LEASE AGREEMENT BETWEEN
Ninth Avenue Equities
AND
Vertex Industries, Inc.
DATED: October 15, 1997
TABLE OF CONTENTS
PAGE
ARTICLE 1. DEMISE AND PREMISES..................... 1
ARTICLE 2. TERM.................................... 1
ARTICLE 3. RENT AND PAYMENT. ...................... 1
ARTICLE 4. TAXES ANDIMPOSITIONS.................... 2
ARTICLE 5. INSURANCE............................... 3
ARTICLE 6. LIEN OF LANDLORD........................ 5
ARTICLE 7. MECHANIC'S LIEN......................... 6
ARTICLE 8. ALTERATIONS............................. 6
ARTICLE 9. REPAIRS................................. 7
ARTICLE 10. DEMISE TO PREMISES...................... 8
ARTICLE 11. EMINENT DOMAIN.......................... 9
ARTICLE 12. NOTICES................................. 10
ARTICLE 13. MEMORANDUM OF LEASE..................... 10
ARTICLE 14. USE..................................... 11
ARTICLE 15. ASSIGNMENT, SUBLETTING,ETC.............. 11
ARTICLE 16. LANDLORD'S WARRANTY..................... 13
ARTICLE 17. SUBORDINATION........................... 13
ARTICLE 18. NON-LIABILITY OF LANDLORD............... 14
ARTICLE 19. INDEMNIFICATION OF LANDLORD............. 14
ARTICLE 20. DEFAULTS AND REMEDIES................... 14
ARTICLE 21. BANKRUPTCY.............................. 16
ARTICLE 22. UTILITIES AND SERVICES.................. 17
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ARTICLE 23. ACCESS TO PREMISES...................... 18
ARTICLE 24. SIGNS................................... 18
ARTICLE 25. SECURITY DEPOSIT........................ 18
ARTICLE 26. PREMISES "AS-IS"........................ 19
ARTICLE 27. FINANCIAL STATEMENTS....................
ARTICLE 28. ATTORNMENT.............................. 20
ARTICLE 29. GUARD SERVICE...........................
ARTICLE 30. ELEVATOR................................
ARTICLE 31. END OF TERM............................. 20
ARTICLE 32. GENERAL PROVISIONS...................... 20
ARTICLE 33. DEFINITIONS............................. 24
ARTICLE 34. PARKING................................. 24
ARTICLE 35. SUBMISSION NOT BINDING.................. 25
ARTICLE 36. EDA, HUD, ETC..........................
ARTICLE 37. COMPLIANCE WITH LAWS GENERALLY......... 25
ARTICLE 38. LANDSCAPING............................ 25
ARTICLE 39. ENVIRONMENTAL COMPLIANCE............... 25
ARTICLE 40. LANDLORDS ENVIRONMENTAL REPRESENTATION AND
INDEMNITY................................ 28
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THIS LEASE dated the 15th of October, 1997, between NINTH
AVENUE EQUITIES CO., INC., with offices at 00 Xxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (hereinafter designated as "Landlord")
and
VERTEX INDUSTRIES, INC., with offices at 00 Xxxxx Xxxxxx,
Xxxxxxx, Xxx Xxxxxx 00000 (hereinafter designated "Tenant")
W I T N E S S T H
ARTICLE I
DEMISE AND PREMISES
Section 1.01. Demise and Premises. Landlord
does hereby demise and lease to Tenant, and does hereby take and hire from
Landlord, those premise described as follows: an approximate 39,600
square foot building located at 00 Xxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx,
more accurately described in Schedule A attached (the "Premises").
TO HAVE AND TO HOLD for the term, as defined herein, and
subject to the terms, covenants and conditions herein contained which each
of the parties hereto expressly covenants and agrees to keep, perform
and observe.
ARTICLE II
TERM
Section 2.01. Term. The initial term of this
Lease (herein the Initial Term) shall be for a period of five (5) years
commencing on June 1, 1998 and expiring on May 31, 2003.
Section 2.02. At the end of the Initial Term, Tenant
shall have an option to renew this Lease for an additional five (5) year Term
(First Renewal Term) provided that the following conditions are satisfied:
(I) Tenant shall notify Landlord if its intentions to exercise its option to
renew no later than twelve (12) months prior to expiration of the initial
Term; and (ii) Tenant shall not be in default hereunder.
Section 2.03. Hereinafter the Initial Term, First
Renewal Term and all other renewals and extensions of this Lease are sometimes
referred to as the Term.
ARTICLE III
RENT AND PAYMENT
Section 3.01. Basic Rent During Initial Term (Basic
Rent). Landlord reserves and Tenant covenants to pay to Landlord, without
demand or notice, and without any set-off or deduction, a net basic rental
(herein the Basic Rent of:
(a) For the period June 1, 1998 - May 31, 2001 Basic Rent
shall be ONE HUNDRED SIXTY-FOUR THOUSAND, THREE HUNDRED AND FORTY
($164,340.00) DOLLARS payable in equal monthly installments of THIRTEEN
THOUSAND, SIX HUNDRED AND NINETY FIVE ($13,695.00) DOLLARS.
(B) For the period of June 1, 2001 - May 31, 2003 annual
Basic Rent shall be ONE HUNDRED SEVENTY THOUSAND, TWO HUNDRED AND EIGHTY
($170,280.00) DOLLARS payable in equal monthly installments of FOURTEEN
THOUSAND, ONE HUNDRED AND NINETY ($14,190.00) DOLLARS.
Section 3.02. Basic Rent During the Renewal Term.
Commencing on the first day of the month of the first year of the
First Renewal Term, June 1, 2003, and for the balance of the
First Renewal Term, through May 31, 2008, all terms and
conditions of this Lease shall remain in full force
and effect, except that the annual Basic Rent shall be ONE
HUNDRED NINETY THOUSAND AND EIGHTY ($190,080.00) DOLLARS payable in
equal monthly installments of FIFTEEN THOUSAND, EIGHT HUNDRED AND FORTY
($15,840.00) DOLLARS.
Section 3.03. Payment of Rent. The Basic Rent and
all additional rents and monies payable to Landlord under this Lease shall
be paid at the above address of Landlord or at such other address as may
be specified by Landlord from time to time by notice given to Tenant.
Said rent shall be due and payable on or before the first (1st) of each
and every month during the entire Term of this Lease Agreement.
Additional rentals required by the Lease shall be paid by
Tenant, at the Landlord's option, in monthly installments in such amounts
as are estimated and billed by Landlord at the beginning of a twelve
(12) month period commencing and ending on dates designated by
Landlord, each such installment being due on the first (1st) day of each
month. Once the actual bills are determined, any overcharge or
undercharge shall be adjusted between Landlord and Tenant.
Tenant shall be entitled to copies of all actual
bills utilized by Landlord for such adjustment.
ARTICLE IV
TAXES AND IMPOSITIONS
Section 4.01. Real Estate Taxes and Impositions. (a)
As additional rent hereunder, Tenant shall reimburse Landlord upon demand or
in accordance with Section 4.03 hereinbelow, at the Landlords option, one
hundred (100%) percent of the Real Property Taxes (as defined hereinbelow)
and assessments (whether special, for improvements or otherwise) levied and
assessed against the land and building owned by the Landlord of which the
Premises form a part, subject to below.
Section 4.02. Definition. The term Real Property
Taxes means all real property taxes currently in existence on the land and
buildings of which the Premise are part, together with
any and all taxes or imposts which may at some future time be
levied by any governmental entity in total or
partial substitution for current real property taxes, including,
without limiting the generality thereof, personal property taxes, rental
gross receipt taxes, leasehold improvement taxes, use and occupancy taxes
and excise taxes.
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Section 4.03. Apportionment During First and Last Year
Term. The amount of Real Property Taxes and assessments payable by Tenant
during any partial calendar year during the Term shall be apportioned between
Landlord and Tenant in accordance with the portion of the calendar year
within the Term.
Section 4.04. Tax Appeals. Either party shall have the right to
initiate a appeal of the Real Property Taxes during the term of this Lease.
The party who initiates the appeal of the Real Property Taxes shall be solely
responsible for all costs, expenses and legal fees unless Landlord and
Tenant agree otherwise with respect to a particular tax appeal.
During the pendency of any tax appeal, Tenant shall continue to pay Real
Property Taxes at the existing rate in accordance with this Lease. Any
subsequent tax reduction shall be credited by Landlord against the Real
Property Taxes owed by Tenant during the year in which the refund or credit
is received by Landlord from the municipality.
ARTICLE V
INSURANCE
Section 5.01 (a) Fire Insurance The Landlord will
procure and maintain and pay the premiums for fire insurance, including
complete extended coverage, vandalism, malicious mischief and rent insurance
(at least equal to one year's Basic Rent and additional rent) insuring the
entire building of which the Premises form a part. Said insurance shall
insure for full replacement value without allowance for depreciation.
Tenant shall for the period of the Term of this Lease, repay to the
Landlord as additional rent, the premiums as they become due and payable for
said insurance.
Landlord shall have the right to obtain this fire insurance
with a deductible amount not to exceed Five Thousand ($5,000.00) Dollars.
The Tenant hereby agrees to pay the Landlord this deductible
amount as additional rent for any fire or other occurrence covered by this
fire insurance which occurs within Tenants Premises.
If, prior to the end of any policy period, Tenant submits to
Landlord a quote from an insurance company with the same or better rating
and the same coverage as Landlords company and at a lower cost
than Landlords insurance, for all of the insurance provided for
in this 5.01 (a), Landlord agrees to either procure the insurance from
the insurance company proposed by Tenant or pay the extra cost of insurance
through Landlord's insurance company, provided that such
insurance shall conform to all other applicable
provisions of this Article V.
(b) Other Insurance Tenant shall at Tenant's sole cost
and expense but for the mutual benefit and protection of Landlord and
Tenant, with Landlord named a Named Insured or Additional Insured as
applicable, maintain:
(1) General Public Liability Insurance against claims
for bodily injury or death or property damage occurring upon, in or about
the Premises or the elevators or any escalator therein and on, in or about
the adjoining streets, sidewalks and passageways, such insurance to afford
protection to the combined single limit of not less than Two Million Five
Hundred Thousand ($2,500,000.00) Dollars per occurrence. Tenant is to
provide an Occurrence Policy. A Clams Made form is not acceptable.
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(2) Such other insurance against loss or damage to
Landlord's property as is usual and customary for the protection of lease
premises of this character, or as Landlord may deem from time to time
prudent and reasonable in view of new risks or changed conditions.
(3) In the event, at any future time, policies with
higher limitations shall be reasonably necessary to protect Landlord and/or
Landlords mortgagee, Tenant shall, at the request of Landlord, provide
insurance as above with such higher limitations.
All insurance procured by the Tenant shall be effected under valid and
enforceable policies issued by insurers of recognized
responsibility, admitted to write policies of the type
required in the State in which the Premises is located and
acceptable to the Landlord.
Upon the execution of this Lease, and, thereafter
not less than fifteen (15) days prior to the expiration dates of the
expiring policies theretofore furnished pursuant to this Article,
originals of the policies (or duplicates thereof issued by the
respective insurers) shall be delivered promptly by Tenant to Landlord,
and if Landlord so requires to the holder of any mortgage. The policies
shall provide for thirty (30) days notice of cancellation to Landlord.
Tenant shall not have a Self-Insured Retention (S.I.R.) or deductible
amount on any insurance policy, nor shall Tenant be self-insured unless
approved in writing by the Landlord prior to the effective date
of this Lease or the effective date of said policy, whichever is later.
This approval, if granted, shall not be automatically extended to renewal
or later policies. Tenant shall request approval for each renewal or new
policy.
All policies of insurance provided for herein and
any policies procured by Landlord shall name Landlord and Tenant as the
Insured as their respective interests may appear. Subject to the limitations
hereinafter in this paragraph set forth, such policies excepting the policies
provided for in subparagraph (1) of paragraph (b) of this Article, shall be
adjusted and paid to Landlord.
All such policies therefore issued by the Tenants
insurers shall cover any increased risks as a result of construction, repairs,
alterations and additions to the Premises and shall contain an agreement by
such insurers that such policies shall not be canceled without at least thirty
(30) days prior to written notice to Landlord and to any holder of a
mortgage to whom loss thereunder may be payable. All such policies of
insurance shall provide that any loss shall be payable to Landlord or the
holder of any mortgage notwithstanding any act of negligence of
Tenant which might otherwise result in forfeiture of said insurance.
Nothing in this Article shall prevent Tenant from
taking out insurance of the kind provided for hereunder under a blanket
insurance policy or policies which cover other personal and real property
owned or operated by Tenant as well as the buildings on the Premises, the
building equipment and appurtenances, nor from including any insurance
provided in paragraph (b) hereof under a blanket policy or policies
maintained by Tenant with respect to other properties owned or operated
by it, provided, however, that (1) any policy of blanket insurance
hereunder shall be no less than that which would have been afforded
under a separate policy or that which would have been afforded under a
separate policy or policies relating only to the demised premises.
In the event that insurance is in blanket form, Tenant shall
promptly provide Landlord suitable policies or, if Landlord finds
acceptable, certificates from the insurer to evidence coverage of the
Landlord. Any such certificates shall clearly show any underlying
Self-Insured Retention (S.I.R.) or deductible amount applicable to the
policy, which shall not exceed the amount to which prior approval of the
Landlord has been given.
Section 5.02. Right of Termination. If Landlord shall be unable
to procure fire and extended coverage insurance because of Tenant's use of
the Premises, Landlord shall have the right to terminate this Lease upon
written notice to Tenant specifying the reason for such termination, and
the rent shall be adjusted between the parties hereto as of the date of
termination specified in such notice.
Section 5.03. Waiver of Subrogation. Landlord hereby release Tenant
from liability for damage or destruction to the land and buildings of
which the Premises are part, and Tenant hereby releases Landlord for
liability for damage or destruction to any of its personal property or
leasehold improvements, provided, however, that such releases shall be in
force and effect only in respect of damage or destruction covered by
standard policies of fire insurance with extended coverage (as maintained
by the Tenant or Landlord pursuant to this Lease), and such waivers
shall be in effect solely to the extent of proceeds under any said policy.
Tenant and Landlord shall each cause any policies of insurance maintained
by it with respect to the Premises and the personal property contained
therein or appurtenant thereto and with respect to the building of which
the Premises form a part. To contain a waiver by the insurers of any rights
of subrogation.
ARTICLE VI
LIEN OF LANDLORD
Section 6.01. Lien of Landlord. Landlord is hereby granted a lien,
in addition to any statutory lien or right to distrain that may exist, on
all property of Tenant in or upon the Premises, except for property owned by
others which may be held by the Tenant of located upon the Premises, to secure
payment of the rent and performance of the covenants and conditions of this
Lease. Such lien is agreed to constitute a security interest and this lease
a security agreement within the meaning of Article 9 of the Uniform Commercial
Code of New Jersey (N.J.S.A. 12A: 9-101 et seq.) (the USS),
filed with appropriate governmental agencies as evidence thereof,
together with continuation thereto.
Section 6.02. Enforcement of Lien Rights. Upon
default by Tenant
beyond any grace period to cure same, Landlord shall have all
rights of a secured party under the USS, to
take possession of any furniture, fixtures or other personal
property of Tenant found in or about the
Premises, and sell the same at public or private sale and to
apply the proceeds thereof to the payment of
any monies becoming due under the Lease. Tenant agrees to pay,
as additional rent, all reasonable
attorneys' fees and other expenses incurred by Landlord in
enforcing its lien given above.
Section 6.03. Exceptions to Contractual Lien:
Subordination. Notwithstanding
anything in Section 6 to the contrary, Landlord recognizes that
Tenant's business involves use of the
Premises for warehouse and distribution of property of others.
In no event shall Landlord enforce its lien
in the manner that would result in the impound, delay, hindrance
or stoppage of the removal of such goods
and materials of others from the Premises after termination of
the Lease and entry of judgement for
possession. In addition, Landlord agrees to enter into a
conditional lien
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waiver agreement with Tenant's lender (provided that Landlord has
been given written notice from Tenant
and a request for such an agreement) which shall provide in
substance that Landlord shall not exercise its
lien against Tenant's equipment or inventory in the Premise
provided that upon fifteen (15) days notice
from Landlord to such lender of a lease default by Tenant such
lender shall pay all base and additional rent
due under the Lease from the end of such fifteen (15) day period
until the end of the calendar month after
such time as all such Tenant property has been removed from the
Premises and all damage from such
removal has been repaired.
ARTICLE VII
MECHANIC'S LIEN
Section 7.01. Mechanic's Lien Prohibited.
Tenant shall not suffer any
mechanic's notice of intention or lien claim to be filed against
the Premises by reason of work, labor,
services or materials performed for or furnished to Tenant or to
anyone holding the Premises, or any part
thereof, through or under Tenant.
Section 7.02. Landlord's Remedy for Tenant's Breach.
If Tenant shall fail to
remove or discharge any aforesaid mechanic's notice of intention
or lien claim within fourteen (14) days
after notice of knowledge of the filing of same, then in addition
to all other rights of Landlord hereunder or
by law upon a default by Tenant, Landlord may, at its option,
procure the removal or discharge of same.
Any amount paid by Landlord for such purpose, including all
reasonable attorneys' fees and other
expenses therefore, together with interest thereon at the Lease
Interest Rate (as hereinafter defined), shall
become due and payable by Tenant to Landlord as additional rent,
and in the event of Tenant's failure to
pay therefore within fifteen (15) days after demand, the same
shall be added to and be due and payable
with the next months rent.
ARTICLE VIII
ALTERATIONS
Section 8.01. Alterations. Tenant shall make no
changes in or to the
Premises without Landlord's prior written consent, which, as to
non-structural changes only, shall not be
unreasonably withheld. Subject to the prior written consent of
Landlord, and to the provisions of this
Article, Tenant may make alterations, installations, additions or
improvements which are non-structural
and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the Premises
by using contractors or mechanics first approved in writing by
Landlord. All fixtures, all electrical items
and all panelling, partitions, railings and like installations
installed in the Premises at any time, either by
Tenant or Landlord on Tenant's behalf, shall; become the property
of Landlord and shall remain upon and
be surrendered with the Premises unless Landlord, by notice to
Tenant no later than thirty (30) days prior
to the date fixed as the termination of this Lease or before
sixty (60) days after the expiration of this Lease,
elects to have them removed by Tenant, in which event the same
shall be removed from the Premises by
Tenant forthwith. Nothing in this Article shall be construed to
prevent Tenant's removal of trade fixtures,
but upon removal of any such trade fixtures from the Premises or
upon removal of other installations as
may be required by Landlord, Tenant shall immediately and at its
expense repair and restore the Premises
to the condition existing prior to installation, and shall repair
any damage to the Premises or the building
due to such removal. All property permitted or required to be
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removed by Tenant at the end of the Term remaining in the
Premises after Tenant's removal shall be
deemed abandoned and may, at the election of Landlord, either be
retained as Landlord's property or may
be removed from the Premises by Landlord at Tenant's expense,
which right of Landlord shall survive
expiration of this Lease. Tenant shall, before making any
alterations, additions, installations or
improvements, obtain all permits, approvals, and certificates
required by any governmental or quasi-
governmental bodies and (upon completion) certificates of final
approval thereof and shall promptly
deliver duplicates of all such permits, approvals and
certificates to Landlord; and Tenant agrees to carry
such Workmen's Compensation, General Liability, Personal and
Property Damage Insurance as Landlord
may reasonably require. Tenant agrees to obtain and deliver to
Landlord, written and unconditional
waivers of mechanic's lien upon the real property in which the
Premises are located, for all work, labor
and services to be performed and materials to be furnished in
connection with such work, signed by all
contractors, sub-contractors, materially and laborers to become
involved in such work. The work shall be
done in a good and xxxxxxx-like manner and in compliance with all
applicable laws, ordinances, codes,
governmental rules, regulations and requirements, and in
accordance with the standards, if any, of the
Board of Fire Underwriters, or other organizations exercising the
functions of a board of fire underwriters
the jurisdiction of which includes the Premises.
ARTICLE IX
REPAIRS
Section 9.01. Repairs. Landlord shall at its sole cost,
upon reasonable written notice
from Tenant, make the necessary structural repairs and
replacements to the exterior walls, and any load
bearing interior walls and shall keep in good order, condition,
and repair the exterior foundations, and roof
and roof membrane of the building containing the Premises (such
obligation not to include all windows,
and all operating parts such as overhead ducts or fans or
skylights). Except for the above and for what may
otherwise be specifically provided for in this Lease, Tenant
shall be responsible for all maintenance, repairs
and replacements of and to the Premises, including but not
limited to the following responsibilities: Tenant
shall take good care of and maintain on a regular basis the
Premises and the fixtures, appurtenances and
systems in or affecting the Premises (including but not limited
to plumbing, sewers, roof, gutters,
downspout, doors, painting, windows, electrical, heating,
sprinkler and air conditioning, if any) and shall
make all repairs thereto or replace as and when needed to
preserve them in good working order and
condition, and shall maintain the Premises in a clean, neat
condition. Tenant shall not permit or suffer the
Premises to fall to such low temperature as would cause freezing
of the water lines or sprinkler servicing
the Premises; and, in default hereof, Tenant shall promptly
effect and pay for all repairs the need for which
shall arise from such freezing, and shall hold Landlord harmless
from any loss, damage or liability caused
by or arising out of such freezing. Notwithstanding anything
above to the contrary, all damage or injury to
the Premises or to any other part of said building, or to its
fixtures, equipment and appurtenances, whether
requiring structural or non-structural repairs caused by or
resulting from carelessness, omission, neglect or
improper conduct of Tenant, its servants, employees, invitee or
licensees, shall be repaired promptly by
Tenant at its sole cost and expense, to the reasonable
satisfaction of Landlord and in accordance with
Section 8.01 hereinabove. Tenant shall also repair all damage to
the Premises and to the building of which
the Premises are part, caused by the moving of Tenant's fixtures,
furniture or equipment. All the
aforesaid repairs shall be of quality or class at least equal to
the original work or construction. Any repair
which Tenant is obligated to make hereunder may be made by
Landlord, at Landlord's sole
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option, subject to reasonable prior notice to Tenant in any non-
emergency situation (in which event
Landlord shall not be liable for any injury to persons, damage to
property or loss of business arising out of
the make of such repairs) but at the sole expense of Tenant, and
the expenses thereof incurred by Landlord
(together with interest at the Lease Interest Rate, as
hereinafter defined) shall be collectible as additional
rent with ten (10) days of demand therefore. There shall be no
allowance to Tenant for a diminution of
rental value and no liability on the part of Landlord by reason
of inconvenience, annoyance or injury to
business arising from the making or failing to make by Landlord,
Tenant or others, of any repairs,
alterations, additions, or improvements in or to the fixtures,
appurtenances or equipment thereof.
If any unauthorized roof openings or penetrations are made
by Tenant without the knowledge and
prior consent of the Landlord and such action by the Tenant voids
any existing roof guarantee, warranty or
bond, the Tenant shall be responsible for assuming the cost of
work which would have been covered by the
voided guarantee, warranty or bond, as additional rent. If the
length of the voided guarantee, warranty or
bond period exceeds the remaining Term of the Lease, the Tenant
shall pay to Landlord as additional rent
an amount Landlord estimates will be required for the portion of
the period which is subsequent to the
scheduled date of termination of this Lease.
Section 9.02. Emergency Repairs. If in an
emergency it shall become
necessary to make immediate repairs or replacements required to
be made by Tenant and the Tenant shall
not have commenced with reasonable diligence to make such repairs
or replacements, the Landlord, subject
to notice, if any, as may be reasonable under the circumstances
may re-enter the Premises and proceed
forthwith to have such repairs or replacements made. The Tenant
agrees to pay to the Landlord the cost of
such repairs upon demand, plus a five (5%) percent management
fee.
Landlord shall not unreasonably interfere with Tenants
business in the event Landlord re-enters
the Premises.
ARTICLE X
DAMAGE TO PREMISES
Section 10.01. Notice. If the Premises or any
part thereof shall be damaged
by fire or other casualty, Tenant shall give immediate notice
thereof to Landlord, and this Lease shall
continue in full force and effect except as hereinafter set
forth.
Section 10.02. Partial Damage. Subject to Section
10.03, hereinbelow if the
Premises are partially damaged or rendered partially unusable by
fire or other casualty, the damages thereto
shall be repaired by Landlord with all reasonable expedition,
subject to delays due to adjustment of
insurance.
Section 10.03. Substantial Damage. If the Premises
are substantially
damaged (being defined as more that 30% damage) or rendered
wholly unusable or (whether or not the
Premises are damaged in whole or in part) if the building of
which the Premises are part shall be so
damaged as, in Landlord's reasonable judgement, practically to
require demolition or rebuilding thereof,
then, in any of such events, either party may elect to terminate
this Lease by written notice to the other
party given within sixty (60) days after such fire or casualty
specifying a
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date of the expiration of this Lease, which date shall not be
more than thirty (30) days after the giving of
such notice, and upon the date specified in such notice the Term
shall expire as fully and completely as if
such date were the date set forth above for the expiration of
this Lease, and Tenant shall forthwith quit,
surrender and vacate the Premises, without prejudice, however, to
Landlord's rights and remedies against
Tenant under provisions of this Lease in effect prior to such
termination, and any rent owing shall be paid
up to such date, and any payments of rent made by Tenant which
were on account of any period
subsequent to such date shall be returned to Tenant. Unless
Landlord or Tenant shall serve a termination
notice as provided for herein, Landlord shall make the repairs
and restorations with all reasonable
expedition subject to delays due to adjustment of insurance
claims, labor troubles and causes beyond
Landlord's control, and this Lease shall continue in full force
and effect. It is understood that there shall
be a pro rata abatement for rent for any period of time during
which the Premises shall be in a damaged
condition, whether or not the Premises shall be partially or
wholly unusable.
Section 10.04 Tenant Property. Tenant
acknowledges that Landlord
will not carry insurance on Tenant's furniture and/or furnishings
or any fixtures or equipment,
improvements or appurtenances removable by Tenant and agrees that
Landlord will not be obligated to
repair any damage thereto or replace same.
Section 10.05. Mortgages. It is understood and
agreed that the
provisions of this Article X are subject to the rights of
mortgagees of Landlords interest in the land and
buildings of which the Premises are part.
ARTICLE XI
EMINENT DOMAIN
Section 11.01 Total Taking. In the event that
any public authority or
agency holding the power of eminent domain under applicable law
shall at any time during the Term
condemn, or acquire title in lieu of condemnation to, all or
substantially all of the Premises, this Lease shall
terminate and expire as of the date upon which title shall vest
in such authority, and Tenant shall pay rent
only to the time of such vesting of title.
Section 11.02. Partial Taking. If there shall
be only a partial taking or
condemnation as aforesaid totalling one-third (1/3) or less of
the building of which the Premises are part
and which shall not substantially prevent Tenant's use of the
Premises for purposes of its business, this
lease shall thereafter continue as to untaken part and Tenant
shall be entitled to a reduction in the Basic
Rent and additional rental in such proportion as Landlord shall
reasonably deem fair and equitable.
Section 11.03. Restoration by Landlord. If there shall
be partial taking and
this Lease shall continue as to the remaining part of the
Premises, Landlord, at its own expense and as
promptly as practicable, shall restore such remaining part as
nearly as may be practicable to its former
condition, but only upon receipt of and to the extent of, the
condemnation award made on account of such
partial taking.
Section 11.04. Award to Landlord. Landlord
reserves the exclusive right
to negotiate with the condemning authority with respect to any
proposed condemnation award, and
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all damages and compensation paid for the taking under the power
of eminent domain, whether for the
whole or a part of the Premises and whether by agreement or
award, shall belong to and be the property of
Landlord. Tenant hereby releases and disclaims any interest or
right whatsoever in the award or
compensation offered or paid by the condemning authority to the
Landlord for the loss of the fee. There is
expressly excluded from any right of compensation to the Tenant,
and the Tenant expressly waives, any
claims against the condemning authority for diminution in the
value of the leasehold.
Section 11.05. Awards Pursuant to Relocation Assistance
Act.
Notwithstanding the provisions of Section 11.04, there is
expressly reserved to Tenant the right to recover
against the condemning authority for its actual reasonable
expenses in moving its business from the
Premises and its actual direct losses in tangible personal
property by virtue of the taking, all as
contemplated in the Relocation Assistance Act (R.S. 20:4-1 et
seq.), and the rules and regulations adopted
thereunder.
Section 11.06 Notice to Tenant. Landlord shall give
prompt notice to Tenant
of any eminent domain proceedings with respect to the Premises.
ARTICLE XII
NOTICES
Section 12.01 Notices. No notice, request,
consent, approval,
waiver or other communication under this Lease shall be effective
unless the same is in writing, and
delivered by hand or mailed by certified mail, postage prepaid,
or mailed by recognized overnight courier
service, addressed:
(a) If to the Landlord, to the address designated as
the Landlord's address, or such
other as Landlord may from time to time designate:
(b) If to the Tenant, to its address as stated in
Article First of this Agreement, or to
such other person or address as Tenant may from time to time
designate.
Section 12.02. Delivery.
All notices hereunder shall be effective upon
receipt or refusal.
ARTICLE XIII
MEMORANDUM OF LEASE
Section 13.01. Memorandum of Lease. Tenant
shall not record this
Lease, but if either party should desire to record a short form
of Memorandum of Lease setting forth only
the parties, the Premises and the Term, such Memorandum of Lease
shall be executed, acknowledged and
delivered by both parties upon notice from either party.
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ARTICLE XIV
USE
Section 14.01. Use.
The Premises shall be used and occupied by Tenant
for manufacturing and warehousing of scales, balances and
electronic devices, distribution and finishing of
packaging products including the storage of raw materials and
finished products and outdoor truck parking
in connection therewith, and for no other purpose. Tenant's use
of the Premises shall be in compliance
with all applicable governmental laws, rules and regulations and
ordinances, and other applicable codes
including but not limited to the requirements of the Occupational
Safety and Health Administration and of
any board of fire underwriters or like organization having
jurisdiction over Premises. Tenant shall obtain
its own certificate of occupancy other certificates or permits
required for the lawful occupancy of the
Premises. If the Premises are in violation of any building, fire
or similar code, regulation or requirement
arising out of Tenant's particular use of the Premises or
Tenant's failure to comply with any duty or
obligation under this Lease, Tenant shall be responsible for
compliance therewith, at its sole cost and
expense. If the Premises are in violation of any building, fire
or similar code, regulation or requirement
pertaining to buildings generally of the type and size of the
Premises, Landlord shall be responsible for
compliance therewith at its sole cost and expense. However,
Landlord's responsibility shall be limited to
any such violation existing on the Commencement Date of this
Lease. Any future violation shall be
Tenant's sole responsibility. Tenant shall not store, warehouse,
handle or in any other way use highly
flammable material, red label items, toxic items, corrosives,
poisons and oxidizers or other hazardous
substances anywhere on the Premises. The standard Industrial
Classification Code for Tenant's primary
use of the Premises is SIC# 3998.
Neither Tenant's use of the Premises nor Tenant's SIC# shall
be changed without Landlord's
prior consent which shall not be unreasonably withheld. Landlord
may reasonably withhold such consent
for good cause, including, without limitation, any of the
following reasons, in Landlord's judgement:
(a) increased likelihood of environmental regulation
or contamination, including
applicability of the New Jersey Industrial Site Recovery Act, or
(b) increased likelihood of additional wear and tear
or damage to the Premises, or increased risk of fire or explosion, or
(d) increased governmental requirements or regulations
(other than environmental).
ARTICLE XV
ASSIGNMENT, SUBLETTING, ETC.
Section 15.01. Assignment, Subletting, etc. (a)
Tenant shall not sell,
assign, mortgage, pledge, or, in any manner, transfer or encumber
this Lease or any estate or
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interest hereunder, or sublet the Premises or any part thereof,
without the previous written consent of
Landlord, which consent shall not be unreasonably withheld,
provided, however the consent of Landlord
shall not be required in connection with sublet of a portion of
the Premises to corporate affiliates of Tenant
(being defined as an entity which is at least fifty (50%) percent
owned by or under common ownership
with Tenant) having substantially the same use and the same SIC
Code as Tenant (or such other SIC Code
as shall not, in Landlord's reasonable opinion, subject the
Premises to ISRA or increase the likelihood of
other environmental regulation or contamination, increased fire
insurance rates, or increased wear, tear or
damage to the Premises). In any of the event aforesaid, Tenant
nevertheless shall remain primarily liable
for the payment of the Basic Rent and all additional rents, and
for the performance of Tenant's other
covenants and obligations hereunder. No consent to any
assignment of this Lease or subletting of any or
all of the Premises shall be deemed or be construed as a consent
by Landlord to any further or additional
assignment or subletting.
(b) In the event of any assignment of this Lease, the
assignee shall assume, by
written recordable instrument reasonably satisfactory to
Landlord, the due performance of all of Tenant's
obligations under this Lease. No assignment shall be valid or
effective in the absence of such assumption.
A true copy of such assignment and the original assumption
agreement shall be delivered to Landlord
within thirty (30) days of the effective date of such assignment.
If Tenant request Landlord's consent to
an assignment or subletting, Tenant shall pay to or on behalf of
Landlord any expense, including
Landlord's attorneys' fees, incurred by Landlord in connection
with said request.
Section 15.02. Transfer of Controlling Interest.
Any transfer of a controlling
interest of the assets or capital stock of the Tenant shall be
deemed an assignment requiring Landlord's
prior approval, which shall not be unreasonably withheld, so long
as (a) the use and SIC Code of the
Premises by the successor is substantially the same as Tenant's
use, (b) the successor is at least as
financially sound as Tenant in Landlord's reasonable discretion,
and the successor complies with the requirements of Section 15.01 (b) above.
Section 15.03 Recapture of Premises.
If at any time during the
Term, Tenant shall have received a bona fide offer from a
prospective sub-tenant of the Premises with
respect to proposed occupancy as sub-tenant of all or a portion
of the Premises, Tenant shall furnish a copy
of such offer to Landlord. In addition to the right to exercise
reasonable consent with respect to the
proposed sub-tenancy, Landlord shall have the right, by written
notice given to Tenant within ten (10) days
of Landlord's receipt of the copy of such offer, to agree to
accept the proposed sub-tenant as a direct
tenant of Landlord. In the event that (I) Landlord shall have
given timely notice as aforesaid to Tenant, (ii)
Landlord and the prospective sub-tenant shall have entered into a
written agreement for direct tenancy by
such sub-tenant and (iii) such sub-tenant shall have entered into
occupancy of the Premises and
commenced direct payment of rent to Landlord, then automatically
upon the occurrence of all three such
events, Landlord and Tenant hereunder shall be and become
released from any further obligation under the
Lease as to the portion of the Premises subject to the sublet (if
the sublet is for less than the entire
Premises), and the Lease between Landlord and Tenant hereunder
shall be deemed terminated and of no
further force and effect (rental to be adjusted a of the date of
termination) as to space. If Landlord shall not
have given notice to Tenant within the said ten (10) day period,
Landlord shall be deemed to have waived
is right to effect a direct tenancy with the proposed sub-tenant.
It is understood and agreed that neither
party hereto shall be released from its obligations to the other
party unless and until
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Landlord shall have been released from their obligations under
the Lease, the Lease shall remain in full
force and effect and shall continue to be binding upon Landlord
and Tenant. This section 15.03 shall not
apply to sublets to corporate affiliates of Tenant, as defined in
Section 15.01 (a) above.
ARTICLE XVI
LANDLORD'S WARRANTY
Section 16.01. Warranty.
Landlord warrants that it has the right to
execute this Lease, and covenants that there are no covenants,
easements, restrictions or liens which would
adversely affect Tenant's use of the Premises for the purposes
permitted hereunder. Notwithstanding the
above, if Landlord shall be unable to give possession of the
Premises on the date of commencement of the
Term, because of the holding-over or retention of possession of
any tenant, undertenant or occupants, or
for any other reason not within Landlord's control, then., and in
any of such events, Landlord shall not be
subject to any liability for failure to give possession on said
date, and the validity of this Lease shall not be
impaired under such circumstances, nor shall the same be
construed in any way to extend the Term, but the
rent payable hereunder shall be abated (provided Tenant is not
responsible for the inability to obtain
possession) until after Landlord shall have given Tenant written
notice that the Premises are substantially
ready for Tenant's occupancy.
ARTICLE XVII
SUBORDINATION
Section 17.01. Subordination to Mortgages.
This Lease is hereby made
and shall be subject and subordinate to all mortgages which may
now or hereafter affect the Premises, and
to all renewals, modifications, consolidations, replacement or
extensions there. Landlord will obtain a non-
disturbance/attornment agreement from its current and any future
mortgage of the Premises, if any, on such
mortgagee's usual form.
Section 17.02. Tenants Certificate.
Notwithstanding the automatic
applicability, as to all current and future mortgages, of the
subordination of this Lease, Tenant shall, upon
request of Landlord, execute any instrument which may be deemed
necessary or desirable by Landlord to
confirm such subordination or as otherwise required for mortgage
financing or sale of the Premises
including but not limited to, estoppel certificates executed and
acknowledged to any mortgages or
purchaser, or any proposed mortgage lender or purchaser,
including but not limited to certifications that
this Lease is in full force and effect or, if not, in what
respect it is not; that this Lease has not been
modified, or the extent to which it has been modified; and that
there are not existing defaults hereunder to
the best of Tenant's knowledge, or specifying the defaults, if
any. If Tenant fails to respond after due
notice within seven (7) days, it shall automatically constitute
affirmation of the items contained in the
estoppel statement.
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ARTICLE XVIII
NON-LIABILITY OF LANDLORD
Section 18.01. Non-Liability of Landlord.
Landlord shall not be
responsible or liable to Tenant for any loss, damage or injury to
person or property that may be occasioned by the acts or omissions
of Landlord or of persons occupying any space adjacent to or adjoining the
Premises, or any part thereof, including, not in limitation of
the foregoing, loss, damage or injury resulting
to Tenant or to any other person, from water, gas, steam, fire or
the bursting, stoppage, or leakage of sewer
pipes, except for acts resulting from the gross negligence or
willful misconduct of Landlord. The
provisions hereof are not intended to abrogate the provisions of
Section 5.05 hereinabove (Waiver of
Subrogation).
ARTICLE XIX
INDEMNIFICATION OF LANDLORD
Section 19.01. Indemnification of Landlord.
Tenant agrees to indemnify
and save Landlord harmless from and against all liability and all
loss, cost and expense, including
reasonable attorneys' fees and costs, arising out of the
operation, maintenance, management and control of
the Premises or in connection with (a) any injury or damage
whatsoever caused it or by any person,
including Tenant, its employees, contractors or agents, or to
property, including Tenant's property, arising
out of any occurrence on the Premises; (b) any breach of this
Lease by Tenant; any act or omission of
Tenant or of any person on the Premises, occurring in, on or
about the Premises; (d) any contest or
proceeding brought by Tenant as may be provided for herein,
except with respect to liability resulting from
the gross negligence or willful misconduct of Landlord. The
provisions hereof are not intended to abrogate
the provisions of Section 5.05 hereinabove (Waiver of
Subrogation). In the event that either party
breaches the Lease, in addition to its rights under this Lease,
either party shall have the right to recover
reasonable attorneys fees.
ARTICLE XX
DEFAULTS AND REMEDIES
Section 20.01. Tenants Default.
If Tenant (a) fails to make any
payment of Basic Rent of any additional rent or sum herein
reserved, within three (3) days following the
due date thereof (provided, however, that Tenant shall be
entitled to an additional two (2) day grace period
for any such payment of rent, not more frequently then twice in
any calendar year), and tenant fails to cure
such non-payment within five (5) days of receipt of notice from
the landlord of tenant's failure to pay, or
(b) if Tenant defaults in compliance with any of the other
covenants or conditions of this Lease and fails to
cure such default, other than the payment of Basic Rent or any
additional rent or sum herein reserved,
within ten (10) days after the receipt of notice specifying the
default, then at the expiration of said ten (10)
days (provided, however, that if such breach of other covenant or
condition cannot reasonably be cured
within such ten (10) day period, Tenant shall be afforded a
reasonable time thereafter to complete such
cure, in no event exceeding sixty (60) days, provided that Tenant
commence the cure within such ten 10 days and
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diligently and continuously proceeds to complete such cure),
Landlord may (a) cancel and terminate this
Lease upon written notice to Tenant (whereupon the Term shall
terminate and expire, and Tenant shall then
quit and surrender the Premises to Landlord, but Tenant shall
remain liable as hereinafter provided); and/or
(b) at any time thereafter re-enter and resume possession of the
Premises as if this Lease had not been
made, Tenant hereby waiving the service of any notice of
intention to re-enter or to institute legal
proceedings to that end.
Section 20.02. Re-Entry by Landlord. If this Lease
shall be terminated or if Landlord shall be entitled to re-enter the
Premises and dispossess or remove Tenant under the provisions of
Section 20.01 (either or both of which events are hereinafter
referred to as a Termination), Landlord
and Landlord's agents or servants may immediately or at any time
thereafter re-enter the Premises and
remove therefrom Tenant, its agents, employees, servants,
licensees and any sub-tenants and other persons,
firms or corporations, and all or any of its or their property
therefrom, either by summary dispossess
proceedings or damages therefore, and may repossess and enjoy the
Premises, including all additions, alterations and improvements thereto.
Section 20.03. Effect of Termination.
In case of Termination, the Basic Rent and all other charges
required to be paid by Tenant hereunder shall thereupon become due
and shall be paid by Tenant up to the time of the Termination, and
Tenant shall also pay to Landlord all reasonable expenses which Landlord
may then or thereafter incur as a result of or arising out of a Termination,
including but not limited to court costs, reasonable attorneys'
fees, brokerage commissions and cost of
terminating the tenancy of Tenant, re-entering, dispossessing or
otherwise removing Tenant, and restoring
the Premises to good order and condition, and from time to time
altering the otherwise preparing the same
for reletting. Upon a Termination, Landlord may, at any time and
from time to time, re-let the Premises, in
whole or in part, either in its own name or as Tenant's agent,
for a term or terms which, at Landlord's
option, may be for the remainder of the then current Term, or for
any longer or shorter period.
Section 20.04. Damages. In addition to the
payments required by Section 20.03 hereinabove, Tenant shall be obligated to,
and shall, pay to Landlord upon demand and at Landlords option:
(a) Liquidated damages in an amount which, at the time of
the Termination, is equal to
the excess, if any, of the then present amount of the
installments of Basic Rent reserved hereunder, for the
period which would otherwise have constituted the unexpired
portion of the then current Term, over the
then present rental value of the Premises for such unexpired
portion of the then current Term; or
(b) Damages (payable in monthly installments), in advance,
on the first day of each calendar
month following the Termination, and continuing until the date
originally fixed herein for the expiration of
the then current Term in amounts equal to the excess, if any, of
the sums of the aggregate expenses paid by
Landlord during the month immediately preceding such calendar
month for all such items as, by the terms
of this Lease, are required to be paid by Tenant, plus an amount
equal to the installment of Basic Rent
which would have been payable by Tenant hereunder in respect to
such calendar month, had this Lease not
been terminated, over the sum of rents, if any, collected by or
accruing to Landlord in respect to such
calendar month pursuant to a re-letting or to any holding over by
any sub-tenants of Tenant.
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Section 20.05. No Obligation to Re-Let. Landlord
shall in no event be liable for failure to re-let the Premises, or in the
event that the Premises are re-let, for failure to collect rent
due under such re-letting; and in no event shall Tenant be
entitled to receive any excess of the Basic Rent
over the sums payable by Tenant to Landlord hereunder but such
excess shall be credited to the unpaid
rental due hereunder, and to the expenses of re-letting and
preparing for re-letting as provided herein.
Landlord shall use commercially reasonable efforts to re-let the
Premises.
Section 20.06. Successive Suits. Suit or suits
for the recovery ofdamages hereunder, or for any installments of rent, may be
brought by Landlord from time to time at its
election, and nothing herein contained shall be deemed to require
Landlord to postpone suit until the date
when the Term would have expired if it had not been terminated
under the provisions of this Lease, or
under any provision of law, or had landlord not re-entered into
or upon the Premises.
Section 20.07. Acceleration. Anything to the
contrary hereinbefore
notwithstanding, Landlord shall have the option to accelerate all
future rentals due and hold Tenant
responsible, in advance, for the aggregate damages (as
described in this Article XX) to be suffered by
Landlord during the remainder of then current Term or renewal
term as well as damages covering any
renewal term, the option for which shall have been exercised by
the Tenant.
Section 20.08. Late Fee.
Landlord, at its option, in addition to any and
all remedies available to it, shall have the right to charge
legal fees and court costs necessary to collect late
rental; as well as a late fee which shall become due and payable
when any rental remains unpaid after the
third (3) day of the month in which said rent was, due which fee
shall be eight (8%) percent per month in
the amount of such overdue rent; or in the event that rent is
received after the 15th, said fee shall be twelve
(12%) percent per month in the amount of such over due rent.
Section 20.09. Waiver of Redemption. Tenant
hereby waives all rights of redemption to which Tenant or any person
claiming under Tenant might be entitled, after an
abandonment of the Premises, or after a surrender and acceptance
of the Premises and the Tenant's
leasehold estate, or after a dispossession of Tenant from the
Premises, or after a termination of this Lease,
or after a judgement against Tenant in an action in ejectment, or
after this issuance of a final order or
warrant of dispossess in a summary proceeding, or in any other
proceeding or action authorized by any rule
of law or statute now or hereafter in force or effect.
ARTICLE XXI
BANKRUPTCY
Section 21.01. Bankruptcy, Insolvency, etc.
If at any time after the date of
this Lease (whether prior to the commencement of or during the
Term) (a) any proceedings in bankruptcy,
insolvency or reorganization shall be instituted against Tenant
pursuant to any Federal or State Law now or
hereafter enacted, or any receiver or trustee shall be appointed
of all or any portion of Tenant's business
or property, or any execution or attachment shall issue against
Tenant or any of Tenant's business or
property or against the leasehold estate created hereby and any
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of such proceedings process or appointment be not discharged and
dismissed within thirty (30) days from the
date of such filing, appointment or issuance; or (b) Tenant shall
be adjudged a bankrupt or insolvent, or
Tenant shall file a voluntary petition in bankruptcy or petitions
for (or enters into) an arrangement or for
reorganization, composition or any other arrangement with
Tenant's creditors under any Federal or State
Law now or hereafter enacted, or this Lease or the estate of
Tenant herein shall pass to or dissolve upon, by
operation of law or otherwise, anyone other than Tenant (except
as herein provided), the occurrence of any
one of such contingencies shall be deemed to constitute and shall
be construed as a repudiation by Tenant
of Tenant's obligations hereunder and shall cause this Lease ipso
facto to be canceled and terminated,
without thereby releasing Tenant; and upon such termination
Landlord shall have the immediate right to re-
enter the Premises and to remove all persons and property
therefrom and this Lease shall not be treated as
an asset of Tenant's estate and neither Tenant nor anyone
claiming by, through or under Tenant by virtue
of any law or any order of any Court shall be entitled to the
possession of the Premises or to remain in the
possession thereof. Upon the termination of this Lease, as fore
said, Landlord shall have the right to retain
as partial damages, and not as a penalty, any prepaid rents as
partial damages, and not as a penalty, any
prepaid rents deposited by Tenant hereunder, and Landlord shall
also be entitled to exercise such rights and
remedies to recover from Tenant as damages such amounts as are
specified in Article XX hereof. As used
in this Article XXI, the term "Tenant" shall be deemed to include
Tenant and its successors and assigns
and the guarantor(s), if any, of Tenant's obligations under this
Lease.
ARTICLE XXIII
UTILITIES AND SERVICES
Section 22.01. Utilities and Services. Except as
may other wise be provided
in this Lease, Tenant shall undertake and be responsible to place
in its name all utilities for the Premises
and agrees to place in its name all utilities for the Premises
and agrees to pay, on or before the due date, all
charges for same directly to the respective utility companies.
Such utilities include water, sewer,
electricity, heat, power, telephone, A.D.T. Protective Services
(or similar service by another company) or
other communication service or other utility or service issued
by, or rendered or supplied to Tenant at the
Premises (or at the building of which the Premises forms a part)
throughout the Term. Landlord may, at its
option, furnish to Tenant or to any other portion of the building
of which the Premises are a part of any one
or more utilities, services (including elevator), or repairs
(which services, or repairs shall be chosen at the
sole discretion of Landlord) and Tenant shall pay the cost of
said utilities, services, or repairs within ten
(10) days after Landlord's demand therefore. Failure to make
said payment within said ten-day period is
defined as a material default on the part of the Tenant. In no
event shall Landlord incur any liability to
Tenant or any other person by reason of any interruption of or
delay in furnishing any utility service to the
Premises. If Tenant fails to make any payment as herein
provided, Landlord may, without further notice,
terminate such utility service. Tenant will thereafter be liable
for all costs in connection with the
termination and reinstallation or reestablishment of services.
Section 22.02. Electric Current. Tenants use of
electric current shall not exceed the capacity of existing feeders
to the building or the risers or wiring installation, and Tenant
may not use any electrical equipment which, in the Landlord's
reasonable judgment, will overload such
installations.
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ARTICLE XXIII
ACCESS TO PREMISES
Section 23.01. Landlords Right of Access.
Tenant shall permit Landlord
or its agents to enter the Premises at any time for the purpose
of inspecting or showing the Premises, on
reasonable notice. Tenant may in no way interfere with the
Landlord's right to inspect. Tenant shall,
upon its being given notice of Landlord's desire or intent to see
the Premises and/or within one year prior
to the expiration of the Term or any renewal term, permit the
usual; notice of "To Let", "For Rent" and
"For Sale" to be placed at reasonable locations on the Premises
and to remain thereon, without hindrance
or molestation. Landlord shall also have the right, but not the
obligation, to enter the Premises at
reasonable times to run utility, plumbing or sewer lines,
conduits, ducts and the like, over, under or through
the Premises, and to make repairs. Landlord shall at all times
have a right to maintain keys to the Premises,
and Tenant shall provide to Landlord copies of keys to all
outside door locks at the Premises.
ARTICLE XXIV
SIGNS
Section 24.01. Erection of Signs. Tenant shall
have the right, with
the prior written consent of Landlord, to erect signs for advertising
purposes in connection with its business at the Premises. All signs shall
comply with applicable governmental rules and regulations, and Tenant shall
remove such signs at the expiration of the Term or sooner
termination of this: ease, as the case may be, and
restore the area to original condition.
Section 24.02. Repair of Damage. Tenant shall be
reasonable for any damage caused to the Premises by the erection or maintenance
on the Premises of said signs, and any damage so caused shall be repaired
forthwith at Tenant's sole cost and expense. In the event any sign
erected by Tenant is removed during the Term or st the expiration
or earlier termination thereof, Tenant shall, at its sole cost and expense,
repair any damage whatsoever caused by the removal.
ARTICLE XXV
SECURITY DEPOSIT
Section 25.01. Security Deposit. Prior to or
concurrent with the signing of this lease Tenant shall present an Irrevocable
Letter of Credit in a for acceptable to Landlord in
the amount of Thirty Three Thousand ($33,000.00) Dollars to
Landlord as security for the faithful performance of all of the covenants,
conditions and agreements of this Lease. All charges for the issuance
and collection of the Letter of Credit shall be to the account of
the Applicant. Said Letter of Credit shall be
payable to Landlord on presentation at the New York City Office
of the issuing bank. Should the L:Letter
of Credit be for a period of less than the full term of this
lease plus 60 days, it shall be renewed or replaced
by presentation of the renewal or replacement document to
Landlord at his address in accordance with
paragraph 2 of this lease not less than thirty (30) days prior to
its expiration. The renewal or replacement
document shall also be in a form acceptable to Landlord and
should it terminate at a date earlier than 60
days after
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expiration of this lease, including any renewal period at which
Tenant exercises an option, it shall likewise
be renewed or replaced.
Should Landlord present the Letter of Credit because of
failure of Tenant to timely renew or
replace in a form acceptable to Landlord, or because of Tenant's
failure to faithfully perform all of the
covenants, conditions and agreements of this Lease, such monies
received shall be placed by Landlord in
an interest earning account or fund with interest to be retained
by Landlord as additional security.
In no event shall the Landlord be obligated to apply the
same on rents, additional rents, or other
charges in arrears or on damages for Tenant's failure to perform
the said covenants, conditions and
agreements; the Landlord may so apply the security at its option;
and the Landlord's right to the
possession of the premises for non-payment of rent or for any
other reason shall not in any event be
affected by reason of the fact that the Landlord holds security.
The said sum including any earned interest
if not applied toward the payment of rent in arrears or toward
the payment of damages suffered by the
Landlord by reason of the Tenant's breach of the covenants,
conditions and agreements of this Lease is to
be returned to the Tenant when this Lease is terminated,
according to these terms, and in no event is the
said security to be returned until the Tenant has vacated the
premises and delivered possession to the
Landlord.
In no event that the Landlord repossesses itself of the said
premises because of the Tenant's default or because of the Tenant's
failure to carry out the covenants , conditions and agreements of this
Lease, the Landlord may apply the said security on all damages
suffered to the date of said repossession
and may retain the said security to apply on such damages as may
be suffered or shall accrue thereafter by
reason of the Tenant's default or breach. The Landlord shall not
be obligated to keep the said security as a
separate fund, but may mix the said security with its own funds.
The security deposited under this Lease shall not be
mortgaged, assigned or encumbered by Tenant without the written
consent of Landlord, nor shall any security ever by used by Tenant to
pay rent, additional rent or other charges.
ARTICLE XXVI
PREMISES AS-IS
Section 26.01. As-Is.
Neither Landlord nor Landlord's agents have
made any representations or promises with respect to the physical
condition of the Premises or the building
of which the Premises are part, the land upon which such building
is erected or the Premises, the rents,
leases, expenses of operation or any other matter or thing
affecting or related to the Premises except as
herein expressly set forth, sand no rights, easements or licenses
are acquired by Tenant by implication or
otherwise except as expressly set forth in this Lease. Tenant
has inspected the building and the Premises
and is thoroughly acquainted with their condition, and agrees to
take the same "as is" and acknowledges
that the taking of possession of the Premises by Tenant shall be
conclusive evidence that the Premises and
the building of which the same form a part were in good and
satisfactory condition at the time such
possession was so taken.
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ARTICLE XXVIII
ATTORNMENT
Section 28.01. Attornment.
Tenant agrees that in the event of a sale,
transfer or assignment, or sale and leaseback, or Landlord's
interest in the real property of which the
premises are part, or any part thereof, including the Premises,
or in the event any proceedings are brought
for the foreclosure of or for the exercise of any power of sale
under any mortgage constituting a lien upon
such real property or any part thereof, including the Premises,
to attorn to and to recognize such transferee,
purchaser, or mortgagee, as Landlord under this Lease or, in the
case of a sale-leaseback, to continue to
recognize Landlord as its lessor under this Lease. The foregoing
provision of this Section shall be self-operative and no further instrument
shall be required to give effect to said provisions. Tenant, however,
agrees, at the request of the party to which it has attorned, to
execute, acknowledge and deliver without
charge, from time to time, instruments acknowledging such
attornment, and to execute such other
documents, including estoppel certificates and certified
financial statements, as may reasonably be
requested by such party.
ARTICLE XXXI
END OF TERM
Section 31.01. Conditions of Premises.
Tenant shall, on the last day
of the term or renewal, as the case may be, or upon the earlier
termination of the Lease, peaceably and
quietly surrender and deliver up to Landlord the Premises broom-
clean (including but not being limited to
the floor, walls, ducts, exposed piping, and ceiling), with the
Premises and all equipment in or appurtenant
thereto, in as good condition and repair as when delivered to
Tenant, reasonable wear and tear expected.
ARTICLE XXXII
GENERAL PROVISIONS
Section 32.01. Notices of Sale, etc.
(a) The Tenant agrees that on and after twelve (12) months
nest preceding the expiration of the Term hereby granted the Landlord
and/or its agents shall have the right to place notices on the front of the
Premises or any part thereof, offering the demised premises "To Let" or
"For Sale", which signs shall not be unsightly, and the Tenant hereby
agrees to permit the same to remain thereof without hindrance or
molestation. It is understood and agreed
that on or after twelve (12) months next preceding the expiration
of the term hereby granted, the Landlord
and/or its agents shall have the right to show or examine the
Premises during normal business hours upon
reasonable notice.
(b) At any time during the Term of this Lease Landlord
and/or its agents shall
have the right to show or examine the Premises for purposes of
sale or mortgage. Said right shall be
exercised during normal business hours upon reasonable notice.
The Landlord's rights to show or
examine the Premises shall be exercised without unreasonably
interfering with or interrupting Tenant's
business.
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Section 32.02. No Waste. Tenant covenants not
to do or suffer any waste or damage, or injury to the Premises or to the
fixtures and equipment therein.
Section 32.03. Landlord's Liability.
If Landlord shall breach any of the provisions hereof, Landlord's liability
shall in no event exceed Landlord's interest in the Premises as of
the date of Landlord's breach; and Tenant expressly agrees that
any judgement or award which it may
obtain against Landlord shall be recoverable and satisfied solely
out of the right, title and interest of
Landlord in and to the Premises and that Tenant shall have not
rights against the partners, general and
limited, of Landlord or rights of lien or levy against any other
property of Landlord (or of any person or
entity comprising Landlord), nor shall any other property or
assets of Landlord be subject to levy,
execution or other enforcement proceedings for the collection of
any such sums or satisfaction of any such
judgement or award.
Section 32.04. Partial Invalidity.
If any term or provisions of this Lease or the application thereof
to any party or circumstances shall to any extent be invalid or
unenforceable, the remainder of this Lease or the application of
such term or provision to parties or
circumstances other than those to which it is held invalid or
unenforceable, shall not be affected thereby,
and each term and provision of this Lease shall be valid and
enforced to the fullest extent permitted by law.
Section 32.05. No Waiver. One or more waivers
by either party of the obligation of the other to perform any covenant or
condition shall not be construed as a waiver of a subsequent breach of the
same or any other covenant or condition. The failure of the Landlord to xxxx
(either in a timely manner or at all) for any rental or additional rental
item cal;ed for under this Lease Agreement shall not constitute, or be
interpreted as, a waiver of Landlord's right to collect same. The
receipt of rent by the Landlord's, with knowledge of any breach
of this Lease by Tenant of any default by
Tenant in the observance or performance of any of the conditions
for covenants of this Lease, shall not be
deemed to be a waiver of any provision of this Lease. Neither
the acceptance of the keys nor any other act or thing done by Landlord
or any agent or employee during the Term shall be deemed to be an acceptance
of an surrender of the Premises, excepting only an agreement, in
writing, signed by the Landlord accepting or agreeing to accept
such a surrender.
Section 32.06. Number and Gender. Wherever herein
the singular number is used, the same shall include the plural, and
the masculine gender shall include the feminine and neuter
genders.
Section 32.07. Successors and Assigns. The terms,
covenants and conditions herein contained shall be binding upon and inure to
the benefit of the respective parties and their successors and assigns.
Section 32.08. Article and Marginal Headings. The
article and marginal headings herein are intended for convenience
in finding the subject matters, and are not to be used in
determining the intent of the parties of this Lease.
Section 32.09. Entire Agreement. This instrument
contains the entire and only agreement between the parties, and no oral
statements or representations or prior written
matter not contained or referred to in this instrument shall have
any force or effect. This Lease
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shall not be modified in any way or terminated by mutual
agreement except by a writing executed by both
parties.
Section 32.10. Obligations also Covenants.
Whenever in this Lease any words of obligation or duty are used,
such words or expressions shall have the same force and effect as
though made in the form of covenants.
Section 32.11. Cost of Performing Obligations.
Unless otherwise specified, the respective obligations of the
parties to keep, perform and observe any terms, covenants or conditions of
this Lease shall be at the sole cost and expense of the party so
obligated. If Tenant request Landlord to
perform any act for the sole business purposes of Tenant, and if
Landlord agrees to perform said act,
Tenant agrees to pay to or on behalf of Landlord any expense,
including attorney's fees, associates with
said act on the part of Landlord.
Section 32.12. Remedies Cumulative. The
specified remedies to which the Landlord or Tenant may resort under the
terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which the
Landlord or Tenant may be lawfully entitled in case of any breach or
threatened breach of any provision of this Lease.
Section 32.13. Holding Over. If Tenant holds over
after the expiration or earlier termination of this Lease, and if Tenant
is not otherwise in default hereunder, such holding over
shall not be deemed to create an extension of the Term, but such
occupancy shall be deemed to create a
month-to-month tenancy at twice the rental rate, and on the same
terms and conditions (except as the same
may be then inapplicable) as are in effect on the date of said
expiration or earlier termination.
Section 32.14. Force Majeure. The period of time during
which either party hereto is prevented from performing any act required to be
performed under this Lease by reason of fire,
catastrophe, labor difficulties, strikes, lock-outs, civil
commotion, acts of God or of the public enemy,
governmental prohibitions or preemptions, embargoes, inability to
obtain materials or labor by reason of
governmental regulations or prohibitions, or other events beyond
the reasonable control of Landlord or
Tenant, as the case may be, shall be added to the time for fault
under this Lease as the result thereof. The
provisions of this Section shall not apply to or in any manner
extend or defer the time for any obligations to
make payment of monies required of either party hereunder.
Section 32.15. Vacancy or Abandonment. In the
event that the Premises shall become vacant as the result of being vacated
or abandoned by Tenant during the term, Landlord may
re-enter the same, either by peaceable reentry or otherwise,
without being liable to prosection therefor, and
re-let the Premises as agent to Tenant and receive the rent
therefor and apply the same first to payment of
such expenses as Landlord may be put to in re-entering, and then
to payment of rent due under this Lease.
In addition, such vacancy or abandonment shall constitute a
default under Section 20.01 entitling Landlord
to the exercise of all remedies specified in such Section or
otherwise allowed by law. The foregoing rights
shall not be available to Landlord in the event of vacancy or
abandonment by Tenant provided that Tenant
is not otherwise in default hereunder and maintains an on-site
security guard at the Premises during all
normal business hours. In the event that Landlord shall have
obtained a judgment for possession rendered
by a court of competent jurisdiction, Landlord may re-enter the
premises without the necessity of obtaining
a Warrant for Removal.
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Section 32.16. Governing Law. The interpretation and validity
of this Lease shall be governed by the substantive law of New Jersey.
Section 32.17. Brokerage. Landlord and Tenant
represent they have dealt with no real estate broker in connection with
this Lease.
Section 32.18. Floor Loads. Tenant shall not
place a load upon any floor of the Premises exceeding the floor load per
square foot area which it was designed to carry and which is
allowed by law. Landlord reserves the right to prescribe the
weight and position of all safes, business
machines and mechanical equipment. Such installations shall be
placed and maintained by Tenant, at
Tenant's expense, in settings sufficient, in Landlord's judgment,
to absorb and prevent vibration, noise
and annoyance.
Section 32.19. Waiver of Jury Trial. It is
mutually agreed by and between Landlord and Tenant that the respective
parties hereto shall and they hereby do waive trail by jury in any
action, proceeding or counterclaim brought by either of the
parties hereto against the other (except for
personal injury or property damage) on 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 Premises, and any
emergency statutory or any other statutory remedy.
Section 32.20. No Option. For the convenience
of Tenant, this Lease may be submitted to Tenant prior to its execution by
or on behalf of Landlord, but such submission shall
not constitute an offer or an option and this Lease shall have
been signed and delivered on behalf of Landlord.
Section 32.21. Modification of Lease Term.
Tenant shall enter into any reasonable modification of the term of
this Lease requested by any bona fide institutional lender of
Landlord to facilitate mortgaging, provided that such
modification shall not alter Basic Rent, additional
rent or Term hereof, nor shall it materially increase Tenant's
duties or materially decrease Tenant rights
hereunder. Not in limitation of the foregoing, it is agreed that
if requested by an mortgagee, Tenant shall
enter into an agreement with Landlord or such mortgagee, as
requested to the effect that this Lease shall
not be modified or surrendered, nor rent prepaid, without the
consent of such mortgagee.
Section 32.22. Rules and Regulations. Landlord may,
from time to time, promulgate reasonable rules and regulations for
the health and safety and welfare of all the tenants of the
lands and premises of which the Premises are part, including but
not limited to use of any common areas
and facilities, and Tenant agrees that such rules and regulations
shall, upon notice to Tenant, automatically
be incorporated herein as if fully set forth.
Section 32.23. Restrictions on Tenant.
a. Trash. Tenant shall store and dispose of all
trash and garbage in suitable
containers and locate same as Landlord designates from time to
time. Tenant shall not burn any paper.
Trash or garbage in or about the Premises.
b. Tenant to Perform it Obligations Under this Lease.
The Tenant shall keep
the Premises in a clean and sanitary condition free from vermin
and escaping offensive odors.
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c. Plumbing Facilities. Tenant shall not use or
permit others to use any plumbing facilities in the Premises for any purpose
other than that for which they were constructed or to
dispose of any damaging or injurious substance or any grease or
garbage therein.
d. Obstruction. Tenant shall not obstruct, or
permit others to obstruct, any entrances to the building for the halls
and stairs or loading facilities thereof. Landlord may prohibit
congregation by employees in hallways and other common areas.
e. Storage. Tenant is prohibited from storing any
materials, equipment, parts, pallets or nay other items used in its business
outside the Premises.
Section 32.24. Quiet Enjoyment. Upon the payment of
the Basic Rent and all additional rents and sums herein reserved and due and
upon the due performance of all the terms,
covenants and conditions herein contained on Tenant's part to be
kept and performed, Tenant shall and
may at all times during the Term peaceably and quietly enjoy the
Premises, subject to the Terms of this
Lease.
ARTICLE XXXIII
DEFINITIONS
Section 33.01. Re-Enter and Re-Entry. The term
re-enter and re-entry as issued in this Lease are not restricted to their
technical, legal meaning.
Section 33.02. "Landlord". The term "Landlord"
as used in this Lease
means only the holder, for the time being, of Landlord's interest
under this Lease so that in the event of
any transfer of title to the Premises, Landlord shall be and
hereby is entirely freed and relieved of all
obligations of Landlord hereunder accruing after such transfer,
and it shall be deemed without further
agreement between the parties that such grantee, transferee or
assignee has assumed and agreed to observe
and perform all obligations of Landlord hereunder arising during
the period it is the holder of landlord's
interest hereunder.
Section 33.03. "Lease Interest Rate". The term
"Lease Interest Rate", as
used in this Lease, shall mean interest at the then current
"prime" plus four (4%) percent rate of interest
published by the Wall Street Journal.
Section 33.04. "Additional Rent". All costs and
charges of whatever
nature to be paid by Tenant under this Lease, whether to be made
to Landlord or to any other party, shall
be deemed additional rent, whether or not expressly so stated
elsewhere in the Lease.
ARTICLE XXXIV
PARKING
Section 34.01. Parking. Tenant shall have the
exclusive privilege to
use all parking areas of the property for the parking of Tenant's
motor vehicles as may be made available
from time to time by Landlord.
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ARTICLE XXXV
SUBMISSION NOT BINDING
Section 35.01. Submission Not Binding. Submission
by the Landlord
of the within Lease for execution by the Tenant shall confer no
rights nor impose any obligations on either
party, unless and until both the Landlord and Tenant shall have
executed this Lease and duplicated
originals thereof shall have been delivered to the respective
parties.
ARTICLE XXXVII
COMPLIANCE WITH LAWS GENERALLY
Section 37.01. Compliance With Laws. Tenant
shall, at Tenant's sole
expenses, promptly execute and comply with all requirements of
all laws, orders, Federal, State, county
and municipal authorities and any board of fire underwriters or
similar organization having jurisdiction
over the Premises, (now or hereinafter enacted) concerning the
Premises and/or the use and occupancy
thereof, including but not limited to all requirements of the
Occupational Safety and Health Administration
and Tenant shall not make any claim against Landlord for any
expense or damages resulting from such
execution and compliance (subject to the obligations of Landlord
set forth in Section 14.01 above and
provided further Landlord, and not Tenant, shall be responsible
to install or pay for any capital
improvements to the Premises required to be installed in
connection with any change in law or regulation,
unless arising out of Tenant's particular use of the Premises,
and Tenant shall reimburse Landlord, as
Additional Rent, for Tenant's percentage share of the cost of
such capital improvement, based upon a
fraction the numerator of which is the remaining years of the
Term of this Lease and the denominator of
which is the useful life of such capital improvement). Tenant
shall also comply with the Environmental
Cleanup Responsibility Act, P.L. 1983, Chapter 330, and the
Industrial Site Recovery Act, P.L. 1993,
C.139 (collectively "ISRA" ) and shall do all things and execute
all documents necessary for said
compliance including, but not limited to, the submission to the
New Jersey Department of environmental
Protection of all necessary documentation upon the termination of
this Lease, the termination of the use set
forth in Section 14.01 hereof or the conveyance of title to the
Premises.
ARTICLE XXXVIII
LANDSCAPING
Section 38.01. Landscaping.
Tenant agrees that it shall coordinate and
maintain the outside landscaping for the entire building.
ARTICLE XXXIX
ENVIRONMENTAL COMPLIANCE
Section 39.01. Environmental Compliance.
If Tenant receives any notice
of the happening of any event involving the use, spill, discharge
or cleanup of any hazardous or toxic
substances or waste, or any oil or pesticide on or about the
Premises or into the sewer, septic system or
waste treatment system servicing the Premises (any such event is
hereinafter referred to
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as a Hazardous Substance) or of any complaint, order, citation,
or notice with regard to air emissions,
water discharges, noise emissions or any other environmental,
health or safety matter affecting the Tenant
(an Environmental Complaint) from any person, entity, including
the DEP and the U.S. EPA, then the
Tenant shall give immediate written notice of same to the
Landlord, detailing all relevant fact and
circumstances.
Section 39.02. Without limitation of the foregoing,
Landlord shall have the right,
but not the obligation, to exercise any of its rights as provided
in Article XX of this Lease or to enter onto
the Premises or to take such actions as it deems necessary or
advisable to cleanup, remove, resolve or
minimize the impact or otherwise deal with any Hazardous
Discharge or Environmental Complaint upon its
receipt of any notice from any person or entity, including
without limitation of a Hazardous Discharge or
an Environmental Complaint on or pertaining to the demised
premises. All cost and expenses incurred by
Landlord in the exercise of any such rights shall be deemed to be
additional rent hereunder and shall be
payable by the Tenant to the Landlord upon demand.
Section 39.03. The occurrence of any of the following
events shall constitute an event of default under this Lease (in addition
to, and not in limitation of, the events of default set forth in
Article XX herein):
a) If Landlord receives it first notice of a Hazardous
Discharge or an Environmental
Complaint, of which Tenant had knowledge, or should reasonably
have knowledge, on or pertaining to the
demised premises other than from Tenant, and Landlord does not
receive a notice (which may be given in
any oral or written from. Provided same is followed with all due
dispatch by written notice given by
certified mail, return receipt requested) of such Hazardous
Discharge or Environmental Complaint form
Tenant within twenty four (24) hours of the time Landlord first
receives said notice other than from the
Tenant; or
b) If the DEP, EPA or any other state or federal agency
asserts a claim against Tenant,
the Premises or Landlord for damages or cleanup costs related to
a Hazardous Discharge or an
Environment Complaint on or pertaining to the demised Premises
provided, however, such claim shall not
constitute a default if, within thirty (30) days of notice to
Tenant (or such shorter period for response
required by law or regulation) of the occurrence giving rise to
the claim:
(i) Tenant can prove to Landlord's reasonable
satisfaction that Tenant has
commenced and is diligently pursuing either (x) cure or
correction of the event which constitutes the basis
for the claim, and continues diligently to pursue such cure of
correction to completion, or (y) proceedings
for an injunction, a restraining order or other appropriate
emergent relief preventing such agency or
agencies from asserting such claim, which relief is granted
within ten (10) days of the occurrence giving
rise to the claim and the emergent relief is not thereafter
dissolved or reserved on appeal; and
(ii) In either of the foregoing events, Tenant has
posted a bond, letter of credit
or other security satisfaction in form, substance and amount to
the agency or entity asserting the claim to
secure the proper and complete cure or correction of the event
which constitutes the basis for the claim.
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Section 39.04. In the event that evidence of Tenants
ISRA compliance (limited
solely to Tenant's business operation at the Premises) is not
delivered to Landlord prior to surrender of the
leased Premises by Tenant to Landlord, it is understood and
agreed that Tenant shall be liable to pay basic
rent and additional rent to the Landlord from the date of such
surrender until such time as evidence of such
compliance with ISRA has been delivered to Landlord unless the
delay results solely from Hazardous
Substances whose existence predates the Commencement Date
thereof; together with any costs and
expenses incurred by Landlord in enforcing Tenant's obligation
under this Article, if Landlord is not able
to rent the leased premises based on the failure to Tenant to
complete ISRA compliance prior to this
surrender of the Lease, unless the DEP provides its approval for
the Landlord to rent the Premises.
Landlord shall use his best efforts to rent the Premises upon the
surrender of the Lease by Tenant. The
within covenant shall survive the expiration or earlier
termination of this Lease.
Section 39.05. a) If Tenant's operations on the
Premises now or hereafter
constitute an "Industrial Establishment" subject to the
requirements of ISRA, then prior to the expiration
or sooner termination of this Lease and upon any and every
condemnation, casualty, assignment or
sublease (if permitted), change in ownership or control of Tenant
or any other closure or transfer by
Landlord or Tenant covered by ISRA pertaining to an Industrial
Establishment closing or transferring
operations, at its sole cost and expense, to the satisfaction of
the DEP and Landlord. Without limitations of
the foregoing, Tenant's obligation shall include (I) the proper
filing of the initial notice to the DEP
required by N.J.A. C. 7:1-3,7, (ii) the performance to DEP's and
Landlord satisfaction of all air, soil ,
ground water and surface water sampling and testing required by
N.J.A.C. 7:1-3.9 and (iii) either (x) the
filing of a negative declaration with DEP under N.J.A.C. 7:1-
3.11 which has been approved by DEP or
(y) the performance of a proper and approved cleanup plan to the
full satisfaction of DEP and Landlord in
accordance with N.J.A.C. 7:1-3.12 (the foregoing shall include
any other or subsequent regulations under
ISRA covering the foregoing request). Tenant shall immediately
provide Landlord with copies of all
correspondence, reports, notices, order, findings, declarations
and other materials pertinent to Tenant's
compliance and DEP's requirements under ISRA, as any of same are
issued or received by Tenant from
time to time. Tenant shall not be responsible for any cost of
compliance with ISRA or any other
Environmental conditions that pre-exist Tenant's occupancy or
which entirely migrate from off-site
during Tenant's occupancy.
b) In the event that ISRA does not apply to Tenant's
operations on the Premises,
at Landlord's option, request and expense, Tenant shall cooperate
with Landlord's compliance with ISRA,
and, in the event that said compliance discloses the occurrence
of a Hazardous Discharge by Tenant,
Tenant shall promptly cleanup and remove said Hazardous Discharge
at Tenant's sole cost and expense.
Section 39.06. In the event of Tenant's failure to
comply in full with this Article, Landlord may, at its option,
perform any or all of Tenant's obligations as aforesaid and all costs and
expenses incurred by Landlord I exercise of this right shall be
deemed to be additional rent payable on
demand.
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ARTICLE XXXX
LANDLORD'S ENVIRONMENTAL REPRESENTATION AND INDEMNITY
Section 40.01. Landlord's Environmental Representation
and Indemnity.
Landlord does hereby indemnify Tenant and hold Tenant harmless
from and against any and all expense,
loss and liability suffered by Tenant by reason of the pre-
existing storage, generation, handling, treatment,
transportation, disposal or arrangement for transportation or
disposal of any Hazardous Substances
occurring on or before the Commencement Date under this Lease.
Provided such condition does not pose
an eminent threat to persons or property or materially interfere
with Tenant's use and enjoyment of the
Premises, Landlord shall have exclusive control over the
inspection and remediation of such condition to
the Premises to the extent it is the subject of the indemnity
hereinabove set forth. So long as Landlord
promptly commences and diligently pursues such investigation and
remediation, Tenant shall refrain from
incurring any costs or taking any action relative thereto. The
Landlord's obligations under this Section
40.01 are expressly limited by the provisions of Section 32.03 of
this Lease.
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In WITNESS WHEREOF, the parties heretofore set their hands
and seals on the date first above
written.
LANDLORD:
WITNESS NINTH AVENUE EQUITIES CO.,INC
s/Xxxxxxx Xxxxx BY: s/ Xxxxx Xxxxxx
Name:
Title: Treas
TENANT:
WITNESS VERTEX INDUSTRIES, INC.
s/Xxxxxx X. Xxxxx BY:s/Xxxxxx X. Xxxx
Name:
Title: Pres.
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