INTEROFFICE MEMO
TO: THERAL MACKEY
LINDA BARTENFIELD
FROM: JACK SHARPE
DATE: SEPTEMBER 23, 1996
SUBJECT: NEW WAREHOUSE - NORTHEAST REGION
--------------------------------------------------------------------------------
During the month of December of this year or January, 1997, we will move from
our current New Jersey warehouse to a larger warehouse.
We are in the process of signing a new lease as follows:
LOCATION: 100 Alexander Ave., Industrial Park
Pompton Plains, NJ
EFFECTIVE DATE: January 01, 1997
TERMS: 7 1/2 years with right to cancel in 5 years.
OPTIONS: One for 2 1/2 years, one for 5 years - Total 7 1/2 years
SIZE: Total 164,437 sq. ft., initially we will only occupy
98,137 sq. ft.
LANDLORD: Westend Road Associates
C/O The Opper Group
1460 Valley Road
P.O. Box 559
Wayne, NJ 07474-0559
RENT: BASE = $28,623.29 For January, 1997
DEPOSIT = $28,623.29
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TOTAL = $57,246.58 Due 09/23/96
==========
ADDITIONAL DEPOSIT = 28,623.29 09/25/96
LEASE
Between
WEST END ROAD ASSOCIATES,
a New Jersey Partnership
Landlord
and
MOHAWK INDUSTRIES, INC.,
a Delaware Corporation
Tenant
Dated: September 23, 1996
SILLS CUMMIS ZUCKERMAN RADIN
TISCHMAN EPSTEIN & GROSS, P.A.
The Legal Center
One Riverfront Plaza
Newark, New Jersey 07102-5400
TABLE OF CONTENTS
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Section
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Premises
1 Term
2 Rent
3 Proportionate Share
4 Additional Rent
5 Operating Costs
6 Landlord's Obligations
7 Intentionally Omitted
8 Net Lease
9 Additional Space
10 Purpose
11 Default in Payment of Rent -
Abandonment of Premises -
Relating
12 Subletting and Assignment
13 Condition of Premises; Repairs -
Clean and Sanitary and Repairs
14 Utilities, Services, Costs, Expenses, Taxes
15 Mechanics' Liens
16 Non-Liability of Landlord - Landlord Indemnity
17 Liability Insurance
18 Tenant's Own Insurance
19 Mutual Waiver of Subrogation
20 Failure to Obtain Insurance
21 Unavailability of Fire Insurance
22 Right to Inspect and Exhibit
23 Total or Partial Destruction
24 Laws and Ordinances
25 Signs
26 Priority of Fee Mortgages
27 Security Deposit - First Month's Rent
28 Rules and Regulations
29 Tenant's Violation of Terms - Re-entry by
Landlord
30 Notices
31 Entire Agreement; No Oral Changes
32 Insolvency of Tenant
33 Eminent Domain; Condemnation
34 Delivery of Lease
35 Lease Provisions Not Exclusive
36 Heirs, Etc.
37 Date of Possession
38 Real Estate Taxes
39 Tax Appeals by Landlord
40 Quiet Enjoyment
41 Reservation of Title
42 Outside Storage
43 Certificate of Occupancy
44 Holding Over
45 Consents to Defaults
46 Payments in Event of Default
47 Financial Statements
48 Table of Contents and Marginal Notes
49 Broker
50 Accord and Satisfaction
51 Consents
52 Hazardous Substances
53 Negotiated Agreement
54 Processing Charge
55 Mortgagee Protection Clause
56 Interpretation
57 Right of First Refusal
58 Modifications Requested by Mortgagee
59 Intentionally Omitted
60 Renewal Options
61 Cancellation Option
62 Parties Duly Authorized
63 Septic System
Signatures
Schedule "A" - Description of Premises
Schedule "B" - Roof Work
Schedule "C" - Landlord Alteration
Schedule "D" - Letter from James C. Anderson
Associates, Inc.
Schedule "E" - Letter from The Whitman
Companies, Inc.
LEASE
-----
THIS AGREEMENT, entered into this 23 day of September, 1996, between WEST
END ROAD ASSOCIATES, a New Jersey Partnership, having offices c/o The Opper
Group, 1460 Valley Road, P.O. Box 559, Wayne, New Jersey 07474-0559, hereinafter
referred to as "Landlord", and MOHAWK INDUSTRIES, INC., a corporation of the
State of Delaware, having offices at 2001 Antioch Road, Dalton, Georgia 30721,
hereinafter referred to as "Tenant".
W I T N E S S E T H:
PREMISES: Landlord hereby demises and leases unto Tenant and Tenant hereby
--------
hires and takes from Landlord, for the term and upon the rentals, terms and
conditions hereinafter specified, the premises described on Schedule "A" (the
"Premises") consisting of the entire building (the "Building") containing
approximately 164,437 square feet of space and the common areas appurtenant
thereto located at 100 Alexander Avenue Industrial Park, Pompton Plains, New
Jersey (the "Park") ; provided, however, that until the approximately 62,000
square feet of the Park presently occupied by 3B Trucking (the "3B Space") and
the approximately 4,300 square feet of the Park presently occupied by Peridot
(the "Peridot Space") become part of the Premises pursuant to Section 9 below,
Tenant's rights with respect to the common areas of the Park shall be limited to
a right of access to the Premises and all common areas of the Park, including
all trailer parking, together with thirty (30) designated parking spaces in the
front of the Park. The Premises are to be delivered in the "AS IS" condition as
of the date hereof, subject to normal wear from the date hereof to the date of
delivery of the Premises (or respective part thereof), except that (a) Landlord
shall cause the work set forth on Schedule "B" to be undertaken to the roof of
the Building, so that the roof is to be delivered free of
-1-
leaks and in good repair, (b) all mechanicals (i.e. heating, ventilating, air
conditioning, electrical and plumbing) are to be in good working order (and the
heating system is to be in good working order at the beginning of the heating
season), (c) the parking area and loading area are to be delivered in good
condition, with patching or paving where needed, and with adequate drainage so
that there are no large areas of freestanding water, and (d) broken glass is to
be replaced, (e) all light fixtures are to be in working order, (f) the exterior
of the Building is to be painted, (g) the oil water separator is to be pumped,
(h) Landlord shall complete all of the alterations set forth on Schedule "C"
(the "Landlord Alteration") , and (i) Landlord shall spend up to an aggregate of
Ten Thousand ($10,000.00) Dollars as directed by Tenant on account of repairs,
alterations and/or renovations to the Premises not delineated in (a) through (h)
above.
The Premises, the 3B Space and the Peridot Space may, at Tenant's option to
be exercised prior to January 1, 1997, be measured by a licensed engineer or
architect reasonably acceptable to Landlord, in which event the Basic Rent (as
defined in Section 2 below) and Tenant's Proportionate Share (as defined in
Section 3 below) shall be adjusted to reflect the square footages as certified
by such engineer or architect. Tenant shall be responsible for the payment of
the fees of the engineer or architect.
SECTION 1: TERM:
----------------
The term of this demise shall be seven (7) years and six (6) months
beginning on January 1, 1997 and ending at midnight on June 30, 2004 (the
"Term"), subject, however, to the terms contained herein. Notwithstanding the
foregoing, Tenant may occupy the Premises commencing on November 1, 1996, and in
consideration therefore, Tenant shall comply with all of the terms and
provisions of the Lease for the period from November 1, 1996 through December
31, 1996. In no event, however, shall Tenant be obligated to pay Rent (as
defined below) with respect to the 3B Space and/or the Peridot Space for any
period of time
-2-
prior to January 1, 1997, regardless of whether Tenant occupies the 3B Space
and/or the Peridot Space at any time prior to January 1, 1997.
SECTION 2: RENT:
---------------
The basic rent during the Term of this Lease ("Basic Rent") shall be Four
Million Five Hundred Sixty-three Thousand One Hundred Twenty-six and 75/100
($4,563,126.75) Dollars. The Basic Rent from January 1, 1997 through December
31, 2001 shall accrue at an annual rate of Five Hundred Seventy-five Thousand
Five Hundred Twenty-nine and 50/100 ($575,529.50) Dollars and be payable in
equal monthly installments of Forty-seven Thousand Nine Hundred Sixty and 79/100
($47,960.79) Dollars; and the Basic Rent from January 1, 2002 through June 30,
2004 shall accrue at an annual rate of Six Hundred Seventy-four Thousand One
Hundred Ninety-one and 70/100 ($674,191.70) Dollars and be payable in equal
monthly installments of Fifty-six Thousand One Hundred Eighty-two and 64/100
($56,182.64) Dollars. Notwithstanding the foregoing, if any time during the Term
either the 3B Space and/or the Peridot Space is, not part of the Premises, then
for that period of time, Tenant shall receive a credit against the Basic Rent
for the square footage of such space(s) not leased at the rate of $3.50 per
square foot per annum for the first 5 years of the initial Term, $4.10 per
square foot per annum for the last 2 years and 6 months of the initial Term, and
the rates set forth in Section 60(c) below for the two renewal terms. Each
monthly installment of Basic Rent shall be paid and be payable in equal monthly
installments on or before the first day of each month, in advance, at the office
of Landlord or at such other place as shall be designated by Landlord, without
any prior notice or demand therefor and without any deduction, abatement or set-
off for any reason whatsoever.
The Basic Rent and any additional rent are hereinafter referred to as
"Rent".
-3-
SECTION 3: PROPORTIONATE SHARE:
------------------------------
For the purposes of this Lease, Landlord and Tenant agree that the Premises
constitute 100% of the Park ("Proportionate Share") , except as follows:
(a) So long as the Premises excludes both the 3B Space and the Peridot
Space, the Proportionate Share shall be 60%;
(b) So long as the Premises excludes the 3B Space but includes the Peridot
Space, the Proportionate Share shall be 62.3%; and
(c) So long as the Premises excludes the Peridot Space but includes the 3B
Space, the Proportionate Share shall be 97.4%.
SECTION 4: ADDITIONAL RENT:
--------------------------
Tenant shall pay, as Additional Rent, its Proportionate Share of all of the
Operating Costs as defined in Section 5 of this Lease. So long as Tenant is
paying all of the Operating Costs and the Premises exclude the 3B Space and/or
the Peridot Space, Tenant shall receive a credit against the Basic Rent and/or
additional rent such that the net result is that it is only paying its
Proportionate Share of Operating Costs. However, notwithstanding anything to the
contrary, Landlord shall continue to pay taxes and charge Tenant for its
Proportionate Share as set forth in Section 5 below.
SECTION 5: OPERATING COST:
-------------------------
Operating Costs, for the purposes of this Lease, shall mean the aggregate
of all expenses of operating the common areas of the Park and its appurtenances
and shall include, but shall not be limited to, the following: all expenses for
maintaining, operating and repairing the Park and its appurtenances, including
the expenses of normal replacement of worn out equipment, facilities and
installations; the cost of electricity, water, and other utilities; security;
gardening and other landscaping; snow removal (notwithstanding anything to the
contrary, Tenant shall undertake all snow removal in the Park at its sole cost,
regardless of whether it occupies the entire Park, and if
-4-
Tenant's Proportionate Share is less than 100% at the time it undertakes any
snow removal, Tenant shall receive a credit against the Basic Rent and/or
additional rent which is a percentage of the cost of such snow removal equal to
the difference between 100% and Tenant's Proportionate Share; however, such
credit shall not duplicate any portion of the credit described in Section 4
above allocable to snow removal); maintenance and repair of the parking lot;
fire insurance, liability insurance and rent insurance (if Tenant defaults under
any provision of this Lease, or if Landlord's mortgagee so requires, Tenant's
Proportionate Share of such insurance costs shall be payable monthly to Landlord
in an amount equal to one-twelfth (1/12th) of the annual insurance costs); taxes
as defined in Section 38 of this Lease (if Tenant defaults under any provision
of this Lease, or if Landlord's mortgagee so requires, Tenant's Proportionate
Share of such taxes shall be payable monthly to Landlord in an amount equal to
one-twelfth (1/12th) of the annual taxes); painting; supplies; sales or use
taxes on supplies or services; the charges of any independent contractor who
performs or does any of the work of operating, maintaining, or repairing the
Park and its appurtenances; and any other expenses or charges of any nature
whatsoever, whether or not herein mentioned, which is in accordance with sound
accounting and management principles generally accepted with respect to the
operation of a first-class industrial park, would be considered as Operating
Costs.
Operating Costs shall not include, however, those matters described as
Landlord's obligations in Section 6 below, executive salaries, leasing
commissions, depreciation, interest on and amortization of mortgages, franchise,
income and other taxes based upon the income of Landlord, provided the same
shall not have been levied as a substitute for real property taxes and shall not
include any items otherwise constituting such expense
-5-
to the extent payment therefor is received from, or payable by, another tenant
of the Park.
SECTION 6: LANDLORD'S OBLIGATIONS:
---------------------------------
Landlord shall, at its own expense, make all structural repairs, to include
replacement and major repairs of structural beams and columns, foundation and
building slab, and any required replacement, maintenance and repairs to the
roof, unless such replacement, maintenance and/or repairs are necessitated by
negligence, acts or omissions of Tenant, its servants, agents or employees, in
which event said replacement, maintenance and/or repairs shall be made by
Landlord upon reasonable prior notice to Tenant at Tenant's expense.
SECTION 7: INTENTIONALLY OMITTED.
--------------------------------
SECTION 8: NET LEASE:
---------------------
This Lease is a net lease and the Basic Rent shall be absolutely net to
Landlord so that, except as expressly provided in this Lease, this Lease shall
yield, net, to Landlord, the Basic Rent during the Term.
SECTION 9: ADDITIONAL SPACE:
---------------------------
Once the 3B Space becomes vacant, Landlord shall notify Tenant in writing,
and the 3B Space shall be deemed part of the Premises upon the first to occur of
(a) the thirtieth (30th) day following such notice from Landlord to Tenant, but
in no event earlier than the day after 3B Trucking vacates the 3B Space and same
is available for occupancy, or (b) Tenant's occupancy of all or part of said
space; provided, however, that Tenant shall have the right to require that
Landlord notify 3B Trucking to vacate said space on 30 days prior written
notice, in which event the 3B Space shall be deemed part of the Premises upon 3B
Trucking surrendering and delivering possession of same to Landlord; provided,
however, that except in the event of a default by 3B Trucking under its lease,
Landlord may not, without Tenant's consent, notify 3B Trucking to vacate the 3B
Space. Once the Peridot Space becomes vacant (Peridot is obligated to vacate
said
-6-
space on or before April 30, 1998), Landlord shall notify Tenant in writing, and
the Peridot Space shall be deemed part of the Premises on the first to occur of
(a) the thirtieth (30th) day following such notice from Landlord to Tenant, but
in no event earlier than the day after Peridot vacates the Peridot Space and
same is available for occupancy, or (b) Tenant's occupancy of all or part of the
Peridot Space. When both spaces become part of the Premises, the Premises shall
consist of the entire Park, and Tenant shall be responsible for, and shall
directly pay for, all of the Operating Costs of the Park, except as set forth in
the last sentence of Section 4 above, and except as limited by Section 6 above;
provided, however, that Landlord shall have the right to continue to provide, at
Tenant's cost, the insurance coverage constituting a part of Operating Costs,
unless Tenant is able to provide insurance coverage in amounts no less than that
carried by Landlord, insuring against the same liabilities, by a carrier duly
authorized in New Jersey and having a Best's (or similar) rating comparable to
that of Landlord's carrier, and which policies shall provide Landlord no less
than thirty (30) days prior written notice of cancellation, in which event
Tenant may maintain and pay for such insurance coverage as part of Operating
Costs.
SECTION 10: PURPOSE:
--------------------
Tenant covenants and agrees to use the Premises for a distribution and
trucking facility, which, however, shall not include the use of red-labeled
material, and further agrees not to use or permit the Premises to be used for
any other purposes without the prior written consent of Landlord, which consent
shall not be unreasonably withheld.
SECTION 11: DEFAULT IN PAYMENT OF RENT - ABANDONMENT
-----------------------------------------------------
OF PREMISES - RELETTING:
-----------------------
Tenant shall, without any previous demand therefor, pay to Landlord, or its
agent, the Rent and at the times and in the manner herein provided. In the event
of the non-payment of the Rent, or any installment thereof, at the times and in
the manner
-7-
above provided, and if the same shall remain in default for five (5) days
following written notice from Landlord to Tenant of such non-payment, or if
Tenant shall be dispossessed for non-payment of Rent, or if the Premises shall
be deserted or vacant, Landlord or its agents shall have the right to and may
enter the Premises as the agent of Tenant, either by force or otherwise, without
being liable for any prosecution or damages therefor, and may, but shall not be
under any obligation to, relet the Premises as the agent of Tenant, and receive
the rent therefor, upon such terms as shall be reasonably satisfactory to
Landlord, and all rights of Tenant to repossess the Premises under this Lease
shall be forfeited. Such re-entry by Landlord shall not operate to release
Tenant from any Rent to be paid or covenants to be performed hereunder during
the full term of this Lease. For the purpose of reletting, Landlord shall be
authorized to make such reasonable repairs or alterations in or to the Premises
as may be reasonably necessary to place the same in the condition they were at
the commencement of the term. Tenant shall be liable to Landlord for the
reasonable cost of such repairs or alterations and all reasonable expenses of
such reletting. If the sum realized or to be realized from the reletting is
insufficient to satisfy the Rent provided in this Lease, Landlord, at its
option, may require Tenant to pay such deficiency month by month, or may hold
Tenant in advance for the entire deficiency to be realized during the term of
the reletting. Tenant shall not be entitled to any surplus accruing as a result
of the reletting. Landlord shall have the right, as agent of Tenant, to take
possession of any furniture, fixtures or other personal property of Tenant found
in or about the Premises after Tenant has vacated or abandoned the Premises, and
sell the same at public or private sale and to apply the proceeds thereof to the
payment of any monies becoming due under this Lease, Tenant hereby waiving the
benefit of all laws exempting property from execution, levy and sale on distress
or judgment. Tenant agrees to pay, as
-8-
additional rent, all reasonable attorney's fees and other expenses incurred by
Landlord in enforcing Tenant's obligation to pay Rent or any other default of
Tenant, whether or not a trial ensues.
SECTION 12: SUBLETTING AND ASSIGNMENT:
-------------------------------------
Tenant shall not, without first obtaining the written consent of Landlord,
assign, mortgage, pledge or encumber this Lease in whole or in part, or sublease
the Premises or any part thereof, which consent shall not be unreasonably
withheld. This covenant shall be binding upon the legal representatives of
Tenant and on every person to whom Tenant's interest under this Lease passes by
operation of law, but shall not apply to an assignment or subletting to the
parent or another subsidiary of the parent or an affiliated corporation of the
parent or a corporation under the same control as the parent, or a division of
the parent, or the sale of Tenant's business including its equipment, or its
transfer of its leasehold interest occasioned by a consolidation or merger
involving Tenant so long as the net worth after such consolidation or merger is
equal to or greater than the net worth of Tenant prior to such consolidation or
merger. At the time Tenant makes a request to Landlord to assign or sublet the
Premises, Tenant shall disclose all documents relating to the proposed
assignment or sublease and all documents relating to the sale of Tenant's
assets, including without limitation the financial statements of the proposed
assignee or sublessee, the financial statements of Tenant, and the proposed
sublease or assignment. In the event Landlord shall consent to an assignment or
subletting, that fact shall not relieve Tenant from the obligations or
liabilities of this Lease nor relieve Tenant from obtaining the consent of
Landlord in the event of a further assignment or subletting.
In the event that Tenant requests such an assignment or subletting except
to the parent or another subsidiary of the parent or an affiliated corporation
of the parent or a
-9-
corporation under the same control as the parent or to a division of the parent,
or the sale of Tenant's business including its equipment, or its transfer of its
leasehold interest occasioned by a consolidation or merger involving Tenant so
long as the net worth after such consolidation or merger is equal to or greater
than the net worth of Tenant prior to such consolidation or merger, Landlord
reserves the right to (a) approve said assignment or subletting without
releasing Tenant from any liability pursuant to this Lease, or (b) with respect
to an assignment or a sublease of at least fifty (50%) percent of the floor
space of the Premises, to terminate this Lease, take back the Premises and
release Tenant from the obligation to further perform under the terms and
conditions of this Lease, or (c) withhold its consent (but not unreasonably) to
said assignment or subletting. Landlord shall have twenty (20) days from receipt
of request for such assignment or subletting all information required hereunder
in which to notify Tenant of its decision and shall notify Tenant in writing
within said period of its decision. Landlord may enter into lease negotiations
directly with such proposed subtenant (but only if the proposed sublease is for
at least fifty (50%) percent of the floor space of the Premises) or such
proposed assignee. Notwithstanding that Tenant shall remain primarily liable
under this Lease, any assignment or sublease consented to by Landlord shall
provide that such assignee or sublessee shall assume all of the obligations of
Tenant hereunder. Tenant shall, at its expense, strictly enforce the terms and
conditions of this Lease against such assignee or sublessee. If Tenant is in a
payment default under this Lease, then on demand, any assignee or subtenant
shall make payments directly to Landlord. If Landlord consents to any assignment
or sublease where its consent is required hereunder, Tenant shall pay to
Landlord, as Additional Rent, all consideration received by Tenant for any
assignment, and all profit (determined on a dollar per square foot basis)
received by Tenant on any sublease
-10-
transaction, net of tenant improvements required to be made in connection
therewith, broker's fees reasonable legal fees, advertising and any other
reasonable direct costs relating to the assignment or sublease.
Notwithstanding anything to the contrary, except in the event of an
assignment or subletting in connection with the sale of Tenant's business to a
third party, Landlord shall have the absolute right to disapprove any assignment
or subletting where the proposed assignee or subtenant has an S.I.C. number
subject to the provisions of ISRA (as defined in Section 52 below) or where the
proposed use would, in Landlord's reasonable judgment, subject the Premises to
ISRA mandated cleanup obligations.
SECTION 13: CONDITION OF PREMISES: REPAIRS-CLEAN AND SANITARY AND REPAIRS:
--------------------------------------------------------------------------
Tenant shall keep the Premises in good condition, repair and appearance.
Tenant shall quit and surrender the Premises at the end of the Term in good
condition, reasonable wear and tear excepted, and shall not make any
alterations, additions or improvements to the Premises without the prior written
consent of Landlord, which consent shall not be unreasonably withheld; provided,
however, in the event Landlord does consent to Tenant's making any alterations,
additions or improvements, Landlord reserves the right, thirty (30) days prior
to the end of the Term, to demand that Tenant remove said alterations or
improvements or leave same; provided, further, that Tenant may, without
Landlord's consent, convert the offices so designated on Schedule "A" to
warehouse use, without the obligation to restore same to office use at or prior
to the end of the Term. In the event that Landlord requires the removal of said
alterations or improvements, then Tenant shall restore the Premises to their
condition prior to the installation of said additions or improvements. All
erections, alterations, additions and improvements, which are permanent in
character, which may be made upon the Premises either by Landlord or Tenant,
except furniture or movable fixtures, machinery and equipment installed at the
-11-
expense of Tenant, shall be the property of Landlord and shall remain upon and
be surrendered with the Premises as a part thereof at the expiration or sooner
termination of this Lease, without compensation to Tenant, unless Landlord has
required their removal as aforesaid. Tenant further agrees to keep the Premises
and all parts thereof, including, but not limited to, the loading docks,
electrical wiring, plumbing and heating, ventilating and air conditioning
equipment, platforms, windows, walkways, exits and entrances to the Premises, in
a clean and sanitary condition and free from trash, snow, ice, inflammable
materials and other objectionable matter.
SECTION 14: UTILITIES, SERVICES, COSTS, EXPENSES, TAXES:
-------------------------------------------------------
(a) Tenant shall furnish heat and air conditioning at its own cost and
expense.
(b) Tenant shall repair all utility, ventilating, heating, air
conditioning, electrical, gas and other utility lines within the Premises except
if damage outside of the Premises is caused by the negligence, acts or omissions
of Tenant, its agents, servants or employees, in which event Tenant shall
likewise repair same outside of the Premises. Tenant shall replace, at its own
expense, any and all glass which may be broken in and on the Premises.
(c) Tenant shall pay all costs for electricity, water, standby sprinkler
charges, repairs to the sprinkler system, gas and other utilities and services
consumed by it.
(d) In the event that any utility deposits are necessary, Tenant shall
pay said deposits to the utility company.
SECTION 15: MECHANICS' LIENS:
----------------------------
In the event that any mechanic's lien is filed against the Premises as a
result of alterations, additions or improvements made by Tenant, Tenant shall,
within ten (10) days after receiving notice from Landlord, remove said lien or
post any bond which may be required, which bond shall be with adequate surety.
In the event that Tenant fails to file a bond as set forth above,
-12-
then Landlord may, at its option, terminate this Lease and may pay said lien,
without inquiring into the validity thereof, and Tenant shall forthwith
reimburse Landlord the total expense incurred by Landlord in discharging said
lien, as additional rent.
SECTION 16: NON-LIABILITY OF LANDLORD - LANDLORD INDEMNITY:
----------------------------------------------------------
(a) Landlord shall not be liable or responsible for the loss of or damage
to property, or injury to persons, including Tenant, occurring in or about the
Premises or the Park by reason of any existing or future condition, defect,
matter or thing in the Premises or the Park or for the acts, omissions or
negligence of other persons or tenants in and about the Park, or for acts or
omissions or defects in design or construction caused by the contractor or any
subcontractors responsible for the construction of or repairs or alterations to
the Park or the Premises. Tenant agrees to indemnify and save Landlord harmless
from all claims and liability for loss of or damage to property, or injuries to
persons occurring in or about the Premises or the Park due to the negligent acts
or omissions of Tenant, its servants, agents, employees or invitees. Tenant's
obligation pursuant to this Section 16 (a) shall be satisfied provided that it
obtains insurance as set forth in Section 17.
(b) The liability of Landlord shall in any event be limited to its
interest in the Park and Tenant agrees that, in the event of any claim or action
against Landlord, Tenant shall not look to any assets of Landlord or any of its
partners other than the Park.
SECTION 17: LIABILITY INSURANCE:
-------------------------------
Tenant, at its cost, shall maintain public liability and property damage
insurance with liability limits of not less than Five Million ($5,000,000)
Dollars of Combined Single Limit insuring against all liability of Tenant, its
agents, servants and employees arising out of and in connection with Tenant's
use of the Premises and the Park. All of the aforesaid insurance
-13-
shall insure both Tenant and Landlord, who shall be named as co-insureds, and
Tenant shall deliver to Landlord, ten (10) days prior to the expiration of said
policy, a renewal thereof.
SECTION 18: TENANT'S OWN INSURANCE:
----------------------------------
Tenant may effect, for its own account, any insurance not required under
the provisions of this Lease, but any insurance effected by Tenant on the
Premises, whether or not required pursuant to this Lease, shall be for the
mutual benefit of Landlord and Tenant and shall be subject to all provisions of
this Lease.
SECTION 19: MUTUAL WAIVER OF SUBROGATION:
----------------------------------------
It is covenanted and agreed by and between the parties hereto that Tenant
shall relieve Landlord of all liability for loss or damage to Tenant's property,
whether real or personal, caused by fire and/or the perils covered in a standard
form fire insurance policy with Extended Coverage, due to any acts of commission
or omission of Landlord; and Landlord shall relieve Tenant of all liability for
loss or damage to Landlord's property, whether real or personal, caused by fire
and/or the perils covered in a standard form fire insurance policy with Extended
Coverage, due to any acts of commission or omission of Tenant.
SECTION 20: FAILURE TO OBTAIN INSURANCE:
---------------------------------------
If any of the policies of insurance as in this Lease provided to be
obtained and maintained by Tenant or Landlord cannot be obtained and/or kept in
force through Tenant's fault, and Tenant shall fail to commence to cure, remedy
and correct the condition which makes it impossible to obtain and keep in force
said policies within fifteen (15) days after written notice given by Landlord to
Tenant, and Tenant fails, neglects or refuses to proceed diligently to cure such
condition, Landlord may terminate this Lease by giving at least fifteen (15)
days' notice of such termination to Tenant, and this Lease shall terminate at
the expiration of said fifteen (15) days with the same force and
-14-
effect as if that were the original expiration date thereof, and Tenant shall be
and remain liable to Landlord for all damages and losses suffered by it in the
same manner as if this Lease were terminated for any other default of Tenant. In
lieu of exercising such right of termination, Landlord may, at its option,
obtain such policies at regular or increased rates and pay the premiums
therefor, and Tenant shall reimburse Landlord for the amount of such premium
upon demand, and, if not paid, the amount thereof, together with interest at two
(2%) per cent per month, shall be added to the amount of the next month's rent
as Additional Rent.
SECTION 21: UNAVAILABILITY OF FIRE INSURANCE:
--------------------------------------------
If, because of Tenant's occupancy, it shall be impossible to obtain fire
insurance on the Park in an amount and in the form and in fire insurance
companies licensed in the State of New Jersey, Landlord may, if Landlord so
elects, at any time thereafter, terminate this Lease and the Term thereof on
giving to Tenant thirty (30) days' notice in writing of Landlord's intention so
to do, and, upon the giving of such notice, this Lease and the Term thereof
shall terminate and come to an end, and the parties shall have no liability from
one to the other except for accrued obligations with respect to periods of time
prior to the date of termination.
SECTION 22: RIGHT TO INSPECT AND EXHIBIT:
----------------------------------------
Landlord, or its agent, shall have the right to enter the Premises at
reasonable hours in the day, and at night in the case of emergency, upon
reasonable prior verbal notice (except in the case of emergency), to examine the
same, or to run telephone or other wires, or to make such repairs, additions or
alterations as it shall deem necessary for the safety, preservation or
restoration of the improvements, or for the safety or convenience of the
occupants or users thereof (there being no obligation, however, unless expressly
set forth herein, on the part of Landlord to make any such repairs, additions or
alterations), or
-15-
to exhibit the same to prospective purchasers and put upon the Premises a
suitable "To Let" sign during the six (6) months prior to the expiration of the
Term. For twelve (12) months prior to the expiration of the Term, Landlord, or
its agents, may similarly exhibit the Premises to prospective tenants.
SECTION 23: TOTAL OR PARTIAL DESTRUCTION:
----------------------------------------
In the event of:
(a) the total destruction of the Premises or the Park by fire,
explosion, the elements or otherwise during the Term or previous thereto, or
(b) such partial destruction thereof as to render the Premises wholly
untenantable or unfit for occupancy, and, in the case of (a) or (b), should the
Premises be so badly damaged that the same cannot be repaired within one hundred
twenty (120) days from the happening of such damage, then and in such case the
Term shall, at the option of Landlord or Tenant, to be exercised by notice to
the other party sent within thirty (30) days from the date of such damage, cease
and become null and void from the date of such damage or destruction, and Tenant
shall immediately surrender the Premises and all Tenant's interest therein to
Landlord, and shall pay Rent only to the time of such damage, in which event
Landlord may re-enter and repossess the Premises thus discharged from this Lease
and may remove all parties therefrom. If neither party exercises its option to
cancel, or should the Premises be rendered untenantable and unfit for occupancy,
but yet be repairable within one hundred twenty (120) days from the happening of
said damage, Landlord shall enter and repair or rebuild the Premises as nearly
as possible to their previous condition with reasonable speed and the Rent, to
the extent hereinafter provided, shall continue to be paid while repairs are
being made. The Rent accrued and accruing shall cease and determine if the
Premises are totally unusable by Tenant, If a portion is usable, the Rent shall
be reduced pro rata for the untenantable portion until the repairs are
-16-
completed. Tenant shall immediately notify Landlord in case of fire or other
damage to the Premises.
SECTION 24: LAWS AND ORDINANCES:
-------------------------------
Tenant agrees to observe and comply with all laws, ordinances, rules and
regulations of the Federal, state, county and municipal authorities applicable
to the Premises, including the making of structural and non-structural
alterations due to Tenant's occupancy. Tenant agrees not to do or permit to be
done at any time during the Term anything in the Premises, or keep anything
therein, which will increase the rate of fire insurance premiums on the
improvements or any part thereof, or on the property kept therein, above the
present rate.
SECTION 25: SIGNS:
-----------------
No sign shall be affixed to or placed upon any exterior part of the
Premises by Tenant, except in such manner, and of such size, design and color as
shall be approved in advance by Landlord in writing, which consent shall not be
unreasonably withheld.
SECTION 26: PRIORITY OF FEE MORTGAGES:
-------------------------------------
This Lease shall be subject and subordinate to any present or future
mortgages of the entire fee interest of the Park and any renewals,
modifications, replacements or extensions thereof; provided, however, that as a
condition to such subordination, Landlord shall obtain a standard form of
nondisturbance agreement in favor of Tenant from the holders of all such
mortgages. No further document shall be necessary to effect said subordination.
Tenant shall, however, on demand of Landlord, execute, acknowledge and deliver
to any mortgagee an agreement to attorn to such mortgagee as landlord if such
mortgagee becomes landlord hereunder. If the holder of any mortgage of the
entire fee interest of the land and building of which the Premises are a part
requires that this Lease have priority over such mortgage. Tenant shall, upon
request of such holder, execute, acknowledge
-17-
and deliver to such holder an agreement acknowledging such priority.
SECTION 27: SECURITY DEPOSIT - FIRST MONTH'S RENT:
-------------------------------------------------
(a) To secure the covenants and promises of Tenant contained herein,
Tenant shall deposit with Landlord the sum of Fifty-seven Thousand Two Hundred
Forty-six and 58/100 ($57,246.58) Dollars by check, subject to collection, as a
security deposit (the "security deposit"). At any time that the Basic Rent
increases hereunder, Tenant shall deposit with Landlord such additional sum so
that the total security deposit shall equal two (2) months' Basic Rent then
payable hereunder. The total sum shall be returned to Tenant without interest at
the expiration of the Term provided Tenant has performed in accordance with the
terms hereof. If Landlord applies any part of the security deposit to cure any
default of Tenant, Tenant shall, upon demand, deposit with Landlord the amount
so applied so that Landlord shall have the full security deposit on hand at all
times during the Term of this Lease. If, at the end of the Term, repairs are
necessary to correct any condition beyond ordinary wear and tear, then the
security deposit, or a portion thereof, may be used by Landlord to make such
repairs and the balance remaining shall be returned to Tenant. The security
deposited under this Lease shall not be mortgaged, assigned or encumbered by
Tenant without the written consent of Landlord. Tenant hereby waives any future
law or laws which may require Landlord to segregate the security deposit or to
pay interest on the security deposit.
(b) Upon the execution hereof, Tenant shall pay to Landlord the first
month's Basic Rent of Twenty-eight Thousand Six Hundred Twenty-three and 29/100
($28,623.29) Dollars, which sum assumes that neither the 3B Space nor the
Peridot Space will be part of the Premises as of January 1, 1997.
(c) In the event that Landlord shall sell the Park, it shall deliver to
the Purchaser the balance of the security
-18-
deposit and notify Tenant of the balance delivered to the purchaser of the Park.
After the sale, Tenant shall have no further claim against Landlord for the
security deposit.
SECTION 28: RULES AND REGULATIONS:
---------------------------------
Reasonable rules and regulations regarding the Premises, including the
walkways and parking areas, and the use thereof, which may hereafter be
promulgated by Landlord, shall be observed by Tenant and Tenant's employees,
agents and business invitees. Landlord reserves the right to rescind any rules
promulgated hereafter, and to make such other and further rules and regulations
as in its reasonable judgment may from time to time be desirable for the safety,
care and cleanliness of the Premises and for the preservation of good order
therein, which rules, when so made and reasonable notice given to Tenant, shall
have the same force and effect as if originally made a part of this Lease. Such
other and further reasonable rules shall not, however, be inconsistent with the
proper and rightful enjoyment by Tenant of the Premises in the conduct of its
business.
SECTION 29: TENANT'S VIOLATION OF TERMS - RE-ENTRY BY LANDLORD:
--------------------------------------------------------------
In case of violation by Tenant of any of the covenants, agreements and
conditions of this Lease (other than the nonpayment of Rent hereunder), or of
the rules and regulations hereafter to be reasonably established by Landlord,
and upon failure to discontinue such violation within twenty (20) days after
notice thereof given to Tenant, unless a greater time is reasonably necessary to
cure said violation, this Lease shall thenceforth, at the option of Landlord,
become null and void, and Landlord may re-enter without further notice or
demand. The Rent for the remainder of the Term in such case shall become due and
be paid, and Tenant shall be liable for all loss or damage resulting from such
violation as aforesaid. No waiver by Landlord of any violation or breach of
condition by Tenant shall constitute or be construed as a waiver of any other
violation or breach of condition, nor shall lapse of time after breach of
-19-
condition by Tenant before Landlord shall exercise its option under this Section
operate to defeat the right of Landlord to declare this Lease null and void and
to re-enter upon the Premises after the said breach or violation. Landlord shall
have the option of correcting said default and charging the cost thereof to
Tenant as additional rent, which shall be due and payable with the next rent
payment.
SECTION 30: NOTICES:
-------------------
All notices and demands, legal or otherwise, incidental to this Lease, or
the occupancy of the Premises, shall be in writing. If Landlord or its agent
desires to give or serve upon Tenant any notice or demand, it shall be
sufficient to send a copy thereof by certified mail, return receipt requested,
or by nationally recognized overnight courier, addressed to Tenant at the
Premises, and copies thereof to Tenant at the address at the beginning of this
Lease, Attention: Jack Sharp, and to Schiffman, Berger, Abraham, Kaufman & Ritter, Attention: Robert L. Ritter, Esq., 25 Main Street, Court Plaza North,
P.O. Box 568, Hackensack, New Jersey 07602-0568. Notices from Tenant to Landlord
shall be sent by certified mail, return receipt requested, or by nationally
recognized overnight courier, at the address at the beginning of this Lease and
a copy thereof to Sills Cummis Zuckerman Radin Tischman Epstein & Gross, P.A.,
Attention: Morris Yamner, Esq., One Riverfront Plaza, Newark, New Jersey 07102-
5400 or to such other party or place as Landlord or Tenant may from time to time
designate in writing. Notice shall be deemed given upon receipt or rejection as
evidenced by the green certified mail receipt card or the records of the
overnight courier, as the case may be.
SECTION 31: ENTIRE AGREEMENT: NO ORAL CHANGES:
---------------------------------------------
(a) There are no oral agreements between Landlord and Tenant and this
Lease supersedes and cancels any and all previous negotiations, arrangements,
letters of intent, lease proposals, brochures, agreements, representations,
promises, warranties and
-20-
undertakings between Landlord and Tenant with respect to the subject matter
hereof and none thereof shall be used to interpret or construe this Lease.
(b) This Lease, including the exhibits hereto and any addenda hereto, sets
forth all of the covenants, promises, agreements, conditions and undertakings
between Landlord and Tenant concerning the Premises and the Park. No alteration,
amendment, change or addition to this Lease shall be binding upon Landlord or
Tenant unless reduced to writing, signed by them and mutually delivered between
them.
SECTION 32: INSOLVENCY OF TENANT:
--------------------------------
It is further agreed that if at any time during the Term of this Lease
Tenant shall make any assignment for the benefit of creditors, or be decreed
insolvent or bankrupt according to law, or if a receiver shall be appointed for
Tenant, and the same is not dismissed within thirty (30) days, then Landlord
may, at its option, terminate this Lease, exercise of such option to be
evidenced by notice to that effect served upon the assignee, receiver, trustee
or other person in charge of the liquidation of the property of Tenant or
Tenant's estate, but such termination shall not release or discharge any payment
of rent payable hereunder and then accrued, or any liability then accrued by
reason of any agreement or covenant herein contained on the part of Tenant or
Tenant's legal representatives. Anything in this Section 32 to the contrary
notwithstanding, if in any bankruptcy or reorganization proceedings the full
rental due and payable to Landlord shall be paid and Tenant shall continue to
observe all the other terms and conditions of this Lease, Landlord's right to
terminate shall not be operative.
SECTION 33: EMINENT DOMAIN; CONDEMNATION:
----------------------------------------
If the entire Park or any substantial part thereof wherein the Premises are
located, including Tenant's loading area, shall be taken by public or quasi-
public authority under any power of eminent domain or condemnation, this Lease
shall terminate upon
-21-
the taking of actual possession by the condemning authority and Tenant shall
have no claim or interest in or to any award or damages for such taking. If
proceedings for such taking are instituted by such authority, a deed given by
Landlord in lieu of condemnation shall have the same effect as a taking by
eminent domain or condemnation. Tenant shall have no claim or right to claim or
be entitled to any portion of money as a result of such condemnation
proceedings, and all rights of Tenant thereto, if any, are hereby assigned to
Landlord; provided, however, that Tenant shall be entitled to receive an award
-------- -------
for any personalty or trade fixtures which are taken and, in addition, Tenant
shall be entitled to claim its moving expenses and any separate award for loss
of business; provided, however, that no award to Tenant shall diminish the award
of Landlord. Tenant hereby irrevocably assigns to Landlord any award which may
be made for its unexpired leasehold interest.
SECTION 34: DELIVERY OF LEASE:
-----------------------------
No rights are to be conferred upon Tenant until this Lease has been signed
by Landlord and an executed copy of the Lease has been delivered to Tenant.
SECTION 35: LEASE PROVISIONS NOT EXCLUSIVE:
------------------------------------------
The rights and remedies of Landlord contained in this Lease are not
intended to be exclusive but as additional to all other rights and remedies
Landlord would otherwise have by law.
SECTION 36: HEIRS, ETC.:
----------------------
All of the terms, covenants and conditions of this Lease shall inure to the
benefit of, and be binding upon, the respective heirs, executors,
administrators, successors and assigns of the parties hereto, except as provided
in Section 12 hereof.
SECTION 37: DATE OF POSSESSION:
------------------------------
Landlord shall not be liable for failure to give possession of the Premises
upon the commencement date by reason of the fact that the Premises are not ready
for occupancy, or due to a prior
-22-
tenant wrongfully holding over or any other person wrongfully in possession, or
because of Landlord's failure to complete the Landlord Alteration, or for any
other reason; in such event, the Rent shall not commence until possession is
given or is available. Landlord shall make reasonable efforts to remove all
persons wrongfully in possession as soon as possible, and shall undertake the
Landlord Alteration in a workmanlike and diligent manner.
SECTION 38: REAL ESTATE TAXES:
-----------------------------
The term "real estate taxes" shall mean all taxes imposed on the Park,
special assessments, water and sewer charges and other governmental charges not
levied against the land and buildings. If the system of taxation shall be
changed during the term of this Lease, or any extension thereof, so that in lieu
of, or in addition to, the regular municipal real estate taxes now assessed or
levied against real property, a tax shall be imposed on such rental income or
rental value, or on some other basis, and Landlord shall be burdened in part or
in whole with such additional tax or taxes, Tenant shall pay or reimburse
Landlord its Proportionate Share of the amount of such substitute or additional
tax or taxes. If Landlord and Tenant cannot agree on such computation, the
matter shall be submitted to arbitration in Newark, New Jersey in accordance
with the rules of the American Arbitration Association.
SECTION 39: TAX APPEALS BY LANDLORD:
-----------------------------------
If Landlord shall institute a tax appeal, and said tax appeal shall result
in a reduction in taxes, then Tenant shall pay to Landlord its Proportionate
Share of Landlord's cost of said appeal, but in no event shall that amount
exceed the reduction in taxes and Tenant shall receive or be credited with its
Proportionate Share of any refund or reduction.
Tenant shall cooperate in any proceedings described herein. The recovery,
if any, shall be divided proportionately between
-23-
Landlord and Tenant after Landlord deducts any and all costs and expenses.
SECTION 4O: QUIET ENJOYMENT:
---------------------------
Landlord has the full right and power to execute and perform this Lease
and to grant the estate demised herein, and Tenant, on payment of the Rent
herein reserved and performing the covenants and agreements hereof, shall
peaceably and quietly have, hold and enjoy the Premises and all rights,
easements, appurtenances and privileges belonging or in anywise appertaining
thereto during the Term without molestation or hindrance of any person
whomsoever.
SECTION 41: RESERVATION OF TITLE:
--------------------------------
Tenant may not consent to the reservation of any title to property by any
conditional vendor to any property which may be affixed to the Premises so as to
become a part thereof (excluding trade fixtures and trade machinery and
equipment used in Tenant's business), wholly or in any portion, without material
injury to the Premises. Landlord hereby states that the reservation of any such
title by any conditional vendor or similar party shall be null and void.
SECTION 42: OUTSIDE STORAGE:
---------------------------
Tenant shall not store any goods, other than temporarily in connection
with the delivery of any item, outside of the Premises any place in the Park;
provided, however, that subject to municipal laws, ordinances and requirements,
Tenant may store goods in the outside trailer parking on the Premises.
SECTION 43: CERTIFICATE OF OCCUPANCY:
------------------------------------
It is a condition of this Lease that Tenant be able to obtain, prior to
commencement of the Term, a Certificate of Occupancy allowing the Premises to be
used for the purpose described in Section 10 above, 24 hours a day, 7 days a
week, failing which this Lease shall be deemed null and void, and Landlord shall
return all monies paid by Tenant upon execution hereof. Landlord will cooperate
with Tenant in obtaining said
-24-
Certificate of Occupancy, provided such cooperation is at no cost to Landlord;
provided, however, that Landlord shall be responsible, at its sole costs, for
correcting any building and/or fire code violations preventing the issuance of a
Certificate of Occupancy, but Landlord shall not be responsible for any work
required in order to obtain a Certificate of Occupancy as a result of Tenant's
proposed use of the Premises.
SECTION 44: HOLDING OVER:
------------------------
If Tenant shall hold over, with or without Landlord's consent, after the
Term, then such holding over shall be constituted as a tenancy from month to
month, subject to all of the provisions, conditions and obligations of this
Lease, except that the Basic Rent shall be double the Basic Rent for the last
month of the Term.
SECTION 45: CONSENTS TO DEFAULTS:
--------------------------------
No consent or waiver, express or implied, by Landlord, to or of any
breach or default in the performance by Tenant of Tenant's obligations hereunder
shall be deemed or construed to be a consent or waiver to or of any other breach
or default in the performance by Tenant of the same or any other obligations of
Tenant hereunder. Failure on the part of Landlord to complain of any act or
failure to act of Tenant or to declare Tenant in default, irrespective of how
long such act or failure continues, shall not constitute a waiver by Landlord of
its rights hereunder.
SECTION 46: PAYMENTS IN EVENT OF DEFAULT:
----------------------------------------
(a) In the event that Tenant fail to pay Rent on or before the tenth
(10th) day of the month, Tenant shall pay to Landlord a late charge equal to two
(2%) per cent per month of the Rent due, but in no event less than One Hundred
($100.00) Dollars.
(b) In the event that Tenant fails, after notice, to take any action
required of it under this Lease, which action is taken by Landlord, Tenant shall
pay to Landlord any monies reasonably expended by Landlord to cure any default
of Tenant together with
-25-
interest at the rate of two (2%) per cent per month until the date of payment.
(c) All payments due pursuant to this Section 46 shall be deemed
additional rent. In the event that said payments are not allowable by law, then
the sum to be paid by Tenant to Landlord shall be the highest sum allowed by
law.
SECTION 47: FINANCIAL STATEMENTS:
--------------------------------
Tenant shall, if required by Landlord's mortgagee or any future
mortgagee, or prospective mortgagee or prospective purchaser, submit to
Landlord, any prospective mortgagee or purchaser, without cost to Landlord, a
copy of Tenant's financial statement which shall be considered "confidential" by
the recipient. Tenant shall also, without cost to Landlord, submit to any
prospective mortgagee or purchaser such prior statements as it may have, as and
when required by Landlord or Landlord's mortgagee or prospective mortgagee or
prospective purchaser.
SECTION 48: TABLE OF CONTENTS AND CAPTIONS:
------------------------------------------
The Table of Contents, captions or notes in the margin of this Lease are
inserted only as a matter of convenience and in no way to define, limit or
describe the scope or intent of this Lease, or the terms, conditions and
provisions hereof, nor as affecting the meaning of the text of any article or
section hereof in any way.
SECTION 49: BROKER:
------------------
Landlord agrees to pay, pursuant to a separate agreement, all brokerage
commissions payable in connection with the negotiations for, and execution of,
this Lease. Tenant and Landlord warrant that they have not dealt with any real
estate brokers except SBWE, Inc., Charles Klatskin & Company, Inc. and Resource
Realty in connection with this Lease. In the event of any misrepresentation by
either Landlord or Tenant, each party agrees to hold the other harmless,
including any costs, interest and legal fees.
-26-
SECTION 50: ACCORD AND SATISFACTION:
-----------------------------------
No payment by Tenant or receipt by Landlord of lesser amount than the
Rent stipulated in this Lease shall be deemed to be other than on account of the
earliest stipulated Rent, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
provided in this Lease by law.
SECTION 51: CONSENTS:
--------------------
With respect to any provision of this Lease which requires that Landlord
shall not unreasonably withhold or unreasonably delay any consent or approval,
Tenant shall not make or assert any claim for, and Tenant hereby waives any
claim for money damages. Tenant shall not claim any money damages by way of
setoff, counterclaim or defense, based upon any claim or assertion by Tenant
that Landlord has unreasonably withheld or unreasonably delayed any consent or
approval. Tenant's sole and exclusive remedy shall be an action or proceeding
for specific performance, injunction or declaratory judgment.
SECTION 52: HAZARDOUS SUBSTANCES:
--------------------------------
(a) In the event that Tenant causes the Premises to become an "industrial
establishment" (as such term is defined in the New Jersey Industrial Site
Recovery Act, N.J.S.A. 13: 1K-6 et seq., and the regulations promulgated
-- ---
thereunder ("ISRA"), Tenant shall, at Tenant's sole cost and expense, comply
with ISRA. Tenant's obligations under this paragraph (a) shall arise if there is
any contemplated "closing, terminating or transferring of operations of any
industrial establishment," or shifting, buying, selling, or transferring of
corporate shares (as such term is currently or in the future defined in ISRA) at
the Premises. Tenant shall, at Tenant's sole cost and expense, make all
submissions to, provide all information to, and comply with
-27-
all requirements of, the New Jersey Department of Environmental Protection, or
any agency or subdivision thereof or any agency or subdivision responsible for
enforcing ISRA (collectively, the "DEP"). Should the DEP or any other
governmental agency having jurisdiction determine that a cleanup plan be
prepared and that a cleanup be undertaken because of any spills or discharges of
hazardous substances or wastes at the Premises which occurred during the term of
the Lease as a result of Tenant's use and occupancy of the Premises, then Tenant
shall, at Tenant's sole cost and expense, prepare and submit the required plans
and financial assurances, and carry out the approved plans. Tenant shall fully
comply with ISRA and the requirements of the DEP prior to the end of the Term of
the Lease.
(b) In the event that ISRA compliance becomes necessary at the Premises
as a result of Tenant's use and occupancy of the Premises, then, at Landlord's
election:
(i) Tenant shall comply with the requirements of ISRA inasmuch as
such compliance relates to the Premises and Tenant shall be responsible
for paying the costs of such compliance within 30 days after Landlord's
demand therefor; or
(ii) Tenant shall be responsible for promptly, and within the time
frame established by Landlord, complying with ISRA inasmuch as such
compliance relates to the Premises and to pay the costs of such ISRA
compliance. Tenant shall also promptly, after Landlord's request (but in
no event later than 30 days after Landlord's request), provide all
information requested by Landlord, sign any factually accurate affidavits
prepared by Landlord concerning ISRA and Tenant's use and occupancy of
the Premises and pay all costs of such ISRA compliance that are
attributable to Tenant's use and occupancy of the Premises.
(c) Tenant shall indemnify and hold Landlord harmless from and against
any loss, cost, liability or expense including,
-28-
without limitation, attorney's fees, resulting from any environmental condition
caused or allowed to occur by Tenant, or from Tenant's failure to comply with
ISRA, including, without limitation, any claims made by any succeeding tenant.
Tenant shall vacate the Premises immediately upon fully complying with ISRA and
the requirements of the DEP.
(d) Tenant represents, covenants and warrants that Tenant shall not use
the Premises to "discharge" (as such term is defined in the Spill Compensation
and Control Acts, N.J.S.A. 58:10-23.11 et seq., ("Spill Act")) "hazardous
------- -- ---
substances" (as such term is defined in the Spill Act). In the event that there
should be filed a lien against the Premises pursuant to and in accordance with
the Spill Act, arising from the intentional or unintentional action or omission
of Tenant or Tenant's employees, agents, contractors, licensees, invitees,
assigns or subtenants, then Tenant shall, within thirty (30) days after the date
Tenant is given notice of the lien or in such shorter a period of time in the
event that the State of New Jersey, or any agency or subdivision thereof, has
commenced steps to cause the Premises to be sold pursuant to the lien, pay the
claim and remove the lien from the Premises. If Tenant fails to do such by the
said period, Landlord shall be entitled to resort to such remedies as are
provided in the Lease as in the case of any default of the Lease, in addition to
such as are permitted by law, in equity, or otherwise.
(e) Tenant represents, covenants, and warrants that Tenant shall not use
the Premises in such a manner so as to become liable under the Comprehensive
Environmental Response Compensation and Liability Act, 42 U.S.C. 9601, et seq.
-- ---
("CERCLA") . In the event that there shall be filed a lien against the Premises
pursuant to and in accordance with CERCLA arising from the intentional or
unintentional action or omission of Tenant or Tenant's employees, agents,
contractors, licensees, invitees, assigns, or sub-tenants, then Tenant shall,
within 30
-29-
days from the date Tenant is given notice of the lien or in such shorter a
period of time in the event that the United States, or any agency or subdivision
thereof, has commenced steps to cause the Premises to be sold pursuant to the
lien, pay the claim and remove the lien from the Premises. If Tenant fails to do
so by said period, Landlord shall be entitled to resort to such remedies as such
are provided in the Lease as in the case of any default of the Lease, in
addition to such as are permitted by law, in equity or otherwise.
(f) In amplification of these paragraphs related to environmental
obligations, and not by way of limitation, Tenant shall indemnify, defend and
hold harmless Landlord from and against all fines, suits, procedures, claims,
actions, damages, liabilities, judgments, costs and expenses (including, without
limitation, reasonable attorney's fees) of any kind arising out of or in any way
connected with Tenant or Tenant's employees, agents, contractors, licensees,
invitees, assignees or subtenants whose actions or inactions or failure to
maintain the Premises results in any spills or discharges of hazardous
substances, hazardous wastes, or pollutants at the Premises which occurred
during the Term of this Lease; and from all fines, suits, procedures, claims,
actions, damages, liabilities, judgments, costs and expenses (including, without
limitation, reasonable attorney's fees) of any kind arising out of Tenant's
failure to provide all information, make all submissions and take all actions
required by the DEP in order to comply with ISRA, the Spill Act, CERCLA or any
other environmental law.
(g) Tenant's obligations and liabilities under this Section 52 shall
continue after expiration of the Term of this Lease for so long as Landlord
remains responsible for any spills or discharges of hazardous substances or
hazardous wastes at the Premises which occur during the Term of this Lease.
(h) Landlord and any employee, representative, agent or contractor of
Landlord, the DEP or any other federal, state, or
-30-
local governmental body, agency or division having applicable jurisdiction, may
enter the Premises for the purpose of inspecting same for compliance with any
environmental law, at reasonable hours, upon reasonable prior notice.
(i) Landlord shall indemnify and hold Tenant harmless from and against
any loss, cost, liability or expense including, without limitation, attorney's
fees, resulting from any environmental condition at the Premises pre-dating
Tenant's occupancy thereof. Landlord represents that it knows of no such
environmental condition at the Premises other than as disclosed in the letter
from James C. Anderson Associates, Inc. dated May 22, 1995 set forth on Schedule
"D", and the letter from The Whitman Companies, Inc. dated August 23, 1996 set
forth on Schedule "E".
SECTION 53: NEGOTIATED AGREEMENT:
--------------------------------
This is a negotiated Lease Agreement, and this Lease Agreement shall not
be construed against Landlord by reason of this Lease being prepared by Landlord
and/or its attorneys.
SECTION 54: PROCESSING CHARGE:
-----------------------------
Tenant agrees to reimburse Landlord for reasonable attorneys' fees
incurred by Landlord in connection with the processing and documentation of any
assignment, subletting, license, concession, creation of a security interest,
granting of a collateral assignment, change of ownership or other transfer
required by Tenant for which Landlord's consent is required or sought, it being
agreed that Tenant's obligation to reimburse Landlord for such reasonable
attorneys' fees shall be deemed an additional rent obligation hereunder.
SECTION 55: MORTGAGEE PROTECTION CLAUSE: Tenant agrees to give all
---------------------------------------
mortgagees and/or trust deed holders, by certified mail, a copy of any notice of
default served on Landlord, provided that prior to such notice Tenant has been
notified, in writing (by way of notice of assignment of rents and leases or
otherwise), of the name and address of such mortgagees and/or trust deed
holders.
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The mortgagees and/or trust deed holders shall have the same time within which
to cure such default as is given to Landlord under this Lease.
SECTION 56: INTERPRETATION: The laws of the State of New Jersey shall
--------------------------
govern the validity, performance and enforcement of this Lease. The invalidity
or unenforceability of any provision hereof shall not affect or impair any other
provision.
SECTION 57: RIGHT OF FIRST REFUSAL:
----------------------------------
In the event that any or all of Tenant's interest in the Premises and/or
this Lease is transferred by operation of law to any trustee or receiver, or to
Tenant as a debtor in possession, and subsequently any or all of Tenant's
interest in the Premises and/or this Lease is offered or to be offered by Tenant
or any trustee, receiver, or other representative or agent of Tenant as to its
estate or property (such person, firm or entity being hereinafter referred to as
the "Grantor"), for assignment, conveyance, lease, or other disposition to a
person, firm or entity other than Landlord (each such transaction being
hereinafter referred to as a "Disposition"), it is agreed that Landlord has and
shall have a right of first refusal to purchase, take, or otherwise acquire, the
same upon the same terms and conditions as the Grantor thereof shall accept upon
such Disposition to such other person, firm, or entity; and as to each such
Disposition the Grantor shall give written notice to Landlord in reasonable
detail of all of the terms and conditions of such Disposition within twenty (20)
days next following its determination to accept the same but prior to accepting
the same, and Grantor shall not make the Disposition until and unless Landlord
has failed or refused to accept such right of first refusal as to the
Disposition, as set forth herein.
Landlord shall have twenty (20) days next following its receipt of the
written notice as to such Disposition in which to exercise the option to acquire
Tenant's interest by such Disposition, and the exercise of the option by
Landlord shall be
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effected by written notice to that effect sent to the Grantor by certified or
registered mail; but nothing herein shall require Landlord to accept a
particular Disposition or any Disposition, nor does the rejection of any one
such offer of first refusal constitute a waiver or release of the obligation of
the Grantor to submit other offers hereunder to Landlord. In the event Landlord
accepts such offer of first refusal, the transaction shall be consummated
pursuant to the terms and conditions of the Disposition described in the notice
to Landlord. In the event Landlord rejects such offer of first refusal, Grantor
may consummate the Disposition with such other person, firm, or entity; but any
decrease in price of more than two (2%) percent of the price sought from
Landlord or any change in the terms of payment for such Disposition shall
constitute a new transaction requiring a further option of first refusal to be
given to Landlord hereunder.
The provisions of this Section 57 shall not apply to an assignment or
sublease permitted under the terms and provisions of Section 12 above.
SECTION 58: MODIFICATIONS REQUESTED BY MORTGAGEE: In the event that a
------------------------------------------------
prospective mortgagee of the Park shall request a reasonable change in the
language of the terms of this Lease, or the execution of any document in
connection therewith, Tenant agrees to make such change or execute such document
provided the same shall not increase Tenant's obligations or liabilities under
this Lease.
SECTION 59: INTENTIONALLY OMITTED.
---------------------------------
SECTION 60: RENEWAL OPTIONS: Tenant is hereby granted two (2) options to
---------------------------
renew this Lease upon the following terms and conditions:
(a) At the time of the exercise of each option to renew and at the time
of each said renewal, Tenant shall not be in default in accordance with the
terms and provisions of this Lease, and shall be in possession of the Premises
pursuant to this Lease.
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(b) Notice of the exercise of each option shall be sent to Landlord, in
writing, at least nine (9) months before the expiration of the Term, as same may
have previously been renewed.
(c) The first renewal term shall be for the term of two (2) years and six
(6) months to commence on July 1, 2004 and end on December 31, 2006; the second
renewal term shall be for the term of five (5) years to commence on January 1,
2007 and end on December 31, 2011; and all of the terms and conditions of this
Lease, other than the Basic Rent, shall apply during the renewal terms.
(d) The annual Basic Rent to be paid during the first renewal term shall
be the square footage of the Premises multiplied by Four and 50/100 ($4.50)
Dollars; and the annual Basic Rent to be paid during the second renewal term
shall be the square footage of the Premises multiplied by the greater of (i)
Four and 50/100 ($4.50) Dollars, or (ii) Three and 50/100 ($3.50) Dollars,
increased by the percentage increase, if any, in the cost of living between
October 1996 and October 2006.
(e) The cost of living referred to in this Section, shall be determined
from the revised Consumer Price Index for Urban Wage Earners and Clerical
Workers - New York, N.Y. - Northeastern N.J., as published by the Bureau of
Labor Statistics of the United States Department of Labor (1982-1984=100) and
such Cost of Living Index shall be final and binding upon both Landlord and
Tenant. If, at the time required for the determination of the annual Basic Rent
for the renewal term, the aforesaid Index is no longer published or issued, the
parties shall use such other index as is then generally recognized and accepted
for similar determinations of cost of living increases.
SECTION 61: CANCELLATION OPTION:
-------------------------------
Tenant shall have the right to cancel this Lease by written notice
provided to Landlord no later than June 30, 2001, and which cancellation shall
only be effective as of December 31, 2001. In the event Tenant shall so elect to
cancel this Lease, it shall
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vacate and surrender the Premises to Landlord on or before December 31, 2001 as
if same were the last day of the Term provided for herein, and in such event the
parties hereto shall have no further obligations from one to the other, except
for past due Rent obligations from Tenant to Landlord, past due monetary
obligations from one party to the other, and any indemnification and/or hold
harmless agreements by either party contained in this Lease.
SECTION 62: PARTIES DULY AUTHORIZED:
-----------------------------------
Landlord and Tenant represent and warrant one to the other that the
individual(s) executing this Lease on their respective behalves have been duly
authorized to do same by appropriate partnership (for Landlord) and corporate
(for Tenant) action.
SECTION 63: SEPTIC SYSTEM:
-------------------------
Notwithstanding anything to the contrary, the parties acknowledge and
agree that Tenant shall be responsible at its sole cost and expense for the
pumping, maintenance and repair of the septic system serving the Premises;
provided, however, that if the septic system is required to be replaced, Tenant
shall be responsible for the first Twenty-five Thousand ($25,000.00) Dollars of
the cost of replacement, and Landlord shall be responsible for any such cost in
excess of Twenty-five Thousand ($25,000.00) Dollars.
IN WITNESS WHEREOF, the parties have executed these presents the day and
year first above written.
WITNESS: WEST END ROAD ASSOCIATES, Landlord
_____________________________ By________________________________
Melvin Opper, Partner
ATTEST: MOHAWK INDUSTRIES, INC., Tenant
/s/ Theral Mackey By /s/ Jack Sharpe
----------------------------- --------------------------------
Jack Sharpe, Executive Vice
President
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SCHEDULE "A"
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DESCRIPTION OF PREMISES
SCHEDULE "B"
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ROOF WORK
MULLEN ENTERPRISES, INC.
4 LITTLE FALLS ROAD FAIRFIELD, NJ 07004
(201) 227-7866 FAX (201) 227-0778
August 12, 1996
Mr. Mel Opper
West End Road Associates
1460 Valley Road
P.O. Box 559
Wayne, NJ 07474-0559
RE: 100 Alexander Ave., Pompton Plains, NJ
Dear Mel:
After making a thorough inspection of the above mentioned roof we found the
following: the roof membrane is made out of a rubber system. The field of the
roof itself seems to be in very good condition, although we would recommend the
following items be performed on this roof:
1. Re-flash skylights, vents, fans and any other penetrations through
the roof.
2. Re-seal the gutter and all brackets holding the gutter to the roof.
3. Re-roof approximately 600 square feet of roofing where low spot is
located.
4. Re-flash parapit walls.
5. Complete any minor repairs throughout the roof.
6. Re-do all the seams in the field of the roof with tape.
7. Roof will be cleaned out of any and all debris, drains and gutters
will be functionable.
If the above mentioned items are completed for a cost of $38,860.00, in our
professional opinion this roof should give you many more years of good service.
We will also guarantee this roof for 7 1/2 years after the completion of the
repair work with the following conditions. You will agree to sign up with our
maintenance program to inspect this roof twice a year starting in 1997. If you
have any questions please call.
Sincerely,
/s/ John R. Mullen
John R. Mullen
SCHEDULE "C"
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LANDLORD ALTERATION
EXHIBIT C
SEPTEMBER 13, 1996
ALADDIN CARPET RENOVATION
100 ALEXANDER AVE
PEQUANNOCK TOWNSHIP, NEW JERSEY
Landlord to provide 19 new 8' by 10' overhead door openings, 19 new 8' by 10'
overhead doors, 6 new 9' by 9' overhead doors at existing locations, 20 new dock
levelers and 24 new dock seals. A detailed itemization for the cost of such work
is as follows:
100 Alexander Avenue (Pompton Plains, NJ) - West End Road Associates and Mohawk Industries Inc.
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