Exhibit 10.2
NET
LEASE AGREEMENT
Between
BED
BATH & BEYOND INC.
as
Landlord
and
BREEZE-EASTERN CORPORATION
as
Tenant
Dated
as of January _, 2008
TABLE
OF CONTENTS
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Article 1.
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BASIC LEASE PROVISIONS |
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Article 2.
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LEASE |
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Article 3.
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TERM |
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Article 4.
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NET RENT |
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Article 5.
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REAL ESTATE TAXES |
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Article 6.
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INSURANCE |
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Article 7.
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ELECTRIC, WATER AND SEWER FEES |
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Article 8.
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CARE, MAINTENANCE AND ALTERATIONS OF
PREMISES |
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Article 9.
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REPAIR AND MAINTENANCE |
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Article 10.
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ASSIGNMENT AND SUBLETTING |
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Article 11.
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COMPLIANCE WITH LAWS, RULES AND
REGULATIONS |
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Article 12.
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PERMITTED USE AND ENVIRONMENTAL
MATTERS |
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Article 13.
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DAMAGE AND DESTRUCTION |
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Article 14.
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EMINENT DOMAIN |
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Article 15.
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INSOLVENCY OF TENANT |
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Article 16.
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LANDLORD’S REMEDIES ON
DEFAULT |
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Article 17.
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DEFICIENCY |
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Article 18.
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ATTORNMENT |
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Article 19.
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RIGHT TO CURE TENANT’S
BREACH |
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Article 20.
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CONSTRUCTION LIENS |
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Article 21.
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RIGHT TO INSPECT AND REPAIR |
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Article 22.
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INTERRUPTION OF SERVICES OR USE |
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Article 23.
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ESTOPPEL |
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Article 24.
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HOLDOVER TENANCY |
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Article 25.
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RIGHT TO SHOW PREMISES |
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Article 26.
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LATE CHARGE |
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Article 27.
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NO OTHER REPRESENTATIONS |
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Article 28.
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QUIET ENJOYMENT |
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Article 29.
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INDEMNITY |
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Article 30.
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ARTICLE HEADINGS |
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Article 31.
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APPLICABILITY TO HEIRS AND
ASSIGNS |
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Article 32.
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WAIVER OF TRIAL BY JURY |
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Article 33.
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LANDLORD’S LIABILITY FOR LOSS
OF PROPERTY |
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Article 34.
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PARTIAL INVALIDITY |
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Article 35.
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BROKER |
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Article 36.
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PERSONAL LIABILITY |
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Article 37.
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FORCE MAJEURE |
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Article 38.
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NOTICES |
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Article 39.
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NO WAIVER |
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Article 40.
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WRITING REQUIRED |
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Article 41.
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COMPLETE AGREEMENT |
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Article 42.
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SIGNS |
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Article 43.
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NO RECORDATION |
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Article 44.
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VALIDITY |
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Article 45.
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MISCELLANEOUS |
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2
THIS NET
LEASE AGREEMENT , made as of January ___, 2008 between BED
BATH & BEYOND INC., a New York corporation having its
principal place of business at 650 Liberty Avenue, Union, NJ 07083
(referred to as “Landlord”)
And
BREEZE-EASTERN CORPORATION , with an address at 700 Liberty
Avenue, Union, New Jersey 07083-8198
(referred to as “Tenant”).
WITNESSETH:
Landlord, for and in consideration of
the rents, covenants and agreements hereinafter reserved and
contained on the part of Tenant to be paid, kept and performed,
does hereby lease to Tenant, and Tenant does hereby hire from
Landlord, the entire premises including the land (the
“Land”) as more particularly described on
Exhibit A attached hereto and made a part hereof, and
building, together with all fixtures, equipment, improvements and
installations attached thereto and improvements erected thereon
(the “Building”) known as 700 Liberty Avenue, Union
Township, Union County, New Jersey and a tax map reference of Lot
1.01, Block 3505 on the tax map of Union Township, together with
all other improvements now or hereafter located thereon, and the
parking areas immediately adjacent to the Building with unimpeded
ingress and egress to the Building and parking areas, together with
all and singular the appurtenances, rights, privileges and
easements in anywise pertaining thereto; and together with all the
right, title and interest, if any, of Landlord in and to any
adjoining sidewalk, and in and to any adjoining street or alley to
the center line thereon upon and subject to those terms, covenants
and conditions herein, together with the right to use all
appurtenances, rights, privileges and easements now or hereafter
benefiting the Land or the land upon which the Building is
situated. All of the aforementioned Land, Building, improvements,
rights and easements are hereinafter collectively called the
“Premises”.
The use and occupancy by Tenant of
the Premises are subject to (a) all zoning ordinances and
regulations now or hereafter in force of any public authority or
governmental agency or department having jurisdiction, and
(b) all existing encumbrances, conditions, rights, covenants,
restrictions and rights of way affecting the Premises or the land
upon which the Premises is situated.
To have and to hold the Premises for
the term and at the rents and upon the terms, covenants and
conditions hereinafter provided:
Article 1. BASIC LEASE
PROVISIONS. As further supplemented in the balance of this
Lease and the preamble to this Lease, this Article 1 sets
forth the basic terms of the Lease and, where appropriate, defines
certain terms used in this Lease.
(a) Premises:
subject to the provisions of Article 2, the Premises consists
of the Land and Building located at 700 Liberty Avenue, Union
Township, Union County, New Jersey.
(b) Tenant’s
Address: 700 Liberty Avenue, Union, New Jersey.
(c) Landlord’s
Address (for notices): 650 Liberty Avenue, Union, New Jersey
07083.
(d) Lease
Term: Twenty-four months.
(e) Commencement
Date: The date hereof.
(f) Expiration
Date: The last day of the twenty-fourth (24th) full calendar month
after the Commencement Date.
(g) Net
Rent: As provided in Article 4.
(h) Payee
of Rent: Landlord.
(i) Address
for Payment of Rent: 650 Liberty Avenue, Union, New Jersey 07083,
Attention: Jeff Cohen.
(j) Description
of Premises: the Land and Buildings at the Premises containing
about 176,600 gross square feet of space consisting of a two story
office building (the “Office Building”) and a one story
assembly plant and warehouse (the “Assembly
Plant”.)
(k) Security
Deposit: NONE.
(l) Tenant’s
Use (set forth with specificity): assembly, warehousing and
administrative offices in connection aircraft hoists, parts and
related products and all lawful uses ancillary thereto.
(m) Broker:
None.
(n) Tenant’s
North American Industry Classification System Code (NAICS Code):
336413.
(o) Payable
upon execution:
(i) First
Month’s Net Monthly Rent of $81,824.67.
(ii)Security
Deposit in the amount of $NONE.
(p) Landlord’s
Work. None.
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(q) Tenant’s
Work: None.
Article 2. LEASE.
(a) Landlord,
for and in consideration of the rents herein reserved and of the
covenants and agreements herein contained on the part of the Tenant
to be performed, hereby leases to the Tenant, and the Tenant
accepts from the Landlord, the Premises.
(b) Tenant
and Landlord acknowledge and agree that, (i) on or before the
one (1) year anniversary of the Commencement Date, Tenant
shall vacate and surrender to Landlord approximately ten thousand
(10,000) contiguous square feet of floor area in the rear of the
Assembly Plant and parking spaces for sixty (60) cars in the
parking lot located at the Premises (the “Surrender
Space”); (ii) Landlord and Tenant shall work together in
good faith to mutually agree upon the space to be so vacated and
surrendered by Tenant and the effective date of the surrender, and
(iii) as of the date Tenant vacates and surrenders the Surrender
Space to Landlord (the “Surrender Date”), the Premises
shall no longer include the Surrender Space. Such Surrender Space
shall have its own entrance from the parking area and Landlord will
be responsible for the costs and expenses of a demising wall and
all improvements in the Surrender Space. As of the Surrender Date,
the Net Rent payable by Tenant hereunder shall be reduced (using
the per square foot annual rate in Article 4(a)) to reflect the
Surrender Space is no longer occupied by the Tenant and, subject to
Landlord’s architect certifying the actual gross square
footage of the Surrender Space, Tenant’s Additional Rent and
other financial adjustments including Landlord’s pro rata
share of the Real Estate Taxes, insurance and common area
maintenance costs shall be equitably determined. The Landlord shall
reimburse (or give Tenant a credit) or pay directly its pro rata
share of Real Estate Taxes, insurance, costs for maintenance and
repair of the common areas of the Premises and for all utility
costs for the Surrender Space. Common area maintenance and repair
costs shall include all maintenance and repair of the parking lot,
exterior of the Assembly Plant, Assembly Plant roof, snow plowing,
landscaping and similar items. Landlord will carry insurance on its
contents and leasehold improvements in the Surrender Space. Any
Real Estate Taxes resulting form an additional tax assessment due
to the construction of the Surrender Space shall be allocated
entirely to the Landlord.
Article 3. TERM.
(a) A
period of time commencing as of the Commencement Date, and unless
sooner terminated as herein provided, ending at noon on Expiration
Date. Tenant shall have the right at any time following the twelve
(12) month anniversary of the Commencement Date to terminate
this Lease (the “Early Termination Option”). The Early
Termination Option shall be exercisable by Tenant giving Landlord
at least sixty (60) days’ notice of its intent to
terminate this Lease as of the date specified in said notice. In
the event Tenant elects to exercise the Early Termination Option,
this Lease shall terminate on the date set forth in Tenant’s
notice to Landlord as if such date were the Expiration Date
hereunder and thereafter neither party shall have any further
obligation or liability to the other except to the extent such
obligation or liability would survive the Expiration Date
originally set forth herein, including, but not limited to, those
obligations and liabilities of Tenant set forth in
Article 12.
(b) Tenant
has certain service contracts in place which are listed on
Exhibit C attached hereto. Seller will terminate all such
service contracts unless Landlord elects to assume
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one or
more of such contracts by giving written notice to the Tenant at
least forty five (45) days prior to the Expiration Date or earlier
expiration if Tenant exercises the early termination option (the
“Early Expiration Date.”) If Landlord so elects, on or
prior to the Expiration Date or Early Expiration Date the Tenant
will assign and Landlord will assume those service contracts that
Landlord has elected to assume. Any service contracts that Landlord
does not elect to assume will be terminated by Tenant at
Tenant’s cost and expense, if any. Notwithstanding the
foregoing, the Tenant retains the right to terminate any service
contract on Exhibit C if Tenant decides the vendor is no
longer performing satisfactorily or the cost is more than available
elsewhere for comparable services. To the extent Tenant is required
to have a service contract by the terms of this Lease, any
terminated service contract will be replaced by a new vendor
selected by Tenant.
Article 4. NET
RENT.
(a) The
Tenant shall pay to the Landlord at the Landlord’s Address
(or at such other place as the Landlord may designate in writing
from time to time), without offset or deduction, beginning on the
date hereof and, thereafter, on the first day of each and every
calendar month during the Lease Term, the sum of Eighty One
Thousand Eight Hundred Twenty Four and 67/100 DOLLARS ($81,824.67)
(the “Monthly Net Rent”) which is calculated on the
basis of $5.56 per square foot per annum. The Monthly Net Rent is
referred to as “Net Rent” herein. If the Term commences
or ends during the middle of a calendar month, the Monthly Net Rent
for such partial monthly period shall be adjusted on a per diem
basis by dividing the Monthly Net Rent by the number of days in the
month and multiplying the result by the number of days that the
Tenant has occupancy of the Premises during such month. Landlord
and Tenant acknowledge and agree that Tenant shall have no
obligation to pay Net Rent on any portion of the Premises that have
been surrendered to Landlord pursuant to the provisions of
Article 2, therefore, the Net Rent payable with respect to any
month during the Term following the date Tenant vacates and
surrenders the Surrender Space to Landlord will be calculated based
on the actual square footage of the Building occupied by Tenant as
of the first day of such month.
(b) All
charges, costs and sums required to be paid by Tenant to Landlord
or third parties for the benefit of the Premises under this Lease
in addition to Net Rent shall be deemed “Additional
Rent,” and Net Rent and Additional Rent shall hereinafter
collectively be referred to as “Rent.” Tenant’s
covenant to pay Rent shall be independent of every other covenant
in this Lease.
(c) Monthly
Net Rent and any Additional Rent due the Landlord are payable on
the first day of every calendar month in advance without notice,
demand, setoff, counterclaim or deduction of any kind except as
provided in this Lease. Additional Rent payable to third parties
for the benefit of the Premises is due when such obligation is
payable to such third party without the benefit of any grace period
or late period.
(d) This
is intended to be a “triple net lease” with the Net
Rent payable to the Landlord, and the Tenant is also obligated to
pay Real Estate Taxes (hereinafter defined) as hereinafter
provided, and all charges and expenses incurred for the
maintenance, and repair of the non-structural portions of the
Premises, insurance, operating expenses for utilities, services,
trash
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removal,
and all other costs of operating the Premises as specified
elsewhere in this Lease which costs shall be paid directly by
Tenant or as Additional Rent excluding only the mortgage debts,
land lease rents or other encumbrances on the Premises created by
the Landlord. Subject to the specific provisions set forth in
Article 8, it is the intention of the parties that the Tenant
shall pay all the foregoing costs, expenses, repairs, maintenance,
and operating costs during the term hereof no matter when such
costs and expenses are incurred during the Term except for such
costs and expenses which are expressly the obligation of the
Landlord under this Lease. If Landlord pays any of such expenses,
the Landlord shall bill Tenant for such expenses and Tenant shall
pay Landlord such expenses as Additional Rent.
(e) For
all Additional Rent expenses, other than Real Estate Taxes
(hereinafter defined) on the Premises, the Landlord agrees that the
Tenant may pay such expenses directly to the vendor providing such
services so long as Tenant is not in default under this Lease,
Tenant provides evidence of payment of any expenses if Landlord
requests evidence of payment and Tenant shall promptly provide to
Landlord duplicate copies of the service contract on the heating
and air conditioning systems and sprinkler inspection agreement
upon Landlord’s written request. All Additional Rent which is
not due and payable on a monthly basis during the Term, unless
otherwise specified herein, shall be due and payable, (i) if
payable to a third party, within the time permitted for payment
without interest, penalty or default, (ii) if payable to
Landlord without specific payment terms set forth herein, within
twenty (20) days of delivery by Landlord to Tenant of notice
to pay the same, and (iii) if payable to Landlord in a
specific time or manner set forth herein, in accordance
therewith.
Article 5. REAL ESTATE
TAXES.
(a) As
Additional Rent, Tenant shall reimburse Landlord the amount of the
Real Estate Taxes applicable to the Premises during the term of
this Lease. As used herein Real Estate Taxes shall mean the taxes
and assessments now or hereafter imposed upon the Premises. If, due
to a change in the method of taxation or assessment, any franchise,
income, profit or other tax, however designated, shall be
substituted by the applicable taxing authority in whole or in part,
for the Real Estate Taxes now or hereafter imposed on the Premises,
such franchise, income, profit or other tax shall be deemed to be
included in the term “Real Estate Taxes” to the extent
of such substitution.
(b) Landlord
shall provide Tenant with a copy of each invoice for Real Estate
Taxes received by Landlord within thirty (30) days after
Landlord receives same. Tenant shall pay to Landlord the amount of
each payment of Real Estate Taxes no less than thirty
(30) days before the due date for same. If Tenant shall pay
such payment of Real Estate Taxes to Landlord at least thirty
(30) days in advance of the due date of any payment, then
Landlord shall make the payment of Real Estate Taxes before any
interest or penalty is imposed for late payment and shall, upon
receipt of proof of payment, provide Tenant with a copy of same. If
Landlord shall not receive a payment of Real Estate Taxes at least
thirty (30) days before its due date, then, in addition to the
other rights and remedies available to Landlord as a result of such
failure, Landlord shall have the right to either (A) delay the
payment of such Real Estate Taxes until the later of such payment
due date set forth above or ten (10) days following the
payment of such amounts to Landlord by Tenant (and if such payment
is made by check, the date of collection of same) in which event,
all interest and penalties imposed
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shall be
paid by Tenant as Additional Rent hereunder; or (B) pay such
Real Estate Taxes from Landlord’s own funds.
(c) If
the Premises are assessed for any special assessments beneficial to
the Tenant, Tenant shall pay all installments due during the Term
of the Lease. Tenant shall pay directly all personal property
taxes, water and sewer rents, and other governmental charges
relating to Tenant’s use of the Premises, which may be
assessed, levied, confirmed, imposed upon, or grow or become due
and payable at any time during the term of this Lease (all such
real estate taxes, assessments and personal property taxes, water
and sewer rents, and other government charges which are payable by
Tenant during the term of this Lease being deemed “Additional
Rent”).
(d) If
Landlord shall receive any real estate tax refund or reimbursement
of Real Estate Taxes or a sum in lieu thereof (“Tax
Refund”) with respect to any year or portion thereof of which
falls within the Term, then out of any balance remaining of the Tax
Refund, after deducting Landlord’s expenses in obtaining the
same being the actual expenses for legal fees and experts, Landlord
shall pay to Tenant an amount equal to such Tax Refund (apportioned
if such refund is for a calendar year a portion of which falls
outside the Term); provided that in no event shall Tenant be
entitled to receive more than the payments by Tenant for such
calendar year or period.
(e) Nothing
herein contained shall require Tenant to pay state or federal
income taxes assessed against Landlord, state or federal capital
levy, estate, succession, inheritance or transfer taxes of
Landlord.
Article 6.
INSURANCE.
(a) Tenant
shall continue to maintain on the Premises, together with its own
policy of general liability insurance, the insurance coverage set
forth on Exhibit B attached hereto. Such policy shall provide
that it shall not be cancelable except on thirty (30) days
prior written notice to the Landlord. The Landlord and its
mortgagee (provided Landlord has provided to the Tenant prior
written notice of the name of the mortgagee) shall be named
additional insured under the liability policy. All such insurance
shall be written by a good and solvent insurance carrier authorized
to do business in the State of New Jersey.
(b) Tenant’s
personal property and fixtures and any other items which Tenant may
bring to the Premises or which may be under Tenant’s care,
custody and control which may be subject to any claim for damages
or destruction due to Landlord’s negligence shall be fully
insured by a policy of insurance covering all risks which policy,
if available from such insurer, shall specifically provide for a
waiver of subrogation against the Landlord without regard to
whether or not same shall cost an additional premium and
notwithstanding anything to the contrary contained in this Lease.
Prior to the Commencement Date Tenant shall deliver to Landlord
each policy or a certificate evidencing such policies of insurance
required to be maintained by Tenant pursuant to the terms of this
Lease. At least thirty (30) days prior to the expiration or
termination date of any such policy, the Tenant shall deliver a
renewal or replacement policy with proof of the payment of the
premium therefore. Such policy shall provide that it shall not be
cancelable except on thirty (30) days prior written notice to
the Landlord.
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(c) Should
Tenant fail to maintain all insurance required, or fail to name the
Landlord or its mortgagee as an additional named insured under the
liability policy, then Tenant shall be in default hereunder and
shall be deemed to have breached its covenants as set forth
herein.
(d) Neither
Landlord nor Tenant shall be liable to the other or to any
insurance company insuring the other party (by way of subrogation
or otherwise) for any loss or damage to any structure, building or
other tangible property, or any resulting loss of income, even
though such damage or loss might have been occasioned by the
negligence of Landlord or Tenant or any of their agents or
employees, if any such loss or damage is required to be covered by
insurance (as set forth herein) benefiting the party suffering such
loss or damage. To the extent that Landlord and Tenant have
separate insurance policies, Landlord and Tenant shall each procure
an appropriate clause in, or endorsement to, each of their
insurance policies pursuant to which each insurance company waives
it right of subrogation. Each insurance policy required to be
maintained under this Lease shall state that with respect to the
interest of Landlord the insurance maintained pursuant to each such
policy shall not be invalidated by any action or inaction of Tenant
and shall insure Landlord regardless of any breach or violation of
any warranties, declarations, conditions or exclusions by
Tenant.
(e) Each
insurance policy required to be maintained under this Lease shall
state that all provisions of each such insurance policy, except for
the limits of liability, shall operate in the same manner as if a
separate policy had been issued to each person or entity insured
there under.
(f) Each
insurance policy required to be maintained under this Lease shall
state that the insurance provided thereunder is primary insurance
without any right of contribution from any other insurance which
may be carried by or for the benefit of Landlord.
(g) Each
insurance policy required to be maintained under this Lease shall
recognize the indemnification set forth in Article 29 of this
Lease.
Article 7. ELECTRIC, WATER
AND SEWER FEES.
(a) Tenant
shall pay for the costs of all electricity, gas, water, sewer and
other utilities directly to the provider of such utilities to the
Premises and the Building, interior and exterior. Any such items
which are liens on the Premises shall be paid promptly and before
any interest or penalties are due.
(b) In
the event that any tax is imposed upon Landlord with respect to
electric energy furnished to the Premises by any federal, state,
county or municipal authority, Tenant shall pay to Landlord, on
demand, such taxes so assessed against the Premises.
(c) Landlord
shall not be liable in any way to Tenant for any loss, damage or
expense which the Tenant may sustain or incur if either the
quantity or character of electric service or other utilities
furnished to the Premises is changed or is no longer available or
suitable for Tenant’s requirements.
7
Article 8. CARE, MAINTENANCE
AND ALTERATIONS OF PREMISES.
(a) The
Tenant shall commit no act of waste and shall maintain and take
good care of the Premises and the fixtures and appurtenances
therein at Tenant’s sole cost and expense and shall, in the
use and occupancy of the Premises, conform to and comply with all
laws, orders and regulations of the Federal, State and municipal
governments. All of the aforesaid maintenance and repairs shall be
consistent in quality with the condition of the Premises on the
Commencement Date and in conformity with all fire and casualty
insurance rating services and according to all applicable building
codes and regulations. Further, in light of the Landlord’s
plans to significantly renovate the Building upon termination of
the Lease and short term nature of the Lease, Tenant need not make
any repairs that are not essential to its continued use and
occupancy of the Premises, except to the extent required pursuant
to the provisions of Article 11 below.
(b) Not
later than the last day of the Term, the Tenant shall remove all of
the Tenant’s personal property and fixtures, including, but
not limited to all cranes, lifts and shelving systems (the
“Personal Property”). Tenant shall use commercially
reasonable efforts not to cause any damage to the Premises by
reason of Tenant’s removal of such fixtures, alterations,
improvements and Personal Property and shall repair any injury to
the building systems and structure done by or in connection with
the installation or removal of said Tenant’s Personal
Property, alterations, fixtures, personalty or improvements
excluding any components or fixtures to be replaced by Landlord in
its renovation of the Premises. Except as may be specifically
provided herein, Tenant need not repair or fill any cracks nor pits
in the floors left after the removal of its Personal Property or
otherwise remedy any defect or condition in the Premises. Any
Personal Property not removed by Tenant as required herein shall be
deemed abandoned thirty (30) days after the expiration or
earlier termination of the Lease, and may be stored, removed and
disposed of by Landlord in its sole discretion, and Tenant waives
all claims against Landlord for any damages resulting from
Landlord’s retention or disposal of same. Tenant shall be
entitled to no payment or offset for the value of any abandoned
property (even if sold by Landlord) and Tenant shall pay on demand
all costs incurred by Landlord in connection with such removal,
disposal or storage. No retention, disposal or sale of such
abandoned property shall limit remedies otherwise available to
Landlord hereunder for a breach of this Agreement by Tenant. The
provisions of this subparagraph, shall be considered an express
agreement in lieu of the provisions of N.J.S.A. 2A:18-72 et seq.
and shall in all cases govern the Landlord’s right to dispose
of any Tenant’s Personal Property left in the Premises as
provided herein. All obligations of Tenant hereunder not fully
performed as of the termination or expiration of the Lease shall
survive such termination or expiration, until they are
performed.
(c) Tenant
shall not, without first obtaining the written consent of the
Landlord (which consent shall be in Landlord’s sole and
absolute discretion), make any alterations or improvements in, to
or about the Premises.
(d) Tenant,
at its expense, and with diligence and dispatch, shall procure the
cancellation or discharge of all notices of violation arising from
or otherwise connected with Tenant’s installation of any work
performed by Tenant in the Premises (“Tenant’s
Work”) that are issued by any public authority having or
asserting jurisdiction. Tenant shall defend, indemnify and save
harmless Landlord against any and all construction and other liens
filed in
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connection with Tenant’s installation of the Tenant’s
Work, including the liens of any security interest in, conditional
sales of, or chattel mortgages upon, any material, fixtures or
articles so installed in and constituting part of the Premises and,
against all costs, expenses and liabilities incurred in connection
with any such lien, security interest, conditional sale or chattel
mortgage or any action or proceeding brought thereon. Tenant, at
its expense, shall procure the satisfaction or discharge of all
such liens within thirty (30) days after Landlord makes
written demand therefor. However, nothing herein contained shall
prevent Tenant from contesting, in good faith and at its own
expense, any such notice of violation, provided such liens are
bonded to the satisfaction of the Landlord and its mortgage
lender.
(e) All
of Tenant’s Work shall be removed from the Premises by Tenant
at the end of the term, unless otherwise agreed to in writing by
Landlord. The provisions of this Article shall survive any
termination of this Lease.
Article 9. REPAIR AND
MAINTENANCE.
(a) As
Additional Rent, Tenant shall furnish and pay for, maintain and
repair the following services: heat, ventilation and air
conditioning in the Building for which the Tenant shall obtain a
service contract from a reputable contractor and deliver a copy
thereof to Landlord; all plumbing and electrical fixtures; water
for ordinary drinking and lavatory purposes, janitorial services;
security services, removal of any of Tenant’s rubbish; light
bulbs and ballasts and to repair of any interior of the Building
and its decorations, floor and wall coverings, ceilings, lighting
fixtures or other work within the Premises, exterminate all areas
of the Premises; and snow removal, parking lot and landscaping of
the exterior portion of the Premises. Notwithstanding the
foregoing, subject to the provisions of Article 11, since
Landlord intends to significantly renovate the Building and this is
a short term Lease, the Tenant need not repair or maintain any
systems or items that are not essential for its continued use and
occupancy of the Premises (unless necessary to prevent waste to the
Premises), and/or may affect a temporary repair of such systems or
items provided further that for all mechanical systems and items
that are less than five (5) years old, the Tenant shall maintain
and repairs such systems and items in accordance with the
manufacturer’s standards and specifications or customary
industry standards.
(b) Landlord
shall not be responsible for any defect in workmanship or other
problem that arises with respect to the Premises or installation of
the Tenant’s Work by Tenant or Tenant’s contractors.
Further, Landlord shall not be responsible to the Tenant for any
condition in or about the Premises or the Building that is caused
by any act or neglect of the Tenant or any agent, customer, invitee
or licensee of the Tenant, and where any repair is made necessary
by any such act or neglect, the Tenant shall pay directly for such
repair.
(c) The
Landlord shall be responsible for the repair of the roof, floors
(but not floor coverings), structural elements and parking lot not
caused by neglectful maintenance or intentional conduct of the
Tenant or its employees or invitees or damaged or required to be
replaced by reason of Tenant’s compliance with its
environmental obligations pursuant to this Lease Agreement. Any
replacements or costs of a capital nature under generally accepted
accounting principles consistently applied (referred to as
“Capital Replacements”), including, but not limited
to:
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(i) rentals
and other related expenses incurred in leasing capital items such
as air conditioning systems, elevators or other equipment that
would not be considered normal maintenance, repair, management or
operation expenses;
(ii) alterations
to and replacements of capital items such as the roof, structural
components, sprinklers and the parking lot; or
(iii) costs
of equipment, tools and/or improvements not normally expensed in
one year,
(iv) roof
and roofing, including flashing, gutters, downspouts, eaves and the
like;
(v) alterations
to and replacements of capital items such as the structural
components (i.e. exterior and load-bearing walls), and the parking
lot;
(vi) mechanical
and electrical services incorporated in or beneath the structure of
the Building including, without limitation, the HVAC system
(excluding routine maintenance and repair which is the obligation
of Tenant); and
(vii) parking
lots, driveways, sidewalks and walkways (excluding the obligation
to keep same free from snow, ice and debris which are obligations
of Tenant hereunder)
shall be
paid for by Landlord, but since this is a short term Lease and
Landlord plans to substantially renovate the Premises at the end of
the term, Landlord may elect not to repair or replace any of the
Capital Replacements in which event Tenant may elect either to
(i) pay for a temporary repair to such Capital Replacement, or
(ii) terminate this Lease by giving thirty (30) days written
notice of termination (or such termination notice may be effective
earlier if the Premises cannot be used by Tenant for its business
due to the need for such Capital Replacement), whereupon this Lease
shall terminate as if such date were the Expiration Date hereunder
and thereafter neither party shall have any further obligation or
liability to the other except to the extent such obligation or
liability would survive the Expiration Date originally set forth
herein, including, but not limited to, those obligations and
liabilities of Tenant set forth in Article 12. Provided
however, if the Tenant advises the Landlord in writing that such
Capital Replacement is not essential for its continued use and
occupancy, then Tenant may continue to occupy the Premises and need
not reimburse the Landlord as provided herein. If Landlord’s
election to not make such Capital Replacements will materially
impair the use and enjoyment of only a portion of the Premises, the
Tenant may elect to surrender such portion to the Landlord and the
Net Rent, Real Estate Taxes and other financial obligations of the
Tenant and Landlord shall be equitably adjusted as if such portion
of the Premises were the Surrender Space.
Article 10. ASSIGNMENT AND
SUBLETTING.
(a) Notwithstanding
any other provisions of this Lease to the contrary, the Tenant
covenants and agrees that it will not assign any of its rights
under this Lease, delegate any of
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its
duties hereunder nor sublet the whole or any part of the Premises;
allow any transfer thereof or any lien upon Tenant’s interest
by operation of law; sublet the Premises or any part thereof; or
permit the occupancy of the Premises or any part thereof by anyone
other than Tenant without, in each instance, having first received
the express written consent of the Landlord (which consent with
respect to a requested assignment or subleasing may be withheld,
delayed or conditioned in the Landlord’s sole discretion). In
the event that Tenant hereunder is a corporation, limited liability
company or other legal entity, then any change in the ownership of
the majority of the outstanding capital stock or beneficial
ownership of the Tenant or any merger or consolidation or transfer
of substantially all the assets of the Tenant, shall be deemed an
assignment of this Lease. Any such request shall set forth, in
detail reasonably satisfactory to the Landlord, the identification
of the proposed assignee or subtenant, its financial condition and
the terms on which the proposed assignment or subletting is to be
made, including (without limitation) the rent and any other
consideration to be paid in respect thereto. Notwithstanding the
foregoing, however, Tenant may assign this Lease or participate in
a transaction that is deemed to be an assignment of this Lease with
at least twenty (20) days’ prior written notice to the
Landlord (and without Landlord’s prior written consent) to
any entity which is directly or indirectly controlled by or under
common control with Tenant or to any entity which shall acquire all
or substantially all of the stock or assets of Tenant, or
participate in a merger or consolidation or a transaction where the
majority of the beneficial interests are transferred, provided that
the net worth of the assignee (or deemed assignee) is equal or
greater than the net worth of the Tenant at the Commencement Date
of this Lease and provided that the Tenant provides to the Landlord
at least thirty (30) days prior to the effective date of such
assignment in form satisfactory to Landlord a written agreement
whereby such assignee assumes all the obligations under this Lease,
agrees to bound by its terms, provides the evidence of its net
worth and the insurance required hereunder with respect to the
assignee or deemed assignee. Any and every such assignment,
delegation, sublet, mortgage, transfer, lien or occupancy is
expressly subject to the further requirements and limits provided
in Article 12 below.
(b) It
shall be a condition of the validity of any such consented-to
assignment or consented-to subletting that the assignee or
subtenant agrees directly with the Landlord, in form satisfactory
to the Landlord, to be bound by all the obligations of the Tenant
hereunder, including (without limitation) the obligation to pay Net
Rent, Additional Rent and other amounts provided under this Lease
and the covenant against assignment or subletting; provided,
however, the acceptance by Landlord of any Rent from any subtenant
or assignee or the failure of Landlord to insist upon a strict
performance of any of the terms, conditions and covenants herein
from any assignee or subtenant shall not release Tenant herein,
from any and all of the obligations herein during and for the
entire Term of this Lease.
(c) In
the event the Tenant requests that the Landlord consents to an
assignment or subleasing, then the Tenant shall provide the
Landlord with a copy of the proposed sublease or assignment
documents,
(d) Unless
otherwise agreed to in writing by Landlord, no assignment or
subletting by Tenant shall reduce, diminish, or otherwise affect
the liability of Tenant hereunder and the Tenant named herein shall
remain fully liable for the obligations of the Tenant hereunder,
including (without limitation) the obligation to pay Net Rent,
Additional Rent and other amounts provided under this Lease.
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Article 11. COMPLIANCE WITH
LAWS, RULES AND REGULATIONS.
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