LEASE AGREEMENT
BETWEEN:
569 HALLS MILL ROAD, L.L.C.
(hereinafter "Landlord")
AND:
IVC Industries Inc.
(hereinafter "Tenant")
PREMISES: The Property known as 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx and
designated as Lot 3 in Block 79 as shown on the Tax Map of the
Township of Freehold, Monmouth County, New Jersey
DATED: July 28, 1998
TABLE OF CONTENTS
PAGE
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1. DEFINITIONS AND BASIC PROVISIONS.....................................3
2. LEASE GRANT AND TERM.................................................4
3. BASE RENT............................................................6
4. LATE CHARGE..........................................................7
5. UTILITIES AND SERVICES...............................................7
6. USE..................................................................8
7. ALTERATIONS, ADDITIONS OR IMPROVEMENTS...............................9
8. TENANT'S REPAIR AND MANTENANCE......................................14
9. MECHANICS' LIENS....................................................16
10. SIGNS..............................................................17
11. TENANT'S EQUIPMENT.................................................17
12. INDEMNIFICATION....................................................18
13. SUBORDINATION......................................................19
14. ASSIGNMENT AND SUBLETTING..........................................20
15. RULES AND REGULATIONS..............................................21
16. INSPECTION.........................................................21
17. CONDEMNATION.......................................................22
18. FIRE OR OTHER CASUALTY.............................................23
19. HOLDING OVER.......................................................23
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TABLE OF CONTENTS (continued)
PAGE
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20. EVENTS OF DEFAULT.................................................24
21. SURRENDER OF PREMISES..............................................28
22. LANDLORD'S LIENS...................................................28
23. INSURANCE..........................................................28
24. BROKERAGE..........................................................29
25. ESTOPPEL CERTIFICATES..............................................29
26. NOTICES............................................................29
27. FORCE MAJEURE......................................................30
28. SEPARABILITY.......................................................30
29. AMENDMENTS: BINDING EFFECT........................................31
30. QUIET ENJOYMENT....................................................31
31. GENDER.............................................................32
32. LIABILITY..........................................................32
33. NOTICE TO LENDER...................................................32
34. CAPTIONS...........................................................32
35. NO PARTNERSHIP.....................................................33
36. SALE...............................................................33
37. BENEFIT AND BURDEN.................................................33
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TABLE OF CONTENTS (continued)
PAGE
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38. ENTIRE AGREEMENT...................................................33
39. APPLICABLE LAW.....................................................33
40. MISCELLANEOUS......................................................34
41. ENVIRONMENTAL REPRESENTATIONS AND CONVENANTS ......................35
42. SECURITY DEPOSIT...................................................38
43. EXHIBITS AND ATTACHMENTS...........................................39
44. RENEWAL TERM.......................................................40
45. FIRST RIGHT TO NEGOTIATE PURCHASE..................................41
46. RIGHT OF FIRST REFUSAL.............................................41
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LEASE AGREEMENT
This Lease ("Lease") made as of July 28 1998, between: 000 XXXXX XXXX
XXXX, L.L.C., having an address at X.X. Xxx 000, Xxxxxx, Xxx Xxxxxx 00000
("Landlord") and IVC Industries Inc., a New Jersey corporation having an address
at 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Tenant").
FUNDAMENTAL LEASE PROVISIONS
Landlord shall lease the Premises to the Tenant pursuant to the following
Fundamental Lease Provisions:
Premises:
The Premises consist of the Building, and loading docks, parking lot area
and land located on the property known as 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxx
Xxxxxx and also designated as Xxxx 0.00, 0 xxx 0X xx Xxxxx 79 as shown on the
Tax Map of the Township of Freehold, Monmouth County, New Jersey and also
designated as Block 164, Lot 18.01 as shown on the Tax Map of the Township of
Xxxxxx, Monmouth County as delineated and described in Exhibit "A" attached
hereto.
Term:
A term commencing on the Commencement Date and terminating ten (10) years
from the Commencement Date unless earlier terminated in accordance with the
terms of this Lease.
Commencement Date:
The Commencement Date shall be July 28, 1998.
Annual Base Rent:
Base Rent shall commence on July 28, 1998 ("Rent Commencement Date").
For each lease year commencing with the first lease year the Annual Base
Rent (based upon approximately 129,600 square
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feet of gross rentable area) shall be as follows:
The first lease year (July 28, 1998 through July 27, 1999): $422,500 per annum
The second lease year (July 28, 1999 through July 27, 2000): $455,000 per annum
The third lease year (July 28, 2000 through July 27, 2001): $487,500 per annum
The fourth, fifth and sixth lease years (July 28, 2001 through July 27, 2004):
$520,000 per annum
The seventh, eighth, ninth and tenth lease year (July 28, 2004 through July 27,
2008): $585,000 per annum
Base Rent Per Month:
The monthly Base Rent shall commence on July 28, 1998 ("Rent Commencement
Date"). The monthly Base Rent during each lease year commencing with the first
lease year shall be as follows:
The first lease year (July 28, 1998 through July 27, 1999); $35,208.33 per month
The second lease year (July 28, 1999 through July 27, 2000): $37,916.67 per
month
The third lease year (July 28, 2000 through July 27, 2001): $40,625.00 per month
The fourth, fifth and sixth lease years (July 28, 2001 through July 27, 2004):
$43,333.33 per month
The seventh, eighth, ninth and tenth lease years (July 28, 2004 through July 27,
2008): $48,750.00 per month
Security Deposit:
$100,000.00 (Non-Interest bearing)
Permitted Use:
Warehousing, packaging, assembly of promotional materials, displays and
like items and distributing of merchandise and supplies. Any existing farmland
use may be continued.
Tenant's SIC Number:
2833
Broker:
None
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1. DEFINITIONS AND BASIC PROVISIONS
1.1 Fundamental Lease Provisions.
The Fundamental Lease Provisions shall be read in conjunction with all
other provisions of this Lease applicable thereto. Each reference in this Lease
to any of the Fundamental Lease Provisions on pages 1, 2 and 3 shall be
construed to incorporate all of the terms provided for under such provisions. If
there is any conflict between any of the Fundamental Lease Provisions set forth
herein and any other provisions of this lease, the latter shall control. This
listing on pages 1 and 2 of monetary amounts payable by Tenant shall not be
construed to be an exhaustive list of all monetary amounts payable by Tenant
under this Lease.
1.2 Definitions.
In addition to other terms defined herein, the following terms shall have
the meaning set forth herein unless the context otherwise requires:
1.2.1 "Building" shall mean the building upon the Premises.
1.2.2 "Governmental Authorities" shall mean all federal, state,
county, municipal and governmental entities, and all departments, commissions,
boards, bureaus and offices thereof, having or claiming jurisdiction over the
Premises.
1.2.3 "Landlord" shall mean the party designated as such on page 1
hereof, and its successors and assigns.
1.2.4 "Premises" means the Building and improvements and land
located upon the Property known as 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx and
also designated as Xxxx 0.00, 0, 0X xx Xxxxx 79 as shown on the Tax Map of the
Township of Freehold, Monmouth County and also designated as Block 164, Lot
18.01 as shown on the Tax Map of the Township of Xxxxxx, Monmouth County as
delineated and described in
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Exhibit "A" attached hereto.
1.2.5 "Real estate taxes" shall be deemed to mean all taxes and
assessments, special or otherwise, assessed upon or with respect to the
ownership of and/or all other taxable interests in the building and property of
which the Premises are a part, imposed by federal, state or local governmental
authority, or any other taxing authority having jurisdiction over the building
and property excluding income, intangible, franchise, capital stock, or state
inheritance taxes.
1.2.6 "Rent" shall include Base Rent, Additional Rent and all other
compensation required under this Lease.
1.2.7 "Tenant" shall mean the tenant identified on page 1 of this
Lease.
1.2.8 "Term" shall mean the period of time specified in the
Fundamental Lease Provisions. Whenever the phrase "year(s)" or "year(s) of the
term of this Lease" is used, the same (sometimes referred to as a "Lease Year")
shall be deemed to be the period beginning on the Commencement Date and every
anniversary thereof (or, if such Commencement Date does not occur on the first
(1st) day of a calendar month, then beginning with the first (1st) day of the
calendar month next following the Commencement Date and every anniversary
thereof) and expiring on the last day of the month twelve (12) consecutive
calendar months later. The "First Lease Year" shall include that portion of the
month from the Commencement Date (if the same does not occur on the first (1st)
day of a calendar month) to the end of such month.
2. LEASE GRANT AND TERM
2.1 Grant. Landlord leases to Tenant, and Tenant leases from Landlord the
Premises described in the Fundamental Lease Provisions and delineated on Exhibit
A of this Lease.
2.2 Term. The Term of this Lease shall be for the
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period of time specified in the Fundamental Lease Provisions commencing as
hereinafter set forth.
2.3 Commencement Date.
2.3.1 The Term shall commence on July 28, 1998.
2.4 Acceptance of Premises. Tenant shall accept possession of the Premises
on the Commencement Date of this Lease. This Lease shall continue for the Term
specified in the Fundamental Lease provisions. Tenant accepts the Premises "as
is". Tenant acknowledges that it presently occupies the Premises and therefore,
is fully knowledgeable as to the condition of the Premises. By occupying the
Premises, Tenant shall be deemed to have accepted the same as suitable for the
purpose herein intended and to have acknowledged that the same comply fully with
Landlord's obligations.
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3. BASE RENT
3.1 Base Rent. During the Term of this Lease, the annual Base Rent shall
be the sum set forth in the Fundamental Lease Provisions, which shall be payable
by Tenant in equal monthly installments as set forth in the Fundamental Lease
Provisions, on or before the first day of each month, in advance, payable to
Landlord or Landlord's agent at the address to which notices to Landlord are to
be sent hereunder, or such other place as the Landlord may designate, without
any prior demand therefor and without any deductions or setoff whatsoever.
Tenant's failure to make timely payments of rent as provided in Article 20.1
shall constitute an event of default under this Lease. Tenant may apply the
Security Deposit against the Base Rent due in the last three (3) months of the
Term with any difference between the Security Deposit and Base Rent to be paid
by Tenant to Landlord. Any portion of the Security Deposit not applied against
the Base Rent shall be returned in accordance with the terms of Article 42 of
the Lease.
3.2 Upon the Commencement Date, Tenant shall maintain fire and extended
coverage insurance and comprehensive liability insurance in accordance with the
provisions of Article 23.
Upon the Commencement Date, Tenant shall pay as additional rent real
estate taxes, as defined in this Lease, for the building and property of which
the Premises are a part.
3.3 Tenant shall pay to the taxing authority all real estate taxes for the
Premises when due. Proof of payment shall be furnished to Landlord by Tenant
upon request by Landlord.
3.4 Prorating Rent. If the Commencement Date occurs on
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a date other than the first day of a calendar month then the monthly rent for
such fractional month will be prorated on a daily basis based on the actual
number of days in the month.
3.5 The obligation to pay the additional rent in Article 3 shall survive
the expiration or termination of the Lease.
4. LATE CHARGE
Tenant shall pay a late charge ("Late Charge") of five (5%) percent (or
the lawful rate, if less), of any installment of Base Rent or additional rent
(or any portion thereof) that is not paid within ten (10) business days of the
due date. Notice of nonpayment and the Late Charge shall be provided by Landlord
to Tenant. In addition, Tenant shall pay an additional 3/4th of one percent (or
the lawful rate, if less) per month for every month (or portion of a month) on
any installment of Base Rent or additional rent (or any portion thereof) that is
not paid within thirty (30) days of the due date and after notice of nonpayment
by Landlord to Tenant.
5. UTILITIES AND SERVICES
5.1 Beginning on the Commencement Date of the Lease, the Tenant shall pay
all utilities servicing the Premises. Upon request from Landlord, Tenant shall
furnish to Landlord proof of payment of the utilities. This obligation by Tenant
to pay for utilities and services incurred during the term under this paragraph
5.1 shall survive the expiration or termination of this Lease.
5.2 Should any utility service become unavailable from any public utility
company, public authority or any other person, firm or corporation, including
Landlord, supplying such utility, Landlord shall incur no liability whatsoever
and it shall not constitute a termination of this Lease or an eviction
(constructive or otherwise) hereunder provided that
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the unavailability is not due to Landlord's negligence or willful misconduct.
6. USE
6.1 The Premises shall be used solely for the Permitted Use set forth in
the Fundamental Lease Provisions and for no other purposes except upon
Landlord's written consent.
6.2 Tenant shall not do or permit anything to be done in or about the
Premises nor bring or keep anything therein which will in any way increase the
existing rate of or affect any fire insurance or other insurance upon the
Building or any of its contents, or cause a cancellation of any insurance policy
covering the Building or any part thereof or its contents. Tenant shall comply
with all requirements of the insurance companies insuring the Premises.
6.3 Tenant at its own cost and expense shall keep the premises clean and
free of pests and vermin to the reasonable satisfaction of Landlord.
6.4 Tenant shall not remove, attempt to remove or manifest an intention to
remove all or substantially all of Tenant's goods or property from or out of the
Premises, other than in the ordinary and usual course of business, without
having first paid and satisfied Landlord for all Rent which may be due or may
become due during the entire term of this Lease.
6.5 Compliance With Laws. Tenant shall comply with all applicable
covenants, conditions and restrictions now or hereafter affecting the Premises;
with all laws, ordinances, regulations, directives and requirements of all
governmental authorities having jurisdiction over the Premises; and with any
certificate of occupancy for the Building and shall not permit anything to be
done on the Premises in violation thereof. Upon demand, Tenant shall discontinue
any use of the
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Premises in violation of any covenants, conditions and restrictions, or of any
law, ordinance, regulation or governmental directive or of the certificate of
occupancy.
6.6 Tenant shall immediately give notice to Landlord in the event that
Tenant receives notice of any violation of law, ordinance, regulation, directive
or requirement of any governmental authority or any violation of the Certificate
of Occupancy.
7. ALTERATIONS, ADDITIONS OR IMPROVEMENTS
7.1 Tenant shall not make any material changes, improvements or additions
to the Premises without the Landlord's prior written consent which shall not be
unreasonably withheld. Tenant shall reimburse Landlord (which reimbursement
shall be deemed additional rent) for any and all reasonable costs, including
without limitation, legal, engineering or architectural costs incurred by
Landlord in reviewing the plans and specifications relating to any changes,
improvements or additions.
7.2 At Landlord's request and provided Landlord gives notice at the time
of its consent pursuant to Article 7.1 that it would require removal at the end
of the term, Tenant shall remove any changes, improvements, or additions made
during the term at the end of the Term and restore the Premises to its original
condition reasonable wear and tear excepted. Tenant may remove from the Premises
movable fixtures, personal property and those items set forth on Exhibit B which
shall remain Tenant's property at all times.
7.3 Tenant may elect to add to the existing Building or construct another
building ("New Building") upon the Premises at Landlord's cost and expense.
Tenant shall submit a plan to Landlord of the addition or New Building for
Landlord's consent which shall not be unreasonably withheld. The
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criteria for Landlord's approval shall be whether the addition or New Building
is for a structure consistent with the uses permitted under the Lease with no
special features making it unusable for future tenants and whether Landlord can
obtain financing as specified herein. The Base Rent for the proposed addition or
New Building shall be calculated on the following basis: The Landlord is to
secure a loan in the amount of 100% of the cost of the addition or New Building.
The Landlord shall secure a loan at competitive rates for a ten (10) year term
on a twenty-five (25) year amortization schedule. The annual debt service
created for this loan multiplied by 1.20 shall determine the annual Base Rent
for the addition or New Building. The annual Base Rent for the addition or New
Building shall be fixed for the new ten (10) year term which shall be applicable
in the event of the construction of the addition or New Building.
The addition or New Building shall be constructed with due diligence by
Landlord in accordance with the Tenant's Plan.
Any addition or New Building must comply with all governmental
requirements prior to the start of construction. Landlord shall at its cost and
expense diligently proceed to procure necessary governmental approvals for the
addition or New Building.
The Base Rent for the addition or New Building shall be added to the
current Base Rent on the existing facility to create the new Base Rent for the
entire facility.
In the event that the addition or New Building is constructed, the Tenant
agrees to enter into a new ten (10) year lease for the additions or New Building
from the date of the completion of the addition or New Building and its delivery
to Tenant. In such event the term of the existing
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lease shall be extended to be coterminous with the term of the lease for the
addition or New Building. During the extended term, the Annual Base Rent set
forth in the Fundamental Lease Provisions of this Lease shall remain in effect
for the balance of the existing ten (10) year term in respect to the existing
improvements. (Tenant shall pay rent for the addition or New Building as set
forth in this Article 7.3.). If the term is so extended, after the expiration of
the tenth (10th) lease year of the existing initial term the Annual Base Rent
per annum set forth in Article 44 of the Lease for the renewal term or terms
shall be utilized as the Annual Base Rent for the remainder of the extended ten
(10) year term in respect to the existing improvements. By way of example, if
the addition or New Building is constructed and the extended term commences on
the first day of the seventh lease year of the existing term the Annual Base
Rent shall be $585,00 per annum for the first six (6) lease years of the
remaining term (based initially upon the Annual Base Rent in the Fundamental
Lease Provisions and then upon the Annual Base Rent in Article 44) and the
Annual Base Rent for remaining four (4) lease years of the extended term shall
be $617,500 in years seven, eight, and nine and $650,000 in year ten.
In the event of an extension of the Lease pursuant to this Paragraph 7.3,
the Renewal Term period shall be reduced by the period of the extension under
this Paragraph 7.3. By way of example, if the Lease is extended for an
additional six (6) years under Paragraph 7.3, the Renewal Term period under
Article 44 which equals a total of ten (10) years shall be reduced by six (6)
years for a remaining renewal term period of four (4) years subsequent to the
termination of the term extended pursuant to Paragraph 7.3 (at the applicable
lease year rent set forth in Article 44).
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Any New Building or addition to the Premises shall not be in excess of
70,000 sq. ft. and any addition or New Building shall be of similar construction
to the existing building with a minimum of 24' clear height with appropriate
docks for this type of Building.
During the first three years after the Commencement Date Tenant shall have
the exclusive right to request Landlord to construct additional space upon the
Premises as set forth in Article 7.3 and in the event that Tenant shall exercise
such right the option of Landlord to recapture a portion of the Premises shall
be null and void. After the expiration of the third lease year, provided Tenant
has not requested Landlord to construct an addition or New Building as set forth
in Article 7.3 then the Landlord upon thirty (30) days notice to Tenant may
elect to recapture the portion of the Premises as delineated and described in
Exhibit A-1 as attached hereto ("Recaptured Premises").
In the event that the Landlord provides notice of its intention to
recapture said portion of the Premises the Tenant shall have the right within
said thirty (30) day period to request the Landlord to construct the addition or
New Building upon said portion of the Premises in which event Landlord's
exercise of the option to recapture the said portion of the Premises shall be
null and void and Tenant shall continue to Lease said portion of the Premises.
If the Landlord recaptures the portion of the Premises as set forth herein
then the Landlord shall be permitted to construct improvements upon said
Recaptured Premises subject to the limitations contained in this Lease and the
rights afforded to Tenant pursuant to Articles 45 and 46. No use of the
Recaptured Premises by Landlord or its tenants or successors shall interfere
with the right of Tenant to use the
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Premises except Landlord shall have the right to use the Recaptured Premises as
provided herein. In the event Landlord recaptures the Recaptured Premises as
provided herein, Landlord and Tenant shall thereafter share use of the roadway
shown on the survey attached hereto as Exhibit A-1 for purposes of ingress and
egress or such roadway as otherwise agreed by the parties. Landlord shall pay
for any costs associated with sharing the roadway and changes to the roadway,
e.g. widening, relocation costs, maintenance and repairs. Landlord shall be
responsible at its sole cost and expense to obtain any required governmental
approvals arising from the sharing of the roadway. Landlord's use shall not
materially interfere with Tenant's use of the roadway for the Tenant's Permitted
Use as set forth in the Fundamental Lease Provisions. In the event of a dispute
relating to the roadway if the parties cannot agree the dispute shall be
submitted by the parties to the American Arbitration Association (or its
successor) for resolution. The fees and charges of the American Arbitration
Association and arbitrator shall be shared equally by the parties. The decision
of the arbitrator shall be final and binding upon the parties.
In the event that the Landlord elects to recapture said portion of the
Premises then Landlord shall pay real estate taxes and other charges and costs
attributable to the Recaptured Premises, shall insure the Recaptured Premises
with the same coverage required of Tenant under this Lease and shall defend,
indemnity and save harmless Tenant from and against all fines, suits, claims,
demands, losses and actions (including attorneys' fees) for any injury to
persons or damage to or to loss of property on or about the Recaptured
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Premises. Tenant shall have no responsibility for the Recaptured Premises and
shall be relieved of any and all further responsibility in respect to said
Recaptured Premises. If the Landlord recaptures the Recaptured Premises pursuant
to the terms of the Lease the reference in the Lease to the "Premises" shall
thereafter not include the "Recaptured Premises".
8. TENANT'S REPAIRS AND MAINTENANCE
8.1. Tenant will not in any manner deface or injure the Building, and will
pay the cost of repairing any damage or injury done to the Building or any part
thereof by Tenant or Tenant's agents, employees or invitees. Except for the
roof, Tenant shall maintain, repair and take good care of the Premises whether
interior or exterior, structural or non-structural or whether capital or
non-capital and keep the Premises free from debris, waste and nuisance of any
kind, at its cost and expense in accordance with the Repair and Maintenance
schedule attached hereto as Exhibit C. Tenant shall keep the Premises, including
but not limited to, all mechanical systems, the heating and air conditioning
system, plumbing, electrical systems, overhead doors, loading docks and related
mechanisms, equipment and fixtures in good condition and working order,
reasonable wear and tear excepted.
Tenant shall be responsible for the removal of all garbage from the
Premises in accordance with law. Tenant shall store its garbage pending removal
in a neat and orderly manner.
The performance by Tenant of its obligations to maintain and to make
repairs or replacements shall only be performed by
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contractors and subcontractors of Tenant reasonably approved in writing in
advance by Landlord, it being understood that Tenant shall procure and maintain,
and shall cause contractors and subcontractors engaged by or on behalf of Tenant
to procure and maintain, insurance coverage against such risks, in compliance
with Article 23 hereto.
If Tenant fails to perform such maintenance and/or to make such repairs or
replacements or to take steps to have defective or damaged condition(s)
corrected within fifteen (15) days after the occurrence of damage or injury, or
detection of such condition(s), Landlord may at its option make such maintenance
and/or repair or replacement, and Tenant, shall upon demand therefor, pay
Landlord for the cost thereof as additional rent. At the end or other
termination of this Lease, Tenant shall deliver up the Premises with all
improvements located thereon (except as otherwise herein provided) in good
repair and condition, reasonable wear and tear excepted, and shall deliver to
Landlord all keys to the Premises.
8.2 Within in twelve (12) months of the Commencement Date Tenant shall
pave at its sole cost and expense the parking lot in accordance with a paving
plan attached hereto as Exhibit C.
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9. MECHANICS' LIENS
As a condition precedent to Landlord giving advance written consent to
Tenant's use of outside contractors and subcontractors for repairs and/or
maintenance of the Premises or replacements ("Repairs"), Tenant shall obtain and
deliver to Landlord, on Landlord's written demand therefor, a list of all
contractors, subcontractors, materialmen and laborers involved or to become
involved in such work. If any mechanic's or materialmen's lien is filed against
the Premises, for work claimed to have been done for, or materials claimed to
have been furnished to Tenant, such lien shall be discharged by Tenant within
thirty (30) days thereafter, at Tenant's sole cost and expense, by the payment
thereof or by filing any bond required by law or by making a deposit of funds as
necessary to cause discharge of the lien under the Construction Lien Law
(N.J.S.A. 2A:44A-1 et seq. also known as P.L. 1993 c.318) or other applicable
lien law. If Tenant shall fail to discharge any such mechanic's or materialmen's
lien, Landlord may, at its option, after five (5) days written notice to the
Tenant, discharge the same and treat the cost thereof as Additional Rent payable
with the monthly installment of Base Rent next becoming due. Such discharge by
Landlord shall not be deemed to waive, or release or excuse the default of
Tenant in not discharging the same. Any such Repairs shall be conducted on
behalf of Tenant. In the event Landlord shall give its written consent to the
making of any such Repairs by Tenant, such written consent shall not be deemed
to be an agreement or consent by Landlord to subject the Landlord's interest in
the Premises, the Building or the land to any mechanic's or materialmen's liens
which may be filed in respect of any such Repairs made by or on behalf of
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Tenant.
10. SIGNS
Tenant may erect, install or display any sign or advertising material
without the prior written consent of Landlord subject to applicable laws and
ordinances.
11. TENANT'S EQUIPMENT
11.1 Tenant shall not install any equipment of any kind or nature
whatsoever which will or may necessitate any material changes, replacements or
additions to, or in the use of, the water system, heating system, plumbing
system, air conditioning system, or electrical system of the Premises, without
first obtaining the prior written consent of Landlord.
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12. INDEMNIFICATION
Landlord shall not be liable for, and Tenant will indemnify and save
harmless Landlord of and from, all fines, suits, claims, demands, losses and
actions (including attorneys' fees) for any injury to persons or damage to or
loss of property on or about the Premises unless proximately caused by the
negligence of Landlord or third parties over whom Tenant has no control. Without
limiting the generality of the foregoing, Landlord shall not be liable or
responsible for any loss or damage to any property or death or injury to any
person occasioned by theft, fire, act of God, public enemy, criminal conduct of
third parties, injunction, riot, strike, insurrection, war, court order,
requisition or other Governmental or by other tenants of the Building or any
other matter beyond the reasonable control of Landlord, or for any injury or
damage or inconvenience which may arise through repair or alteration of any part
of the Building and the Premises or failure to make repairs (it being recognized
that Landlord has no obligation to make repairs, or from any cause whatsoever
except Landlord's negligence, willful misconduct or as may be imposed by law.
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13. SUBORDINATION
13.1 Provided Landlord shall furnish a subordination and nondisturbance
agreement as provided herein, this Lease shall not be a lien against the
Premises in respect to any mortgages that may have heretofore been placed or
which may hereafter be placed upon the Premises or any part thereof. Provided
Landlord shall furnish a subordination and nondisturbance agreement as provided
herein, the recording of such mortgage or mortgages shall have preference and
precedence and be superior and prior in lien to this Lease by virtue of this
Article 13, irrespective of the dates of recording. Tenant shall execute any
instruments, without cost to Landlord, which further effect the subordination of
this Lease to any such mortgage or mortgages. A refusal by Tenant to execute
such instruments within fifteen (15) days from receipt of such request shall
entitle Landlord to the option of canceling this Lease, or for such other relief
as Landlord may elect.
Landlord shall obtain a subordination and nondisturbance agreement from
any current or future mortgagee providing that for so long as Tenant complies in
full with all terms and conditions of this Lease, Tenant's possession,
occupation and use of the premises shall not be disturbed or interfered with due
to any non-compliance of Landlord under any mortgage.
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14. ASSIGNMENT AND SUBLETTING
14.1 Tenant may with the Landlord's prior written consent, assign this
Lease or sublet the Premises which consent shall not be unreasonably withheld.
Landlord shall only be entitled to refuse consent if the proposed subtenant or
assignee will use the Premises in such manner as to cause environmental
contamination thereof. Tenant may at any time sublease up to 36,000 square feet
of rentable space to a subtenant including but not limited to Xxxxx'x Rental
Corp. without Landlord's consent. Tenant may also assign this Lease or sublease
the Premises without Landlord's consent (a) to a corporation or other entity, a
majority of whose voting stock is owned by Tenant; or (b) to a corporation or
entity in which or with which Tenant, its corporate successors or assigns, is
merged or consolidated so long as the liabilities of the corporation or entity
participating in such merger or consolidation are assumed by the corporation or
entity surviving such merger or created by such consolidation; or (c) any
corporation or entity acquiring a substantial portion of Tenant's assets so long
as the successor has a net worth no less than Tenant's net worth immediately
prior to such merger, consolidation, acquisition or assumption as evidenced by
the most recent year end audited financial statements. If Tenant becomes a
subsidiary of a corporation, Tenant shall remain as the Tenant under this Lease
and if Tenant shall be merged into another entity, then such entity shall become
the Tenant under this Lease.
14.2 Tenant shall reimburse and pay Landlord for all out-of-pocket
reasonable expenses, including but not limited to, architectural fees,
engineering fees, and attorney's fees
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incurred by Landlord in connection with any permitted or attempted subletting or
assignment of the Premises.
15. RULES AND REGULATIONS
Tenant and Tenant's agents, employees, and invitees will comply fully with
all reasonable rules and regulations of the Landlord relating to the Premises.
Landlord shall at all times have the right to change such rules and regulations
or to promulgate other reasonable rules and regulations in such manner as may be
deemed advisable for the safety, care, or cleanliness of the Premises and for
preservation of good order therein, all of which rules and regulations will be
forwarded to Tenant in writing and shall be complied with and observed by
Tenant. Tenant shall further be responsible for the compliance with such rules
and regulations by the employees, servants, agents, visitors and invitees of
Tenant.
16. INSPECTION
Landlord (and its officers, employees and representatives) shall have the
right to enter into and upon any and all parts of the Premises upon reasonable
notice at all reasonable hours to:
16.1 Inspect (including but not limited to inspection of fire and
sprinkler systems in the Premises which shall be at Landlord's option at least
weekly) or conduct tests in same for any purpose that the Landlord may deem
necessary (but without any obligation to do so, except as expressly provided for
herein); and
16.2 Show the Premises to prospective tenants within nine months prior to
the expiration of the Lease Term and to show at any time during the Term the
Premises to contractors, purchasers or lenders.
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16.3 Landlord will give advance notice of at least 24 hours of entry and
with opportunity for Tenant's representative to be present, and will minimize
interference with Tenant's operations during such entry.
17. CONDEMNATION
17.1 If Tenant's use of the Premises is materially adversely affected due
to the taking by eminent domain of the Premises (or any part thereof or any
estate therein) then, in either event, this Lease shall terminate on the date
when title vests pursuant to such taking or when a declaration of taking is
filed pursuant to such taking, whichever shall first occur. In the event that
Landlord shall elect to convey the premises in lieu of a taking by eminent
domain, this Lease shall terminate on the date of the delivery of such deed.
Rent shall be apportioned as of such termination date and any Rent paid for any
period beyond said date shall be repaid to Tenant.
17.2 Tenant shall not be entitled to any part of the award for such taking
or any payment in lieu thereof, but Tenant may file a separate claim for any
taking of fixtures owned by Tenant which have not become Landlord's property,
and for moving expenses, provided the same shall in no way affect or diminish
Landlord's award.
17.3 In the event of a partial taking which does not effect a termination
of this Lease but does deprive Tenant of the use of a portion of the Premises,
there shall either be an abatement or an equitable reduction of the Rent for the
period for which and the extent to which the Premises so taken are not
reasonably usable for the purpose for which they are leased hereunder.
Notwithstanding the foregoing, if only land
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is taken, access to the Premises is not affected, and Tenant's ability to add to
the existing Building or construct another building pursuant to Article 7.3 is
not affected, then there shall not be an abatement of or an equitable reduction
of the Rent.
18. FIRE OR OTHER CASUALTY
18.1 Tenant is liable for its actions, omissions to act and/or negligence
and the actions, omissions to act and/or negligence of Tenant's employees,
agents or invitees with respect to the Premises and the property of which the
Premises are a part.
18.2 Tenant shall notify the Landlord at once of any fire or other
casualty in the Building or on the Premises. Tenant is not required to pay Rent
when the Premises are destroyed in part or in whole by a casualty not due to
Tenant's actions or negligence. If part of the Premises can be used by Tenant
for the purposes set forth in this Lease, Tenant must pay Rent pro rata for the
usable part.
18.3 If the Building or the Premises are partially damaged by fire or
other casualty, Tenant shall repair it as soon as reasonably possible following
the actual receipt of and to the extent of the insurance proceeds received by
Tenant.
19. HOLDING OVER
If Tenant does not vacate the Premises at the end of the Term, Tenant
shall become a tenant-at-will and the Base Rent shall automatically become 150%
of the Base Rent set forth in the Fundamental Lease Provisions plus additional
rent and charges due by Tenant under the Lease.
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20. EVENTS OF DEFAULT
20.1 The Tenant shall be in default under this Lease whenever any of the
following shall have occurred or shall be continuing:
(a) Non-payment of Rent:
If any payment of Rent or any other lawful and proper charge upon the
Lease is not paid within ten (10) business days after it shall become due and
payable provided in no event shall Tenant be in default until written notice
from Landlord of the failure to pay Rent and failure to pay Rent within two (2)
business days after receipt of such notice from Landlord or ten (10) business
days after the date such Rent was due, whichever is later.
(b) Misrepresentation or Breach of Warranty:
(i) Breach of Warranty: If any warranty or representation made by
the Tenant to the Landlord in connection with any transaction contemplated by
this Lease shall be knowingly breached and such breach shall continue for thirty
(30) Business Days after notice thereof shall have been given by the Landlord to
the Tenant.
(c) Breach of Other Covenants:
If the Tenant shall knowingly breach or fail to perform any material term,
covenant or condition of this Lease other than as referred to in Article 20.1(a)
and such breach or failure to perform shall continue for thirty (30) days after
notice thereof shall have been given by the Landlord to the Tenant; provided,
however, that if the nature of such breach or failure of performance is such
that it cannot reasonably be cured within said period of thirty (30) days, the
Tenant shall not be in default under this Section 20.1 if the Tenant shall
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promptly (but in any event within said period of thirty (30) days) commence
efforts to cure said breach or failure of performance and shall thereafter (in
the reasonable opinion of the Landlord) diligently prosecute such efforts to a
successful conclusion.
(d) Any statements made by Tenant shall be deemed to be to the best of
Tenant's knowledge.
20.2 Upon any termination of this Lease, Tenant shall quit and peacefully
surrender the Demised Premises to Landlord, and Landlord, upon or at any time
after such termination, may without further notice, enter upon and re-enter the
Demised Premises and possess and repossess himself thereof, by force, summary
proceedings, ejectment or otherwise, and may dispossess Tenant and remove Tenant
and all other persons and property from the Demised Premises including but not
limited to any subtenant or assignee of Tenant and the property of such
subtenant or assignee, and may have, hold and enjoy the Demised Premises and the
right to receive all rental income of and from the same.
20.3 At all times, from time to time after any such termination, Landlord
may relet the Demised Premises or any part thereof for such term or terms (which
may be greater or less than the period which would otherwise have constituted
the balance of the term of this Lease) and on such conditions (which may include
concessions or free rent or alterations of the Demised Premises) as Landlord in
his reasonable discretion may determine and may collect and receive the rents
therefor. Landlord shall in no way be responsible or liable for any failure to
relet the Demised Premises or any part thereof, or for any failure to collect
any rent due upon any such re-
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letting but Landlord shall make good faith efforts to mitigate damages.
20.4 No such termination of this Lease shall relieve Tenant of its
liability and obligations under this Lease, and such liability and obligation
shall survive such termination. In the event of any such termination, whether or
not the Demised Premises or any part thereof shall have been relet, Tenant shall
pay to Landlord the net rent and all other charges required to be paid by Tenant
up to the time of such termination of this Lease, and thereafter Tenant, until
the end of what would have been the term of this Lease in the absence of such
termination, shall be liable to Landlord for, and shall pay to Landlord, the
equivalent of the amount of net rent and the other rent and charges which would
be payable under this Lease by Tenant if this Lease were still in effect, less
the net proceeds of any reletting effective pursuant hereto, after deducting all
Landlord's reasonable expenses in connection with such reletting including,
without limitation, all repossession costs, brokerage and management
commissions, operating expenses, legal expenses, reasonable attorney's fees,
alteration costs, and the expenses of preparation for such reletting. Tenant
shall pay such current damages to Landlord monthly on the date on which the net
rent would have been payable under this Lease as if the Lease were still in
effect and Landlord shall be entitled to recover from Tenant each monthly
deficiency as same shall arise.
20.5 No failure by Landlord or Tenant to insist upon the strict
performance of any agreement, term, covenant or condition hereof or to exercise
any right or remedy consequent upon a breach thereof and no acceptance of full
or partial
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rent during the continuance of any such breach, shall constitute a waiver of any
such breach or such agreement, term, covenant or condition. No agreement, term,
covenant or condition hereof to be performed or complied with by Tenant or
Landlord, and no breach thereof, shall be waived, altered or modified except by
written instrument executed by Landlord and Tenant. No waiver of any breach
shall affect or alter this Lease, but each and every agreement, term, covenant
and condition hereof shall continue in full force and effect with respect to any
other then existing or subsequent breach thereof.
20.6 In the event of any breach or threatened breach by Tenant of any of
the agreements, terms, covenants or conditions contained in this Lease, Landlord
shall be entitled to enjoin such breach or threatened breach and shall have the
right to invoke any right and remedy allowed at law or in equity or by statute
or otherwise as though re-entry, summary proceedings and other remedies were not
provided for in this Lease.
20.7 Each right and remedy provided for in this Lease shall be cumulative
and shall be in addition to every other right or remedy provided for in this
Lease or now or hereafter existing at law or in equity or by statute or
otherwise, and the exercise or beginning of the exercise by Landlord or Tenant
of any one or more of the rights or remedies provided for in this Lease or now
or hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the party in question of any or
all other rights or remedies provided for in this Lease or now or hereafter
existing at law or in equity or by statute or
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otherwise.
21. SURRENDER OF PREMISES
No act or thing done by Landlord or its agents during the Term shall be
deemed an acceptance of a surrender of the Premises, and no agreement to accept
a surrender of the Premises shall be valid unless the same is made in writing
and signed by Landlord.
22. LANDLORD'S LIENS
Landlord shall have, at all times, and Tenant hereby grants to Landlord, a
valid security interest to secure payment of all rentals and other sums of money
becoming due hereunder from Tenant, and to secure payment of any damages or loss
which Landlord may suffer by reason of the breach of Tenant of any covenant,
agreement or condition herein, upon all goods, wares, equipment, fixtures,
furniture, improvements and other personal property owed by Tenant presently or
which may hereafter be situated on the Premises, and such property shall not be
removed therefrom without the consent of Landlord until all arrearages in Rent
as well as any and all other sums of money then due to Landlord hereunder shall
first have been paid and discharged and all the covenants, agreements, and
conditions hereof have been fully complied with and performed by Tenant.
23. INSURANCE
23.1 Tenant shall maintain insurance in the form of its certificate of
insurance attached hereto as Exhibit D. Tenant shall name Landlord's mortgagee
as an additional insured.
23.2 Tenant shall cause its contractors and subcontractors to comply with
the insurance requirements reasonably required by Landlord.
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23.3 Tenant shall furnish a certificate of insurance and such other
evidence reasonably satisfactory to Landlord of the maintenance of all insurance
coverages required hereunder upon the earlier of its entry upon the Premises or
the Commencement Date of this Lease.
24. BROKERAGE
Each party warrants that it has had no dealings with any broker or agent
in connection with the negotiations or execution of this Lease and a party who
falsely so warrants shall indemnify the other party against all costs, claims,
expenses, attorney's fees or other liability for commissions or other
compensation or charges claimed by any broker or agent claiming the same by,
through or under said party.
25. ESTOPPEL CERTIFICATES
Tenant agrees to furnish from time to time when requested by Landlord or
the holder of any mortgage on the Building, an estoppel certificate signed by
Tenant confirming and containing such factual certifications and representations
deemed appropriate by Landlord or the holder of any mortgage on the Building.
Tenant shall, within fifteen (15) days following receipt of said certificate
from Landlord, return a fully executed copy of said certificate to Landlord
within the foregoing fifteen (15) day period, failing which Tenant shall be
deemed to have approved and confirmed all of the terms, certifications and
representations contained in such certificate.
26. NOTICES
Each provision of this Lease, or of any applicable governmental laws,
ordinances, regulations, and other requirements with reference to the sending,
mailing or delivery of
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any notice, or with reference to the making of any payment by Tenant to
Landlord, shall be deemed to be complied with when and if the following steps
are taken.
26.1. All Rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address set forth in the
Fundamental Lease Provisions or at such other address as Landlord may specify
from time to time by written notice delivered in accordance herewith.
26.2 Any notice or document required to be delivered hereunder shall be
deemed to be delivered as and when actually received. Notice by the United
States Mail shall be postage prepaid, certified or registered mail, (with return
receipt requested) addressed to the party at the address set forth at the head
of this Lease and to such other addresses as either of said parties shall have
specified by written notice delivered in accordance herewith.
27. FORCE MAJEURE
Whenever a period of time is herein prescribed for action to be taken by
Landlord, Landlord shall not be liable or responsible for, and there shall be
excluded from the computation for any such period of time, any delays due to
strikes, riots, acts of God, war, governmental laws, regulations or restrictions
or any other causes of any kind whatsoever which are beyond the reasonable
control of Landlord.
28. SEPARABILITY
If any clause or provision of this Lease is held by any court of competent
jurisdiction to be illegal, invalid, or unenforceable under present or future
laws in effect during the Term hereof, then and in that event, the remainder of
this
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Lease shall not be affected thereby. In lieu of each clause or provision of this
Lease that is illegal, invalid or unenforceable, there shall be added as a part
of this Lease a clause or provision as similar in terms to such illegal, invalid
or unenforceable clause or provision as may be possible which is legal, valid
and enforceable.
29. AMENDMENTS: BINDING EFFECT
This Lease may not be altered, changed or amended, except by instrument in
writing signed by both parties hereto. No provision of this Lease shall be
deemed to have been waived unless such waiver be in writing signed by the
waiving party and addressed to the other party, nor shall any custom or practice
which may evolve between the parties in the administration of the terms hereof
be construed to waive or lessen the right of either party to insist upon the
performance in strict accordance with the terms hereof. The terms and conditions
contained in this Lease shall apply to, inure to the benefit of, and be binding
upon the parties hereto, and upon their respective successors in interest and
legal representatives, except as otherwise herein expressly provided.
30. QUIET ENJOYMENT
Provided Tenant has performed all of the terms and conditions of this
Lease, including the payment of Rent, to be performed by Tenant, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Lease Term, without
hinderance from Landlord, subject to the terms and conditions of this Lease.
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31. GENDER
Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
32. LIABILITY
The liability of Landlord to Tenant for any default by Landlord under the
terms of this Lease shall be limited to the interest of Landlord in the Building
and the Land. Landlord shall not be liable for any deficiency.
33. NOTICE TO LENDER
If the Premises or the Building or any part thereof are at any time
subject to any first mortgage or other similar instrument and this Lease or the
Rent hereof is assigned to such mortgagee, and Tenant is given written notice
thereof, including the post office address of such assignee, then Tenant shall
not terminate this Lease or xxxxx any Rent for any default on the part of
Landlord without first giving written notice by certified or registered mail,
return receipt requested, to such assignee, specifying the default in reasonable
detail, and affording such assignee a reasonable opportunity to make
performance, at its election, for and on behalf of the Landlord.
34. CAPTIONS
The captions contained in this Lease are for the convenience of reference
only, and in no way limit or enlarge the terms and conditions of this Lease.
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35. NO PARTNERSHIP
Nothing contained in this Lease shall be deemed or construed to create a
partnership or joint venture of or between Landlord and Tenant, nor to create
any other relationship between the parties hereto other than that of Landlord
and Tenant.
36. SALE
In the event Landlord shall sell or convey the Building, all liabilities
and obligations on the part of Landlord under this Lease accruing thereafter
shall terminate provided the new landlord acknowledges and agrees in writing to
assume the duties and obligations under the Lease, and thereupon all such
liabilities and obligations shall be binding upon the new landlord. Tenant
agrees to attorn to such new landlord.
37. BENEFIT AND BURDEN
The provisions of this Lease shall be binding upon, and shall
inure to the benefit of, the parties hereto and to the extent permitted
under this Lease to each of their respective representatives, successors
and assigns.
38. ENTIRE AGREEMENT
This Lease, together with the Exhibits attached hereto and Riders (if
any), contain and embodies the entire agreement of the parties hereto, and no
representations, inducements or agreements, oral or otherwise, between the
parties not contained in this Lease, the Exhibits and the Rider (if any), shall
be of any force or effect.
39. APPLICABLE LAW
This Lease and the rights and obligations of both parties hereto hereunder
shall be governed by the laws of the State of New Jersey.
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40. MISCELLANEOUS
40.1 There shall be no merger of this Lease or of the leasehold estate
hereby created with the fee estate in the Premises or any part thereof by reason
of the fact that the same person may acquire or hold, directly or indirectly,
this Lease or the leasehold estate hereby created or any interest in this Lease
or in such leasehold estate as well as the fee estate in the leasehold premises
or any interest in such fee estate.
40.2 Neither Landlord or Landlord's agents or brokers have made any
representations or promises with respect to the Premises or the Building except
as herein expressly set forth and no rights, easements or licenses are acquired
by Tenant by implication or otherwise except as expressly set forth in the
provisions of this Lease.
40.3 The submission of this Lease to Tenant shall not be construed as an
offer, nor shall Tenant have any rights with respect thereto unless and until
Landlord shall execute a copy of this Lease and deliver the same to Tenant.
40.4 If Tenant signs as a corporation, each of the persons executing this
Lease on behalf of Tenant does hereby covenant and warrant that Tenant is a duly
authorized and existing corporation, qualified to do business in New Jersey,
that the corporation has full right and authority to enter into this Lease, and
that each and both of the persons signing on behalf of the corporation were
authorized to do so.
40.5 Tenant shall furnish to Landlord copies of its 10K and 10Q Reports as
they are filed with the Securities and Exchange Commission. Tenant shall furnish
copies of its press releases to Landlord when they are disseminated to the
public.
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41. ENVIRONMENTAL REPRESENTATIONS AND COVENANTS:
In addition to and not in limitation of all other warranties and
representations contained in this Lease, the Tenant represents and warrants to
Landlord, after due inquiry and investigation, and hereby covenants with the
Landlord as follows:
(a) Compliance with Laws:
Tenant's use of the Premises (including any and all use of the Premises by
any tenant, subtenant or licensee of the Tenant) does not and will not knowingly
violate federal, state and local environmental laws, including (but not limited
to) the New Jersey Spill Compensation and Control Act, (being N.J.S..
58:10-23.11, et seq. and commonly called the "Spill Act") and the Industrial
Site Recovery Act (being N.J.S.. 131K-6 et seq. and commonly called "ISRA").
(1) Storage of Hazardous Substances:
To the best of the Tenant's knowledge, information and belief, and
except as set forth in the "Final Report, ECRA/ISRA Compliance, Capscan Cable
Company, Freehold, Monmouth County, ISRA Case No. 89100" dated March 1994 and
prepared by ENVIRON Corporation, the Premises have not been used by Tenant, any
tenant, subtenant or licensee of the Tenant or any prior owner, tenant,
subtenant or licensee of the Premises to refine, produce, store, handle,
transfer, process or transport "Hazardous Substances", as such term is defined
in N.J.S. 58:10-23.11b(k), except in accordance any and all applicable state and
federal law. Tenant will not knowingly in the future use nor suffer or permit
the Premises to be used for the foregoing purposes unless done (a) in full
compliance with any and all applicable state and federal law.
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(2) Notice of Alleged Violation:
The Tenant shall promptly notify the Landlord and furnish the
Landlord with a copy of any and all summonses, citations, directives, letters or
other communications concerning any violation or alleged violation of any
environmental law, rule or regulation on, about or respecting the Premises,
including (but not limited to) any violation or alleged violation of the Spill
Act.
(3) Notification of Spill:
The Tenant shall immediately notify the Landlord of any spill, leak,
or discharge of hazardous substances on the Premises not authorized by a permit
issued by a governmental agency having jurisdiction to issue such permits.
(4) Payment of Lien:
In the event a Lien shall be filed against the Premises pursuant to
the Spill Act, the Tenant shall within thirty (30) days from the date that it is
given notice that such a Lien has been placed against the Premises or, in the
event that the State of New Jersey has commenced steps to cause the Premises to
be sold pursuant to the Lien, within such shorter period of time as may be
necessary to prevent such sale, either (a) pay such sum as shall be necessary to
remove the Lien from the Premises, (b) provide a bond, cash deposit, or other
security in an amount sufficient to discharge the claim out of which the Lien
arises, or (c) take such other steps or make such other arrangements with the
lienor which result in a stay of execution, or forbearance in executing, upon
the lien.
(5) Notification with Respect to ISRA:
The Tenant shall promptly notify the Landlord of
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any termination of any lease or the closing or cessation of any operation at the
Premises or any other event which would require or trigger any action pursuant
to ISRA (including, but not limited to the events described in N.J.A.C.
7:26B-3.2, but Tenant shall not be required to take any action pursuant to ISRA
upon any of the events or operations described in N.J.A.C. 7:26B-2.1. If
required pursuant to the foregoing sentence, the Tenant shall provide evidence
to the Landlord of compliance by tenants and users with the provisions of ISRA
upon receipt by the Tenant of such evidence, including (but not limited to) any
"negative declaration" from the New Jersey Department of Environmental
Protection.
(6) Indemnification:
The Tenant shall indemnify and save harmless the Landlord from any
and all damages, remedial orders, judgments or decrees, and all costs and
expenses related thereto or arising therefrom, including but not limited to,
attorneys fees, cleanup, removal, repair and restoration costs, and lost rentals
(if any) arising out of the violation of any federal, state or local
environmental laws committed by Tenant, its subtenants or licensees. The
foregoing indemnification and hold harmless obligation shall remain in effect
and shall survive the expiration or other termination of this Lease, and shall
apply to all claims or proceedings arising out of the Landlord's interest in the
Premises as owner of the Premises.
(7) Additional Event of Default:
Failure to comply with the provision of this Article shall
constitute an Event of Default. A default under this Article shall be in
addition to and not in limitation of any other Events of Default specified in
this Lease.
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(8) Environmental Testing:
The Landlord shall have the right on prior notice to Tenant of at
least forty-eight (48) hours to engage in any environmental testing and sampling
of the Premises that the Landlord may reasonably deem necessary to protect its
interests whenever either (1) an Event of Default shall have occurred or shall
be continuing or (2) the Landlord shall deem such environmental testing and
sampling necessary to protect the Landlord, the Premises or any other collateral
which is security for the Loan from the effects of ISRA or the Spill Act. The
Tenant shall be liable for the costs of such environmental testing and sampling,
which shall be payable on demand, if the results of such testing and sampling
reveals a violation of ISRA or the Spill Act by Tenant, its subtenants or
licensees.
42. SECURITY DEPOSIT
The Landlord hereby acknowledges the receipt of $100,000.00 as a Security
Deposit which it is to retain as security for the faithful performance of all of
the covenants, conditions and agreements to this lease. The security deposit
shall not bear interest. Tenant may apply same to the last three (3) months
rent. Any portion of the Security Deposit not utilized to cure Tenant's default
under this Lease and not applied to rent shall be returned to Tenant within ten
(10) days following lease expiration or termination.
In the event of a bona fide sale of the Premises, the Landlord shall on
notice to Tenant have the right to transfer the Security Deposit to the vendee
for the benefit of Tenant but Landlord shall provide to Tenant the name and
address of any vendee to whom the Security Deposit is transferred.
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Landlord shall remain responsible for the return of the Security Deposit
notwithstanding any transfer to a vendee.
43. EXHIBITS AND ATTACHMENTS
All Exhibits listed hereinbelow are incorporated into this Lease and made
a part hereof for all intents and purposes:
Exhibit A. Description of the Premises
Exhibit A-1 Portion of Premises subject to Recapture by Landlord
Exhibit B. List of Items Remaining Tenant's Property
Exhibit C. Remedial and Maintenance Schedule
Exhibit D. Insurance Policy of Landlord
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44. RENEWAL TERM
Provided Tenant shall not be in default hereunder either at the time of
the exercise of the options herein accorded or at any time thereafter prior to
commencement of the Renewal Term's as herein described, Tenant shall have the
right to renew the term for two successive five (5) year periods which Renewal
Terms shall commence on the first day following expiration of the term ("Renewal
Term") and on the first day following the First Renewal Term. All of the terms
and conditions for the demise of the Premises for the Renewal Terms shall be
identical to those herein contained, except with respect to the Base Rent. The
Base Rent in the First Renewal Term shall be as follows: the Base Rent in the
first and second lease year shall be $585,000 per annum ($48,750 per month) and
in the third, fourth and fifth lease years, the Base Rent shall be $617,500 per
annum ($51,458.33 per month). The Base Rent in the first and second lease years
of the Second Renewal Term shall be $650,000.00 per annum ($54,166.67 per month)
and in the third, fourth and fifth lease years, the Base Rent shall be $715,000
per annum ($59,583.33 per month).
The time for Tenant's exercise of each option is of the essence. Tenant's
right to renew this Lease as set forth above shall be voidable by Landlord if:
(1) the written notice exercising the option of renewal to Landlord is not
received by Landlord on or before the date which is six (6) months prior
to the expiration date of the Term or six (6) months prior to the
expiration date of the First Renewal Term, as the case may be; or
(2) prior to the first day of any Renewal Term there
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occurs a default under this Lease; or
(3) Tenant is not in possession of the Premises pursuant to the terms
hereof at the time of the exercise of the option and at all times
thereafter during the term or First Renewal Term, as the case may be.
45. FIRST RIGHT TO NEGOTIATE PURCHASE
If Landlord desires to sell the Recaptured Premises as described in
Article 7.3 or the Premises or any portion thereof, before entering into an
agreement to sell to anyone else, Landlord will notify Tenant of its desire to
sell the Recaptured Premises and/or the Premises or portion thereof and the
price and basic terms Landlord is asking. If, within ten (10) business days
after receipt of the notice, Tenant gives Landlord written notice of its
interest in purchasing the Recaptured Premises and/or the Premises or portion
thereof at the price and upon the terms contained in Landlord's notice to
Tenant, Landlord and Tenant agree to negotiate a legally binding agreement to
carry out their previously expressed intent promptly and in good faith. If
Tenant fails to give such notice to Landlord within said ten (10) business days
period, Landlord will be free to sell the Premises and/or Recaptured Premises or
portion thereof subject to this Lease to anyone else upon the same terms offered
to Tenant and without any further obligation hereunder to Tenant.
46. RIGHT OF FIRST REFUSAL
46.1. If at any time during the term, Landlord desires to sell the
Premises or if Landlord recaptures a portion of the Premises pursuant to Article
7.3 and thereafter desires to lease or sell the Recaptured Premises or any
portion thereof and receives an acceptable bona fide offer of lease or
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purchase therefor, Landlord shall give Tenant written notice (the "Landlord's
Notice") of its intention to lease or sell in accordance with that offer, which
Landlord's Notice shall contain the terms and conditions of the offer to lease
or purchase as well as the name and address of the prospective tenant or
purchaser.
Upon the receipt of the Landlord's Notice, Tenant shall have the
right to lease the Recaptured Premises or purchase the Premises and/or the
Recaptured Premises or any designated portion thereof upon the same terms and
conditions contained in the bona fide offer to lease or purchase. Said right
shall be deemed exercised if Landlord receives written notice from Tenant,
within ten (10) business days of the receipt by Tenant of the Landlord's Notice,
stating that Tenant is willing and able to purchase the Premises and/or lease or
purchase the Recaptured Premises or such designated portion thereof upon the
same terms and conditions as were contained in the bona fide offer. If Tenant
does not exercise its right to lease the Recaptured Premises or purchase the
Premises and/or the Recaptured Premises or such designated portion thereof
within said ten (10) business day period, Landlord may convey the Premises
and/or lease or convey the Recaptured Premises or such designated portion
thereof within six (6) months after the end of said ten (10) business day
period, provided such lease of the Recaptured Premises or conveyance of the
Premises or Recaptured Premises is to the tenant or designated purchaser at the
same rent or price and upon substantially the same terms set forth in the
Landlord's Notice, and further provided that any lease or conveyance shall be
subject to this Lease. The right of first refusal
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provided herein shall be a continuing option and shall apply to any and all
future sales of the Premises or any portion thereof and/or to lease or sale of
the Recaptured Premises during the term of the Lease. No sale of the Premises or
sale or use of the Recaptured Premises by Landlord or its tenants and successors
shall interfere with the right of Tenant to use the Premises or the Recaptured
Premises pursuant to the terms of this Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Lease under seal
the day and year first above written,
WITNESS: LANDLORD:
000 XXXXX XXXX XXXX, X.X.X.
/s/ Xxxxxx XxXxxxxxx BY: /s/ Xxxxxx X. Xxxxxx
---------------------- ----------------------------
ATTEST: TENANT:
IVC INDUSTRIES INC.
/s/ Xxxxxx X. Xxxxxx BY: /s/ I. Xxxx Xxxxxxxxxx
---------------------- ----------------------------
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EXHIBIT B
1. Pallet Racking
2. Sprinkler System (In rack sprinkler system)
3. Telephone System
4. Building Signage
5. Alarm System
EXHIBIT D
Insurance Policy of Tenant (Rent Insurance and Environmental Insurance to be
supplied)
