LEASE AGREEMENT
AGREEMENT OF LEASE made as of the ________ day of May, 1995 between 105
SYLVANIA PLACE, L.L.C., a New Jersey limited liability company, having its
offices at c/o Silverline Building Products, Inc., 207 Pond Avenue, P.O. Box
3010, Middlesex, NJ 08846 ("Landlord") and COMMUNITY DISTRIBUTORS, INCORPORATED,
a Delaware Corporation, having its offices at 251 Industrial Parkway,
Somerville, NJ 08876 ("Tenant").
R E C I T A L S:
A. Landlord is the owner of the land (the "Land") and the combined office
and warehouse building containing 95,000+/- square feet of space (the
"Building"), located at 105 Sylvania Place, South Plainfield, New Jersey
(collectively called the "Property"), more fully described on Exhibit A annexed
hereto.
B. Tenant wishes to use and occupy a 53,554+/- square foot portion of the
Building and all the improvements and fixtures thereon (collectively called the
"Premises"), and Landlord desires to lease the Premises to Tenant.
NOW, THEREFORE, in consideration of the foregoing and the conditions and
terms set forth herein, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, it is agreed as follows:
ARTICLE 1. Premises
Landlord does hereby demise to Tenant, and Tenant does hereby lease from
Landlord, the Premises, together with the non-exclusive right to use the
driveways, parking area and walkways on the Property, subject to the covenants,
easements and restrictions that do not interfere in the permitted use of the
Premises. The parties shall have the right to verify the square footage of the
Premises and the Building.
ARTICLE 2. Term
The term of the Lease shall be for a period of three (3) years and seven
(7) months beginning June 1, 1995 (the "Commencement Date") and ending on
December 31, 1998 (the "Expiration Date"). Any reference herein to the "third
year of the Lease" shall mean the period commencing on June 1, 1997 through the
Expiration Date. After the first Lease year, Landlord shall have the right, in
its sole and absolute discretion, to terminate this Lease prior to the
Expiration Date by giving Tenant six (6) months advance written notice of
termination, provided that such notice is given during the months of June
through December of the second or third Lease years.
ARTICLE 3. Use
Tenant shall use the Premises only for offices and warehousing of general
merchandise and distribution of same, subject to any restrictions imposed by
federal, state, county and municipal statutes, ordinances and regulations.
ARTICLE 4. Net Lease
It is the purpose and intent of Landlord and Tenant, that the fixed rent
shall be absolutely net to Landlord, except as may be specifically set forth
herein, and shall be payable to Landlord free of any charges and without
abatement or set-off by Tenant. From and after the Commencement Date, Landlord
shall not be expected or required to pay any charge or imposition relating to
the maintenance, preservation, care, repair and operation of the Premises,
except as set forth herein, and all such expenses shall be paid by Tenant.
ARTICLE 5. Rent
5.1 Tenant shall pay Landlord fixed annual rent beginning on the
Commencement Date at the rate of $3.00 per square foot which equals $160,662 per
year. In the event that the square footage of the Premises is adjusted, the
fixed annual rent shall be adjusted accordingly.
5.2 The fixed rent shall be paid in equal monthly installments of
$13,388.50 in advance on the first day of each month during the term of the
Lease commencing on the Commencement Date.
5.3 All other amounts payable by Tenant under the Lease shall be deemed to
be additional rent.
5.4 Upon the execution of this Lease, Tenant shall pay the first month's
rent of $13,388.50.
ARTICLE 6. Taxes and Utilities; Pro Rata Share
6.1 Landlord shall pay all real estate taxes on the Premises for the first
year of the Lease (i.e., June 1, 1995 through May 31, 1996), herein referred to
as "Base Taxes". In the second and third years of the Lease, Landlord shall be
responsible for Base Taxes only. In the event of any increase in real estate
taxes on the Property over and above such taxes in effect on the Commencement
Date, then Tenant shall be responsible, after presentation of tax bills
reflecting such increase, for the payment of Tenant's Pro Rata Share (as defined
below) of such increase or increases applicable to second and third years of the
Lease. Conversely, in the event of any decrease in real estate taxes on the
Property below such taxes in effect on the Commencement Date, then Tenant
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shall be entitled to a credit, in the amount of Tenant's Pro Rata Share, of such
decrease or decreases applicable to the second and third years of the Lease. Any
such increase or decrease shall be prorated in twelve equal payments over the
applicable Lease year. As used herein, "Tenant's Pro Rata Share" shall be a
fraction, the numerator of which shall be the square footage of the Premises and
the denominator of which shall be the square footage of the Building, which
equals 56.37%. Tenant's Pro Rata Share shall be subject to adjustment if the
square footage of the Building or the Premises is changed.
6.2 Tenant shall pay all sewer charges, and any interest or costs with
respect thereto imposed upon the Premises or Tenant's use thereof, and charges
for public and private utilities which at any time during or otherwise
attributable to any period falling within the term of this Lease may be
assessed, levied or become due and payable in respect of the Premises. (All such
charges are referred to collectively as "Impositions").
6.3 Tenant shall be responsible for obtaining and paying for all water,
heat, electricity, pest control, security systems, and all other utilities for
the Premises, except as specifically set forth herein.
ARTICLE 7. Condition of Premises
7.1 Tenant accepts the Premises in "as is", "where is" condition, and
acknowledges that Landlord has no obligation of any kind whatsoever to alter,
decorate or otherwise adapt the Premises for Tenant's use.
7.2 Tenant represents and warrants that (a) Tenant's use of the Premises
will be in compliance with all applicable governmental, legal and insurance
requirements, (b) Tenant will obtain all permits, licenses or the like as
required to operate Tenant's business at the Premises, and (c) Tenant covenants
that it shall not manufacture, store or discharge any hazardous substance,
material or waste at or from the Premises.
ARTICLE 8. Repairs and Maintenance
8.1 During the term of this Lease, Tenant shall at its sole expense comply
with all laws and regulations whether now in force or enacted during the term of
the Lease, relating to Tenant's use and occupancy of the Premises.
8.2 Subject to Section 8.3 below, Tenant shall, at its sole cost and
expense, take good care of the Premises, including the maintenance, repair and
replacement as necessary of all building systems (including but not limited to
heating, ventilation, air conditioning, plumbing and electrical), and shall make
all repairs therein and thereon, interior and exterior, ordinary and
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extraordinary, unforeseen and foreseen, necessary to keep the same (a) in good
and safe order and condition, and (b) in substantially the same condition as of
the date of this Lease, reasonable wear and tear excepted. Tenant shall not
commit or suffer, and shall use all reasonable precaution to prevent, waste,
damage, or injury to the Premises.
8.3 Landlord, at its cost and expense, shall be responsible for the
maintenance and repair of the structural elements of the Premises, such as
foundation, the walls and the roof and any other such of the Premises, except
any repairs required as a result of the acts or omissions of the Tenant, its
agents, servants, employees, licensees, invitees or independent contractors.
8.4 Tenant shall, at its own cost and expense, keep clean and free from
dirt, rubbish, obstructions, encumbrances, snow and ice, the sidewalks,
driveways, parking lots and curbs used in connection with the Premises.
8.5 Tenant shall pay Tenant's Pro Rata Share of the fire insurance premium
for the Building (approximately $3,200 per year), sprinkler system cost
(approximately $2,400 per year), and the lawn maintenance costs for the Property
(approximately $2,400 per year), as additional rent in monthly increments equal
to one-twelfth of the annual cost of same.
8.6 At all times, Tenant shall:
a. Use all electric, plumbing, heating, cooling and other facilities
in the Premises in a safe and reasonable way;
b. Replace all broken glass in the Premises;
c. Permit no load to be placed upon the floors of the Premises in
excess of such floor's weight-bearing capacity;
d. do nothing to destroy, deface, damage or remove any part of the
Premises or the Property;
e. Keep no inflammable or dangerous substances or object in or about
the Premises; and
f. Do nothing to impair the peace and quiet of the Landlord, other
tenants, or persons in the neighborhood.
8.7 Landlord represents that the weight-bearing capacity of the floors of
the Premises is not less than 450 lbs. per square foot.
ARTICLE 9. [INTENTIONALLY DELETED]
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ARTICLE 10. Inspection by Landlord
Tenant shall permit Landlord and its authorized representatives to enter
the Premises during Tenant's normal business hours upon reasonable advance
notice to Tenant (except in emergencies) for the purpose of inspecting the
Premises.
ARTICLE 11. Alterations and Improvements
Tenant shall have the right, at its own cost and expense, to make
alterations, replacements, changes, additions and improvements in and to the
Premises, subject to the following:
(a) that the same shall be performed in a good workmanlike manner, shall
not materially reduce the amount of office space of the Building and shall not
impair the structural integrity of the Building or of any structure now or
hereafter forming part of the Premises;
(b) that Tenant shall have obtained all required permits and authorizations
of all governmental agencies and departments having jurisdiction over such work;
(c) that all alterations, repairs and replacements, additions and
improvements commenced shall be completed and paid for, by Tenant;
(d) that prior to doing any structural alteration, repair, replacement,
addition, or improvement costing more than $10,000, Tenant shall submit plans
and specifications for such work to Landlord for its review and approval;
(e) that Tenant shall assure that all contractors, prior to commencing
work, have appropriate insurance coverage including Workmen's Compensation
Insurance and general liability insurance for the mutual benefit of Tenant and
Landlord;
(f) that if as a result of any alterations or repairs to the Premises
performed by or at the direction of Tenant, any mechanic's or other lien, charge
or order for the payment of money shall be filed against the Premises, or the
Building or land or against Landlord, Tenant shall, at its own cost and expense,
cause the same to be canceled and discharged of record or bonded within thirty
(30) days after the date of filing thereof;
(g) that all such alterations and repairs on or in the Premises that are
erected, installed, or affixed by Tenant shall be deemed to be part of the
realty and the sole property of Landlord;
(h) that all alterations and repairs in and to the Premises shall be
constructed and completed in accordance with applicable legal requirements,
approvals of governmental entities
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having jurisdiction over the work and the rules and regulations of the National
Board of Fire Underwriters as they may relate to the work; and
(i) that Landlord's consent to any work performed by Tenant shall not
render Landlord responsible for the cost of such work or constitute a
determination by Landlord that (a) the proposed work complies with applicable
laws and regulations or (b) that the proposed work reflects good architectural
and engineering practices.
ARTICLE 12. Indemnity and Insurance
12.1 (a) Tenant shall defend, indemnify and hold harmless Landlord from all
losses, costs, damages, liability, claims, causes of action, judgments and
expenses, including reasonable attorneys' fees and court costs, arising from the
use and occupancy of the Premises by Tenant and Tenant's agents, servants,
employees, guests or contractors.
(b) Tenant, as a material part of the consideration to be rendered to
Landlord, hereby waives all claims against Landlord for damages to goods,
equipment, improvements, wares and merchandise in, upon or about the Premises
and the Property and for injuries to Tenant, its servants, agents, customers,
employees and invitees in or about the Premises or Property from any cause
arising at any time, except to the extent occasioned by Landlord's wilful
misconduct or gross negligence, provided always, that any insurance proceeds
received by Tenant with respect to same shall be credited against any amounts
payable to Landlord to Tenant under such circumstances.
12.2 Tenant shall maintain the following insurance coverage at Tenant's
sole cost and expense:
(a) General liability insurance against claims for bodily injury,
death, or property damage occurring in, on, or about the Premises, such
insurance to afford minimum comprehensive, combined single limit protection
of not less than $2,000,000 with a maximum $25,000 deductible;
(b) Boiler and machinery insurance (if applicable);
(c) Elevator insurance (if applicable);
(d) Tenant shall insure its trade fixtures, personal property,
removable business fixtures and equipment.
12.3 All insurance required to be obtained by Tenant pursuant to this
Article shall be carried in favor of Landlord, its mortgagee (if applicable) and
Tenant as their respective interests
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may appear, and shall name Arthur Silverman and Kenneth Silverman as additional
insureds.
12.4 Tenant and Landlord shall cooperate in connection with the collection
of any insurance proceeds that may be due in the event of loss and shall execute
and deliver such proofs of loss and other instruments that may be reasonably
required for such purpose.
12.5 All premiums on insurance required to be obtained by Tenant under this
Article shall be paid for by Tenant.
12.6 Prior to taking occupancy of the Premises, and on each anniversary of
the Commencement Date, Tenant shall furnish to Landlord certificates evidencing
that the required insurance coverage is in effect with respect to the Premises
for the next twelve (12) months, and that all premiums therefor have been paid
in full.
12.7 Tenant's insurance policies in respect of the Premises shall include a
waiver by the insurers of all rights of subrogation against the Landlord, in
connection with any loss or damage covered by such insurance.
12.8 The insurance policies procured by Tenant pursuant to its obligations
under this Lease shall (a) be issued by insurers of recognized responsibility
and qualified to do business in the State of New Jersey and approved by Landlord
and its mortgagee, and (b) include a provision that such policy or policies
shall not be canceled without at least thirty (30) days notice to Landlord and
Tenant and any mortgagee named therein.
12.9 All insurance required to be maintained by Tenant pursuant to this
Article 12, shall be evidenced by valid and enforceable policies, in form and
substance satisfactory to Landlord, and issued by insurers of recognized
responsibility having a Best's rating of A or better and a financial size
category of Class VII or above.
ARTICLE 13. Damage or Destruction
13.1 Except as provided in the next sentence, if any portion of the
Premises shall be destroyed or damaged in whole or in part by fire or other
casualty, Tenant shall give Landlord notice of such occurrence and Landlord
shall repair, alter, restore, replace and rebuild such improvements, at least to
substantially the same condition as existed immediately prior to such
occurrence. If the Premises are substantially damaged or destroyed during the
term of this Lease, Landlord may, in lieu of repairing the damage, within sixty
(60) days from the date of the damage or destruction, cancel the Lease by (i)
sending Tenant a notice of cancellation which shall be effective on the date of
such notice, and (ii) Tenant shall assign to Landlord Tenant's right to
insurance proceeds in
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respect of the damage, except for the proceeds relating to Tenant's personal
property, inventory, business fixtures and equipment. Tenant shall also have the
right to terminate the Lease in the event the Premises is substantially damaged
or destroyed, by giving notice of termination to Landlord within thirty (30)
days of such damage, and the Lease shall be terminated ten (10) days thereafter.
Upon the effective date of the termination, the Landlord and Tenant shall have
no further obligations to the other under this Lease, except obligations
accruing prior to the date of termination. For the purposes of this paragraph,
"substantially damaged or destroyed" shall be deemed to mean that at least
twenty-five (25%) percent of the Premises is damaged, destroyed or rendered
unusable.
13.2 The Landlord shall be relieved of its duty to repair, restore, rebuild
or replace the Premises following damage or destruction by fire and other
casualty in the event that no or inadequate proceeds of insurance to be provided
by Tenant pursuant to Article 12 are available to defray the cost of such
repairing, restoring, rebuilding or replacement.
13.3 In the event of damage or destruction to the Premises, Tenant shall be
entitled to an equitable abatement of fixed rent for the Premises based on the
remaining useful portion of the Premises after such damage.
ARTICLE 14. Condemnation
14.1 In the event of any taking by condemnation or eminent domain, the
entire award shall be and remain the property of Landlord subject only to the
provisions of paragraph 14.4 hereof.
14.2 If the entire Premises shall be taken in condemnation proceedings or
by exercise of any right of eminent domain, then in such event this Lease and
the term hereof shall cease and terminate as of the date of such taking;
provided that rent and additional rent shall be apportioned and paid up to such
date.
14.3 If less than 25% of the Premises shall be so taken or condemned, this
Lease shall not terminate, but the rent payable hereunder after the date of the
partial taking shall be reduced pro rata based on the square footage taken.
14.4 In the event that more than 25% of the Premises is taken or condemned,
then either party shall have the right to cancel the Lease by giving written
notification to the other, and such cancellation shall be effective on the date
of taking.
14.5 In the event of a taking or condemnation, Tenant shall be entitled to
assert a claim to the condemning authority for the unamortized cost of Tenant's
leasehold improvements and trade fixtures and Tenant's reasonable moving
expenses, to the extent such claim does not reduce Landlord's award.
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ARTICLE 15. Subletting and Assignment
15.1 Except as set forth herein to the contrary, Tenant shall not assign
this Lease nor sublet the Premises or any portion thereof without providing 60
days written notice to landlord of the proposed assignment or sublet, stating
terms and commencement date, and not without Landlord's prior written consent,
which shall not be unreasonably withheld. Notwithstanding the foregoing, in the
event that Tenant proposes to assign this Lease or to sublet any portion of the
Premises, Landlord shall have a right of first refusal to recapture such space,
by notifying Tenant of Landlord's recapture within fourteen (14) days of
Tenant's notice of proposed assignment or sublet, which recapture shall be
effective as of the commencement date of the proposed assignment or sublet. No
such consent by Landlord to any proposed assignment or subletting shall relieve
Tenant of its obligations hereunder. If in connection with any assignment or
subletting of this Lease any consideration is received in excess of the rent
payable to Landlord hereunder, such consideration or excess rent shall be paid
to the Landlord.
ARTICLE 16. Default
16.1 Each of the following events shall be an "Event of Default" hereunder:
(a) if Tenant shall file a petition in bankruptcy or insolvency for
reorganization or arrangement or shall make an assignment for the benefit
of creditors;
(b) if involuntary proceedings under any bankruptcy law or insolvency
act or for the dissolution of Tenant shall be instituted against Tenant or
if a receiver or trustee shall be appointed of all or substantially all of
the property of Tenant and such proceedings shall not be dismissed, bonded
or vacated within thirty (30) days after such institution or appointment;
(c) if Tenant shall fail to pay any installment of rent or additional
rent when due hereunder, and fails to cure such default for a period of
five (5) days after the due date;
(d) if Tenant shall fail to perform any of the other agreements,
terms, covenants, or conditions of this Lease on Tenant's part to be
performed and such non-performance shall continue for a period of twenty
(20) days after written notice thereof from Landlord specifying such
default or, if such performance cannot reasonably be accomplished within
such twenty (20) day period, Tenant shall not have promptly commenced such
performance and diligently proceeded therewith to completion; and
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16.2 If Tenant does not pay rent when due and fails to pay within five (5)
days of the due date, Tenant shall pay to Landlord a fee of five (5%) percent of
the amount due Landlord in addition to the unpaid rent. In addition, Tenant
shall pay Landlord interest on the unpaid rent at the rate of ten (10%) percent
per annum accruing from the day that such unpaid rent fell due.
16.3 If an Event of Default occurs hereunder, Landlord at any time
thereafter may give written notice to Tenant terminating this Lease and all
rights of Tenant under this Lease shall expire and terminate and Tenant shall
remain liable as hereinafter provided.
16.4 Upon any termination of this Lease pursuant to paragraph 16.3, or any
termination resulting from summary proceedings or otherwise, Tenant shall
immediately quit and peaceably surrender the Premises to Landlord, without any
payment therefor by Landlord. Landlord, in addition to all other remedies herein
reserved to it, upon or at any time after such termination, may, without further
notice, enter upon and re-enter the Premises and possess and repossess itself
thereof by summary proceedings, ejectment or otherwise, and may dispossess
Tenant and remove Tenant and all other persons and property from the Premises,
and may have, hold and enjoy the Premises and the right to receive all rental
income of and from the same.
16.5 At any time after any such termination pursuant to paragraph 16.3 or
any termination by or resulting from summary proceedings or otherwise, Landlord
may relet the Premises or any part thereof, in the name of Landlord or
otherwise, for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the term of this Lease)
and on such conditions (which may include concessions or free rent) as Landlord,
in its sole discretion, may determine, and may collect and receive the rent
therefor.
16.6 No termination of this Lease pursuant to paragraph 16.3 or resulting
from summary proceedings or otherwise, shall relieve Tenant of its liability and
obligations under this Lease, and such liability and obligations shall survive
any such termination. In the event of any such termination, whether or not the
Premises or any part thereof shall have been relet, Tenant shall pay to Landlord
the fixed rent and additional rent and other sums and charges to be paid by
Tenant up to the time of such termination of this Lease, and thereafter Tenant,
until the end of what would have been the term of this Lease in the absence of
such termination, shall be liable to Landlord, for and shall pay to Landlord, as
and for liquidated and agreed current damages for Tenant's default, the
equivalent of the amount of the fixed rent and additional rent and such other
sums and charges which would be payable under this Lease by Tenant if this Lease
were still in effect, less the net proceeds, if any, of any reletting effected
pursuant to the provisions of paragraph 16.5, after deducting all of Landlord's
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expenses in connection with such reletting, including, without limitation, all
repossession costs, brokerage and management commissions, operating expenses,
legal expenses, reasonable attorneys' fees and disbursements, alteration costs,
and expenses of preparation for such reletting. Tenant shall pay such current
damages (herein called "deficiency") to Landlord monthly on the days on which
the fixed rent would have been payable under this Lease if the Lease were still
in effect, and Landlord shall be entitled to recover from Tenant each monthly
deficiency as the same shall arise. At any time after such termination, whether
or not Landlord shall have collected any monthly deficiencies as aforesaid,
Landlord shall be entitled, at Landlord's sole option, to recover from Tenant,
and Tenant shall pay to Landlord, on demand, as and for liquidated and agreed
final damages for Tenant's default, an amount equal to the then present worth of
the excess of the fixed rent reserved under this Lease and any additional rent
that would be payable under this Lease by Tenant if the Lease were still in
effect calculated from the date of such termination for what would be the then
unexpired term of this Lease if the same had remained in effect, over the then
fair rental value of the Premises for the same period.
16.7 Tenant hereby expressly waives, any right of redemption or
repossession in case Tenant shall be dispossessed by a judgment or by warrant of
any court of competent jurisdiction.
16.8 Each right and remedy of Landlord provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy provided for
in this Lease or now or hereafter existing at law or in equity or by statute or
otherwise, and the exercise or beginning of the exercise by Landlord of any one
or more of such rights or remedies shall not operate as an election of remedies
or foreclose the exercise of any other such remedy.
16.9 LANDLORD AND TENANT WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDINGS OR
COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY
MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE.
16.10 Tenant shall pay to Landlord all reasonable costs and expenses,
including reasonable attorneys' fees, incurred by Landlord in any action or
proceeding to which Landlord may be made a party by reason of Tenant's use and
occupancy of the Premises or otherwise related to Tenant's interest in this
Lease. Landlord shall pay to Tenant all reasonable costs and expenses, including
reasonable attorneys' fees, incurred by Tenant in any action or proceeding to
which Tenant may be made a party by reason of Landlord's interest in the
Premises and this Lease. In addition, each party shall pay to the other all
reasonable costs and expenses, including reasonable attorneys fees, incurred by
the other in enforcing the covenants and provisions of this Lease.
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ARTICLE 17. Right to Cure Defaults
If either party fails to perform any of its obligations under this Lease,
the other may, after giving ten (10) days written notice (or without notice in
the event of any emergency), perform such obligation, and may enter upon the
Premises for such purpose. All sums paid and all expenses reasonably incurred by
either party in connection with such performance shall be due and payable by the
non-performing party within five days of presentation of a statement of such
charges, and any such unpaid amounts shall accrue interest at 10% per annum from
the due date.
ARTICLE 18. No Waiver
No failure by either party to insist upon strict performance of any
agreement, term, covenant or condition hereof, or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance of full or partial
rental during the continuance of any such breach, shall constitute a present or
future waiver of any such breach, agreement, term, covenant or condition. No
waiver by either party of any breach by the other under this Lease shall affect
or alter this Lease in any way whatsoever, nor shall constitute a waiver of any
future breach of any provision hereof.
ARTICLE 19. End of Term
The Tenant shall surrender and deliver up the Premises at the expiration of
the term of this Lease or sooner termination of the term, in good repair and
condition, reasonable wear and tear thereof excepted, free and clear of all
liens and encumbrances, other than those, if any, existing as of the date of
this Lease or consented to or created by Landlord.
ARTICLE 20. Holdover Rent
20.1 If Tenant shall be in possession of the Premises at the end of the
term with the prior written consent of Landlord, the tenancy under this Lease
shall become month-to-month, terminable by either party on thirty (30) days'
written notice.
20.2 During and for any holdover period in which Tenant occupies the
Premises after expiration or Termination of the Lease, without the prior written
consent of Landlord, the monthly rental of fixed and additional rent shall be
double the monthly rental for the month immediately preceding the holdover
period. Tenant shall be .answerable in damages for any and all losses incurred
by Landlord as a result of a holdover tenancy.
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ARTICLE 21. Exhibiting Premises
Throughout the term of the Lease, upon reasonable advance oral notice to
Tenant, Landlord shall have access to the Premises for the purpose of showing
the premises to prospective Tenants and/or Purchasers, and Landlord may place
signs at the Premises advertising for sale or rent.
ARTICLE 22. [INTENTIONALLY DELETED]
ARTICLE 23. Real Estate Broker
Landlord and Tenant each warrant and represent to the other that they dealt
with no real estate brokers or other intermediary, in connection with any aspect
of this transaction or the consummation of this Lease except for Bill Sitar,
whose fees shall be paid by Landlord. Landlord and Tenant each agree to
indemnify and hold the other harmless from all costs, expenses, claims, and
judgments incurred by the other including, but not limited to, attorneys fees
resulting from breach by the other of the foregoing warranty and representation.
ARTICLE 24. Estoppel Certificates
Landlord and Tenant each agree for the convenience of the other that upon
not less than twenty (20) days notice to execute, acknowledge and deliver to the
requesting party a written statement certifying (i) that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the Lease is in full force and effect as modified and specifying the
modifications), (ii) whether or not there are then existing any off-sets or
defenses against the enforcement of any of terms, covenants, or conditions
hereof to be performed by either Landlord or Tenant (and if so, specifying the
same), (iii) the dates to which the rent and additional rent have been paid in
advance, if any, (iv) whether or not Landlord or Tenant, as the case may be, is
in default in performance of any covenant, agreement or condition contained in
this Lease (and, if so, specifying each such default, (v) the amount of rent
currently payable under the Lease, (vi) the Commencement Date and Expiration
Dates of the term of the Lease; and (vii) such other information as Landlord or
Tenant or Landlord's mortgagee may reasonably request with respect to the Lease.
ARTICLE 25. Notices
Any notice, approval, consent or other communication required to be given
in writing under this Lease shall be delivered as follows:
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(a) If to Landlord, to:
105 Sylvania Place, L.L.C.
c/o Silverline Building Products, Inc.
207 Pond Avenue
P.O. Box 3010
Middlesex, NJ 08856
Tel: (908) 752-8600
Fax: (908) 752-5348
With a copy to:
Alan R. Hammer, Esq.
Brach, Eichler, Rosenberg, Silver,
Bernstein, Hammer & Gladstone
101 Eisenhower Parkway
Roseland, NJ 07068-1067
Tel.: (201) 228-5700
Fax: (201) 228-7852
(b) If to Tenant, to:
Community Distributors, Incorporated
251 Industrial Parkway
Somerville, NJ 08876
Tel.: 908/722-8701
Fax.: 908/722-2902
With a copy to:
Jack Goldstein, Esq.
233 Broadway
New York, NY
Tel.: 212/267-0700
Fax.: 212/227-6534
Any such notice, approval, consent or other communication shall be deemed given
(i) when delivered personally, or (ii) two (2) days after deposited in a
regularly maintained postal service receptacle and mailed by certified mail,
return receipt requested, or (iii) when transmitted by telecopier to the
respective number specified above and written confirmation of receipt has been
received. A party may change its notice address or fax numbers by giving notice
as provided herein to the other parties hereto.
ARTICLE 26. Quiet Enjoyment
Landlord covenants that so long as this Lease is in full force and effect
and Tenant is not in default hereunder beyond any applicable cure period, Tenant
shall and may peaceably and quietly
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have, hold, and enjoy the Premises for the term hereby granted without
disturbance by or from Landlord.
ARTICLE 27. Subordination and Attornment
27.1 The Lease shall be subject and subordinate to any ground lease or
mortgage which at any time may be placed on the Premises by Landlord and any
renewal, replacement, extension or consolidation thereof, and the Tenant shall
promptly execute and deliver such further instruments confirming such
subordination of this Lease as may be desired by the holder of any such ground
lease or mortgage, and Tenant hereby appoints Landlord its attorney-in-fact for
the purpose of executing such instruments, provided however, that such ground
lease, mortgage, or subordination agreement shall provide that Tenant shall not
be disturbed in its tenancy under the Lease, as long as Tenant is not in default
thereunder. Neither this Lease nor any memorandum thereof may be recorded by
Tenant and any such recording shall be deemed an Event of Default hereunder.
27.2 Tenant shall attorn to any successor or assignee of Landlord,
including Landlord's Mortgagee or to a purchaser at foreclosure, in the event
the Mortgagee, by foreclosure or otherwise, terminates Landlord's interest in
the Premises.
ARTICLE 28. Miscellaneous
28.1 The construction and enforcement of this Lease shall be governed by
the laws of the State of New Jersey.
28.2 This Lease contains the entire agreement between the parties and
cannot be changed or terminated orally, but only by instrument in writing signed
by the parties hereto.
28.3 Any prior agreement of the parties is superseded by this Lease.
28.4 The agreements, terms, covenants, and conditions herein shall bind and
inure to the benefit of Landlord and Tenant and their respective heirs, personal
representatives, successors, mortgagees and their assigns.
28.5 This Lease shall be construed as an instrument jointly drafted by
parties, having comparable bargaining power, with no presumption in favor of or
against either party.
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ARTICLE 29. Limitation of Liability
Landlord, and in case Landlord shall be a joint venture, partnership,
tenancy-in-common, association or other form of joint ownership, the members of
any such joint venture, partnership, tenancy-in-common, association or other
such form of joint ownership, shall have absolutely no personal liability with
respect to any provision of this Lease or any obligation or liability arising
from this Lease or in connection with this Lease in the event of a breach or
default by Landlord of any of its obligations. Tenant shall look solely to the
equity of the Landlord in the Premises at the time of the breach or default (or
if the interest of the Landlord is a leasehold interest at that time, Tenant
shall look solely to such leasehold interest) for the satisfaction of any
remedies of Tenant.
ARTICLE 30. Interruption in Utilities
The stoppage or reduction of any utilities or services shall not excuse the
Tenant from paying fixed rent and additional rent and the Landlord shall not be
liable for any loss or expense resulting from such stoppage or reduction.
ARTICLE 31. Environmental Law Compliance
Tenant does hereby covenant for itself, its successors and assigns, that it
shall, at its own cost and expense, do everything necessary so that its use and
occupancy of the Premises complies with every law, statute, rule, ordinance,
regulation, directive, order and notice of any municipal, county, state, federal
or other authority, concerning the protection of the environment. Tenant agrees
to indemnify and hold harmless the Landlord, its successors and assigns from any
and all costs, charges, fines and penalties imposed on the Landlord, its
successors and assigns, by reason of the failure, neglect or refusal of the
Tenant to comply with the foregoing sentence. Tenant shall not be responsible
for any cost, claim or expense arising from a suspected or actual violation of
an Environmental Law, if such violation was not committed by Tenant, its
employees, licensees, agents and invitees, or does not otherwise result from
Tenant's use and occupancy of the Premises.
ARTICLE 32. No Option
The submission of this Lease for execution does not constitute a
reservation, offer or option for the Premises and this Lease becomes effective
as a Lease only upon execution and delivery thereof by Landlord and Tenant.
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ARTICLE 34. Authority to Enter This Lease
Landlord warrants and represents to the Tenant that it is the fee owner of
the Premises. Landlord and Tenant warrant and represent to each other that each
has the authority to enter into this Lease. Upon the execution of this Lease,
Landlord and Tenant shall deliver to the other a true copy of an resolution or
authorization, of the Tenant and Landlord, certified by a duly authorized
officer or representative of Tenant and Landlord, authorizing execution,
delivery and performance of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease of the day
and year first above written.
ATTEST: COMMUNITY DISTRIBUTORS, INCORPORATED
Tenant
/s/ William Gilligan By: /s/ Frank Marfino
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WITNESS: 105 SYLVANIA PLACE, L.L.C.
Landlord
/s/ Frank J. Agolio By: /s/ ILLEGIBLE
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EXHIBIT A
DESCRIPTION
[FLOORPLAN]