LEASE AGREEMENT
THIS LEASE AGREEMENT, prepared this eighth day of August, 1990 between
CHERRY HILL INDUSTRIAL SITES, INC., a New Jersey Corporation having
its principal office at 1998 Springdale Road, Cherry Hill, New Jersey
08003, (hereinafter referred to as LANDLORD), and Science Dynamics
Corporation, having an office at Building #37, 1919 Springdale Road,
Cherry Hill, NJ 08003 (hereinafter referred to as TENANT).
Landlord and Tenant hereby covenant as follows:
1. LEASED PREMISES. Landlord hereby agrees to lease to Tenant, and
Tenant hereby agrees to rent from Landlord approximately 49,300 square
feet, in building number 37 and land adjacent thereto, situated in
Cherry Hill Township, Block 469, Lot 3.D, as shown and defined on
Exhibit A attached hereto and made a part hereof (hereinafter referred
to as the PREMISES) for the term of five (5) years (or until such
prior termination as hereinafter provided) to commence on the first
day of September, 1990, and end on the thirtyfirst day of August,
1995, both dates inclusive. Tenant agrees that this Lease shall,
unless sooner terminated, pursuant to the terms and conditions hereof,
expire absolutely on the expiration date without the requirement of
any further notice from Landlord.
2. USE. Tenant shall use and occupy the Premises only for the
following use, which Tenant represents shall conform to the I-R zoning
of Cherry Hill Township or any subsequent zone designated for the
Premises by Cherry Hill Township printed circuit board assembly and
related uses.
3. RENT. The Term rental shall be $739,500.00, except as same may be
modified elsewhere in this Lease, payable by Tenant to Landlord, in
lawful money of the United States, in equal monthly rental
installments of $12,325.00 on the first day of each month, in advance,
during the Term, at the office of the Landlord or such other place as
Landlord may designate.
Tenant shall assume the risk of lateness or failure of delivery
of the mails, and no lateness or failure of the mails will excuse
Tenant from its obligation to have made any payment of rent or
additional rent as required under this Lease.
No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct rent or additional rent shall be deemed
to be other than a payment on account, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment
be deemed an accord and satisfaction, and Landlord may accept such
check or payment without prejudice to Landlord's right to recover the
balance or pursue any other remedy in this Lease or at law provided.
4. ADDITIONAL RENT. Additional rent charges shall be paid to
Landlord within five (5) days of notice of a bill sent by Landlord to
Tenant.
5. LANDSCAPING. Tenant shall pay, as additional rent $300.00 per
month for grass cutting and landscape maintenance pursuant to
standards as established by Landlord. Landlord, at its option, and at
no cost to Landlord, may utilize any exterior water sources located on
the Premises for the purpose of watering landscaping. Tenant shall
ensure that water is available for use by Landlord at exterior water
sources.
Tenant shall keep the lawn, landscaped areas, paved surfaces,
sidewalks and similar areas free of debris and other waste material at
all times. In the event debris and/or other waste material is present
upon any of the aforementioned areas, or if, in Landlord's reasonable
determination debris and/or waste material originating from Tenant's
Premises is upon other properties owned by Landlord, Landlord may, at
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its option and WITHOUT PRIOR NOTICE OR APPROVAL OF TENANT, remove
same. All costs and charges relating thereto shall be payable by
Tenant as additional rent. The minimum charge for this service shall
be $50.00 per instance and/or occurrence.
6. SNOW REMOVAL. VOID
7. SPRINKLER SYSTEM SERVICE. Tenant shall pay, as additional rent,
one hundred percent (100%) of all charges relating to Building # 37
for sprinkler supervisory service and sprinkler standby fees.
8. UTILITIES. Tenant shall pay for all deposits, costs and charges
relating to heat, water, sewer, electricity, gas and similar services
rendered or supplied to or upon the Premises, or in connection with
the use and occupation of the Premises on or prior to the date same
are due.
Tenant shall not be released or excused from the performance of
any of its obligations under this Lease for any failure, interruption
or curtailment of any utilities or services; nor shall any such
failure, interruption or curtailment constitute a constructive or
partial eviction.
9. PERSONAL PROPERTY TAXES. Tenant shall pay all personal property
taxes and other taxes and assessments pertaining to its goods,
chattels, machinery, equipment, fixtures, personal property and
similar items prior to the date same are due.
10. REAL PROPERTY TAXES. Tenant shall pay to Landlord, as additional
rent, one hundred percent (100%) of all real property taxes and
assessments levied upon Block 469, Lot 3D (Bldg #37, with adjoining
land) under or by virtue of any present or future laws or regulations
of any governmental or lawful authority having jurisdiction over the
Premises.
If at any time during the Term any governmental or quasi-
governmental authority having jurisdiction over the Premises imposes
(a) a tax, assessment, levy, imposition, license fee or other charge
on the rents collected by Landlord, or (b) any other additional or
substitute tax, assessment, levy, imposition or charge relating to
Block 469, Lot 3D, any such items shall be deemed to be included
within the term "Real Estate Taxes" for the purposes hereof.
Landlord may, at its option, contest or appeal any real property
tax or assessment affecting the Premises utilizing such attorneys
and/or experts as Landlord deems advisable. In the event of any tax
reduction Tenant shall pay to Landlord, as additional rent, either the
tax savings to the Tenant for one year or one half of the total tax
savings to the Tenant during the remainder of the Term, whichever is
less.
11. INSURANCE. In respect to Landlord's fire insurance policy with
standard extended coverage and difference in condition policy, Tenant
agrees: (a) it will not do nor permit any acts or things which will
invalidate or be in conflict with any provisions thereof or which
shall cause the insurance rate on the Premises to be higher than on
the date of the commencement of this Lease; (b) it shall comply with
all present and future rules, regulations and recommendations thereof
and shall promptly make all changes, modifications, replacements and
alterations as are necessary and/or required. Tenant shall not use or
occupy the Premises or do or permit anything to be done thereon in any
manner which shall prevent Landlord and/or Tenant from obtaining at
standard rates any insurance required or desired, or which would
invalidate or increase the cost to Landlord of any existing insurance,
or which might cause structural injury to any building, or which would
constitute a public or private nuisance or which would violate any
present or future laws, regulations, ordinances or requirements
(ordinary or extraordinary, foreseen or unforeseen) of the federal,
state or municipal governments, or of any departments, subdivisions,
bureaus or offices thereof, or of any other governmental public or
quasi-public authorities now existing or hereafter created having
jurisdiction in the Premises, or the Industrial Center of which they
form a part.
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The aforementioned policy shall insure only the Landlord's
property against damage and/or losses for perils specified therein. In
no event will Landlord be responsible for charges and/or costs related
to damage, loss, or repair and/or replacement of any property: (a)
caused by conditions, exclusions or reasons not covered therein; (b)
within the deductible provisions of the aforementioned policies;
and/or (c) any property not owned by Landlord.
Landlord's and Tenant's fire insurance policy with standard
extended coverage policy, difference in condition policy and rental
income insurance policy shall contain a waiver of subrogation of the
rights of the Landlord's or Tenant's insurance carrier to proceed
against the Landlord or Tenant for matters covered therein.
Tenant is invited and encouraged to review and ascertain the
type, deductibles and limits related to Landlord Insurance policies
referenced herein. Tenant is responsible for, and hereby saves and
holds harmless Landlord, for all costs, charges and expenses relating
to or ensuing from damage, loss, and/or replacement to/of any
property, of whatever nature and from any cause whatsoever, not
covered by or within the deductible limits of Landlords insurance
policies referenced herein.
Tenant shall pay, as additional rent, one hundred percent (100%) of
Landlord's premiums for fire insurance with standard extended coverage
policy, difference in condition policy and rental income insurance
policy to the extent the aforementioned policies relate to Building
#37, as determined by Landlord.
12. TENANT'S INSURANCE OBLIGATIONS. Tenant, as a minimum, shall carry
the following insurance policies applicable to the Premises (and other
areas as may be required herein) with reputable companies authorized
to issue policies in the State of New Jersey having a Moody rating of
at least A:
a. Comprehensive Public Liability Insurance. Such insurance
shall be for a Combined Single Limit (CSL) for bodily injury
(including death) and property damage or loss (for occurrences in or
about the Premises or arising out of Tenants ownership, maintenance,
use or occupancy of the Premises) in the amount of $1,000,000 for each
occurrence, and $3,000,000 in the aggregate.
b. Personal Property Insurance in amounts and types of coverage
to insure against damage or loss to any property including, but not
limited to any Tenant alterations, improvements or betterments in or
about the Premises that is not the property of Landlord caused by:
(1) water, rain, sleet, snow, or ice entering, seeping or leaking into
or through the Premises or any portion thereof; (2) fire, explosion,
tornado, wind, earthquake or any other casualty or any other similar
occurrences; (3) theft, burglary, vandalism, malicious mischief, or
other similar occurrences; (4) accidents of any kind, type or nature;
(5) electrical, gas or water failure, cutoffs, surges or similar
occurrences; (6) loss or damage to property not owned by Landlord by
any similar reason.
c. Boiler and pressure vessel insurance (when equipment relating
to this type of insurance is located in/and or upon the Premises) with
Landlord as a named insured in sufficient amount to insure against
damage or loss to any property whether belonging to Tenant, Landlord,
or others.
d. Such other insurance, and in such amount, as may from time to
time be reasonably required by Landlord or required by law. No
insurance requirements as set forth in this Lease shall preclude
Tenant from obtaining whatever additional insurance coverage's Tenant
shall deem necessary or prudent.
e. NOTE: Tenant shall have the right to procure its required
insurance on a blanket master policy basis and/or an umbrella basis;
provided, however, that all such coverage shall otherwise comply with
all of the requirements contained herein.
f. Prior to the commencement date of this Lease and by the
fifteenth day of March of each year thereafter Tenant shall deliver to
the Landlord proof that all the insurance coverage's required of
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Tenant pursuant to the terms and conditions of this Lease are in force
and that premiums related thereto are paid. Upon execution of this
Lease, Tenant shall provide Landlord with evidence of prepayment of
the insurance premiums described herein for one (1) year in advance.
g. All insurance policies required of Tenant shall: (a) provide
at least thirty (30) days prior notice to Landlord and Tenant of any
change, modifications or cancellation; and (b) contain a waiver of
subrogation of the rights of the Tenant's insurande carrier to proceed
against the Landlord for matters which are required to be or are
covered by the Tenant's insurance policies.
Upon execution of this Lease, Tenant shall provide Landlord with
evidence of prepayment of the insurance premiums described herein for
one (1) year in advance. Tenant shall give prompt notice to Landlord
in case of any fire, casualty, accident or similar occurrence.
13. UPGRADING. Tenant agrees to pay to Landlord, as additional rent,
during the term of this Lease the sum of $1,027.00 per month toward
Landlord's contribution and assistance to the Cherry Hill Industrial
Center Steering Committee (and other committees associated with the
Steering Committee that are authorized by Landlord). It is understood
that Landlord has the sole discretion as to the disbursement of funds
(or non disbursement of funds if such is the case) related to such
activities as may be authorized by Landlord, provided, however, that
such activities and fund disbursements shall be related to, and for
the benefit of, the Cherry Hill Industrial Center.
14. AS BUILT DRAWINGS. Within thirty (30) days of the execution of
this Lease, Tenant shall provide Landlord with an accurate plan,
prepared by a professional engineer, licensed to practice in the state
of New Jersey, indicating the following data relating to the interior
of the Premises:
a. location, height and construction material of all interior
partitions,
b. electrical service sub panel, electrical outlet, electrical
fixtures information, including locations and type,
c. plumbing fixtures, drains and related item information,
including locations and types,
d. HVAC location and types, including ducts and related items,
e. floor and ceiling finishes, and
f. information concerning any other items reasonably required by
Landlord to determine the condition and contents of the Premises.
If Tenant shall fail to provide said drawings within the specified
time period, Tenant shall be considered to be in default and Landlord
reserves the option of obtaining said drawings and billing Tenant for
the cost of procuring them, which cost shall not exceed $10,000.
15. FIRE. If the Premises shall be partially damaged by fire or
similar casualty as is covered under insurance policies carried by
Landlord, the damage shall be repaired by and at the expense of
Landlord to the extent provided for pursuant to the provisions
thereof. Any fire or similar casualty damage to the Premises, within
the deductible limits of the aforementioned policies shall be repaired
by Landlord, but paid for by Tenant as additional rent.
The rent, until such repairs are made, shall be apportioned
according to the portion of the Premises which was damaged or which
has been made unusable, whichever is less. Nevertheless the Lease
shall continue in full force and effect.
If the Premises are totally or substantially damaged by fire or
similar casualty, and if Landlord, at its sole option, decides not to
restore or not to rebuild same, Landlord shall then, within Sixty (60)
days after such fire, give Tenant notice of such decision, and
thereupon this Lease shall expire by lapse of time upon the fifth day
after such notice is given. Tenant shall then vacate the Premises and
surrender same to Landlord.
For the purpose of this Lease substantial damage is defined as
that which is greater than twenty (20%) percent of the insured value
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of the premises as determined by the cost estimate of Landlord.
In the event Landlord, at its option, decides to restore or
rebuild the Premises, no penalty shall accrue for reasonable delay
which may arise by reason of adjustment of insurance on the part of
Landlord and/or Tenant, or for delays on account of labor troubles or
other reasons or causes beyond Landlord's control.
In accordance with this paragraph, Tenant explicitly waives
applicability of N.J.S.A. 46:8-6 and N.J.S.A. 46:8-7.
16. REPAIRS, REPLACEMENTS. Tenant shall keep the Premises in good
order and repair and shall promptly make any and all repairs,
maintenance, and replacements to the Premises of whatever nature,
ordinary and extraordinary, foreseen and unforeseen, except as is
specifically provided for herein. All repairs, maintenance and
replacements shall be in quality, usefulness, and class at least equal
to the original installation.
Landlord shall not be required to furnish any services, improvements,
alterations, or similar items, nor to make any repairs, maintenance,
or replacements to the Premises except as is specifically provided for
herein.
17. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements without Landlord's approval, which shall not be
unreasonably withheld or delayed.
In the event Tenant proposes any alterations, additions, or
improvements, it shall submit a complete set of plans and
specifications relating thereto, prepared by any architect or
professional engineer registered in the State of New Jersey to
Landlord. Landlord, at its option, shall grant or deny approval within
15 days after receipt. Landlord may impose any conditions and/or
requirements upon Tenant as Landlord considers necessary or prudent to
protect Landlord's interest in the Premises. Tenant must agree in
writing to adopt any such conditions and/or requirements before any
approval is effective.
If Landlord shall grant approval for the proposed work and
provided Tenant has agreed to any conditions and/or requirements made
a part of such approval, the following additional conditions shall
apply:
a. Prior to making any alterations, additions, or improvements
Tenant shall assure itself that the work will not impair the
structural integrity of the Premises, or any portion thereof.
Approval of the proposed work by Landlord shall not constitute or
imply a warranty or representation by Landlord that the existing
Premises, or any part thereof, is adequate to withstand work proposed
by Tenant. By making any alterations, additions, or improvements,
Tenant expressly warrants that the same will not impair the structural
integrity of the Premises nor any part thereof and are in full
compliance with the requirements of all governmental agencies or
authorities having jurisdiction. Landlord reserves the right to
approve or reject Tenant's contractor. If Tenant's proposed
alteration involves a tie-in to building systems, Landlord further
reserves the option of requiring Tenant to use Landlord's contractor.
b. All costs related to the proposed work, irrespective of their
nature, are the sole responsibility of Tenant and shall be promptly
paid by Tenant at such time as they may be due.
c. All contractors, labor and/or material suppliers, and similar
parties shall agree, in writing, prior to the commencement of any work
or procurement of materials: (1) to jointly comply with Tenant with
the mechanics lien restrictions contained elsewhere in this Lease; (2)
that they are entering into any agreements for labor and/or material
with Tenant and not on behalf or for the benefit of Landlord; (3) that
the work to be done shall be in conformance with the last plans and
specifications approved by Landlord and that no changes shall be made
thereto without the approval of Landlord and Tenant; and (4) that
they, and their employees and other agents, shall comply with all
rules and regulations contained in Tenant's Lease regarding their
conduct on the Premises. Proof of such agreements shall be given to
Landlord prior to the commencement of the proposed work.
d. Tenant shall insure, indemnify and hold Landlord harmless for
any loss to which Landlord may be subject or which Landlord may
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sustain relating to accidents, injury to persons (including death),
property loss or damage of any nature whatsoever, regardless of cause,
arising during or ensuing from the work undertaken by Tenant.
e. All such alterations, additions and improvements upon
completion shall immediately become the property of Landlord, without
compensation by Landlord to Tenant or any other party, and
simultaneously become part of the Premises, and Tenant's obligations
and responsibilities pursuant to the terms and conditions of this
Lease shall thenceforth apply to the aforementioned alterations,
additions, or improvements. Upon the termination of Tenant's lease
and/or Tenant's vacating of the premises, Tenant shall remove said
alterations, additions and improvements at Tenant's expense, if so
requested by Landlord.
f. Upon completion of the work, Tenant will submit to Landlord
as-built drawings and certifications of inspections certifying the
completion of the alteration, addition or improvement.
18. COMPLIANCE WITH LAWS. With respect to the Premises or the use and
occupation thereof Tenant shall promptly comply with all laws, orders,
regulations, and requirements now in force, or which may hereafter be
in force, of (a) Federal, State, County, and Municipal authorities and
(b) private, quasi-public and public utility companies and similar
parties providing services.
Tenant shall immediately notify Landlord upon receipt of notice
of a violation or alleged violation of any of the foregoing. Tenant
shall also provide Landlord, upon Landlord's request, affidavits
and/or representations executed by a knowledgeable officer or
principal of the company concerning Tenant's best knowledge and belief
regarding Tenant's compliance with particular laws, orders,
regulations and requirements as may be cited by Landlord in its
request.
19. RULES AND REGULATIONS. Without limiting Tenant's obligations
pursuant to any of the terms and conditions of this Lease, Tenant has
the following duties:
a. Between April 15 and May 15 of each year Tenant shall provide
to Landlord, in form and content satisfactory to Landlord, a
certification from a reputable heating, ventilating and air
conditioning contractor acceptable to Landlord, or a professional
engineer licensed to practice in the State of New Jersey, confirming
that all heating, ventilating and air conditioning systems within the
Premises are in good working order and repair and are being properly
serviced by Tenant.
b. Tenant shall keep: (1) the roof and exterior wall systems in
a watertight condition; (2) gutters, downspouts, drainage, and
sewerage systems free from obstructions and blockages; (3) all yard
and exterior wall mounted lighting on during night-time hours; (4)
parking areas, driveways, walkways, and similar items free from snow,
ice, potholes and all other defects and/or hazards; (5) the Premises
in a clean, safe, and orderly condition free from debris, refuse,
trash, vermin, pests, defects and/or hazards; (6) the dissemination of
smoke, dust, odors, fumes, and other noxious gases shall be within the
limits of the industrial tolerance standards of the State Department
of Health, Bureau of Adult and Industrial Health.
c. Tenant shall not cause, commit or permit: (1) areas
allocated for driveways, walkways, or the parking of automobile
vehicles to be used for any other purpose; (2) any public or private
nuisance; (3) use or occupancy in a manner reasonably offensive or
objectionable to the Landlord by reason of, but not limited to, noise
and/or vibrations; (4) debris, dirt, holes, scuff marks, smears,
graphics and/or similar items on wall, floor, or ceiling surfaces; (5)
any utility service or equipment to be overloaded; (6) anything that
will impair or tend to impair, in Landlord's reasonable judgment, the
character, value, or appearance of the Premises; (7) outside storage
of any kind except as is specifically provided for herein; (8) parking
of inoperable vehicles, non-motorized vehicles or trailers in or about
the Premises; (9) any part or the whole of the sidewalks, entrances,
passages, stairways, corridors or halls of the premises to be
obstructed or encumbered or used for any purpose other than ingress
and egress to and from the Premises; (10) any signs, advertisements,
objects, notices or other lettering to be exhibited, inscribed,
painted, or affixed on any part of the outside or inside of the
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Premises, so as to be visible from the exterior without prior approval
of Landlord; (11) any show cases or other items to be put in front of
or affixed to any part of the exterior of the building; (12) any water
and wash closets and other plumbing fixtures to be used for any
purposes other than those for which they were designed/ constructed,
and no sweepings, rubbish, rags or other substances shall be thrown
therein; (13) any wires to be installed except in conduits, ducts or
outlets established for that purpose, unless prior written consent of
Landlord has been obtained; (14) disturbance or interference with
other Tenants or occupants of the building or neighboring buildings;
(15) canvassing, soliciting or peddling within the Premises; (16)
installation of a television, radio, or two-way radio antenna, or any
other similar antenna, on the roof, in the windows or upon the
exterior of the Premises, without the prior approval of Landlord; (17)
any cooking within the Premises, without the prior written consent of
Landlord, provided, however, that the heating, refrigerating and
preparing of beverages and light snacks for employees shall be
permitted if there are appropriate and adequate facilities and
equipment for such purposes; (18) unusual or objectionable odors to be
produced upon or emanate from the Premises; (19) storage, manufacture
or sale of liquor, narcotics or illegal drugs; (20) any portion of the
Premises to be used for lodging or sleeping or for any immoral or
illegal purpose; (21) animals of any kind to be brought or kept about
the Premises without Landlord's prior approval; (22) notices, posters,
or advertising media, except for purposes of emergency, to be affixed
on the exterior of the building; and (23) burning of trash or garbage
of any kind in or about the Premises.
d. Tenant shall: (1) store discarded material temporarily being
stored outside of the building, forming part of the Premises, within
fence-enclosed waste storage containers of a type and at locations
approved by Landlord; (2) arrange for and enforce good housekeeping
procedures and practices satisfactory to Landlord; (3) arrange for
liquid wastes and effluents to be discharged into an approved existing
sewage treatment plant in accordance with that plant's regulations and
state and federal regulations, or shall treat its own wastes and
effluents in a treatment plant or process which is in compliance with
the New Jersey State and Federal Statutes and with the requirements of
the New Jersey State Department of Health; (4) shall comply with the
New Jersey State Statutes and requirements of the New Jersey State
Department of Labor and Industry Precaution against fire hazards,
radiation, explosion, proper handling and storage of materials and
structural design, and safeguards for the health of workers.
e. Tenant, its agents, employees, contractors, invitees,
licensees, and similar parties shall not: (1) interfere with the
business of Landlord or other Tenants or persons on any other property
owned by Landlord; (2) bring or keep within the premises any
flammable, combustible or explosive fluid, chemical or substance of
types or quantities not permitted by law and/or Landlord's fire and
casualty insurance carrier.
f. Tenant, its agents, employees, contractors, invitees,
licensees, and similar parties shall: (1) obey speed limit, warning
and related type signs posted within the road/driveway system of the
Cherry Hill Industrial Center; (2) obey fire regulations and
procedures governing the premises; (3) keep access lids on exterior
waste storage containers in a closed position except when waste is
actually being placed within said containers.
g. Landlord shall have the right to prohibit any advertising by
any Tenant which, in Landlord's reasonable judgment, tends to impair
the reputation of said Tenant's Premises or the Cherry Hill Industrial
Center, and upon notice from Landlord, such Tenant shall refrain from
or discontinue such advertising. Landlord shall have the right to
enforce this provision by injunction.
h. Landlord's employees shall not be required to perform, and
shall not be required by tenant to perform, any work outside of their
regular duties, unless under specific instructions from the office of
Landlord.
i. Tenant shall immediately notify Landlord of any serious
breakage, or fire or disorder, occurring within the Premises.
j. Landlord reserves the right to rescind, amend, alter or waive
any of the foregoing Rules and Regulations at any time when, in its
judgment, it deems it necessary, desirable or proper for its best
interest and/or for the best interest of the tenants, and no such
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revision, amendment, alteration or waiver of any rule or regulation in
favor of one Tenant shall operate as an alteration or waiver in favor
of any other Tenant. Any such rescission, amendment, alteration, or
waiver shall become effective ten (10) days after notice by Landlord
to Tenant.
k. Nothing contained in this Lease shall be construed to impose
upon Landlord any duty or obligation to impose the rules and
regulations against any other Tenant or any employees or agents of any
other Tenant, and Landlord shall not be responsible or liable to
Tenant or others for non-observance or violation of the rules and
regulations by any other Tenant or its employees, agents, invitees or
licensees at any time.
1. Tenant, its employees, contractors, agents, assignees,
sublessees, invitees, licensees and similar parties shall obey and
observe all reasonable rules and regulations established by Landlord
from time to time for the conduct of Tenant and/or the welfare, care,
cleanliness, preservation of good order, and/or safety of the Cherry
Hill Industrial Center. Landlord shall give Tenant at least (10) days
notice of the establishment thereof. Nothing contained in this Lease
shall be construed to impose upon Landlord any duty or obligation to
enforce the rules and regulations against any other Tenant or any
employees or agents of any other Tenant, and Landlord shall not be
liable to Tenant or others for violations of the rules and regulations
by any other Tenant or its employees, contractors, agents, invitees,
licensees or similar parties.
20. EMINENT DOMAIN. If the Premises or any portion thereof are taken
under the power of eminent domain, this Lease shall terminate as to
the part so taken as of the date the condemning authority takes title.
If more than 10% of the floor area of the Premises, or more than 25%
of the non floor area of the Premises is taken by condemnation, Tenant
may, at Tenant's option, to be exercised by written notice to the
Landlord within 10 days after the Landlord shall have given Tenant
notice of such taking, terminate this Lease as of the date the
condemning authority takes title. If Tenant does not terminate this
Lease in accordance with the foregoing, this Lease shall remain in
full force and effect as to the portion of the Premises remaining,
except that the rent shall be reduced in proportion to the floor area
of the Premises taken to the total floor area of the Premises. Any
award for the taking of all or any part of the Premises under the
power of eminent domain or any payment made under threat of the
exercise of such power shall be the property of the Landlord, whether
such award shall be made as compensation for diminution in value of
the Leasehold or for the taking of the fee, or as severance damages,
or other compensation to which Landlord may be entitled. Tenant may
make a separate application for compensation relating to its trade
fixtures or personal property.
21. FORCE MAJEUR. Except as the effect of this paragraph may be
expressly excluded in other provisions hereof, Landlord shall be
excused for the period of any delay in the performance of any
obligation hereunder when prevented from so doing by cause or causes
beyond Landlord's control which shall include, without limitation, all
labor disputes, civil commotion, war, war-like operations, invasion,
rebellion, hostilities, military or usurped power sabotage,
governmental power sabotage, governmental regulations or controls,
fire or other casualty, inability to obtain any material, services or
financing or through Acts of God.
22. LANDLORD'S NON-LIABILITY. Except where there is affirmative
negligence on the part of the Landlord, without any contributory
negligence on the part of the Tenant:
Landlord shall not be liable or responsible for any loss or
damage to any property regardless of its nature or ownership at any
time on or about the Premises arising from any cause or reason
whatsoever. Nor shall Landlord be liable or responsible for any harm
or injury (including death) to any person at any time on or about the
Premises, arising from any cause or reason whatsoever. Tenant shall
not hold Landlord in any way responsible or liable therefore and
hereby releases and remises Landlord therefrom.
Without limiting or diminishing Landlord's non-liability as
provided for herein, Landlord shall not be responsible or liable to
Tenant, its employees, invitees, agents, or any other party for any
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loss or damage to any property or harm or injury to any persons
(including death): (a) which is and/or should have been covered by an
insurance policy required of Tenant or which Tenant failed to obtain
or keep in force and effect; (b) caused by work stoppages, business
interruptions, or similar events; (c) caused by other Tenants, its
agents, invitees, employees, and similar parties; (d) caused by
operations in construction of any private, public or quasi-public
works; (e) caused by any latent or patent defects in the Premises or
in any part of the building of which the Premises may form a part; (f)
arising out of the design or construction of the Premises; (g) caused
by snow, wind, rain, leakage, and similar events into or out of any
portion of the Premises; (h) caused by leakage, overflows,
obstructions, blockages, explosions, collapse, bursts, surges, and
similar events of any mechanical, structural, or other component
and/or part thereof; (i) arising from or caused by Tenant's business
operation, occupancy and/or use of the Premises and/or the streets,
rights of way, and walkways adjacent thereto, or any other similar
reason.
All non-liability, waivers of liability, and save and hold
harmless references in this Lease given Cherry Hill Industrial Sites,
Inc., as Landlord, shall apply to: (a) Cherry Hill Industrial Sites,
Inc., as General Contractor, Designer, Contractor, or Subcontractor;
and (b) any partner, joint venture, director, officer, agent,
stockholder, and employee of Cherry Hill Industrial Sites, Inc.
23. INDEMNIFICATION. Tenant shall not do, nor permit to be done, any
act or thing in or upon the Premises, which may, will, or does subject
Landlord to any claims, penalties, expenses, judgments,
responsibility, liability, damages or similar occurrence by reason of
damage or loss to any property or harm and/or injury (including death)
to any persons at any time.
Tenant agrees to and shall hold and save harmless and indemnify
the Landlord from and for any and all payments, expenses, costs,
attorney fees, claims and liability for losses or damage to property
and/or injury to any person (including death) resulting from any acts
or omissions by the Tenant, or its agents, employees, guests,
licensees, invitees, sub-tenants, contractors and similar parties, or
for any cause or reason arising out of or by reason of Tenant's use
and/or occupancy of the Premises and/or the conduct of Tenant's
business and/or the breach by Tenant of any of the terms and
conditions of this Lease and/or similar reason.
24. FAILURE TO GIVE POSSESSION. If Landlord, for any reason, shall be
unable to give possession of the Premises on the date set for the
commencement of the Term, Landlord shall not be subject to any
liability for such failure. Under such circumstances, provided the
delay is not caused or contributed to by Tenant, the rent payments
shall not commence until possession of the Premises is given or the
Premises are available for occupancy by Tenant, whichever occurs
first. Failure to give possession on the date of commencement of the
term shall in no way affect the validity of this Lease or the
obligations of Tenant hereunder nor shall it be construed in any way
as an extension to the Term or expiration date of this Lease.
If Landlord, at its option, grants Tenant permission to enter
into the possession of the Premises prior to the date specified as the
commencement of the Term, Tenant agrees that such occupancy shall be
pursuant to the terms and conditions of this Lease.
25. MECHANICS LIEN. Tenant shall not permit nor allow any notice of
intention to file a mechanic's lien to be filed against the Premises.
However, in the event any notice of intention to file a mechanic's
lien is filed for work to be performed or material to be furnished, or
a mechanic's lien is filed for work claimed to have been done or for
materials claimed to have been furnished to Tenant, same shall be
discharged of record and satisfied by Tenant within five (5) days
thereafter at Tenant's own cost and expense, or Tenant shall file a
bond pursuant to statute releasing such liens. Failure to do so shall
entitle Landlord to resort to such remedies as are provided herein in
case of any default of this Lease, in addition to such as are
permitted by law.
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26. ACCESS TO PREMISES. Landlord, its employees and agents shall have
the right to enter the Premises at all reasonable times for the
purpose of: (a) examining or inspecting the same; (b) showing the
same to prospective purchasers, mortgagees or Tenants; (c) making such
alterations, repairs, improvements or additions to the Premises or to
the Building as may be necessary; (d) any other similar or reasonable
purpose.
If representatives of Tenant shall not be present to open and
permit entry into the Premises at an time when such entry by Landlord
is necessary or permitted hereunder, Landlord may enter by means of a
master key (or forcibly in the event of an emergency) without: (a)
liability to Landlord, its employees, agents, invitees and similar
parties; (b) hindrance or molestation from Tenant, its employees, and
agents; and (c) such entry constituting an eviction of Tenant or
termination of this Lease.
27. ASSIGNMENT.
a. Tenant shall not assign, mortgage, pledge, encumber or in any
manner transfer this Lease or any portion thereof, or any interest
herein, or sublet the whole or any part of the Premises, without
obtaining the approval of Landlord. In the event of any such
occurrence, with or without Landlord's approval, Tenant shall,
nevertheless, remain liable for the performance of all of the terms
and conditions of this Lease and will require any assignee/ sub lessee
to execute and deliver to Landlord an assumption of all of the terms
and conditions of this Lease in form satisfactory to Landlord.
Landlord shall be entitled to, and Tenant shall promptly remit to
Landlord, any profit which may inure to the benefit of Tenant as a
result of any partial or entire subletting of the Premises or
assignment of this Lease, whether or not approved by Landlord.
b. For the purposes of this paragraph, Tenant understands that
the transfer of a majority of Tenant's stock is tantamount to an
assignment.
c. As a condition precedent to Tenant's right to sublease the
Premises or to assign this Lease, Tenant shall, at Tenant's own
expense, first comply with ECRA and fulfill all of Tenant's
environmental obligations under this Lease pursuant to paragraph 52.
which also arise upon termination of Tenant's lease term. If this
condition is not satisfied, then Landlord shall have the right to
withhold consent to sublease or assignment.
Tenant shall promptly furnish to Landlord true and complete
copies of all documents, submissions and correspondence provided by
Tenant to the Element and all documents, reports, directives and
correspondence provided by the Element to Tenant. Tenant shall also
promptly furnish to Landlord true and complete Copies of all sampling
and test results obtained from samples and tests taken at and around
the Premises. Tenant shall notify Landlord in advance of all meetings
scheduled between Tenant and NJDEP, and Landlord may attend all such
meetings.
d. Should Tenant make an assignment or sublet the Premises or
any portion thereof without the approval of Landlord, then Landlord
may, at its option, terminate this Lease by giving Tenant five (5)
days notice of Landlord's intention to do so and, upon the expiration
of five (5) days, this Lease shall terminate and Tenant shall
peaceably quit and surrender the Premises to Landlord; nevertheless
Tenant shall remain liable as provided elsewhere in this Lease. This
Lease shall not, nor shall any interest therein, be assignable as to
the interest of Tenant by operation of law, without the approval of
Landlord.
e. Subletting or assigning this Lease to anyone other than an
actual user of the Premises is positively prohibited.
f. Tenant may assign this Lease or sublet the Premises or any
part thereof to a subsidiary or controlled or affiliated concern of
Tenant and of its parent, or a surviving company of a merger or
consolidation of any of the foregoing without the Landlord's consent.
Tenant is expressly granted consent to assign or sublet the Premises,
or any portion thereof, to a wholly owned subsidiary.
28. SUBORDINATION. This Lease shall be subject and subordinate at all
times to the lien of any mortgages and/or other encumbrances, common
right-of-way's, easements and similar items existing or hereafter
placed upon the Premises by Landlord, or with the permission of
Landlord, without the necessity of any further instrument or act on
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the part of Tenant to effectuate such subordination. Tenant agrees,
however, at the election of a mortgagee, to attorn to any holder of
any mortgage to which this Lease is subordinate. Tenant agrees to
execute and deliver promptly upon demand, and without charge, such
further instrument or instruments evidencing such subordination of
this Lease to the lien of any mortgage and/or other encumbrance.
Tenant hereby irrevocably appoints Landlord as Tenant's attorney-in-
fact to execute and deliver such instrument or instruments for and in
the name of the Tenant provided same have not been executed by Tenant
within ten (10) days after Landlord's notice to Tenant.
Landlord agrees that the subordination of the Lease to any
future mortgage relating to the Premises shall be conditional and
contingent upon any such mortgagee's agreeing that, so long as Tenant
is not in default under the terms and conditions of the Lease, such
mortgages shall not disturb Tenant's use, possession and occupancy of
the Premises.
29. CERTIFICATIONS. Tenant agrees, within ten (10) days after
Landlord's notice, to execute, acknowledge and deliver to Landlord a
written instrument in recordable form certifying: (1) that this Lease
is unmodified and in full force and effect (or if there have been
modifications, that the same are in full force and effect as modified
and stating the modifications); (2) that the Tenant has accepted
possession of the Premises and the date on which the term of the Lease
commenced; (3) the dates to which rent and additional rent have been
paid in advance, if any; (4) whether or not to the best knowledge of
the signer of such certificate, Landlord is in default in the
performance of any covenant of this Lease, and, if so, specifying each
such default of which the signers may have knowledge; (5) any other
reasonable stipulation as may be required and/or requested by
Landlord. It is understood that such instrument may be relied upon by
a prospective purchaser of the fee or any mortgagee of the Premises.
Tenant shall provide to Landlord, if requested, its latest
audited financial statement, accurately reflecting its financial
condition for the latest fiscal year of Tenant. It is understood that
such statement may be relied upon by a prospective purchaser of the
fee or any mortgagee of the Premises.
30. DEFAULT. The occurrence of any of the following shall constitute
a material default and breach of this Lease by Tenant:
a. Failure of Tenant to accept possession of the Premises within
thirty (30) days after the effective date of the Lease;
b. The vacating or abandonment of the Premises by Tenant;
c. The failure by Tenant to pay, when due, any installment of
rent hereunder or any additional rent or any such other sum herein
required to be paid by Tenant;
d. A failure by Tenant to observe and perform any other
provision or terms and conditions of this Lease to be observed or
performed by Tenant, where such failure continues for fifteen (15)
days (or a lesser time period when an emergency or law requires or
makes such a reduction for abatement and/or correction prudent; or
when a lesser or non-notice provision is specifically provided for in
any covenant of this Lease) after written notice thereof from Landlord
to Tenant provided, however, that if the nature of the default is such
that the same cannot reasonably be cured within such fifteen (15) day
period, Tenant shall not be deemed to be in default if Tenant shall
within such period commence such cure and thereafter diligently
prosecute the same to completion;
e. The filing of a petition by or against Tenant for
adjudication as a bankrupt or insolvent or for its reorganization or
for the appointment pursuant to any local, state or Federal bankruptcy
or insolvency law of a receiver or trustee of Tenant's property; or an
assignment by Tenant for the benefit of creditors; or the taking of
possession of the property of Tenant by any local, state or Federal
governmental officer or agency or court appointed official for the
dissolution or liquidation of Tenant or for the operating, either
temporary or permanent, of Tenant's business; provided, however, that
if any such action is commenced against Tenant, the same shall not
constitute a default if Tenant causes the same to be dismissed within
thirty (30) days after the filing of same.
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REMEDIES
--------
Upon the occurrence of any such event of default set forth
above:
a. Landlord may (but shall not be required to) perform for the
account of Tenant the curing of any default of Tenant and immediately
recover as additional rent any expenditure made and the amount of any
obligations incurred in connection therewith, plus interest at the
rate of four percent (4%) per annum over the Midlantic National
Bank/South prime rate from the date of such expenditure;
b. Tenant may cure any monetary default by making payment of the
monies due, together with a late charge of 5% of the amount due not
later than ten (10) calendar days after notice of the default has been
given to Tenant. If said default should continue for a longer period,
Landlord may accelerate all rent and additional rent due for the
succeeding nine (9) months of the term of this Lease and declare the
same to be immediately due and payable.
c. Tenant may cure any non-monetary default by correcting the
default condition described in Landlord's notice to Tenant if said
corrections are completed within twenty (20) calendar days after
notice of the default has been given to Tenant. If said default
should continue for a longer period, Landlord may accelerate all rent
and additional rent due for the succeeding nine (9) months of the term
of this Lease and declare the same to be immediately due and payable.
d. In the event of default, and the failure of Tenant to cure
same within the designated time period, Landlord, at its option, may
serve notice upon Tenant that this Lease and the then unexpired term
hereof and all renewal options shall cease and expire and become
absolutely void on the date specified in such notice, to be not less
than five (5) days after the date of such notice without any right on
the part of the Tenant to save the forfeiture by payment of any sum
due or by the performance of any terms, provision, covenant, agreement
or condition broken; and, thereupon and at the expiration of the time
limit in such notice, this Lease and the term hereof granted, as well
as the right, title and interest of the Tenant hereunder, shall wholly
cease and expire and become void in the same manner and with the same
force and effect (except as to Tenant's liability) as if the date
fixed in such notice were the date herein granted for expiration of
the term of this Lease. Thereupon, Tenant shall immediately quit and
surrender to Landlord the Premises, and Landlord may enter into and
repossess the Premises by summary proceedings, detainer, ejectment or
otherwise and remove all occupants thereof and, at Landlord's option,
any property thereon without being liable to indictment, prosecution
or damages therefore. No such expiration or termination of this Lease
shall relieve Tenant of its liability and obligations under this
Lease, whether or not the Premises shall be relet;
e. Landlord may, at any time after the occurrence of any event
of default, re-enter and repossess the Premises and any part thereof
and attempt in its own name, as agent for Tenant if this Lease not be
terminated or in its own behalf if this Lease be terminated, to relet
all or any part of such Premises for and upon such terms and to such
persons, firms or corporations and for such period or periods as
Landlord, in its sole discretion, shall determine, including the term
beyond the termination of this Lease; and Landlord shall not be
required to accept any tenant offered by Tenant or observe any
instruction given by Tenant about such reletting or do any act or
exercise any care or diligence with respect to such reletting or to
the mitigation of damages. For the purpose of such reletting, Landlord
may decorate or make repairs, changes, alterations or additions in or
to the Premises to the extent deemed by Landlord desirable or
convenient; and the cost of such decoration, repairs, changes,
alterations or additions shall be charged to and be payable by Tenant
as additional rent hereunder, as well as any reasonable brokerage and
legal fees expended by Landlord; and any sums collected by Landlord
from any new tenant obtained on account of the Tenant shall be
credited against the balance of the rent due hereunder as aforesaid.
Tenant shall pay to Landlord monthly, on the days when the rent would
have been payable under this Lease, the amount due hereunder less the
amount obtained by Landlord from such new Tenant;
- -12-
f. The parties recognize and agree that the damage to Landlord
resulting from any failure by Tenant to timely surrender possession of
the Premises will be substantial, will exceed the amount of the
monthly installments of the Rent payable hereunder, and will be
impossible to measure accurately. Tenant therefore agrees that if
possession of the Premises is not surrendered to Landlord upon the
expiration date or sooner termination of the Lease, in addition to any
other rights or remedies Landlord may have hereunder or at law, Tenant
shall pay to Landlord, as liquidated damages, for each month and for
each portion of any month during which Tenant holds over in the
Premises after the expiration date or sooner termination of this
Lease, a sum equal to two times the aggregate of that portion of Base
Annual Rent and Additional Rent that was payable under this Lease
during the last month of the Term.
Nothing herein contained shall be deemed to permit Tenant to
retain possession of the Premises after the expiration date or sooner
termination of the Lease.
g. In addition to all remedies provided herein or by law, Tenant
shall pay to Landlord reasonable attorneys fees and court costs and
any other expenses incurred as a result of such breach or default.
31. EXPIRATION. Upon the expiration date of this Lease or prior
termination specified by Landlord pursuant to notice as provided for
elsewhere in this Lease: (a) Tenant shall remove all of its personal
property from the Premises; (b) Tenant shall peacefully quit and
surrender to Landlord the Premises, broom clean and in the same
condition in which Tenant has agreed to keep it during the Term.
Tenant's obligation to observe or perform this covenant shall survive
the expiration or prior termination date of this Lease; (c) Tenant,
for itself and on behalf of any and all persons claiming through or
under it, including, but not limited to, creditors of every kind,
shall and does hereby waive and surrender all rights and privileges
which it may have under or by reason of any present or future law, to
redeem the Premises or to have a continuance of this Lease; (d)
Landlord may enter and repossess the Premises as of Landlord's former
estate and expel Tenant, and those claiming through or under Tenant
from the Premises; (e) Landlord may remove from the Premises any
property of Tenant and/or the property of those claiming through or
under Tenant and, without notice to Tenant or others, sell such
property or any part thereof at public or private sale or Landlord may
treat such property or any part thereof as abandoned and dispose of
same in any manner as Landlord, at its option, elects, all at the risk
and cost of Tenant and without any liability to Landlord whatsoever.
If during the last month of the term or prior termination,
Tenant has removed all or substantially all of the Tenant's property
from the Premises, Landlord may, without notice to Tenant, immediately
enter the Premises to renovate and decorate the Premises, without
liability to Tenant and without reducing or otherwise affecting
Tenant's obligations hereunder.
32. NON-WAIVER BY LANDLORD. Landlord may restrain any breach or
threatened breach of any covenant of this Lease by Tenant. However,
the recitation herein of any particular remedy shall not preclude the
Landlord from any other remedy it may have, either at law or in
equity. Landlord, at its option, may pursue more than one remedy
available either concurrently or separately. The failure of Landlord
to insist upon the strict performance of any one of the terms and
conditions of this Lease or to exercise any right, remedy or election
provided for in this Lease, or permitted by law, shall not constitute
or be construed as a waiver or relinquishment of such right, remedy or
election. Landlord may, at its option, mitigate any damages caused or
arising out Tenant's breach of any of the terms and conditions of this
Lease, but shall not be under any obligation or duty to do so. Any
rights and remedies of Landlord, whether created by the terms of this
Lease or existing at law, in equity, or otherwise, shall be distinct,
separate and cumulative and no one of them, whether exercised by
Landlord or not, shall be deemed to be in exclusion of any other.
- -13-
No covenant of this Lease shall be deemed to have been waived by
Landlord unless such waiver is in writing, signed by Landlord.
33. QUIET ENJOYMENT. Landlord covenants that upon Tenant observing
and performing all the terms and conditions of this Lease, Tenant
shall and may peaceably and quietly have, hold and enjoy the Premises
for the term aforementioned.
34. SECURITY. Upon execution of this Lease, Tenant shall deposit with
Landlord the sum of $10,270.00 (carried over) as security for the
faithful performance and observance by Tenant of the terms and
conditions of this Lease. The depositing of said sum with the
Landlord is a condition precedent to the valid execution of the Lease.
Landlord, at its option, may use, apply or retain the whole or any
part of the security so deposited for the payment of any sum for which
Tenant is in default or for any sum which Landlord, at its option, may
expend by reason of Tenant's default of any of the terms and
conditions of this Lease. Any expenditures made by Landlord as herein
stipulated shall be paid by Tenant as additional rent. Landlord shall
be permitted to co-mingle Tenant security funds with other funds of
Landlord and shall not be required to pay interest on any sum so held.
In the event that Tenant shall fully and faithfully comply with
all the terms and conditions of this Lease, the security shall be
returned to Tenant after the date fixed as the end of the Lease and
after delivery of the Premises by Tenant to Landlord pursuant to the
terms and conditions of this Lease.
In the event of a sale of the Premises, Landlord shall have the
right to transfer the security to the buyer and Landlord shall
thereupon be relieved by Tenant from all liability for the return of
such security and Tenant agrees to look to the buyer solely for the
return of said security. The provisions hereof shall apply to every
transfer or assignment made of the security to a new buyer. Tenant
further covenants that it will not assign or encumber or attempt to
assign or encumber the monies deposited herein as security and that
neither the Landlord nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
35. BILLS/NOTICES. Except as otherwise provided in this Lease, any
bill, statement, or notice shall be deemed sufficient if written and
delivered to Tenant personally or sent by certified mail, return
receipt requested, to Tenant at the Premises. The time of mailing of
such bill or statement and of the giving of such notice or
communication shall be deemed to be the time when same is mailed to
Tenant as herein provided. Any notice by Tenant to Landlord must be
served by certified mail, return receipt requested, to Landlord at the
address herein given or at such other address as Landlord shall
designate.
36. WAIVER OF TRIAL BY JURY. Landlord and Tenant agree that the
respective parties shall and hereby do waive trial by jury in any
action or proceeding brought by either of the parties hereto against
the other upon a claim for rents.
In all actions involving any claim of violation of any non-
economic clause, term or provision of this Lease and specifically any
action involving any claim of negligence by either party, either shall
have and reserve all rights provided by law to trial by jury.
This Lease shall be construed without regard to any presumption
or other rule requiring construction against the party causing this
Lease to be drafted.
37. SIGNS. The Tenant shall not place nor allow to be placed any
signs upon or about the exterior of the building or the grounds of the
Premises, or other property of Landlord unless of a design and
structure and at such locations as shall be first approved by the
Landlord and then the appropriate governmental authorities and/or
agencies, if required.
- -14-
Tenant, shall pay, as additional rent, all costs and charges
incurred by Landlord related to the installation, repair, maintenance,
or replacement of all signs related to the Tenant within the Cherry
Hill Industrial Center.
38. BROKER. Tenant represents to Landlord that it has not dealt with
any broker or similar service in connection with this Lease. Tenant
shall hold and keep Landlord harmless from and against any claim for
brokerage commissions and all liabilities and expenses arising
therefrom.
39. NO REPRESENTATIONS. (a) Tenant has rented the Premises after a
complete inspection and examination of its present condition and
without any representation on the part of the Landlord, its agents,
employees, and similar parties as to the condition or usefulness of
the Premises; (b) Tenant does not acquire any rights, easements or
licenses by implication or otherwise, except as are specifically
provided for herein; (c) Tenant's possession of the Premises shall be
conclusive evidence that the Premises were in good and satisfactory
condition at the time Tenant took possession and that Tenant accepted
same "as is" and in its present condition without any express or
implied warranties; (d) upon execution of this Lease or anytime
thereafter Tenant assumes the full and sole responsibility for the
condition, safety, operation and management of the Premises pursuant
to the terms and conditions contained herein.
40. LANDLORD'S APPROVAL. Except where specifically stated otherwise:
Whenever Landlord's approval or consent is required pursuant to
any term or condition of this Lease, such approval shall be in writing
and in advance for each occurrence. Landlord is under no duty or
obligation to grant approvals.
Whenever this Lease provides for a Landlord's option, it is
agreed such does not imply or constitute a duty or an obligation of
Landlord.
Whenever this Lease provides for Landlord's approval which shall
not be unreasonably withheld, it is agreed that Tenant's remedy in the
event of Landlord's non-approval is limited to specific performance.
41. NET LEASE. It is intended that the rent and additional rent
reserved hereunder shall be an absolutely net return to the Landlord
throughout the Term. The rent and additional rent reserved hereunder
shall be paid to the Landlord without any claim on the part of Tenant,
or those claiming under Tenant, for diminution, setoff, deduction, or
abatement except as is specifically provided for herein.
Tenant's obligation to pay rent and additional rent hereunder,
and to perform the terms and conditions of this Lease shall in no way
be affected, impaired or excused because Landlord is unable to fulfill
any of its obligations hereunder, or because Tenant's use and
occupancy of the Premises is disturbed for any reason other than as is
specifically provided for herein.
42. LANDLORD'S BREACH. Tenant shall look solely to a sum that shall
not exceed five percent (5%) of the net annual rental for the
satisfaction of the remedies of Tenant in the event of a breach by
Landlord of any of the covenant(s) of this Lease.
43. TENANTS WARRANTY. Tenant warrants that if it is a corporation
that: (a) it is duly incorporated and/or qualified under the laws of
the State of Delaware and is authorized to do business in the State of
New Jersey and is in good standing; (b) all necessary corporate action
necessary to authorize the execution of this Lease upon the terms and
conditions set forth herein have been duly taken; and (c) the
officer(s) executing and delivering this Lease have been duly
authorized to bind the corporation to the terms and conditions herein
contained.
44. ADVERSE POSSESSION. Tenant shall not suffer or permit the
Premises, or any portion thereof, to be used without restriction or in
such a manner as might reasonably tend to impair Landlord's title to
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the Premises or in such manner as might reasonably make possible
claims of adverse usage or adverse possession, or of implied
dedication of the Premises or any portion thereof.
45. COMPLIANCE WITH THE NJ ENVIRONMENTAL CLEANUP RESPONSIBILITY ACT.
a. Tenant shall, at Tenant's own expense, comply with the
Environmental Cleanup Responsibility Act, N.J.S.A. 13:lK-6 et seq.,
the regulations promulgated thereunder and any successor legislation
and regulations, and any amendments or additions thereto, (hereinafter
referred to as 'ECRA'). Tenant shall, at Tenant's own expense, make
all submissions to, provide all information to, and comply with all
requirements of, the Industrial Site Evaluation or its successor
('Element') of the New Jersey Department of Environmental Protection
('NJDEP').
b. Tenant's obligations under this paragraph shall arise if
there is any closing, terminating or transferring of operations of an
industrial establishment at the premises pursuant to ECRA, whether
triggered by Landlord or Tenant.
c. Provided this Lease is not previously cancelled or terminated
by either party or by operation of law, Tenant shall commence its
submission to the Element in anticipation of the end of the lease term
no later than one (1) year prior to the expiration of the lease term.
Tenant shall promptly furnish to Landlord true and complete copies of
all documents, submissions, correspondence and oral or written
communications provided by Tenant to the Element, and all documents,
reports, directives, correspondence and oral or written communications
by the Element to Tenant. Tenant shall also promptly furnish to
Landlord true and complete copies of all sampling and test results and
reports obtained and prepared from samples and tests taken at and
around the Premises. Tenant shall notify Landlord in advance of all
meetings scheduled between Tenant and NJDEP, and Landlord may attend
all such meetings.
d. Should the Element or any other division of NJDEP determine
that a cleanup plan be prepared and that a cleanup be undertaken
because of a spill or discharge of a hazardous substance or waste at
the Premises which occurred during the term of the Lease, Tenant
shall, at Tenant's own expense, promptly prepare and submit the
required plan and financial assurances and shall promptly carry out
the approved plans.
e. At no expense to Landlord, Tenant shall promptly provide all
information requested by Landlord or NJDEP for preparation of a non-
applicability affidavit; de minimus quantity exemption application,
negative declaration application, limited conveyance application or
other submission and shall promptly sign such affidavits and
submissions when requested by Landlord or NJDEP.
f. Should Tenant's operations at the Premises be outside of those
industrial operations covered by ECRA, Tenant shall, at Tenant's own
expense, obtain a letter of non-applicability or de minimus quantity
exemption from the Element prior to termination of the Lease term and
shall promptly provide Tenant's submission and the Element's exemption
letter to Landlord. Should Tenant obtain a letter of non-
applicability or de minimus quantity exemption from the Element, then
Tenant shall, at Landlord's option, hire a consultant satisfactory to
Landlord to undertake sampling at the Premises sufficient to determine
whether or not Tenant's operations have resulted in a spill or
discharge of a hazardous substance or waste at or around the Premises.
Should the sampling reveal any spill or discharge of a hazardous
substance or waste, then Tenant shall, at Tenant's expense, promptly
clean up the Premises to the satisfaction of Landlord and NJDEP.
g. If Tenant fails to obtain either: (i) a non-applicability
letter; (ii) a de minimus exemption; (iii) a negative declaration; or
(iv) final approval of cleanup; (collectively referred to as "ECRA
clearance") from the Element; or fails to clean up the Premises
pursuant to subparagraph (f) above, prior to the expiration or earlier
termination of the lease term, then upon the expiration or earlier
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termination of the lease term Landlord shall have the option either to
consider the Lease as having ended or to treat Tenant as a holdover
tenant in possession of the Premises. If Landlord considers the Lease
as having ended, then Tenant shall nevertheless be obligated to
promptly obtain ECRA clearance and to fulfill the obligations set
forth in subparagraph (f) above. If Landlord treats Tenant as a
holdover tenant in possession of the Premises, then Tenant shall
monthly pay to Landlord double the regular and additional monthly rent
which Tenant would otherwise have paid, until such time as Tenant
obtains ECRA clearance and fulfills its obligations under subparagraph
(f) above, and during the holdover period all of the terms of this
Lease shall remain in full force and effect.
h. Tenant represents and warrants to Landlord that Tenant intends
to use the Premises for printed circuit board assembly and related
uses which operations have the following Standard Industrial
Classification ("SIC") numbers as defined by the most recent edition
of the Standard Industrial Classification Manual published by the
Federal Executive Office of the President, Office of Management and
Budget: 36-61. Tenant's use of the Premises shall be restricted to
the classifications set forth above unless Tenant obtains Landlord's
written prior written consent to any change in use of the Premises.
Prior to the commencement date of Tenant's lease term, Tenant shall
supply to Landlord an affidavit of an officer of Tenant ("Officer's
Affidavit") setting forth Tenant's SIC numbers and a detailed
description of the operations and processes Tenant will undertake at
the Premises, organized in the form of a narrative report including a
description and quantification of hazardous substances and wastes to
be generated, manufactured, refined, transported, treated, stored,
handled or disposed of at the Premises. Following commencement of the
lease term, Tenant shall notify Landlord by way of a supplemental
Officer's Affidavit, as to any changes in Tenant's operation, SIC
number or use or generation of hazardous substances and wastes.
Tenant shall also supplement and update Officer's Affidavit upon each
anniversary of the commencement of the lease term. Tenant shall not
commence or alter any operations at the Premises prior to (i)
obtaining all required operating and discharge permits or approvals,
including, but not limited to, air pollution control permits and
pollution discharge elimination system permits from NJDEP, all
governmental or public authorities having jurisdiction over Tenant's
operations or the Premises, and (ii) providing copies of permits and
approvals to Landlord.
i. Tenant shall permit Landlord and Landlord's agents, servants
and employees, including, but not limited to, legal counsel and
environmental consultants and engineers, access to the Premises for
the purposes of environmental inspections and sampling during regular
business hours, or during other hours either by agreement of the
parties or in the event of any environmental emergency. Tenant shall
not restrict access to any part of the Premises, and Tenant shall not
impose any conditions to access. In the event that Landlord's
environmental inspection shall include sampling and testing of the
Premises, Landlord shall use its best efforts to avoid interfering
with Tenant's use of the Premises, and upon completion of sampling and
testing shall repair and restore the affected areas of the Premises
from any damage caused by the sampling and testing.
j. Tenant's indemnification of Landlord as set forth elsewhere
within this Lease shall extend to any and all claims, liabilities,
losses, damages and costs, foreseen or unforeseen, including without
limitation to reasonable counsel, engineering and other professional
or expert fees, which Landlord may incur by reason of Tenant's action
or non-action with regard to Tenant's obligations under this
paragraph.
k. This paragraph shall survive the expiration or earlier
termination of this Lease. Tenant's failure to abide by the terms of
this paragraph shall be restrainable by injunction without limiting
Landlord's right to remedy as provided for elsewhere in this Lease.
46. HAZARDOUS MATERIALS. Tenant shall not bring, allow, use, dispose,
or permit upon the Premises or generate, create, emit, or dispose at
or upon the Premises any toxic or hazardous substances, materials or
wastes as those substances, materials or wastes are defined by any
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applicable state or federal statutes and/or regulations or any
applicable municipal or county ordinances, and any amendments or
additions thereto, without being in full compliance with said
statutes, regulations or ordinances. Tenant shall obtain and maintain
all applicable state, federal, municipal and county permits relating
to Tenant's processes or operations or the generation, storage or
disposal of hazardous substances, materials or wastes on the Premises.
Tenant shall not allow the disposal of hazardous substances,
materials, or wastes on the Premises.
Tenant acknowledges that during the term of this Lease, chemical(s) or
material(s) which Tenant uses, generates, repackages, stores or
permits on the Premises may be legally banned or subject to mandatory
modification or conversion. Tenant agrees that it will not, on the
basis of such legal ban or mandatory modification or conversion, claim
frustration of purpose, seek termination of the Lease, or seek
abatement of rent. Tenant further agrees that it will comply fully,
and at Tenant's own expense, with any said legal ban or mandatory
modification or conversion.
47. ENVIRONMENTAL REPORTS. Tenant shall promptly provide Landlord
with:
a. all documentation and correspondence provided to NJDEP
pursuant to the Worker and Community Right to Know Act, N.J.S.A.
34:5A-l, et seq. and the regulations promulgated thereunder ("Right to
Know Act"), and any amendments or additions thereto,
b. all reports and notices made by Tenant pursuant to the
Hazardous Substance Discharge--Reports and Notices Act, N.J.S.A.
13:1K-15 et seq., and the regulations promulgated thereunder ("Reports
and Notices Act"), and any amendments or additions thereto, and
c. any notices, correspondence and submissions made by Tenant to
NJDEP, the United States Environmental Protection Agency (EPA), the
United States Occupational, Safety and Health Administration (OSHA),
or any other local, state or federal authority which requires
submission of any information concerning environmental matters or
hazardous waste or substances.
48. ENVIROMMENTAL LIENS. Tenant shall promptly notify Landlord as to
any liens threatened or attached against the Premises pursuant to the
Spill Act or any other environmental law. In the event that such a
lien is filed against the Premises, then Tenant shall, within thirty
(30) days from the date that the lien is placed against the Premises,
and at any rate prior to the date any governmental authority commences
proceedings to sell the Premises pursuant to the lien, either: (a)
pay the claim and remove the lien from the Premises; or (b) furnish
either (i) a bond satisfactory to Landlord in the amount of the claim
out of which the lien arises, (ii) a cash deposit in the amount of the
claim out of which the lien arises, or (iii) other security
satisfactory to Landlord in an amount sufficient to discharge the
claim out of which the lien arises.
49. EXISTING CONDITIONS. Landlord and Tenant agree that neither party
is in default of any of the provisions, terms, covenants or conditions
of the lease dated August 26, 1985. Tenant and Landlord further agree
that neither is aware of the existence of any defenses, setoffs, or
counterclaims against Landlord arising out of the August 26, 1985
lease or in any way relating thereto, or arising out of any other
transaction between Tenant and Landlord which might be set off or
credited against the accruing rents or additional rents of the August
26, 1985 lease.
50. BINDING OFFER. It is understood and agreed by the Landlord and
Tenant that this Lease is an offer only and is submitted to Tenant for
signature with the understanding that it shall not bind Landlord
unless and until it has been executed by Landlord.
51. ENTIRE AGREEMENT. This Lease constitutes the entire agreement
between the parties. No representative, agent, or employee of the
Landlord has been authorized to make any representations or promises
or to vary, alter or modify the covenants hereof. No additions,
changes, modifications, renewals or extensions of this Lease shall be
binding unless reduced to writing and signed by the Landlord and the
Tenant.
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This Lease may not be cancelled or terminated by Tenant without
the consent of Landlord except as is specifically provided for
elsewhere in this Lease.
52. APPLICATION AND DURATION. Wherever in this Lease an obligation is
imposed upon or required of Tenant, same shall be at Tenant's sole
cost and expense.
Obligations of Tenant pursuant to the terms and conditions of
this Lease are: (a) for the Premises as set forth in exhibit "A"
unless extended in scope pursuant to any particular provision and/or
as the sense and circumstances of the text may require; (b) for the
duration/term of the Lease unless having application before the
commencement date and/or if they survive the expiration date or prior
termination date pursuant to any provision contained herein.
53. VALIDITY. The terms and conditions of this Lease shall be deemed
severable, if any clause or provision herein shall be adjudged to be
invalid or unenforceable by a court of competent jurisdiction or by
the operation of any applicable law, such an occurrence shall not
affect the validity of any other clause and/or provision herein, and
this Lease and such other clauses and provisions shall remain in full
force and effect.
Landlord, however, at its option, may pursue the relief or
remedy sought in any invalid clause by conforming the said clause with
the provisions of the statutes or the regulations of any governmental
agency as if the particular provisions of the applicable statutes or
regulations were set forth herein at length.
54. COUNTERPARTS. This Lease may be executed in several counterparts,
each of which shall be deemed to be an original copy, and all of which
taken together shall constitute one agreement binding on all parties
hereto, notwithstanding that the parties shall not have signed the
same counterpart.
55. GENDER NEUTER. In all references herein to any pronouns, parties,
persons, entities, or corporation, the use of any particular gender or
the plural or singular number is intended to include the appropriate
gender or number as the sense and circumstances of the context may
require.
56. BINDING AGREEMENT. All the terms and conditions contained herein
shall be for and shall inure to the benefit of and shall bind the
respective parties hereto, their heirs, successors and assigns.
57. APPLICABLE LAW. Landlord and Tenant agree that this Lease and any
suits and/or special proceedings under it will be governed and
construed pursuant to the laws of the State of New Jersey.
58. CAPTIONS. The captions are inserted only as a matter of
convenience and in no way define, limit or describe the scope of this
Lease nor the intent of any covenant thereof.
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IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and
sealed this Lease as of the date written.
CHERRY HILL INDUSTRIAL SITES, INC.
Catherine M. Ward By: /s/Paul Heise
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Witness as to Landlord Paul Heise, President
SCIENCE DYNAMICS CORPORATION
Nancy Feo By: /s/Lyndon Keele
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Witness as to Tenant Lyndon Keele, President
Date: 9/19/1990
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