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AGREEMENT OF LEASE
AGREEMENT made this day of _________, 2000, by and between FORSGATE
INDUSTRIAL COMPLEX, a Limited Partnership, with offices c/o Xxxxxxx Xxxxxxxx
Company, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000, hereinafter called
Landlord, and MOVADO GROUP, INC., a corporation of the State of New York, with
offices at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, and any permitted
assignee hereinafter called "Tenant".
FOR AND IN CONSIDERATION of the mutual covenants herein contained, the
parties hereto do hereby agree as follows:
1. The following terms are incorporated by reference into this
Agreement:
(a) NAME AND ADDRESS OF LANDLORD:
FORSGATE INDUSTRIAL COMPLEX, a Limited Partnership, with offices at c/o Xxxxxxx
Xxxxxxxx Company, Inc. 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 00000
(b) NAME AND ADDRESS OF TENANT:
MOVADO GROUP, INC., A CORPORATION IN THE STATE OF NEW YORK with offices at 000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000.
(c) DESCRIPTION OF PREMISES:
Premises comprising approximately 99,962 square feet in a building (the
"Building") located on property more particularly described on Exhibit X (the
"Property") and commonly known as 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx all as
more particularly designated on the attached diagram as set forth herein.
(d) TERM OF LEASE:
To commence on the Commencement Date which shall be June 1, 2000 and to
terminate at 5:00 P.M. on May 31, 2010.
(e) FIXED RENT:
Tenant shall pay the Landlord as Fixed Rent for the demised premises from
September 1, 2000 to and through May 31, 2000, total rent of $699,734.00 payable
in equal monthly installments of $77,748.22; from June 1, 2001 to and through
May 31, 2002 the annual sum of $720,726.02, payable in equal monthly
installments of $60,060.50; from June 1, 2002 through May 31, 2003, the annual
sum of $742,234.78 payable in equal monthly installments of $61,862.32; from
June 1, 2003 to and through May 31, 2004 the annual sum of $764,618.23 payable
in equal monthly installments of $63,718.19; from June 1, 2004 to and through
May 31, 2005 the annual sum of $787,556.78 payable in equal monthly installments
of $65,629.73; from June 1, 2005 to and through May 31, 2006 the annual sum of
$811,183.49 payable in equal monthly installments of $67,598.62; from June 1,
2006 to and through May 31, 2007 the annual sum of $835,518.99 payable in equal
monthly installments of $69,626.58; from June 1, 2007 to and through May 31,
2008 the
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annual sum of $860,584.56 payable in equal monthly installments of $71,715.38;
from June 1, 2008 to and through May 31, 2009 the annual sum of $886,402.10
payable in equal monthly installments of $73,866.84; from June 1, 2009 to and
through May 31, 2010 the annual sum of $912,994.16 payable in equal monthly
installments of $76,082.85.
(f) TENANT'S SHARE: 59%
(g) BROKER:
Xxxxxxx Xxxxxxxx Company, Inc. and Alexander Summer, L.L.C.
(h) SECURITY DEPOSIT:
The sum of $228,248.55 in cash or by letter of credit as otherwise provided in
paragraph 22.
(i) EXPENSE RENT:
Tenant shall pay the Landlord as additional rent, the Tenant's Share of expense
rent as provided in Article 5.
(j) TENANT'S STANDARD INDUSTRIAL CLASSIFICATION NUMBER 5098
(k) ESTIMATE OF FIRST MONTH'S EXPENSE RENT:
$11,300.00
2. DESCRIPTION OF PREMISES. The Landlord set forth in Paragraph 1(a)
above hereby leases to the Tenant set forth in Paragraph 1(b) above and the
Tenant hereby hires from the Landlord the space set forth in Paragraph 1(c)
above (hereinafter called the "Premises"). Landlord shall have the right to add
additional land to the property on which the building stands either in fee or by
easement or license. Upon such event, the additional land shall be deemed a part
of the Property, except Tenant shall not be responsible for any increase in
expenses by reason of the extra land unless the additional land is of a benefit
to Tenant.
3. A. LANDLORD'S WORK. Landlord Work is set forth on Exhibit "B"
("Landlord's Work"). Landlord shall commence Landlord's Work following the
issuance of a Building Permit and shall do Landlord's Work in an expeditious and
good and workmanlike manner and in compliance with all laws so that, Landlord
work will be acceptable to the governmental agencies issuing the Certificate of
Occupancy. Landlord shall not be obligated to make any alterations,
installations, additions or improvements to prepare the Demised Premises or the
Building for Tenant's occupancy except to the extent set forth on Exhibit B or
as otherwise herein provided. Landlord's Work shall be deemed completed upon
certification to Landlord and Tenant by Landlord's architect to the effect that
such work has been completed (except that Landlord's work shall not be deemed
completed until Landlord obtains any required certificates of completion or
sign-offs from the applicable municipal departments or agencies only if either
is required by law). Notwithstanding anything in this Xxxxxxxxx 0X, Xxxxxxxx
will diligently and expeditiously commence Landlord's Work as attached hereto
and complete same by June 30, 2000, except for the required parking which, if
not complete, shall entitle Tenant to use any other parking area at the Property
for its exclusive use of 150 spaces
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until Landlord installs the required parking exclusively for Tenant's use. Also,
Landlord will not have to paint or install the carpeting in the office area
until the Tenant selects from the standard colors and standard carpeting from
the Landlord. In the event Landlord does not complete Landlord's Work attached
hereto, by June 30, 2000, except as indicated above, rent shall xxxxx until
these items are complete. Tenant is entitled to a rent credit equal to the
number of days that Landlord is late in completing these items.
B. TENANT'S WORK/PREMISES "AS IS"/ TENANT'S CONSTRUCTION COST.
Tenant's Work shall be any work which is not Landlord's Work. Tenant is familiar
with the condition of the Premises and the building in which it is located and
agrees to accept the Premises thereof "as is" on June 1, 2000, except for
completion by Landlord of Landlord's Work. Any work in addition to Landlord's
Work, necessary to suit the premises for Tenant's occupancy, is the
responsibility of Tenant to be performed by Tenant at its own cost and expense,
subject however, to the provisions of Article 12 and 8E hereof.
It is specifically agreed (excluding, however, the following
which may be installed by Tenant: exterior windows, drive-in ramp and door and
security bars on roof skylight) that Tenant at Tenant's expense on or before the
expiration of the lease will remove all other alterations and improvements
including Tenant's Construction Work undertaken and/or made to the premises
which was not part of Landlord's work as otherwise set forth on Schedule B and
Tenant shall restore the Premises to the condition as it exists as of the date
hereof.
C. CERTIFICATE OF OCCUPANCY. Tenant shall apply for and obtain
a Certificate of Occupancy and all other licenses or permits (Governmental
Permits) which shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises, permitting Tenant to use the Premises for the
uses otherwise described in the first sentence of Section 7 hereof. Tenant
agrees to expeditiously complete any work (except for Landlord's Work) required
by the Municipality and/or the Hackensack Meadowlands Development Commission for
the issuance of Governmental Permits. Tenant shall at all times comply with the
terms and conditions of each such Governmental Permits. If during the term it
shall be necessary to obtain additional Governmental Permits, Tenant shall
promptly at its sole cost and expense, do so. If after completion of Landlord's
Work Landlord would be required by the Hackensack Meadowlands Development
Commission and/or the Borough of Moonachie to remove a violation in order for a
certificate of occupancy to issue, then in that instance, Landlord shall be
responsible to take such action as is necessary to remove and/or remediate the
violation.
D. UTILITIES. The gas and the electric utilities are
separately metered. Sewer, domestic water and sprinkler system are not
separately metered. Landlord shall fairly allocate the cost to Tenant for the
utilities not otherwise separately metered as part of Expense Rent.
4. FIXED RENT. As Fixed Rental, Tenant shall pay to the Landlord at the
address set forth in paragraph 1(a) above, which as such other person or at such
other place as the Landlord may from time to time designate, without previous
demand therefore
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and without counterclaim, deduction or setoff, the sum set forth in paragraph
1(e) above, which sum shall be payable in equal monthly installments as set
forth in Paragraph 1(e) above in advance on the first day of the month during
the term of the lease except the first months rent which shall be pay upon the
execution hereof. Whenever the rent as hereinabove set forth as stated as Annual
Rent and if there shall be less than 12 months in any year, the rate therein
referred to shall be the "Annualized Rate".
Tenant shall have the option by written notice to Landlord to be
delivered on or before September 1, 2000, Time Being of the Essence, to amend
Schedule 1E in accordance with Exhibit Y attached hereto. Failure of Tenant to
serve upon Landlord the notice on or before September 1st shall render Tenant's
option to so amend Section 1E as void without further force or effect.
5. EXPENSE RENT. Tenant shall pay as additional rent during the term
Tenant's Share (as per Paragraph 1(f)) of the operating expenses (as hereinafter
defined) of the Property for each calendar year during the term of this lease.
The term "expense rent" or "expenses" shall include a management fee of 3.5% of
the fixed rental payable pursuant to Paragraph 1(e) and all costs incurred by
Landlord in connection with the operation and maintenance of the Property, but
excluding interest or amortization payments of any mortgage, but including but
not limited to real estate taxes, common area expenses, certain utility
expenses, repair and maintenance expenses and insurance expenses.
Real estates taxes payable as a common area expense by Tenant shall be
subject to adjustment by Landlord equitably increasing or decreasing Tenant's
share of real estate taxes to reflect improvements made to the building either
by Tenant hereunder or another tenant of the building that result in
disproportionate value of one area of the building to another area of the
building which improvements cause an increase to the real estate taxes payable
for the Building and Property. Such adjustment shall be made by Landlord in its
sole judgment. If Tenant contests Landlord's adjustment, then Landlord shall
engage at the expense of Tenant the services of a real estate appraiser who is
expert and experienced as a witness in New Jersey tax appeals to make the
allocation and such appraiser's allocation shall be binding on Landlord and
Tenant. The appointment of the appraiser shall be subject to the reasonable
approval of Tenant.
All payments Tenant is required to make pursuant to this Lease shall
constitute additional rent and if Tenant defaults in any such payments so as to
create an event of default (as hereinafter defined), Landlord shall have (in
addition to any rights and remedies granted hereby) all rights and remedies
provided by law for nonpayment of rent.
(i) REAL ESTATE TAXES shall include any real estate tax or
assessment levied, assessed or imposed anytime by any governmental authority
upon or against the Property or any part thereof. Such terms shall also include
any assessment for public improvement imposed against the Property during the
term of the Lease. There shall not be included in the foregoing definition any
franchise, corporate, estate, inheritance or transfer tax of Landlord, or any
income, profits or revenue tax; provided, however, that if at any time during
the term of this Lease a tax
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on rents is assessed against Landlord or the rent, as a substitution in whole or
in part for taxes assessed by the State of New Jersey or political subdivision
on land or buildings, such tax shall be deemed to be included within the amount
which the Tenant is required to pay under this Article.
Tenant, at Tenant's expense, may initiate a tax appeal if
Tenant obtains a qualified real estate appraiser who states that there is a
reasonable likelihood of an abatement of taxes as a result of an appeal. In such
event, such appeal may be taken by Tenant with Landlord's cooperation at
Tenant's expense. Any refund (net of Tenant's expenses) obtained by reason of
such tax appeal, shall be applied to the Operating Expenses so that the economic
benefits, if any, of the tax appeal are equitably received by all tenants who
paid the real estate taxes which were the subject of the tax appeal.
(ii) COMMON AREA EXPENSES shall include all costs and expenses
incurred by Landlord with respect to the Property for operating, maintaining,
repairing, and/or replacing any and all, or any part of the common area (or any
installation therein, thereon, thereunder or thereover) including but not
limited to parking areas, sidewalks, curbs, grounds, on site water lines,
electric lines, gas lines, sanitary sewer lines and storm water lines, and the
total costs and expenses incurred by Landlord for landscaping and the removal of
snow, ice and debris. Common area shall mean all areas of the property except
any portion of the Building which is under the exclusive control or is intended
to be under the exclusive control of any occupant of the Building.
(iii) UTILITY EXPENSES shall include all costs and expenses
incurred by Landlord for water, sewer, gas and electric and other utility
charges for utilities servicing the building or common areas inclusive of
domestic water, standby sprinkler charges, except, any utility which is
separately metered and payable by a Tenant.
(iv) REPAIR AND MAINTENANCE EXPENSES shall include all costs
and expenses incurred by Landlord for replacement, repair and maintenance of all
or any part of the Property and improvements of which the Premises are a part
(including the roof, roofdeck, outside walls & concrete floor) of which the
Demised Premises forms a part, except, any portion of the Building which is the
obligation to repair of any tenant or occupant of the Building. If a replacement
of a capital nature is required, and if the replacement would cost more than
$10,000, in such instance, the replacement shall be amortized and charged as a
common area expense by prorating the cost thereof over the useful life but no
greater than ten (10) years. If Landlord and Tenant disagree as to what is a
repair or replacement, they shall refer to GAAP Rules which shall prevail.Tenant
shall not be obligated for the cost of repairs and replacements which are
otherwise Landlord's obligation under Paragraph 8(c).
(v) INSURANCE EXPENSE shall include all costs and expense
incurred by Landlord for Liability and Casualty Insurance as Landlord may from
time to time carry for Landlord's benefit on the Property or insuring Landlord's
interest therein all as provided in Article 6 hereof together with any payment
by Landlord which results by reason of a deductible as provided pursuant to the
terms of any such insurance policies.
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Operating Expenses shall be determined on the accrual basis in
accordance with generally accepted accounting principles which shall be
consistently applied.
Tenant shall pay its Expense Rent in full no later than ten
(10) business days after notice by Landlord of the amount thereof. If requested
by Landlord, Tenant shall pay its Expense Rent in twelve (12) monthly
installments on the first day of each month on an estimated basis as fairly
determined by Landlord. It is anticipated that the first year of the lease term,
the expense rent should be approximately $135,600 payable monthly at the rate of
$11,300. Within ninety (90) days following the end of the period used by
Landlord in estimating Tenant's expense rent, Landlord shall furnish to Tenant a
statement ("Statement") of the actual amount of Tenant's Share of operating
expenses. Any amount paid by Tenant which exceeds the actual amount due shall be
credited to the next succeeding payment due pursuant hereto. If Tenant has paid
less than the actual amount due, Tenant shall pay the difference to Landlord
within ten (10) days after receipt of Landlord's request therefor. During the
first and last years of the term, the amount payable by Tenant hereunder shall
be prorated for the fraction of the calendar year included in the term. Provided
that Tenant is not in default under this Lease and Tenant complies with the
provisions of this paragraph, Tenant shall have the right to reasonably review
supporting data for any portion of the Statement that Tenant claims is
incorrect. In order for Tenant to exercise its right, Tenant shall, within one
hundred eighty (180) days after the Statement is received by Tenant, deliver a
written notice to Landlord specifying the portions of the Statement that are
claimed to be incorrect. Landlord maintains its records at its offices and
Tenant agrees that the review of records shall occur at such location. Such
review shall be at the expense of Tenant and shall be conducted by an
independent firm of certified public accountants or other qualified
professionals or consultants. The review shall be conducted during normal
business hours and upon ten (10) days prior written notice. Tenant shall deliver
to Landlord a copy of such review within fifteen (15) days after receipt of same
by Tenant. Any errors disclosed by the review shall be promptly corrected
provided that Landlord shall have the right to cause another review of the
records to be made by an independent firm of certified public accountants. In
the event of a disagreement between the two (2) accounting firms, then, the
disagreement shall be submitted to an independent accounting firm to be selected
jointly by Landlord and Tenant, and the decision of the accounting firm shall be
controlling. Following a determination, if Tenant has overpaid obligations for
preceding period, the amount of such overpayment shall be credited against
Tenant's subsequent installment obligations to pay its share. In the event
Tenant has underpaid its obligations for a preceding period, the amount of such
underpayment shall be paid by Tenant to Landlord with the next succeeding
installment obligation. In the event Tenant becomes in default beyond any
applicable grace period after any required notice in the payment of Rent or
Additional Rent at any time during the pendency of review said right to review
shall immediately cease and the matters originally set forth in Landlord's
Statement shall be deemed to be correct.
Expense Rent shall not include (a) the cost of clean-up for an
environmental condition not caused by Tenant, its employees or invitees or (b)
the cost of complying with any governmental
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violation based on conditions existing on the date thereof or caused by Landlord
or any other tenant after the date hereof.
6. INSURANCE.
A. TENANT'S INSURANCE. Tenant will maintain in full force and effect
during the entire term of the Lease, at its own expense with insurance companies
authorized to do business in New Jersey and rated no lower than A10 in the most
current edition of A.M. Best's Property/Casualty Key Rating Guide, the following
policy or policies of insurance:
(i) Commercial general public liability insurance, including
property damage, insuring Landlord as an additional designated insured (and any
mortgagee or other persons whom Landlord may designate called "Additional
Designated Insured") from and against all claims, demands, actions or liability
for injury to or death of any persons, and for damage to property arising from
or related to the use or occupancy of the Premises or the operation of Tenant's
business. Coverage for "Additional Insured" shall apply on a primary basis
irrespective of any other insurance, whether collectible or not. No deductible
in excess of TEN THOUSAND AND NO/100 Dollars ($10,000.00) will be carried under
this coverage without the prior written consent of Landlord. This policy must
contain but not be limited to coverage for Premises and operations, blanket
contractual, personal injury, operations, ownership, maintenance, property
damage and broad form liability extensions. The policy must have limits in
amounts not less than FIVE MILLION and NO/100 Dollars ($5,000,000.00) per
occurrence and FIVE MILLION and NO/100 Dollars ($5,000,000.00) in the aggregate.
This insurance will include a contractual coverage endorsement specifically
insuring the performance by Tenant of its indemnity agreement contained in this
Lease. Such insurance may be in the form of basic and umbrella coverage. If
Landlord's insurance adviser reasonably concludes that these amounts of coverage
or coverage's are no longer adequate, then such amount of coverage will be
proportionately increased or obtained as the case may be.
(ii) Workmen's Compensation and Employer's Liability insurance
with limits of no less than the amount to be required by law in the State of New
Jersey.
(iii) Fire insurance with extended coverage or all other
perils covered by a standard "all-risk" policy, including, without limitation,
vandalism and malicious mischief, to the extent of the replacement value of all
furnishings, trade fixtures, leasehold improvements, equipment, merchandise and
other personal property from time to time situated in, on and upon the Premises.
Landlord shall be named as an additional insured on said policies or will
provide a waiver of subrogation as to Landlord.
(iv) If a sprinkler shall be located in any part of the
Demised Premises, sprinkler leakage insurance in amounts necessary to adequately
insure the damage that might result due to a sprinkler leakage.
(v) Boiler and machinery insurance including comprehensive
coverage from pressure vessels with such limits as from time to time may be
reasonably required by Landlord, but not
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less than FIVE MILLION and NO/l00 Dollars ($5,000,000.00) per occurrence with
endorsements for actual replacement cost valuation for any boiler or pressure
vessel located within the premises.
B. LANDLORD'S INSURANCE. Landlord agrees, as part of the
insurance otherwise contemplated under Article 5, Subparagraph (v) to carry
policies insuring the building and improvements of the building complex, as the
same may exist as of the execution of this Lease, against such perils of loss as
Landlord may reasonably deem appropriate or as may be required by any mortgagee
of the premises but without limitation, insurance covering fire and such other
risks of direct or indirect loss or damage, as Landlord reasonably deems
appropriate, including extended and broad form coverage risk and all risk
endorsement, damage by water, flood and earthquake, in such amounts to cover
such risks as Landlord may elect, sufficient to prevent any coinsurance
provisions from becoming effective and at least equal to the full replacement
value of the building without depreciation. Landlord agrees that such insurance
shall not exceed an amount which is necessary to cover the full replacement cost
in the event of a casualty. Such insurance shall also include rent insurance
with all risk coverage in an amount not less than one year's current basic rent
and additional rent. The cost of such insurance as may be carried by Landlord
shall be reimbursed to Landlord by Tenant in accordance with Article 5. The
insurance to be carried by Landlord shall not include any improvements made by
Tenant nor shall it include any of Tenant's trade fixtures, furnishings,
fixtures, inventory, personal property, or the like. Tenant shall have no right
in any of Landlord's insurance policies and shall not be entitled to be named
insured or additional insured thereunder.
To the extent Landlord carries excess insurance to that
otherwise provided by Tenant under paragraph "A" above, including commercial
general liability insurance, Tenant shall pay as Additional Rent the Tenant's
share of the cost and expense incurred by Landlord for such liability and
casualty insurance as Landlord may from time to time carry for Landlord's
benefit on the property or insuring Landlord's interest therein; subject,
however, that such insurance in such amounts shall be reasonable, under the
circumstances, as is determined by Landlord's insurance advisor with due regard
to Tenant's use and the character of the building, its location and amounts and
kinds of insurance normally carried by others in similar circumstances.
C. PROVISIONS PERTAINING TO INSURANCE TO BE PROVIDED BY
TENANT.
(i) All policies of insurance described in this Article which
Tenant is to procure, maintain and pay for will be issued by responsible
companies qualified to do business in the State of New Jersey. Executed copies
of such policies of insurance or certificates of such insurance will be
delivered to Landlord and any additional designated insureds before or
simultaneously with the execution of this Lease and within thirty (30) days
prior to the termination or expiration of the term each existing policy. All
public liability and property damage policies will contain the following
provisions:
(a) Landlord and any additional designated insureds,
although named as insured, will nevertheless be
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entitled to recover under said policies for any loss occasioned to them, their
servants, agents and employees by reason of the negligence of Tenant, its
officers, agents or employees;
(b) The company issuing such policy will agree to
give Landlord and any additional designated insured not less than thirty (30)
days notice in writing prior to any cancellation, reduction or modification of
such insurance;
(c) All public liability, property damage and other
casualty policies will be written as primary policies, not entitled to
contribution from, nor contributing with, any coverage which Landlord may carry.
(ii) Tenant's obligations to carry insurance required by this
Lease may be brought within the coverage of a so-called blanket policy or
policies of insurance carried and maintained by Tenant so long as:
(a) Landlord and such other persons will be named as
additional insureds under such policies as their interest may appear;
(b) The coverage afforded to Landlord and such other
persons will not be reduced or diminished by reason of the use of such blanket
policy of insurance;
(c) All other requirements set forth in this Article
are otherwise satisfied.
(iii) Tenant shall also furnish insurance for such other
hazards and in such amount as Landlord may reasonably require and as at the time
are commonly insured against with respect to buildings similar in character,
general location and use and occupancy to the Demised Premises in relative
amounts normally carried with respect thereto. The Landlord reserves the right
at any time and from time to time to require that the limits of any of the
insurance required pursuant to this Article be increased to limits as at the
time are reasonable with respect to Tenant's use and to the building. If Tenant
disputes the reasonableness of Landlord's request, Tenant shall in all events
obtain such additional coverage or increased amounts, subject however, that
Tenant shall then have the right to have the issue determined by arbitration. If
Tenant prevails in the arbitration, then Landlord shall reimburse Tenant for the
cost of such additional coverage. The arbitration shall be conducted by each
party appointing a licensed commercial insurance broker with at least ten (10)
years' experience in providing insurance coverage for similar properties in
Bergen County as its representative and the two such persons designated shall
make the determination. If they cannot agree upon a joint determination, then
they shall appoint a third person with like credentials and the judgment of the
majority shall prevail. The right of such increase shall accrue no more often
than once every thirty-six (36) months. Each party shall pay the fees of the
person appointed by it, and the parties shall each pay one half (1/2) of the
fees of the third broker if appointed.
7. USE. The Tenant may use and occupy the Demised Premises for offices,
warehousing, and distribution of consumer products which are normally sold in a
department store provided such products are neither hazardous, nor toxic
pollutants, as well as
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the assembly or light manufacturing of such products, and for no other purpose.
If permitted by governmental ordinances, Tenant may use the Premises for retail
sales of such products not exceeding in total, ten percent of the Demised
Premises and for the manufacture of display cases for such products. An assignee
(other than or pursuant to Section 9G) of this Lease or a subtenant may only use
the premises for offices, warehousing, distribution of consumer products which
are normally sold in a department store which are non-hazardous and non-toxic
pollutants and for no other purpose. Such permitted uses are further subject
that they shall be consistent with the Certificate of Occupancy to be issued by
the Borough of Moonachie. Such permitted uses shall not permit or cause any
odor, sound, vibration, effluent, pollution or other condition that is either in
Landlord's reasonable opinion or by law, noxious or offensive outside of the
Premises. It being a consideration of this Lease that the use of the Premises
shall be limited to those uses as otherwise hereinbefore specified. The Tenant
shall not permit the stacking of merchandise or materials against the walls so
as to create a load or weight factor upon the walls or to tie in Tenant's
racking systems with such walls, nor shall Tenant permit the hanging of
equipment from (or otherwise loading) the roof or structural members of the
Building without the express written consent of the Landlord. The Tenant shall
not use or occupy or permit the Demised Premises to be used or occupied, nor do
or permit anything to be done in or on the Premises, in a manner which will in
any way violate any Certificate of Occupancy affecting the Demised Premises, or
make void any insurance then in force with respect thereto, or which will cause
or be likely to cause structural damage to the Building or any part thereof, or
which will constitute a public or private nuisance, or which would adversely
affect the then value thereof, and shall not use or occupy or permit the Demised
Premises to be used or occupied in any manner which will violate any present or
future laws or regulations of any governmental authority. Tenant shall, at
Tenant's sole cost and expense, take all actions, including any required
alterations necessary, to comply with all present or future laws or regulations,
including the Americans With Disabilities Act of 1990 ("ADA") which shall impose
any violation, order or duty upon Landlord or Tenant arising from or in
connection with Tenant's occupancy, use of manner of use of the Premises
(including such use that constitutes a "place of accommodation" under the ADA.
At no time during this Lease may Tenant store upon the Premises hazardous
substances as that term may be defined from time to time by the New Jersey
Department of Environmental Protection or by the Federal Environmental
Protection Agency pursuant to Section 311 of the "Federal Water Pollution Act,
amendments of 1972" (33 U.S.C. Section 1321) and the list of toxic pollutants
designated by Congress or the Environmental Protection Agency pursuant to
Section 307 of that Act (33 U.S.C. Section 1317). The foregoing, however, shall
not prohibit Tenant from having de minimus quantities of cleaning supplies and
office supplies at the Premises which are to be used for Tenant's office needs
and housekeeping. Nothing herein contained shall be deemed or construed to
constitute a representation or guaranty by the Landlord that any specific
business may be conducted in the Demised Premises or is lawful under the
certificate of occupancy. Unless caused by Tenant or by Tenant's use of the
Demised Premises Landlord covenants that the common areas of Property will
otherwise comply with ADA at all times unless such compliance is required by
acts of Tenant.
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8. REPAIRS.
A. Tenant shall keep, replace and maintain in good order,
condition and repair the Premises and each and every part thereof (except for
repairs specifically required of Landlord pursuant to subparagraph (c) of this
Paragraph 8) including, without limitation, any air conditioning units and
systems, heating units and systems, plumbing units and systems; sprinkler
systems; electrical systems; equipment; facilities and fixtures. The aforesaid
obligation of Tenant shall also include, without limitation, all necessary
interior painting (except, Tenant shall not paint the masonry walls) and
decorating and the replacement of any glass which may be damaged or broken.
Notwithstanding the foregoing, all damage or injury to the Premises or to any
other part of the Property or to its fixtures or appurtenances, whether
requiring structural or non-structural repairs, caused by the negligence or
improper conduct of Tenant or its employees, invitees, licensees or agents,
shall be repaired promptly by Tenant at its sole cost and expense. If Tenant
refuses or neglects to make such repairs or fails to commence to diligently
prosecute the same to completion within fifteen (15) business days after
Tenant's receipt of written notice from Landlord to Tenant of the need therefor,
Landlord may make such repairs at the expense of Tenant and such expense shall
be collectible as additional rent, as provided in Paragraph 23 hereof.
B. Tenant shall obtain a maintenance contract for the heating,
ventilation and air conditioning systems serving the Premises Such contract
shall provide for semi-annual maintenance of the HVAC systems, and copies of the
maintenance agreement shall be submitted to Landlord upon Landlord's request,
together with an annual report of the maintenance company as to the condition
and repairs made to the systems. The firm or person maintaining the HVAC systems
shall be a person who is certified and licensed to service refrigerating
equipment as such certification or licenses may be required by law or any
governmental agency. Tenant's obligation to provide copies of maintenance
agreements or to maintain a maintenance agreement on the HVAC system, shall only
be applicable to the HVAC system supplied by Landlord to Tenant upon the
commencement of the Lease term.
C. During the first twelve (12) months of the term hereof,
Landlord at its cost and expense shall remedy or repair any items that break or
become inoperable (that is not caused by Tenant) on the Premises and common
areas, evidence of which shall appear or be discovered within the first twelve
(12) months of the lease term. Notwithstanding the foregoing, if Tenant shall
make any change or alteration, to any portion of the Demised Premises,
Landlord's obligation as heretofore provided shall not thereafter extend to the
portion of the premises so changed or altered by Tenant to the extent that any
portion thereof is adversely effected by the change or alteration. If such
change or alternation made by Tenant effects any warranty which Landlord
obtained, Landlord shall be excused from Landlord's obligation to the extent
such warranty is abrogated, voided or diminished. Landlord's liability under
this subparagraph C is limited to replacement, repair or correction of the
defect or the condition to be rectified and Landlord shall not be liable for any
consequential loss or damage.
D. Landlord shall keep, replace and maintain in good
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order and condition and repair common areas and the roof, roofdeck and outside
walls, subject, however, the cost of same shall be paid by the Tenant to
Landlord as part of the Tenant's Share of Expense Rent in accordance with
Section 5.
E. On the commencement date of the Lease, the HVAC systems,
mechanical systems, plumbing, sprinkler and electrical systems shall be in good
working order and the roof shall be free of leaks and seepage and the exterior
walls shall be free of leaks.
F. Tenant shall have the right to direct Landlord's roofer,
being a roofer designated by Landlord to undertake emergency repairs to the roof
in the event of a leak, subject, however, that such repairs shall not exceed
$2,000 unless Landlord's prior consent is obtained. The cost of such repair
shall be an Expense pursuant to Article 5 unless Tenant is responsible for the
cause of the leak, in which event Tenant shall be solely responsible for the
cost thereof.
9. ASSIGNING AND SUBLETTING.
A. Subject to any provisions of this Article 9 to the
contrary, Tenant shall not, without the prior written consent of the Landlord,
(i) assign, convey or mortgage this Lease or any interest hereunder; (ii) permit
to occur or permit to exist any assignment of this Lease or any lien upon
Tenant's interest, voluntarily or by operation of law; (iii) sublet the Premises
or any part thereof; or (iv) permit the use of the premises by any parties other
than Tenant and its employees. Any such action on the part of Tenant shall be
void and of no effect. There shall be no partial assignment of Tenant's interest
in this Lease. The term "sublease" and all words derived therefrom, as used in
this Article 9 shall include any subsequent sublease or assignment of such
sublease and any other interest arising under such sublease. Landlord's consent
to any assignment, subletting or transfer, or Landlord's election to accept any
assignee, subtenant or transferee as the Tenant hereunder and to collect rent
from such assignee, subtenant or transferee shall not release Tenant or any
subsequent Tenant from any covenant or obligations under this Lease. Landlord's
consent to any assignment, subletting or transfer shall not constitute a waiver
of Landlord's right to withhold its required consent to any future assignment,
subletting or transfer. Landlord may condition its consent upon execution of the
subtenant or assignee of an instrument confirming such restrictions on future
subleasing or assignment and joining in the waivers and indemnities made by
Tenant hereunder insofar as such waivers and indemnee relate to the Premises
being subleased. Without limitation of the foregoing, Tenant agrees to indemnify
and defend Landlord, its employees, agents and their officers and partners
harmless from and against claims made by any broker or finder for commission or
fee in connection with any subleasing or assignment by Tenant or any subtenant
or assignee of Tenant.
B. Landlord's consent to any sublease and/or assignment shall
not be unreasonably withheld, conditioned or delayed beyond fifteen (15)
business days; however, Tenant agrees that Landlord shall be acting reasonably
and shall not in any event be obligated to consent to any such proposed
assignment or subletting unless:
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(1) the use of the proposed assignee or subtenant
shall only be as that permitted by Article 7;
(2) In the reasonable judgment of Landlord, the
subtenant or assignee is of a character or engaged in the business which is in
keeping with the standards of Landlord for the building;
(3) the proposed assignee or subtenant is not then a
tenant or occupant of any part of the Building;
(4) there shall be no event of default beyond any
grace period after the giving of any required notice by Tenant under any of the
terms, covenants and conditions of this Lease at the time Landlord consents to
any such assignment or subletting is requested and on the effective date of the
assignment of a proposed sublease.
(5) Tenant shall reimburse Landlord for any
reasonable expenses that may be incurred by Landlord in connection with the
proposed assignment or sublease, including without limitation the reasonable
costs of making investigations as to the acceptability of a proposed assignee or
subtenant and reasonable legal expenses incurred in connection with the granting
of any requested consent to the assignment or sublease;
(6) Such permitted assignment shall be conditioned
upon Tenant's delivery to Landlord of an executed instrument of assignment
(wherein the assignee assumes, jointly and severally with Tenant, the
performance of Tenant's obligations hereunder from and after the assignment).
(7) Such permitted sublease shall be conditioned upon
Tenant's delivery to Landlord of an executed instrument of sublease (wherein
Tenant and such sublessee agree that such sublease is subject to the Lease and
such sublessee agrees that, if the Lease is terminated because of Tenant's
default, such sublessee shall, at Landlord's option, attorn to Landlord).
(8) Tenant shall at Tenant's own expense first comply
with ISRA and fulfill all of Tenant's environmental obligations under this Lease
which also arise upon termination of Tenant's Lease term. If this condition
shall not be satisfied, then Landlord shall have the right, to withhold consent
to a sublease or assignment.
C. Landlord's consent to any subletting or Landlord's election
to accept any subtenant as a Tenant hereunder and to collect rent from such
subtenant shall not release Tenant or any subsequent Tenant from any covenant or
obligations under this Lease.
D. If Tenant desires the consent of Landlord to an assignment
or subletting, Tenant shall submit to Landlord at least thirty (30) days prior
to the proposed effective date of the assignment or sublease a written notice
which includes: (i) all documentation that is available related to the proposed
sublease or assignment (copies of final documentation (in all material respects)
to be supplied at least ten (10) days before the effective date and within ten
(10) days after the effective date executed copies; and (ii) sufficient
information to permit
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Landlord to determine the identity and character of the proposed subtenant or
assignee and the financial condition of the proposed assignee.
E. If at any time Tenant intends to sublet more than eighty
percent of the Demised Premises or assign the Lease, Tenant shall, before
marketing the same, so notify Landlord in writing, which notice shall
specifically indicate that portion of the Premises Tenant intends to assign or
sublet. Thereafter, Landlord shall have the right to terminate this Lease as to
that portion of the Premises which Tenant seeks to assign or sublet. Landlord
may exercise such right to terminate by giving written notice to Tenant within
twenty (20) business days from Tenant's written notice. The obligation imposed
upon Tenant by reason of Articles 11 and 13 shall be applicable upon the
termination. In the event that Landlord exercises such right to terminate,
Landlord shall be entitled to recover possession of and Tenant shall surrender
such portion of the Premises on the later of the ninetieth (90th) day following
the date of service of Landlord's notice of termination to Tenant or the date
specified in Tenant's notice. If Landlord does not exercise its right to
recapture, Landlord shall be deemed to have waived its right to recapture that
portion of the Premises designated in Tenant's notice for a period of one
hundred eighty (180) days after the date of such notice. Notwithstanding the
provisions of the foregoing sentence to the contrary, if after expiration of
such one hundred eighty (180) day period, Tenant shall desire to assign or
sublet the portion of the Premises designated in Tenant's notice, Tenant shall
be required to submit to Landlord a notice of such intent and Landlord shall
then have the right to recapture the same. If within such one hundred eighty
(180) day period Tenant enters an agreement to sublease or assign any space in
addition to the space identified in Tenant's notice, Tenant shall be required to
submit to Landlord a notice of such proposed transaction and Landlord shall then
have the right to recapture all of such space. If Tenant advises Landlord at the
time of its notice of the unamortized cost of Tenant's improvements made at the
Premises, Landlord shall pay to Tenant if Landlord takes back the space such
unamortized portion of the costs. Tenant shall, prior to or simultaneously with
the payment by the Landlord to Tenant, pay to Landlord, the cost of removing all
of such improvements. The provisions of this Section shall not be deemed to
effect Landlord's rights to withhold consent to any sublease or assignment in
accordance with the terms of this Article or Tenant's obligations under this
Article.
F. In the event that Landlord consents to any assignment or
sublease of all or any portion of the Premises as a condition of Landlord's
consent, Tenant shall pay to Landlord any attorneys fees and expenses and all
other out of pocket expenses incurred by Landlord in connection with such
assignment or sublease, plus fifty (50) percent of all sublet or assignment
profits as defined below derived by Tenant from such assignment or sublease
within ten (10) days after the same are received by Tenant. Sublease and
assignment profits shall mean the entire excess after deduction of the costs for
Tenant improvements made to accommodate the assignment or sublease and brokerage
commissions incurred, if any, from revenues generated by the subleasing or
assignment of the Premises or portions thereof over the Rent applicable thereto.
All such costs shall be amortized pro rata over the term of the sublease or
assignment. Tenant shall furnish Landlord with a sworn statement certified by
the
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President and Treasurer of Tenant setting forth in detail the computation of the
sublease and assignment profits and Landlord or its representatives shall have
access to the books, records and papers of Tenant in relation thereto and to
make copies thereof. Such percentage of sublease and assignment profits shall be
paid to Landlord promptly by Tenant upon Tenant's receipt from time to time of
periodic payments from such assignee or subtenant or such other time as Tenant
shall realize sublease and assignment profits from such assignment or sublease.
If such sublease or assignment is part of a larger transaction wherein other
assets of Tenant are being transferred, the consideration for the assignment or
sublease shall be a reasonable allocation of the total value received minus a
reasonable allocation of the total expenses as aforesaid.
G. Notwithstanding anything here to the contrary, Tenant shall
have the right to assign this Lease or sublease the Premises or any part thereof
to any of the following organizations without obtaining Landlord's prior consent
(and without the requirement of complying with paragraphs "E" or "F" above);
(1) any organization resulting from a merger or
consolidation with Tenant (or any successor to Tenant); or
(2) any organization succeeding to the business and
assets of the Tenant; or
(3) any firm, corporation, partnership, association,
subsidiary or other entity which is directly owned by Tenant (or any successor
to Tenant) and/or controls, or is controlled by, Tenant; provided that any
transfer pursuant to the foregoing shall be subject to the condition that any
such assignment, sublease or transfer shall be subject to all the terms,
covenants and conditions of this Lease including paragraph "B" (except that
Landlord's consent shall not be required pursuant to the first paragraph of said
paragraph B) above of this Article 9, and such assignee, subleasee or transferee
shall expressly assume from and after such sublease or transfer the obligations
of Tenant under this Lease by a document reasonably satisfactory to Landlord.
Nothing herein shall be deemed to relieve the Tenant named herein from liability
hereunder. Neither this Lease nor any interest therein or any estate created
thereby shall pass by operation of law or otherwise to any trustee, custodian or
receiver in bankruptcy of Tenant or any assignee for the assignment of the
benefit of creditors of Tenant. The Tenant named herein shall provide Landlord
with written notice of any such assignment or subletting made pursuant to this
subparagraph __ twenty (20) days prior to such assignment or subletting. If the
use of the Premises for the six months prior to such assignment is substantially
similar to the use of the Premises for one year subsequent to the assignment,
then, under subsection (2) of subparagraph (B) of this Article 9, it shall be
deemed that the business which the Tenant is engaged in is in keeping with the
standards of Landlord for the building.
H. Notwithstanding anything herein to the contrary in the
event Tenant has sublet more than twenty-five (25) percent of the Premises or
assigned this Lease, neither the Tenant, nor any assignee, may extend the term
of this Lease as otherwise provided in Article _46(B) hereof.
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I. Each subletting pursuant to this Paragraph 9 shall be
subject to all the covenants, agreements, terms, provisions, and conditions
contained in this Lease. Tenant covenants and agrees that, notwithstanding such
assignment or any such subletting to any subtenant and/or acceptance of Basic
Rent or Additional Rent by Landlord from any subtenant, Tenant shall and will
remain fully liable for the payment of the Basic Rent and Additional Rent due
and to become due hereunder and for the performance of all the covenants,
agreements, terms, provisions, and conditions contained in this Lease on the
part of Tenant to be performed. Tenant further covenants and agrees that,
notwithstanding any such assignment or subletting, no other and further
assignment, underletting, or subletting of the Demised Premises or any part
thereof shall or will be made except upon compliance with the subject to the
provisions of this Paragraph 9. Tenant shall promptly furnish to Landlord a copy
of each such sublease.
J. If this Lease be assigned, or if the Demised Premises or
any part thereof be sublet or occupied by anybody other than Tenant, Landlord
may, after default by Tenant, collect rent from the assignee, subtenant, or
occupant, and apply the net amount collected to the rent herein reserved, but no
such assignment, subletting, occupancy, or collection shall be deemed a waiver
by Landlord of any of Tenant's covenants contained in this Article or the
acceptance of the assignee, subtenant, or occupant as Tenant, or a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant
herein contained.
10. CONFORM TO LAW. Tenant shall, at its own expense, in the use and
occupancy of the Premises, observe and comply with all laws, orders, regulations
of the federal, state and municipal governments, or any of their departments,
and if any of the foregoing requires that an alteration, addition or other
change be made to the Demised Premises then, Tenant will make such alteration,
addition or change and bear all expense connected therewith. Landlord represents
to Tenant that as of the date of this Lease no violations have been issued, and
Landlord has no reason to believe a violation would be issued for the Demised
Premises as they exist as of the date of this Lease.
Notwithstanding anything to the contrary, this paragraph and the
succeeding paragraphs of this Article 10 shall apply to all issues related to
compliance with the Americans with Disabilities Act ("ADA").
(i) Any remodeling, construction, reconstruction, installation
of improvements or other work done to the common areas shall be performed by
Landlord in compliance with the requirements of the ADA and regulations
promulgated pursuant to it ("ADA Requirements") if, such requirements would be
imposed if the Premises were used solely as a warehouse. Any remodeling,
construction, reconstruction, installation of improvements or other work done to
the demised premises shall be done in compliance with ADA Requirements, at the
expense of the party who is performing the work.
(ii) Tenant shall be solely responsible for compliance with
ADA Requirements triggered by a disability of one or more of Tenant's employees
or invitees and/or, the use of the Premises for retail. Tenant shall not change
its use of the premises as
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otherwise set forth in the first two sentences of Section 7.01. Tenant shall, at
Tenant's sole cost and expense, take all actions, including any required
alterations necessary, to comply with all present or future laws or regulations,
including the Americans With Disabilities Act of 1990 ("ADA") which shall impose
any violation, order or duty upon Landlord or Tenant arising from or in
connection with Tenant's occupancy, manner of use of the Premises (including
such use that constitutes a "place of accommodation" under the ADA.
(iii) In the event that a regulatory agency makes a claim
under the ADA against either party (or both parties), the parties whose breach
of responsibility under this Lease gave rise to the claim, shall promptly take
whatever actions are necessary to bring the premises or the property, as the
case may be, into compliance with ADA Requirements.
11. TENANT'S COMPLIANCE WITH ENVIRONMENTAL LAWS. Tenant agrees, that
under all circumstances, Tenant shall comply with all federal, state and local
laws, ordinances, rules and regulations which are applicable, as to the conduct
of Tenant's business as it relates, to the environment, including but not
limited to, spillage, pollution, and storage. Tenant agrees, that Tenant upon
the request of Landlord from time to time shall file such notices, declarations
and obtain such permits as may be necessary and as may be required by law, from
the appropriate government agency, that has jurisdiction over the Premises,
and/or Tenant's business. Tenant shall at Tenant's own expense comply with the
Industrial Site Recovery Act ("ISRA"), N.J.S.A. 13:1K-6, et seq., and the
regulations promulgated thereunder and any successor legislation and
regulations. Tenant shall at Tenant's own expense make all submissions to,
provide all information to and comply with all requirements relating to the
interior of the Demised Premises and the use thereof of the New Jersey
Department of Environmental Protection and Energy or its successor ("DEP"). The
Tenant's obligations shall arise if there is any closing, terminating or
transferring of operations of an industrial establishment at the Premises
pursuant to ISRA, whether triggered by Landlord or Tenant. Tenant shall commence
its submission to the DEP in anticipation of the end of the Lease Term no later
than six (6) months prior the expiration of the Lease Term. Tenant agrees it
will supply copies of all written or oral communications by or between it and
any governmental agency in reference to the foregoing to Landlord. Should DEP
determine that a Remedial Action Work Plan be prepared and that a clean-up be
undertaken because of a spill or discharge caused by Tenant or Tenant's
employees, invitees, or agents of a hazardous substance or waste at the Premises
which occurred during the term of the Lease, Tenant shall, at Tenant's own
expense promptly prepare and submit the required plan and financial assurances
and shall promptly carry out the approved plan. At no expense to Landlord,
Tenant shall promptly provide all information requested by Landlord or DEP for
preparation of a non-applicability affidavit, de minimis quantity exemption
application, limited conveyance application or other submission and shall
promptly sign such affidavits and submissions when requested by Landlord or DEP.
If Tenant's operations at the Premises are outside of those industrial
operations covered by ISRA, Tenant shall obtain a letter of non-applicability
from the DEP prior to termination of the Lease and shall provide copies of all
such submissions to Landlord. Landlord shall have the right to be exercised in a
reasonable manner in such instance to request Tenant to undertake
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a sampling at the Premises to determine whether or not Tenant's operations have
resulted in a spill or discharge of hazardous waste. If, Landlord causes a
triggering event that requires a filing under "ISRA" Landlord shall in such
instance reimburse Tenant for Tenant's reasonable administrative cost in
participating in the filing as otherwise required by law. Landlord and Tenant
agree that they will extend to each other their cooperation in order to
effectuate the full compliance with this Section 11.
The Tenant does hereby agree at its sole cost and expense, to
defend, indemnify and save harmless the Landlord against and from any and all
loss, cost, expenses, liabilities or claims by third parties, including all
governmental authorities, attorney's fees, court costs, fines or penalties
arising from or in connection with the lease herein, and the use or occupancy of
the Demised Premises by the Tenant, and in case any action or proceeding is
brought against Landlord or Tenant by reason of any hazardous waste or
contaminants brought onto the Premises by Tenant or any agent or invitee of
Tenant. Tenant, upon notice from Landlord, agrees to resist and defend such
action or proceedings by Counsel reasonably satisfactory to Landlord. Counsel
for Tenant's insurance carrier shall be deemed satisfactory. Tenant covenants
that it shall not dump chemical waste on the Premises nor use or store hazardous
materials in the Premises, except as provided in Paragraph 7 hereof. Landlord
acknowledges that Tenant has no liability or responsibility whatsoever for
conditions existing as of the date of this Lease including, but not limited to,
those relating to any prior oil tanks or acts or omissions of prior occupants or
for any other environmental conditions not caused by Tenant or Tenant's
employees, invitees or agents.
Landlord does hereby agree that at Landlord's sole cost and
expense to defend, indemnify and save harmless the Tenant against and from any
and all loss, cost, expenses, liabilities or claims by third parties, including
all governmental authorities, attorneys fees, court costs, fines or penalties
arising from or in connection with a spill or discharge of hazardous substances
or hazardous waste by Landlord on the Premises. The foregoing indemnification
shall only apply to Landlord's acts and shall not apply to acts of third
parties.
If Tenant fails to obtain either a non-applicability letter,
or a negative declaration or a No Further Action Letter from DEP or fails to
clean up the Premises as hereinbefore provided prior to the expiration of the
term, except by reason of matters not caused by Tenant, nor Tenant's employees,
invitees or agents, then upon the expiration of the term Landlord shall have the
option to consider and to treat Tenant as a holdover Tenant in possession of the
Premises until, Tenant complies with the foregoing. In such event, Tenant shall
be responsible for the rental obligations as a Tenant from month to month as
otherwise provided in Paragraph 13 hereof.
If, due to the existence of an environmental condition at the Premises,
which neither Tenant nor its employees, agents or invitees caused, such
condition materially interferes with Tenant's use of the Premises, so that
Tenant's quiet enjoyment is disturbed, then, Tenant, if such environmental
condition is ongoing and is not otherwise promptly remediated, shall have the
right on 45 days prior written notice to Landlord to terminate
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this Lease, effective as of the 45th day subsequent to the delivery of such
notice to Landlord in accordance with the provisions of Article 13. Tenant's
remedies in such event shall be limited solely to termination of the Lease, and,
except as otherwise expressly set forth in this Lease, Landlord shall have no
liability to Tenant by way of damages or otherwise.
12. ADDITIONAL COVENANTS. Tenant covenants and agrees that at all times
during the term of this Lease to the following:
A. ALTERATIONS, ADDITIONS AND IMPROVEMENTS. Tenant shall make
no alterations, installations, additions or improvements, including but not
limited to Tenant's Work [referred to herein as "Tenant's Changes"] in or to the
Demised Premises of any nature without Landlord's prior written consent. Subject
to the provisions of this article, Tenant, at Tenant's expense, may make Tenant
Changes to the interior of the Demised Premises, provided that such Tenant
Changes do not (i) affect the exterior of the Building or any portion of the
building other than the Demised Premises, (ii) affect the structure of the
Building or any of its outer walls, any of its inner walls or columns which are
load-bearing, its concrete floor, foundation or roof, or (iii) adversely affect
any of the Building systems including, without limitation, mechanical,
sprinkler, electrical, heating, plumbing and other service systems of the
Building, subject, however, at all times, to the following:
(i) Tenant shall first obtain requisite permits and
authorizations from governmental authorities having jurisdiction;
(ii) Except for a replacement of a prior improvement
theretofore installed by Tenant, to which Landlord had consented, obtain
Landlord's consent (which Landlord's consent not to be unreasonably withheld if
the Tenant Changes or alteration would not, in the reasonable opinion of the
Landlord, impair the value or usefulness of the premises);
(iii) Any such Tenant Changes and alteration shall be
made promptly (unavoidable delays excepted) in a workmanlike manner in
accordance with any alteration plans and in compliance with applicable laws and
governmental regulations;
(iv) The cost of the Tenant Changes shall be paid by
Tenant so that the demised premises remain free of any liens;
(v) If requested by Landlord, post with Landlord,
adequate security to assure restoration of the premises at the end of the term.
The security shall be computed at the rate of $5.00 per square foot for the cost
of removal of offices and/or enclosed finished space. The cost of removal and
restoration of all other improvements shall likewise have security given to
Landlord to the extent the cumulative cost of removal and restoration exceeds
$50,000.00 or such greater sum as hereinafter provided. The sum of $50,000.00
shall be increased annually at the rate of three percent (3%) per year
commencing 2002;
(vi) Maintain proper insurance;
(vii) If by law plans and specifications are
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required for submission to the municipality for a building permit, then, a copy
of any such plans and specifications shall be given to Landlord.
(viii) Tenant shall agree in writing, if directed by
Landlord to remove such alterations and/or Tenant Changes and to restore the
premises upon such removal.
(ix) Tenant agrees that under no circumstances shall
it make a penetration to or otherwise disturb the roof, unless Tenant obtains
Landlord's prior consent, and Tenant uses only a roofer recommended by Landlord
for such purpose.
B. NOT CHANGE EXTERIOR ARCHITECTURE. Tenant shall not change
(whether by alteration, replacement, rebuilding or otherwise) the exterior color
and/or architectural treatment of the Premises or of the building in which the
same is located, or any part thereof.
C. NOT MISUSE PLUMBING FACILITIES. Tenant shall not use the
plumbing facilities for any purpose other than that for which they were
constructed, or dispose of any garbage or other foreign substance therein,
whether through the utilization of so-called "disposal" or similar units or
otherwise.
D. NO LIENS. Tenant shall not subject any fixtures,
furnishings or equipment in or on the Premises which are affixed to the realty,
to any mortgages, liens, conditional sales agreements, security interests or
encumbrances. Trade fixtures of Tenant which are not attached to the Building
shall not be subject to the foregoing prohibition.
E. NOT DAMAGE THE PREMISES. Tenant shall not perform any act
or carry on any practice which may damage, mar or deface the Premises or any
other part of the Building.
F. NOT EXCEED FLOOR LOADS. Tenant shall not place a load on
any floor in the Premises, or in any area of the Building, exceeding the floor
load of 500 pounds per square foot uniform load which such floor was designated
to carry; or install, operate or maintain therein any heavy item or equipment
except in such manner as to achieve a proper distribution of weight.
G. NOT EXCEED ELECTRICAL LOAD. Tenant shall not install,
operate or maintain in the Premises, any electrical equipment which does not
bear underwriters' approval, and would overload the electrical system therein,
or any part thereof, beyond its reasonable capacity for proper and safe
operation.
H. NOT PERMIT ODORS, ETC. Tenant shall not suffer, allow or
permit any offensive or obnoxious vibration, noise, odor or other undesirable
effect to emanate from the Premises, or any machine or other installation
therein, or otherwise suffer, allow or permit the same to constitute a nuisance
or otherwise unreasonably interfere with the safety, comfort or convenience of
Landlord or any other occupants of the Building; upon notice by Landlord to
Tenant that any of the aforesaid is occurring, Tenant shall forthwith (but in
all events within ten (10) business days) remove or control the same. Landlord
covenants to include substantially the same clause in any other tenant's lease
at the building.
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I. NOT INTERFERE WITH INSURANCE, COMPLIANCE, IMPROPER USE.
Tenant shall not use or occupy the Premises or do or permit anything to be done
thereon in any unreasonable manner which shall prevent Landlord and/or other
Tenants from obtaining at standard rates any insurance required or desired, or
which would invalidate or increase the cost to Landlord of any existing
insurance, or which might cause structural injury to the building, or which
would constitute a public or private nuisance or which would violate any present
or future laws, regulations, ordinances or requirements (ordinary or
extraordinary, foreseen or unforeseen) of the federal, state or municipal
governments, or of any department, subdivisions, bureaus or offices thereof, or
of any other governmental public or quasi-public authorities now existing or
hereafter created having jurisdiction in the Premises, or the Industrial
Building of which the premises forms a part.
J. PAY THE COST OF ADDITIONAL INSURANCE PREMIUMS. If, at any
time, and from time to time, as a result of, or in connection with, any failure
by Tenant to comply with its covenants and agreements as contained in this
Lease, or any act of omission or omissions by Tenant, its employees, agents,
contractors or licensees, or as a result of, or in connection with, the use to
which the Premises are put (notwithstanding that such use may be for purposes
hereinbefore permitted, or that such use may have been consented to by
Landlord), the insurance rates applicable to the Premises, or the building in
which same are located, or to any other Premises in said building and/or to the
contents located in the Building or any part thereof (including rent insurance
relating thereto) shall be higher than that which would be applicable if the
Demised Premises were used solely as offices and as a warehouse of non-flammable
materials, Tenant agrees that it will pay the Landlord, on demand, as additional
rent, such portion of the premiums for all casualty and/or fire insurance
policies in force with respect to the Building, other Premises in the Building
and/or to the contents located in the Building or any part thereof (including
rent insurance relating thereto) and the contents of any occupant thereof as
shall be attributable to such higher rates.
13. EXPIRATION OF TERM - RETURN OF PREMISES IN GOOD CONDITION. On the
last day or sooner termination of the Lease, Tenant shall quit and surrender the
Demised Premises broom-clean, in good condition and repair, together with all
alterations, additions and improvements which may have been made in, on, or to
the Demised Premises, except movable furniture or unattached movable trade
fixtures put in at the sole expense of the Tenant (provided Tenant has not been
in default under this Lease) provided, however, that Tenant shall ascertain from
Landlord at least thirty (30) days before the end of the Term whether Landlord
desires to have the Demised Premises, or any part thereof, restored to the
condition in which it was originally delivered to Tenant, and if Landlord shall
so desire then Tenant, at its own cost and expense, shall restore the same
before the end of the Term. Tenant in all events prior to the termination of the
Lease shall remove all alterations and improvements made to the Premises from
the date of this Lease, excluding, however, those alterations and improvements
reflected on Schedule B hereof and such other improvements installed by Tenant
which Landlord, in writing, has theretofore agreed may remain including the
exterior windows, drive-in door and security bars on roof
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skylight. All trade fixtures, equipment, and furniture, not so removed will
conclusively be deemed to have been abandoned by Tenant and may be appropriated,
sold, stored, destroyed, or otherwise disposed of by Landlord without notice to
Tenant or to any other person and without obligation to account for them. Tenant
will pay Landlord all expenses incurred in connection with Landlord's
disposition of such property, including without limitation the cost of repairing
any damage to the Building or Premises caused by removal of such property.
Tenant agrees upon termination of the lease, the air-conditioning, cooling
systems, heating equipment and plumbing and electrical systems shall be in good,
operable condition. All lighting fixtures and bulbs shall be operable, cleaned,
and in good working order, the original office area (installed by Landlord)
ready to be painted, rugs cleaned, and the warehouse floor washed, cleaned and
free of any visible marks, gores or similar penetrations or discolorations. If
Tenant's warehouse moving equipment has marred, defaced, damaged or made the
floors uneven, Tenant shall bear the cost to refurbish the floors which may have
been discolored, gauged or otherwise damaged during the term of the Lease. The
condition of the premises shall be in such a condition upon surrender as though
the premises were used exclusively for distribution, warehousing and offices,
and the Tenant made all repairs and replacements as were necessary during the
term of the Lease so that after surrender, the premises are in good condition
and repair. Tenant shall comply with the provisions of paragraph 11 prior to
termination of the Lease. If the Demised Premises is not surrendered as and when
aforesaid, Tenant shall be responsible for the cost incurred by Landlord in so
preparing the Premises Tenant's obligations under this section shall survive the
expiration or sooner termination of the Term. Subject to the last sentence of
this paragraph, in the event Tenant remains in possession of the Demised
Premises after the expiration of the Term and without the execution of a new
lease or fails to deliver the Premises in the condition required, Tenant, at the
option of the Landlord, shall be deemed to be occupying the Demised Premises as
a tenant from month-to-month, at a monthly rental equal to (i) two and one half
(2-1/2) times the Basic Rent payable for the last month of the Term under
Section 1(E) plus (ii) one twelfth (1/12th) of all items of Expense Rent, such
as, but not limited to, taxes, insurance, common area charges, repair charges,
utilities, payable or paid during the last lease year. If the holdover is due to
a governmental regulation, the rental shall be equal to one and one time (1-1/2)
times one (i) plus (ii) as aforesaid for the first ninety (90) days of the
holdover, and thereafter, at the rate of two and one half (2-1/2) times as
hereinabove provided.
14. ACCESS TO PREMISES. Landlord shall have the right to enter the
Premises at any reasonable time upon reasonable advance notice and in the
presence of authorized representatives of Tenant to examine same, to maintain
the same, or to make such repairs, replacements or improvements to the Premises
or to the Property as Landlord may reasonably deem necessary, and Tenant shall
have no claim against Landlord by reason thereof. Landlord may install,
maintain, or replace and use pipes and conduits in and through the Premises for
the purpose of installing utilities for other premises located within the
building, which installation shall be installed so that, they are aesthetically
integrated and not a visible impediment and do not materially interfere with
Tenant's operations or reduce Tenant's square footage. Access shall not be
granted to Landlord to the vault
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areas except in a life/safety emergency.
15. RESTORATION OF DEMISED PREMISES IN THE EVENT OF FIRE OR OTHER
CASUALTY
A. If the Premises is damaged or destroyed during the term of this
Lease by any casualty insured under Landlord's insurance policies which Landlord
carries pursuant to Article 6, Landlord, if this Lease is not otherwise
cancelled, will repair or rebuild the Demised Premises to substantially the
condition which the Premises were on the commencement date of the Lease, subject
however, to the limitations on Landlord's responsibility and to Tenant's
obligations as hereinafter provided.
(i) Landlord obligation under this Article will not exceed
however in any event the lesser of
(a) With respect to the Demised Premises the condition of the
Demised Premises as of the commencement date of the Lease, excluding, however,
Tenant's improvements.
(b) To the extent of the proceeds received by Landlord of any
insurance policies maintained by Landlord pursuant to Article 6 (except that
Landlord's obligation shall not be affected if Landlord fails to maintain said
insurance).
(ii) Landlord will not be obligated to restore the Demised
Premises if Landlord cannot after diligent efforts obtain all governmental
permits required to restore the Building and the Demised Premises as provided
above.
B. If the Demised Premises shall be partially damaged by fire or other
casualty and all or a portion of the Demised Premises becomes untenantable or
unusable as a result thereof, the Basic Rent and the Additional Rent shall be
abated in the proportion that the untenantable area of the Demised Premises
bears to the total area of the Demised Premises for the period from the date of
such damage or destruction to the earlier of the date the damage or destruction
shall be substantially repaired or rebuilt or one year from the date of the
casualty.
C. If in Landlord's reasonable opinion, it would take more than 180
days to complete the requisite repairs to the Building and/or to the Premises,
then, Tenant shall have the right to terminate this Lease unless the casualty
occurs following the 102nd month of the lease term, in which event both Landlord
and Tenant shall have the right to terminate this Lease. Landlord and Tenant
hereby waive the provisions of any law that would dictate automatic termination
or grant either of them an option to terminate in the event of damage or
destruction. Landlord or Tenant's election to terminate this Lease will be given
within 60 days following the date Tenant receives Landlord's estimate of the
time required to complete the repairs. Such notice shall be given in accordance
with the provisions of Article 35 hereof. If the actual time to complete the
restoration exceeds by more than 90 days Landlord's estimate, then, Tenant shall
have the right to terminate this Lease by written notice, such notice to be
given no earlier than the 91st day and no later than the 95th day following the
date of Landlord's notice of the estimate of the time to complete. Landlord
shall also have the right to terminate if the actual time to complete the
restoration exceeds by more than 180 days the Landlord's estimate.
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D. Upon the completion of any such work, repair or restoration by
Landlord, Tenant will repair and restore all of the parts of the Premises
including without limitation non-building standard leasehold improvements and
all trade fixtures, equipment, furnishings, signs and other improvements
installed by Tenant. Tenant's work will be subject to the requirements of
Article 12 hereof.
E. Notwithstanding anything hereinbefore provided, this Lease shall
terminate in the event (i) Landlord fails after exercising good faith efforts to
obtain all required governmental permits within 90 days from the date of the
casualty or (ii) unless Landlord fails to procure such insurance, Landlord's
insurance is insufficient to pay for reconstruction or does not cover the loss
unless in the later event Landlord elects to expend Landlord's own funds for
reconstruction and sends a written notice of such election to Tenant.
16. EMINENT DOMAIN.
A. The term "Eminent Domain," "Condemnation," "Taken," and the
like in this Section 16 includes taking for public or quasi-public use and
private purchases in place of condemnation by any authority authorized to
exercise the power of Eminent Domain.
B. If 25 percent or more of the Premises are taken by Eminent
Domain, this Lease shall automatically end on the earlier of: (i) the date title
vests; or (ii) the date Tenant is dispossessed by the condemning authority.
C. If the taking of a part of the Premises materially
interferes with Tenant's ability to continue its business operations in
substantially the same manner and space, then Tenant may end this Lease on the
earlier of: (i) the date when title vests; (ii) the date Tenant is dispossessed
by the condemning authority. If there is a partial taking and this Lease
continues, the Lease shall end as to the part taken and Rent and Additional Rent
shall xxxxx in proportion to the part of the Premises taken and Tenant's pro
rata share shall be equitably reduced.
D. If this Lease is canceled as provided in paragraphs "B", or
"C" above, then the Rent, additional rent and other charges shall be payable up
to the cancellation date. Landlord, shall promptly refund to Tenant any prepaid
Rent and security deposit, if any, less any sums then owed by Tenant to
Landlord. If this Lease is not canceled as provided for in this "16," the
Landlord at its expense shall promptly repair and restore the Premises to the
condition that existed immediately before the taking, except for the part taken
to render the Premises a complete architectural unit, but only to the extent of
the condemnation award received for the damage.
F. All compensation awarded for any such taking or conveyance,
whether for the whole or in part of the Demised Premises or otherwise, shall be
the property of the Landlord, whether such damages shall be awarded as
compensation for the diminution or total loss in value of the leasehold or of
the fee
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of the Demised Premises, and Tenant hereby assigns to Landlord all of Tenant's
right, title and interest in and to any such compensation. If the condemning
authority permits Tenant, in a proceeding separate and apart from Landlord's
proceeding, to seek recovery of its moving expenses, and if such recovery would
not diminish or affect Landlord's award otherwise payable to Landlord, then,
Tenant may, in such separate proceeding, seek recovery for its moving expenses.
17. WAIVER OF LANDLORD'S LIABILITY, TENANT'S OWN INSURANCE. The
Landlord and Tenant have agreed that Tenant shall bear the risk of bodily
injury, personal injury, or death or damage to property occasioned by events
occurring on or about the Demised Premises including damage to Tenant's
contents, leasehold improvements, trade fixtures, machinery, equipment,
furniture and furnishings in the Demised Premises regardless of the party at
fault. Tenant agrees, in addition to complying with Tenant's insurance
requirements, to take such steps as it may deem necessary and adequate for the
protection of itself and its agents, employees, invitees, and licensees, and the
property of the foregoing by insurance, as a self-insurer or otherwise. Landlord
shall not be liable for any injury to persons or damage to property located in
the Demised Premises resulting from any cause whatsoever, including, without
limitation, theft, fire, explosion, water, rain, snow, frost, steam, gas,
electricity, heat, cold, dampness, sewers, odors, noise, leaks from any part of
the building or the roof, the bursting or leaking of pipes, plumbing, electrical
wiring and equipment, and fixtures of all kinds, or by any act or neglect of
others, tenants or occupants of the building or any other person, or caused by
any manner whatsoever, nor shall Landlord be liable for any latent defects in
the building. Tenant hereby waives all right of recovery which it might have
against Landlord, Landlord's agents and employees for loss or damage to Tenant's
furniture, Tenant Improvements, inventory, furnishings, fixtures, chattels and
articles of personal property located on or in the demised premises,
notwithstanding that such loss or damage may result from the negligence or fault
of Landlord. Tenant shall obtain insurance policies covering its furnishings,
Tenant Improvements, inventory, fixtures, equipment and articles of personal
property (collectively, "Tenant's property") in the Demised Premises.
18. WAIVER OF SUBROGATION. Not withstanding anything contained in this
Lease to the contrary, Landlord and Tenant waive all rights to recover against
each other or against the officers, directors, shareholders, partners, joint
ventures, employees, agents, customers, invitees, or business visitors of each
other or of any other Tenant or occupant of the Building, for any loss or damage
arising from any cause covered by any insurance required to be carried by each
of them pursuant to this paragraph or any other insurance actually carried by
each of them. Landlord and Tenant will cause their respective insurers to issue
appropriate waiver of subrogation rights endorsements to all policies of
insurance carried in connection with the Building or the Premises or the
contents of either of them. Tenant will cause all other occupants of the
Premises claiming by, under, or through Tenant to execute and deliver to
Landlord a waiver of claims similar to the waiver in this paragraph and to
obtain such waiver of subrogation rights endorsement.
19. INDEMNIFICATION BY TENANT. Tenant shall indemnify Landlord against
all liability and expense including reasonable
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attorneys' fees actually incurred by Landlord by reason of:
(a) Any action by Tenant on or about the demised premises;
(b) Any use, non-use or maintenance of the demised premises;
(c) Any negligence of Tenant;
(d) Any injury or damage to any person or property occurring
on or in the demised premises; or
(e) Any failure by Tenant to perform its obligations under the
Lease.
Tenant's indemnification shall apply only to Landlord's actual damages
and not consequential damages.
20. BUILDING SERVICES. Except as otherwise specifically provided to the
contrary in this Lease, Landlord shall not be required to provide any services
to Tenant and Tenant agrees to pay for all charges for water, gas, electricity,
light, heat, power and sprinkler. Landlord shall not be liable in damages or
otherwise for any delay or failure in Tenant's receiving any such utilities and
in no event shall such delay or failure, regardless of cost, constitute an
eviction of Tenant or terminate this Lease. On the commencement date of the
Lease, the Premises will have water, gas, and electric service available. Gas
and electric shall be separately metered, and water and sprinkler shall be
allocated by Landlord as otherwise provided in this Lease.
Landlord will use good faith in exercising Landlord's responsibilities
as otherwise set forth in this Lease. If Landlord fails to pay a water or real
estate tax xxxx and/or act in good faith to repair the parking lot and/or pay
the real estate taxes, Tenant shall have the right after 30 days prior written
notice to Landlord, and subsequent failure in such event, to either pay the
utility or tax xxxx and/or undertake the repair to the parking lot and to seek
reimbursement from Landlord for such cost through a judicial proceeding. The
foregoing shall not create a right of offset by Tenant.
21. DEFAULTS AND REMEDIES.
A. If any one or more of the following events (hereinafter
called "events of default") occurs:
(i) Tenant shall default in payment of any
installments of rent or other sums required to be paid by Tenant under this
Lease, which default shall continue for ten (10) business days after written
notice thereof by Landlord to Tenant; or in the observance or performance of any
other covenant or provision of this Lease and such default continues for thirty
(30) days after notice of such default from Landlord (unless such default cannot
be cured within (30) days) and Tenant commences to cure such default within such
30 days and diligently proceeds to cure such default; or
(ii) If the Demised Premises shall be abandoned so
that there is a lack of heat and/or security; or
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(iii) Tenant shall make an assignment for the benefit
of creditors or shall assign or sublet, except as permitted hereunder; or
(iv) A voluntary petition is filed by Tenant under
any laws for the purpose of adjudication of Tenant as a bankrupt or the
extension of the time of payment, composition, arrangement, adjustment,
modification, settlement or satisfaction of the liabilities of Tenant, or the
reorganization of Tenant under the Bankruptcy Act of the United States or any
future laws of the United States having the same general purpose, or receivers
appointed for Tenant by reason of insolvency or alleged insolvency of Tenant; an
involuntary petition shall be filed against Tenant for such relief and shall not
be dismissed within sixty (60) days;
Then, Landlord, notwithstanding any other right or remedy it
may have under the Lease, at law or in equity, may terminate the Lease, by
notice to Tenant setting forth the basis therefor and effective not less than
five (5) days thereafter, whereupon, upon such effective date, the Lease shall
terminate (with the same effect as if such date were the date fixed herein for
the natural expiration of the Term), Tenant shall surrender the demised premises
to Landlord and Tenant shall have no further rights hereunder, but Tenant shall
remain liable as hereinafter provided. In such event, Landlord may, without
further notice, enter the demised premises, repossess the same and dispossess
Tenant and all other persons and property therefrom.
B. LANDLORD'S DAMAGES. If Landlord so terminates the Lease, Tenant
shall pay Landlord, as damages:
(i) A sum which represents any excess of (i) the
aggregate of the rent, impositions and additional rent for the balance of the
term if the Lease were not so terminated, over (ii) the net rental value of the
demised premises at the effective date of such termination, both discounted at
the rate of 5.25 percent per annum; or, at Landlord's option;
(ii) Sums equal to the rent, impositions and
additional rent, when the same would have been payable if not for such
termination, less any net rents received by Landlord from any reletting, after
deducting all costs incurred in connection with such termination and reletting
(but Tenant shall not receive any excess of such net rents over such sums).
Nothing herein contained shall place any duty or obligation on the part of
Landlord to mitigate Tenant's damages except, Landlord agrees that it will
engage the services of an exclusive broker to market the Premises for relet.
Landlord may commence actions or proceedings to recover such
damages or installments thereof at any lawful time. No provision hereof shall be
construed to preclude Landlord's recovery from Tenant of any other damages to
which landlord is lawfully entitled.
C. NONEXCLUSIVITY. No right or remedy herein conferred upon
Landlord is intended to be exclusive of any other right or remedy herein or by
law provided, but each shall be cumulative and subject to the grace and notice
provisions of subparagraph (A) of this Paragraph 21, in addition to every other
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right or remedy given herein or now or hereafter existing at law or in equity or
by statute.
D. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS. If Tenant
shall fail to pay any tax, pay for or maintain or deliver any of the insurance
policies or shall fail to make any other payment or perform any other act which
Tenant is obligated to make or perform under this Lease, then, Landlord after
thirty (30) days notice to Tenant may perform for the account of Tenant any
covenant in the performance of which Tenant is in default. Tenant shall pay to
the Landlord as additional rent, upon demand, any amount paid by Landlord in the
performance of such covenant in any amount which Landlord shall have paid by
reason of failure of Tenant to comply with any covenant or provision of this
Lease, including reasonable counsel fees incurred in connection with the
prosecution or defense of any proceedings instituted by reason of default of
Tenant, together with interest at the rate of two (2%) percent per month from
the thirtieth (30th) day following payment by Landlord until paid by Tenant.
E. WAIVER OF CERTAIN RIGHTS. Tenant hereby waives any and all
rights which it may have to request a jury trial in any action, proceeding or
counter-claim arising out of this Lease or its occupancy of or right to occupy
the premises. Tenant further agrees that in the event Landlord commences any
summary proceeding for non-payment of rent or possession of the premises,
whether under N.J.S.A. 2A:18, 53-61 or otherwise, Tenant will not interpose and
hereby waives all right to interpose any counterclaim (except if compulsory) of
whatever nature in any such proceeding. If Landlord applies any security as
payment of rent or additional rent, Tenant agrees that such application shall
not be deemed payment by Tenant under N.J.S.A. Section 2A:18, 53-61 unless
Tenant shall restore to the security deposit an amount equal to the amount
applied by Landlord as satisfaction of Tenant's rental obligation. Tenant
further waives any right to remove said summary proceeding to any other court or
to consolidate said summary proceeding with any other action, whether brought
prior or subsequent to the summary proceeding.
F. RIGHT OF RE-ENTRY. In the event that the termination of
this Lease is the result of any election exercised by Landlord pursuant to the
terms of this Article, the Landlord shall be entitled to the rights, remedies
and damages set forth in this Article and elsewhere in this Lease. The terms
"enter", "re-enter", "entry" or "reentry", as used in this Lease are not
restricted to their technical legal meaning.
G. PAYMENT OF LANDLORD'S COUNSEL FEES AND OTHER COSTS,
INTEREST. Tenant shall pay the Landlord as additional rent upon demand
Landlord's reasonable and actual counsel fees incurred by Landlord in connection
with the successful prosecution instituted by reason of default of Tenant in the
payment of Rent and/or Additional Rent, together with interest at the rate of
two percent (2%) per month from the thirtieth (30th) day following the date of
payment by Landlord until paid by Tenant, this covenant to survive the
expiration or sooner termination of this Lease.
22. SECURITY DEPOSIT/LANDLORD'S LIEN.
(a) Tenant has deposited with Landlord a security deposit in the amount
of $228,248.55. The security deposit shall be either
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cash and/or an irrevocable Letter of Credit in non-documentary form or any
combination of cash or Letter of Credit. If Tenant issues a Letter of Credit for
all or a portion of the security amount, the Letter of Credit shall be issued by
a bank or trust company located in the State of New Jersey or New York, as
designated by Tenant, but subject to the written approval of Landlord, which
approval shall not be unreasonably withheld. The Letter of Credit shall state
that it is payable unconditionally to Landlord or order, on demand upon
presentation of a site draft under the Letter of Credit before the expiration
date set forth in the Letter of Credit. If Tenant shall default under the Lease,
then Landlord may draw down on the Letter of Credit such amounts as Landlord
determines in Landlord's discretion are needed to correct the default and apply
the proceeds for that purpose, the balance to be retained by Landlord as part of
the cash security. Without effecting the non-documentary status of the Letter of
Credit and without involving the issuer of the Letter of Credit in any manner
effecting this Lease, Landlord shall not present a draft under the Letter of
Credit for payment unless (i) there is an event of default by Tenant whereupon
the funds paid on the Letter of Credit shall be applied by Landlord as provided
for under this Section in respect to cash security or (ii) the Letter of Credit
expires before the time fixed by this Section for return of the cash security
and at least thirty (30) days before the expiration of the Letter of Credit, a
renewal Letter of Credit shall not have been delivered to Landlord. Tenant must
keep renewing the Letter of Credit until the time specified for return of the
security unless cash is substituted therefore without any need on the part of
Landlord to give Tenant any notice that it is in default in supplying the
renewal, any provision to this Lease as to Notice of Default to Tenant to the
contrary notwithstanding. The employment of a Letter of Credit is an
accommodation to Tenant, and the object of the provisions hereof is not to
diminish Landlord's rights to deal with the security as would prevail if it were
cash. Without limiting the foregoing, the issuer of the Letter of Credit has no
interest in, or concern with this Lease or the performance under it by either
party. The issuer's sole obligation is to honor a site draft timely drawn and
presented. Landlord shall have the right to apply any part or all of said
security deposit to remedy any default of Tenant hereunder including but not
limited to payment of any fixed rent, additional rent, or other debts of Tenant
due to Landlord, repair of any damage to the Demised Premises caused by Tenant,
or any of its agents, employees, invitees or Licensees, or the reasonable
expense of rerenting and redecorating the Demised Premises in the event Tenant
vacates same prior to the expiration of the Term. If Landlord applies any part
of said security deposit to remedy any default of Tenant, Tenant shall, upon
demand, deposit with Landlord the amount so applied so that Landlord shall have
the full deposit on hand at all times during the term of this Lease. Provided
that Tenant has fully and faithfully complied with all the terms and conditions
of this Lease, Landlord shall return any security deposit then held by Landlord
to Tenant without interest on the later of the date set forth for the expiration
of the term of this Lease or thirty (30) days after surrender of the Demised
Premises by Tenant. Landlord may deliver the security deposit to the Purchaser
or other Transferee of the Landlord's interest in the Demised Premises. In the
event that such interest is sold or otherwise transferred and thereupon Landlord
shall be discharged from any further liability with respect to said security
obligations hereunder pertaining to the return of the security
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deposit to the extent so transferred provided the transferee assumes all of
Landlord's obligations with respect thereto. Landlord agrees to give notice to
Tenant of any assignment. Whenever an event of default or default is referred to
in this Article 22, it shall be an event of default after the expiration of any
permitted time to cure as set forth in Article 21 hereof.
(b) Landlord expressly waives any Landlord's lien against Tenant's
personal property or right of distraint it may have against Tenant.
23. LATE CHARGE/SERVICE FEE. If a payment of Basic Rent or Additional
Rent or any part thereof shall not be made on or prior to a date which is five
(5) business days after the date on which it is due and payable, a late charge
of $500.00 per day shall become due and payable to Landlord as liquidated
damages for the administrative costs and expenses incurred by Landlord by reason
of Tenant's failure to make prompt payment and said late charge shall be payable
by Tenant on the first day of the following month. No failure by Landlord to
insist upon the strict performance by Tenant of Tenant's obligations to pay late
charges shall constitute a waiver by Landlord of its rights to enforce the
provisions of this Section in any instance thereafter occurring, nor shall
acceptance of late charges be deemed to extend the time of payment of Basic Rent
or Additional Rent or any part thereof. The provisions of this Section 23 shall
not be construed in any way to extend the grace periods or notice periods as
otherwise provided for in this Lease. Notwithstanding the foregoing, in each
calendar year upon the first three occasions when Tenant shall fail to make
timely rent payments, Landlord agrees to give written notice to Tenant of such
failure prior to Landlord asserting the late charge. If Landlord gives such
notice and Tenant does not make payment within ten (10) business days
thereafter, then a late charge shall be imposed as hereinabove provided from the
date such payment was otherwise due and payable. After any such three instances
of serving notice on Tenant in any calendar year, Landlord need not give further
notice prior to asserting a late charge.
24. PARKING. Tenant shall have the right to the exclusive use of one
hundred fifty (150) assigned parking spaces at the property as shown on the
attached diagram. Tenant agrees that it and its employees and invitees shall not
park their automobiles in parking spaces allocated to others by Landlord and
shall comply with such reasonable rules and regulations for use of the parking
area as Landlord may from time to time prescribe. Upon request of Tenant,
Landlord shall enforce this provision against other Tenants or occupants of the
Building or Property, or at Landlord's election, permit Tenant to enforce this
provision. Landlord shall not be responsible for any damage or theft of any
vehicle in the parking area and, except as set forth herein, shall not be
required to keep parking spaces clear of unauthorized vehicles or to otherwise
supervise the use of the parking area. The parking spaces to be provided to
Tenant shall be used for parking only by vehicles no larger than full-sized
passenger automobiles, vans or pick-up trucks. Tenant shall not permit or allow
any vehicle that belongs to or is controlled by Tenant or Tenant's employees,
suppliers, shippers, customers or invitees to be loaded or parked in areas other
than those designated by Landlord for such activities. If Tenant permits or
allows any of the prohibited activities described in this
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Section, Landlord shall have the right, in addition to all other rights and
remedies that it may have under this Lease, to remove or tow away the vehicles
involved with prior notice to Tenant, and the cost thereof shall be paid to
Landlord as Additional Rent within ten (10) business days after delivery to
Tenant of bills therefor. All rules and regulations established by Landlord,
shall be reasonable, non-discriminatory, equitably enforced against all Tenants,
and shall not, conflict with the terms of this Lease. If other tenants of the
building park in the area designated hereunder for Tenant's exclusive use, then
Landlord will seek to obtain permission from HMDC for the purposes of erecting a
fence to minimize the parking by others on Tenant's parking area. If Landlord is
able to obtain the governmental permission to erect the fence, Landlord agrees
to do so.
25. EASEMENTS. Subject to paragraph 14: After reasonable notice, Tenant
shall permit Landlord or its designees to erect, use, maintain and repair pipes,
cables, conduits, plumbing, vents and wires, in, to and through the Premises, as
and to the extent that Landlord may now or hereafter deem to be necessary or
appropriate for the proper operation and maintenance of the building in which
the Premises are located or any other portion of the Building. All such work
shall be done, so far as practicable, in such manner as to avoid unreasonable
interference with Tenant's use of the Premises.
26. LANDLORD'S INABILITY TO PERFORM. This Lease and the obligation to
pay rent hereunder and perform all of the other terms to be performed by Tenant
hereunder shall not be affected, impaired or excused because Landlord is unable
to fulfill any of its obligations under this Lease.
27. MECHANIC'S LIEN. Tenant shall discharge any mechanic's lien filed
against the Property for work done or claimed to have been done for Tenant, or
materials furnished or claimed to have been furnished to Tenant within sixty
(60) days after Tenant's receipt of notice from Landlord thereof. Notice is
hereby given that Landlord is not liable for any work performed at the Premises
by or for Tenant and that no mechanic's lien arising therefrom shall attach to,
or affect the estate of, or interest of Landlord.
28. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. If Tenant defaults in
the observance or performance of any term to be observed or performed by Tenant
under this Lease, Landlord may after 30 days notice to Tenant, perform the same
for the account of Tenant and the expenses incurred with respect to such
performance together with attorneys' fees and interest thereon shall be deemed
additional rent hereunder and shall be paid by Tenant to Landlord on demand
therefor.
29. SUBORDINATION. At the option of Landlord, this Lease shall either
be:
(a) Subject and subordinate to all mortgages which may now or
hereafter affect the Demised Premises, and to all renewals, modifications,
consolidations, replacements or extensions thereof, provided however, that the
holder of any such mortgage shall execute with Tenant a Non-Disturbance
Agreement hereinafter described; or
(b) This lease shall be paramount in priority as an
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encumbrance against the Demised Premises with respect to the lien of any
mortgage which may now or hereafter affect the Demised Premises and to all
renewals, modifications, consolidations, replacements and extensions thereof.
(c) The non-disturbance agreement referred to above shall be
an agreement in recordable form between Tenant and the holder of such mortgage,
binding on such holder and on future holders of such mortgages, or an agreement
by such holder expressed in such mortgage, which shall provide in substance
that, so long as Tenant is not in default under any of the terms, covenants,
provisions or conditions of this Lease, neither such holder nor any other holder
of such mortgage shall name or join Tenant as a party-defendant or otherwise in
any suit, action or proceeding to enforce, nor will this Lease or the term
hereof be terminated (except as permitted by the provisions of this Lease) or
otherwise affected by enforcement of, any rights given to any holder of such
mortgage, pursuant to the terms, covenants or conditions contained in such
mortgage or any other document held by any holder or any rights given to any
holder as a matter of law. Upon request of holder of a mortgage to which this
Lease becomes subordinate, Tenant shall execute, acknowledge and deliver to such
holder an agreement to attorn to such holder as Landlord if such holder becomes
Landlord hereunder and/or execute, acknowledge and deliver to such holder an
agreement not to pay the Basic Rent for a period of more than one (1) month in
advance.
Landlord agrees to obtain from its mortgagee a Non-Disturbance
Agreement on such mortgagee's usual form within 45 days from the execution of
the date of this Lease, failing which Tenant may terminate this Lease.
30. LANDLORD'S RIGHT TO SHOW PREMISES. Throughout the term of this
Lease, upon prior reasonable notice, Landlord shall have the right to enter the
Premises at reasonable hours for the purpose of showing the same to prospective
purchasers or mortgagees of the Property, and during the last six (6) months of
the term for the purpose of showing the same to prospective tenants.
31. QUIET ENJOYMENT. Landlord covenants that if and so long as Tenant
pays the rent and additional rent and performs the covenants hereof, Tenant
shall peaceably and quietly have hold and enjoy the Premises for the term herein
mentioned, subject to the provisions of this Lease and to any mortgage
underlying lease or other agreements to which this Lease is subordinate.
32. TENANT'S ESTOPPEL. Tenant shall from time to time, upon not less
than ten (10) days prior written request by Landlord, execute, acknowledge and
deliver to Landlord a written statement, in form satisfactory to Landlord,
certifying that this Lease is unmodified and in full force and effect (or that
same is in full force and effect as modified, listing the instruments of
modification) the dates to which the rent and additional rent have been paid and
whether or not, to the best of Tenant's knowledge, Landlord is in default
hereunder (and if so, specifying the nature of the default), existence of any
offsets, counterclaims or defenses thereto on the Tenant's part against
Landlord, a statement as to the term commencement date and stated expiration
date, and as to any other matters as may reasonably be so requested. It being
intended that any such statement
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delivered pursuant to this Paragraph may be relied upon by a prospective
purchaser of Landlord's interest, or mortgagee of Landlord's interest, or
assignee of any mortgage upon Landlord's interest in any underlying lease or in
the Property. Landlord shall, from time to time, at the request of Tenant, upon
not less than 10 days prior written notice, execute, acknowledge and deliver to
Tenant a written statement which substantially contains provisions similar to
that otherwise required in the proceeding paragraph of this Section 31.
33. FINANCIAL INFORMATION. Tenant has furnished the Landlord with
Profit and Loss Statements and Balance Sheets for the fiscal years beginning
1999, prepared by a Certified Public Accountant. Tenant further agrees that it
will furnish to the Landlord a Certified Profit and Loss Statement and Certified
Balance Sheet prepared by a Certified Public Accountant for the preceding fiscal
year but Landlord shall not request such statement more than once in each
calendar year. If Tenant is a public corporation and files 10Ks and 10Qs, with
the SEC, then, Tenant shall not be subject for such years to the provisions of
this Section 33.
34. NO ABATEMENT OF RENT. Except as provided herein there shall be no
abatement, diminution or reduction of Fixed Rent, Expense Rent or Additional
Rent or other charges or other compensation due to the Landlord by Tenant or any
person claiming under it under any circumstances, including, but not limited to,
any inconvenience, discomfort, interruption of business or otherwise.
35. NOTICES. Any notice hereunder shall be sufficient if sent by
certified mail, return receipt requested, addressed given by the Landlord to the
Tenant to the attention of general counsel with a simultaneous copy to senior
vice president to the Premises with a copy to Tenant at the address set forth
above, or if given by the Tenant to the Landlord, at the address set forth in
Par. l(a) above, or at such other place as the Landlord may notify Tenant in
writing from time to time.
36. NO PERSONAL LIABILITY OF LANDLORD. Landlord (and, in case Landlord
shall be a joint venture, partnership, tenancy-in-common, association, limited
liability company or other form of joint ownership, the members of any such
joint venture, partnership, tenancy-in-common, limited liability company,
association or other form of joint ownership) shall have absolutely no personal
liability with respect to any provision of this Lease, or any obligation or
liability arising therefrom or in connection therewith. Tenant shall look solely
to the equity of the then owner of the demised premises in the demised premises
(or, if the interest of Landlord is the leasehold interest, Tenant shall look
solely to such leasehold interest) for the satisfaction of any remedies of
Tenant in the event of a breach by the Landlord of any of its obligations. Such
exculpation of liability shall be absolute and without any exception whatsoever.
37. SUBMISSION OF LEASE. Submission of this Instrument for examination
or signature by Tenant does not constitute a reservation of, or option to lease,
and it is not effective as a lease or otherwise until execution and delivery by
both Landlord and Tenant.
38. NO REPRESENTATIONS. Landlord has made no
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representations or promises with respect to the Premises or the Property except
as expressly contained herein. Tenant has inspected the Premises and agrees to
take the same in an "as is" condition, except as otherwise expressly set forth
herein, including Landlord's Work as contemplated by Section 3A hereof. Landlord
shall have no obligation, except as herein set forth, to do any work in and to
the Premises to render them ready for occupancy and use by Tenant.
39. CAPTIONS. The captions in this Lease are included for convenience
only and shall not be taken into consideration in any construction or
interpretation of this Lease or any of its provisions.
40. NO WAIVER. No waiver by Landlord of any breach by Tenant of any of
Tenant's obligations hereunder shall be a waiver of any subsequent breach of any
obligation , agreement or covenant, nor shall any forbearance by Landlord to
seek a remedy for any breach by Tenant be a waiver by Landlord of Landlord's
rights and remedies with respect to such or by subsequent breach.
41. RECORDING. The Tenant shall not record this Lease or a memorandum
hereof.
42. BROKER. Tenant represents that it did not deal with or negotiate
with any broker in connection with this Lease other than the Brokers listed in
Paragraph 1(g) and Xxxxxx Xxxx Xxxxxxx & Xxxxx, Inc. ("SBW&E"). Owner has agreed
to pay the Brokerage Commission due if any, to Alexander Summer, L.L.C., and
Xxxxxxx Xxxxxxxx Company, Inc. Tenant has agreed that as to SBW&E that Tenant
shall obtain from SBW&E either a release or other written documentation in form
reasonably satisfactory to Landlord and Tenant acknowledging that SBW&E has no
claim against either Landlord nor Tenant for brokerage commissions. Tenant
agrees to indemnify, protect, defend and hold Landlord, its partners, employees
and agents, the Xxxxxxx Xxxxxxxx Company, Inc. and Xxxxxxx Xxxxxxxx (the
"indemnified parties") harmless from and against all loss, liability, causes of
action, judgments, costs, claims, damages, suits and expense, including
attorneys' fees incurred by Landlord and/or an indemnified party arising out of
the claims of any broker, finder or similar agent, licensed or not, that it has
dealt with Tenant and claiming commission or compensation in connection with
this Lease except a commission to the Xxxxxxx Xxxxxxxx Company, Inc. and/or
Alexander Summer, L.L.C. or SBW&E. Tenant has been advised that Xxxxxxx Xxxxxxxx
and/or members of his family have an interest in, either as principals,
employees or agents, in and to the Xxxxxxx Xxxxxxxx Company, Inc., as well as
the Landlord as designated in this Lease. Tenant accordingly recognizes that the
Xxxxxxx Xxxxxxxx Company Inc., in acting as a broker, has been acting solely in
the interest of Landlord and not of Tenant and may be designated as the managing
agent for the Building by the Landlord. Landlord has a separate agreement with
Xxxxxxx Xxxxxxxx Company, Inc. pertaining to payment of brokerage commission,
and Xxxxxxx Xxxxxxxx Company shall be responsible for the fees to Alexander
Summer L.L.C.
43. GUARANTEES. The Landlord agrees to assign to the Tenant all
guarantees which Landlord has otherwise received from its materialmen and
suppliers as to the plumbing, heating, air conditioning and electrical systems
which are the Tenant's responsibility to maintain under the terms of this Lease.
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44. BINDING EFFECT. The provisions of this Lease shall apply to, bind
and inure to the benefit of Landlord and Tenant and their respective successors,
legal representative and permitted assigns, it being understood that the term
"Landlord" as used in this Lease means only the owner, or the mortgagee in
possession, or the lessee for the time being of the property so that in the
event of any sale or sales of the property or of any lease thereof, or if the
mortgagee shall take possession of the property, the Landlord named herein shall
be and hereby is entirely freed and relieved of all covenants and obligations of
Landlord hereunder accruing thereafter, provided the successor assumes all
liability under this Lease from and after the date of assignment. Landlord shall
upon conveyance deliver over to the Assignee, the security deposit if any, then
held by Landlord.
45. ACCEPTANCE. Neither the Landlord nor its agents have made any
representation with respect to the building, the land upon which it is erected,
or the demised premises, except as expressly set forth herein and no rights,
easements or licenses are acquired by the Tenant by implication or otherwise
except as expressly set forth in the provisions of this Lease. Except as
otherwise provided in this Lease, the taking of possession of the demised
premises by the Tenant shall be conclusive evidence that the Tenant shall have
accepted the same in an "as is" condition and that the demised premises and the
building were in good condition at the time of the commencement of the term. In
no event shall the Landlord be liable for any defect in such property or for any
limitation on its use.
46. EXTENSION OPTION.
A. FIRST EXTENSION PERIOD. Provided an event of default has
not occurred and is not then continuing, Tenant may extend the term of this
Lease for an additional period of five (5) years to commence on the first day of
June, 2010 and to terminate on May 31, 2015 at a fixed rental in accordance with
subparagraph (i) below and upon the terms, covenants and conditions of this
Lease as are in effect upon the expiration of the original term. Such option to
extend may be exercised only by Tenant given written notice to Landlord on or
before the later of (a) December 1, 2008, or (b) 30 days after Landlord reminds
Tenant in writing that Tenant is entitled to exercise this option, which notice
may not be given earlier than December 1, 2007 TIME BEING OF THE ESSENCE. Upon
Tenant giving such notice in accordance with this Lease, the term of this Lease
shall be extended automatically without the execution of an extension agreement.
If this Lease shall be terminated before the commencement of the extended term,
Tenant's option to extend the term of this Lease or its exercise thereof shall
be abrogated and rendered null and void. In default of such notice, Tenant's
option to extend this Lease beyond the end of the initial term shall terminate
and be deemed waived by Tenant, TIME BEING OF THE ESSENCE.
(i) If Tenant exercises its option to extend the term of this
Lease as provided above, then the Fixed Rent as provided in Article 4 shall be
amended to provide during such extended term that the fixed rental shall be
determined as follows: for the Lease year June 1, 2010 through May 31, 2011 a
sum computed by multiplying 103% times the fixed rent payable during the
previous 12 months; for the Lease year June 1, 2011 through May
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31, 2012 a sum computed by multiplying 103% times the fixed rent payable during
the previous Lease year; for the Lease year June 1, 2012 through May 31, 2013 a
sum computed by multiplying 103% times the fixed rent payable during the
previous lease year; for the Lease year June 1, 2013 through May 31, 2014 a sum
computed by multiplying 103% times the fixed rent payable during the previous
lease year; for the Lease year June 1, 2014 through May 31, 2015 a sum computed
by multiplying 103% times the fixed rent payable during the previous lease
year.(Fixed Rent for purposes of this paragraph is based on paragraph "1E" and
not "Exhibit Y").
B. SECOND EXTENSION PERIOD. Provided an event of default has not
occurred and is not then continuing, Tenant may extend the term of this Lease
for an additional period of five (5) years to commence on the first day of June,
2015 and to terminate on May 31, 2020 at a fixed rent in accordance with
subparagraph (i) below and upon the terms, covenants and conditions of this
Lease as are in effect upon the expiration of the First Extension Period. Such
option to extend may be exercised only by Tenant given written notice to
Landlord on or before the later of (a) December 1, 2013, or (b) 30 days after
Landlord reminds Tenant in writing that Tenant is entitled to exercise this
option, which notice may not be given earlier than December 1, 2012, TIME BEING
OF THE ESSENCE. Upon Tenant giving such notice in accordance with this Lease,
the term of this Lease shall be extended automatically without the execution of
an extension agreement. If this Lease shall be terminated before the
commencement of the extended term, Tenant's option to extend the term of this
Lease or its exercise thereof shall be abrogated and rendered null and void. In
default of such notice, Tenant's option to extend this Lease beyond the end of
the First Extension Period shall terminate and be deemed waived by Tenant, TIME
BEING OF THE ESSENCE.
(i) If Tenant exercises its option to extend the term of this
Lease as provided above, then the Fixed Rent as provided in Article 4 shall be
amended to provide during such extended term that the fixed rent shall be
determined as follows: for the Lease year June 1, 2015 through May 31, 2016 a
sum computed by multiplying 103% times the fixed rent payable during the
previous 12 months; for the Lease year June 1, 2016 through May 31, 2017 a sum
computed by multiplying 103% times the fixed rent payable during the previous
Lease year; for the Lease year June 1, 2017 through May 31, 2018 a sum computed
by multiplying 103% times the fixed rent payable during the previous lease year;
for the Lease year June 1, 2018 through May 31, 2019 a sum computed by
multiplying 103% times the fixed rent payable during the previous lease year;
for the Lease year June 1, 2019 through May 31, 2020 a sum computed by
multiplying 103% times the fixed rent payable during the previous lease year.
47. MISCELLANEOUS.
A. RULES AND REGULATIONS: Tenant shall comply with the Rules
and Regulations attached hereto and as same may be amended or promulgated by
Landlord from time to time provided Tenant receives notice thereof and they are
non-discriminatory and equitably enforced and not in conflict with the Lease.
B. NO UNDERGROUND STORAGE TANKS: Tenant covenants that it
will, at no time, install any underground storage tanks
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on the Demised Premises. A breach of this covenant shall be deemed a default
under the Lease, and Landlord shall have the right to terminate the Lease upon
the happening of such event. Landlord represents to its best knowledge that as
of the commencement date of this Lease there are no underground storage tanks at
or on the Demised Premises.
C. REFUSE REMOVAL: Tenant shall be responsible for removal of
its own trash. Tenant shall engage the services of a refuse hauler, as may be
approved by Landlord, such approval not to be unreasonably withheld.
D. LANDLORD'S CONSENT: If Tenant believes that Landlord has
unreasonably withheld its consent and/or delayed its consent, then Tenant's
shall have no right to seek money damages.
E. CORPORATE AUTHORITY: If Tenant is a corporation, said
corporation represents and warrants that it is duly authorized to execute and
deliver this Lease in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the By-Laws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms.
F. ALTERNATIVE DISPUTE RESOLUTION: Landlord and Tenant shall
attempt to settle any claim or controversy arising out of it through
consultation and negotiation in the spirit of mutual friendship and cooperation.
If such attempts fail, then the dispute shall first be submitted to a mutually
acceptable neutral advisor for mediation, fact-finding or other form of
alternate dispute resolution. Neither of the parties may unreasonably withhold
acceptance of such an advisor, and his or her selection will be made within
thirty (30) days after notice by the other party demanding such mediation. The
cost of such mediation or any other alternate dispute resolution agreed upon by
both parties shall be shared equally by Landlord and Tenant. Any dispute which
cannot be so resolved between the parties within ninety (90) days of the date of
the initial demand by either party for such mediation shall be finally
determined by the courts. The use of such a procedure shall not be construed to
affect adversely the rights of either party under the doctrines of laches,
waiver or estoppel. And nothing in this paragraphs shall prevent either party
from resorting to judicial proceedings if (a) good faith efforts to resolve a
dispute under these procedures have been unsuccessful or (b) interim resort to a
court is necessary to prevent serious and irreparable injury to a party or to
others.
G. CONFLICT. As otherwise expressed in paragraph 42, "Broker,"
Xxxxxxx Xxxxxxxx, Xxxxxx Xxxxxxxxx Xxxxxxxx and others have an interest in or
are an agent of the Landlord, the Xxxxxxx Xxxxxxxx Company, Inc., Xxxxxxx
Xxxxxxxx Management Company, Xxxxxx Construction and other entities associated
with Landlord and used by Landlord for the construction, management and renting
of the Building in which the Demised Premises are located. Tenant by executing
this Lease acknowledges that Tenant has been informed of the relationship
between the individuals and the various entities representing Landlord, and
those individuals and entities do not represent the interest of the Tenant.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals
or caused these presents to be signed by their proper corporate officers, and
their proper corporate seal to be hereto affixed, in the day and year first
above written.
WITNESS: XXXXXXXX XXXXXXXXXX XXXXXXX, Xxxxxxxx
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxxxx Xxxxxxxx
/s/ [ILLEGIBLE]
ATTEST: MOVADO GROUP, INC.,
Tenant
/s/ Xxxxxxx X. Xxxxxx By:/s/ Xxxxxxx X. Xxxx
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STATE OF NEW JERSEY )
) SS.:
COUNTY OF BERGEN )
BE IT REMEMBERED, that on this 22 day of May, 2000, before me, the
subscriber, personally appeared Xxxxxxx Xxxxxxxx & Xxxxxxx Xxxxxx, who, I am
satisfied, is the person named in and who executed the within Instrument, and
thereupon he acknowledged that he signed, sealed and delivered the same as his
act and deed, and the act and deed of the said FORSGATE INDUSTRIAL COMPLEX, a
partnership, for the uses and purposes therein expressed.
/s/Xxxxxx Xxxxxx
Notary Public of New Jersey
STATE OF NEW JERSEY )
) SS.
COUNTY OF BERGEN )
BE IT REMEMBERED, that on this 22 day of May, 2000, before me the
subscriber, a notary public, personally appeared Xxxxxxx Xxxx who, I am
satisfied, is the person who signed the within instrument as Executive VP
Finance/Administration of Movado Group, Inc. the corporation named therein and
he thereupon acknowledged that the said instrument was signed, sealed with the
corporate seal and delivered by her as such officer and is the voluntary act and
deed of the corporation.
Xxxxxxx Xxx Xxxxxxxx
Notary Public of New Jersey
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EXHIBIT A
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF LEASE
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and public parts of the Property shall not be obstructed or
encumbered by Tenant or used by Tenant for any purpose other than ingress and
egress to and from the Premises. The Tenant will not use or permit to be used
the sidewalk area by motor vehicles, and will limit such vehicles to the
driveway and parking areas.
2. Tenant shall not permit debris, paper or the like on the parking
lot, lawn or landscaped areas.
3. Tenant shall not store any material, supplies, semi-finished
products or anything whatsoever outside of the Building. In the event Tenant
requires temporary outside storage for any reason whatsoever, Tenant must first
obtain written approval of Landlord.
4. Tenant shall, at its cost and expense, use a pest extermination
service so as to keep the Premises free of same.
5. Tenant will undertake a general maintenance program, either through
its own employees or outside contractors which shall provide amongst other
things for general and periodic window cleaning for the Premises, when
necessary.
6. Tenant shall not use or permit to be used any loud speaker or sound
amplifier which may be heard outside of the leased property.
7. Tenant shall not erect a ground sign or building sign without prior
written consent of Landlord, which consent shall not be unreasonably withheld or
delayed.
8. The Tenant shall advise Landlord, if Tenant's S.I.C. number is
changed from that otherwise indicated in paragraph 1(j).
9. Tenant shall, at all times, supply sufficient heat to assure that
the Building is kept at a temperature greater than fifty (50) degrees.
10. All movable material handling equipment used within the Building
shall use only soft rubber wheels and no such equipment shall use hard rubber,
steel or plastic wheels.
11. Tenant agrees that Tenant will supply the names, addresses and
telephone numbers of at least two representatives of the Tenant who can be
contacted in the event of an emergency. Tenant will keep such "emergency list"
current.
Upon notice by the Landlord to the Tenant of a breach of any of the
rules and regulations Tenant shall, within thirty (30) days thereafter, comply
with such rule and regulation and in the event Tenant shall not comply, then the
Landlord may at its discretion either: (1) cure such condition and add any
reasonable cost and expense incurred by the Landlord therefor to the next
installment of rent due under this Lease and the Tenant shall then pay such
amount as additional rent hereunder; or (2)
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treat such failure on the part of the Tenant to remedy such condition as a
material default of this Lease on the part of the Tenant hereunder.
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EXHIBIT "B"
LANDLORD'S WORK
1. Landlord will paint and carpet the existing approximate 5,000 RSF
office - Movado's choice of color from Landlord's standard selection. Landlord
will install new 2' x 4' ceiling tile system and office lighting (75' candles).
2. Landlord will clean and seal warehouse floor.
3. Landlord will provide paved, striped parking for 150 cars.
4. Landlord will block-up demising wall between tenants.
5. Landlord will provide a parking lot "striped to code", "with
adequate safety lighting", "sloped for adequate drainage".
6. Property will be Landscaped.
7. Landlord will guarantee the underground tank has been removed in
accordance with NJDEP and HMDC policies and procedures.
8. Landlord will remove the existing compactor, and block-up the wall.
9. Landlord will remove shed in parking lot.
10. Landlord will replace/repair and repaint existing steps and
landings at exterior personnel entrances.
11. Landlord will remove block interior shed against rear wall, leaving
floor and wall smooth.
12. Landlord will remove selected overhead doors and block-up the
openings.
13. Landlord will repair/replace existing personnel doors in warehouse.
14. Landlord will provide lighting in parking lot areas, intensity
pursuant to code.
15. Landlord has installed warehouse lighting (15' candles).
16. Landlord has installed a new heating system.
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EXHIBIT "X"
DESCRIPTION OF PREMISES
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EXHIBIT "Y"
DEFERRED RENT SCHEDULE
Rent Option B
1 Dec. 1 2000 - May 2001 $381,913.38 $63,652.23
2 June 1 2001 - May 2002 $784,818.74 $65,401.56
3 June 1 2002 - May 2003 $806,810.38 $67,234.20
4 June 1 2003 - May 2004 $828,802.02 $69,066.84
5 June 1 2004 - May 2005 $851,793.28 $70,982.77
6 June 1 2005 - May 2006 $875,784.16 $72,982.01
7 June 1 2006 - May 2007 $899,775.04 $74,981.25
8 June 1 2007 - May 2008 $924,765.54 $77,063.80
9 June 1 2008 - May 2009 $950,755.66 $79,229.64
10 June 1 2009 - May 2010 $977,745.40 $81,478.78
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LANDLORD: FORSGATE INDUSTRIAL COMPLEX
TENANT: MOVADO GROUP, INC.
PREMISES: 000 XXXXX XXXXXX, XXXXXXXXX, XX
PARAGRAPH 1 REFERENCE DATA
PARAGRAPH 2 DESCRIPTION OF PREMISES
PARAGRAPH 3 LANDLORD'S WORK
PARAGRAPH 4 FIXED RENT
PARAGRAPH 5 EXPENSE RENT
PARAGRAPH 6 INSURANCE
PARAGRAPH 7 USE
PARAGRAPH 8 REPAIRS
PARAGRAPH 9 ASSIGNING AND SUBLETTING
PARAGRAPH 10 CONFORM TO LAW
PARAGRAPH 11 TENANT'S COMPLIANCE WITH ENVIRONMENTAL LAWS
PARAGRAPH 12 ADDITIONAL COVENANTS
PARAGRAPH 13 EXPIRATION OF TERM -
RETURN OF PREMISES IN GOOD CONDITION
PARAGRAPH 14 ACCESS TO PREMISES
PARAGRAPH 15 RESTORATION OF DEMISED PREMISES IN THE EVENT
OF FIRE OR OTHER CASUALTY
PARAGRAPH 16 EMINENT DOMAIN
PARAGRAPH 17 WAIVER OF LANDLORD'S LIABILITY,
TENANT'S OWN INSURANCE
PARAGRAPH 18 WAIVER OF SUBROGATION
PARAGRAPH 19 INDEMNIFICATION BY TENANT
PARAGRAPH 20 BUILDING SERVICES
PARAGRAPH 21 DEFAULTS AND REMEDIES
PARAGRAPH 22 SECURITY DEPOSIT
PARAGRAPH 23 LATE CHARGE/SERVICE FEE
PARAGRAPH 24 PARKING
PARAGRAPH 25 EASEMENTS
PARAGRAPH 26 LANDLORD'S INABILITY TO PERFORM
PARAGRAPH 27 MECHANIC'S LIEN
PARAGRAPH 28 LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT
PARAGRAPH 29 SUBORDINATION
PARAGRAPH 30 LANDLORD'S RIGHT TO SHOW PREMISES
PARAGRAPH 31 QUIET ENJOYMENT
PARAGRAPH 32 TENANT'S ESTOPPEL
PARAGRAPH 33 FINANCIAL INFORMATION
PARAGRAPH 34 NO ABATEMENT OF RENT
PARAGRAPH 35 NOTICES
PARAGRAPH 36 NO PERSONAL LIABILITY OF LANDLORD
PARAGRAPH 37 SUBMISSION OF LEASE
PARAGRAPH 38 NO REPRESENTATIONS
PARAGRAPH 39 CAPTIONS
PARAGRAPH 40 NO WAIVER
PARAGRAPH 41 RECORDING
PARAGRAPH 42 BROKER
PARAGRAPH 43 GUARANTEES
PARAGRAPH 44 BINDING EFFECT
PARAGRAPH 45 ACCEPTANCE
PARAGRAPH 46 EXTENSION OPTION
PARAGRAPH 47 MISCELLANEOUS
EXHIBIT "A" RULES AND REGULATIONS
EXHIBIT "B" LANDLORD'S WORK
EXHIBIT "X" DESCRIPTION OF PREMISES
EXHIBIT "Y" DEFERRED RENT SCHEDULE
