Exhibit 10.61
6/21/95
LEASE-1/SG7907
XXXXXX AND XXXXXXX
00 XXXXX XXXXXX
XXXXX XXXX, XX 00000
TABLE OF CONTENTS
LANDLORD: FORSGATE INDUSTRIAL COMPLEX
TENANT: XXXX PHILIPPE FRAGRANCES, INC.
PREMISES: 00 XXXXXX XXXX, XXXXX XXXXXXXXX, XXX XXXXXX
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ARTICLE 1 DEMISED PREMISES - TITLE - TERM OF LEASE
ARTICLE 2 USE OF PREMISES
ARTICLE 3 RENT AND OTHER CHARGES
ARTICLE 4 TAXES
ARTICLE 5 COMMENCEMENT DATE OF LEASE
ARTICLE 6 INSURANCE TO BE PROVIDED BY TENANT
ARTICLE 7 RESTORATION OF DEMISED PREMISES IN THE EVENT
OF FIRE OR OTHER CASUALTY
ARTICLE 8 REPAIRS, MAINTENANCE, UTILITIES,
CHANGES AND ALTERATIONS, COMPLIANCE
WITH ORDERS, ETC., EASEMENTS
ARTICLE 9 LEASE PROVISION AGAINST ASSIGNMENT, MORTGAGE
OR SUBLET BY TENANT WITHOUT LANDLORD'S PERMISSION
- LANDLORD'S RIGHT OF RECAPTURE
ARTICLE 10 LANDLORD'S REMEDIES IN EVENT OF TENANT'S
DEFAULT OR BANKRUPTCY
ARTICLE 11 SUBORDINATION OF LEASE TO
MORTGAGE ON THE DEMISED PREMISES
ARTICLE 12 EXONERATION OF INDIVIDUALS
ARTICLE 13 COVENANT AGAINST LIENS
ARTICLE 14 EMINENT DOMAIN
ARTICLE 15 ACCESS TO PREMISES
ARTICLE 16 NOTICES
ARTICLE 17 ACCEPTANCE
ARTICLE 18 QUIET ENJOYMENT - CONVEYANCE BY LANDLORD
ARTICLE 19 ESTOPPEL CERTIFICATE
ARTICLE 20 FINANCIAL INFORMATION
ARTICLE 21 NO ABATEMENT OF RENT
ARTICLE 22 NONRECORDATION OF LEASE
ARTICLE 23 SURRENDER
ARTICLE 24 SECURITY
ARTICLE 25 MISCELLANEOUS
SCHEDULE A DEMISED PREMISES
SCHEDULE B RULES AND REGULATIONS
LEASE
THE INDENTURE OF LEASE (hereinafter called "LEASE") dated the 10th day of
July, 1995, by and between FORSGATE INDUSTRIAL COMPLEX, a Limited Partnership,
with offices at c/o Xxxxxxx Xxxxxxxx Co., Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxx Xxxxxx 00000, (hereinafter called "LANDLORD"), and XXXX PHILIPPE FRAGRANCES,
INC., a corporation of the State of Delaware having its principal office at 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called "TENANT").
W I T N E S S E T H:
ARTICLE 1
DEMISED PREMISIS - TITLE - TERM OF LEASE
Section 1.01 Demised Premises. Landlord, for and in
consideration of the rents, covenants and agreements hereinafter
reserved, mentioned and contained on the part of the Tenant, its
successors and assigns, to be paid, kept and performed, has demised
and leased, and by these presents does demise and lease, unto the
Tenant, and the Tenant does hereby take and hire upon subject to
the conditions hereinafter expressed, the real property together
with the building thereon (the "Building"), commonly known as 60
Xxxxxx Road, in the Township of South Brunswick, County of
Middlesex and State of New Jersey, as more particularly described
on Schedule "A" (hereinafter sometimes referred to as "Demised Premises").
Section 1.02 Title. At the commencement of the term of the
Lease ("Term"), Landlord shall own the fee title to the Demised
Premises, subject to restrictions of record, if any, zoning
regulations affecting such Demised Premises and any state of facts
shown on an accurate survey or as a visual inspection of the
premises would disclose, provided the same does not prohibit or
unduly restrict the use of the premises for warehousing and
offices, as presently constructed.
Section 1.03 Term of Lease. To have and to hold unto the
Tenant, its permitted successors and permitted assigns, for a Term
of eight (8) years, commencing on the commencement date as defined
in ARTICLE 5 hereof and ending eight (8) years thereafter, unless
sooner terminated, plus the number of days required, if any, to
have such Term expire on the last day on the calendar month.
Section 1.04 Acknowledgment of Commencement. Upon the
commencement of the Term, the parties shall execute and exchange
a recordable Lease instrument, specifying the commencement and expiration
dates of the Term.
Section 1.05 Definitions. (i) As used herein, "Hazardous
Substance" includes any pollutant, dangerous substance, toxic
substances, any hazardous chemical, hazardous substance, hazardous
pollutant, hazardous waste or any similar term as defined in or
pursuant to the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, 42 U.S.C. Section 9601, et seq. ("CERCLA");
Industrial Site Recovery Act, N.J.S.A. 13:1K-6, et seq. ("ISRA");
the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-
23.11, et seq. ("Spill Act"); the Solid Waste Management Act,
N.J.S.A. 13:1E-1, et seq. ("SWMA"); the Resource Conservation and
Recovery Act, 42 U.S.C. Section 6901, et seq. ("RCRA"); the New Jersey
Underground Storage of Hazardous Substances Act, N.J.S.A. 58:10A-
21, et seq. ("USTA"); Clean Air Act, 42 U.S.C. Section 7401, et seq.
("CAA"); Air Pollution Control Act, N.J.S.A. 26:2C-l, et seq.
("APCA"); New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-
1, et seq. ("WPCA"); and any rules or regulations promulgated
thereunder or in any other applicable federal, state or local law,
rule or regulation dealing with environmental protection. It is
understood and agreed that the provisions contained in the Lease
shall be applicable notwithstanding whether any substance shall not
have been deemed to be a hazardous substance at the time of its use
or Release but shall thereafter be deemed to be a Hazardous Substance.
(ii) "Release" means spilling, leaking, disposing, pumping,
pouring, discharging, emitting, emptying, ejecting, depositing,
injecting, leaching, escaping or dumping, however defined, and whether
intentional or unintentional, of any Hazardous Substance.
(iii) "Notice" means any summons, citation, directive,
order, claim, litigation, investigation, proceeding, judgment, letter or
other communication, written or oral, actual or threatened, from the New
Jersey Department of Environmental Protection ("NJDEP"), the United
States Environmental Protection Agency ("USEPA"), the United States
Occupational Safety and Health Administration ("OSHA") or other federal,
state or local agency or authority, or any other entity or any
individual, concerning any act or omission relating or which may result
in the Releasing of Hazardous Substances into the waters or onto the
lands of the State of New Jersey, or into the waters outside the
jurisdiction of the State of New Jersey, or into the environment.
(iv) "Environmental Laws" mean any and all present or future
laws, statutes, ordinances, regulations and executive orders, federal
and state and local in any related to the protection of human health or
the environmental, including, but not limited to, (i) CERCLA; (ii) RCRA;
(iii) ISRA; (iv) Spill Act; (v) USTA; (vi) WPCA; (vii) APCA; (viii)
SWMA; (ix) CAA; and (x) USTA.
ARTICLE 2
USB OF PREMISES
Section 2.01 Use. The Tenant shall use and occupy the
Demised Premises for offices, warehousing and distribution of
cosmetics, fragrances and personal care items, and for repackaging
of cosmetics, fragrances and personal care items only, and for no
other purpose. If Tenant desires to expand or change the
aforementioned uses, Tenant shall not do so without first obtaining
Landlord's written consent. Landlord agrees not to unreasonably
withhold its consent, if the use is for warehousing only of
products which are consumer products, and are non-hazardous and are
not toxic pollutants. In all other events, Landlord may, for no
reason or for any reason, not consent to a change or expansion of
use. It being a consideration of this Lease, that the use of the
premises shall be limited, to those uses as otherwise hereinbefore
specified, and Tenant may not, use the premises for manufacturing
or the warehousing of any product which is a hazardous substance
as that term is more particularly hereinafter defined. Such use
does 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 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 Demised Property, in a
manner which will in any way violate any Certificate of Occupancy
affecting the Demised Premises, or make void or voidable any
insurance then in force with respect thereto, or which will make
it impossible to obtain fire or other insurance required to be
furnished by the Tenant hereunder, at regular rates, or which will
cause or be likely to cause structural damage to the Building or
any part thereto, 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. Except
for the products contemplated by the permitted uses in this Section
2.01, Tenant shall not, during the term of this Lease 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 storage of products contemplated by the permitted uses
in this Section 2.01 shall during the term of this Lease be in
compliance with all applicable laws and regulations, whether
federal, state or local, and whether environmental or otherwise.
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. In the event the Tenant
cannot obtain the continued certificate of occupancy for the uses
of the Demised Premises described in the first sentence of this
Section 2.01, then in such event, Tenant shall have the right,
prior to Tenant taking occupancy, to terminate this Lease; such
right of termination in all events to be exercised no later than
ten (10) days from the date Landlord advises Tenant, TIME BEING OF
THE ESSENCE, that the municipality will not issue the continued
Certificate of Occupancy.
Tenant acknowledges and recognizes that Tenant will have
to undertake ordinary and usual improvements required by the
municipality, such as, but not limited to, in rack sprinklers, exit
areas marked on the floor, exit signs, etc. If Tenant is required
to undertake other improvements in order to obtain the continued
certificate of occupancy, such improvements specifically required
by the municipality by reason of Tenant's peculiar use, and if the
collective cost thereof is more than FIVE THOUSAND and NO/100 Dollars
($5,000.00), then Tenant shall have the right to terminate this Lease,
such right to be exercised, in all events, within the ten (10) day time
period as heretofore provided, TIME BEING OF THE ESSENCE.
ARTICLE 3
RENT AND OTHER CHARGES
Section 3.01 Net Basic Rent. The Tenant shall pay to the
Landlord as net annual basic rent (the "Basic Rent") for the
Demised Premises during the Term the sum of SIX HUNDRED EIGHTY-
FOUR THOUSAND and NO/100 Dollars ($684,000.00) per annum, payable
in equal monthly installments of FIFTY-SEVEN THOUSAND and NO/100
Dollars ($57,000.00) due and payable the first day of each and
every month, in advance, except, the first month's rent which shall
be paid upon the execution hereof. Said rent and all payments due
hereunder shall be paid to the Landlord at its address hereinabove
first specified, or as the Landlord may otherwise direct in
writing. It is the intention of the parties that the Basic Rent
shall be net to the Landlord, so that this Lease shall yield to the
Landlord, the Basic Rent during the Term and that all costs,
expenses and obligations of every kind and nature whatsoever
relating to the Demised Premises shall be paid by the Tenant,
except as otherwise specifically provided in this Lease. Whenever
the rent as hereinabove set forth is stated as an annual rent, and
if there shall be less than twelve (12) months in any year, the
rate therein referred to shall be the "annualized rate".
Section 3.02 First Month Proration. If the Term shall begin
on a date other than the first day of a calendar month, the Basic
Rent for the initial month of the Term shall be prorated.
Section 3.03 Rent Credit to Tenant. Landlord, as an
accommodation to Tenant to reimburse Tenant for its initial
moving/rental expenses, will extend a credit to Tenant in an amount
equal to the lesser of FORTY-TWO THOUSAND and NO/100 Dollars
($42,000.00) or, if less, the net monthly rent paid by Tenant in
its present leased premises to be applied against the rent accruing
as of the second month of the Lease Term.
Section 3.04 Additional Rent. All payments other than Basic
Rent Tenant is required to make pursuant to this Lease shall
constitute additional rent ("Additional Rent") and, if Tenant
defaults in any such payment 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 Basic Rent.
Section 3.05 Late Charge. 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) 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 3.05 shall not be construed in any way to extend the
grace periods or notice periods as otherwise provided for in this
Lease. In the first three (3) instances in each calendar year when
Landlord is asserting a late charge, Landlord agrees that, prior
to asserting the late charge, Landlord shall give to Tenant five
(5) days' prior written notice and Tenant shall have five (5) days
after receipt of such notice to make payment. If Tenant fails to
make payment within five (5) days after receipt of written notice
by Landlord, then the late charge shall be effective. Landlord's
obligation to give notice shall only accrue in the first three (3)
instances that failure to pay occurs in each calendar year, and not
thereafter.
Section 3.06 Additional Security Deposit. In the event a
late charge is payable hereunder pursuant to Section 3.05, whether
or not collected, for three (3) installments of rent or other
monetary obligations of Tenant under the terms of this Lease during
any twelve-month period, Tenant shall pay to the Landlord, if
Landlord shall so request, in addition to any other payments
required under this Lease, an additional security deposit as
estimated by Landlord in an amount equal to rent and additional
rent for three (3) months. Such additional security shall be
established to insure payment when due before delinquency of all
rent and additional rent, and shall be held pursuant to the
security clause provisions as provided in Article 24 hereof. Such
additional security deposit shall be returned to the Tenant upon
termination of the Lease, less any amount of the security deposit
so expended by Landlord, to cure Tenant's defaults hereunder,
together with interest as otherwise provided in Article 24 hereof.
Section 3.07 No Abatement, Deduction, or Set-off etc. There
shall be no abatement, diminution or reduction of Basic 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, except as
specifically provided herein.
Section 3.08 Common Area Charge. The Premises to be demised
are located within an office/industrial park known as Forsgate
Industrial Complex. Landlord, from time to time, will incur
various expenses to maintain the Park for the benefit of all
tenants. The Tenant shall pay three percent (3.0%) ("Tenant's
Share") of the total costs and expenses incurred by Landlord in
maintaining certain areas of the Park for items as follows: (i)
the cost of maintaining Park signs and tenant directories; (ii) the
cost of water, electricity and other utilities used in connection
with the operation and maintenance of the Park and not part of any
area demised to a tenant; (iii) the cost of insurance, including
general liability insurance, which is carried by Landlord and is
usual and customary under the circumstances; (iv) other costs
reasonably incurred by Landlord to maintain the Park or costs
incurred for services benefiting all tenants or occupants of the
Park which, in the reasonable opinion of Landlord, are a service
desirable to operate the Park. The cost of maintaining common
facilities used by all tenants, such as common grass areas,
boulevard dividers, curbing and lighting. Tenant shall pay to the
Landlord as an additional charge, annually, Tenant's Share of such
common Park expenses for each calendar year. At the end of each
calendar year, Landlord shall furnish Tenant with a statement
called "Landlord's Expense Statement" setting forth in reasonable
detail the common area Complex expenses for such calendar year.
Tenant's share of such charges shall not exceed, on an annual
basis, FIVE THOUSAND TWO HUNDRED FIFTY and NO/100 Dollars
($5,250.00), such sum adjusted to be increased per annum by the
percentage increase, if any, of the cost of living from January 1,
1996 to December 31 of the year for which the xxxx is rendered by
Landlord to Tenant. The cost of living increase shall be measured
by the Consumer Price Index for "All Items", the "Index" issued by
the U.S. Department of Labor. In the event the Index is no longer
issued or available or commonly used at the time a determination
is to be made, the Landlord shall designate another index or
criteria which will accurately reflect the increase in the cost of
living which has occurred for the time period so to be determined.
Tenant's Share of common area charges for Forsgate
Industrial Complex, which shall become payable by Tenant during the
calendar year in which this Lease commences or ends, shall be
apportioned between Landlord and Tenant in accordance with the
portion of such calendar year within the Term.
ARTICLE 4
TAXES
Section 4.01 Real Estate Taxes. Tenant shall, throughout the
Term, pay directly to the appropriate taxing authorities, at least
one (1) day before the same shall become due and payable, without
interest or penalty, all water and sewer rents, rates and charges,
licenses and permit fees, real estate taxes and assessments levied,
assessed, confirmed, imposed upon or against the Demised Premises
or any part thereof, including those presently in effect as well
as those which may be enacted in the future (collectively the
"Impositions"). Tenant shall forward copies of all receipted bills
or statements therefor to Landlord upon receipt thereof from said
taxing authorities.
Section 4.02 Other Taxes and Payment Thereof.
(a) Other Taxes Arising Out of Tenant's Use and
Occupancy. In addition to the Impositions, Tenant shall pay, at
least one (1) days prior to its due date, each and every item of
expense in the nature of a tax or charge or assessment for which
Landlord is or shall become liable by reason of its estate or
interest in the Demised Premises, or any part thereof, including,
without limiting the generality thereof, all personal property
taxes, gross receipts taxes, use and occupancy taxes, and excise
taxes levied or assessed against Landlord or Tenant by reason of
the use, occupancy or any other activity by the Tenant in connec-
tion with the Demised Premises or any part thereof, or which may
be levied or assessed or imposed upon any rents or rental income,
as such, payable to Landlord or payable to Tenant from any
sub-Tenant in connection with the Demised Premises or any part
thereof. Tenant shall forthwith forward copies of receipted bills
or cancelled checks therefor to Landlord evidencing the payment
thereof.
(b) Payment of Bills. In the event that the bills or
statements issued by the appropriate taxing authorities in respect
of any Imposition or tax required to be paid by Tenant pursuant to
paragraph (a) of this Section 4.02 shall be forwarded directly to
Landlord, Landlord shall promptly forward the same to Tenant, and
Tenant shall pay the same before expiration of the time period set
forth above or within ten (10) days after receipt of such xxxx or
statement, whichever is later.
Section 4.03 Certain Taxes Not Payable by Tenant. Tenant
shall not be required to pay any of the following taxes or
governmental impositions which shall be levied or imposed against
Landlord by any governmental authority:
(i) Any estate inheritance, devolution, succession,
transfer, legacy or gift tax which may be imposed upon or with respect
to any transfer of Landlord's interest in the demised premises.
(ii) Any income tax levied upon or against the
profits of the Landlord from all sources provided, however, that
if at any time during the Term the method of taxation prevailing
at the commencement of the Term shall be altered so that any new
tax, assessment, levy, imposition or charge, shall be measured by
or be based in whole or in part upon the Demised Premises or the
income thereof and shall be imposed upon Landlord then all such
taxes, assessments, levies, imposition or charges to the extent
that they are so measured or based, shall be deemed to be an
Imposition for the purpose hereof, to the extent that such
Imposition would be payable if the Demised Premises were the only
property of Landlord subject to such Imposition and Tenant shall
pay and discharge the same as herein provided in respect of the
payment of any Imposition.
Section 4.04 Apportionment During First and Last Year of
Term. All Impositions which shall become payable during the fiscal
tax year in which this Lease commences or ends shall be apportioned
between Landlord and Tenant in accordance with the portion of the
tax year within the Term.
Section 4.05 Tenant's Right to Contest. Tenant may contest
any Imposition by diligently conducting proceedings in which event,
upon Tenant's request and if permitted by law, Tenant may postpone
payment of such Imposition during such contest if:
(a) Such postponement would not constitute a default
under any Landlord's mortgage;
(b) Landlord's interest in the Demised Premises would
not be endangered thereby; and
(c) Tenant deposits with Landlord the amount so
contested and unpaid, and annually thereafter adds to such deposit
such accrued interest and penalties as Landlord reasonably
estimates might be assessed against the Demised Premises in such
proceeding.
Upon the termination of such proceeding, Tenant shall pay
the amount of such Imposition (as finally therein determined)
remaining unpaid and all interest and penalties relating thereto
or, upon Tenant's request, Landlord shall pay such amount to the
extent of the funds so deposited. Upon payment in full of such
amount, interest and penalties (whether by Landlord or Tenant),
Landlord shall return any then balance of the amount so deposited.
If, during such proceeding, Landlord in good xxxxx xxxxx the amount
so deposited insufficient, Tenant shall upon Landlord's demand,
deposit such additional funds as Landlord reasonably requests. If
Tenant fails to deposit such additional funds, the funds
theretofore deposited may be applied by Landlord to the payment of
such Imposition, interest and penalties and any balance shall be
returned to Tenant. Landlord shall, if required through such
proceedings and requested by Tenant, join in such proceedings,
cooperate with Tenant and execute requisite documents, provided
Tenant pays Landlord's resultant expenses.
Section 4.06 Assessments Payable in Installments. With
respect to any assessment levied by any governmental or municipal
agency or authority which is or may be payable, at the option of
the taxpayer, in installments, Tenant agrees to pay Landlord, in
lieu of paying the assessment directly to the appropriate
governmental or municipal agency, as additional rent, annually,
from the date of payment of the assessment, the installment due
therefor, at least five (5) days before the last day on which each
such installment may be paid without penalty or interest. Tenant
shall not be required to pay any installment which shall fall due
after the expiration of this Lease.
ARTICLE 5
COMMENCEMENT DATE OF THE LEASE - DELAYED COMMENCEMENT
Section 5.01 Commencement Date of the Lease - Delayed Commencement.
The Commencement Date of this Lease shall occur on the earlier of: (i)
the date Landlord substantially completes Landlord's work as otherwise
set forth in Section 5.02 and delivers possession of the Premises to
Tenant, or (ii) the earlier occupancy of the Tenant.
The premises are presently occupied pursuant to the terms
and conditions of a certain Lease between Forsgate Industrial
Complex, as Landlord, and Midlantic Distribution Inc., as Tenant,
as amended, which Lease provides that either Landlord or Tenant on
thirty (30) days' prior written notice may terminate the Lease.
Landlord agrees, within three (3) business days of the execution
of this Lease, to serve notice of termination upon Midlantic
Distribution, Inc. In the event Midlantic Distribution Inc. shall
fail to vacate the Premises and deliver possession to the Landlord
in accordance with the thirty (30) day notice of cancellation, then
the Commencement Date of this Lease shall be delayed until Landlord
can deliver possession to the Tenant. Landlord agrees to institute
summary dispossess proceedings or take such other action as is
reasonably necessary to secure possession for Tenant hereunder.
If the Landlord is unable to obtain possession of the Premises on
or before the seventy-fifth (75th) day from the date of this Lease,
then Tenant shall have the right prior to the date Landlord
notifies Tenant that the Premises are vacant to terminate this
Lease. Upon termination of this Lease, both parties shall be
releaaed thereafter from and after further liability to the other,
except the return to Tenant of prepaid rent and the security
deposit. If Landlord has failed to obtain possession from the
existing tenant by December 31, 1995, then, if Tenant has not
theretofore terminated this Lease, this Lease shall terminate as
of December 31, 1995. All such notices shall be in conformance
with Article 16 of this Lease.
Section 5.02 Landlord's Work. Landlord, at no cost to
Tenant, agrees, upon obtaining possession, to paint the second
floor offices, remove ground floor offices except for lobby and
tollets, and install two overhead doors between warehouse and
demolished office area, and clean and seal the warehouse floor,
repave the parking lot, clean and wash all windows and repair
landscaping where necessary. Landlord shall immediately and in a
diligent manner, undertake Landlord's work upon obtaining
possession of the Premises and obtaining, if required, governmental
building permits, and shall substantially complete such work not
later than sixty (60) days thereafter, which date shall be an
estimated completion date, provided, however, that such date shall
be extended by any delay occasioned by scarcity of materials, entry
or occupancy by Tenant which inhibits, delays or increases the cost
of construction, strikes, labor disputes, weather conditions which
inhibit construction, fires or other casualties, governmental
restrictions and regulations, delays in obtaining governmental
permits, delays in transportation and other delays beyond the
reasonable control of Landlord.
Section 5.03 Continued Certificate of Occupancy. Upon
Landlord completing Landlord's work as set forth in Section 5.02,
Tenant shall be responsible to obtain a Continued Certificate of
Occupancy. Tenant shall be required to undertake such work, such
as installation of in-rack sprinklers, exit lines and signs, and
other requirements as imposed by the municipality, as required for
the issuance of the Continued Certificate of Occupancy permitting
Tenant to use and occupy the Demised Premises for the uses
described in the first sentence of Section 2.01.
Section 5.04 Tenant's License to Install a Racking System
Prior to the Commencement Date. At such time as Landlord has
completed its work regarding cleaning and sealing of the warehouse
floor, Landlord shall grant a revocable license to Tenant, to
install in the Premises Tenant's racking system. Such license
shall be subject to revocation by Landlord at any time, upon
written notice, in the event Landlord reasonably determines that
Tenant's exercise of the license is delaying, interfering or
otherwise impeding Landlord's Work.
The installation of racking as contemplated by this
Section 5.04 shall not be deemed, for purposes of Section 5.01,
occupancy of the Premises by the Tenant. However, Tenant shall be
deemed to have accepted that portion of the Premises so used for
racking upon installation thereof by Tenant. Tenant, however,
prior to exercising the license, shall deliver an insurance
certificate to Landlord, in compliance with the provisions of
Paragraph (iv) of Section 6.01. Tenant acknowledges that neither
Landlord nor its agents or employees shall have any liability to
Tenant as to Tenant's property as may placed pursuant to the
license in the Demised Premises.
ARTICLE 6
INSURANCE TO BE PROVIDED BY TENANT
Section 6.01 Coverage and Amount. During the Term, Tenant
shall maintain policies of insurance at its sole cost and expense
as follows:
(i) Insurance against loss or damage to the
Demised Premises by fire and from such other hazards as may be
covered by the form of all risk coverage then in effect (including
specifically damage by water, flood or earthquake) all in an amount
sufficient to prevent any coinsurance provision from becoming
effective but in any event ln an amount not less than 100% of the
then replacement value of the Building without depreciation except
for flood and earthquake insurance which shall be in the amount of
One Million Dollars ($1,000,000.00). This insurance shall include
but not be limited to the following:
a. Boiler and other pressure vessels, plate
glass and elevator insurance, if appropriate (Tenant shall have the
right to be self-insured as to plate glass); and
b. Insurance against riot or civil commotion,
vandalism, aircraft, sprinkler leakage, all risk endorsement rider
(the SMP allrisk form) or the equivalent, and "Demolition" and
"Increased Cost of Construction". In addition to the foregoing,
such insurance shall include, but not be limited to windstorm,
hail, explosion, flood or earthquake, riot and civil commotion,
damage from aircraft and vehicles, smoke damage, and such coverage
as may be deemed necessary by the Landlord. These insurance
provisions shall in no way limit or modify any of the obligations
of the Tenant under any provision of this Lease to restore the
Demised Premises.
Anything contained herein to the contrary not-
withstanding, the insurance required by this paragraph shall in
all events be sufficient to comply with the requirements of any fee
mortgage and the replacement value shall in no event be less than
FIVE MILLION FIVE HUNDRED THOUSAND and NO/100 Dollars
($5,500,000.00) except for flood and earthquake insurance which
shall be in the amount of One Million Dollars ($1,000,000.00).
Landlord may demand that such replacement value be determined from
time to time by an appraiser, engineer, architect or contractor
designated and paid for by Tenant and approved in writing by
Landlord. No omission on the part of Landlord to request any such
determination shall relieve Tenant of any of its obligations under
this Article 6.
(ii) Rent insurance, with all risk coverage,
in an amount not less than one year's current Basic Rent and
Additional Rent and one year's taxes and premiums for the insurance
required by this Article 6.
(iii) If appropriate, boiler and machinery
insurance including coverage for pressure vessels with such limits
as from time to time may be reasonably required by Landlord, but
not less than $300,000.00 per occurrence with endorsement for
actual replacement cost without depreciation.
(iv) Commercial General Liability Insurance,
including property damage, insuring Landlord and Tenant (and any
Mortgagee or other person or persons whom Landlord may designate,
called "Additional Insured" in this Lease) 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. This policy must contain, but not be limited to,
coverage for premises and operations, products and completed
operations, blanket contractual, personal injury, operations,
ownership, maintenance and use of owned, non-owned, or hired
automobiles, bodily injury, and property damage. The policy must
have limits in an amount not less than THREE MILLION and NO/100
Dollars ($3,000,000.00) per occurrence and THREE MILLION and
NO/100 Dollars ($3,000,000.00) in the aggregate. This insurance
will include a contractual coverage endorsement specifically
insuring the performance by Tenant of its indemnity agreements
contained in this Lease. To the extent Tenant carries commercial
general liability insurance in excess of THREE MILLION and NO/100
Dollars ($3,000,000.00), which protects Tenant as to the Demised
Premises, then Landlord shall have the advantage of the
availability of such insurance and shall be named as an additional
insured on such liability insurance in excess of THREE MILLION and
NO/100 Dollars ($3,000,000.00).
(v) If a sprinkler shall be located in any
part of the Demised Premises, sprinkler leakage insurance in
amounts reasonably satisfactory to Landlord.
(vi) Such other insurance and in such amounts
as may from time to time be reasonably required by any fee
mortgagee holding a first mortgage on the Demised Premises against
other insurable hazards, which at the time are commonly insured
against, in the case of premises similarly situated.
If by reason of changed economic conditions Landlord's
insurance advisor reasonably concludes that these amounts of
coverage or coverages are no longer adequate, then such amount or
coverage will be appropriately increased, or obtained as the case
may be.
All policies of insurance carried pursuant to this
Article 6 shall name as insured the Landlord, and if required, any
fee mortgagee, as may be specifically designated by Landlord, as
their respective interests may appear, provided however, that rent
insurance shall be carried solely in favor of Landlord. To the
extent Landlord receives and applies proceeds of rent insurance,
Tenant shall receive a credit against rent payable hereunder.
Subject to the rights of any fee mortgagee, all losses
paid under the policy or policies under Article 6 shall be adjusted
by Landlord and the proceeds thereof shall be payable to the
Landlord and all such policies shall so provide.
Section 6.02 Forms, Certificates, Blanket Policies, Renewals,
Cancellation. All premiums on policies referred to in this Lease
shall be paid by the Tenant. The originals of such policies or
certificates shall be delivered to Landlord except when such
originals are required to be held by any fee mortgagee, in which
case, certificates of insurance shall be delivered to Landlord.
Policies or certificates with respect to renewal policies shall be
delivered to Landlord by Tenant not Iess than thirty (30) days
prior to the expiration of the original policies or succeeding
renewals, as the case may be, together with receipts or other
evidence that the premiums thereon have been paid for at least one
year. In the event the Tenant is not able to deliver the insurance
policies or certificates prior to the renewal date as aforesaid,
the Tenant may deliver binders in lieu of such policies or
certificates to the Landlord, provided, however, that the insur-
ance policies or certificates shall be delivered within sixty (60)
days after the expiration of the original policies or succeeding
renewals but in no event later than fifteen (15) days prior to the
expiration date of the binder. Premiums on policies shall not be
financed in any manner whereby the lender, on default or otherwise,
shall have the right or privilege of surrendering or cancelling the
policies. Each policy of insurance required under this paragraph
shall have attached thereto an endorsement that such policy shall
not be cancelled or modified without at least thirty (30) days
prior written notice to the Landlord, and if required, to any fee
mortgagee, as specifically designated by Landlord. Each such
policy shall contain a provision that no act or omission of Tenant
shall affect or limit the obligation of the insurance company to
pay the amount of any loss sustained and a provision waiving any
right of the insured aga1nst the Landlord. 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 (i) Landlord and such
other persons will be named as additional insureds under such
policies as their interests may appear; and (ii) 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; and (iii) all other requirements set forth herein are
otherwise satisfied.
Section 6.03 Recognized Insurance Companies. All insurance
provided for in this Article 6 shall be effected under valid and
enforceable policies issued by insurers which are licensed to do
business in the State of New Jersey and shall be written on the
standard policies of such companies and provide for no deductibles.
Section 6.04 Landlord's Non-Liability, Tenant's Own
Insurance. 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, furnishings, fixtures,
equipment, chattels and articles of personal property located on
the Demised Premises, nor shall Landlord be liable for any business
interruption, or injury to or death of persons occurring in the
Demised Premises, or in any manner growing out of or in connection
with Tenant's use and occupation of the leased premises or the
condition thereof, notwithstanding that such loss or damage may
result from the negligence or fault of Landlord. Tenant shall
obtain insurance policies covering its furnishings, fixtures,
equipment and articles of personal property (collectively,
"Personal Property") in the Demised Premises, and Tenant shall
either cause Landlord to be named as an insured party under such
policies (without entitling Landlord to receive any loss proceeds
thereof) or obtain the insurer's waiver of all rights of subrogation
against Landlord with respect to losses insured under such policies.
Tenant shall advise Landlord promptly of the applicable
provisions of such insurance policies and notify Landlord promptly
of any cancellation or change therein.
All insurance carried by Tenant as to the Demised
Premises or as to any property located thereon or therein, whether
or not such insurance is carried pursuant to this Lease, shall
provide that the insurer waives all rights of subrogation against
Landlord with respect to losses insured under such policies.
Section 6.05 Indemnity. Tenant is and shall be in exclusive
control and possession of the Demised Premises as provided herein,
and Landlord shall not in any event whatsoever be liable for any
injury or damage to any property or to any person happening on or
about the Demised Premises, nor for any injury or damage to the
Demised Premises, nor to any property of Tenant, or of any other
person contained therein.
Tenant shall indemnify and save Landlord harmless against
and from all liabilities, claims, suits, fines, penalties, damages,
losses, fees, costs and expenses (including reasonable attorneys'
fees) which may be imposed upon, incurred by or asserted against
Landlord by reason of:
(i) Any work or thing done in, on or about the
Demised Premises or any part thereof;
(ii) Any use, occupation, condition, operation
of the Demised Premises or any part thereof or of any street,
alley, sidewalk, curb, vault, passageway, or space adjacent thereto
or any occurrence on any of the same;
(iii) Any act or omission on the part of Tenant
or any subtenant or any employees, licensees or invitees;
(iv) Any accident injury (including death) or
damage to any person or property occurring in, on or about the
Demised Premises; or any part thereof or in, on or about any street,
alley, sidewalk, curb, vault, passageway or space adjacent thereto; and
(v) Any failure on the part of Tenant to
perform or comply with any of the covenants, agreements, terms or
conditions contained in this Lease, or recording of this Lease.
The provisions of this paragraph shall survive the expiration or
earlier termination hereof.
Section 6.06 Fire Insurance Rate and Requirements. Tenant
agrees, at its own cost and expense, to comply with all of the
rules and regulations of the Fire Insurance Rating Organization
having jurisdiction and any similar body, and the insurance company
insuring the building.
Section 6.07 Waiver of Subrogation. All insurance carried
by Tenant as to the Demised Premises or as to any property located
thereon or therein, whether or not such insurance is carried
pursuant to this Lease, shall provide that the insurer waives all
rights of subrogation against the Landlord with respect to losses
insured under such policies.
ARTICLE 7
RESTORATION OF DEMISED PREMISES IN THE EVENT
OF FIRE OR OTHER CASUALTY
Section 7.01 No Abatement. No damage to the Building by fire
or other casualty shall terminate the Lease or relieve Tenant
either from payment of Basic Rent, Impositions and Additional Rent,
or from the performance of Tenant's other obligations hereunder.
Such damage or destruction shall not affect the termination of this
Lease. Tenant expressly waives the provisions of N.J.S.A. 46:8-
6 and 46:8-7 and agrees that the foregoing provisions of this
Article shall govern and control in lieu thereof.
Section 7.02 Tenant's Restoration. During the Term, Tenant
shall promptly notify Landlord of any damage to the Demised
Premises and shall, at its own cost and regardless of the suf-
ficiency of insurance proceeds restore the Building subject to
Section 8.07 as nearly as possibIe to its condition immediately
prior to the damage. Restoration shall be commenced promptly after
the occurrence of any such damage and completed with due diligence.
As promptly as reasonably possible after damage, Tenant
shall notify Landlord of its estimate of the cost of restoration
certified correct by Tenant's architect, which architect to be
reasonably approved by Landlord, and provide Landlord with such
substantiation thereof as Landlord reasonably requests. If the
estimated cost of the restoration exceeds the insurance proceeds,
Tenant shall, prior to the commencement of the restoration, deposit
the deficiency in accordance with Section 7.03. If such determina-
tion has not been made when the restoration is to commence, Tenant
shall so deposit the difference between Landlord's estimate of the
cost of the restoration and the insurance proceeds (any deposit by
Tenant pursuant to this Section 7.03 being hereinafter referred to
as the "deficiency deposit") and, upon the determination of the
estimated cost of the restoration, any excess amount so deposited
shall promptly be refunded to Tenant. Before commencing with any
restoration which would cost more than $50,000.00, Tenant's
architect shall prepare plans and specifications therefor, for
Landlord's and any fee mortgagee's approval. There shall be no
material deviation from such plans and specifications without
Landlord's and the fee mortgagee's approval. The reasonable
expenses of Landlord and the fee mortgagee in reviewing such plans
and specifications and reviewing requests for disbursements shall
be paid by Tenant as Additional Rent.
Section 7.03 Disbursement of Insurance Funds. In the event
of such damage or destruction, which would cost more than FIFTY
THOUSAND and NO/100 Dollars ($50,000.00) to restore, any insurance
money recovered by the Landlord shall be paid over to a banking
company selected by the Landlord to act as an Insurance depository,
and such Insurance Depository shall pay out such money from time
to time to the Tenant as the repairing, restoration and rebuilding
(collectively called the "work") progresses. All amounts received
shall be applied by Tenant to the cost of repairing such damage and
restoring the Demised Premises, and the Tenant shall proceed with
reasonable diligence to repair such damage and to restore the
Demised Premises substantially to the condition thereof existing
immediately prior to the occurrence of such damage or destruction.
The insurance proceeds shall be paid out by the Insurance Depository
from time to time upon Tenant's written request, accompanied by:
(a) A certificate signed by the Tenant and the architect
or engineer in charge of the work, dated not more than thirty (30)
days prior to such request, setting forth the following:
(i) That the sum then requested either has
been paid by Tenant, or is justly due to contractors,
subcontracitors, materialmen, engineers, architects or other persons
who have rendered services or furnished materials for the
restoration therein specified, the names and addresses of such
persons, a brief description of such services and materials, the
several amounts so paid or due to each of said persons in respect
thereof, that no part of such expenditures has been or is being
made the basis, in any previous or then pending request, for the
withdrawal of insurance money or has been made out of the proceeds
of insurance received by Tenant, and that the sum then requested
does not exceed the value of the services and materials described
in the certificate.
(ii) That except for the amount, if any, stated
(pursuant to the foregoing subclause (a)(i) in such certificate to
be due for services or materials, there is no outstanding
indebtedness known to the persons signing such certificate, after
due inquiry, which is then due for labor, wages, materials,
supplies or services in connection with such restoration which, if
unpaid, might become the basis of a vendor's, mechanic's laborer's
or materialman's statutory or similar lien upon such restoration
or upon the demised premises, or any part thereof, or upon Tenant's
leasehold interest therein.
(iii) That the cost, as estimated by the persons
signing such certificate, of the restoration required to be done
subsequent to the date of such certificate in order to complete the
same, does not exceed the insurance money, plus any amount deposited by
Tenant to defray such cost and remaining in the hands of the Insurance
Depository after payment of the sum requested in such certificate.
(iv) The Tenant shall furnish the Insurance
Depository at the time of any such payment with an official search
or evidence satisfactory to the Insurance Depository that there has
not been filed with respect to the Demised Premises any mechanic's
or other liens which have not been discharged of record.
(b) An opinion of counsel or other evidence, reasonably
satisfactory to the Insurance Depository, to the effect that there
has not been filed with respect to the Demised Premises, or any
part thereof, or upon Tenant's leasehold interest therein any
vendor's, mechanic's, laborer's, materialman's or other lien which
has not been discharged of record, except such as will be dis-
charged by payment of the amount then requested.
(c) If the insurance money in the hands of the Insurance
Depository and such other sums, if any, deposited with the
Insurance Depository shall be insufficient to pay the entire cost
of such work, the Tenant agrees to pay the deficiency. Upon
completion of the work and payment in full thereof by the Tenant,
the Insurance Depository shall turn over to the Tenant, upon sub-
mission of proof satisfactory to the Landlord that the work has
been paid for in full, any insurance money then remaining and such
other sums, if any, deposited with the Insurance Depository then
remaining in the hands of the Insurance Depository.
(d) Tenant shall pay all charges and fees, including
attorneys' fees, of any bank, trust company or other entity that
performs the functions provided for in Section 7.03 hereof.
Section 7.04. Damage to or destruction of the Demised
Premises as aforesaid shall not reduce or xxxxx to rent herein
reserved. Such damage or destruction shall not effect a termination of
this Lease. Tenant expressly waives the provisions of N.J.S.A. 46:8-6
and 46:8-7 and agrees that the foregoing provisions of this paragraph
shall govern and control in lieu thereof.
ARTICLE 8
REPAIRS, MAINTENANCE, UTILITIES, CHANGES
AND ALTERATIONS COMPLIANCE WITH ORDERS, ETC., EASEMENTS
Section 8.01 Tenant's Repairs and Maintenance. Tenant for
and during the Term, at Tenant's sole cost and expense, assumes all
responsibility and obligation for the physical condition of the
Demised Premises and its sidewalks, curbs, grounds, parking area
and utilities and shall keep the same in good order and first class
condition free of accumulation of dirt, rubbish, snow and ice, and
shall make all necessary repairs thereto, interior and exterior,
structural and non-structural, ordinary and extraordinary and
foreseen and unforeseen. When used in this Article, the term
"repairs" shall include all necessary replacements and renewals.
All repairs made by Tenant shall be equal in quality to the
original work. The lawns, shrubs and other vegetation will be
maintained and, when required, replaced or renewed. Tenant shall
obtain a roof maintenance contract and a maintenance contract for
the heating, ventilation and air conditioning systems in the
building. Such contract shall provide for semi-annual maintenance
of the roof and the HVAC systems, and copies of the maintenance
agreements shall be submitted to Landlord, together with an annual
report of the maintenance company as to the condition and repairs
made to the roof and the systems. In the event the Tenant shall
fail to maintain the premises as afoeesaid, the Landlord may serve
notice upon the Tenant to correct same and if the Tenant shall fail
to do so within 15 days after notice, the Landlord is authorized
to take whatever action the Landlord deems reasonably necessary to
maintain the Demised Premises, all at the expense of the Tenant.
The Tenant shall under no circumstances, paint either the inside
or the outside of the masonry walls or the concrete floors without
first obtaining Landlord's written consent. Upon surrender, if
Tenant shall violate this undertaking, then, Tenant shall cause
any such painting to be removed and the finish restored to its
original condition.
Section 8.02 Landlord's Responsibility. Provided Tenant
notifies Landlord of the necessity of the repair prior to the last
day of the twelfth (12th) month of the Term, Landlord, at its sole
cost and expense, shall at the request of Tenant remedy all
material defects in workmanship and materials used in the
construction of the building which results in an interference with
Tenant's reasonable use of the Premises, evidence of which shall
appear or be discovered on or before the last day of the twelfth
(12th) month of the Lease Term. Notwithstanding the foregoing, if
Tenant shall make any change or alteration, structural or
otherwise, to any portion of the building or lands, Landlord's
obligations as heretofore provided shall not thereafter extend to
the portion of the building or the Premises so changed or altered
by Tenant to the extent any portion thereof is adversely affected
by the change or alteration. If such change or alteration made by
Tenant affects 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 section is limited to repair or correction of the defect or
condition to be rectified and Landlord shall not be liable for any
consequential loss or damage.
On the commencement date of the Lease, the roof will be free
of leaks.
Section 8.03 Utilities. Tenant shall make arrangements
directly with the appropriate utility companies for the supply of
gas, electricity, water, light, power, telephone and shall pay all
fees, expenses and charges therefore to such companies.
Section 8.04 Tenant's Responsibility. Landlord shall not be
required to furnish any services or facilities or to make any
repairs or alterations on or to the Building or the Demised
Premises and Tenant assumes the full responsibility for the
condition, operation, repair, replacement, maintenance and
management of the Demised Premises.
Section 8.05 Compliance. During the Term, Tenant, at its
cost, shall promptly comply with all present and future laws,
ordinances, or other governmental regulations (including, but not
limited to, the Americans with Disabilities Act of 1990-ADA) and
all present and future applicable requirements of the Fire
Insurance Rating Organization of New Jersey (or other body
exercising similar functions), whether or not the same requires
structural repairs or alterations, foreseen or unforeseen, ordinary
as well as extraordinary, which may be applicable to the Demised
Premises, the fixtures and equipment thereof, or the use or manner
of use of the Demised Premises. Tenant agrees to comply with all
zoning ordinances and the responsibility for specific use or uses
shall be that of the Tenant and the Landlord makes no representation
as to any permissive use.
Tenant may contest the validity of any such requirement
at its expense and defer compliance therewith pending such contest,
provided such deferral shall neither constitute a default under any
mortgage of the Landlord or cause the imposition of any lien
against the Demised Premises nor subject Landlord to any criminal
or civil liability.
Section 8.06 Environmental Compliance. 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 hereby represents that its Standard
Industrial Classification number ("S.I.C.") is 5190 and its
operations shall consist of only those activities otherwise set
forth in the first sentence of Section 2.01. Tenant will not
permit the operations at the Premises to so change so that the
S.I.C. designation heretofore enumerated will change.
Tenant shall, prior to July 30, 1995, obtain its own
environmental consultant to do such audit and investigation of the
Demised Premises as Tenant deems appropriate or necessary, to
satisfy Tenant as to the environmental condition of the Premises.
If, in the sole judgment of the Tenant, such environmental audit
and investigation is not satisfactory to Tenant, then Tenant shall
have the right to terminate this Lease, provided and subject,
however, that such right shall be exercised on or before July 30,
1995, TIME BEING OF THE ESSENCE, and such notice of termination is
served together with a copy of all of Tenant's environmental
reports so obtained. The right to terminate this Lease shall be
void and without further force and effect subsequent to July 30,
1995, if Tenant has not theretofore exercised its right of termination.
All such notices shall be in conformance with Article 16 of this Lease.
Notwithstanding any provision of the Industrial Site
Recovery Act, N.J.S.A. 13:lK-6, et seq., and the regulations
promulgated thereunder, and any successor or amended legislation
or regulations ("ISRA") to the contrary, if Tenant is operating an
"industrial establishment" as that term is defined in ISRA, Tenant
shall, at its own cost and expense, comply with ISRA whenever an
obligation to do so arises, including by reason of a closing,
terminating or transferring operations. Tenant shall, at its own
cost and expense, make all submissions to, provide all information
to, and comply with all requirements of the New Jersey Department
of Environmental Protection & Energy ("DEPE") pursuant to ISRA.
Should the DEPE determine that a Remediation Action Work Plan must
be prepared and that remediation must be undertaken because of any
spills or discharge of a hazardous substance or hazardous waste (as
those terms are defined in ISRA) at the premises, then Tenant
shall, at Tenant's own expense, prepare and submit the required
documents and remediation funding source, and carry out the
approved plans. Landlord covenants and agrees with Tenant that
Tenant shall not be responsible for any environmental cleanup costs
solely related to a spill or discharge of hazardous substance or
hazardous waste which occurred prior to the commencement date of
the Lease. At no expense to the Landlord, Tenant shall promptly
provide all information requested by Landlord regarding or in
furtherance of ISRA compliance. Tenant shall sign any affidavit
submitted to it by Landlord which is true, accurate and complete;
and if an affidavit is not true, accurate and complete, Tenant
shall supply the necessary information to make it true, accurate
or complete and shall then sign the same. Tenant shall promptly
supply Landlord with any notices, correspondence or submissions of
any nature made by Tenant to, or received by Tenant from, the DEPE,
United States Environmental Protection Agency, or any local, state
or federal authority concerning compliance with applicable
Environmental Law. In the event Tenant uses, stores or generates
hazardous substances, as that term is otherwise defined in this
Lease, Tenant will so advise Landlord. In such event, Tenant
shall, if requested by Landlord, but no more frequently than
annually, supply the Landlord a list of all such hazardous
substances used, generated or stored at the Demised Premises during
the preceding twelve (12) months. Information to be provided shall
be in a narrative report, including a description and
quantification of hazardous substances and wastes which were
generated, manufactured, stored or disposed of at the Premises
during the preceding twelve (12) months. In addition to the
foregoing, if Tenant uses, stores or generates hazardous
substances, as that term is otherwise herein defined in this Lease,
then Landlord shall have the right to require Tenant to hire a
consultant, reasonably satisfactory to the Landlord, to undertake
an Environmental Site Assessment and Site Investigation, as those
terms are defined in ISRA, and if that report indicates a spill or
discharge of hazardous substance at the Premises, an appropriate
report will be filed with the applicable governmental agencies and
Tenant shall Remediate the spill or discharge in accordance with
ISRA and other applicable Environmental Laws.
In the event a lien shall be filed (i) against the
Premises during the term of this Lease arising out of hazardous
substances or hazardous waste spilled or discharged after the
commencement date of this Lease, or (ii) after the commencement of
the term of this Lease arising from a violation of applicable
Environmental Law which occurred during the term of this Lease,
then Tenant shall, within thirty (30) days from the time Tenant is given
notice of the lien, pay the claim and remove the lien from the Premises.
Subject to the last paragraph of this Section 8.06,
Tenant shall indemnify, defend and hold harmless from all fines,
suits, procedures, claims, liabilities, costs and actions of any
kind, including counsel fees (including those to enforce this
indemnity), arising out of or in any way connected with any spills
or discharges of hazardous substances or hazardous waste at the
Premises, except those which occurred as otherwise provided in the
immediately succeeding paragraph of this section; and from all
fines, suits, procedures, claims, liabilities, costs and actions
of any kind, including counsel fees (including those to enforce
this indemnity), arising out of Tenant's failure to comply with the
provisions of this Section 8.06. Tenant's obligations and
liabilities under this Section 8.06 shall survive the expiration
or earlier termination of this Lease and shall continue so long as
Landlord remains responsible or liable for either any spills or
discharges of hazardous substances or hazardous waste at the
Premises or any violation of applicable Environmental Laws.
Tenant's failure to abide by the terms of this Section 8.06 shall
be enforceable by injunction. The undertaking of the Tenant
hereunder shall survive termination of this Lease, provided and
subject, however, that Tenant's responsibility shall only apply as
to violation of Environmental Laws which occurred during Tenant's
Lease term. If Tenant can prove in a reasonable manner that a
violation of Environmental Laws did not occur during Tenant's Lease
term, then, after such events, Tenant shall have no responsibility
or liability as to any such noncompliance.
Landlord covenants and agrees with Tenant that Tenant
shall not have any liability for either the storage of, a spill of
or discharge of a Hazardous Substance which occurred prior or
subsequent to this Lease Term, or occurred by reason of a spill or
discharge of a Hazardous Substance on lands other than the Demised
Premises and such storage of, spill of or discharge is not due to
any act or omission of Tenant or Tenant's officers, directors,
employees, agents or invitees.
If Landlord or Landlord's prior tenants at the Demised
Premises caused a spill or discharge of hazardous substance or
hazardous waste at the Premises, then as to either of such events,
Landlord will defend, indemnify and hold Tenant harmless from all
fines, suits, proceedings, claims, liabilities, costs and actions
of any kind, including counsel fees (including those to enforce
this indemnity), arising out of or in any way connected with a
spill or discharge of hazardous substance or hazardous waste at the
Premises directly caused by Landlord or by a prior tenant of Landlord.
Section 8.07 Alterations. During the Term, Tenant shall not
make structural alterations but may, at its cost, make
non-structural alterations to the Demised Premises necessary for
the conduct of its business, subject to the following:
(a) Tenant shall first obtain requisite permits and
authorizations from governmental authorities having jurisdiction;
(b) Obtain Landlord's, and if required, the fee
mortgagee's, prior written consent, (which Landlord's consent not
to be withheld if the change or alteration would not, in the
reasonable opinion of the Landlord, impair the value or usefulness
of the Building or any part of the Demised Premises).
(c) Any alterations 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;
(d) The cost of the alterations shall be paid by Tenant
so that the Demised Premises remains free of any liens;
(e) If requested by Landlord, post with Landlord adequate
security to assure restoration of the premises at the end of the Term;
(f) Tenant shall maintain Workmen's Compensation
Insurance covering all persons on whose behalf death or injury
claims could be asserted, until the alteration is completed;
(g) No change or alterations shall, when completed, tie
in or connect the Demised Premises with any other building on
adjoining property.
(h) During such time as Tenant shall be constructing any
improvements, Tenant, at its sole cost and expense, shall carry,
or cause to be carried, (i) Workmen's Compensation Insurance
covering all persons employed in connection with the improvements
in statutory limits, (ii) a completed operations endorsement to the
Commercial General Liability Insurance policy referred to in
Section 6.1(iv), (iii) Builder's Risk Insurance, completed value
form, covering all physical loss, in an amount reasonably
satisfactory to Landlord, and (iv) such other insurance, in such
amounts, as Landlord deems reasonably necessary to protect
Landlord's interest in the Demised Premises from any act or
omission of Tenant's contractors or subcontractors.
(i) No permitted alteration shall be undertaken until
detailed Plans and Specifications have first been submitted to and
approved in writing by Landlord, and, if required, by the fee
mortgagee. At the completion of the alteration or restoration
under Article 7, "as-built" plans shall be delivered to Landlord.
Section 8.08 Restoration. Any alteration made by Tenant
under Article 8 hereof shall, at Landlord's option, become
Landlord's property, or, at the election of Landlord, shall be
removed by the Tenant thirty (30) days prior to the termination of
the Term and the Demised Premises shall be restored to its condi-
tion prior to such alteration. The security deposited under
Section 8.06(e) hereof shall be returned to the Tenant at the end
of the Term if Landlord elects to have such improvement remain, or,
returned to Tenant after restoration by Tenant if Landlord directs
that said alteration be removed and the premises restored.
Section 8.09. Landlord hereby reserves to itself its
successors and assigns the right to construct, maintain and use
ingress and egress easements, railroad easements, utility ease-
ments, drainage easements, across, over and under the Demised
Premises, to or from other lands now owned or in the future ac-
quired by the Landlord, provided however, that the same be at the
cost of the Landlord and does not unreasonably interfere with the
use of the Demised Premises by the Tenant.
ARTICLE 9
LEASE PROVISION AGAINST ASSIGNMENT, MORTGAGE,
OR SUBLET BY TENANT WITHOUT LANDLORD'S PERMISSION,
LANDLORD'S RIGHT OF RECAPTURE
Section 9.01. Tenant covenants and agrees for Tenant and its
successors, assigns, and legal representatives, that neither this
Lease nor the term and estate hereby granted, nor any part hereof
or thereof, will be assigned, mortgaged, pledged, encumbered or
otherwise transferred (whether voluntarily, involuntarily, by
operation of law, or otherwise), and that neither the Demised
Premises, nor any part thereof, will be encumbered in any manner
by reason of any act or omission on the part of Tenant, or will be
used or occupied, or permitted to be used or occupied, or utilized
for desk space or for mailing privileges or as a concession, by
anyone other than Tenant, or for any purpose other than as
hereinbefore set forth, or will be sublet, without the prior
written consent of Landlord in every case; provided, however, that,
if Tenant is a corporation, the assignment or transfer of this
Lease, and the term and estate hereby granted, to any corporation
into which Tenant is merged or consolidated or to which its assets
are sold (such corporation being hereinafter in this Article called
"Assignee") without the prior written consent of Landlord shall not
be deemed to be prohibited hereby if, and upon the express condi-
tion that, Assignee shall promptly execute, acknowledge, and
deliver to Landlord an agreement in form and substance satis-
factory to Landlord whereby Assignee shall assume and agree to
perform and to be personally bound by and upon, all the covenants,
agreements, terms, provisions, and conditions set forth in this
Lease on the part of Tenant to be performed, and whereby Assignee
shall expressly agree that the provisions of this Article shall,
notwithstanding such assignment or transfer, continue to be binding
upon it with respect to all future assignments and transfers and
provided such Assignee shall prove to the satisfaction of Landlord
that its net worth is at least equal to that of Tenant as of the
date hereof.
Section 9.02. Subject to Section 9.01 hereof, which shall
take precedence over the provisions hereof, in the event Tenant
desires Landlord's consent to an assignment or subletting of all
or any part of the Demised Premises, Tenant, by notice in writing,
(a) shall notify Landlord of the name of the proposed assignee or
subtenant, such information as to the proposed assignee's or sub-
tenant's financial responsibility and standing as Landlord may
require, and a copy of the proposed assignment or sublease executed
by all parties; and (b) shall offer to vacate the space covered by
the proposed area to be subleased or the entire Demised Premises
in the event of an assignment (as the case may be) and to surrender
the same to Landlord as of a date (the "Surrender Date") specified
in said offer that shall be the last day of any calendar month
during the term hereof, provided, however, that the Surrender Date
shall not be earlier than the date occurring ninety (90) days after
the giving of such notice nor be later than the effective date of
the proposed assignment or the commencement date of the term of the
proposed sublease. Landlord may accept such offer in writing by
notice to Tenant given within thirty (30) days after the receipt
of such notice from Tenant. If Landlord accepts such offer, Tenant
shall surrender to Landlord, effective as of the Surrender Date,
all Tenant's right, title, and interest in and to the portion of
the Demised Premises covered by the proposed sublease, or, if
Tenant proposes to sublet the entire Demised Premises, or assign
this Lease, all Tenant's right, title and interest in and to the
entire Demised Premises. In the event of such surrender by Tenant
of a portion of the Demised Premises, then, effective as of the
date immediately following the Surrender Date, the Basic Rent shall
be reduced by an amount equal to that portion of the Basic Rent
that is allocable to the space so surrendered, and the Additional
Rent shall be equitably adjusted. If the entire premises be so
surrendered by Tenant, this Lease shall be cancelled and terminated
as of the Surrender Date with the same force and effect as if the
Surrender Date were the date hereinbefore specified for the
expiration of the full term of this Lease.
In the event of any such surrender by Tenant of the
Demised Premises or a portion thereof, Landlord and Tenant shall,
at the request of either party, execute and deliver an agreement
in recordable form to the effect(s) hereinbefore stated.
Section 9.03. In the event Landlord does not accept such
offer of Tenant referred to in Section 9.02 hereof, Landlord
covenants not to unreasonably withhold its consent to such proposed
assignment or subletting by Tenant of such space to the proposed
assignee or subtenant on said covenants, agreements, terms,
provisions, and conditions set forth in the notice to Landlord
referred to in clause (a) of the first sentence of Section 9.02
hereof; provided, however, that Landlord shall not in any event be
obligated to consent to any such proposed assignment or subletting
unless:
(a) The use of the proposed assignee or subtenant is (i)
for warehousing of products which are non-hazardous and are not
"toxic pollutants" (ii) does not violate any of the negative
covenants as to use as contained in this lease and (iii) is in
keeping with the then standards of Landlord as to the use of the
Building.
(b) The proposed assignee or subtenant shall be the
actual user of the premises and shall agree that it shall not have
the right to sublease the premises or subsequently assign the Lease;
(c) The proposed assignee or subtenant is not then a
tenant or occupant of any part of the industrial park in which the
Demised Premises are located;
(d) There shall be no default by Tenant under any of the
terms, covenants, and conditions of this Lease at the time that
Landlord's consent to any such assignment or subletting is
requested and on the effective date of the assignment or the
proposed sublease;
(e) 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;
(f) The proposed assignment shall be for a consideration
or the proposed subletting shall be at a rental rate not less than
the rental rates then being charged under leases being entered into
by landlord for comparable space in the Building and any other
similar buildings owned or operated by Landlord in a radius of five
(5) miles from the Demised Premises and for a comparable term.
(g) 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).
(h) 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).
(i) 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.
Section 9.04. Each subletting pursuant to this Article 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 Article. Tenant shall promptly
furnish to Landlord a copy of each such sublease.
Section 9.05. 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.
Section 9.06. If for any assignment or sublease, Tenant
receives rent or other consideration, either initially, or over the
term of the assignment or sublease, in excess of the rent called
for hereunder, or in the case of the sublease of a portion of the
demised premises, in excess of such rent fairly allocable to such
portion, after appropriate adjustment to assure that all other
payments called for hereunder are appropriately taken into account,
Tenant shall pay the Landlord, as additional rent hereunder, one
half (1/2) of the excess of each such payment of rent or other
consideration received by Tenant promptly after its receipt.
Section 9.07 In the event Tenant subleases a portion of the
premises to an entity which is a wholly owned subsidiary or
division of the Tenant, then in such event, the provisions of
Section 9.06 shall not be applicable as to any such sublease, and
the provisions of Section 9.02 shall not be applicable to any such
sublease. However, Tenant shall comply with the other provisions
of this Article 9. Tenant shall not be prohibited from permitting
wholly owned subsidiaries or a division thereof from occupancy of
the premises under Tenant's leasehold rights.
Section 9.08 As to Section 9.03, Landlord agrees within
fifteen (15) business days of receipt of Tenant's request for a
consent to an assignment of subletting, to respond to Tenant.
ARTICLE 10
LANDLORD'S REMEDIES IN EVENT OF THE TENANT'S DEFAULT OR BANKRUPTCY
Section 10.01 Events of Default. If any one or more of the
following events (hereinafter called "events of default") occurs:
(a) 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) 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
(b) If the Demised Premises shall be left vacant or
unoccupied or be deserted for a period of sixty (60) days; or
(c) Tenant shall make an assignment for the benefit of
creditors;
(d) Tenant shall attempt to transfer, assign or sublet
or hypothecate this Lease except as otherwise specifically
permitted in Article 9 hereof; or
(e) 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;
Upon the happening of an event of default, and such event
of default is not cured within the time periods as otherwise
hereinbefore set forth, 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 seven (7) 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.
Section 10.02 Landlord's Damages. If Landlord so terminates
the Lease, Tenant shall pay Landlord, as damages:
(a) 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 four (4)
percent per annum; or, at Landlord's option,
(b) 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).
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.
Section 10.03 Nonexclusivity. No right or remedy herein con-
ferred 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 Section 10.01
hereof, in addition to every other right or remedy given herein or
now or hereafter existing at law or in equity or by statute.
Landlord shall be entitled, to the extent permitted by law, to
injunctive relief in case of the violation, or attempted or
threatened violation, of any of the provisions of this Lease, or
to a decree compelling observance or performance of any provision
of this Lease, or to any other legal or equitable remedies.
Nothing herein contained shall limit or prejudice the right of the
Landlord in any bankruptcy or reorganization or insolvency
proceeding, to prove for and obtain as liquidated damages by reason
of such termination an amount equal to the maximum allowed by any
bankruptcy or reorganization or insolvency proceedings, or to prove
for and obtain as liquidated damages by reason of such termination,
an amount equal to the maximum allowed by any statute or rule of
law, whether such amount shall be greater or less than the excess
referred to in Section 10.02.
Section 10.04 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 notice to Tenant
may perform for the account of Tenant any covenant in the perfor-
xxxxx 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
attorneys fees incurred in connection with the prosecution or
defense of any proceedings instituted by reason of default of
Tenant, together with interest at the maximum lawful rate of in-
terest then allowed by the State of New Jersey, but not more than
two (2%) percent per month from the date of payment by Landlord
until paid by Tenant.
Section 10.05 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 or 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.
Section 10.06 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. Tenant waives the
service of notice of intention to re-enter as provided for in any
statute and also waives any and all right of redemption in case
Landlord obtains possession by reason of Tenant's default. Tenant
waives any and all right to a trial by a jury in the event that
summary proceedings shall be instituted by Landlord. The terms
"enter", "re-enter", "entry" or "reentry", as used in this Lease
are not restricted to their technical legal meaning.
Section 10.07 Payment of Landlord's Counsel Fees and Other
Costs. Tenant shall pay the Landlord as additional rent, upon
demand, Landlord's reasonable attorneys fees incurred by Landlord
in connection with the prosecution or defense of any proceeding
instituted by reason of default of Tenant, together with interest
on such sum at the rate of two (2%) percent per month from the date
of payment by Landlord until repaid by Tenant to Landlord, this
covenant to survive the expiration or sooner termination of this Lease.
Section 10.08 Noncurable Default. If Tenant fails, on four
(4) separate occasions in any twelve (12) month period during the
Term hereof, to make payment of the rent and or additional rent and
or late charges on or before the due date, then, whether or not
Tenant ultimately makes and Landlord accepts the required payment
after the due date, such failure shall entitle Landlord, upon or
at any time after such fourth separate occasion, to pursue the remedies
provided in this Article, said circumstances being hereby declared a
default no longer susceptible of being cured or removed by Tenant.
ARTICLE 11
SUBORDINATION OF LEASE TO MORTGAGE ON THE DEMISED PREMISES
Section 11.01 Subordination to Mortgages. 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
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.
Section 11.02 Non-Disturbance Agreement. The non-
disturbance agreement referred in Section 11.01 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.
ARTICLE 12
EXONERATION OF INDIVIDUALS
Section 12.01 Exoneration. Neither Landlord, nor its successors
or assigns, shall have any personal liability in respect to
any of the covenants or conditions of this Lease. The Tenant shall
look solely to the equity of the Landlord in the Demised Premises
for satisfaction of the remedies of the Tenant in the event of a
breach by the Landlord of any of the covenants or conditions of
this Lease and no other property or assets of Landlord shall be
subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies in the event of a breach or
violation by Landlord of any of the terms of this Lease or any
other liability which the Landlord might have to the Tenant.
Whenever Tenant claims that Landlord is liable to Tenant by reason
of any obligation of Landlord under this Lease, Tenant's remedies
shall be restricted to a declaratory judgement and injunction for
the relief sought, and shall exclude money damages in excess of in
total One Million ($1,000,000.00 Dollars.
Section 12.02 The provisions of this Section 12.01 shall not
be applicable to Landlord's obligations under Article 23 "Security."
ARTICLE 13
COVENANT AGAINST LIENS
Section 13.01 No Liens. Tenant shall neither create nor
permit to be created or exist any lien or encumbrance affecting the
Demised Premises and shall discharge, promptly upon notice, any
lien or encumbrance arising out of any act or omision of Tenant.
Notice its hereby given that Landlord shall not be liable for any
work performed or to be performed at the Demised Premises for
Tenant, or for any materials furnished or to be furnished at the
Demised Premises for Tenant, upon credit and that no mechanic's or
other lien for such work or materials shall attach to or affect the
estate or interest of Landlord in and to the Demised Premises.
ARTICLE 14
EMINENT DOMAIN
Section 14.01 Total Condemnation. If at any time during the
Term the whole of the Building shall be taken for any public or
quasi-public use under any statute, or by right of eminent domain,
or a part of the Building consisting of more than fifty (50%)
percent of the Building area shall be so taken, the Term and all
rights of the Tenant shall immediately cease and terminate as of
the date of such taking, and the Basic Rent and Additional Rent
shall be apportioned and paid to the time of such termination.
Section 14.02 Partial. In the event that only a part of the
Building area constituting fifty (50%) percent or less shall be so
taken, the Landlord or Tenant may elect to cancel this Lease
provided Landlord, within ninety (90) days after such taking, gives
notice to that effect and upon the giving of such notice, the Basic
Rent and Additional Rent shall be apportioned and paid to the date
of the expiration of the Term and this Lease and the Term shall
cease, expire and come to an end upon the expiration of said ninety
(90) days specified in said notice. If the Landlord shall not
elect to terminate as heretofore provided, this Lease shall remain
unaffected except the Tenant shall be entitled to a pro rata
reduction of Basic Rent, based on the proportion which the area of
the Building so taken bears to the area of the Building immediately
prior to such taking.
Section 14.03 Award. In case of any taking, whether
involving the whole or any part of the Demised Premises and
regardless of whether this Lease survives, the entire award shall
be paid to the Landlord and the Tenant hereby assigns such award
or awards to the Landlord. It is specifically understood and
agreed between Tenant and Landlord that Tenant shall have no right
to participate in any condemnation award for any claim whatsoever
for the unexpired leasehold, claims for fixtures, claims for
improvements, claims for value of options, if any, granted
hereunder, or options to extend the term of this Lease, or any
other claims whatsoever. Tenant hereby waives all rights to any
portion of the Award including, without limitation, any such rights
arising from any termination of Tenant's leasehold interest hereunder.
Section 14.04 Definition of "Taking". For purpose of this
Article 14, a "Taking" shall include any conveyance made in
response to a bona fide threat of condemnation.
Section 14.05 Tenant's Moving Expense. If the condemning
authority permits Tenant, in a proceeding separate from Landlord's
proceeding, to seek recovery of its moving expenses, and if such
recovery shall not diminish or affect the Award otherwise payable
to Landlord, then Tenant may, in such separate proceeding, seek
recovery for its moving expenses.
Section 14.06 Other Tenant's Rights. Tenant shall have the
right, in the event of any Taking which results in termination of
this Lease, to remove its trade fixtures and other personal
property from the Demised Premises.
ARTICLE 15
ACCESS TO PREMISES
Section 15.01 Access. The Tenant agrees to permit the
Landlord and the authorized representatives of the Landlord to
enter the Demised Premises at all times during usual business hours
upon reasonable notice, provided Landlord does not unreasonably
interfere with the normal business operations of Tenant, for the
purpose of inspecting the same and upon Tenant's failing to make
repairs or failing to comply with laws, ordinances, rules,
regulations or requirements, etc., making all necessary repairs to
the Demised Premises and performing any work therein that may be
necessary to comply with any laws, ordinances, rules, regulations
or requirements of any public authority or of the Board of Fire
Underwriters or any similar body or that the Landlord may deem
necessary to prevent waste or deterioration in connection with the
Demised Premises. Nothing herein shall imply any duty upon the
part of the Landlord to do any such work which, under any provision
of this Lease, the Tenant may be required to perform, and the
performance thereof by the Landlord shall not constitute a waiver
of the Tenant's default in failing to perform the same. The
landlord may during the progress of any work in the Demised
Premises keep and store upon the Demised Premises all necessary
materials, tools and equipment. The Landlord shall not in any
event be liable for inconvenience, annoyance, disturbance, loss of
business or other damage of the Tenant by reason of making repairs
or the performance of any work in the Demised Premises, or on
account of bringing materials, supplies and equipment into or
through the Demised Premises during the course thereof, and the
obligations of the Tenant under this Lease shall not thereby be
affected in any manner whatsoever.
The Landlord is hereby given the right during usual
business hours to enter the Demised Premises upon reasonable
notice, provided that Landlord does not unreasonably interfere with
the normal business operations of Tenant, and to exhibit the same
for the purposes of sale or hire during the final nine months of
the Term and the Landlord shall be entitled to display, on the
Demised Premises in such manner as not unreasonably to interfere
with the Tenant's business, the usual "For Sale" or "To Let" signs,
and the Tenant agrees that such signs may remain unmolested upon
the Demised Premises.
ARTICLE 16
NOTICES
Section 16.01 Notices. All notices, demands and requests
which may or are required to be given by either party to the other
shall be in writing. All notices, demands and requests by the
Landlord to the Tenant shall be sent by United States Certified
Mail, postage prepaid, addressed to the Tenant at the address
specified on the first page of this Lease or at such other place
as the Tenant may from time to time designate in a written notice
to the Landlord. All notices, demands and requests by the Tenant
to the Landlord shall be sent by United States Certified Mail,
postage prepaid, Return Receipt Requested, addressed to the
Landlord at the address shown on the first page of this Lease or
at such other place as the Landlord may from time to time designate
in a written notice to the Tenant. Notices, demands and requests
which shall be served upon the Landlord or the Tenant in the manner
aforesaid shall be deemed sufficiently served or given for all pur-
poses hereunder at the time such notice, demand or request shall
be mailed.
ARTICLE 17
ACCEPTANCE
Section 17.01 Acceptance. The Demised Premises includes a
building previously erected on the land which Tenant acknowledges
it has inspected and is fully familiar with and its conditions and
is leasing the land and building in a "as is" condition. The
Demised Premises constitutes a self-contained unit, and nothing in
this Lease shall impose any obligation upon Landlord to provide any
service for the benefit of Tenant, including, but not limited to,
water, gas, electricity, heat, air conditioning, janitorial, or any
other service or utility.
ARTICLE 18
QUIET ENJOYMENT - CONVEYANCE BY LANDLORD
Section 18.01 Ouiet Enjoyment. Tenant, upon paying the
Basic Rent and all Additional Rent and other charges herein
provided for and performing all covenants and conditions of this
Lease, on its part to be performed, shall quietly have and enjoy
the Demised Premises during the Term, without hindrance or
molestation by Landlord or any other person claiming through Landlord,
subject, however, to the terms of this Lease and to any Mortgage.
Section 18.02 Conveyance by Landlord. If Landlord shall
convey the Demised Premises, all liabilities and obligations on the
part of Landlord under this Lease shall terminate upon such
conveyance and thereafter all such liabilities and obligations
shall be the liabilities and obligations of such transferee and
shall be binding upon such transferee of the Demised Premises.
ARTICLE 19
ESTOPPEL CERTIFICATE
Section 19.01 Estoppel Certificate. Either party shall,
without charge, at any time from time to time hereafter, within ten
(10) days after written request to the other, certify by written
instrument duly executed and acknowledged to any mortgagee or
purchaser or proposed mortgagee or proposed purchaser, or any other
person specified in such request; (a) as to whether this Lease has
been supplemented or amended and if so, the substance and manner
of such supplement or amendment; (b) as to the validity and force
and effect of this Lease in accordance with its tenor as then
constituted; (c) as to the existence of any default or event of
default; (d) as to the existence of any offsets, counterclaims or
defenses thereto on the part of such other party; (e) as to the
term commencement date and stated expiration dates; and (f) as to
any other matters as may be reasonably so requested. Any such
certificate may be relied upon by the party requesting it and any
other person to whom the same may be exhibited or delivered and the
contents of such certificate shall be binding on the party
executing same. Tenant shall, in addition, within five business
days of the term commencement date, execute and deliver to Landlord
a Tenant Estoppel Letter certifying and stating to those matters
above referred to.
ARTICLE 20
FINANCIAL INFORMATION
Section 20.01 Financial Information. Tenant has furnished
the Landlord with Profit and Loss Statements and Balance Sheets for
the fiscal years ending December 31, 1994, 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, when required by Landlord.
ARTICLE 21
NO ABATEMENT OF RENT
Section 21.01 No Abatement of Rent. Except as otherwise
specifically provided in this Lease, there shall be no abatement,
diminution or reduction of Basic Rent, Additional Rent, other
charges or other compensation due to the Landlord by the Tenant or
any person claiming under it, under any circumstances including but
not limited to the complete or partial destruction of the Building
or any inconveniences, discomfort, interruption of business or
otherwise caused by a taking or destruction of the premises or any
building thereon except as otherwise specifically provided herein.
ARTICLE 22
NONRECORDATION OF LEASE
Section 22.01 Nonrecordation of Lease. Tenant shall not
record the within Lease. Should Tenant record this Lease, Landlord
may at its option, cause the within Lease to be terminated,
cancelled and of no further force and effect or it may bring suit
against Tenant for damages arising therefrom, providing, however,
that Tenant or Landlord shall have the right to record a short form
of lease.
ARTICLE 23
SECURITY
Section 23.01 Security. Tenant has deposited with Landlord
ONE HUNDRED SEVENTY-ONE THOUSAND and NO/100 Dollars ($171,000.00)
as security for the performance of Tenant's obligations under the
Lease. Landlord may use, apply or retain the whole or any part of
the security to the extent required to cure any default of Tenant's
and to reimburse Landlord for any damages or expenses (including,
without limitation, counsel fees) incurred by reason of such
default, including, but not limited to, any damages, deficiency or
expenses in the reletting of the Demised Premises, whether accrued
before or after summary proceedings or other re-entry by Landlord.
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. If Tenant
complies with all of its obligations hereunder, the security shall
be returned to it after the end of the Term and delivery of
possession of the Demised Premises to Landlord. In the event the
Landlord shall sell or assign the premises then, upon such
transfer, Landlord agrees to transfer the security deposit to such
transferee and Landlord shall thereupon be released from all
liability with respect to such security. Tenant shall not assign
or encumber the security and neither Landlord nor its successors
or assigns shall be bound by any such assignment or encumbrance.
Landlord agrees that, as of December 31 of each calendar
year, Landlord shall pay to Tenant an interest factor on the
security deposit equal to the interest paid by United Jersey Bank
on "Preferred Money Market Accounts" during that calendar year.
The foregoing shall not require Landlord to escrow or otherwise
deposit such sum or segregate same, and Tenant recognizes and
understands that Landlord shall have the right to use these funds
for Landlord's general purposes. The interest shall be calculated
at the rate in effect as of the opening of business of each day
during that year. Landlord, with the sum of ONE THOUSAND and
NO/100 Dollars ($l,000.00) on the Commencement Date of this Lease
will open such an account, and the interest rate so reflected on
such account during that calendar year shall be the interest rate
applied to the amount of the security deposit held by the Landlord
during that year.
Section 23.02 The provisions of Section 12.01 shall not be
applicable to this Article.
ARTICLE 24
SURRENDER
Section 24.01. 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.
Landlord shall, in response to Tenant's request, or otherwise,
advise Tenant as to the repairs and restoration to be undertaken
by Tenant prior to the expiration of the Lease Term. Tenant shall,
at least six (6) months before the end of the Term, advise the New
Jersey Department of Environmental Protection and Energy of the
termination of Tenant's use of the premises, and file, with said
Department, such information, affidavits, forms, remedial action
work plan and such other information as said Department may require
and undertake such action or work as required by the Department of
Environmental Protection and Energy pertaining to Tenant's use and
occupancy of the premises as it relates to remedial action or a
remedial action work plan for the removal of hazardous substances
and wastes that remain on the premises demised by reason thereof.
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 light fixtures
and bulbs shall be operable, cleaned and in good working order,
rugs cleaned, and the warehouse floor washed and sealed. Tenant
shall obtain from Landlord Landlord's approval as to the sealer
used by Tenant. The condition of the building and premises shall
be in such a condition upon surrender as though the premises were
used exclusively for 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 building and premises are
in good condition and ready to be re-rented. Tenant and Landlord
understand that during the term of this Lease, the building and its
equipment may be subject to reasonable wear and tear. However,
Landlord and Tenant specifically agree that wear and tear shall not
excuse Tenant from undertaking its repair and maintenance
obligations, and the provisions as herein provided, by way of
example, that the various systems shall be in good operating
condition, are intended to be the standard by which the building
and its systems shall be returned to Landlord by Tenant. If the
Demised Premises is not surrendered as and when aforesaid, Tenant
shall indemnify Landlord against loss or liability resulting from
the delay by Tenant in so surrendering the premises including,
without limitation, any claims made by any succeeding occupant
founded on such delay. Tenant's obligations under this section
shall survive the expiration or sooner termination of the Term.
In the event Tenant, prior to termination of the Lease, fails to
comply with the Rules and Regulations of the Department of
Environmental Protection of the State of New Jersey or other
applicable Federal agencies having jurisdiction over the storage
or use of hazardous substances then, Tenant, at the option of the
Landlord, shall be deemed to be occupying the Demised Premises as
a tenant from month-to-month, at the monthly rental indicated
below. In the event Tenant remains in possession of the Demised
Premises after the expiration of the term and without execution of
a new Lease, or, Tenant fails to restore the premises, or fails to
comply with its other obligations which must be complied with prior
to the termination date of the Lease, then Tenant, at the option
of the Landlord, shall be deemed to be occupying the Demised
Premises as a tenant from month-to-month, at the monthly rental
equal to the higher of 150% of market rent plus one-twelfth
(1/12th) of all items of Additional Rent such as, but not limited
to, taxes, insurance payable or paid during the last lease year or,
four (4) times the sum of (i) the Basic Rent payable for the last
month of the Term under Article 3 hereof and, (ii) one twelfth
(l/12th) of all items of Additional Rent, such as, but not limited
to, taxes, insurance payable or paid during the last lease year.
Tenant shall on a date no later than six (6) months prior
to the termination date of this Lease obtain from the New Jersey
Department of Environmental Protection and Energy ("DEPE") a
non-applicability letter and/or a de minimis quantity exception
and/or a negative declaration approval and/or a written
determination by DEPE that there are no discharged hazardous
materials at the site that occurred during the Lease Term and, if
any had occurred, have been remedied in accordance with applicable
regulations, such determination presently referred to as a No
Further Action letter ("NFA"). If Tenant obtains a
non-applicability exemption or otherwise is not required to
undertake sampling then Tenant shall, at Landlord's option, hire
a consultant satisfactory to Landlord to undertake sampling in a
manner consistent with applicable environmental law sufficient to
determine whether or not Tenant's operations have resulted in any
spill or discharge of hazardous substances or waste at the
premises. Should the sampling reveal any spills or discharges of
a hazardous substance or waste which occurred during the Lease
Term, then Tenant shall, at Tenant's expense, promptly clean up the
premises to the satisfaction of the applicable governmental
agencies which have jurisdiction of the matter and to the
reasonable satisfaction of the Landlord. If Tenant shall fail to
comply with the preceding sentence of this subparagraph prior to
termination of the Lease, then Tenant's obligations to pay rent and
additional rent shall continue until the earlier of either Landlord
rerenting the Premises and a new tenant takes occupancy and
commences to pay rent, or such date as Tenant shall comply with the
foregoing, such rent to be computed as though the Tenant was
occupying the demised premises as a Tenant from month to month as
otherwise set forth in the preceding paragraph.
ARTICLE 25
MISCELLANEOUS
Section 25.01 Table of Contents. The Table of Contents and
headings of this Lease are for convenience of reference only and
in no way define, limit or describe the scope or intent of this
Lease nor in any way affect this Lease.
Section 25.02 No Reservations. 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.
Section 25.03 Laws. This Lease shall be governed by and
construed in accordance with the laws of the State of New Jersey.
Section 25.04 Brokers. Tenant represents that it has dealt
with no realtors, brokers or agents in connection with the
negotiation of this Lease and the renting of the Demised Premises
hereunder, other than Xxxxxxx Xxxxxxxx Company, Inc. and Xxxxxxx
and Wakefield. Should any claims be made for brokerage
commissions, other than those payable to the brokers specified in
this Section, through or on account of dealings of Tenant or its
agents or representatives, Tenant shall indemnify and hold Landlord
harmless against any liability in connection therewith, including
without limitation reasonable claims, damages or counsel fees.
Section 25.05 Broker's Signs. The Tenant shall not permit,
at any time during the term of this Lease, any broker signs to be
attached to, exhibited or placed upon the Demised Premises, which
signs offer the premises for let or for sale unless such broker
has obtained Landlord's prior written consent and presents such
consent to the Tenant.
Section 25.06 Rules and Regulations. The rules and
regulations attached to this Lease are made a part of this Lease,
and Tenant shall comply with them. Landlord shall have the right,
from time to time, to promulgate amendments and additional rules
and regulations for the safety, care and cleanliness of the
premises, or for the preservation of good order. On delivery of
a copy of such amendments and additional rules and regulations to
Tenant, Tenant shall comply with the rules and regulations, and a
material violation of any of them shall constitute a default by
Tenant under this Lease, subject to Tenant's right to cure, as set
forth in Section 10.01 hereof. Irrespective of the foregoing,
Landlord will have the right to strictly enforce the provisions of
Rule 2 as set forth on the Rules and Regulations attached. As to
the enforcement of other Rules and Regulations, whether now
existing or amended, Landlord agrees to permit Tenant, after
notice, to comply in a reasonable manner with such Rules and
Regulations. If there is a conflict between the rules and
regulations and any other provisions of this Lease, the provisions
of this Lease shall prevail.
Section 25.07 Waste. The Tenant covenants not to do or
suffer any waste or damage, disfigurement or injury to any building
or improvement now or hereafter on the Demised Premises, or the
fixtures and equipment thereof, or permit or suffer any overloading
of the floors thereof.
Section 25.08 Compactor. If the municipality or other
governmental agency shall require Tenant to install a garbage
compactor or other storage or waste management facility at the
premises, Tenant shall, at Tenant's expense, install such equipment
and/or storage facility.
Section 25.09 Underground Tanks. Tenant warrants and
represents that it will, at no time, install any underground
storage tanks 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.
Section 25.10 Declaratory Judgment. Wherever in this Lease
Landlord's consent or approval is required, if Landlord shall
refuse such consent or approval, Tenant in no event shall be
entitled to make, nor shall Tenant make any claim, and Tenant
hereby waives any claim for money damages (nor shall Tenant claim
any money damages by way of setoff, counterclaim or defense), based
upon any claim or assertion by Tenant that Landlord unreasonably
withheld or unduly delayed its consent or approval. Tenant's sole
remedy in such event shall be an action or proceeding to enforce any
such provision, for specific performance injunction or declaratory
judgment.
Section 25.11 Corporate Authority. If Tenant is a
corporation, each individual executing this Lease on behalf of said
corporation represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said corporation 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. If Tenant is a corporation, Tenant
shall, within thirty (30) days after execution of this Lease,
deliver to Landlord a certified copy of a resolution of the Board
of Directors of said corporation authorizing or ratifying the
execution of this Lease.
IN WITNESS WHEREOF, the parties have hereunto set their hands
and seals on the date first above written.
Witness: FORSGATE INDUSTRIAL COMPLEX, a
Limited Partnership, Landlord
/s/ XXXXXX X. XXXXXX By: /s/ XXXXXXX X. XXXXXX
- ---------------------------- --------------------------
XXXXXXX X. XXXXXX, GENERAL
PARTNER
By: /s/ XXXXXXX XXXXXXXX
--------------------------
XXXXXXX XXXXXXXX, GENERAL
PARTNER
Attest: XXXX PHILIPPE FRAGRANCES, INC.
Tenant
/s/ By: /s/ Xxxxxxx Xxxxxxxxx
- ---------------------------- ---------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Executive V.P.
STATE OF NEW JERSEY )
) ss.:
COUNTY OF BERGEN )
BE IT REMEMBERED, that on this 10th day of July 1995
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/they acknowledged that he/they
signed, sealed and delivered the same as his/their 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 X. XXXXXX
---------------------------
XXXXXX X. XXXXXX
NOTARY PUBLIC OF NEW JERSEY
My Commission Expires Sept. 17, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on this 26th day of June, 1995
before me, the subscriber, personally appeared, Xxxxxxx Xxxxxxxxx,
who, I am satisfied, is the person who signed the within instrument
as Executive V.P. of XXXX PHILIPPE FRAGRANCES, INC., the
corporation named therein and he/she thereupon acknowledged that
the said instrument made by the corporation and sealed with its
corporate seal, was signed, sealed with the corporate seal and
delivered by him/her as such officer and is the voluntary act and
deed of the corporation, made by virtue of authority from its Board
of Directors.
/s/ XXXXX XXXXXXX
---------------------------
XXXXX XXXXXXX
Notary Public, State of New York
No. 01FA5023811
Qualified in Queens County
Commission Expires Feb. 14, 1996
CORPORATE RESOLUTION
This is to certify that a meeting of the Board of Directors
of XXXX PHILIPPE FRAGRANCES, INC., a corporation of the State of
, held on the day of , 1995, at its
principal office at , Kearny, New Jersey, at
which time there was a quorum present, the following Resolution was
duly adopted and unanimously passed:
BE IT RESOLVED, that the Corporation entered into an Agreement
with FORSGATE INDUSTRIAL COMPLEX for premises commonly known as 00
Xxxxxx Xxxx, Xxxxx Xxxxxxxxx, Xxx Xxxxxx, for a period of eight
(8) years in accordance with a certain draft of lease attached.
BE IT FURTHER RESOLVED, that the President and/or Vice
President and Secretary be and they are hereby authorized to
execute the Agreement (Lease) and to affix the corporate seal
thereto.
That the officers referred to in the foregoing Resolution are
as follows:
President: __________________
Vice President: __________________
Secretary: __________________
I hereby certify that the foregoing Resolution was duly
adopted by the Board of Directors of XXXX PHILIPPE FRAGRANCES,
INC., a corporation of the State of , at a meeting held
on the day of , 1995, and that the above-
named officers are duly qualified and hold the offices stated
aforesaid.
_________________________________
Secretary
SCHEDULE A
DESCRIPTION OF TAX XXX 00, XXXXX 00,
XXXXXX XXXX, XXXXXXXX OF SOUTH BRUNSWICK,
MIDDLESEX COUNTY, NEW JERSEY.
Begining at a point in the southerly line of Xxxxxx Road (as
widened to thirty-three (33) feet from the center line ), where the
same is intersected by the division line between lot 15 and lot l6
in Tax Block 10, said point being one thousand one hundred forty-nine
and twenty-seven hundredths (1,149.27) feet northwesterly from the
point of intersection formed by the northeasterly prolongation of the
westerly line of Cranbury-South River Road (as widened) and the
southeasterly prolongatlon of the southerly line of Xxxxxx Road (as
widened); and running: -
Thence (l) northwesterly, along the southerly line of Xxxxxx Road (as
widened) north seventy-two degrees fifty-one minutes west (N 72 degrees-51'W),
six hundred forty-four and no hundredths (644.00) feet to a point;
Thence (2) southwesterly along the easterly line of Lot 18 in Tax
Block 10, south seventeen degrees nine minutes west (S 17 degrees--O9'W),
five hundred ninety and eighty-two hundredths (590.82) feet to a
point;
Thence (3) southeasterly, parallel to Xxxxxx Road, south seventy-two
degrees fifty-one minutes east (72 degrees-51' E ), six hundred forty-four
and no hundredths (644.00) feet to a point;
Thence (4) northeasterly, along the division line between Lot 15 and
Lot 16 in Tax Block 10; north seventeen degrees nine minutes east
(N 17 degrees-09' E), five hundred ninety and eighty-two hundredths (590.82)
feet to the point and place of beginning.
Containing an area of eight and seven hundred thirty-four thousandths
(8.734) Acres.
Being the premises known and designated as Lot 16 in Block 10 in the
Tax Records of the Township of South Brunswick.
Being Xxx 00 xxx Xxx 00 xx Xxxxx 10 as shown on a certain map entitled
"Final Subdivision Plat, Section One, Forsgate Industrial Complex,
Township of South Brunswick, Middlesex County, New Jersey"., which map
was filed in the Middlesex County Clerk's Office as filed map No. 3992,
File No. 963 on September 30, 1977. The said Lot 16 and Lot 17 were
combined by Reverse Minor Subdivision No. 820 which was approved by the
Township of South Brunswick Plannlng Board on December 13, 1977. A deed
description was filed in the Middlesex County Clerk's office on April 7,
1975 in Deed Book 3024, Page 796.
Subject to a fifty (50) foot wide easement southerly to and
contiguous with the first course herein above described for the
purpose of installing and maintaining Detention Ponds and Storm
Drainage installations.
Subject to a ten (10) foot wide easement easterly to and contiguous
with the second course herein above described and a ten (10) foot
wide easement westerly to and contiguous with the fourth course
herein above described for the installation, replacement and
maintenance of above ground and below ground utlilties and channelized
surface drainage. In the event that Lot 16 and Xxx 00 xx Xxx Xxxxx 00
xxxxx xx combined, any easement along a common property line shall be
null and xxxx.
Subject to a fifty (50) foot wide easement northerly to and contiguous
with the third course herein above described for the installation,
replacement and maintenance of Railroad facilities, above ground and below
ground utilities and channelized surface drainage.
[PROPERTY MAP]
XXX 00 XXX 00
XXXXXXXX X
RULES AND REGULATIONS
The Tenant covenants and agrees with the Landlord to obey
the following rules and regulations:
1. All garbage and refuse shall be kept in containers
inside the premises. If the Landlord shall provide or designate
a service for picking up refuse and garbage, Tenant shall use
same at its cost; the Tenant shall pay the cost to remove any of
its rubbish or refuse. The Tenant shall not burn any trash or
garbage of any kind in or about the building.
2. The Tenant shall maintain, at its expense, a
landscaping service and shall provide that the lawns shall be
watered, reseeded, fertilized and regularly mowed and maintained,
and debris shall be removed, if any, and all shrubery shall
likewise be fertilized, maintained, pruned and replaced when
necessary. The sidewalks or entrances shall not be obstructed or
encumbered by Tenant or used for any purposes other than ingress
and egress and the parking lot shall be used exclusively for the
parking of motor vehicles of Tenant's employees and invitees.
The parking lot shall be swept, maintained, retarred when
necessary and striped. Tenant shall not be required to retar in
the last three years of the Lease.
3. The 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 the Landlord.
4. The Tenant shall, at its cost and expense, use a pest
extermination service so as to keep the premises free of same.
5. The 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, when necessary and painting of trim and the like.
6. Tenant shall not at any time, without first obtaining
Landlord's consent, change, by alteration or replacement,
rebuilding or otherwise, the exterior color or architectural
treatment of the leased bullding.
7. Tenant shall not use or permit to be used any loud
speaker or sound amplifier which may be heard outside of the
leased property.
8. Tenant shall not suffer, allow or permit any offensive
or obnoxious vibration, noise, odor, or other undesirable effect
to emanate from the leased property, 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 adjoining properties.
9. Tenant shall not erect a ground sign or building sign
without prior written consent of Landlord. Landlord will not
unreasonably withhold its consent or delay the same if the sign
does not damage the building, and any such sign is dignified.
10. Tenant shall maintain and keep lit any and all exterior
architectural lighting which may be installed by the Landlord.
11. Tenant shall have the right, provided same is done in
accordance with the zoning ordinance of the municipality, to park
trucks on the property along the area wherein are located the
loading docks. The Tenant shall not park trucks in any other
portion of the Demised Premises.
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 cost and
expense incurred by the Landlord therefor to the next install-
ation of rental due under this Lease, and the Tenant shall then
pay such amount, as additional rent hereunder; or (2) 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.
Landlord reserves the right, from time to time, to
promulgate additional rules and regulations as Landlord, provided
that Landlord gives notice to Tenant not less than sixty (60)
days prior to the effective date of new or revised rules; such
new or revised rule is applied uniformly to all tenants in the
industrial park in which the Demised Premises are located, and
such new or revised rule does not interfere with the normal
business operations of Tenant.
