EXHIBIT 10.4
A 917-Xxxxxxxx'x Improved Gilsey Form Lease. XXXXXX XXXXXXXX, INC.,
PUBLISHER, NYC 10013
THIS AGREEMENT, BETWEEN XXXXXX XXXXXXXXX ENTERPRISES, A SOLE PROPRIETORSHIP,
ORGANIZED AND EXISTING PURSUANT TO THE LAWS OF THE STATE OF NEW JERSEY, HAVING
AN ADDRESS AT 0 XXXX XXX & RT. 00 XXXXX, XXXXX XXXXXX XXXXX, XXX XXXXXX 00000
as Landlord and
BAGS OF CARLSTADT, INC. an affiliate of LBU, INC., having an address at 00-00
Xxxxx Xxxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
as Tenant
WITNESSETH: That the said Landlord has let unto the said Tenant and the
said Tenant has hired from the said Landlord, the following premises:
29,380 square feet total area in a free standing building comprising of 6,000
sq.ft. of office and restroom space and the balance of 23,380 sq.ft. of
warehouse space in a building commonly known as 000 XXXXXXXX XXXXX XXXX,
XXXXXXXXX, XXX XXXXXX and sometimes, hereinafter referred to as the "Demised
Premises".
for the term of TWENTY (20) YEARS
to commence from the 1st day of APRIL 1995, and to end on the 30th
day of MARCH 2015 to be used and occupied only for office, light
manufacturing, and warehouse distribution of nylon and mesh laundry bags
1st: That the Tenant shall pay the BASIC AGGREGATE RENTAL OF THREE
MILLION SIX HUNDRED EIGHTY ONE THOUSAND THREE HUNDRED FOURTEEN AND OO/OO DOLLARS
($3,681,314.00) to be paid in equal monthly installments, in advance, on demand,
on the first day of each month, at such address as the Landlord may designate,
as per the rent schedule attached hereto as Exhibit "A" of the Rider.
2nd: That the Tenant shall take good care of the premises and shall at
the Tenant's own cost and expense make all repairs specified to be Tenant's
obligation in Article 30,
and at the end or other expiration of the term, shall deliver up the demised
premises in good order or condition, damages by the elements excepted.
3rd: That the Tenant shall promptly execute and comply with all
statutes, ordinances, rules, orders, regulations and requirements of the
Federal, State and City Government and of any and all their Departments and
Bureaus applicable to said premises, for the correction, prevention, and
abatement of nuisances, violations or other grievances, in, upon or connected
with said premises during said term; and shall also promptly comply with and
execute all rules, orders, and regulations of the Board of Fire Underwriters, or
any other similar body, for the prevention of fires, at the Tenant's own cost
and expense.
4th: That in case the Tenant shall fail or neglect to comply with the
aforesaid statutes, ordinances, rules, orders, regulations and requirements or
any of them, or in case the Tenant shall fail or neglect to make any necessary
repairs, then the Landlord or the Landlord's Agents may enter said premises and
make said repairs and comply with any and all of the said statutes, ordinances,
rules, orders, regulations or requirements, at the cost and expense of the
Tenant and in case of the Tenant's failure to pay therefor, the said cost and
expense shall be added to the next month's rent and be due and payable as such,
or the Landlord may deduct the same from the balance of any sum remaining in the
Landlord's hands. This provision is in addition to the right of the Landlord to
terminate this lease by reason of any default on the part of the Tenant.
5th: That the Tenant shall not assign this agreement, or underlet or
underlease the premises or any part thereof, or occupy, or permit or suffer the
same to be occupied for any business or purpose deemed disreputable or
extra-hazardous on account of fire, under penalty of damages and forfeiture.
6th: That no alterations, additions or improvements shall be made in or
to the premises without the consent of the Landlord in writing, under penalty of
damages and forfeiture, and all additions and improvements made by the Tenant
shall belong to the Landlord.
7th: In case of damage, by fire or other cause, to the building in
which the leased premises are located, without the fault of the Tenant or of
Tenant's agent or employees, if the damage is so extensive as to amount
practically to the total destruction of the leased premises or of the building,
or if the Landlord shall within a reasonable time decide not to rebuild, this
lease shall cease and come to an end, and the rent shall be apportioned to the
time of the damage. In all other cases where the leased premises are damaged
without the fault of the Tenant or of Tenant's agents or employees the Landlord
shall repair the damage with reasonable dispatch after notice of damage, and if
the damage has rendered the premises untenantable, in whole or in part, there
shall be an apportionment of the rent until the damage has been repaired. In
determining what constitutes reasonable dispatch consideration shall be given to
delays caused by strikes, adjustment of insurance and other causes beyond the
Landlord's control.
8TH: That said Tenant agrees that the said Landlord and Landlord's
Agents, and other representatives, shall have the right to enter into and upon
said premises, or any part thereof, at all reasonable hours for the purpose of
examining the same, or making such repairs or alterations therein as may be
necessary for the safety and preservation thereof.
9TH: The Tenant also agrees to permit the Landlord or Landlord's Agents
to show the premises to persons wishing to hire or purchase the same; and the
Tenant further agrees that during the six months next prior to the expiration of
the term, the Landlord or Landlord's Agents shall have the right to place
notices on the front of said premises, or any part thereof, offering the
premises "To Let" or "For Sale," and the Tenant hereby agrees to permit the same
to remain thereon without hindrance or molestation.
10TH: That if the said premises, or any part thereof, shall become
vacant during the said term, or should the Tenant be evicted by summary
proceedings or otherwise, the Landlord or Landlord's representatives may re-
enter the same, either by force or otherwise, without being liable to
prosecution therefor; and re-let the said premises as the Agent of the said
Tenant and receive the rent thereof; applying the same, first to the payment of
such expenses as the Landlord may be put to in re-entering and then to the
payment of the rent due by these presents; the balance (if any) to be paid over
to the Tenant who shall remain liable for any deficiency.
11TH: Landlord may replace, at the expense of Tenant, any and all
broken glass in and about the demised premises. Landlord may insure, and keep
insured, all plate glass in the demised premises for and in the name of
Landlord. Bills, for the premiums therefor shall be rendered by Landlord to
Tenant at such times as Landlord may elect, and shall be due from, and payable
by Tenant when rendered, and the amount thereof shall be deemed to be, and be
paid as, additional rental. Damage and injury to the said premises, caused by
the carelessness, negligence or improper conduct on the part of the said Tenant
or the Tenant's agents or employees shall be repaired as speedily as possible by
the Tenant at the Tenant's own cost and expense.
12TH: That the Tenant shall neither encumber, nor obstruct the sidewalk
in front of, entrance to or halls and stairs of said building, nor allow the
same to be obstructed or encumbered in any manner.
13TH: The Tenant shall neither place, nor cause, nor allow to be
placed, any sign or signs of any kind whatsoever at, in or about the entrance to
said premises nor any other part of same except in or at such place or places as
may be indicated by the said Landlord and consented to by Landlord in writing.
And in case the Landlord or Landlord's representatives shall deem it necessary
to remove any such sign or signs in order to paint or to make any other repairs,
alterations or improvements in or upon said premises or the building wherein
same is situated or any part thereof, the Landlord shall have the right to do
so, providing the same be removed and replaced at the Landlord's expense
whenever the said repairs, alterations or improvements shall have been
completed.
14TH: It is expressly agreed and understood by and between the parties
to this agreement, that the Landlord shall not be liable for any damage or
injury to person or property caused by or resulting from steam, electricity,
gas, water, rain, ice or snow, or any leak or flow from or into any part of said
building, or from any damage or injury resulting or arising from any other cause
or happening whatsoever.
15TH: That if default be made in any of the covenants herein contained,
then it shall be lawful for the said Landlord to re-enter the said premises, and
the same to have again, re-possess and enjoy.
16TH: That this lease shall not be a lien against said premises in
respect to any mortgages that are now on or that hereafter may be placed against
said premises, and that the recording of such mortgage or mortgages shall have
preference and precedence and be superior and prior in lien of this lease
irrespective of the date of recording and the Tenant agrees to execute any
instrument without cost, which may be deemed necessary or desirable to further
effect the subordination of this lease to any such mortgage or mortgages, and a
refusal to execute such instruments shall entitle the Landlord, or the
Landlord's assigns and legal representatives to the option of cancelling this
lease without incurring any expense or damage, and the term hereby granted is
expressly limited accordingly.
17TH: The Tenant has this day deposited with the Landlord the sum of
$46,016.43 as security for the full and faithful performance by the Tenant of
all of the terms and conditions upon the Tenant's part to be performed, which
said sum shall be returned to the Tenant after the time fixed as the expiration
of the term herein, provided the Tenant has fully and faithfully carried out all
of the terms, covenants and conditions on the Tenant's part to be performed. In
the event of a bona fide sale, subject to this lease, the Landlord shall have
the right to transfer the security to the vendee for the benefit of the Tenant
and the Landlord shall be considered released by the Tenant from all liability
for the return of such security; and the Tenant agrees to look to the new
Landlord solely for the return of the said security, and it is agreed that this
shall apply to every transfer or assignment made of the security to a new
Landlord.
18TH: That the security deposited under this lease shall not be
mortgaged, assigned or encumbered by the Tenant without the written consent of
the Landlord.
19TH: It is expressly understood and agreed that if for any reason it
shall be impossible to obtain fire insurance on the building and improvements on
the demised premises in an amount, and in the form, and in fire insurance
companies acceptable to the Landlord the Landlord may, if the Landlord so
elects, at any time thereafter terminate this lease and the term thereof, on
giving to the Tenant three days' notice in writing of Landlord's intention so to
do and upon the giving of such notice, this lease and the term thereof shall
terminate and come to an end.
20TH: It is expressly understood and agreed that in case the demised
premises shall be deserted or vacated, or if default be made in the payment of
the rent or any part thereof as herein specified, or if, without the consent of
the Landlord, the Tenant shall sell, assign, or mortgage this lease or if
default be made in the performance of any of the covenants and agreements in
this lease contained on the part of the Tenant to be kept and performed, or if
the Tenant shall fail to comply with any of the statutes, ordinances, rules,
orders, regulations and requirements of the Federal, State and City Government
or of any and all their Departments and Bureaus, applicable to said premises, or
if the Tenant shall file or there be filed against Tenant a petition in
bankruptcy or arrangement, or Tenant be adjudicated a bankrupt, or make an
assignment for the benefit of creditors or take advantage of any insolvency act,
the Landlord may, if the Landlord so elects, a any time thereafter terminate
this lease and the term hereof, on giving to the Tenant five days' notice in
writing of the Landlord's intention so to do, and this lease and the term hereof
shall expire and come to an end on the date fixed in such notice as if the said
date were the date originally fixed in this lease for the expiration hereof.
Such notice may be given by mail to the Tenant addressed to the demised
premises.
All notices required to be given to the Tenant may be given by mail
addressed to the Tenant at the demised premises.
21ST: The Tenant shall pay to the Landlord the rent or charge, which
may, during the demised term, be assessed or imposed for the water used or
consumed in or on the said premises, whether determined by meter or otherwise,
as soon as and when the same may be assessed or imposed, and will also pay the
expenses for the setting of a water meter in the said premises should the latter
be required. If such rent or charge or expenses are not so paid the same shall
be added to the next month's rent thereafter to become due.
22ND: That the Tenant will not nor will the Tenant permit undertenants
or other persons to do anything in said premises, or bring anything into said
premises, or permit anything to be brought into said premises or to be kept
therein, which will in any way increase the rate of fire insurance on said
demised premises, nor use the demised premises or any part thereof, nor suffer
or permit their use for any business or purpose which would cause an increase in
the rate of fire insurance on said building, and the Tenant agrees to pay on
demand any such increase.
23rd: If after default in payment of rent or violation of any other
provision of this lease, or upon the expiration of this lease, the Tenant moves
out or is dispossessed and fails to remove any trade fixtures or other property
prior to such said default, removal, expiration of lease, or vacates the demised
premises prior to the issuance of the final order or execution of the warrant,
then and in that event, the said fixtures and property shall be deemed abandoned
by the said Tenant and shall become the property of the Landlord.
24th: The failure of the Landlord to insist upon strict performance of
any of the covenants or conditions of this lease or to exercise any option
herein conferred in any one or more instances, shall not be construed as a
waiver or relinquishment for the future of any such covenants, conditions or
options, but the same shall be and remain in full force and effect.
25th: In the event that the relation of the Landlord and Tenant may
cease or terminate by reason of the re-entry of the Landlord under the terms and
covenants contained in this lease or by the ejectment of the Tenant by summary
proceedings or otherwise, or after the abandonment of the premises by the
Tenant, it is hereby agreed that the Tenant shall remain liable and shall pay in
monthly payments the rent which accrues subsequent to the re-entry by the
Landlord, and the Tenant expressly agrees to pay as damages for the breach of
the covenants herein contained, the difference between the rent reserved and the
rent collected and received, if any, by the Landlord, during the remainder of
the unexpired term, such difference or deficiency between the rent herein
reserved and the rent collected, if any, shall become due and payable in monthly
payments during the remainder of the unexpired term, as the amounts of such
difference or deficiency shall from time to time be ascertained.
26th: If the whole or any part of the demised premises shall be
acquired or condemned by Eminent Domain for any public or quasi public use or
purpose, then and in that event, the term of this lease shall cease and
terminate from the date of title vesting in such proceeding and Tenant shall
have no claim against Landlord for the value of any unexpired term of said
lease. No part of any award shall belong to the Tenant.
27th: This lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on part of Tenant to
be performed shall in nowise be affected, impaired or excused because Landlord
is unable to supply or is delayed in supplying any service expressly or
impliedly to be supplied or is unable to make, or is delayed in making any
repairs, additions, alterations or decorations or is unable to supply or is
delayed in supplying any equipment or fixtures if Landlord is prevented or
delayed from so doing by reason of governmental preemption in connection with a
National Emergency declared by the President of the United States or in
connection with any rule, order or regulation of any department or subdivision
thereof of any governmental agency or by reason of the conditions of supply and
demand which have been or are affected by war or other emergency.
28th: Landlord shall not be liable for failure to give possession of
the premises upon commencement date by reason of the fact that premises are not
ready for occupancy, or due to a prior Tenant wrongfully holding over or any
other person wrongfully in possession or for any other reason; in such event the
rent shall not commence until possession is given or is available, but the term
herein shall not be extended.
29th: This lease is subject and is hereby subordinated to all present
and future mortgages, deeds of trust and other encumbrances affecting the
demised premises or the property of which said premises are a part. The Tenant
agrees to execute, at no expense to the Landlord, any instrument which may be
deemed necessary or desirable by the Landlord to further effect the
subordination of this lease to any such mortgage, deed of trust or encumbrance.
** SEE RIDER ATTACHED HERETO **
And the said Landlord doth covenant that the said Tenant on paying the
said yearly rent, and performing the covenants aforesaid, shall and may
peacefully and quietly have, hold and enjoy the said demised premises for the
term aforesaid, provided however, that this covenant shall be conditioned upon
the retention of title to the premises by the Landlord.
And it is further understood and agreed, that the covenants and
agreements herein contained are binding on the parties hereto and upon their
respective successors, heirs, executors, administrators and assigns.
It is further expressly agreed that the words used in the singular shall
include words in the plural where the text of this instrument so requires.
IN WITNESS WHEREOF, the parties have inter-changeably set their hands
and seals or caused these presents to be signed by their proper corporate
officers and caused their proper corporate seal to hereto affixed, this
day of 19 .
LANDLORD: XXXXXX XXXXXXXXX ENTERPRISES
---------------------------------------
Signed, Sealed and Delivered }
in the presence of
/s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Date: March, 1995 By: Xxxxxx Xxxxxxxxx, Owner
------------
TENANT: BAGS OF CARLSTADT, INC. an
---------------------------------------
Affiliate of LBU, INC.
/s/ Xxxxxxx Xxxxx
---------------------------------------
Date: March, 1995 By: Xxxxxxx Xxxxx-President
------------
RIDER TO LEASE AGREEMENT BETWEEN
XXXXXX XXXXXXXXX ENTERPRISES
AND
BAGS OF CARLSTADT, INC.
AN AFFILIATE OF LBU, INC.
30. Notwithstanding anything to the contrary contained herein
(including without limitation on the provisions of Paragraph 2nd hereof) it is
agreed that the Tenant shall, at Tenant's sole cost and expense keep the demised
premises in good order, condition and repair at its own expense and make all
necessary repairs, both structural (except as hereinafter set forth) and non-
structural and replacements with respect to said demised premises, including but
not limited to plate glass, heating, plumbing, electrical, roofing, air
conditioning and ventilating equipment. Landlord's sole responsibility shall be
for the structural steel that supports the roof and walls of the property,
and no other. Tenant will be responsible for maintenance to the demised
premises due to normal operations, aging and normal wear and tear. Tenant will
at his own expense obtain a maintenance contract for the HVAC unit to be
serviced at least two (2} times a year by a reputable contractor and provide
Landlord with a copy of the contract.
Each party shall cause endorsements to be added to their
respective policies of insurance covering any insurable interest A may have with
respect to the demised premises or any property thereon, which will provide that
the insurers waive all rights to subrogation to the rights of the insured party
against the other party to this Lease in connection with any loss or damage
covered by said policies. If any such waiver of subrogation is obtainable
only upon such payment of an additional premium, then the obligation to obtain
such waiver of subrogation shall be conditioned upon the payment of such
additional premium by the party for whose benefit such waiver is sought.
31. Municipal Real Estate Taxes.
---------------------------
(A) Tenant shall pay as additional rent its proportionate share
of all municipal real estate taxes, assessments, water and sewer rents, any road
improvements and or road assessments and governmental impositions, duties and
charges of every kind and nature whatsoever, extraordinary as well as ordinary,
and whether now within the contemplation of the parties or not, and each and
every installment of each of them, which shall or may during the term of the
Lease be charged, laid, levied, assessed or imposed upon the premises of which
the demised premises form a part or upon any sidewalks or streets in front of or
adjoining the said premises, or which may become due and payable with respect
thereto, and any and all taxes, charges, laid, levied, assessed or imposed in
lieu of the foregoing, under or by virtue of any present or future laws, rules,
requirements, orders, directions, ordinances, or regulations of the United
States of America or of the State, County, Municipal, Governmental or lawful
authority whatsoever; all to the extent applicable to the term of this Lease.
(B) Nothing herein contained shall require or be construed to
obligate Tenant to pay any Franchise, Corporation, Capital Stock, Capital
Levies, Transfer, Estate or Inheritance, Income or Excess profits tax imposed
upon Landlord or upon its successors or assigns of any of them. If, however, at
any time during the term hereof, the methods of taxation prevailing on the date
hereof shall be altered so as to cause the whole or any part of the real estate
taxes, assessments, levies, impositions or other charges now or hereinafter
after levied, assessed or imposed on the premises or any interest therein or
portion thereof to be levied, assessed or imposed wholly or partially, as a
capital levy, otherwise on the Landlord or its assigns, or use of the premises,
or any portion thereof or interest therein, or if any such tax, assessment, levy
(including but not limited to any municipal, county, state or federal levy},
imposition or charge, or any part thereof, shall be measured by or based in
whole or in part upon the premises or any portion thereof interest therein,
and/or upon any other taxable interest, the portion of the sums which Tenant is
required to pay hereunder in lieu of the methods of taxation prevailing on the
date hereof shall be Tenant's proportionate share of all such taxes,
assessments, levies, impositions or charges, to the extent that they are so
measured or based, and the same shall be deemed to be included with the term
real estate taxes for the purposes hereof to the extent
1
the same would be payable if the premises were the only property of Landlord
subject thereto, and if the income from the premises were the only taxable
income of Landlord during the year in question.
(C) All real estate taxes, assessments and other charges and
installments thereof which shall become payable for periods falling within and
without the term hereof shall be equitably apportioned pro rate between Landlord
and Tenant in accordance with the respective periods during which Tenant shall
be in possession of the demised premises in said respective tax years.
(D) Tenant's proportionate share of all taxes, assessments,
levies, impositions and charges for any tax year shall be determined by
multiplying the same by the following fraction:
Total number in square feet 29,380'
demised herein = = 100%
--------------------------- ------------
Total number of square feet 29,380'
in the building
(E) Landlord may xxxx Tenant each month during the term of this
Lease Agreement for Tenant's estimated proportionate share of municipal real
estate taxes, assessments, added assessments, omitted assessments, water rents,
and other charges or any other governmental impositions, duties and charges, and
Tenant shall pay same within thirty (30) days after receipt of said xxxx. The
said aggregate monthly payment by Tenant or other payments by Tenant made during
each calendar year of this Lease Agreement shall be adjusted at the end of each
calendar year of this Lease Agreement in accordance with the actual municipal
real estate taxes, assessments, added assessments, omitted assessments, water,
rent and charges and other governmental impositions, duties and charges during
said calendar year, and Landlord upon demand shall reimburse Tenant for any
overpayment of same received by Landlord and Tenant shall remit to Landlord upon
demand any underpayment.
(F) If the Landlord shall receive any monetary refund, rebate or
credit for any item of tax, assessment, levy, imposition, or charge with respect
to which the Tenant has paid Landlord its proportionate share hereunder the
proceeds or benefit thereof, after deducting all expenses incurred in obtaining
the same, shall be paid by Landlord to Tenant to the extent necessary to
reimburse the Tenant for any sums previously paid by Tenant pursuant to the
Paragraph 30 based upon the Tenant's proportionate share thereof.
(G) Landlord agrees that it will not prepay any assessment and
that it will pay for any such assessment in installments over the longest period
of time permitted by law.
(H) Tenant shall have the right to contest with any governmental
authority the amount of any tax, assessment, levy or imposition, provided
that it shall have paid to Landlord the entire amount of such tax, assessment,
levy or imposition.
32. Parking, etc.
------------
Tenant shall have the right to utilize twenty-five (25) parking
spaces during the term hereof. The Tenant will be responsible for the
maintenance of the driveways, entrances, exits, parking areas and common areas
hereof and shall keep the same clean and free from snow and ice at the sole cost
and expense of the Tenant.
33. Exculpation.
-----------
Notwithstanding anything to the contrary contained herein, it is
agreed (a) that if Landlord or any successor in interest is a corporation, there
shall be no personal liability on the part of any stockholder, officer or
director of such corporation or any subsidiary, affiliate, joint venturer, or
partner of such corporation herewith, and (b) that if Landlord is a firm,
partnership, joint venture or association, there shall be no personal liability
on the part of any partner, general or limited, or member thereof with respect
to any obligations hereunder or in connection herewith. If Landlord shall be in
breach or default with respect to its obligations under this Lease, Tenant
agrees (a) that it shall look solely to the estate, equity and interest
2
of Landlord in the land and building of which the demised premises form a part
for the collection of any judgement (or other judicial process} requiring the
payment of money by Landlord in the event of any default or breach by Landlord
hereunder and (b) that there shall be no personal liability on the part of
Landlord or its stockholders, officers, directors, subsidiaries, affiliates,
joint venturers, partners or members for the collection of any such judgement or
other judicial process beyond their respective interests in the land and
building of which the demised premises form a part. The provisions hereof shall
not, however, be deemed a waiver or modification of Tenant's rights or
Landlord's obligations under this Lease, nor shall it prevent Tenant from
obtaininq judgement against the Landlord in case of such breach or default to
the extent that the same shall be a lien against Landlord's equity or interest
in said land and building or from levying against Landlord's equity or interest
therein, nor from asserting any set off or deduction against the rents payable
under this Lease to which Tenant may be entitled under this Lease, or by
judgement in its favor.
34. Fire and Extended Coverage Insurance.
------------------------------------
Landlord shall be obligated to insure the premises to its full
insurable replacement value including Landlord's loss of rent, against the
perils covered by standard fire and extended coverage policies, and Tenant shall
be responsible for payment of premiums for same as provided in Paragraph 38
hereof. In the event that it shall be impossible to obtain fire and extended
coverage insurance on the buildings and improvements on the demised premises in
an amount, in the form and with fire insurance companies reasonably acceptable
to Landlord, because of any reason due to or connected with the occupancy of the
Tenant, the Landlord may at its option, at any time thereafter, terminate this
Lease and the term thereof by giving the Tenant ten (10) days notice in writing
of its intention to do so, provided, however, that this Lease shall not
terminate if Tenant shall procure the insurance required hereunder prior to the
expiration of the 10-day notice period set out above.
For the purpose of determining replacement value, the Landlord may
determine same by setting forth its determination in a Certification of
Replacement Value which shall then constitute the minimum replacement value
referred to herein.
35. Public Liability.
----------------
Tenant shall maintain during the term of this Lease comprehensive
general public liability and property damage with an insurance company licensed
to do business in the State of New Jersey, having a rating of A or A+ in the
most recent edition of Best's key rating guide and shall be reasonably
acceptable to Landlord with a single limit of no less than Three Million Dollars
($3,000,000) applicable to either bodily injury, personal injury, death or
property damage. Landlord is to be named as "an additional insured on said
policy, with no obligation to pay any of the premiums".
36. Endorsements & Non-Cancelable Provisions.
----------------------------------------
The certificates of insurance shall be furnished to Landlord and
shall carry endorsements thereon for the benefit of the Landlord and Tenant, and
Landlord's mortgagees, agents, servants and employees and all persons claiming
against the Landlord and/or Tenant as their respective interest may appear.
Each policy shall contain an endorsement to the effect that said
policy shall not be canceled or modified without ten (10) days prior to notice
to Landlord.
37. Renewals.
--------
At least fifteen (15) days prior to the expiration or termination
date of any of the insurance policies, Tenant shall deliver to Landlord a copy
of the renewal or replacement policy with proof of payment of the premium
therefor.
38. Premium Payment and Other Insurance.
-----------------------------------
3
Tenant shall pay all insurance premiums for insurance coverages
required to be obtained by Landlord and/or Tenant as herein provided.
39. Mutual Release of Liability to Extent of Recovery of Insurance
--------------------------------------------------------------
Proceeds.
--------
Neither the Landlord nor the Tenant shall be liable to the other for
any business interruption or any loss or damage to property or injury to or
death of persons occurring on the demised premises or the adjoining property, or
in any manner growing out of or connected with the Tenant's use and occupation
of the demised premises, or the condition thereof, or of fault of the Landlord
or the Tenant or of their respective agents, employees, subtenants, Licensees,
or assigns. This release shall apply only to the extent that such business
interruption, loss or damage to property, or injury to or death of persons
covered by insurance, regardless of whether such insurance is payable to or
protects the Landlord or the Tenant or both. Nothing in this paragraph shall be
construed to impose any other or greater liability upon either the Landlord or
the Tenant than would have existed in the absence of this paragraph. This
release shall be in effect only so long as the applicable insurance policies
contain a clause incorporating the foregoing and to the effect that this release
shall not affect the right of the insured to recover under such policies. Such
clauses shall be obtained by the parties whenever possible. Landlord and/or
Tenant shall obtain appropriate clauses pursuant to which their respective
insurance carriers waive rights of subrogation.
40. Reimbursement of Landlord's Expenses.
------------------------------------
Landlord or its agents, at Landlord's expense, subject to the
reimbursement formula hereinafter set forth in this paragraph may incur
expenditures in connection with the building of which the demised premises form
a part. All costs and expenditures reasonably required in connection with the
operation and maintenance of the building and the surrounding premises, shall be
handled directly by the Tenant at its sole cost and expense and to the
satisfaction of the Landlord.
Without limiting in any manner whatsoever the, generality of the
foregoing, such costs and expenditures shall include the following:
(A) Cost and expenditures relating to the removal of snow, ice,
debris, garbage and waste; and
(B) Cost and expenditures relating to maintenance of landscaping,
planting and shrubbery; and
(C) Any and all Legal Fees In and Out of Court, pertaining to the
collections from and or evictions against the "Tenant"; and
(D) All costs and expenditures relating, to the repair of the parking
lot, exterior sealing of the building, roof maintenance and repairs, sprinkler
repairs, plumbing repairs; and electrical facility repairs necessary for the
maintenance of the building; and
(E) All cost and expenditures reasonably incurred by Landlord
pertaining to or related with Landlord's maintenance of the building; and
In each rental year, Tenant shall pay Landlord, as additional rent, Tenant's
proportionate share of Landlord's costs and expenditures as specified above for
Real Estate Taxes and building insurance in accordance with a fractional share
computed as follows:
Total number of square feet 29,380'
demised herein
--------------------------- = ---------- = 100%
Total number of square feet 29,380'
in building
4
Said fractional share shall then be applied to Landlord's costs
and expenditures to determine Tenant's proportionate share of same. The charge
required hereunder shall by Tenant in such installments and in such amounts as
are reasonably estimated and billed by the Landlord during the term of this
Lease Agreement. Each installment shall be due and payable on the first day of
each month after the installment is billed to the Tenant.
Within sixty (60} days after the end of Landlord's fiscal year or
calendar year, whichever is applicable, inclusive of the year during which the
term of this Lease is terminated, Landlord shall make available for Tenant's
inspection Landlord's records relating to the operating expenses for such
preceding 12 month period, and the monthly payments to be made by Tenant
thereafter shall be adjusted and revised to compensate for any overpayment or
underpayment made by the Tenant in such preceding 12-month period.
41. Utility Charges.
---------------
(A) The Tenant shall pay as and when the same become due and payable
all water rents, rates and charges, and all charges for electricity, gas, heat,
water, sewer, sprinkler and any other utilities supplied in the demised premises
directly to the utility company and any other agency that may xxxx them
directly, including, but not limited to the lighting of the common areas; i.e.
Parking Lots and Building Exterior.
(B) All utility charges shall be deemed to be additional rent, and
Landlord shall have the remedies for default in payment for same as are provided
for in Default paragraph of this Lease Agreement.
42. Triple Net Rent.
---------------
In addition to the Basic Rent hereinbefore reserved, except as
otherwise provided in the Lease, Tenant shall pay any and all of the charges,
costs and expenses arising out of its use or occupation of the demised premises
of whatsoever nature, kind or description as additional rent. In the event of
non-payment, Landlord shall have all the rights and remedies herein provided and
as provided by law in the case of non-payment of rent or of breach of condition.
If the Tenant shall default in making any payment required to be made by the
Tenant, or shall be in default in performing any terms, covenants, or conditions
of this Lease on the part of the Tenant to be performed, which shall involve the
expenditure of money by Tenant, Landlord, at its option, may after ten (10) days
written notice to Tenant, expend such sums as may be necessary to perform and
fulfill such terms, covenants or conditions, and any and all sums so expended by
Landlord, with interest thereon at the rate of 15% per annum from the date of
such expenditure shall be and be deemed to be additional rent, and shall be
repaid by Tenant to Landlord on demand, and in the case of non-payment of any
other additional rent. However, no such payment or expenditure by Landlord shall
be deemed a waiver of Tenant's default nor shall it affect any of the remedies
of Landlord by reason of such default.
It is the intention of the parties that the rent specified
herein shall be triple net to the Landlord and the Landlord shall be indemnified
by the Tenant against all the costs, expenses and charges arising out of
Tenant's use or occupation of the demised premises or any part thereof during
the term of this Lease Agreement except as otherwise provided in Lease
Agreement.
In the event that the tenant vacates the premises prior to the
expiration of the lease, without the express written permission of the landlord
or, in the event the tenant abandons the premises and fails to maintain
occupancy and removes property from the demised premises, the rent for the
balance of the unexpired term shall, at once, become fully due and payable at
the option of the landlord.
43. The premises shall be leased in what is commonly referred to "As Is"
Condition.
5
44. Security Deposit.
----------------
The Tenant shall pay a three (3) month security deposit in the
amount of $46,016.43 upon the signing of this Lease Agreement as well as the
first month's rent in the amount of $11,017.50.
45. Lease Commencement.
------------------
April 15, 1995
46. Rent Commencement.
-----------------
June 15, 1995
47. CAM Charges.
-----------
April 15, 1995
48. Option To Purchase.
------------------
Provided Tenant is in possession of the demised premises and is
not in default of the Lease at these dates he shall have the right to purchase
the building as follows:
Price S 1,600,000.00 Cash - 4/1/95 thru 9/30/95
Price $ 1,625.000.00 Cash - 10/1/95 thru 3/31/96
Price S 1,650,000.00 Cash 4/1/96 thru 9/30/96
49. Signage.
-------
The Tenant may place a sign on the building at his sole cost and
expense. All permits and approvals shall be obtained by the Tenant from the
Borough of Carlstadt. Upon vacating the premises, the Tenant shall remove sign
and restore the premises to its original condition.
50. GUARANTEE.
---------
This Lease Agreement will be guaranteed by LBU, Inc. of 00-00 Xxxxx
Xxxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx for the first five (5) years of this Lease
Agreement.
51. Attached hereto and made a part of this Lease Agreement is a "Cross-
Over" Easement for eleven (11) parking spaces for the motel at 000 Xxxxxxxx
Xxxxx Xxxx, Xxxxxxxxx, Xx
6
52. Environmental Cleanup Responsibility.
------------------------------------
Tenant is prohibited from utilizing the premises for the generation,
manufacture, refining, transportation, treatment, storage, handling, or disposal
of hazardous substances as those defined in the Environmental Cleanup
Responsibility Act (hereinafter ECRA) N.J.S.A. 13: 1K-6 et. seq. Tenant's use of
the premises for any of the foregoing shall constitute a default under the terms
of this agreement.
In the event that Tenant's Standard Industrial Classification Number
falls within the 22-39 inclusive, 46-49 inclusive, 51 or 76, as designated in
the Standard Industrial Classifications Manual prepared by the Office of
Management and Budget in the Executive Office of the President of the United
States, or Tenant's particular use of the demised premises causes Landlord to
fall within the purview of ECRA either during the terms of this Lease Agreement
or at the termination of this agreement and any extensions hereto, Tenant shall
be responsible for obtaining a negative declaration from the New Jersey
Department of Environmental Protection, and for all costs and fees including but
not limited to governmental, environmental consultant, attorney and
environmental testing, incidental to obtaining a negative declaration.
In the event a negative declaration cannot be obtained, Tenant shall
be responsible for all costs incidental to the preparation and execution of a
cleanup plan approved by the New Jersey Department of Environmental Protection
and shall obtain any and all documents required by Landlord and any mortgagee of
the premises from all applicable governmental entities indicating that the
cleanup plan has been fully executed, the entity shall not place a lien on the
property for the cost of clean up and the then existing condition of the
property will not cloud Landlord's title to the property nor prohibit the
transfer of same.
Tenant shall indemnify and hold harmless Landlord for any costs
incurred as a result of ECRA, arising from Tenant's S.I.C. number or as a result
of Tenant's use of the demised premises.
Tenant shall not be responsible for the condition of the premises
existing prior to its occupancy.
Tenant shall begin to comply with ECRA no later than nine {9) months
prior to the expiration of this agreement. In the event of sooner termination,
Tenant shall begin to comply upon its submission to or receipt of from Landlord,
Notice of Termination.
7
EXHIBIT "A"
RENT SCHEDULE
Year One $11,017.50 per month
Year Two $11,384.75 per month
Year Three $11,752.00 per month
Year Four $12,119.25 per month
Year Five $12,608.92 per month
Year Six $13,098.58 per month
Year Seven $13,588.25 per month
Year Eight $14,077.92 per month
Year Nine $14,567.58 per month
Year Ten $15,057.25 per month
Year Eleven $15,546.92 per month
Year Twelve $16,036.58 per month
Year Thirteen $16,526.25 per month
Year Fourteen $17,015.92 per month
Year Fifteen $17,505.58 per month
Year Sixteen $17,995.25 per month
Year Seventeen $18,484.92 per month
Year Eighteen $18,974 58 per month
Year Nineteen $19,464.25 per month
Year Twenty $19,953.92 per month
8
