notice to any fee mortgagee. Each such policy shall contain: (a) a
provision that no act or omission of Tenant shall affect or limit the obligation
of the insurance company to pay the amount of any loss sustained and a provision
waiving any right of the insured against the Landlord.
SECTION 6.03 RECOGNIZED INSURANCE COMPANIES All insurance provided for in
this paragraph shall be effected under valid and enforceable policies issued by
insurers which are licensed to do business in the State of New Jersey and shall
be written on the standard policies of such companies and provide for no
deductibles.
SECTION 6.04 LANDLORD'S NON-LIABILITY, TENANTS OWN INSURANCE. To the extent
allowed by law, Tenant hereby waives all right to recovery which it might have
against Landlord, Landlord's agents and employees, for loss or damage to
Tenant's furniture, furnishings, fixtures, equipment, chattels and articles of
personal property located on the Demised Premises, nor shall Landlord be liable
for any business interruption, or injury to or death of persons occurring in the
Demised Premises, or in any manner growing out of or in connection with Tenant's
use and occupation of the lease premises or the condition thereof,
notwithstanding that such loss or damage may result from the negligence or fault
of Landlord. Tenant shall obtain insurance policies covering its furnishings,
fixtures, equipment and articles of personal property (collectively, "Personal
Property") in the Demised Premises, and Tenant shall either cause Landlord to be
named as an insured party under such policies (without entitling Landlord to
receive any loss proceeds thereof) or obtain the insurer's waiver of all rights
of subrogation against Landlord with respect to losses insured under such
policies.
Tenant shall advise Landlord promptly of the applicable provisions of such
insurance policies and notify Landlord promptly of any cancellation or change
therein. All insurance carried by Tenant as to the Demised Premises or as to
any property located thereon or therein, whether or not such insurance is
carried pursuant to this Lease, shall provide that the insurer waives all
rights of subrogation against Landlord with respect to losses insured under
such policies.
Section 6.05 Indemnity Tenant is and shall be in exclusive control and
possession of the Demised Premises as provided herein, and Landlord shall not in
any event whatsoever be liable for any injury or damage to any property or to
any person happening on or about the Demised Premises, nor for any injury or
damage to the Demised Premises, nor to any property of Tenant, or of any other
person contained therein.
Tenant shall indemnify and save Landlord harmless against and from all
liabilities, claims, suits, fines, penalties, damages, losses, fees, costs and
expenses (including reasonable attorney's fees) which may be imposed upon,
incurred by or asserted against Landlord by reason of:
(i) Any work or thing done in, on or about the Demised Premises or any part
thereof;
(ii) Any use, occupation, condition, operation of the Demised Premises or any
part thereof or of any street, alley, sidewalk, curb, vault, passageway, or
space, located on the Demised Premises or any occurrence on any of the same;
(iii) Any act or omission on the part of Tenant or any sub-tenant or any
employees, licensees or invitees;
(iv) Any accident injury (including death) or damage to any person or property
occurring in, on or about the Demised Premises; or any part thereof; and
(v) Any failure on the part of Tenant to perform or comply with any of the
covenants, agreements, terms or conditions contained in this Lease. The
provisions of this paragraph shall survive the expiration or earlier
termination hereof.
Section 6.06 Landlord's Non-Liability As a consideration for the making of
the Lease, the Landlord shall not be liable for any failure of water supply or
electric current, nor for injury or damage which may be sustained to any person
or property by the Tenant or any other person caused by or resulting from
steam, electricity, gas, water, rain, ice, hail or snow which may leak or flow
from or into any part of said building or from the breakage, leakage,
obstruction or other defect of the pipes, wiring, appliances, plumbing or
lighting fixtures of the same, the condition of said premises or any part
thereof, or from the street or subsurface, or from any other source of cause
whatsoever, whether the same damage or injury shall be caused by or be due to
the negligence of the Landlord, the Landlord's agent, servant or employee.
"Notwithstanding anything else herein to the contrary, the Landlord shall be
liable for any injuries or damages arising out of its gross negligence or
willful misconduct."
ARTICLE 7
RESTORATION OF DEMISED PREMISES IN THE EVENT OF
FIRE OR OTHER CASUALTY
Section 7.01 No Abatement No damage to the Building by fire or other casualty
shall terminate the Lease or relieve Tenant either from payment of Basic Rent,
Impositions and Additional Rent, or from the performance of Tenant's other
obligations hereunder. Notwithstanding anything herein to the contrary, Tenant
shall be entitled to be reimbursed for Basic Rent and Additional Rent to the
extent Tenant has paid same to Landlord and to the extent Landlord collects
same from Tenant's insurance company.
Section 7.02 Landlord's Restoration During the Term, Tenant shall promptly
notify Landlord if the Premises shall be damaged by fire or other casualty and
Landlord, at Tenant's expense (as provided in Section 7.03 below), shall within
one (1) year, as may be extended by force majeure, repair such damage and
restore the Premises to substantially the condition it was in prior to such
fire or casualty, provided, however, that Landlord shall have no obligation to
repair any damage to or to replace Tenant's alterations or personal property or
fixtures. In the event the repair or restoration is not complete within the
time allowed hereinabove, Tenant shall have a one time right to terminate this
Lease by giving Landlord written notice of such termination within thirty (30)
days of the date of the casualty. Tenant shall have the right to terminate this
Lease in the event the fire or casualty renders the Premises untenable (as
defined in the rent insurance policy) by giving Landlord written notice of
such termination within thirty (30) days of the date of the casualty provided
the benefits of the rent insurance policy described in section 6.01 (11) are
paid to the Landlord.
Section 7.03 Tenant's Insurance Tenant shall deposit with Landlord a sum
sufficient to fund Landlord's reasonable estimate of the cost of restoration,
less any insurance proceeds actually theretofore received by the Landlord from
Tenant's insurance company. In the event Tenant's insurance company has not paid
to Landlord the insurance proceeds, then, Tenant shall pay the full amount to
Landlord, and, upon such payment, Tenant shall receive the insurance recovery
from Tenant's insurance company up to an amount equal to the amount deposited
with Landlord in accordance with Landlord's reasonable estimate of the
restoration. In the event Tenant shall dispute Landlord's estimate, Tenant
shall, in all events, deposit with Landlord an amount equal to Landlord's
estimate, subject, however, to Landlord's architect certifying to Tenant and
Landlord the estimated cost of restoration. To the extent there is a dispute as
to Landlord's reasonable estimate of the cost of restoration, the disputed
amount will be held in escrow until final determination of the cost of
restoration, at which such time the escrowed amount shall be released to the
prevailing party. Any deficiency in restoration cost, if any, shall be paid to
Landlord by Tenant. "Notwithstanding anything herein to the contrary, the sum
paid by Tenant to Landlord for replacement or reconstruction of the Premises
shall not exceed the replacement value of the Premises as established by the
Landlord pursuant to Section 6.01 or as later amended."
Section 7.04 Tenant's Termination In the event that any casualty shall
occur within one (1) year prior to the expiration of the Lease or any extension
thereof, then Tenant shall have the following right to terminate this Lease
provided that:
(a) Landlord has been paid a sum from either Tenant or by reason of Tenant's
rent insurance equal to the rent which would otherwise accrue until the end of
the term, or until the building could be restored, including additional rent
items such as taxes and insurance premiums; and
(b) Tenant deposits with Landlord a sum sufficient to fund Landlord's
reasonable estimate of the cost of restoration as provided for in Section 7.03;
and
(c) For Tenant to exercise its rights hereunder, Tenant must within thirty
(30) days after the casualty, elect in writing by notice to Landlord, which
notice shall state that Tenant is electing to terminate this Lease. Tenant's
election shall only be valid if Tenant pays to Landlord the monies due by
Tenant to Landlord under Subparagraphs (a) and (b) above, which must be paid by
Tenant to Landlord within ninety (90) days of the date of the casualty (subject
to the provisions
of Section 7.03). The lease shall terminate as of the date Tenant pays in full
to Landlord the sums of money due under Subparagraphs (a) and (b) above.
ARTICLE 8
REPAIRS, MAINTENANCE, UTILITIES, CHANGES AND ALTERATIONS
COMPLIANCE WITH ORDERS, ETC., EASEMENTS
Section 8.01 Tenant's Repairs and Maintenance Tenant for and during the Term,
at Tenant's sole cost and expense assumes all responsibility and obligation for
the physical condition of the Demised Premises and its sidewalks, curbs, ground,
parking area and utilities, and shall keep the same in good order and first
class condition free of accumulation of dirt, rubbish, snow and ice, and shall
make all necessary repairs thereto, interior and exterior, structural and
non-structural, ordinary and extraordinary and foreseen and unforeseen. When
used in this Article, the term "repairs" shall include all necessary
replacements and renewals. All repairs made by Tenant shall be equal in quality
to the original work. The lawns, shrubs and other vegetation will be maintained
and, when required, replaced or renewed all in accordance with Landlord's lawn
and landscaping maintenance specifications. Tenant shall obtain a roof
maintenance contract and a maintenance contract for the heating, ventilation and
air conditioning systems in the Building. Such contracts shall provide for
annual maintenance of the roof and the HVAC systems and copies of the
maintenance agreements shall be submitted to Landlord, together with an annual
report by the maintenance company as to the condition and repairs made to the
roof and the HVAC systems. In the event the Tenant shall fail to maintain the
premises as aforesaid, the Landlord may serve notice upon the Tenant to correct
same and if the Tenant shall fail to do so within 15 days after notice, or,
within a reasonable time period as may be required to make such repair, the
Landlord is authorized to take whatever action the Landlord deems reasonably
necessary to maintain the Demised Premises, all at the expense of the Tenant.
The Tenant shall under no circumstances, paint either the inside or the outside
of the masonry walls without first obtaining Landlord's written consent. Upon
surrender, if Tenant shall violate this undertaking, then, Tenant shall cause
any such painting to be removed and the finish restored to its original
condition.
Section 8.02 Landlord's Repairs Landlord, at its sole cost and expense, shall
remedy all defects in workmanship and materials in the premises, evidence of
which shall appear or be discovered within twelve (12) months after the
commencement date and shall repair all damage to the Demised Premises caused
thereby. Landlord shall assign to Tenant any guarantees or warranties received
from suppliers and manufacturers. Landlord shall not be liable for repairs under
this section however, unless Tenant shall give Landlord notice of such defects
or the need for remedying them on or before the last day of the twelfth month of
the Term. Notwithstanding the foregoing, if Tenant shall make any change or
alterations, structural or otherwise, to any portion of the Building, Landlord's
obligation as heretofore provided shall not thereafter extend to any portion of
the Building so changed or altered by Tenant, or to any portion of the Building
affected by such change or alteration. Landlord's liability under this provision
is limited to repair or correction of the defect or condition to be rectified
and Landlord shall not be liable for any consequential loss or damage. "Landlord
warrants and represents that the foundation, structural walls, structural steel,
the roof, HVAC, plumbing, electricity and pavement are in good working order and
condition as of the start of the term. The Landlord warrants and represents
that, to the best of its knowledge, the Premises complies with all applicable
federal, state and local rules and regulations and zoning requirements as of
the start of the term. Landlord at its sole cost and expense, shall remedy all
defects in workmanship and materials in the foundation, structural walls and
structural steel, evidence of which shall appear or be discovered within
thirty-six (36) months after the commencement date and shall repair said
damage after receipt of notice by Tenant of said needed repair. Nothing herein
to the contrary shall relieve the Tenant of its obligation to maintain all of
the Premises as contained herein from the start of the term.
Section 8.03 Utilities Tenant shall make arrangements directly with the
appropriate utility companies for the supply of gas, electricity, water, light,
power, telephone and shall pay all fees, expenses and charges therefore to such
companies.
Section 8.04 Tenant's Responsibility Except as provided in Section 8.02,
Section 8.12, and Section 8.13 Landlord shall not be required to furnish any
services or facilities or to make any repairs or alterations in or to the
Building or the Demised Premises and, except as aforesaid, Tenant assumes the
full responsibility for the condition, operation, repair, replacement,
maintenance and management of the Demised Premises.
Section 8.05 Compliance During the Term, Tenant, at its cost, shall
promptly comply with all present and future laws, ordinances, or other
governmental regulations and all present and future applicable requirements of
the Fire Insurance Rating Organization of New Jersey (or other body exercising
similar functions), whether or not the same requires structural repairs or
alterations, foreseen or unforeseen, ordinary as well as extraordinary, which
may be applicable to the Demised Premises the fixtures and equipment thereof,
or the use or manner of use of the Demised Premises. Tenant agrees to comply
with all zoning ordinances and the responsibility for specific use or uses
shall be that of the Tenant and the Landlord makes no representation as to any
permissive use.
Tenant may contest the validity of any such requirement at its expense and
defer compliance therewith pending such contest, provided such deferral shall
neither constitute a default under any mortgage of the Landlord or cause the
imposition of any lien against the Demised Premises nor subject Landlord to any
criminal or civil liability.
Section 8.06 Compliance with ECRA and other Environmental Laws Within ten
(10) days from the date of the execution of this Lease, Tenant shall certify in
writing to Landlord, the Tenant's "Standard Industrial Classification Number"
as designated in the "Standard Industrial Classification Manual prepared by the
Office of Management and Budget in the Executive Office of the President of the
United States." In the event Tenant or any other permitted occupant of the
Premises, has a different Standard Industrial Classification Number, Tenant,
within ten (10) days of such occupant taking possession of the Premises or,
upon the change of such Standard Industrial Classification Number will advise
Landlord of such new or changed Standard Industrial Classification Number
hereinafter called the "S.I.C. Number". In the event, either Landlord or
Tenant, by law, or regulations enacted pursuant thereto, is required to file
any forms, information, affidavits, certifications, clean up plans, negative
declarations or other documentation with the appropriate Governmental Agency
Tenant shall file such information, affidavits, certifications, clean up plans,
negative declarations or other documentation with the appropriate Governmental
Agency as may be required by law. If ECRA Compliance becomes necessary due to a
change in ownership of the premises, initiation of bankruptcy
proceedings, or Landlord's financial reorganization or sale of a controlling
interest of the partnership, then, Landlord shall, initiate the filing with the
New Jersey Department of Environmental Protection provided however, that Tenant
shall provide all information within Tenant's control requested by Landlord for
preparation of Landlord's submission if Landlord should so request and Tenant
shall execute such affidavits and submissions as reasonably requested by
Landlord to accomplish such filing. In the event, where Landlord initiates such
filing, and, a bond or other financial surety must be deposited with the
Department of Environmental Protection, then Tenant shall have no obligation to
provide such bond or financial assurance if, Tenant has not caused such spill
or discharge or a hazardous substance or waste at the premises. If however,
Tenant is the cause of such spill or discharge of a hazardous substance or
waste at the premises, then, Tenant shall undertake the responsibility, to
remedy such condition, and shall post such bond or other financial surety which
is required to be deposited with the Department of Environmental Protection.
Section 8.07 Alterations During the Term, Tenant may, at its cost, make
non-structural alterations to the Demised Premises necessary for the conduct of
its business, subject to the following:
a. Tenant shall first obtain requisite permits and authorizations from
governmental authorities having jurisdiction;
b. Obtain Landlord's, and if required, the fee mortgagee's prior written
consent.
c. Any alterations shall be made promptly (unavoidable delays excepted), in a
workmanlike manner in accordance with any alteration plans and in compliance
with applicable laws and governmental regulations;
d. The cost of the alterations shall be paid by Tenant so that the Demised
Premises remains free of any liens;
e. If requested by Landlord, post with Landlord adequate security to assure
restoration of the premises at the end of the Term;
f. Tenant shall maintain Xxxxxxx'x Compensation Insurance covering all
persons on whose behalf death or injury claims could be asserted, until the
alteration is completed;
g. At the completion of the alteration or restoration under this certified
article, "As Built" plans to be delivered to the Landlord.
h. Tenant at its own cost and expense may install an alarm system in the
Demised Premises.
Section 8.08 Restoration Any alteration made by Tenant under Article 8
hereof shall become Landlord's property or, at the election of Landlord, shall
be removed by the Tenant thirty (30) days prior to the termination of the Term
and the Demised Premises shall be restored to its condition prior to such
alteration. Under no circumstances shall any structural alterations be
undertaken without the written consent of the Landlord, which consent may be
unreasonably withheld. In the event Landlord does consent to structural
alterations, detailed plans and drawings by a licensed architect shall be
submitted to and approved in writing by Landlord and if required by the fee
mortgagee.
Section 8.09 Landlord hereby reserves to itself, its successors and assigns
the right to construct, maintain and use ingress and egress easements, R.R.
easements, utility
Demised Premises, to or from other lands now owned or in the future acquired by
the Landlord, provided however, that the same be at the cost of the Landlord and
does not unreasonably interfere with the use of the Demised Premises by the
Tenant.
Section 8.10 Tenant's Compliance with Environmental Laws Subject to
Sections 8.06 and 8.11, Tenant shall, at Tenant's own expense, comply with the
Environmental Cleanup Responsibility act, N.J.S.A. 13:1k-6 et seq., and the
regulations promulgated thereunder ("ECRA"). Tenant shall, at tenant's own
expense, comply with all federal, state or local environmental laws, ordinances,
rules and regulations. Tenant shall, at Tenant's own expense, make all
submission to, provide all information to, and comply with the requirements of
the Bureau of Industrial Site Evaluation ("the Bureau") of the New Jersey
Department of Environmental Protection ("NJDEP") and such other federal and
state agencies as may be required by law. Should the Bureau or any other
division of NJDEP or other federal or state agency determine that a cleanup plan
be prepared and that a cleanup be undertaken because of any spills or discharges
of hazardous substances or wastes at the premises which occurred during the term
of this Lease, then Tenant shall, at Tenant's own expense, prepare and submit
the required plans and financial assurances and carry out the approved plans. If
Tenant obtains a non-applicability exemption, or otherwise is not required to
provide a sampling plan, then Tenant shall, at Landlord's option, and at
Tenant's expense, hire a consultant satisfactory to Landlord to undertake
sampling at the premises sufficient to determine whether or not Tenant's
operation have resulted in a spill or discharge or hazardous substances or
wastes at the premises. Should the sampling reveal any spills or discharges of a
hazardous substances or waste, then Tenant shall, at Tenant's expense, promptly
clean up the premises to the satisfaction of Landlord, and all the applicable
government agencies which may or may not have jurisdiction of the matter.
Tenant's obligations under this paragraph shall arise if there is a spill or
discharge of hazardous substances or waste at the premises or if there is any
closing, termination or transferring of operation of an industrial establishment
at the premises or any other triggering event happens pursuant to ECRA or any
other applicable law or regulation. At no expense to Landlord, Tenant shall
promptly provide all information requested by Landlord for preparation of
non-applicability affidavits or ECRA affidavits, and shall promptly sign such
affidavits when requested by Landlord. Tenant shall indemnify, defend and save
harmless the Landlord from all fines, suits, procedures, claims and actions of
any kind arising out of or in any way connected with any spills or discharges of
hazardous substances or wastes at the premises which occurred during the term of
this Lease and from all fines, suits, procedures, claims and actions of any kind
arising out of Tenant's failure to provide all information, make all submission
and take all actions required by the ECRA, the Bureau, or any other division of
NJDEP, or with any other governmental agency which has jurisdiction over the
matter. Tenant shall promptly supply Landlord with copies of any notices,
correspondence and submission made by Tenant to NJDEP, the United States
Environmental Protection Agency ("EPA"), United States Occupational Safety and
Health Administration ("OSHA"), or any other local, state of federal authority
which requires submission of any information concerning environmental matter or
hazardous wastes or substances.
Section 8.11 The undertaking of the Tenant hereunder for compliance with ECRA
shall survive the termination of this Lease provided and subject, however, that
Tenant shall only assume responsibility for noncompliance with environmental
laws which occurred during Tenant's lease term. If Tenant can prove in a
reasonable manner that a violation of the environmental laws did not occur
during Tenant's lease term then as to such events, Tenant shall have no
responsibility or liability as to any such noncompliance.
Section 8.12 Landlord represents that it knows of no hazardous waste located
on the Demised Premises and that all provisions of ECRA as pertained to the
previous Tenant have been fulfilled. Landlord further represents that it knows
of no asbestos on the Demised Premises. Notwithstanding anything herein to the
contrary, Tenant shall not be responsible for any costs or damages arising out
of preexisting hazardous and asbestos environmental conditions.
Section 8.13 "Notwithstanding anything else to the contrary herein, the cost
of any and all repairs or replacement made by the Tenant to the foundation,
structural walls and structural steel shall be shared between the Landlord and
Tenant upon the following formula: The Tenant shall pay a portion of the cost
based on a fraction, the numerator of which is the number of months remaining
on the term of the Lease and the denominator of which is 84. The foregoing
shall not apply to repairs or replacement of the Premises pursuant to fire or
casualty. Nothing herein to the contrary shall relieve the Tenant of its
obligation to maintain all of the Premises as contained herein."
ARTICLE 9
LEASE PROVISION AGAINST ASSIGNMENT, MORTGAGE, OR SUBLET BY TENANT WITHOUT
LANDLORD'S PERMISSION: LANDLORD'S RIGHT OF RECAPTURE
Section 9.01 Tenant covenants and agrees for Tenant and its successors,
assigns, and legal representatives that neither this Lease nor the term and
estate hereby granted, nor any part hereof or thereof, will be assigned,
mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily,
involuntarily, by operation of law, or otherwise), and that neither the Demised
Premises, nor any part thereof, will be encumbered in any manner by reason of
any act or omission on the part of Tenant, or will be used or occupied, or
permitted to be used or occupied, or utilized for desk space or for mailing
privileges or as a concession, by anyone other than Tenant, or for any purpose
other than as hereinbefore set forth, or will be sublet, without the prior
written consent of Landlord in every case; provided, however, that, if Tenant
is a corporation, the assignment or transfer of this Lease, and the term and
estate hereby granted, to any corporation into which Tenant is merged (such
corporation being hereinafter in this Article called "Assignee") without the
prior written consent of Landlord shall not be deemed to be prohibited hereby
if, and upon the express condition that, Assignee shall promptly execute,
acknowledge, and deliver to Landlord an agreement in form and substance
satisfactory to Landlord whereby Assignee shall assume and agree to perform and
to be personally bound by and upon, all the covenants, agreements, terms,
provisions, and conditions set forth in this Lease on the part of Tenant to be
performed, and whereby notwithstanding such assignment or transfer, continue to
be binding upon it with respect to all future assignments and transfers and
provided such Assignee shall prove to the satisfaction of Landlord that its
financial ability is able to fulfill its obligations. "Notwithstanding anything
herein to the contrary, the Tenant may, without the Landlord's consent, assign
the Lease to any parent or subsidiary company or any other company with which
Tenant is affiliated by an equity relationship provided the assignee agrees to
be bound in writing by the terms and conditions of the Lease prior to the
effective date of the assignment."
Section 9.02 Notwithstanding anything contained in Section 9.01 hereinabove,
in the event Tenant desires Landlord's consent to an assignment or subletting
of all or any part of the Demised Premises, Tenant shall first, by notice in
writing:
(a) notify Landlord of the name of the proposed assignee or subtenant, such
information as to the proposed assignee's or subtenant's financial responsible
and standing as Landlord may require, and
(b) send a copy of the proposed assignment or sublease agreement executed by all
parties; and
(c) shall offer to vacate the space covered by the proposed area to be
subleased or assigned and shall offer to surrender the same to Landlord as of a
date (the "Surrender Date") specified in said offer (that shall be the last day
of any calendar month during the term hereof, provided, however, that the
Surrender Date shall not be earlier than the date occurring 90 days after the
giving of such notice nor be later than the effective date of the proposed
assignment or the commencement date of the term of the proposed sublease).
Landlord may accept such offer to vacate in writing by notice to Tenant given
within sixty (60) days after the receipt of such notice from Tenant. If,
Landlord accepts such offer, Tenant shall surrender to Landlord, effective as of
the Surrender Date, all Tenant's right, title and interest in and to the portion
of or all of the Demised Premises covered by the proposed sublease, or
assignment. In the event of such surrender by Tenant of a portion of the Demised
Premises, then, effective as of the date immediately following the Surrender
Date, the Basic Rent shall be is allocable to the space so surrendered, and the
Additional Rent shall be equitably adjusted. If the entire Premises be so
surrendered by Tenant, this Lease shall be cancelled and terminated as of the
Surrender Date with the same force and effect as if the Surrender Date were the
date hereinbefore specified for the expiration of the full term of this Lease.
In the event of any such surrender by Tenant of the Demised Premises or a
portion thereof, Landlord and Tenant shall, at the request of either party,
execute and deliver an agreement in recordable form to the effect(s)
hereinbefore stated.
Section 9.03 In the event Landlord does not accept such offer of Tenant
referred to in Section 9.02 hereof, Landlord covenants not to unreasonably
withhold its consent to such proposed assignment or subletting by Tenant of
such space to the proposed assignee or subtenant on said covenants, agreements,
terms, provisions, and conditions set forth in the notice to Landlord referred
to in clause (a) and (b) of the first sentence of Section 9.02 hereof;
provided, however, that Landlord shall not in any event be obligated to consent
to any such proposed assignment or subletting unless:
(a) The use of the proposed assignee or subtenant is for warehousing of
products which are not "hazardous substances" and the proposed assignee or
subtenant is a reputable party of equal or greater financial ability and
creditworthiness; and
(b) The proposed assignee or subtenant shall be the actual user of the Premises
and shall agree that it shall not have the right to resublease the Premises or
subsequently assign the Lease;
(c) There shall be no default by Tenant under any of the terms, covenants, and
conditions of this Lease at the time that Landlord's consent to any such
assignment or subletting is requested and on the effective date of the
assignment of the proposed sublease;
(d) Tenant shall reimburse Landlord for any reasonable expenses that may be
incurred by Landlord in connection with the proposed assignment or sublease,
including without limitation the reasonable costs of making investigations as
to the acceptability of a proposed assignee or subtenant and reasonable legal
expenses not to exceed $1,000.00 incurred in connection with the granting of
any requested consent to the assignment or sublease;
(e) Such permitted assignment shall be conditioned upon Tenant's delivery to
Landlord of an executed instrument of assignment (wherein the assignee assumes,
jointly and severally with Tenant, the performance of Tenant's obligations
hereunder);
(f) Such permitted sublease shall be conditioned upon Tenant's delivery to
Landlord of an executed instrument of sublease (wherein Tenant and such
sublessee agree that such sublease is subject to the Lease and such sublessee
agrees that, if the Lease is terminated because of Tenant's default, such
sublessee shall, at Landlord's option, attorn to Landlord).
(g) Tenant's operations have caused no discharge or spill of hazardous
material or waste at the Premises which would require a clean up plan under the
provisions of ECRA, or
(h) Landlord shall have the right to withhold consent to a sublease or
assignment until such a time as Tenant has delivered to Landlord the report of
an independent engineering consultant chosen as provided herein, stating that
after examining the premises and undertaking all sampling deemed necessary by
the consultant, the consultant has found that:
(a) Tenant's operations have caused no discharge or spill of hazardous
material or waste at the Premises which would require a clean up plan under the
provisions of ECRA, or
(b) If such consultant does find that such spill or discharge has occurred,
until such time as the consultant delivers a report stating that a cleanup has
been completed so that there is no longer such waste or hazardous substance on
the premises which would require any further possible cleanup action under ECRA.
(c) The consultant shall be chosen by Tenant from a list of five independent
engineering consultants familiar with the requirements of ECRA nominated by
Landlord. Upon written request of Tenant, Landlord shall provide such a list of
five independent environmental engineering consultants within ten (10) days, or
if Landlord shall fail to provide such a list within ten (10) days, Tenant
shall have the right to contact a consultant of their own choice.
(d) In addition to the requirements of (i) above, upon such Sublease or
Assignment, Tenant shall be responsible to obtain ECRA Clearance as that term
is defined in the Surrender Clause of this Lease, below. Tenant shall not be
responsible to obtain said clearance prior to the commencement of the sublease
or assignment term if it is not possible, but shall begin the process of
obtaining clearance prior to the beginning of the sublease or assignment and
shall complete such ECRA clearance with due speed and diligence and in no less
than one year following the commencement of the sublease or assignment term, or
the natural expiration date of the lease, which ever is sooner.
Section 9.04 Additional Security In the event Tenant shall assign or
sublease the Premises, then Tenant shall deposit with the Landlord an
additional security amount so that the
security herein shall be equal to the last three (3) months rent. Such
assignment or sublet by Tenant to Landlord pursuant to the terms hereof
Section 9.05 Each subletting pursuant to this Article shall be subject to all
the covenants, agreements, terms, provisions, and conditions contained in this
Lease. Tenant covenants and agrees that, notwithstanding such assignment or any
such subletting to any subtenant and/or acceptance of Basic Rent or Additional
Rent by Landlord from any subtenant, Tenant shall and will remain fully liable
for the payment of the Basic Rent and Additional Rent due and to become due
hereunder and for the performance of all the covenants, agreements, terms,
provisions, and conditions contained in this Lease on the part of Tenant to be
performed. Tenant further covenants and agrees that, notwithstanding any such
assignment or subletting, no other and further assignment, underletting, or
subletting of the Demised Premises or any part thereof shall or will be made
except upon compliance with, and subject to the provisions of this Article.
Tenant shall promptly furnish to Landlord a copy of each such sublease.
Section 9.06 If this Lease be assigned, or if the Demised Premises or any part
thereof be sublet or occupied by anyone other than Tenant Landlord may, after
default by Tenant, collect rent from the assignee, subtenant, or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, subletting, occupancy, or collection shall be deemed a waiver by
Landlord of any of Tenant's covenants contained in this Article or the
acceptance of the assignee, subtenant, or occupant as Tenant, or a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant
herein contained.
Section 9.07 If for any assignment or sublease, Tenant receives rent or other
consideration, either initially, or over the term of the assignment or sublease,
in excess of the rent called for hereunder, or in the case of the sublease of a
portion of the Demised Premises, in excess of such rent fairly allocable to such
portion, after appropriate adjustment to assure that all other payments called
for hereunder are appropriately taken in to account, Tenant shall pay the
Landlord, as additional rent hereunder, one half (1/2) of the excess of each
such payment of rent or other consideration received by Tenant promptly after
its receipt.
ARTICLE 10
LANDLORD'S REMEDIES IN EVENT OF TENANT'S DEFAULT OR BANKRUPTCY
Section 10.01 Events of Default If any one or more of the following events
(hereinafter called "events of default") occurs:
(a) Tenant shall default in payment of any installments of rent of other sums
required to be paid by Tenant under this Lease; or in the observance or
performance of any other covenant or provision of this Lease and such default
continues for ten (30) days after notice of such default from Landlord unless
such default cannot be cured within said ten (30) days and Tenant commences to
cure such default within such ten (10) days and diligently proceeds to cure such
default; or
(b) If the Demised Premises shall be left vacant or unoccupied or be deserted or
abandoned for a period of thirty (30) days; except if the Demised Premises is
under the surveillance of a security system or guard, or
(c) If Tenant shall make an assignment for the benefit of creditors or shall
assign or sublet, except as permitted hereunder; or
(d) A voluntary petition is filed by Tenant under any laws for the purpose of
adjudication of Tenant as a bankrupt or the extension of the time of payment,
composition, arrangement, adjustment, modification, settlement or satisfaction
of the liabilities of Tenant, or the reorganization of Tenant under the
Bankruptcy Act of the United States or any future laws of the United States
having the same general purpose, or receivers appointed for Tenant by reason of
insolvency or alleged insolvency of Tenant; an involuntary petition shall be
filed against Tenant for such relief and shall not be dismissed within thirty
(30) days;
Landlord, notwithstanding any other right or remedy it may have under the Lease,
at law or in equity, may terminate the Lease, by notice to Tenant setting forth
the basis therefor and effective not less than five (5) days thereafter,
whereupon, upon such effective date, the Lease shall terminate (with the same
effect as if such date were the date fixed herein for the natural expiration of
the Term), Tenant shall surrender the Demised Premises to Landlord and Tenant
shall have no further rights hereunder, but Tenant shall remain liable as
hereinafter provided. In such event, Landlord may, without further notice, enter
the Demised Premises, repossess the same and dispossess Tenant and all other
persons and property therefrom.
Section 10.02 Landlord's Damages If Landlord so terminates the Lease,
Tenant shall pay Landlord, as damages:
(a) A sum which represents any excess of (i) the aggregate of the rent,
impositions and additional rent for the balance of the term if the Lease were
not so terminated, over (ii) the net rental value of the Demised Premises at the
effective date of such termination, both discounted at the rate of four (4)
percent per annum; or, at Landlord's option;
(b) Sums equal to the rent, impositions and additional rent, when the same would
have been payable if not for such termination less any net rents impositions or
additional rent received by Landlord from any reletting, after deducting all
costs incurred in connection with such termination and reletting (but Tenant
shall not receive any excess of such net rents over such sums).
Landlord may commence actions or proceedings to recover such damages or
installments thereof at any lawful time. No provisions hereof shall be construed
to preclude Landlord's recovery from Tenant of any other damages to which
Landlord is lawfully entitled.
Section 10.3 Nonexclusivity No right or remedy herein conferred upon
Landlord is intended to be exclusive of any other right or remedy herein or by
law provided, but each shall be cumulative and subject to the grace and notice
provisions of Section 10.01 hereof, in addition to every other right or remedy
given herein or now or hereafter existing at law or in equity or by statute.
Section 10.04 Landlord's Right to Perform Tenant's Covenants If Tenant
shall fail to pay any tax, pay for or maintain or deliver any of the insurance
policies or shall fail to make any other payment or perform any other act which
Tenant is obligated to make or perform under this Lease, then, Landlord after
notice to Tenant may perform for the account of Tenant any covenant in the
performance of which Tenant is in default. Tenant shall pay to the Landlord as
additional rent, upon demand, any amount paid by Landlord in the performance of
such covenant in any amount which Landlord
shall have paid by reason of failure of Tenant to comply with any covenant or
provision of the Lease, including reasonable attorney fees incurred in
connection with the prosecution or defense of any proceedings instituted by
reason of default of Tenant, together with interest at the maximum lawful rate
of interest then allowed by the State of New Jersey, or two (2%) percent per
month whichever is greater from the date of payment by Landlord until paid by
Tenant.
Section 10.05 No Waiver No waiver by Landlord of any breach by Tenant of any of
Tenant's obligations hereunder shall be a waiver of any subsequent breach or of
any obligation, agreement or covenant, nor shall any forbearance by Landlord to
seek a remedy for any breach by Tenant be a waiver by Landlord of Landlord's
rights and remedies with respect to such or by subsequent breach.
Section 10.06 Right of Re-Entry In the event that the termination of this Lease
is the result of any election exercised by Landlord pursuant to the terms of
this Article, the Landlord shall be entitled to the rights, remedies and damages
set forth in this Article and elsewhere in this Lease. Tenant waives the service
of notice of intention to re-enter as provided for in any statute and also
waives any and all right of redemption in case Landlord obtains possession by
reason of Tenant's default. Tenant waives any and all right to a trial by a jury
in the event that summary proceedings shall be instituted by Landlord. The terms
"enter", "re-enter", "entry" or "re-entry", as used in this Lease are not
restricted to their technical legal meaning.
ARTICLE 11
SUBORDINATION OF LEASE TO MORTGAGES
ON THE DEMISED PREMISES
Section 11.01 Subordination: Quiet Enjoyment The Lease shall be subject and
subordinate to any mortgage which may be of record on the Premises Demised
hereunder as of this date. This Lease shall further be subject and subordinate
to any mortgage which may at any time exist on the Demised Premises or may be
placed on the Demised Premises ("Mortgage") and any renewal, replacement,
extension or consolidation thereof, which provides that so long as Tenant is
not then guilty of an Event of Default (as defined in Article 10), the
Mortgage, in any action or proceeding to foreclose the Mortgage or enforce the
debt secured thereby, shall neither terminate nor attempt to terminate the
Lease, disturb Tenant's possession of the Demised Premises nor join Tenant as
a party to such action or proceeding.
Section 11.02 Attornment Agreement This Article shall be self-operative but
Tenant shall promptly, upon Landlord's request, execute and deliver proper
instruments subordinating the Lease to the Mortgage, agreeing to attorn to the
Mortgagee (at the Mortgagee's request) in the event the Mortgagee, by
foreclosure or otherwise, terminates Landlord's interest in the Demised
Premises and agreeing further to notify the Mortgagee of any default by
Landlord hereunder and afford the Mortgagee reasonable opportunity to remedy
such default should it wish to do so. The Tenant hereby appoints the Landlord
the attorney-in-fact of the Tenant, irrevocably to execute and deliver such
instruments, releases or other documents for or on behalf of Tenant. In the
event Landlord is in default of any future mortgage and Landlord or Mortgagee
notifies Tenant that the rent should be paid to the Mortgagee, Landlord hereby
consents to Tenant paying the rent to the Mortgagee of the Demised Premises.
ARTICLE 12
EXONERATION OF INDIVIDUALS
Section 12.01 Exoneration Neither Landlord, nor its successors or assigns,
shall have any personal liability in respect to any of the covenants or
conditions of this Lease. The Tenant shall look solely to the equity of the
Landlord in the Demised Premises for satisfaction of the remedies of the
Tenant in the event of a breach by the Landlord of any of the covenants or
conditions of this Lease and no other property or assets of Landlord shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenant's remedies in the event of a breach or violation by Landlord of any
of the terms of this Lease or any other liability which the Landlord might have
to the Tenant. Landlords liability herein shall be limited to $2,400,000.00
from damages arising out of environmental non compliance by the Landlord. For
purposes of this section, "equity" includes rent, insurance proceeds, sales
proceeds or other money derived from the Premises.
ARTICLE 13
COVENANT AGAINST LIENS
Section 13.01 No Liens Tenant shall neither create nor permit to be created
or exist any lien or encumbrance affecting the Demised Premises and shall
discharge, promptly upon notice, any lien or encumbrance arising out of any act
or omission of Tenant. Notice is hereby given that Landlord shall not be liable
for any work performed or to be performed at the Demised Premises for Tenant,
or for any materials furnished or to be furnished at the Demised Premises for
Tenant, upon credit and that no mechanic's or other lien for such work or
materials shall attach to or affect the estate or interest of Landlord in and
to the Demised Premises.
ARTICLE 14
EMINENT DOMAIN
Section 14.01 Total Condemnation If at any time during the Term the whole of
the Building shall be taken for any public or quasi-public use under any
statute, or by right of eminent domain, the Term and all rights of the Tenant
shall immediately cease and terminate as of the date of such taking, and the
Basic Rent and Additional Rent shall be apportioned and paid to the time of such
termination.
Section 14.02 Partial In the event that only a part of the Building area shall
be so taken, such building area being 50,000 square feet or less, either the
Landlord or the Tenant may elect to cancel this Lease provided such cancelling
party, within ninety (90) days after such taking, gives notice to that effect
and upon the giving of such notice, the Basic Rent and Additional Rent shall be
apportioned and paid to the date of the expiration of the Term and this Lease
and the Term shall cease, expire and come to an end upon the expiration of said
ninety (90) days specified in said notice. If neither Landlord nor Tenant shall
elect to terminate as hereinbefore provided, this Lease shall remain unaffected
except the Tenant shall be entitled to a pro rata reduction of Basic Rent, based
on the proportion which the area of the building so taken bears to the area of
the Building immediately prior to such taking.
Section 14.03 Award In case of any taking [illegible]
regardless of whether this Lease survives, the entire award shall be paid to
the Landlord and the Tenant hereby assigns such award or awards to the
Landlord. Tenant shall not be entitled to share in any award or awards made in
condemnation proceedings for consequential damages or for the taking of any
appurtenances to the premises, vaults, areas or projections outside of the
boundaries of the lands owned by Landlord, or right in, under or above the
streets adjoining said lands, or the rights and benefits of light, air, or
access to said streets, or for the taking of space or rights therein, below the
surface or above the Demised Premises.
Section 14.04 Relocation Expense Recoverable Notwithstanding any of the
paragraphs above pertaining to eminent domain, there is expressly reserved to
the Tenant the right to recover against the condemning authority for its actual
reasonable expenses in moving its business from the Demised Premises and its
actual direct losses in tangible personal property by virtue of the taking,
all as contemplated in the Relocation Assistance Act (R.S.20:4 -- 1 et seq.),
and rules and regulations adopted by the Department of Community Affairs of the
State of New Jersey pursuant to the legislation aforesaid, and applicable
regulations of the State Department of Transportation contemplated in the said
Relocation Assistance Act. No right given hereunder to Tenant shall interfere
with Landlord's award.
ARTICLE 15
ACCESS TO PREMISES
Section 15.01 Access The Tenant agrees to permit the Landlord and the
authorized representatives of the Landlord to enter the Demised Premises at all
times during usual business hours for the purpose of inspecting the same and
upon Tenant's failing to make repairs or failing to comply with laws,
ordinances, rules, regulations or requirements, etc., making all necessary
repairs to the Demised Premises and performing any work therein that may be
necessary to comply with any laws, ordinances rules, regulations or
requirements of any public authority or of the Board of Fire Underwriters or
any similar body to prevent waste or deterioration in connection with the
Demised Premises. Nothing herein shall imply any duty upon the part of the
Landlord to do any such work which, under any provision of this Lease, the
Tenant may be required to perform, and the performance thereof by the Landlord
shall not constitute a waiver of the Tenant's default in failing to perform the
same. The Landlord may during the progress of any work in the Demised Premises
keep and store upon the Demised Premises all necessary materials, tools and
equipment. The Landlord shall not in any event be liable for inconvenience,
annoyance, disturbance, loss of business or other damage of the Tenant by
reason of making repairs or the performance of any work in the Demised
Premises, or on account of bringing materials, supplies and equipment into or
through the Demised Premises during the course thereof, and the obligations of
the Tenant under this Lease shall not thereby be affected in any manner
whatsoever.
The Landlord is hereby given the right during usual business hours to enter the
Demised Premises and to exhibit the same for the purposes of sale or hire
during the final year of the Term and the Landlord shall be entitled to
display, on the Demised Premises in such manner as not unreasonably to
interfere with the Tenant's business, the usual "For Sale" or "To Let" signs,
and the Tenant agrees that such signs may remain unmolested upon the Demised
Premises. Whenever Landlord wishes to enter the premises Landlord shall give 24
hour notice to Tenant and make an appointment for such entrance, except, in the
case of an emergency, in which event, the notice Landlord gives, shall be
reasonable under the circumstances. Landlord's entry and work shall cause the
least practicable interference with Tenant's business.
ARTICLE 16
NOTICES
Section 16.01 Notices All notices, demands and requests which may or are
required to be given by either party to the other shall be in writing. All
notices, demands and requests by the Landlord to the Tenant shall be sent by
United States Certified Mail, postage prepaid, Return Receipt Request, or hand
delivered or overnight express mail to the Tenant at the Demised Premises,
addressed to the attention of the Facility of Plant Manager or, at such other
place as the Tenant may from time to time designate in a written notice to the
Landlord. All notices, demands and requests by the Tenant to the Landlord shall
be sent by United States Certified Mail, postage prepaid, Return Receipt
Requested, or hand delivered or overnight express mail addressed to the
Landlord at the address shown on the first page of this Lease or at such other
place as the Landlord may from time to time designate in a written notice to
the Tenant. Notices, demands and requests which shall be served upon the
Landlord or the Tenant in the manner aforesaid shall be deemed sufficiently
served or given for all purposes hereunder at the time such notice, demand or
request shall have been received.
Notices shall be sent to the Tenant at the address of the Demised Premises, the
present address of the Tenant, and Tenant's attorney Xxx XxXxxxxxxx, 00
Xxxxxxxxxx Xxxxxx Xxxxx, 0xx xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
ARTICLE 17
ACCEPTANCE
Section 17.01 Acceptance Neither the Landlord nor its agents have made any
representations with respect to the Building, the land upon which it is
erected, or the Demised Premises except as expressly set forth herein and no
rights, easements, or licenses are acquired by the Tenant by implication or
otherwise except as expressly set forth in the provisions of this Lease. The
taking of possession of the Demised Property by the Tenant shall be conclusive
evidence that the Tenant will have accepted the same "as is" and that the
Demised Property and the Building were in good condition at the time of the
commencement of the Term. In no event shall the Landlord be liable for any
defect in such property or for any limitation on its use.
ARTICLE 18
QUIET ENJOYMENT - CONVEYANCE BY LANDLORD
Section 18.01 Quiet Enjoyment Tenant, upon paying the Basic Rent and all
Additional Rent and other charges herein provided for and performing all
covenants and conditions of this Lease, on its part to be performed, shall
quietly have and enjoy the Demised Premises during the Term, without hindrance
or molestation by Landlord or any other person claiming through Landlord,
subject, however, to the terms of this Lease and to any Mortgage.
Section 18.02 Conveyance by Landlord If Landlord shall convey the Demised
Premises, all liabilities and obligations
on the part of Landlord under this Lease shall terminate upon such conveyance
and thereafter all such liabilities and obligations shall be the liabilities
and obligations of such transferee and shall be binding upon such transferee of
the Demised Premises. Upon any such conveyance, Landlord agrees to give Tenant,
written notice of such conveyance.
ARTICLE 19
ESTOPPEL CERTIFICATE
Section 19.01 Estoppel Certificate The Tenant and the Landlord agree at any
time, and from time to time, upon not less than ten (10) days prior written
request by one to the other to execute, acknowledge and deliver 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 Basic
Rent, Additional Rent and other charges have been paid in advance, if any, it
being intended that any such statement delivered pursuant to this paragraph may
be relied upon by any prospective purchaser of the fee or mortgagee or assignee
of any mortgage upon the fee of the Demised Premises.
ARTICLE 20
FINANCIAL INFORMATION
Section 20.01 Financial Information Tenant has furnished the Landlord with
Profit and Loss Statements and Balance Sheets for the fiscal years beginning
19__, prepared by a Certified Public Accountant. Tenant further agrees that it
will furnish to the Landlord a Certified Profit and Loss Statement and
Certified Balance Sheet prepared by a Certified Public Accountant for the
preceding fiscal year, when required by Landlord for submission to a mortgagee.
ARTICLE 21
NO ABATEMENT OF RENT
Section 21.01 No Abatement of Rent Except as otherwise specifically provided
in this Lease, there shall be no abatement, diminution or reduction of Basic
Rent, Additional Rent, other charges or other compensation due to the Landlord
by the Tenant or any person claiming under it, under any circumstances including
but not limited to the complete or partial destruction of the Building or any
inconveniences, discomfort, interruption of business or otherwise caused by a
taking or destruction of the Demised Premises or any building thereon except as
otherwise specifically provided herein.
ARTICLE 22
NONRECORDATION OF LEASE
Section 22.01 Nonrecordation of Lease Tenant shall not record the within
Lease. Should Tenant record this Lease, Landlord may at its option, cause the
within Lease to be terminated, cancelled and of no further force and effect or
it may bring suit against Tenant for damages arising therefrom.
ARTICLE 23
SURRENDER
Section 23.01 Surrender On the last day or sooner termination of the Lease,
Tenant shall quit and surrender the Demised Premises, broom-clean, in good
condition and repair, together with all alterations, additions and improvements
which may have been made in, on, or to the Demised Premises, except movable
furniture or unattached movable trade fixtures put in at the sole expense of
the Tenant (provided Tenant has not been in default under this Lease) provided,
however, that Tenant shall ascertain from Landlord at least thirty (30) days
before the end of the Term whether Landlord desires to have the Demised
Premises, or any part thereof, restored to the condition in which it was
originally delivered to Tenant, and if Landlord shall so desire, then Tenant,
at its own cost and expense, shall restore the same before the end of the Term.
The condition of the building shall not be subject, to reasonable wear and tear.
Tenant shall not be excused from making all repairs and replacement which
Tenant is required to make during the Term so that when the building is
redelivered to the Landlord upon surrender, it shall be in good condition and
repair. Tenant agrees upon termination of the lease, the air-conditioning,
cooling systems, heating equipment and plumbing and electrical systems shall be
in good, operable condition, the floors shall be cleaned and resealed, all light
bulbs working, office area painted, rugs cleaned, the roof shall be free of
leaks, and all mechanical systems shall be in good operable condition. The
condition of the building and premises shall be in such a condition upon
surrender as though the premises were used exclusively for warehousing and
offices, and the Tenant made all repairs, replacements as were necessary during
the term of the Lease so that after surrender, the building and premises are in
a first-class condition and ready to be re-rented without additional work, cost
or expense to Landlord. If the Demised Premises is not surrendered as and when
aforesaid, Tenant shall indemnify Landlord against loss or liability resulting
from the delay by Tenant in so surrendering the Premises, including, without
limitation, any claims made by any succeeding occupant founded on such delay.
Tenant's obligations under this Section shall survive the expiration or sooner
termination of the lease.
In the event Tenant remains in possession of the Demised Premises after the
expiration of the Term without the execution of a new lease, or fails to
conclude negotiations, started prior to the expiration of the Term of the
Lease, of a new lease with Landlord for an extended term, within ninety (90)
days of the expiration of the Term of this Lease, or in the event Tenant fails
to finalize compliance with the Department of Environmental Protection
regarding the Environmental Cleanup Responsibility Act or any other law then or
now applicable to the tenancy of Tenant, then Tenant, at the option of the
Landlord, shall be deemed to be occupying the Demised Premises as a tenant from
month-to-month, at a monthly rental equal to three (3) times the sum of (i) the
Basic Rent payable for the last month of the Term under Article 3 hereof plus,
(ii) one twelfth (1/12th) of all items of Additional Rent, such as, but not
limited to, taxes, insurance payable or paid during the last lease year.
Tenant shall prior to the termination date of this Lease, shall comply with all
environmental provisions of Article 8. This clause shall survive the expiration
of this Lease. If Tenant shall fail to comply with the foregoing, before the
expiration or earlier termination date of the Lease, then Tenant's obligation
to pay rent and additional rent shall continue until such date as Tenant shall
comply with the foregoing, such rent to be computed as though Tenant was a
"holdover Tenant" as otherwise set forth in the preceding paragraph.
In the event Tenant requires an additional term for ECRA compliance, Tenant
will pay the market rent of the Demised Premises but in no event shall the
monthly rental be less than the last months rent of this lease.
ARTICLE 24
MISCELLANEOUS
Section 24.01 The Table of Contents of this Lease are for convenience of
reference only and in no way define, limit or describe the scope or intent of
this Lease nor in any way affect this Lease.
Section 24.02 Submission of this instrument for examination or signature by
Tenant does not constitute a reservation of or option to lease, and it is not
effective as a Lease or otherwise until execution and delivery by both Landlord
and Tenant.
Section 24.03 This Lease shall be governed by and construed in accordance with
the laws of the State of New Jersey.
Section 24.04 Tenant and Landlord represent to each other that they have dealt
with no realtors, brokers or agents in connection with the negotiation of this
Lease and the renting of the Demised Premises hereunder, other than Xxxxxxx
Xxxxxxxx Co., Inc. and Xxxxx Xxxxxxx Company. Should any claims be made for
brokerage commissions, other than those payable to the broker specified in this
Section, through or on account of dealings of Tenant or its agents or
representatives, Tenant shall indemnify and hold Landlord harmless against any
liability in connection therewith. The Landlord shall pay the real estate
brokerage commission due to the Xxxxxxx Xxxxxxxx Co. Inc., and the Xxxxx Xxxxxxx
Company.
Section 24.05 The rules and regulations attached to this Lease as Exhibit 1
are made a part of this Lease and Tenant shall comply with them. Landlord shall
have the right, from time to time, to promulgate amendments and additional
reasonable rules and regulations for the safety, care and cleanliness of the
Premises, Park, or other tenants of the Park, or for the preservation of good
order. On delivery of a copy of such amendments and additional rules and
regulations to Tenant, Tenant shall comply with the rules and regulations, and
a violation of any of them shall constitute a default by Tenant under this
Lease. Landlord agrees not to discriminate against Tenant in the enforcement of
the rules and regulations. If there is a conflict between the rules and
regulations and any other provisions of this Lease, the provisions of this
Lease shall prevail. Landlord shall make all reasonable efforts to enforce the
rules and regulations uniformly against all tenants in the industrial complex
known as Forsgate Complex in which the Demised Premises are located. It is the
intention hereof that the rules will not unreasonably interfere with the conduct
of Tenant's business or materially effect the Tenant's enjoyment of the Demised
Premises.
Section 24.06 Force Majeure In the event that either party hereto shall be
unable (but not unwilling) to perform or comply with any of its obligations
under this Lease due to circumstances beyond its reasonable control, including
without limitation strikes, lockouts, acts of God or the public enemy, national
emergency, material shortages (other
than due to such party's failure, delay or economic ability to acquire same) or
rationing, governmental act or restriction, then the failure of such party to
perform or comply as otherwise hereunder required shall not be deemed the basis
for any claim of breach or default hereunder or termination of this Lease,
provided that (i) such party shall perform or comply insofar as it is then
able, and (ii) upon the removal or cessation of such circumstances, such party
shall promptly perform or comply with its obligations, or commence such
performance or compliance and thereafter diligently prosecute same to
completion. The foregoing shall not apply to any obligation for the payment of
basic rent, imposition or additional rent.
Section 24.07 Waste The Tenant covenants not to do or suffer any waste or
damage, disfigurement or injury to any building or improvement now or hereafter
on the demised Premises, or the fixtures and equipment thereof, or permit or
suffer any overloading of the floors thereof.
Section 24.08 The Tenant shall not permit at any time during the term of this
Lease any broker signs to be attached to, exhibited or placed upon the premises
demised, which signs offer the premises for let or for sale unless, such broker
has obtained Landlord's prior written consent and presents such consent to the
Tenant, which consent shall not be unreasonably withheld.
Section 24.09 Compactor If the municipality or other governmental agency
shall require Tenant to install a garbage compactor or other storage or waste
management facility at the premises, Tenant shall, at Tenant's expense, install
such equipment and/or storage facility.
Section 24.10 Definition "Hazardous substance" includes any pollutants,
dangerous substances, toxic substances, hazardous waste, hazardous materials or
hazardous substances as defined in or pursuant to the Environmental Clean-Up
Responsibility Act, N.J.S.A. 13-:lk-6 et seq., ("ECRA"), the Spill Compensation
and Control Act, N.J.S.A. 58:10-23 et seq., ("Spill Act"), the Solid Waste
Management Act, N.J.S.A. 13:1e et seq., the Resource Conversation Recovery Act,
42 U.S.C. Section 6901 et seq., ("RCRA"), or any other federal, state or local
environmental law, ordinance, rule or regulation.
Section 24.11 The Landlord shall sublease from Tenant the area marked on
Exhibit B for a period of 16 months from the date of the commencement of this
lease and shall pay to Tenant the sum of $4,750 per month for the first twelve
months of said 16 month period. Landlord shall have the right to sublease the
area as indicated on Exhibit B to a third party tenant. Landlord shall keep any
profit over and above the $57,000 for the first twelve months or accept the
loss of the $57,000. The Landlord shall only be responsible for all rent and
additional rent to the limit of $57,000 including but not limited to taxes,
insurance, repairs, heat, light, etc.
Notwithstanding anything to the contrary, Tenant shall not be responsible to
Landlord for any default in the lease arising out of the use and occupancy of
Landlord or its Subtenant of the subleased area.
Section 24.12 Air Conditioning:
a. Landlord shall, within sixty (60) days of the start of the term, at its own
cost and expense, install a new air conditioner at the Premises which will
provide air conditioning to the space designated as DCI Space on Exhibit B.
Landlord shall be responsible for obtaining all permits necessary for the
installation of said air conditioning equipment. Landlord will use best efforts
to not interrupt the provision of air conditioning to said space during
b. Only during the 16th through the 24th month of the lease, upon the request
by Tenant, Landlord shall promptly repair, restore or, if necessary, replace
and put into operation the air conditioning which provides air conditioning to
the Subtenant Space as designated on Exhibit B. Tenant shall reimburse the
Landlord the cost of repair, restoration or replacement of said air
conditioning equipment up to the amount of $20,000. All costs in connection
with said work in excess of $20,000 shall be paid by the Landlord. The Landlord
shall be responsible for obtaining all permits necessary for repairing,
restoring or replacing said air conditioning equipment.
Section 24.13 The hatched area marked on Schedule A is the exclusive driveway
for the Nabisco Company. Tenant shall not be responsible for the maintenance of
the driveway, it is the exclusive use of the Nabisco Company.
Section 24.14 In the event Tenant is required to or desires to paint yellow
striping on the masonry floor, said yellow striping shall only be done with
yellow tape. It being clearly understood that said tape shall be removed prior
to the expiration of this Lease and the floor restored to its original
condition.
Section 24.15 The signatories below warrant and represent that they have the
proper authority to enter into this lease.
IN WITNESS WHEREOF, the Landlord has caused these presents to be duly signed
and sealed and the Tenant has caused these presents to be signed by its duly
authorized officers and has caused its corporate seal to be affixed hereto on
the day, month and year first above written.
WITNESS: FORSGATE INDUSTRIAL COMPLEX
a New Jersey Limited Partnership
Landlord
By:
-------------------------- -----------------------------
Xxxxxxx Xxxxxx
General Partner
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx Xxxxxxxx
-------------------------- -----------------------------
Xxxxxxx Xxxxxxxx,
ATTEST: General Partner
a New York Corporation
--------
Tenant
Delta Compotec Inc.
/s/ Xxxx XxXxxx By: /s/ L. Xxxxxx Xxxxxx
-------------------------- -----------------------------
Xxxx XxXxxx , President
Vice President
STATE OF NEW JERSEY )
) ss:
COUNTY OF BERGEN )
BE IT REMEMBERED, that on this ____ day of __________, 19__, before me,
the subscriber, personally appeared Xxxxxxx Xxxxxx and Xxxxxxx Xxxxxxxx who, I
am satisfied, are the persons named in and who executed the within instrument,
and thereupon they acknowledged that they signed, sealed and delivered the same
as their act and deed, and the act and deed of the said Forsgate Industrial
Complex, a limited partnership, for the uses and purposes therein expressed.
_________________________
Sworn to and subscribed
before me the date aforesaid
______________________________
STATE OF NEW JERSEY )
) ss:
COUNTY OF BERGEN )
BE IT REMEMBERED, that on this 23rd day of July, 1991, before me, the
subscriber personally appeared L. Xxxxxx Xxxxxx who I am satisfied, is the
person who signed the within instrument as President of Delta Computec Inc.,
the corporation named therein and he thereupon acknowledged that the said
instrument made by the corporation and sealed with its corporate seal, was
signed, sealed with the corporate seal and delivered by ___________________
as such officer and is the voluntary act and deed of the corporation, made by
virtue of authority from its Board of Directors.
/s/ L. Xxxxxx Xxxxxx
_________________________
Sworn to and subscribed
before me the date aforesaid.
_________________________________
EXHIBIT 1
RULES AND REGULATIONS
The Tenant covenants and agrees with the Landlord to obey the following rules
and regulations:
1. All garbage and refuse shall be kept in containers inside the premises. If
the Landlord shall provide or designate a service for picking up refuse and
garbage. Tenant shall use same at its cost; the Tenant shall pay the cost to
remove any of its rubbish or refuse. The Tenant shall not burn any trash or
garbage of any kind in or about the building.
2. The Tenant shall not permit debris, paper or the like on the parking lot,
lawn or landscaped areas and shall maintain, at its expense, a landscaping
service and shall provide that the lawns shall be watered, reseeded, fertilized
and regularly mowed and maintained, and all shrubbery shall likewise be
fertilized, maintained, pruned and replaced when necessary. The sidewalks or
entrances shall not be obstructed or encumbered by Tenant or used for any
purposes other than ingress and egress and the parking lot shall be used
exclusively for the parking of motor vehicles of Tenant's employees and
invitees. The parking lot shall be swept, maintained, retarred and restriped
when necessary.
3. The Tenant shall not store any material, supplies, semi-finished products or
anything whatsoever outside of the building.
4. The Tenant shall, at its cost and expense, use a pest extermination service
so as to keep the premises free of same.
5. The Tenant will undertake a general maintenance program, either through its
own employees or outside contractors which shall provide amongst other things
for general and periodic window cleaning, when necessary, and painting of trim,
and the like.
6. Tenant shall not at any time, without first obtaining Landlord's consent,
change, by alteration or replacement, rebuild or otherwise, the exterior color
or architectural treatment of the leased building.
7. Tenant shall not use or permit to be used any loud speaker or sound
amplifier which may be heard outside of the leased property.
8. Tenant shall not suffer, allow or permit any offensive or obnoxious
vibration, noise, odor, or other undesirable effect to emanate from the leased
property, or any machine or other installation therein, or otherwise suffer,
allow or permit the same to constitute a nuisance or otherwise unreasonably
interfere with the safety, comfort or convenience of adjoining properties.
9. Tenant shall not erect a ground sign or building sign without prior written
consent of the Landlord.
10. Tenant shall maintain and keep lit any and all exterior architectural
lighting which may be installed by the Landlord.
11. Tenant shall have the right, provided same is done in accordance with the
zoning ordinance of the municipality, to park trucks on the property along the
area wherein are located the loading docks. The Tenant shall not park trucks in
any other portion of the Premises Demised.
Upon notice by the Landlord to the Tenant of a breach of any of the rules and
regulations, Tenant shall, within ten (10) days or within such additional time
as may be reasonably necessary, comply with such rule and regulation and in the
event Tenant shall not comply, then the Landlord may, at its discretion,
either: (1) cure such condition and add any cost and expense incurred by the
Landlord therefor to the next installment of rental due under this Lease and
the Tenant shall then pay such amount, as additional rent hereunder; or (2)
treat such failure on the part of the Tenant to remedy such condition as a
material default of this Lease on the part of the Tenant hereunder.
INDEX
-----
ARTICLE 1 - DEMISED PREMISES - TITLE - TERM OF LEASE
ARTICLE 2 - USE OF PREMISES
ARTICLE 3 - RENT AND OTHER CHARGES
ARTICLE 4 - TAXES
ARTICLE 5 - SECURITY
ARTICLE 6 - INSURANCE TO BE PROVIDED BY TENANT
ARTICLE 7 - RESTORATION OF DEMISED PREMISES IN THE EVENT OF FIRE OR
OTHER CASUALTY
ARTICLE 8 - REPAIRS, MAINTENANCE, UTILITIES, CHANGES AND ALTERATIONS
COMPLIANCE WITH ORDERS, ETC., EASEMENTS
ARTICLE 9 - ASSIGNMENT AND SUBLETTING
ARTICLE 10 - LANDLORD'S REMEDIES IN EVENT OF TENANT'S DEFAULT OR BANKRUPTCY
ARTICLE 11 - SUBORDINATION OF LEASE TO MORTGAGES ON THE DEMISED PREMISES
ARTICLE 12 - EXONERATION OF INDIVIDUALS
ARTICLE 13 - COVENANT AGAINST LIENS
ARTICLE 14 - EMINENT DOMAIN
ARTICLE 15 - ACCESS TO PREMISES
ARTICLE 16 - NOTICES
ARTICLE 17 - ACCEPTANCE
ARTICLE 18 - QUIET ENJOYMENT - CONVEYANCE BY LANDLORD
ARTICLE 19 - ESTOPPEL CERTIFICATE
ARTICLE 20 - FINANCIAL INFORMATION
ARTICLE 21 - NO ABATEMENT OF RENT
ARTICLE 22 - NONRECORDATION OF LEASE
ARTICLE 23 - SURRENDER
ARTICLE 24 - MISCELLANEOUS
