This Indenture of Lease is made the 14th day of August, 1995, between
FREEWAY 130, L.L.C., with offices at X.0 Xxx 000, 000 Xxxxx Xxxxx, Xxxxxxxxxx,
XX 00000 ("Landlord") and X.X. XXXXX, INC., with offices at 00 Xxxxxx Xxxxxx,
Xx. Xxxxxx, XX 00000 ("Tenant").
ARTICLE 1
DEMISED PREMISES - USE OF DEMISED PREMISSES
TERM OF LEASE - COMPLETION OF IMPROVEMENTS
1.01 The Landlord hereby demises and leases to Tenant, and Tenant
hereby hires and takes from Landlord subject to the terms of the Lease, for the
term specified in Section 1.03, the premises known as 0 Xxxxxxxxxx Xxxxx, as
more fully described in Exhibit A hereto, together with the improvements to be
constructed thereon by Landlord pursuant to Section 1.04 (together, the "Demised
Premises").
1.02 Tenant shall use and occupy the Demised Premises for any lawful
purpose, specifically, for warehousing, distribution, corporate offices, and the
necessary truck and car parking associated with those uses.
1.03 The term of this Lease shall be six (6) years, unless sooner
terminated pursuant to other provisions of this Lease. The date of Commencement
of the term of this Lease shall be and Tenant's obligation to pay rent shall
commence on the earlier of (a) the date Landlord notifies Tenant that the
Demised Premises is ready for occupancy following substantial completion of the
work to be performed by Landlord pursuant to Section 1.04 hereof, and Tenant's
Certificate of Occupancy is issued, or (b) the date Tenant occupies the Demised
Premises or any part thereof, or (c) April 30, 1996 ("Commencement Date").
1.04 Before the term of this Lease begins, Landlord shall construct and
prepare a building and other improvements (the "Work") upon the Demised Premises
in accordance with the plans and specifications set forth in Exhibit B hereto
and such other working drawings and specifications as may be reasonably
necessary which shall be prepared by landlord in substantial conformity, with
the plans and specifications set forth in Exhibit B, but if such working
drawings and specifications are not so in conformity, they shall be subject to
the approval of Tenant, not to be unreasonably withheld, such approval to be
considered to have been given unless Tenant, within six (6) business days after
the submission of such working drawings and specifications to it, notifies
Landlord in writing of Tenant's disapproval and the reasons therefor. All other
work to be done or performed in or about the Demised Premises shall be by Tenant
at Tenant's sole cost and expense and in accordance with the provisions or
Article 5 hereof.
1.05 The Demised Premises shall conclusively be deemed ready for
Tenant's occupancy as soon as the Work has been substantially completed and a
Tenant Certificate of Occupancy is issued. The Demised Premises shall not be
deemed to be unready for Tenant's occupancy or incomplete (a) if only minor or
unsubstantial details of construction, decoration or mechanical adjustments
remain to be done in the Demised Premises or any part thereof provided that none
of such items are necessary to make the building reasonably tenantable for
Tenant's use, or (b) if a temporary or permanent certificate of occupancy has
been issued for the building, or (c) if delay in the availability of the Demised
Premises for Tenant's occupancy is caused in whole or in part by
Tenant.
1.06 Landlord shall give Tenant at least four (4) weeks's prior notice
of the date when the building is expected to be ready for occupancy. Upon
substantial completion of the Work, Landlord and "punchlist" listing incomplete
items or items that need to be corrected. As soon as conditions practicably
permit, Landlord shall finish the items of Work and adjustment not finished when
the building is ready for occupancy.
1.07 Subject to the provisions of Section 1.06, the entry by Tenant
into the Demised Premises and the taking of possession thereof shall be deemed
an acknowledgment by Tenant that the Demised Premises are in good and tenantable
and satisfactory condition at the beginning of the ter m of this Lease and that
up to the time of such occupancy Landlord has no duty to make repairs or
alterations to the Demised Premises at any time prior to or during the term of
this Lease except as specifically set forth in the Lease. Notwithstanding
anything in this Lease to the contrary, Landlord agrees to correct or repair any
patent or latent defects in the construction of the Work occurring within one
(1) year of the Commencement Date provided written notice thereof is given to
Landlord by Tenant within said one (1) year period,
ARTICLE 2
RENT
2.01 Tenant covenants and agrees to pay to Landlord, at Landlord's
address or at such other place as Landlord may from time to time designate,
during each year during the term hereof, a basic annual rental in the amount of
FIVE HUNDRED AND SEVENTEEN THOUSAND ONE HUNDRED AND SEVENTY-FOUR ($517,174)
DOLLARS, adjusted in accordance with Section 2.02 hereof (the "Basic Rent"). The
Basic Rent shall be in addition to all other payments to be made by Tenant
pursuant to this Lease and shall be paid, in advance, without notice or demand,
and without deduction or set-off, in monthly installments of one-twelfth
(1/12th) of such Basic Rent on the first (lst) day of each calendar month during
the term of this Lease, and a prorata portion of such monthly Basic Rent shall
be paid at the beginning and end of the term if the Commencement Date is or the
Lease terminates on other than the first day of a calendar month.
2.02 Renewals.
(a) Tenant shall have the right and option to extend the term
of this Lease for ONE (1) successive renewal terms (each of which is a separate,
independent option) of SIX (6) years (each of which shall be called a "Renewal
Term"), provided and on condition that:
(i) Tenant gives Landlord at least six (6) months
written notice of its exercise of the option prior to the expiration of the then
current term of the Lease, and
(ii) all prior options, if any, have been exercised,
and
(iii) any extension of this Lease pursuant to the
provisions of this Section 2.02(a) shall be upon the same terms and condition as
are then in effect except that there shall be options to extend only as provided
in this Section 2.02(a) and except as specifically otherwise
provided in this Lease, and
(iv) if Tenant fails to exercise any option to extend
as provided in this Lease, this Lease shall terminate at the end of the then
current term.
(b) The Basic Rent for the Demised Premises during any Renewal
Term shall be computed by multiplying the then existing Basic Rent times a
fraction, the numerator of which shall be the "Index" (as defined below) for the
month immediately prior to the applicable Renewal Term, and the denominator
shall be the Index for the month in which the Commencement Date occurs, but in
no event less than the Basic Rent in effect for the period immediately prior to
the applicable Renewal Term.
(c) The term "Index" shall mean the United States Bureau of
Labor Statistics, Consumer Price Index for Urban Wage Earners and Clerical
Workers, All Items, Xxxxxxxxxxxx, XX - XX (0000 - 100). If the Index shall be no
longer published and a successor index with stated adjustments based on the
Index is published such successor index shall be used; otherwise, Landlord shall
select successor index.
2.03 It is the purpose and intent of Landlord and Tenant that, except
as otherwise provided in this Section 2.03, the Basic Rent shall be net to
Landlord, so that this Lease shall yield, net to Landlord, the Basic Rent
specified in Section 2.01, and that all taxes, costs, expenses, obligations and
charges of every kind and nature relating to the Demised Premises (excepting the
payments by Landlord of interest and principal pursuant to any note and mortgage
to which Landlord is a party secured by the Demised Premises, or any part
thereof, or any real property of which the Demised Premises is a part and the
one year warrantee as cited in Article 1.07), that may arise or become due
during the term of this Lease shall be paid by Tenant, and Tenant agrees to
indemnify, defend and save harmless Landlord from and against such costs,
expenses, obligations and charges.
2.04 All taxes, charges, costs, expenses and obligations that Tenant
assumes or agrees to pay under any provisions of this Lease, together with all
interest and penalties that may accrue thereon in the event of Tenant's failure
to pay the same as provided in this Lease, all other damages, costs and expenses
that Landlord may suffer or incur, and any and all other sums that may become
due, by reason of any default of Tenant or failure on Tenant's part to comply
with the agreements, terms, covenants and conditions of this Lease on Tenant's
part to be performed, and each or any of them, shall be deemed to be additional
rent and, in the event of non-payment, Landlord shall have all the rights and
remedies provided in this Lease and provided by law in the case of non-payment
of rent.
ARTICLE 3
TAXES AND OTHER CHARGES AND EXPENSES - UTILITIES
3.01 (a) Tenant shall bear, pay and discharge, or cause to be paid and
discharged, at least fifteen (15) days before the last day upon which payment
may be made without penalty or interest, all real estate taxes, use and
occupancy taxes, special assessments, water rents, rates and charges, sewer
rents, license fees, permit fees and other authorization fees, charges for
public utilities and other governmental impositions and charges of every kind
and nature whatsoever, extraordinary as well as ordinary, seen or unforeseen,
and each and every installment thereof ("Impositions") that shall or may during
the term hereof become due and payable, or become liens upon, or arise in
connection with the use, occupancy or possession of, or be due or payable out of
the proceeds of, or for or with respect to, or with respect to the rents from
(i) the Demises Premises and any part thereof, the appurtenances thereto and the
sidewalks, streets and vaults adjacent thereto, and any estate, right or
interest therein and (ii) any occupancy, use or possession of the Demised
Premises or any part thereof, and such franchises, licenses or permits that may
be appurtenant to the use of the Demised Premises or any part thereof.
(b) All Impositions that are charged, laid, assessed, or
imposed for each fiscal or billing period in which the term of this Lease
commences and terminates shall be apportioned pro-rata between Landlord and
Tenant in accordance with the respective portions of each such fiscal or billing
period during the term of this Lease.
3.02 So long as it is not in default under this Lease, Tenant, without
postponement of payment of any Imposition, may bring appropriate proceedings in
the name of Landlord or Tenant or both for contesting the validity or amount of
any Imposition, or to recover payments therefor, and agrees to indemnify, defend
and save Landlord harmless from all liability, costs and expenses in connection
therewith. Landlord shall cooperate with Tenant with respect to the proceedings
so far as reasonably necessary. Tenant shall be entitled to amounts recovered
that relate to payments that, pursuant to the terms of this Lease, have been
made by Tenant.
3.03 (a) Except as in this Section 3.03 provided, Tenant shall be
solely responsible for the provision of, and promptly pay all charges for gas,
heating, electricity, telephone, water, sewer and all other utilities and
services used or consumed in connection with the Demised Premises. Tenant agrees
to indemnify, defend and save Landlord harmless against any liability or charges
for such utilities and services.
(b) In no event shall Landlord be liable for an interruption
or failure in the supply of any such utilities or services to the Demised
Premises.
(c) In no event shall Landlord be liable for an interruption
or failure in the supply of any utilities or services to the Demised Premises,
and Tenant shall not be entitled to any rent or other abatement therefor. It is
expressly agreed that Landlord is not and shall not be required to render any
services of any kind to Tenant.
3.04 Tenant shall promptly, timely, and fully pay all expenses
pertaining to the Demised Premises.
3.05 Tenant shall promptly supply to Landlord, and in any event prior
to the period in which any interest and/or penalty would accrue for non-payment,
written proof of payment of all Impositions and other charges and expenses
required to be paid by Tenant by this Article 3.
ARTICLE 4
ASSIGNMENTS MORTGAGES AND SUBLEASES --
TRANSFER OF OWNERSHIP -- SERVICE CONTRACTS
4.01 Neither Tenant, nor Tenant's successors or assigns, shall, without
Landlord's prior written consent, voluntarily or involuntarily or by operation
of law, assign, transfer, mortgage, pledge or encumber this Lease or the estate
created hereby, in whole or in part, or sublet the Demised Premises or any part
thereof, or enter into any license agreement pertaining to the Demised Premises
or any part thereof, or otherwise permit the Demised Premises or any part
thereof to be used or occupied by others. Except for a public stock offering or
a minority interest transfers, for the purposes of this Lease, any transfer of
any ownership interest in Tenant or any entity of which Tenant is composed shall
be deemed a prohibited assignment, or unless Tenant is a corporation whose stock
is publicly traded. Each permitted assignee and subtenant shall assume, and be
deemed to have assumed this Lease, and shall be and remain liable jointly and
severally with Tenant for all payments and for the due performance on all terms,
covenants and conditions to be paid and performed by Tenant.
ARTICLE 5
ALTERATIONS & TRADE FIXTURES
5.01 Except for the addition of trade fixtures and equipment that do
not attach to the Demised Premises, Tenant shall not make any alteration,
rebuilding, replacement, change, addition or improvement in or to the Demised
Premises without the prior written consent of Landlord; and if Landlord gives
written consent:
(a) such work shall be performed in a first class, workmanlike
manner, at Tenant's sole cost and expense, and shall not weaken or impair the
structural strength, or lessen the value, of the Demised Premises;
(b) such work shall be made according to plans and
specifications therefor, prepared at Tenant's sole cost and expense, that have
received Landlord's prior written approval, and such work shall comply with the
Declarations in all respects;
(c) before the commencement of any such work, at Tenant's sole
cost and expense, such plans and specifications shall, if required by law,
statute, ordinance, rule or regulation, be filed with and approved by all
governmental departments or authorities having jurisdiction, and any public
utility company having an interest therein, and written evidence of such
approval provided to Landlord; all such work shall be done subject to and in
accordance with all requirements of law, statutes, ordinances, rules and
regulations, all governmental departments or authorities having jurisdiction,
public utility companies having or claiming jurisdiction, and any other body
exercising similar functions; and
(d) before the commencement of any such work Tenant shall
obtain, and at all times when any such work is in progress Tenant shall
maintain, at Tenant's sole cost and expense, such insurance coverage as covers
all insurable risks during the course of such work, and such
workmen's compensation insurance as covers all persons employed in connection
with the work and with respect to whom death or bodily injury claims could be
asserted against Landlord or the Demised Premises or Landlord's interest in the
Demised Premises.
5.02 Tenant shall have the right to install trade fixtures required by
Tenant or used by it in its business provided and to the extent not attached or
affixed to the Demised Premises and, if installed by Tenant, to remove any or
all such trade fixtures from time to time during and upon termination of this
Lease, provided however, that Tenant is not otherwise in default under this
Lease and that Tenant shall repair and restore any damage or injury to the
Demised Premises caused by the installation and/or removal of any such trade
fixtures.
ARTICLE 6
REPAIRS
6.01 At all times during the term of this Lease, Tenant shall, at
Tenant's own cost and expense, keep and maintain in first-class order and
condition the Demised Premises, including but not limited to all lawns and
planted areas, and all roadways, walkways, sidewalks, curbing and parking and
loading areas thereon, and all equipment and appurtenances, and make all repairs
thereto and restorations, replacements and renewals thereof, inside, and
non-structural, extraordinary and ordinary, seen or unforeseen, howsoever the
necessity or desirability for repairs may occur, and whether or not necessitated
by (subject to the provisions of Section 1.07) latent defects or otherwise; and
shall use all reasonable precaution to prevent waste, damage or injury.
6.02 Tenant shall keep the roadways, walks, parking and loading areas
and sidewalks clean and free of snow and ice, and the exterior and interior of
the buildings and improvements clean and neat. Without limiting the generality
of the foregoing, all open storage and loading areas within the Demised Premises
shall be maintained by Tenant in an orderly, neat and clean fashion, and shall
be screened so as not to be visible from streets and adjoining properties.
6.03 The Demised Premises and each part thereof shall at all times be
maintained by Tenant in compliance with the Declarations.
6.04 Tenant shall enter into a preventive maintenance agreement for the
Heating, Air Conditioning, and Ventilating systems of the Demised Premises.
ARTICLE 7
MECHANICS' AND OTHER LIENS
7.01 Tenant shall have no power to do any act or make any contract that
may create or be the foundation for any lien, mortgage or other encumbrance upon
the Demised Premises, the reversion or other estate of Landlord, or upon any
interest of Landlord in the Demised Premises. If Tenant causes any alterations,
rebuildings, replacements, changes, additions, improvements or repairs to be
made to the Demised Premises, or causes any labor to be performed or material to
be furnished therein, thereon or thereto, neither Landlord nor the Demised
Premises nor Landlord's interest in the Demised Premises shall under any
circumstances be liable for the payment of any expense incurred or for the value
of any work done or material furnished, but all such alterations,
rebuildings, replacements, changes, additions, improvements and repairs, and
labor and material, shall be made, furnished and performed at Tenant's sole cost
and expense, and Tenant shall be solely and wholly responsible to contractors,
laborers and materialmen furnishing and performing such labor and material.
Landlord is willing to sign a Landlord's waiver on personal property and trade
fixtures as long as a waiver does not hinder financing and is acceptable to the
mortgagee.
7.02 If, because of any act or omission (or alleged act or omission) of
Tenant, any mechanics or other liens charge or order for the payment of money is
filed against Landlord or the Demised Premises or Landlord's interest therein or
any financing statement is filed for or affecting any equipment or any materials
used in the construction or alteration of, or installed in, any such building or
improvement in or on the Demised Premises, (whether or not such lien, charge or
order, or financing statement is valid or enforceable as such), Tenant shall, at
its own cost and expense, cause the same to be canceled and discharged (whether
by bonding or payment) within ten (10) days after notice of filing thereof.
7.03 Prior to the performance of any alterations, additions or
improvements to the Demised Premises, (i) Tenant will enter into a written
contract with each contractor performing such work and with each supplier
providing material and supplies in connection with such work which shall provide
(A) that the contractor and supplier agree that neither they nor any
subcontractors nor materialmen shall file any mechanic's or materialman's liens,
or notices of intention therefor, against the Demised Premises, or any part
thereof or any notices of refusal relating to any work upon or material supplied
to or for the Demised Premises; (B) that all subcontracts and purchase orders
executed in connection with any such work shall contain agreements similar to
those referred to in (A) above, by the subcontractors and suppliers, (C) that
Tenant is entering into the contract as tenant and not on behalf of Landlord and
that all stop notices thereafter filed by any subcontractor or supplier will be
filed only against Tenant and will be binding upon Tenant in connection with
Tenant's obligation to make payments under the construction contract; and (ii)
Tenant shall, pursuant to Title 2A N.J.S.A. 44-75, cause to be filed a copy of
the written contract with each such contractor and supplier and all
specifications accompanying the contract.
ARTICLE 8
REQUIREMENTS OF LAW
8.01 Tenant, shall, at its own cost and expense, promptly observe and
comply with all present and future laws, ordinances, requirements, orders,
directions, rules and regulations of the federal, state, county and municipal
governments and of all other governmental authorities having or claiming
jurisdiction over the Demised Premises or appurtenances or any part thereof,
which are applicable to the Demised Premises and/or the conduct of business
thereon, and of the insurance underwriting board or insurance inspection bureau
having or claiming jurisdiction, or any other body exercising similar functions,
and of all insurance companies writing policies covering the Demised Premises or
any part thereof.
8.02 Neither Tenant nor Tenant's agents, employees, invitees or
independent contractors shall discharge or permit to be discharged on, or bring
on, to the Demised Premises, Building or Parcel, any "Hazardous Material",
except in compliance with all applicable laws, rules, regulations, and
ordinances regulating such activities. For the purposes of this Lease,
"Hazardous Material" means: (A) "hazardous substances", or "toxic substances" as
those terms are defined by the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA"), 42 U.S.C. 9601 et seq.; or the
Hazardous Materials Transportation Act, 49 U.S.C. 1802, all as amended and
hereafter amended; (B) "hazardous wastes", as that term is defined by the
Resource Conversation and Recovery Act ("RCRA"), 42 U.S.C. 6902 et seq., as
amended and hereafter amended; and (C) any pollutant or contaminant or
hazardous, dangerous or toxic chemicals, materials, or substances within the
meaning of any other applicable federal, state or local law, regulation,
ordinance, or requirement (including consent decrees and administrative orders)
relating to or imposing liability or standard of conduct concerning any
hazardous, toxic or dangerous waste substance or material, all as amended or
hereafter amended, and (D) "hazardous substance" as defined in Section 3K of the
New Jersey Spill Compensation and Control Act (Spill Act), N.J.S.A.
58:10-23.llb.k.; and (E) crude oil or any fraction thereof which is liquid at
standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7
pounds per square inch absolute); (F) any radioactive material, including any
source, special nuclear or by-product material as defined at 41 U.S.C. 2011 et
seq., as amended or hereafter amended; (G) asbestos in any form or condition;
and (H) polychlorinated biphenyls ("PCBs") or substances or compounds containing
PCBs; and (I) "hazardous substance" as defined in (1) Section 3d of ECRA,
N.J.S.A. 1K- 8(d), or (2) N.J.A.C. 7:lE-1.3, or (3) N.J.A.C. 87- lE-Appendix A,
or (4) N.J.A.C. 7:1-33. Tenant agrees to pay for all cleanup costs necessary to
cure any violation of this Section 8.02.
ARTICLE 9
INSURANCE
9.01 Tenant shall, at its own cost and expense:
(a) Keep the Demised Premises, including but not limited to all
alternations, rebuildings, replacements, changes, additions and improvements
thereto, and all fixtures and equipment and other property located on the
Demised Premises, insured against loss or damage by fire and such other risks as
may be included in the broadest form of extended coverage from
time to time available (including but not limited to the traditional "ALL RISK"
Perils) in the amount not less than the full replacement, value thereof
(including, but not limited to, foundation and cost of debris removal, without
any deduction for depreciation). Such replacement value shall be determined at
Tenant's expense from time to time, but not more frequently than once in any
twelve (12) calendar months, at the request of Landlord, by one of the insurers
or, at the option or Landlord, by an appraiser who is mutually and reasonably
acceptable to Landlord" and Tenant;
(b) Provide and keep in force comprehensive general public liability
insurance against claims for personal injury, death or property damage occurring
on, in or about the Demised Premises and on, in or about the adjoining sidewalk
and streets, such insurance to be in such forms and amounts as may from time to
time be reasonably required by Landlord, provided that at no time shall the
coverage be less than $500,000 in respect of personal injury or death to any one
person, and of not less than $1,000,000 in respect of any one occurrence, and of
not less than $500,000 for property damage;
(c) Provide and keep in force boiler and machinery insurance in such
amounts as may from time to time be required by Landlord;
(d) Provide and keep in force sprinkler leakage insurance in amounts
and forms satisfactory to Landlord, if a sprinkler system is in or on the
Demised Premises;
(e) Provide and keep in force rent insurance (covering Basic Rent and
additional rent for a period of at least one year) and such other insurance and
in such amounts as may from time to time be required by Landlord against such
other insurable hazards as at the time are commonly insured against in the case
of premises similarly situated or similarly used.
9.02 All insurance provided by Tenant is required by this Article 9,
and any other insurance carried by Tenant with respect to the Demised Premises
(other than casualty insurance for Tenant's personal property), shall be carried
in favor of Tenant and Landlord as named insureds as their interests may appear.
If requested by Landlord, all or any such insurance shall include the interest
of the holder of any mortgage or bond (included but not limited to the State of
New Jersey Economic Development Authority Revenue Bonds) secured by the Demised
Premises or any part thereof, or any real property of which the Demised Premises
is a part, and shall provide that loss, if any, shall be payable to such holder
under a standard mortgagee clause, without contribution. All such insurance
shall be taken in such responsible companies, licensed to do business in the
State of New Jersey and having a BEST rating of A+/IX, as Landlord may approve
and the policies therefor shall at all times be held by Landlord or, when
appropriate, by the holder of any such mortgage, in which case copies of the
policies or, certificates of such insurance shall be delivered by Tenant to
Landlord. All such policies shall be non-assessable and shall require thirty
(30) days notice by registered mail to the insureds and the holders of any such
mortgage of any cancellation or modification thereof. All such policies to the
extent permitted by law shall provide that losses shall be paid to Landlord or
any such mortgagee notwithstanding any act or negligence of any insured or
mortgagee that might otherwise result in forfeiture of the insurance. Tenant
shall not obtain any insurance which would be deemed contributing with any
required insurance without naming Landlord as an additional insured thereunder.
9.03 The loss, if any, under any policies provided for in paragraphs
(a), (c) and (d) of Section 9.01 shall be adjusted by Landlord with the
insurance companies (and/or Landlord's mortgagee). Subject to the rights of the
holder of any mortgage covering the Demised Premises or any part thereof, or any
real property of which the Demised Premises is a part, the proceeds of any such
insurance, as so adjusted, shall be payable to and retained by Landlord, which
shall be subject, in its use thereof, to the provisions of Article 10 hereof.
9.04 Tenant shall not violate or permit to be violated any of the
conditions or provisions of any such policy, and Tenant shall so perform and
satisfy the requirements of the companies writing such policies.
9.05 Tenant and Landlord shall cooperate in connection with the
collection of any insurance monies that may be due in the event of loss, and
Tenant shall execute and deliver to Landlord such proofs of loss and other
instruments that may be required for the purpose of obtaining, the recovery of
any such insurance monies.
9.06 Tenant shall pay and discharge, when and as due, all premiums on
all insurance policies required to be maintained by the provisions of this
Article 9, and shall, after such payment is made, promptly deliver receipts or
other evidence of such payment to Landlord. Prior to the Commencement Day,
Tenant shall deliver to Landlord original policies of insurance required by this
Article 9 together with evidences of payment of the premiums therefor. Not less
than thirty (30) days prior to the expiration date of any such policies, Tenant
shall deliver to Landlord original renewal policies and evidence of payment of
the premium therefor.
9.07 Each of the parties hereto hereby releases the other, to the
extent of the releasing party's insurance coverage and/or coverage required
under this Lease whether or not obtained, from any and all liability for any
loss or damage which may be inflicted upon the property of such party even if
such loss or damage shall be brought about by the fault or negligence of the
other party, its agents or employees.
ARTICLE 10
DESTRUCTION -- FIRE OR OTHER CAUSES
10.01 If, during the term of this Lease, the Demised Premises or any
part thereof, is destroyed or damaged in whole or in part by fire or other
cause, Tenant shall give to Landlord immediate notice thereof. If, from it's
examination of the damage, in the reasonable opinion of the Landlord, the
building is capable of being restored within 120 days, Tenant, at its own cost
and expense, shall promptly repair, replace and rebuild the same promptly and
with due diligence. Any such repairs shall be subject to and shall be performed
in accordance with the provisions of Section 5.01 hereof.
10.02 If, from it's examination of the damages, in the reasonable
option of the Landlord, the building is not capable of being restored with 120
days, either party may terminate this Lease by giving written notice to the
other within sixty (60) days of such damage or destruction, such notice to be
effective 30 days after receipt of such notice.
10.03 If less than fifty percent (50%) of the building being a part of
the Demised Premises is damaged or destroyed, or if neither party terminates
this Lease in the event of damage or destruction of fifty percent (50%) or more
of the building being a part of the Demised Premises, this Lease shall not
terminate or be affected in any manner, nor shall there be any suspension,
diminution, abatement or reduction of rent, by reason of damage to or
destruction of the Demised Premises or any part thereof.
10.04 If the Demised Premises are only partially destroyed by fire or
other damage and the Lease is not terminated as above, the net proceeds of any
insurance recovered by reason of such damage or destruction in excess of the
cost of adjusting the insurance claim and collecting the insurance proceeds
(such excess being hereinafter called the "net insurance proceeds") to the
extent made available by any mortgagee for restoration shall be applied towards
the reasonable cost of restoring such building and other improvements.
10.05 Whether or not this Lease is terminated pursuant to this Article
10, if insurance is not carried against the damage, or if in Landlord's sole
opinion the net insurance proceeds actually so received by Landlord (excluding
rent insurance proceeds) will not be adequate to pay for repairing the damage,
Tenant shall pay the cost of repair in excess of net insurance proceeds so made
available by mortgagees, and prior to the commencement of any restoration work
shall give Landlord adequate security for the payment. Notwithstanding anything
in, this Lease to the contrary, Landlord shall not be required to make insurance
proceeds available for restoration during the last two years of the then
existing term of this Lease, but Tenant shall nevertheless be liable to Landlord
for any shortage of net insurance proceeds even if Landlord elects not to make
net insurance proceeds available for restoration. Except as otherwise provided
in this Lease, Tenant's obligation to pay rent shall not in any way be affected
by damage to or destruction of the Demised Premises or any part thereof,
regardless of cause, and there shall be no abatement diminution or reduction of
rent by reason thereof except to the extent, if any, that Landlord receives rent
insurance proceeds.
ARTICLE 11
CONDEMNATION
11.01 In the event that the Demised Premises or any part thereof is
taken in condemnation proceedings or by exercise of any right of eminent domain
or by agreement between Landlord and those authorized to exercise such right,
Landlord shall be entitled to collect the entire award made in any such
proceeding without deduction therefrom for any estate hereby vested in or owned
by Tenant. Tenant shall execute any and all further documents that may be
required in order to facilitate collection by Landlord of any and all such
awards. Tenant shall be entitled to claim against the condemnor for any special
relocation expenses that do not reduce the award payable to Landlord.
11.02 If the whole or substantially all of the Demised Premises is so
taken or condemned, this Lease shall terminate and expire on the later to occur
of the date upon which title vests in the condemning authority or the date
possession must be surrendered to the condemning authority, and the Basic Rent
and additional rent provided to be paid by Tenant shall be apportioned and paid
to such date.
11.03 In the event of a partial taking that does not result in
termination of this Lease, Landlord shall promptly and with due diligence
proceed to rebuild, repair and restore the remainder of any building being a
part of the Demised Premises affected thereby to a complete, independent and
self-contained architectural unit, for the purposes in use before the taking,
provided that the cost of restoration in no event exceeds the amount of the
condemnation award actually received by and made available by mortgagees to
Landlord (after deducting reasonable expenses including attorneys' and/or
appraiser's fees) for the part of Demised Premises taken, not including that
part of such award reasonably allocable to land taken; and Tenant shall provide
Landlord with assurance satisfactory to Landlord that Tenant will pay the cost
of any such excess. Following such partial taking, and prior to the substantial
completion of such restoration as is herein required, the then current Basic
Rent shall xxxxx in proportion to the fraction of the floor area of the building
being a part of the Demised Premises that is taken and not so restored.
ARTICLE 12
ACCESS TO PREMISES
12.01 Tenant shall permit Landlord and its agents to enter the Demised
Premises at all reasonable hours (and in an emergency, at any hour) to inspect,
to make repairs that Tenant may neglect or refuse to make in accordance with the
terms of this Lease, to show the Demised Premises to persons wishing to purchase
or to make a mortgage loan secured by the Demised Premises, and to show the
Demised Premises at any time within six (6) months prior to the expiration of
the term hereof to persons wishing to rent the Demised Premises. Tenant shall,
within six (6) months prior to the expiration of the term, permit the usual
notice of "For Rent" and "For Sale" to be placed on the Demised Premises and to
remain thereon without hindrance or molestation.
ARTICLE 13
NO UNLAWFUL OCCUPANCY -- NO VACANCY
13.01 Tenant shall not maintain, use or occupy the Demised Premises or
permit the Demised Premises to be used or occupied in violation of any statute,
ordinance or any requirement of any public authority or any restrictions,
easements or other agreements of record affecting the Demised Premises. In the
event that any public authority or Pureland Association, Inc., or Declarant
under the Declarations shall hereafter at any time contend or declare by notice,
violation, order or in any other manner whatsoever that the Demised Premises is
being used in violation of such statute, ordinance or other requirement, Tenant
shall immediately discontinue such use of the Demised Premises.
13.02 Tenant shall not vacate or desert the Demised Premises or permit
the Demised Premises to be empty and unoccupied.
ARTICLE 14
INDEMNITY
14.01 Tenant shall indemnify, defend and save harmless Landlord against
and from all costs, expenses, liabilities, losses, damages, injunctions, suits,
actions fines, penalties, claims and demands of every kind or nature, including
but not limited to reasonable counsel fees, by or on behalf of any person,
entity or governmental authority whatsoever arising out of (a) any failure by
Tenant to perform any of the agreements, terms, covenants or conditions of this
Lease on Tenant's part to be performed, (b) any accident, injury, damage,
occurrence or activity that happens in or about the Demised Premises or
appurtenances thereto or on or under the sidewalks, streets, roads and highways
in front of or adjacent thereto, however occurring, and any matter or thing
growing out of the condition, occupation, maintenance, alteration, repair, use
or operation of the Demised Premises or appurtenances thereto or any part
thereof, or of the sidewalks, streets, roads and highways in front of or
adjacent thereto during the term hereof, unless caused by the negligent act or
omission of Landlord, its agents, servants or employees, (c) failure to comply
with any laws, ordinances, requirements, orders, directions, rules or
regulations of any federal, state, county or municipal governmental authority or
agreements of record affecting the Demised Premises, or (d) any mechanic's lien
or financing statement filed against the Demised Premises or Landlord's or
Tenant's interest therein or any equipment therein or any materials used in the
construction or alternation of any building or improvement therein or thereon.
14.02 Tenant agrees to relieve and hereby relieves Landlord from and
agrees to indemnify Landlord against all liability by reason of any injury or
damage to Tenant or to any other person or property in or on the Demised
Premises, whether belonging to Tenant or to any other person, caused by any
fire, breakage, leakage, collapse or other event in any portion of the Demised
Premises, or any portion of the building of which the Demised Premises is a
part, or from water, rain or snow, that may leak into, issue or flow from any
part of the Demised Premises, or of the building of which the Premises is a
part, from the drain, pipes or plumbing work of the same, or from any place
whatsoever, whether such fire, breakage, leakage, collapse or other event,
injury or damage be caused by or result from the negligence of Landlord or any
other person or persons whatsoever, and whether or not such event results in the
termination of this Lease by reason of damage to or destruction of the Demised
Premises.
ARTICLE 15
DEFAULT
15.01 Each of the following events shall be an Event of Default
hereunder by Tenant and a breach of this Lease:
(a) If Tenant files a petition in bankruptcy or insolvency or for
reorganization or arrangement under the bankruptcy laws of the United States or
any insolvency act of any state or voluntarily takes advantage of any such law
or act by answer or otherwise or is dissolved or makes an assignment for the
benefit of creditors.
(b) If involuntary proceedings under any such bankruptcy law or
insolvency act or for the dissolution of a corporation are instituted against
Tenant or if a receiver or trustee is appointed for all or substantially all of
the property of Tenant and such proceedings are not dismissed or such
receivership or trusteeship is not vacated within sixty (60) days after such
institution or appointment.
(c) If Tenant fails to pay Landlord any Basic Rent or additional rent
within five (5) days of it becoming due and payable.
(d) If Tenant fails to perform any of the agreements, terms, covenants,
or conditions hereof on Tenant's part to be performed other than the payment or
Basic Rent or additional rent and such non-performance continues for a period
within which performance is required to be made by specific provision of this
Lease or if no such period is so provided, for a period of fifteen (15) days
after notice thereof by Landlord to Tenant or, if such default cannot be
reasonably cured within such fifteen (15) day period, and does not thereafter
diligently continue to proceed therewith to completion.
(e) If Tenant fails to take possession of the Demised Premises within
thirty (30) days after notice to Tenant that the Demised Premises are ready for
occupancy by Tenant.
(f) Notwithstanding anything in this Lease to the contrary with respect
to 15.01 (c), Landlord shall not be required to give Tenant notice of default
more than two (2) times in any twelve (12) month period.
15.02 Upon the occurrence of an Event of Default or without notice in
the event of any emergency, Landlord at its option may, but shall not be
obligated to make any payment required of Tenant herein or comply with any
agreement, or perform any term, convenant or condition, required hereby to be
performed by Tenant, and the amount so paid, together with interest thereon at
the "Default Rate" (as hereafter defined) from the date of such payment by
Landlord shall be deemed to be additional rent hereunder payable by Tenant and
collectible as such by Landlord upon demand. Landlord shall have the right to
enter the Demised Premises for the purpose of correcting or remedying any such
Event of Default or emergency and to remain therein until the Event of Default
or emergency is corrected or remedied, but neither any such expenditure nor any
such performance by Landlord shall be deemed to terminate the Lease or suspend
Tenant's obligations hereunder or to waive or release Tenant's Event of Default
or the right of Landlord to take such action as may be otherwise permissible
hereunder in the case of such Event of Default or emergency.
15.03 Upon occurrence of an Event of Defaultt at the sole option of
Landlord and In each case without waiver of any other rights of Landlord
contained in this Lease:
(a) (i) The whole Basic Rent and additional rent (together sometimes cal
led the "rent") for the balance of the term of, this Lease, as hereinafter
computed,.or any part thereof, shall immediately become due and payable as if by
the terms of this Lease such whole rent were payable in advance, and
(ii) Landlord may immediately proceed to distrain, collect or bring
action for the whole rent or part thereof, as being rent in arrears, or may file
a proof of claim in any bankruptcy or insolvency proceeding for such rent, or
Landlord may institute any other proceedings, whether similar to the foregoing
or not, to enforce payment thereof.
(iii) Rent for each year for the balance of the term after the
occurrence of any Event of Default for the purpose of computing the whole rent
for the balance of the term of this Lease under this Section 15.03 (a) shall be
computed on the basis of the then current Basic Rent and additional rent payable
by Tenant pursuant to Article 2 of this lease.
(b) (i) Landlord may re-enter and repossess the Demised Premises, using
such force (without breach of peace) for that purpose as may be reasonably
necessary without being liable to prosecution or damages therefor, and Tenant
shall nevertheless remain and continue liable to Landlord in a sum equal to all
Basic Rent and additional rent and other charges payable hereunder for the
remainder of the term hereof and, except to the extent Tenant can prove the
Landlord has failed to take reasonable steps, under the circumstances, to
mitigate damages; and
(ii) Landlord may attempt to relet all or any parts of the Demised
Premises for the account of Tenant upon such terms and to such persons or
entities and for such period or periods as Landlord, in its sole discretion,
determines, including a term beyond the termination of this Lease, and Landlord
shall not be required to accept any tenant offered by Tenant or observe any
instruction given by Tenant about such reletting, or do any act or exercise any
care or diligence with respect to such reletting or to the mitigation of
damages. For the purpose of such reletting, Landlord may alter, decorate or make
repairs in or to the Demised Premises to the extent deemed by Landlord desirable
or convenient, and the cost of such alteration , decoration and repairs, as well
as any reasonable brokerage and legal fees expended by Landlord, shall be
charged to and be payable by Tenant as additional rent hereunder, and any sum
collected by Landlord from any new tenant obtained on account of the Tenant
shall be credited against the balance of the rent due hereunder as aforesaid.
Should any rent collected by Landlord as provided in this Section 15.03 (b) (ii)
after the payments herein mentioned be insufficient to fully pay to Landlord a
sum equal to all Basic Rent and additional rent and other charges payable
hereunder for the remainder of the term hereof, the balance or deficiency shall
be paid by Tenant on the rent days specified in this Lease, that is, upon each
of such rent days, Tenant shall pay to Landlord the amount of the deficiency
then existing; and Tenant shall be and remain liable for any such deficiency,
and the right of Landlord to recover from the Tenant the amount thereof, or a
sum equal to all such Basic Rent and additional rent and other charges payable
hereunder, if there shall be no reletting, shall survive the issuance of any
dispossessory warrant or other cancellation or termination hereof. Should any
rent collected by Landlord as provided in this Section 15.03 (b) (ii) after the
payments herein mentioned be in excess of all Basic Rent and additional rent and
other charges payable hereunder for the remainder of the term hereof originally
demised, Landlord shall retain the excess. Rent for each year for the balance of
the term after the occurrence of any Event of Default for the purpose of
computing the whole rent for the balance of the term of this Lease under this
Section 15.03 (b) hereof shall be computed as equal to the then current Basic
Rent and additional rent payable by Lessee pursuant to Article 2 of this Lease.
(c) This Lease shall terminate upon notice to that effect from Landlord
to Tenant.
(d) From and after the occurrence of any Event of Default, any unpaid
rent shall bear interest until paid at a rate per annum equal to two percent
(2%) plus the interest announced from time to time by Midlantic National
bank/South as its "prime rate" or "prime lending rate", adjusted on a daily
basis (the "Default Rate").
(e) Tenant shall pay all legal fees and expenses of Landlord incurred
by Landlord in consulting counsel and/or enforcing this Lease and/or obtaining
payment or performance under this Lease, whether or not legal action actually is
required or commenced.
15.04 Suit or suits for the recovery of the deficiency or damages
referred to in Sections 15.03 (a) and (b), or for any installment or
installments of Basic Rent and additional rent hereunder, or for a sum equal to
any such installment or installments may be brought by Landlord, from time to
time at Landlord's election, and nothing in this Lease contained shall be deemed
to require Land 10 rd to await the date on which this Lease or the term hereof
would have expired had there been no such default by Tenant or no such
cancellation or termination.
15.05 Nothing contained in this Article 15 shall limit or prejudice the
right of Landlord to prove and obtain as liquidated damages in any bankruptcy,
insolvency, receivership, reorganization or dissolution proceeding an amount
equal to the maximum allowed by any statute or rule or law governing such
proceeding and in effect at the time when such damages are to be proved, whether
or not such amount be greater, equal to or less than the amount of the damages
referred to in any of the preceding Sections.
15.06 In the event of a breach by Tenant of any of the agreements,
terms, covenants or conditions of this Lease, Landlord shall have the right of
injunction to restrain such breach or threatened breach and the right to invoke
any remedy allowed by law or in equity, as if specific remedies, indemnity or
reimbursement were not provided elsewhere in this Lease.
15.07 The rights and remedies of Landlord stated in this are distinct,
separate and cumulative, and no one of them, whether or nor exercised by
Landlord, shall be deemed to be in exclusive of any of the others herein or by
law or in equity provided.
15.08 No receipt of monies by Landlord from Tenant, after the
cancellation or termination of this Lease shall reinstate, continue or extend
the term, or affect any notice theretofore given to Tenant or operate as a
waiver of the right of Landlord to enforce the payment of Basic Rent and
additional rents then due or thereafter falling due, or operate as a waiver of
the right of Landlord to recover possession of the Demised Premises by proper
suit, action, proceeding or other remedy. After termination as provided for in
Section 15.03 (c) and after the commencement of any suit, action, proceeding or
other remedy or after a final order or judgment for possession of the Demised
Premises, Landlord may demand, receive and collect any monies due, or therafter
falling due, without in any manner affecting such notice, suit, action,
proceeding, order or judgment; and any and all such monies so collected shall be
deemed to by payments on account of the use and occupation of the Demise
Premises or at the election of Landlord, on account of Tenant's liability under
this Lease.
15.09 The failure of Landlord to insist upon a strict performance of
any of the agreements, terms, covenants and conditions of this Lease shall not
be deemed a waiver of any rights or remedies that Landlord may have and shall
not be deemed a waiver of any subsequent breach or default in any of such
agreements, terms, covenants and conditions.
15.10 It is mutually agreed by and between Landlord and Tenant that the
respective parties hereto shall and hereby do waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other as to any matters whatsoever arising out of or in any way connected with
this Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy
of the Demised Premises or any statutory remedy.
ARTICLE 16
END OF TERM
16.01 On the expiration or sooner termination of the term, Tenant
shall: (a) peaceably and quietly surrender and deliver the Demised Premises to
Landlord broom-clean, including all buildings, replacements, alterations,
additions and improvements constructed, erected, added or placed by Tenant
thereon, and (b) remove all trade fixtures, equipment and personal property
owned by Tenant and located on the Demised Premises, as well as all such
alterations, improvements and additions with respect to which Landlord has given
Tenant notice to remove, and shall repair any damage to the Demised Premises
caused by the installation thereof and/or by such removal.
ARTICLE 17
QUIET ENJOYMENT
17.01 Landlord covenants that, so long as Tenant shall faithfully
perform the agreements, terms, covenants and conditions of this Lease, Tenant
shall and may peaceably and quietly have, hold and enjoy the Demised Premises
for the term granted by this Lease without molestation or disturbance by or from
Landlord and free of any lien created or suffered by Landlord.
ARTICLE 18
ESTOPPEL CERTIFICATE
18.01 Tenant shall, without charge, at any time and from time to time
hereafter, within ten (10) days after request by Landlord, certify by a written
instrument duly executed and acknowledged to any mortgagee or proposed mortgagee
or any other person or entity specified by Landlord, as to the validity and
force and effect of this Lease, in accordance with its tenor, as then
constituted, as to the existence of any default on the part of any party
thereunder, as to the existence of any offsets, counterclaims or defenses
thereto on the part of Tenant, and as to any other matters that may be
reasonable requested by Landlord.
ARTICLE 19
SUBORDINATION
19.01 Tenant agrees that Tenant's rights under this Lease are and shall
always be subject and subordinate to the lien of any mortgage or mortgages now
or hereafter placed from time to time upon the Demised Premises or any part
thereof, or the Parcel, or leasehold interest therein, and to any renewals,
extensions, modifications or consolidations thereof, and to all advances
previously and/or hereafter made from time to time upon the security thereof.
Tenant shall, upon written demand from Landlord execute such other and further
instruments or assurances confirming the subordination of this Lease to the lien
or liens of any such mortgages and making such modifications or clarifications
to this Lease as shall be required by Landlord's mortgagee or proposed mortgagee
if such modification does not increase either the obligations of Tenant or the
rights and remedies of Landlord under this Lease. Tenant agrees, at the election
of the holder of any aforesaid mortgage, or anyone claiming by, through or under
such holder, to attorn to such holder, or anyone claiming by, through or under
such holder, of a mortgage to which this Lease is subordinate. If any mortgagee
elects at anytime to have Landlord's or Tenant's interest in this Lease superior
to the interest of such mortgagee and gives written notice to Tenant to that
effect; then this Lease shall be deemed to be superior to any such mortgage
whether this Lease was executed before or after such mortgage or before or after
any advance made on the security of such mortgage.
ARTICLE 20
NOTICES
20.01 Whenever it is provided in this Lease that notice, demand,
request or other communication shall or may be given to or served upon either of
the parties by the other, and whenever either of the parties desires to give or
serve upon the other any notice, demand, request or other communication with
respect hereto or the Demised Premises, each such notice, demand, request or
other communication shall be in writing and, any law or statue to the contrary
notwithstanding, shall be effective for any purpose if given or served as
follows:
(a) If by Landlord, by mailing the same to Tenant by
registered or certified mail, postage prepaid, or by deposit for delivery with a
nationally recognized overnight courier service (such as Federal Express),
charges prepaid, in either event return receipt requested, addressed to Tenant
at the address set forth above or at such other address as Tenant may from time
to time designate by notice given to Landlord in the manner herein provided.
(b) If by Tenant, by mailing the same to Landlord by
registered or certified mail, postage prepaid, or by deposit for delivery with a
nationally recognized overnight courier service (such as Federal Express),
charges prepaid, in either event, return receipt requested, addressed to
Landlord may from time to time designate by notice given to Tenant in the manner
herein provided.
ARTICLE 21
HOLDOVER & TERMINATION
21.01 If Tenant retains possession of the Demised Premises or any part
thereof after the expiration of the term of this Lease, Tenant shall, at
Landlord's option, be held to be a tenant at will for twice the Basic Rent as in
effect during the last month of the Lease and otherwise upon the same terms and
conditions of this Lease, provided that the provisions of this Section shall not
be deemed to waive Landlord's rights of re-entry of any other rights of Landlord
hereunder, including rights to any damages of Landlord sustained by reason of
Tenant's wrongful retention of the Demised Premises or any part thereof.
21.02 If this Lease is terminated pursuant to any express provision of
this Lease other than by reason of an Event of Default, Tenant shall not be
relieved of or from any obligation under this Lease accruing or arising prior to
the later of the date of termination of this lease or vacation of the Demised
Premises in compliance with the requirements of this Lease.
ARTICLE 22
ACCORD AND SATISFACTION
22.01 No payment by Tenant or receipt by Landlord of a lesser amount
than the rent herein stipulated shall be deemed to be other than on account of
the earliest stipulated rent or other charges payable by Tenant hereunder, nor
shall any endorsement or statement on any check or on any letter accompanying
any check or payment as rent or other charges be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or other charge or pursue
any other remedy in this Lease provided.
ARTICLE 23
SEPARABILITY AND AMENDMENT
23.01 Landlord and Tenant intend and believe that each provision in
this Lease complies with all applicable local, state and federal laws and
judicial decisions. However, if any provision or provisions, or if any portion
of any provision or provisions, in this Lease is found by a court of law to be
in violation of any local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should
declare such portion, provision or provisions of the Lease to be illegal,
invalid, unlawful, void or unenforceable, such portion, provision or provisions
shall be deemed to be and shall be treated as if it were not contained in this
Lease, and that rights, obligations and interest of Landlord and Tenant under
the remainder of this Lease shall continue in full force and effect.
ARTICLE 24
EXONERATION
24.01 The term "Landlord" as used in this Lease, so far as covenants or
obligations on the part of Landlord are concerned, shall be limited to mean and
include only the owner or owners at the time in question of the Demised Premises
and, in the event any transfer or transfers of the title thereto after the
Commencement Date by Landlord herein named, and in case of any subsequent
transfers or conveyances, the then grantor shall be automatically free and
relieved from and after the date of such performance of any covenants or
obligations on the part of Landlord contained in this Lease thereafter to be
performed.
24.02 Neither Landlord nor any principal of Landlord, whether disclosed
or undisclosed, shall have any personal liability with respect to any provisions
of the Lease or the Demised Premises, or property of which it is a part, and if
Landlord is in breach or default with respect to its obligations under this
Lease or otherwise, Tenant shall look solely to the equity of Landlord in the
property of which the Demised Premises is a part for the satisfaction of
Tenant's remedies.
ARTICLE 25
BROKERAGE
25.01 (a) Landlord, for itself, its representatives, agents and
employees, represents that it has had no dealings negotiations or consultations
with any broker or finder in connection with this Lease, except for Xxxxxx X.
Xxxxxxxxxx & Co., Inc. (the "Broker"). Landlord agrees: (i) to pay all
commissions and other sums due to the Broker with regard to this Lease; and (ii)
to indemnify Tenant and save Tenant harmless from any and all costs, expenses
(including attorneys' fees) and liability resulting from the inaccuracy of this
representation.
(b) Tenant, for itself, its representatives, agents and
employees, represents: (i) that it has had no dealings, negotiations or
consultations with any broker or finder in connection with this Lease, and
further represents that no broker or finder called the Demised Premises or
Landlord to Tenant's attention, except for the Broker; and (ii) that Tenant
has no agreement, whether oral or written, with the Broker. Tenant agrees to
indemnify Landlord and save it harmless from any and all costs, expenses
(including attorneys' fees) and liability resulting from the inaccuracy of this
representation.
ARTICLE 26
SIGNS
26.01 Except for signs which are located wholly within the interior of
the building being a part of the Demised Premises and which are not visible from
the exterior of such building, no signs shall be placed, erected, maintained or
painted at any place upon the Demised Premises without the prior written consent
of Landlord as to the size, design, color, location, content, illumination,
composition or material and mobility thereof. Provided Tenant obtains Landlord's
prior written consent as aforesaid, Tenant may to the extent and manner allowed
by law or public regulation and or the Declarations, place, erect, maintain or
paint signs upon the Demised Premises provided that they are maintained by
Tenant in good condition during the term hereof, and Tenant shall remove all
signs at the termination of this Lease, repairing any damage caused by the
installation and/or removal thereof.
ARTICLE 27
SECURITY DEPOSIT
27.01 Tenant has deposited with Landlord the sum of FORTY THREE
THOUSAND ($43,000) DOLLARS to be retained by Landlord as security for the
faithful performance and observance by Tenant of the covenants and conditions of
this Lease. In the event Tenant defaults under this Lease in connection with,
but not limited to, the payment of Basic Rent or additional rent or other sums
payable hereunder or other performance, Landlord may use, apply or retain the
whole or any part of the cash security so deposited to the extent required for
the payment of any Basic Rent and any additional rent and any other sums payable
hereunder as to which Tenant is in default or on account of any sum which
Landlord may expend or may be required to expend by reason of Tenant's default.
In the event that Tenant shall fully and faithfully comply with all to the
covenants and conditions of the Lease, the cash security shall be returned to
Tenant after the date fixed as the expiration of the term of this Lease and
surrender of the Demised Premises to Landlord. In the event of a sale of the
Demised Premises to a bona fide purchaser, Landlord shall have the right to
transfer to such purchaser the aforesaid cash security, and Landlord thereupon
shall be released by Tenant from all liability for the return thereof, and
Tenant agrees to look to the new Landlord solely for the return thereof.
ARTICLE 29
MISCELLANEOUS
29.01 This lease contains the entire agreement between the parties and
cannot be changed or terminated orally, but only be an instrument in writing
executed by the parties.
29.02 This agreement shall be governed by and construed in accordance
with the laws of the State of New Jersey.
1
29.03 The captions of the various articles of this Lease are inserted
only as a matter of convenience and for reference and in no way define, limit or
describe the scope or intent of this Lease nor in any way affect this Lease.
29.04 Wherever in this Lease something may only be done with the prior
written consent of Landlord, Landlord shall have the right to withhold consent
for any reason or for no reason whatsoever.
29.05 The agreements, terms, covenants and conditions herein shall bind
and inure to the benefit of Landlord and Tenant and their respective heirs,
legal representatives, successors and, except as otherwise provided herein their
assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Lease
to be duly executed and their corporate seals to be affixed hereto on the day
first above stated.
LANDLORD: FREEWAY 130, L.L.C.
BY: /s/ Xxxxx Xxxxxx
--------------------
Xxxxx Xxxxxx
TENANT: X.X. XXXXX, INC.
(Corporate Seal) BY: /s/ Xxxx X. Xxxxxx
----------------------
Xxxx X. Xxxxxx
