EXHIBIT 10.34
SUBLEASE AGREEMENT
This SUBLEASE AGREEMENT ("Sublease") is made this _____ day of December,
1996, by and between Motorola Inc., a Delaware corporation, having an address of
0000 X. Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (hereinafter "Sublandlord")
and Glasgal Communications, Inc., d/b/a Glasgal Communications of New Jersey,
Inc., a Delaware corporation, having an office at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx,
Xxx Xxxxxx 00000 (hereinafter called "Subtenant").
WHEREAS, Sublandlord leases certain premises pursuant to that certain Lease
dated as of the 8th day of April, 1994, and executed by and between
CommerCenter Realty Associates, LP, as successor in interest to 00 Xxxxxxxx Xxx
Associates, a New Jersey Partnership, with offices at Cali Realty Corporation,
00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, as Landlord ("Landlord"), and
Sublandlord as Tenant, together with its attached and incorporated Rules and
Regulations, (hereinafter "Underlying Lease") by the terms of which Underlying
Lease, that certain portion of the property, commonly known as, 00 Xxxxxxxx Xxx,
Xxxxxx, Xxx Xxxxxx (hereinafter "Premises") was leased to the Sublandlord; and
WHEREAS, a copy of the Underlying Lease and the Commencement Date
Certificate are attached hereto as Exhibit A and made a part of this Sublease;
and
WHEREAS, Sublandlord now desires to sublease the Premises and Subtenant
desires to lease same from Sublandlord; and
WHEREAS, the Landlord has consented to such sublease between Sublandlord
and Subtenant, which written and executed Landlord's Consent to Sublease shall
be attached hereto.
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the undersigned agree as follows:
1. Subletting. Sublandlord hereby agrees to sublease to Subtenant the
Premises, and Subtenant hereby agrees to lease such Premises from Sublandlord,
on the terms and conditions as set forth herein.
2. Terms of Sublease.
A. (1) Subtenant agrees to perform and fulfill all the terms, covenants,
conditions, duties, responsibilities and obligations of, and to pay all sums
required of, Sublandlord as Tenant under the Underlying Lease as if Subtenant
were the Tenant under the Underlying Lease, and agrees to accept all liabilities
thereunder arising from and after the commencement of the Term; and to make all
warranties and indemnifications to Sublandlord as those that Sublandlord makes
to the Landlord, provided, however, that Rent shall not be payable to Landlord,
but shall be payable from Subtenant directly to Sublandlord as follows:
Motorola, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxx, MS-106
If payment of Rent or any part thereof shall not be made on or prior to a date
which is five (5) days after the date on which it is due and payable,
Sublandlord shall be entitled to charge as an additional rent a service fee
equal to four percent (4%) of the rent due for each and every five (5) day
period, or fraction thereof, which has elapsed between the day said rent is due
and the date the rent is received by Sublandlord.
(2) The following terms and conditions in the Underlying Lease are
expressly excluded from Subtenant's obligations: Subtenant may use the Demised
Premises for general office purposes without restrictions relating to the
storage, service and sale of electronic paging devices.
B. Any terms defined in the Underlying Lease and used herein shall have
the meanings ascribed to them in the Underlying Lease. The terms "Fixed Rental"
and "Basic Rent" shall mean the payments set forth in the Underlying Lease at
Paragraph 1(e) and Article 4; the terms "Expense Rent" and "Additional Rent"
shall mean the payments set forth in the Underlying Lease at Paragraph 1(I),
Article 5 and Article 6. As used herein, the term "Rent" shall mean all moneys
owing to Landlord under the terms of the Underlying Lease. The foregoing
notwithstanding, the amount of annual Basic Rent under this Sublease shall be
seven dollars and fifty cents ($7.50) for each square foot of Rentable Area
payable in twelve (12) equal monthly installments. The Rentable Area of the
Premises is nineteen thousand two hundred forty five square feet (19,245 sq.
ft.) Therefore, the annual Basic Rent is one hundred forty four thousand three
hundred thirty seven dollars and fifty cents ($144,337.50) payable in advance at
a rate of twelve thousand twenty eight dollars and thirteen cents ($12,028.13)
each month for the Term of this Sublease. However, Sublandlord agrees to forego
the first two (2) months Basic Rent. Sublandlord and Subtenant agree that
Subtenant shall pay Additional Rent, including without limitation common area
maintenance, as of the Commencement Date of this Sublease.
C. (1) Subtenant has inspected the Premises and agrees to accept the
Premises in its "as is" condition with no improvements, alterations or repairs
to be performed by Landlord or Sublandlord except that the electrical and HVAC
systems in the Demised Space shall be in good and working order.
(2) Subtenant acknowledges that Sublandlord makes no representation
that the Premises are in full compliance with Title III of the Americans With
Disabilities Act (42 U.S.C. Section 12101 et seq. hereinafter the "ADA") and
that any modifications that may be necessary pursuant to the ADA, if any, are
the responsibility of Subtenant.
(3) Subtenant shall obtain prior written approval from Sublandlord
and Landlord for any and all Subtenant improvements to the Premises, which
consent shall not be
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unreasonably withheld, conditioned or delayed by Sublandlord, and shall be
governed by the Underlying Lease as to Landlord. Sublandlord shall respond to
Subtenant's written request for any improvements submitted with detailed
drawings and specifications within five (5) business days, and if Sublandlord
does not so respond, Subtenant may deem its request approved by Sublandlord.
Subtenant must receive Sublandlord's prior written consent, which shall not be
unreasonably withheld, concerning the contractor(s) and materials to be used and
the nature of the work to be performed. Subtenant shall provide Sublandlord with
copies of any and all architectural and construction drawings, with
specifications. Said drawings shall be attached to this Sublease as an Exhibit
prior to execution of the Sublease by both parties, if Subtenant plans any
improvements upon Sublease commencement. Sublandlord shall designate, in
writing, at the time of the approval process if any of the improvements need to
be returned to their original condition upon the termination of the Term, or if
this Sublease terminates for any other reason. Notwithstanding the foregoing
provisions, Sublandlord makes no representation to Subtenant as to whether
Landlord will approve or disapprove of any modifications, alterations or
improvements. Subtenant agrees that it shall keep the Premises free and clear of
all liens arising out of any work performed, materials furnished, or obligations
incurred by Subtenant in the performance of this Sublease Agreement or in the
course of Subtenant's business conducted in the Premises.
D. The Term of this Sublease shall be for a period commencing on December
16, 1996 ("Commencement Date"), and ending at midnight on June 30, 2001
("Termination Date").
E. Subtenant has deposited with Sublandlord forty eight thousand one
hundred twelve dollars and fifty two cents ($48,112.52) (four (4) months Basic
Rent) as a security deposit for the faithful performance of and compliance with
all the terms and conditions of this Sublease Agreement and the terms and
conditions of the Underlying Lease which apply. Should Subtenant fail to comply
with each and every term and condition of this Sublease Agreement and the
Underlying Lease, or surrender the Premises without written consent of
Sublandlord, or if Subtenant is dispossessed from the Premises or abandons them
prior to the expiration of this Sublease Agreement, then the amount deposited as
security shall be retained by Sublandlord as fixed, liquidated, and agreed
damages for payment of disbursements, costs, and expenses that Sublandlord may
incur in regaining possession of the Premises. The parties shall treat the
security deposit as liquidated damages, in payment of such costs, disbursements,
and expenses sustained, since the parties cannot ascertain the exact amount of
costs, disbursements, and expenses that Sublandlord would sustain in the event
of any breach or violation under this Sublease Agreement by Subtenant. The
retention and holding of the security deposit for the payment of such costs,
disbursements, and expenses shall not in any manner be considered as payment for
any rent due or to become due under this Sublease Agreement, or in any manner
release Subtenant from any rents to be paid, or from any of the obligations
assumed in this Sublease Agreement. If all terms and conditions are fully
complied with by Subtenant, then the security deposit shall be returned to
Subtenant on surrender of the Premises in a good state and condition, reasonable
use and wear excepted, at the termination of this Sublease Agreement. The
security deposit shall not be used as liquidated damages until the cure period
has elapsed as set forth in Paragraph 21 of the Underlying Lease.
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F. Additionally, Subtenant hereby agrees to indemnify, save and hold
harmless Sublandlord from and against any and all loss, cost and expense
suffered including reasonable attorneys fees and court costs, sustained and
incurred by Sublandlord because of Subtenant's failure to comply with the
obligations of Tenant under the Underlying Lease. Providing Subtenant fulfills
all of its obligations under this Sublease, Sublandlord hereby agrees to
indemnify, save and hold harmless Subtenant from and against any and all loss,
cost and expense suffered including reasonable attorney fees and court costs,
sustained and incurred by Subtenant because of Sublandlord's failure to comply
with the obligations of Tenant under the Underlying Lease.
G. This Sublease may be terminated only under the terms and conditions
set forth in the Underlying Lease at Paragraph 48.
H. Subtenant agrees to supply Sublandlord with its annual audited
financial statement within thirty (30) days of the publication of same.
I. Subtenant and Sublandlord agree that Sublandlord shall pay the
brokerage fees associated with this Sublease to the following real estate
brokers, and no others: CV Commercial (broker for Sublandlord) and SBWE Real
Estate (broker for Subtenant). Subtenant shall pay any other brokerage fees from
brokers who dealt with subtenant.
3. Binding and Benefit. This Sublease shall be binding on and inure
to the benefit of the parties to this Sublease, their successors in interest and
permitted assigns.
4. No Right To Renew. Notwithstanding anything to the contrary
contained in this Sublease or the Underlying Lease, Subtenant shall not have the
right to renew or extend this Sublease or the Underlying Lease beyond June 30,
2001. Underlying Lease Paragraph 47 is specifically deleted from this Sublease.
In the event Subtenant desires to extend its occupancy of the Premises beyond
June 30, 2001, Subtenant must enter into its own agreement with Landlord.
5. Representations and Warranties.
A. Sublandlord represents and warrants that:
(1) the Underlying Lease attached hereto (Exhibit A) is a true
and correct copy of the Prime Lease, including any amendments to
date, of the Premises.
(2) the Underlying Lease is in full force and effect without
default on the part of Landlord or Sublandlord (as Tenant
thereunder);
(3) the Underlying Lease is not encumbered by any prior
transfer, assignment, mortgage or any other encumbrance by
Sublandlord; and
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(4) Sublandlord has no knowledge of any transfer or assignment
by Landlord of the Underlying Lease except as may be set forth
below:
B. Subtenant represents and warrants that
(1) each individual executing this Sublease Agreement on behalf
of Subtenant is duly authorized to execute and deliver this
Sublease on behalf of the corporate entity named above, in
accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the By-Laws
of said corporation;
(2) that this Sublease Agreement is binding upon said
corporation in accordance with its terms; and
(3) that Subtenant shall deliver to Sublandlord, within thirty
(30) days following execution of this Sublease Agreement, a
certified copy of a resolution of its Board of Directors
authorizing or ratifying the execution of this Sublease.
6. Notices. Any notice or demand required to be given hereunder
shall be made by certified or registered mail return receipt requested or
reliable overnight courier to the address set forth below:
If to Sublandlord: If to Subtenant:
Motorola, Inc. Glasgal Communications, Inc.,
0000 Xxxxxxx Xxxxxxxxx XX-00 000 Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000-0000 Northvale, New Jersey
Attn: Building Services Attn: Xxx Xxxx
7. Environmental. Sub-Tenant agrees to indemnify and save harmless
SubLandlord, Sub-Landlord's successors and assigns and Sub-Landlord's present
and future officers, directors, employees and agents (collectively
"Indemnitees") from and against any and all liabilities, penalties, fines,
forfeitures, demands, and costs and expenses incidental thereto (including cost
of defense, settlement, reasonable attorneys' fees, reasonable consultant fees
and reasonable expert fees), which Sub-Landlord or any or all of the Indemintees
may hereafter suffer, incur, be responsible for or disburse as a result of any
Environmental Hazards existing on or about the Premises but only to the extent
that any such existence is caused by the activities of Sub-Tenant, Sub-Tenant's
past, present, and future officers, directors, employees, agents, invitees,
licensees, contractors and/or any other persons or entities reasonably within
the control of the Sub-Tenant. The term "Environmental Hazards" or
"Environmental Liabilities" are defined in the Underlying Lease. This provision
shall survive the termination of the Sub-Lease.
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8. Quiet Enjoyment. If Subtenant performs the terms of this Sublease
Agreement, Sublandlord will warrant and defend Subtenant in the enjoyment and
peaceful possession of the demised Premises during the Term of this Sublease
Agreement without any interruption by Subtenant or Sublandlord or either of them
or any person rightfully claiming under either of them.
9. Miscellaneous. This Sublease Agreement, including all exhibits and
attachments hereto, constitutes the entire agreement between the parties with
respect to the subject matter hereof, and supersedes and replaces all prior or
contemporaneous understandings or agreements, written or oral, express or
implied, regarding such subject matter. No amendment to or modification of this
Sublease Agreement shall be binding unless in writing and signed by a duly
authorized representative of both parties. Neither party may assign any of its
rights or responsibilities under this Sublease Agreement without the express
written permission of the other party provided that Sublandlord shall not
unreasonably withhold its consent to an assignment of the Sublease by Subtenant.
Failure by either party to enforce any provision of this Sublease Agreement
shall not be deemed a waiver of future enforcement of that or any other
provision. If for any reason a court of competent jurisdiction finds any
provision of this Sublease Agreement, or portion thereof, to be unenforceable,
that provision of the Sublease Agreement shall be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the remainder of this
Sublease Agreement shall continue in full force and effect. This Sublease
Agreement shall be construed and the legal relations created herein between the
parties shall be determined in accordance with the laws of the State of New
Jersey. The parties agree that each is an independent contractor and, except as
expressly stated herein, nothing in this Sublease Agreement gives either party
the right to obligate the other party in any way. Subtenant, it's employees,
agents, officers and directors are not eligible to participate in any of
Sublandlord's employee benefit programs. Any disputes arising out of this
Sublease Agreement shall first be negotiated between the parties. Should those
negotiations fail, the parties agree to seek to resolve the dispute through
mediation, arbitration, mini-trial, or other form of alternative dispute
resolution before seeking a judicial remedy. Nothing herein shall prohibit
either party from seeking immediate judicial relief to prevent irreparable harm
to it or to third parties.
10. If Sublandlord defaults under Underlying Lease, Subtenant may cure.
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IN WITNESS WHEREOF, the parties hereunto have executed this Assignment of
Lease on the day and year set forth above.
SUB LANDLORD SUBTENANT
Motorola Inc., a Delaware Corporation Glasgal Communications, Inc.
d/b/a Glasgal Communications of
New Jersey, Inc.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxx
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Print Name: XXXXX X. XXXXX Print Name: XXXXX X. XXXX
Title: FACILITY MANAGER Title: CHIEF FINANCIAL OFFICER
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EXHIBIT A
LANDLORD: 00 XXXXXXXX XXX ASSOCIATES
TENANT: MOTOROLA, INC.
PREMISES: 00 XXXXXXXX XXX, XXXXXX, XXX XXXXXX
PARAGRAPH 1 REFERENCE DATA
PARAGRAPH 2 DESCRIPTION OF PREMISES
PARAGRAPH 3 COMPLETION
PARAGRAPH 4 FIXED RENTAL
PARAGRAPH 5 EXPENSE RENT
PARAGRAPH 6 COMMON AREA CHARGES OF COMMERCENTER/TOTOWA
PARAGRAPH 7 USE
PARAGRAPH 8 REPAIRS
PARAGRAPH 9 ASSIGNING AND SUBLETTING
PARAGRAPH 10 CONFORM TO LAW
PARAGRAPH 11 ENVIRONMENTAL COMPLIANCE
PARAGRAPH 12 ADDITIONAL COVENANTS
PARAGRAPH 13 EXPIRATION OF TERM -RETURN OF PREMISES IN GOOD CONDITION
PARAGRAPH 14 ACCESS TO PREMISES
PARAGRAPH 15 DAMAGE BY FIRE OR OTHER CASUALTY
PARAGRAPH 16 EMINENT DOMAIN
PARAGRAPH 17 INDEMNIFICATION
PARAGRAPH 18 WAIVER OF SUBROGATION
XXXXXXXXX 00 XXXX
XXXXXXXXX 20 BUILDING SERVICES
PARAGRAPH 21 DEFAULTS AND REMEDIES
PARAGRAPH 22 LANDLORD'S INSURANCE
PARAGRAPH 23 LATE CHARGE/SERVICE FEE
PARAGRAPH 24 EASEMENTS
PARAGRAPH 25 LANDLORD'S INABILITY TO PERFORM
PARAGRAPH 26 PARKING
PARAGRAPH 27 MECHANIC'S LIEN
PARAGRAPH 28 LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT
PARAGRAPH 29 SUBORDINATION
PARAGRAPH 30 LANDLORD'S RIGHT TO SHOW PREMISES
PARAGRAPH 31 QUIET ENJOYMENT
PARAGRAPH 32 TENANT'S ESTOPPEL
PARAGRAPH 33 FINANCIAL INFORMATION
PARAGRAPH 34 NO ABATEMENT OF RENT
PARAGRAPH 35 NOTICES
PARAGRAPH 36 NO PERSONAL LIABILITY OF LANDLORD
PARAGRAPH 37 SUBMISSION OF LEASE
PARAGRAPH 38 NO REPRESENTATIONS
PARAGRAPH 39 CAPTIONS
PARAGRAPH 40 NO WAIVER OR CHANGES
PARAGRAPH 41 RECORDING
PARAGRAPH 42 BROKER
PARAGRAPH 43 SECURITY DEPOSIT
PARAGRAPH 44 GUARANTEES
PARAGRAPH 45 BINDING EFFECT
PARAGRAPH 46 ACCEPTANCE
PARAGRAPH 47 OPTIONS TO RENEW
PARAGRAPH 48 OPTION BY TENANT TO TERMINATE
PARAGRAPH 49 MISCELLANEOUS
EXHIBIT A RULES AND REGULATIONS
EXHIBIT B WORK LETTER
SCHEDULE DESCRIPTION OF PREMISES
AGREEMENT OF LEASE
AGREEMENT made this 8th day of April 1994, by and between 00 XXXXXXXX XXX
ASSOCIATES, hereinafter called "Landlord", and MOTOROLA, INC., hereinafter
called "Tenant";
FOR AND IN CONSIDERATION of the mutual covenants herein contained, the
parties hereto do hereby agree as follows:
1. The following terms are incorporated by reference into this Agreement:
(A) NAME AND ADDRESS OF LANDLORD:
00 XXXXXXXX XXX ASSOCIATES, a New Jersey Partnership with offices at 00 Xxxxxxxx
Xxxxxx,
X.X. Xxx 00
Xxxxxxxxxxx, XX 00000
(B) NAME AND ADDRESS OF TENANT:
MOTOROLA, INC., a Delaware corporation with offices at 0000 Xxxx Xxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000
(C) DESCRIPTION OF PREMISES:
A portion of premises in a building located at 00 Xxxxxxxx Xxx, Xxxxxx, Xxx
Xxxxxx all as more particularly designated on the attached diagram as set forth
herein.
(D) TERM OF LEASE:
To commence on the commencement date as defined in paragraph 3B and to terminate
on March 31, 2001.
(E) FIXED RENTAL:
Tenant shall pay the Landlord as annual basic rent for the demised premises from
the commencement date to and through March 31, 2001 the annual sum of
$201,578.75, payable in equal monthly installments of $16,798.22.
(F) TENANT'S SHARE:
49.6%
(G) BROKER:
Xxxxx X. Xxxxxxx Co.
(H) SECURITY DEPOSIT:
None
(I) EXPENSE RENT:
Tenant shall pay the Landlord as additional rent, the Tenant's share of expense
rent as provided in Article 5.
(J) TENANT'S STANDARD INDUSTRIAL CLASSIFICATION NUMBER ("SIC")
3669
2. DESCRIPTION OF PREMISES: The Landlord set forth in Para. 1(a) above
hereby leases to the Tenant set forth in Para. 1(b) above and the Tenant hereby
hires from the Landlord the space set forth in Para. 1(c) above (hereinafter
called the "Premises"). Landlord reserves the right prior to the commencement
date of the Lease to relocate the Tenant within the building in which the
Demised Premises are located provided and subject however that the area so
leased to the Tenant shall not vary by more than five (5%) per cent more or
less, and in the event of such variance the rent shall be proportionately
adjusted.
3. A. COMPLETION: The Landlord will complete the premises
substantially in accordance with the plans and specifications. Landlord shall
undertake work and shall complete the Premises and deliver the same to the
Tenant no sooner than sixty (60) days from the date Landlord obtains possession
of the Xxxx Atlanticom Systems Inc. premises (as more particularly described in
Section 48 H) and obtains a building permit and no later than ninety (90) days
from that date, provided however, that said time of completion shall be extended
by any delay occasioned by scarcity of materials, installation of improvements
requested by Tenant (other than the improvements required on the specifications
and plans), approval of plans by Tenant, strikes, labor disputes, weather
conditions which inhibit construction, fires or other casualties, governmental
restrictions and regulations, delays in transportation and other construction
delays beyond the reasonable control of the Landlord. The term "Extended
Completion Date" shall be the time of completion as heretofore defined as
extended by force majeure. In the event the completion date is extended by
reason of any of the foregoing events occurring, then such completion date shall
be extended only by a period of time equal to the time lost due to the
occurrence of any of the aforegoing events. For purposes of this paragraph, if
Landlord shall fail to complete Landlord's Work on the date of completion as
such date is extended by force majeure, then Tenant shall receive a credit
against future rent first accruing in the amount of $100.00 per day for each day
subsequent to the date of completion as extended by force majeure to the
Commencement Date as defined in subparagraph B below. If the Commencement Date
does not occur on a date which shall be the ninetieth day from the "Extended
Completion Date" as that term is heretofore defined, then either Tenant or
Landlord may terminate this Lease on ten (10) days written notice of either
party to the other. Failure of either Landlord or Tenant to terminate the Lease
within said ten (10) day period shall constitute a waiver of the right of
cancellation. In the event this Lease is so terminated, then, neither party
shall have any liability to the other, except the return to the Tenant of
prepaid rent and the security deposit.
B. COMMENCEMENT DATE: Tenant's occupancy and the commencement date
of this Lease shall be deemed to have begun on the "Date of Completion" which is
hereby
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defined to mean the day of the month on which a temporary or final certificate
of occupancy shall be issued, or upon earlier occupancy by the Tenant.
C. TERM: The term of the Lease shall commence on the commencement
date and shall terminate as set forth in paragraph 1(d) above, unless sooner
terminated as this Lease otherwise provides.
D. TERMINATION: In the event Landlord does not obtain possession of
the Xxxx Atlanticom Systems, Inc. premises (as more particularly described in
Section 48(H)) or does not obtain a building permit on or before the sixtieth
(60) day from the date of this Lease, then Tenant shall have the right, upon
notification by Landlord that either one or both of the aforementioned events
has not occurred, to terminate this Lease, said right of termination to be
exercised no later than the fifth (5) day subsequent to receipt of notice by
Tenant from Landlord as aforesaid, time being of the essence. In the event
Tenant shall terminate the Lease as aforesaid, then this Lease shall end without
further liability of either party to the other, except to return to the Tenant
any prepaid rent and security deposit.
4. FIXED RENTAL: As fixed rental, the Tenant shall pay to the Landlord
at the address set forth in Par. 1 (a) above, or to such other person or at such
other place as the Landlord may from time to time designate, without previous
demand therefor and without counterclaim, deduction or set-off, the sum set
forth in Par. 1 (e) above, which sum shall be payable in equal monthly
installments as set forth in Par. 1(e) above in advance on the first day of the
month during the term of the Lease, except the first month's rent which shall be
paid upon the execution hereof. Whenever the rent as hereinabove set forth is
stated as an annual rent and if there shall be less than twelve (12) months in
any year, the rate therein referred to shall be the "annualized rate." In the
event the Commencement date shall occur on a date other than the first day of
the month, then the rent for the first month shall be pro rated, and any amount
prepaid by Tenant as to the first month shall be credited as partial payment for
the second (2) month's rent.
5. EXPENSE RENT: Tenant shall pay as additional rent during the term
Tenant's share (as per paragraph 1(f)) of the operating expenses (as hereinafter
defined) of the property for each calendar year during the term of the lease.
The term "expense rent" or "expenses" shall mean all costs incurred by Landlord
in connection with the operation and maintenance of the entire parcel of land
and improvements thereon of which the premises are a part (all of which is
hereinafter called the "property") but excluding interest or amortization
payments of any mortgage, but including but not limited to real estate taxes,
common area expenses, common area charges of Commercenter/Totowa, common utility
expenses, repair and maintenance expenses and insurance expenses. Tenant's
share of common area charges of Commercenter/Totowa, as defined in Section 6,
shall only be 3.91% of such charges, and Tenant's share of other expenses shall
be 49.6%.
All payments Tenant is required to make pursuant to this Lease shall
constitute additional rent and if Tenant defaults in any such payments so as to
create an event of default
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(as hereinafter defined), Landlord shall have (in addition to any rights and
remedies granted hereby) all rights and remedies provided by law for nonpayment
of rent.
(i) REAL ESTATE TAXES shall include any tax or assessment levied,
assessed or imposed anytime by any governmental authority upon or against the
Property or any part thereof. Such terms shall also include any assessment for
public improvement imposed against the Property during the term of the Lease.
There shall not be included in the foregoing definition any franchise,
corporate, estate, inheritance or transfer tax of Landlord, or any income,
profits or revenue tax; provided, however, that if at any time during the term
of this Lease a tax on rents is assessed against Landlord or the basic rent, as
a substitution in whole or in part for taxes assessed by the State of New Jersey
or political subdivision on land or buildings, such tax shall be deemed to be
included within the amount which the Tenant is required to pay under this
Article.
(ii) COMMON AREA EXPENSES shall include all costs and expenses
incurred by Landlord for operating, maintaining, repairing, and/or replacing any
and all, or any part of the common area (or any installation therein, thereon,
thereunder or thereover) including but not limited to parking areas, sidewalks,
curbs, grounds, on site water lines, electric lines, gas lines, sanitary sewer
lines and storm water lines, and the total costs and expenses incurred by
Landlord for landscaping and the removal of snow, ice and debris.
(iii) COMMON UTILITY EXPENSES shall include all costs and
expenses incurred by Landlord for water, sewer, gas and electricity and other
utility charges for utilities servicing the common areas and also standby
sprinkler charges.
(iv) REPAIR AND MAINTENANCE EXPENSES shall include all costs and
expenses incurred by Landlord for replacement, repair and maintenance of all or
any part of the entire parcel of land and improvements of which the Premises are
a part (including the roof, roofdeck, outside walls & concrete floor) of which
the demised Premises forms a part, except, any portion of the building which is
otherwise the obligation to repair of any Tenant of the building. During the
initial term of the Lease as defined in Paragraph 1 (d), Repair and Maintenance
Expenses shall not include replacement of the roof. During the initial term of
the Lease and any option exercised hereunder, Repair and Maintenance Expenses
shall not include replacement of structural steel, outside curtain walls,
footings and foundations unless the necessity thereof is caused by Tenant or
Tenant's agents or invitees.
(v) INSURANCE EXPENSE shall include all costs and expense
incurred by Landlord for Liability and Casualty Insurance as Landlord may from
time to time carry for Landlord's benefit on the property or insuring Landlord's
interest therein.
Operating expenses shall be determined on the accrual basis in
accordance with generally accepted accounting principles which shall be
consistently applied.
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Tenant shall pay its Expense Rent in full no later than thirty (30)
days after notice by Landlord of the amount thereof. If requested by Landlord,
Tenant shall pay its Expense Rent in twelve (12) monthly installments on the
first day of each month on an estimated basis as determined by Landlord. Any
amount paid by Tenant which exceeds the actual amount due shall be credited to
the next succeeding payments due pursuant hereto. If Tenant has paid less than
the actual amount due, Tenant shall pay the difference to Landlord within thirty
(30) days after receipt of Landlord's request therefor. During the first and
last years of the term, the amount payable by Tenant hereunder shall be prorated
for the fraction of the calendar year included in the term. As to the expense
rent, there shall be a charge added thereto of a sum equal to fifteen (15%)
percent of the expense rent to cover Landlord's administrative overhead.
Landlord agrees that, within one hundred eighty (180) days after the end of each
year, there shall be a reconciliation binding upon Landlord and Tenant as to the
previous year's expense obligations of the Tenant.
Tenant's share of repair and maintenance expenses and common area
expenses, (ii) and (iv) above, shall not exceed in total in any calendar year
more than forty percent (40%) of the annual fixed rental payable under Paragraph
l(e) above.
6. COMMON AREA CHARGES OF COMMERCENTER/TOTOWA: The premises to be
demised and the building in which it is located are within an office/industrial
park known as Commercenter/Totowa. Landlord from time to time will incur
various expenses to maintain the park for the benefit of all tenants. The
Tenant shall pay 3.91% of the total cost and expenses incurred by Landlord
maintaining certain areas of the park for items as follows:
(a) The cost of maintaining park signs and Tenant directories;
(b) The cost of water, electricity and other utilities used in
connection with the operation and maintenance of the park which are not charges
otherwise due or payable for any individual building;
(c) Other costs reasonably incurred by Landlord to maintain the Park
or cost incurred for services benefiting all Tenants or occupants of the Park
which, in the reasonable opinion of the Landlord are services desirable to
operate the park;
(d) The cost of maintaining common facilities used by all Tenants
such as common grass areas, boulevard dividers, curbing and lighting.
Nothing herein shall obligate Landlord to incur any expense or render
any services as to the Park, the Tenant acknowledging that Landlord may sell any
part or parcels of land located within the Park and Landlord shall not be
obligated to undertake at any time any service for the Park. The foregoing
provisions are solely to enable Landlord to equitably allocate charges and
costs, if incurred, at Landlord's sole election.
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7. USE: The Tenant shall use and occupy the Demised Premises for
general offices, storage, service and sale of electronic beepers and for no
other purpose. Such permitted uses are further subject that they shall be
consistent with the Certificate of occupancy to be issued by the Borough of
Totowa. Such permitted uses shall not permit or cause any odor, sound,
vibration, effluent, pollution or other condition that is either in Landlord's
opinion or by law, noxious or offensive. It being a consideration of this Lease
that the use of the premises shall be limited to those uses as otherwise
hereinbefore specified and Tenant may not use the premises for manufacturing or
for retail sales. The Tenant shall not permit the stacking of merchandise or
materials against the walls so as to create a load or weight factor upon the
walls or to tie in Tenant's racking systems with such walls, nor shall Tenant
permit the hanging of equipment from (or otherwise loading) the roof or
structural members of the building without the express written consent of the
Landlord. The Tenant shall not use or occupy or permit the Demised Premises to
be used or occupied, nor do or permit anything to be done in or on the Demised
Property, in a manner which will in any way violate any Certificate of Occupancy
affecting the Demised Premises, or make void or voidable any insurance then in
force with respect thereto, or which will make it impossible to obtain fire,
casualty or other insurance at regular rates, or which will cause or be likely
to cause structural damage to the Building or any part thereof, or which will
constitute a public or private nuisance, or which would adversely affect the
then value thereof, and shall not use or occupy or permit the Demised Premises
to be used or occupied in any manner which will violate any present or future
laws or regulations of any governmental authority. At no time during this Lease
may Tenant store upon the premises hazardous substances as that term may be
defined from time to time by the New Jersey Department of Environmental
Protection or by the Federal Environmental Protection Agency pursuant to Section
311 of the "Federal Water Pollution Act, amendments of 1972" (33 U.S.C. Section
1321) and the list of toxic pollutants designated by Congress or the
Environmental Protection Agency pursuant to Section 307 of that Act (33 U.S.C.
Section 1317). Nothing herein contained shall be deemed or construed to
constitute a representation or guaranty by the Landlord that any specific
business may be conducted in the Demised Premises or is lawful under the
certificate of occupancy.
Landlord consents, subject to Tenant complying with applicable laws,
to Tenant's use of the premises on a 7 day a week basis, 24 hours per day.
The Lease is subject to Landlord obtaining a Certificate of Occupancy,
which Certificate of Occupancy shall not make an exception as to any federal,
state or local law, ordinance or regulation including, and not limited to, the
Americans With Disabilities Act (42 U.S.C. Section 12101 ET SEQ.)
In the event, subsequent to the Commencement date of the Lease, the
zoning ordinance of the Borough of Totowa prohibits the use of the Premises for
repairs of pagers, and by reason thereof Tenant is prohibited from continuing to
use the Premises for that use, and such revocation of such use is not due to any
fault of the Tenant, then, in such event, the Tenant may terminate this Lease by
thirty (30) days prior written notice to Landlord, the termination to be no
later than the thirtieth (30) day from the date of such notice by Tenant to
Landlord.
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8. REPAIRS: A. Tenant shall keep, replace and maintain in good
order, condition and repair the premises and each and every part thereof (except
for repairs specifically required of Landlord pursuant to subparagraphs (c) and
(d) of this Paragraph 8) including, without limitation, any air conditioning
units and systems, heating units and systems, plumbing units and systems;
sprinkler systems; electrical systems; equipment; facilities and fixtures. The
aforesaid obligation of Tenant shall also include, without limitation, all
necessary painting and decorating and the replacement of any glass which may be
damaged or broken. Notwithstanding the foregoing, all damage or injury to the
Premises or to any other part of the Property or to its fixtures or
appurtenances, whether requiring structural or non-structural repairs, caused by
the negligence or improper conduct of Tenant or its employees, invitees,
licensees or agents, shall be repaired promptly by Tenant at its sole cost and
expense. If Tenant refuses or neglects to make such repairs or fails to
diligently prosecute the same to completion within 15 days after written notice
from Landlord to Tenant of the need therefor, Landlord may make such repairs at
the expense of Tenant and such expense shall be collectible as additional rent
together with a service fee, as provided in Paragraph 23 hereof, if Tenant shall
fail to make such payment promptly.
B. Tenant shall obtain a maintenance contract for the heating,
ventilation and air conditioning systems in the building. Such contract shall
provide for semi-annual maintenance of the HVAC systems, and copies of the
maintenance agreement shall be submitted to Landlord, together with an annual
report of the maintenance company as to the condition and repairs made to the
systems. The firm or person maintaining the HVAC systems shall be a person who
is certified and licensed to service refrigerating equipment as such
certification or licenses may be required by law or any governmental agency. If
during the initial term of the Lease as described in Paragraph l(d), the HVAC
systems require a repair or replacement, and the same is not due to an act or
neglect of the Tenant or Tenant's agents or invitees, and if the cost of such
repair or replacement shall exceed $500.00, then Landlord shall reimburse Tenant
for the cost of such repair or replacement in excess of $500.00.
C. Landlord shall keep, replace and maintain in good order and
condition and repair common areas and the roof, roofdeck, outside walls and
concrete floors, subject, however, the cost of same to the extent applicable
shall be paid by the Tenant, as the Tenant's proportionate share, pursuant to
the provisions of Para. 5 hereof.
D. During the first eighteen (18) months of the term hereof Landlord
shall, at its own cost and expense, remedy and repair all defects in
construction in the premises demised (including the HVAC, plumbing and
electrical systems) evidence of which shall appear to be discovered within the
first twelve (12) months of the lease term. Landlord's obligation to make such
repair at Landlord's expense shall be limited, however, that Landlord shall not
have the obligation to make such repairs if they are necessitated or result from
Tenant's negligence or its failure to promptly notify Landlord of the existence
of any such defect. Landlord shall not be liable for any consequential damages
caused or occasioned by any such defect or repair.
9. ASSIGNING AND SUBLETTING:
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A. Tenant covenants and agrees for Tenant and its successors, assigns,
and legal representatives that neither this Lease nor the term and estate hereby
granted, nor any part hereof or thereof, will be assigned, mortgaged, pledged,
encumbered or otherwise transferred (whether voluntarily, involuntarily, by
operation of law, or otherwise), and that neither the Demised Premises, nor any
part thereof, will be encumbered in any manner by reason of any act or omission
on the part of Tenant, or will be used or occupied, or permitted to be used or
occupied, or utilized for desk space or for mailing privileges or as a
concession, by anyone other than Tenant, or for any purpose other than as
hereinbefore set forth, or will be sublet, without the prior written consent of
Landlord in every case; provided, however, that, if Tenant is a corporation, the
assignment or transfer of this Lease, and the term and estate hereby granted, to
any corporation into which Tenant is merged (such corporation being hereinafter
in this Article called "Assignee") without the prior written consent of Landlord
shall not be deemed to be prohibited hereby if, and upon the express condition
that, Assignee shall promptly execute, acknowledge, and deliver to Landlord an
agreement in form and substance satisfactory to Landlord whereby Assignee shall
assume and agree to perform and to be personally bound by and upon, all the
covenants, agreements, terms, provisions, and conditions set forth in this Lease
on the part of Tenant to be performed, and whereby Assignee shall expressly
agree that the provisions of this Article shall, notwithstanding such assignment
or transfer, continue to be binding upon it with respect to all future
assignments and transfers and provided such Assignee shall prove to the
satisfaction of Landlord that its net worth is at least equal to that of Tenant
as of the date hereof.
B. Notwithstanding anything hereinabove contained in subparagraph A
of this Paragraph 9, in the event Tenant desires Landlord's consent to an
assignment or subletting of all or any part of the Demised Premises, Tenant, by
notice in writing, (i) shall notify Landlord of the name and S.I.C number of the
proposed assignee or subtenant, such information as to the proposed assignee's
or subtenant's proposed use and financial responsibility and standing as
Landlord may require, and a copy of the proposed assignment or sublease executed
by all parties; and (ii) shall offer to vacate the space covered by the proposed
area to be subleased or the entire Demised Premises in the event of an
assignment (as the case may be) and to surrender the same to Landlord as of a
date (the "Surrender Date") specified in said offer that shall be the last day
of any calendar month during the term hereof, provided, however, that the
Surrender Date shall not be earlier than the date occurring 120 days after the
giving of such notice nor be later than the effective date of the proposed
assignment or the commencement Date of the term of the proposed sublease.
Landlord may accept such offer in writing by notice to Tenant given within sixty
(60) days after the receipt of such notice from Tenant. If, Landlord accepts
such offer, Tenant shall surrender to Landlord, effective as of the Surrender
Date, all Tenant's right, title, and interest in and to the portion of the
Demised Premises covered by the proposed sublease, or, if Tenant proposes to
sublet the entire Demised Premises, or assign this Lease, all Tenant's right,
title and interest in and to the entire Demised Premises. In the event of such
surrender by Tenant of a portion of the Demised Premises, then, effective as of
the date immediately following the Surrender Date, the Basic Rent shall be
reduced by an amount equal to that portion of the Basic Rent that is allocable
to the space so surrendered, and the Additional Rent shall be equitably
adjusted. If the entire premises be so surrendered by Tenant, this Lease shall
be cancelled and
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terminated as of the Surrender Date with the same force and effect as if the
Surrender Date were the date hereinbefore specified for the expiration of the
full term of this Lease.
In the event of any such surrender by Tenant of the Demised Premises
or a portion thereof, Landlord and Tenant shall, at the request of either party,
execute and deliver an agreement in recordable form to the effect(s)
hereinbefore stated.
C. In the event Landlord does not accept such offer of Tenant
referred to in subparagraph (B) of this Xxxxxxxxx 0, Xxxxxxxx covenants not to
unreasonably withhold its consent to such proposed assignment or subletting by
Tenant of such space to the proposed assignee or subtenant on said covenants,
agreements, terms, provisions, and conditions set forth in the notice to
Landlord referred to in clause (i) of the first sentence of subparagraph (B) of
this paragraph 9; provided, however, that Landlord shall not in any event be
obligated to consent to any such proposed assignment or subletting unless:
(I) The use of the proposed assignee or subtenant is (a) for
warehousing of products which are non-hazardous and are not "toxic pollutants",
(b) does not violate any of the negative covenants as to use as contained in
this Lease (c) is in keeping with the then standards of the Landlord as to use
of the Building and (d) does not violate any negative covenants as to use
contained in any other Lease made between Landlord and other Tenants of the
Building;
(II) The proposed assignee or subtenant is a reputable party;
(III) The proposed assignee or subtenant is not then a tenant
or occupant of any part of the Building or neighboring building in a three mile
radius operated by Landlord, or is any corporation which controls or is
controlled by such tenant or occupant or is under common control with such
tenant or occupant;
(IV) There shall be no default by Tenant under any of the
terms, covenants, and conditions of this Lease at the time that Landlord's
consent to any such assignment or subletting is requested and on the effective
date of the assignment or the proposed sublease;
(V) Tenant shall reimburse Landlord for any reasonable
expenses that may be incurred by Landlord in connection with the proposed
assignment or sublease, including without limitation the reasonable costs of
making investigations as to the acceptability of a proposed assignee or
subtenant and reasonable legal expenses incurred in connection with the granting
of any requested consent to the assignment or sublease;
(VI) The proposed assignment shall be for a consideration or
the proposed subletting shall be at a rental rate not less than the rental rates
then being charged under leases being entered into by Landlord for comparable
space in the Building and any other similar
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buildings owned or operated by Landlord in a radius of three miles from the
Demised Premises and for a comparable term.
(VII) Such permitted assignment shall be conditioned upon
Tenant's delivery to Landlord of an executed instrument of assignment (wherein
the assignee assumes, jointly and severally with Tenant, the performance of
Tenant's obligations hereunder).
(VIII) Such permitted sublease shall be conditioned upon
Tenant's delivery to Landlord of an executed instrument of sublease (wherein
Tenant and such sublessee agree that such sublease is subject to the Lease and
such sublessee agrees that, if the Lease is terminated because of Tenant's
default, such sublessee shall, at Landlord's option, attorn to Landlord).
(IX) Tenant shall at Tenant's own expense first comply with
ISRA and fulfill all of Tenant's environmental obligations under this Lease
which also arise upon termination of Tenant's Lease term. If this condition
shall not be satisfied, then Landlord shall have the right, to withhold consent
to a sublease or assignment.
D. Each subletting pursuant to this Paragraph 9 shall be subject to
all the covenants, agreements, terms, provisions, and conditions contained in
this Lease. Tenant covenants and agrees that, notwithstanding such assignment
or any such subletting to any subtenant and/or acceptance of Basic Rent or
Additional Rent by Landlord from any subtenant, Tenant shall and will remain
fully liable for the payment of the Basic Rent and Additional Rent due and to
become due hereunder and for the performance of all the covenants, agreements,
terms, provisions, and conditions contained in this Lease on the part of Tenant
to be performed. Tenant further covenants and agrees that, notwithstanding any
such assignment or subletting, no other and further assignment, underletting, or
subletting of the Demised Premises or any part thereof shall or will be made
except upon compliance with the subject to the provisions of this Paragraph 9.
Tenant shall promptly furnish to Landlord a copy of each such sublease.
E. If this Lease be assigned, or if the Demised Premises or any part
thereof be sublet or occupied by anybody other than Tenant, Landlord may, after
default by Tenant, collect rent from the assignee, subtenant, or occupant, and
apply the net amount collected to the rent herein reserved, but no such
assignment, subletting, occupancy, or collection shall be deemed a waiver by
Landlord of any of Tenant's covenants contained in this Article or the
acceptance of the assignee, subtenant, or occupant as Tenant, or a release of
Tenant from the further performance by Tenant of covenants on the part of Tenant
herein contained.
F. If for any assignment or sublease, Tenant receives rent or other
consideration, either initially, or over the term of the assignment or sublease,
in excess of the rent called for hereunder, or in the case of the sublease of a
portion of the demised premises, in excess of such rent fairly allocable to such
portion, after appropriate adjustment to assure that all other payments called
for hereunder are appropriately taken into account, Tenant shall pay the
Landlord, as additional rent hereunder, one half (1/2) of the excess of each
such payment of rent or other consideration received by Tenant promptly after
its receipt.
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10. CONFORM TO LAW: Tenant shall, at its own expense, in the use and
occupancy of the Premises, observe and comply with all laws, orders, regulations
of the federal, state and municipal governments, or any of their departments,
and if any of the foregoing requires that an alteration, addition or other
change be made to the demised premises then, Tenant will make such alteration,
addition or change and bear all expense connected therewith. Except where
Tenant's actions cause the compliance with laws, orders or regulations as
aforesaid, Tenant's obligations shall be limited to an amount not to exceed, in
each instance, Five Thousand Dollars ($5,000.00).
11. ENVIRONMENTAL COMPLIANCE: Tenant agrees, that under all
circumstances, Tenant shall comply with all federal, state and local laws,
ordinances, rules and regulations which are applicable, as to the conduct of
Tenant's business as it relates, to the environment, including but not limited
to, spillage, pollution, and storage. Tenant agrees, that Tenant upon the
request of Landlord from time to time shall file such notices, declarations and
obtain such permits as may be necessary and as may be required by law, from the
appropriate government agency, that has jurisdiction over the premises, and/or
Tenant's business. Tenant shall at Tenant's own expense comply with the
Industrial Site Remediation Act ("ISRA") N.J.S.A. 13: 1R-6 et seq. and the
regulations promulgated thereunder and any successor legislation and regulations
as they relate to Tenant's use or occupancy of the Premises. Tenant shall at
Tenant's own expense make all submissions to, provide all information to and
comply with all requirements of the New Jersey Department of Environmental
Protection and Energy or its successor ("DEPE") as they relate to Tenant's use
or occupancy of the Premises. The Tenant's obligations shall arise if there is
any closing, terminating or transferring of operations of an industrial
establishment at the premises pursuant to ISRA, whether triggered by Landlord or
Tenant. Tenant shall commence its submission to the DEPE in anticipation of the
end of the Lease Term no later than six (6) months prior the expiration of the
Lease Term. Tenant agrees it will supply copies of all written or oral
communications by or between it and any governmental agency in reference to the
foregoing to Landlord. Subject to the provisions of the last paragraph of this
Section 11, should DEPE determine that a Remedial Action Work Plan be prepared
and that a clean-up be undertaken because of a spill or discharge of a hazardous
substance or waste
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 plan. At no expense to
Landlord, Tenant shall promptly provide all information requested by Landlord or
DEPE for preparation of a non-applicability affidavit, de minimis quantity
exemption application, limited conveyance application or other submission and
shall promptly sign such affidavits and submissions when requested by Landlord
or DEPE. If Tenant's operations at the premises are outside of those industrial
operations covered by ISRA, Tenant shall obtain a letter of non-applicability
from the DEPE prior to termination of the Lease and shall provide copies of all
such submissions to Landlord. Landlord shall have the right in such instance to
request Tenant to undertake a sampling at the premises to determine whether or
not Tenant's operations have resulted in a spill or discharge of hazardous
waste.
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If Tenant fails to obtain either a non-applicability letter, or a
negative declaration or a No Further Action Letter from DEPE or fails to clean
up the premises as hereinbefore provided prior to the expiration of the term,
then upon the expiration of the term Landlord shall have the option to consider
and to treat Tenant as a holdover Tenant in possession of the premises until,
Tenant complies with the foregoing. In such event, Tenant shall be responsible
for the rental obligations as a Tenant from month to month as otherwise provided
in Paragraph 13 hereof.
Subject to the provisions of the last paragraph of this Section 11,
Tenant shall indemnify, defend and hold Landlord harmless from all fines, suits,
procedures, claims, liabilities, costs and actions of any kind, including
counsel fees (including those to enforce this indemnity), arising out of or in
any way connected with any spills or discharges of hazardous substances or
hazardous waste Premises, except those which occurred prior to the commencement
date or after the termination date of this Lease; and from all fines, suits,
procedures, claims, liabilities, costs and actions of any kind, including
counsel fees (including those to enforce this indemnity), arising out of
Tenant's failure to comply with the provisions of this Article 11. Tenant's
obligations and liabilities under this Article 11 shall survive the expiration
or earlier termination of this Lease and shall continue so long as Landlord
remains responsible or liable for either any spills or discharges of hazardous
substances or hazardous waste at the Premises which occurred during the Lease
Term or any violation of applicable Environmental Laws which occurred during the
Lease Term. Tenant's failure to abide by the terms of this Article 11 shall be
enforceable by injunction. If Tenant has applied to DEPE, as otherwise required
in this Section 11, six (6) months prior to the expiration of the Lease Term,
and Tenant has been diligent in such application, and, if through no fault of
Tenant, Tenant has not completed its ISRA obligations by the termination date of
the Lease, the failure to comply under such conditions shall not be deemed that
Tenant is a "holdover".
Landlord shall indemnify, defend and hold Tenant harmless from all
fines, suits, procedures, claims, liabilities, costs and actions of any kind,
including counsel fees (including those to enforce this indemnity), arising out
of or in any way connected with any spills or discharges of hazardous substances
or hazardous waste which occurred at the premises prior to the commencement date
of this Lease, or which occurred during the Lease Term due to an action of the
Landlord, subject, however, to the provisions of the last paragraph of this
Section 11. Landlord's obligations and liabilities under this Article 11 shall
survive the expiration or earlier termination of this Lease and shall continue
so long as Tenant remains responsible or liable for either any spills or
discharges of hazardous substances or hazardous wastes at the Premises which
occurred prior to the Lease term or any violations or applicable environmental
laws which occurred prior to the Lease term.
In addition to the other provisions of this Section 11, Landlord and
Tenant, subject to the terms hereof, agree to indemnify, defend and hold
harmless the other from and against all damages, costs, liabilities and expenses
incurred by, arising out of, or in connection with the handling, storage,
discharge, transportation or disposal of hazardous or toxic wastes or
substances, pollutants, asbestos, oils, materials or contaminants by or on
behalf of that party, as those terms
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are defined by federal, state or local environmental law or regulations. Such
damage, cost, liability and expenses shall include such as are determined to be
owed by any regulating and administrative agencies. The Landlord's
environmental indemnity shall relate to any action or activities occurring prior
to the Commencement date of the Lease, or other environmental liability of
Landlord as set forth in this Section 11, and Tenant's environmental indemnity
shall relate to actions or activities by Tenant occurring after the Commencement
date of this Lease until termination or expiration of the Lease.
Landlord represents that it presently has no knowledge of the
existence at the Demised Premises of any hazardous substances or wastes, as
those terms are defined by federal, state or local environmental law or
regulations.
If a spill or discharge of a hazardous substance shall occur during
the Term of the Lease within the Demised Premises, and such spill or discharge
was not due to the fault of Tenant or Tenant's agents or invitees, then Tenant
shall have the right to terminate this Lease upon written notice by Tenant to
Landlord within thirty (30) days of the event.
In the event a spill or discharge of a hazardous substance shall occur
outside of the Premises specifically demised to Tenant, then, if Landlord is the
direct cause of such spill or discharge, Landlord shall indemnify, defend and
hold Tenant harmless from all fines, suits, procedures, claims, liabilities,
costs and actions of any kind, including counsel fees (including those to
enforce this indemnity), arising out of or in any way connected with any spill
or discharge of hazardous substances or hazardous wastes which was caused by
Landlord outside of the Premises demised to the Tenant.
In the event a spill or discharge of a hazardous substance shall occur
outside of the Promises specifically demised to Tenant, then, if Tenant is the
direct cause of such spill or discharge, Tenant shall indemnify, defend and hold
Landlord harmless from all fines, suits, procedures, claims, liabilities, costs
and actions of any kind, including counsel fees (including those to enforce this
indemnity), arising out of or in any way connected with any spill or discharge
of hazardous substances or hazardous wastes which was caused by Tenant outside
of the Premises demised to the Tenant.
If the spill or discharge of a hazardous substance occurring outside
of the Premises specifically demised to Tenant is not caused by either Landlord
or Tenant, and is caused by a third party, then neither Landlord nor Tenant
shall have any contractual liability to the other by reason of the provisions of
this Article 11.
If a spill or discharge of a hazardous substance shall occur during
the Term of the Lease within the Demised Premises, there shall be a presumption
that Tenant or its agents or invitees were the cause of such spill or discharge.
However, if Tenant conclusively proves that the spill or discharge was not
caused by Tenant or Tenant's agents or invitees, then Tenant shall have no
liability as to any such spill or discharge.
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12. ADDITIONAL COVENANTS: Tenant covenants and agrees that at all times
during the term it shall not at any time without first obtaining Landlord's
prior written consent:
A. NOT MAKE ALTERATIONS. Tenant shall not make any alterations,
improvements, and/or additions to the Premises or any part thereof except,
Tenant shall have the right to install additional office space in the demised
premises necessary for the conduct of Tenant's business, subject to the
following:
(i) Tenant shall first obtain requisite permits and authorizations
from governmental authorities having jurisdiction;
(ii) Obtain Landlord's, and if required, the fee mortgagee's prior
written consent (which Landlord's consent not to be withheld if the change or
alteration would not, in the reasonable opinion of the Landlord, impair the
value or usefulness of the premises);
(iii) Any such alteration shall be made promptly (unavoidable delays
excepted) in a workmanlike manner in accordance with any alteration plans and in
compliance with applicable laws and governmental regulations;
(iv) The coat of the alteration shall be paid by Tenant so that the
demised premises remain free of any liens;
(v) If requested by Landlord, post with Landlord, adequate security to
assure restoration of the premises at the end of the term;
(vi) Maintain proper insurance as requested by Landlord;
(vii) No alteration for offices shall be undertaken until detailed
plans and specifications have first been submitted to and approved in writing by
Landlord and if required, by the fee mortgagee. At completion of the alteration
"as built" plans shall be delivered to Landlord.
(viii) Tenant shall agree in writing, if directed by Landlord to
remove such alteration and to restore the premises upon such removal.
B. NOT CHANGE EXTERIOR ARCHITECTURE. Change (whether by alteration,
replacement, rebuilding or otherwise) the exterior color and/or architectural
treatment of the Premises or of the building in which the same is located, or
any part thereof.
C. NOT MISUSE PLUMBING FACILITIES. Use the plumbing facilities for
any purpose other than that for which they were constructed, or dispose of any
garbage or other foreign substance therein, whether through the utilization of
so-called "disposal" or similar units or otherwise.
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D. NO LIENS. Subject any fixtures, furnishings or equipment in or
on the Premises which are affixed to the realty, to any mortgages, liens,
conditional sales agreements, security interests or encumbrances.
E. NOT DAMAGE THE PREMISES. Perform any act or carry on any
practice which may damage, mar or deface the Premises or any other part of the
Building.
F. NOT EXCEED FLOOR LOADS. Place a load on any floor in the
Premises, or in any area of the Building, exceeding the floor load per square
foot which such floor was designated to carry; or install, operate or maintain
therein any heavy item or equipment except in such manner as to achieve a proper
distribution of weight.
G. NOT EXCEED ELECTRICAL LOAD. Install, operate or maintain in the
Premises, any electrical equipment which does not bear underwriters' approval,
and would overload the electrical system therein, or any part thereof, beyond
its reasonable capacity for proper and safe operation.
H. NOT PERMIT ODORS, ETC. The building in which the Demised
Premises is located is a first class multi-tenant office/warehouse facility and
Tenant will conduct its operations in accordance with the standards associated
with a similar facility. In accordance with the foregoing, Tenant will not
suffer, allow or permit any offensive or obnoxious vibration, noise, odor or
other undesirable effect to emanate from the Premises, or any machine or other
installation therein, or otherwise suffer, allow or permit the same to
constitute a nuisance or otherwise unreasonably interfere with the safety,
comfort or convenience of Landlord or any other occupants of the Building; upon
notice by Landlord to Tenant that any of the aforesaid is occurring, Tenant
shall forthwith (but in all events within five (5) days) remove or control the
same.
I. NOT INTERFERE WITH INSURANCE, COMPLIANCE, IMPROPER USE. Use or
occupy the Premises or do or permit anything to be done thereon in any manner
which shall prevent Landlord and/or other Tenants from obtaining at standard
rates any insurance required or desired, or which might cause structural injury
to the 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 department, 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 Building of which the premises forms a part. If, at any time, and
from time to time, as a result of, or in connection with, any failure by Tenant
to comply with the foregoing or any act of omission or commission by Tenant, its
employees, agents, contractors or licensees, or as a result of, or in connection
with, the use to which the Premises are put (notwithstanding that such use may
be for purposes hereinbefore permitted, or that such use may have been consented
to by Landlord), the insurance rates applicable to the Premises, or the building
in which same are located, or to any other Premises in said building and/or to
the contents in any or all of the aforesaid properties (including rent insurance
relating
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thereto) shall be higher than that which would be applicable for the least
hazardous type of occupancy legally permitted therein, Tenant agrees that it
will pay to Landlord, on demand, as additional rent, such portion of the
premiums for all fire insurance policies in force with respect to the aforesaid
properties (including rent insurance relating thereto) and the contents of any
occupant thereof as shall be attributable to such higher rates.
The foregoing provisions as to Tenant being responsible for increased
cost of insurance shall not be applicable if Tenant's sole use is the repair of
electronic pagers, and Tenant does not have in the Premises any inflammable or
explosive materials.
13. EXPIRATION OF TERM - RETURN OF PREMISES IN GOOD CONDITION: On the
last day or sooner termination of the Lease, Tenant shall quit and surrender the
Demised Premises broom-clean, in good condition and repair, together with all
alterations, additions and improvements which may have been made in, on, or to
the Demised Premises, except movable furniture or unattached movable trade
fixtures put in at the sole expense of the Tenant (provided Tenant has not been
in default under this Lease) provided, however, that Tenant shall ascertain from
Landlord at least thirty (30) days before the end of the Term whether Landlord
desires to have the Demised Premises, or any part thereof, restored to the
condition in which it was originally delivered to Tenant, and if Landlord shall
so desire then Tenant, at its own cost and expense, shall restore the same
before the end of the Term. All trade fixtures, equipment, furniture,
alterations, additions and improvements not so removed will conclusively be
deemed to have been abandoned by Tenant and may be appropriated, sold, stored,
destroyed, or otherwise disposed of by Landlord without notice to Tenant or to
any other person and without obligation to account for them. Tenant will pay
Landlord all expenses incurred in connection with Landlord's disposition of such
property, including without limitation the cost of repairing any damage to the
Building or Premises caused by removal of such property. Tenant agrees upon
termination of the lease, the air-conditioning, cooling systems, heating
equipment and plumbing and electrical systems shall be in good, operable
condition, and, all lighting fixtures shall be operable, and, in the same
location as when delivered to Tenant by Landlord and bulbs where necessary,
replaced. Tenant shall comply with the provisions of paragraph 11 prior to
termination of the Lease. Tenant's obligations under this section shall survive
the expiration or sooner termination of the Term. In the event Tenant remains
in possession of the Demised Premises after the expiration of the Term and
without the execution of a new lease, Tenant, at the option of the Landlord,
shall be deemed to be occupying the Demised Premises as a tenant from
month-to-month, at a monthly rental equal to two (2) times the sum of (i) the
Basic Rent payable for the last month of the Term under Section 1(E) and (ii)
one twelfth (l/12th) of all items of Expense Rent, such as, but not limited to,
taxes, insurance, common area charges, repair charges, utilities, payable or
paid during the last lease year.
The definition of "good condition and repair" as set forth in the
preceding paragraph shall be defined so that the Premises shall be subject to
reasonable wear and tear, provided, however, that the foregoing shall not excuse
Tenant from making necessary repairs during the Lease term as this Lease may
otherwise require, and the Premises are in rentable condition upon the
termination date of the Lease.
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14. ACCESS TO PREMISES: Landlord shall have the right to enter the
Premises at any reasonable time to examine same, to maintain the same, or to
make such repairs, replacements or improvements to the Premises or to the
Property as Landlord may deem desirable, and Tenant shall have no claim against
Landlord by reason thereof. Landlord may install, maintain, or replace and use
pipes and conduits in and through the Premises for the purpose of installing
utilities for other premises located within the building. Landlord will use its
best efforts not to unreasonably interfere with Tenant's use of the Premises in
exercising its rights under this Paragraph.
15. DAMAGE BY FIRE OR OTHER CASUALTY:
A. SUBSTANTIAL DAMAGE If the Building or any part thereof shall be
damaged by fire or other casualty, Tenant shall give prompt written notice
thereof to Landlord. If as a result the Building is so damaged that substantial
alterations or reconstruction of the building shall, in Landlord's sole opinion,
be required (whether or not the premises shall have been damaged) or if any
Mortgagee of the Building requires the proceeds payable be used to retire the
Mortgage debt, Landlord may, at its option, terminate this Lease by notifying
Tenant in writing of such termination within sixty (60) days after the date of
such damage. If this Lease is so terminated, rent shall be abated as of the
date of such damage.
B. RESTORATION If Landlord does not terminate this Lease pursuant
to Subsection A of this Xxxxxxxxx 00, Xxxxxxxx shall, within seventy-five (75)
days after receipt by Landlord of the proceeds payable in respect of such fire
or other casualty, proceed with reasonable diligence to restore the building
(subject to force majeure) to substantially the same condition in which it was
immediately prior to the occurrence of the casualty. Landlord shall not be
required to rebuild, repair or replace any part of Tenant's furniture,
furnishings, fixtures or equipment. Such work shall include the scope of the
work done by the Landlord when originally finishing the premises in accordance
with the working drawings. Landlord shall not be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant, resulting in any way
from damage or repair thereof, except that Landlord shall allow Tenant a fair
diminution of basic rent during the time and to the extent the premises are
unfit for occupancy.
C. Landlord shall advise Tenant within thirty (30) days of the
casualty whether or not the Premises, in the opinion of Landlord's architect,
can be restored within one hundred twenty (120) days from the date of said
notice. In the event Landlord's architect estimates that the Premises cannot be
restored within one hundred twenty (120) days, then Tenant shall have the right
to terminate this Lease by delivering notice to Landlord within ten (10) days of
Landlord's notice, terminating the Lease, time being of the essence.
D. In the event Tenant, through Tenant's negligence, damages the
Building by fire or other casualty and if, by reason thereof, the loss incurred
is covered under Landlord's all-risk casualty insurance policy which Landlord
may then be carrying as otherwise contemplated by subparagraph (v) of Article 5
hereof, then Tenant shall have no liability to Landlord by reason of the damage
incurred to Landlord's Building. In the event such damage is not covered under
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Landlord's all-risk casualty policy, the Tenant's liability to Landlord by
reason of the foregoing event shall be limited to an amount not to exceed One
Million and No/100 Dollars ($1,000,000.00).
16. EMINENT DOMAIN:
A. The term "Total Taking" means the taking of the Fee Title or
Landlord's Master Leasehold Estate to so much of the premises or a portion of
the building in which the Demised Premises is located, by right of Eminent
Domain or other authority of law or a voluntary transfer under the threat of the
exercise of the right of Eminent Domain or other authority. The term "Partial
Taking" means the taking of only a portion of the premises or a portion of the
building in which the premises is located which does not constitute a Total
Taking.
B. If a Total Taking occurs during the term of this Lease this Lease
will terminate as of the date of the Taking. The phrase "Date of Taking" means
the date of taking actual physical possession by the condemning authority or
such earlier date as the condemning authority gives notice that it is deemed to
have taken possession.
C. If a Partial Taking occurs during the term of this Lease,
Landlord may cancel this Lease by written notice given within sixty (60) days
after the date of the Taking and this Lease will terminate on the date of the
Taking. If the Lease is not so terminated, this Lease will continue in full
force and effect as to the remainder of the premises. The fixed rental payable
by Tenant under Paragraph 1(e) for the balance of the Term will be abated in the
proportion that the leasable area of the premise taken bears to the leasable
area of the premises immediately prior to such taking, and Landlord will make
all necessary repairs or alterations to make the remaining premises a complete
architectural unit.
D. If, this Lease has not otherwise been cancelled as hereinabove
provided, and, if a Partial Taking occurs of more than ten (10%) of the Demised
Premises during the term of this Lease, then, in such event, Tenant may cancel
this Lease by written notice given within sixty (60) days after the date of the
Taking and this Lease will terminate as of the date of the Taking.
E. Award and Proceeds. All compensation awarded for any such taking
or conveyance, whether for the whole or in part of the Demised Premises or
otherwise, shall be the property of the Landlord, whether such damages shall be
awarded as compensation for the diminution or total loss in value of the
leasehold or of the fee of the Demised Premises, and Tenant hereby assigns to
Landlord all of Tenant's right, title and interest in and to any such
compensation. Tenant shall be entitled to separately petition the condemning
authority for a separate award for its moving expenses and trade fixtures, but
only if such separate award will not diminish the amount of proceeds payable to
Landlord.
F. If this Lease is terminated pursuant to the provisions of this
Paragraph, then all rentals and all other charges payable by Tenant to Landlord
under this Lease will be paid up
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to the date of the Taking and any rentals and other charges paid in advance and
allocable to the period after the date of the Taking will be repaid to Tenant by
Landlord. Landlord and Tenant will then be released from all further liability
under this Lease.
17. INDEMNIFICATION: Tenant shall indemnify and hold Landlord harmless
from all loss, damage, cost, expense or liability (including reasonable
attorney's fees, expenses and disbursements) suffered or incurred by Landlord
arising out of or in connection with any injury to, or death of, any person, or
damage to, or destruction of, property occurring in, on or about the Demised
Premises, the building in which the Demised Premises are located and/or the
property, and which injury, death, damage or destruction is caused by the
negligent acts or omissions or willful misconduct of Tenant or Tenant's
employees, agents, contractors, subcontractors, invitees, licensees or other
authorized representatives; except that Landlord shall be liable to Tenant for
all loss, damage, cost, expense or liability (including reasonable attorney's
fees, expenses and disbursements) suffered or incurred by Tenant arising out of
or in connection with any injury to, or death of, any person, or damage to, or
destruction of, property occurring in, on or about the Demised Premises, the
building in which the Demised Premises are located, and the property, and which
injury, death, damage or destruction is caused by the negligent acts or
omissions or willful misconduct of Landlord or Landlord's employees, agents,
contractors, subcontractors, invitees, licensees or other authorized
representatives, and shall indemnify and hold Tenant harmless therefor. A
party's obligation under this Paragraph to indemnify and hold the other party
harmless shall be limited to the sum that exceeds the amount of insurance
proceeds, if any, received by the party being indemnified and in no event shall
the amount of such obligation in total during the Term of this Lease exceed
Fifty Thousand and No/100 Dollars ($50,000.00).
18. WAIVER OF SUBROGATION: Notwithstanding anything contained herein to
the contrary, Landlord and Tenant release and waive all right to recover against
each other or against any other tenant or occupant of the building, against the
officers, directors, shareholders, partners, joint venturers, employees, agents,
customers, invitees, or business visitors of each other or of any other tenant
or occupant of the building and any person claiming by or through either of them
for any loss or damage arising from any cause covered by any insurance required
to be carried by each of them pursuant to this Lease or any other insurance
actually carried by each of them. Landlord and Tenant will cause the respective
insurers to issue appropriate Waiver of Subrogation Rights endorsements to all
policies of insurance carried in connection with the building or the Premises or
the contents of either of them. Tenant will cause all other occupants of the
premises claiming by, under or through Tenant to execute and deliver to Landlord
a Waiver of Claim similar to the Waiver in this paragraph and to obtain such
Waiver of Subrogation Rights endorsements.
19. OMIT.
20. BUILDING SERVICES: Landlord shall not be required to provide any
services to Tenant and Tenant agrees to pay for all charges for gas,
electricity, light, heat and power. Landlord shall not be liable in damages or
otherwise for any delay or failure in Tenant's
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receiving any such utilities and in no event shall such delay or failure,
regardless of cost, constitute an eviction of Tenant or terminate this Lease.
21. DEFAULTS AND REMEDIES:
A. If any one or more of the following events (hereinafter called
"events of default") occurs:
(i) Tenant shall default in payment of any installments of rent or
other sums required to be paid by Tenant under this Lease, which default shall
continue for ten (10) days after written notice thereof by Landlord to Tenant;
or in the observance or performance of any other covenant or provision of this
Lease and such default continues for thirty (30) days after notice of such
default from Landlord (unless such default cannot be cured within (30) days and
Tenant commences to cure such default within such 30 days and diligently
proceeds to cure such default); or
(ii) If the Demised Premises shall be left vacant or unoccupied or
be deserted for a period of thirty (30) days; or
(iii) Tenant shall make an assignment for the benefit of creditors
or shall assign or sublet, except as permitted hereunder; or
(iv) A voluntary petition is filed by Tenant under any laws for the
purpose of adjudication of Tenant as a bankrupt or the extension of the time of
payment, composition, arrangement, adjustment, modification, settlement or
satisfaction of the liabilities of Tenant, or the reorganization of Tenant under
the Bankruptcy Act of the United States or any future laws of the United States
having the same general purpose, or receivers appointed for Tenant by reason of
insolvency or alleged insolvency of Tenant; an involuntary petition shall be
filed against Tenant for such relief and shall not be dismissed within thirty
(30) days;
Landlord, notwithstanding any other right or remedy it may have under
the Lease, at law or in equity, may terminate the Lease, by notice to Tenant
setting forth the basis therefor and effective not less than five (5) days
thereafter, whereupon, upon such effective date, the Lease shall terminate (with
the name effect as if such date were the date fixed herein for the natural
expiration of the Term), Tenant shall surrender the demised premises to Landlord
and Tenant shall have no further rights hereunder, but Tenant shall remain
liable as hereinafter provided. In such event, Landlord may, without further
notice, enter the demised premises, repossess the same and dispossess Tenant and
all other persons and property therefrom.
B. LANDLORD'S DAMAGES If Landlord so terminates the Lease, Tenant
shall pay Landlord, as damages:
(i) A sum which represents any excess of (i) the aggregate of the
rent, impositions and additional rent for the balance of the term if the Lease
were not so terminated,
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over (ii) the net rental value of the demised premises at the effective date of
such termination, both discounted at the rate of four (4) percent per annum; or,
at Landlord's option;
(ii) Sums equal to the rent, impositions and additional rent, when the
same would have been payable if not for such termination, less any net rents
received by Landlord from any reletting, after deducting all costs incurred in
connection with such termination and reletting (but Tenant shall not receive any
excess of such net rents over such sums).
Landlord may commence actions or proceedings to recover such damages
or installments thereof at any lawful time. No provision hereof shall be
construed to preclude Landlord's recovery from Tenant of any other damages to
which landlord is lawfully entitled.
C. NONEXCLUSIVITY No right or remedy herein conferred upon Landlord is
intended to be exclusive of any other right or remedy herein or by law provided,
but each shall be cumulative and subject to the grace and notice provisions of
subparagraph (A) of this Paragraph 21, in addition to every other right or
remedy given herein or now or hereafter existing at law or in equity or by
statute.
D. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS If Tenant shall fail
to pay any tax, pay for or maintain or deliver any of the insurance policies or
shall fail to make any other payment or perform any other act which Tenant is
obligated to make or perform under this Lease, then, Landlord after notice to
Tenant may perform for the account of Tenant any covenant in the performance of
which Tenant is in default. Tenant shall pay to the Landlord as additional
rent, upon demand, any amount paid by Landlord in the performance of such
covenant in any amount which Landlord shall have paid by reason of failure of
Tenant to comply with any covenant or provision of this Lease.
E. NO WAIVER No waiver by Landlord of any breach by Tenant of any of
Tenant's obligations hereunder shall be a waiver of any subsequent breach or of
any obligation, agreement or covenant, nor shall any forbearance by Landlord to
seek a remedy for any breach by Tenant be a waiver by Landlord of Landlord's
rights and remedies with respect to such or by subsequent breach.
F. RIGHT OF RE-ENTRY In the event that the termination of this Lease is
the result of any election exercised by Landlord pursuant to the terms of this
Article, the Landlord shall be entitled to the rights, remedies and damages set
forth in this Article and elsewhere in this Lease. Tenant waives the service of
notice of intention to re-enter as provided for in any statute and also waives
any and all right of redemption in case Landlord obtains possession by reason of
Tenant's default. Tenant waives any and all right to a trial by a jury in the
event that summary proceedings shall be instituted by Landlord. The terms
"enter", "re-enter", "entry" or "reentry", as used in this Lease are not
restricted to their technical legal meaning.
G. PAYMENT OF LANDLORD'S COUNSEL FEES AND OTHER COSTS, INTEREST Tenant
shall pay the Landlord as additional rent upon demand Landlord's reasonable
counsel fees incurred by
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Landlord in connection with the prosecution or defense of any proceedings
instituted by reason of default of Tenant, together with interest at the rate of
2% percent per month from the date of payment by Landlord until paid by Tenant,
this covenant to survive the expiration or sooner termination of this Lease.
22. LANDLORD 'S LIENS: LANDLORD'S INSURANCE: Landlord, for Landlord's
benefit only, agrees that included in the insurance Landlord may carry shall be
insurance insuring against damage to the Premises and the building by fire and
other risks now or hereafter embrace an extended coverage, in amounts sufficient
to prevent Landlord from a co-insured, but in no event less than eighty percent
(80%) of the Premises' then-replacement value (exclusive of the cost of
excavation, foundation and footings). The foregoing requirement shall be deemed
a minimum requirement to be carried by Landlord for Landlord's benefit. The
insurance carried by Landlord, as determined in Landlord's sole judgment, in
addition to the foregoing, may be such insurance against such other hazards as,
from time to time, are then commonly insured against for premises similarly
situated (due regard being given to the Premises height, type, construction and
use) in such amounts as Landlord may determine in Landlord's sole discretion.
All insurance carried by Landlord shall be included as a "insurance expense"
pursuant to subparagraph (v) of Paragraph 5 hereof entitled "Expense Rent".
23. LATE CHARGE/SERVICE FEE: If payment of Basic Rent or Additional Rent
or any part thereof shall not be made on or prior to a date which is five (5)
days after the date on which it is due and payable, Landlord shall be entitled
to charge as an additional rent the service fee equal to 4% of the rent due for
each and every five (5) day period which has elapsed between the day said rent
is due and the date the rent is received by Landlord. Such service fee that
accrues during any month shall be payable on the first day of the following
month. No failure by Landlord to insist upon the strict performance by Tenant
of Tenant's obligations to pay service fee shall constitute a waiver by Landlord
of its right to enforce the provisions of this section and any instance
thereafter occurring, nor shall acceptance of a late fee be deemed to extend the
time of payment of fixed rent or expense rent or any part thereof. Landlord
agrees not to assert a late charge on the first two (2) instances during any
calendar year, without first giving Tenant written notice of Tenant's failure to
pay such Rent or Additional Rent, and if Tenant pays such Rent or Additional
Rent charge within ten (10) days following Landlord's notice, then no late
charge shall be asserted. If Tenant does not pay such Rent or Additional Rent
within said ten (10) day period, then the late charge shall accrue from the date
such Rent or Additional Rent was otherwise due and payable. Landlord need not
send notice to Tenant in any calendar year when Landlord has previously given
such notice on two (2) occasions within said calendar year.
24. EASEMENTS: Tenant shall permit Landlord or its designees to erect,
use, maintain and repair pipes, cables, conduits, plumbing, vents and wires, in,
to and through the Premises, as and to the extent that Landlord may now or
hereafter deem to be necessary or appropriate for the proper operation and
maintenance of the building in which the Premises are located or any other
portion of the Building. All such work shall be done in such manner as to avoid
unreasonable interference with Tenant's use of the Premises.
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25. LANDLORD'S INABILITY TO PERFORM: This Lease and the obligation to pay
rent hereunder and perform all of the other terms to be performed by Tenant
hereunder shall not be affected, impaired or excused because Landlord is unable
to fulfill any of its obligations under this Lease. The foregoing, however,
shall not waive any defense or claim Tenant may rightfully assert in a
litigation between Landlord and Tenant.
26. PARKING: Tenant shall be assigned fifteen (15) parking spaces to be
reserved by designation notation thereon, for the benefit of Tenant, its
employees and invitees. In addition, Tenant shall have the right to use
fifty-five (55) parking spaces in common with Landlord and other tenants of the
property and their employees and invitees in the parking area provided by
Landlord for the parking of passenger automobiles other than parking spaces
allocated to others by Landlord. Tenant agrees that it and its employees and
invitees shall not parking their automobiles in parking spaces allocated to
others by Landlord and shall comply with such rules and regulations for use of
the parking area as Landlord may from time to time prescribe. Landlord reserves
the right to require Tenant, as to the parking of automobiles, to park the same,
off premises, but within the Park known as Commercenter/Totowa. Landlord shall
not be responsible for any damage or theft of any vehicle in the parking area
and shall not be required to keep parking spaces clear of unauthorized vehicles
or to otherwise supervise the use of the parking area.
27. MECHANIC'S LIEN: Tenant shall discharge any mechanic's lien filed
against the Property for work done or claimed to have been done for Tenant, or
materials furnished or claimed to have been furnished to Tenant within ten (10)
days after notice from Landlord thereof. Notice is hereby given that Landlord
is not liable for any work performed at the premises by or for Tenant and that
no mechanic's lien arising therefrom shall attach to, or affect the estate of,
or interest of Landlord.
28. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT: If Tenant defaults in the
observance or performance of any term to be observed or performed by Tenant
under this Lease, Landlord may immediately or at any time thereafter and without
notice to Tenant, perform the same for the account of Tenant and the expenses
incurred with respect to such performance together with attorneys' fees and
interest thereon shall be deemed additional rent hereunder and shall be paid by
Tenant to Landlord on demand therefor.
29. SUBORDINATION: This Lease and Tenant's rights are subject and
subordinate to all present and future: (a) Leases for the Building or the Land
on which it stands, (b) mortgages on the Leases or the Building or Land, (c)
agreements securing money paid or to be paid by a lender, and (d) terms,
conditions, renewals, changes of any kind and extensions of the Mortgages or
Leases or Lender Agreements. Tenant must promptly execute any certificates that
Landlord requests to show that the Lease is so subject and subordinate.
30. LANDLORD'S RIGHT TO SHOW PREMISES: Throughout the term of this Lease,
Landlord shall have the right to enter the Premises at reasonable hours for the
purpose of
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showing the same to prospective purchasers or mortgagees of the Property, and
during the last six (6) months of the term for the purpose of showing the same
to prospective tenants.
31. QUIET ENJOYMENT: Landlord covenants that if and so long as Tenant
pays the rent and additional rent and performs the covenants hereof, Tenant
shall peaceably and quietly have hold and enjoy the Premises for the term herein
mentioned, subject to the provisions of this Lease and to any mortgage
underlying lease or other agreements to which this Lease is subordinate.
32. TENANT'S ESTOPPEL: Tenant shall from time to time, upon not less than
ten (10) days prior written request by Landlord, execute, acknowledge and
deliver to Landlord a written statement, in form satisfactory to Landlord,
certifying that this Lease is unmodified and in full force and effect (or that
same is in full force and effect as modified, listing the instruments of
modification) the dates to which the rent and additional rent have been paid and
whether or not, to the best of Tenant's knowledge, Landlord is in default
hereunder (and if so, specifying the nature of the default), existence of any
offsets, counterclaims or defenses thereto on the Tenant's part against
Landlord, a statement as to the term commencement date and stated expiration
date, and as to any other matters as may reasonably be so requested. It being
intended that any such statement delivered pursuant to this Paragraph may be
relied upon by a prospective purchaser of Landlord's interest, or mortgagee of
Landlord's interest, or assignee of any mortgage upon Landlord's interest in any
underlying lease or in the Property.
33. FINANCIAL INFORMATION: Tenant has furnished the Landlord with Profit
and Loss Statements and Balance Sheets for the fiscal years beginning 1993,
prepared by a Certified Public Accountant. Tenant further agrees that it will
furnish to the Landlord a Certified Profit and Loss Statement and Certified
Balance Sheet prepared by a Certified Public Accountant for the preceding fiscal
year but Landlord shall not request such statement more than once in each
calendar year.
34. NO ABATEMENT OF RENT: There shall be no abatement, diminution or
reduction of Fixed Rent, Expense Rent or Additional Rent or other charges or
other compensation due to the Landlord by Tenant or any person claiming under it
under any circumstances, including, but not limited to, any inconvenience,
discomfort, interruption of business or otherwise.
35. NOTICES: Any notice hereunder shall be sufficient if sent by
certified mail, return receipt requested, addressed given by the Landlord to the
Tenant to the Premises, or if given by the Tenant to the Landlord, at the
address set forth in Par. l(a) above, or at such other place as the Landlord may
notify Tenant in writing from time to time.
36. NO PERSONAL LIABILITY OF LANDLORD: There shall be no personal
liability of the Landlord or any principal of the Landlord in connection with
this Lease. Tenant agrees to look solely to the equity of Landlord in the
Property for the collection of any judgment or other judicial process requiring
the payment of money by Landlord in the event of any default or breach by
Landlord with respect to this Lease or in any way relating to the Premises or
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Property, and no other assets of Landlord or any principal of Landlord shall be
subject to levy, execution or other procedures for the satisfaction of Tenant's
remedies.
37. SUBMISSION OF LEASE: Submission of this Instrument for examination or
signature by Tenant does not constitute a reservation of, or option to lease,
and it is not effective as a lease or otherwise until execution and delivery by
both Landlord and Tenant.
38. NO REPRESENTATIONS: Landlord has made no representations or promises
with respect to the Premises or the Property except as expressly contained
herein. Tenant has inspected the Premises and agrees to take the same in an "as
is" condition, except as otherwise expressly set forth. Landlord shall have no
obligation, except as herein set forth, to do any work in and to the Premises to
render them ready for occupancy and use by Tenant.
39. CAPTIONS: The captions in this Lease are included for convenience
only and shall not be taken into consideration in any construction or
interpretation of this Lease or any of its provisions.
40. NO WAIVER OR CHANGES: The failure of either party to insist on strict
performance of any covenant or condition hereof, or to exercise any option
herein contained, shall not be construed as a waiver of such covenant, condition
or option in any other instance. This Lease cannot be changed or terminated
orally.
41. RECORDING: The Tenant shall not record this Lease or a memorandum
hereof.
42. BROKER: Tenant represents that it did not deal with or negotiate with
any broker in connection with this Lease other than the Broker listed in
Paragraph l(g) and indemnifies and holds Landlord harmless from and against any
claim for a commission or other fee made by any broker with whom it has dealt or
negotiated except as to the Broker listed in Paragraph l(g).
43. OMIT.
44. GUARANTEES: The Landlord agrees to assign to the Tenant all
guarantees which Landlord has otherwise received from its materialmen and
suppliers as to the plumbing, heating, air conditioning and electrical systems
which are the Tenant's responsibility to maintain under the terms of this Lease.
45. BINDING EFFECT: The provisions of this Lease shall apply to, bind and
inure to the benefit of Landlord and Tenant and their respective successors,
legal representative and permitted assigns, it being understood that the term
"Landlord" as used in this Lease means only the owner, or the mortgagee in
possession, or the lessee for the time being of the property so that in the
event of any sale or sales of the property or of any lease thereof, or if the
mortgagee shall take possession of the property, the Landlord named herein shall
be and hereby is entirely freed and relieved of all covenants and obligations of
Landlord hereunder accruing thereafter.
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46. ACCEPTANCE: Neither the Landlord nor its agents have made any
representation with respect to the building, the land upon which it is erected,
or the demised premises, except as expressly set forth herein and no rights,
easements or licenses are acquired by the Tenant by implication or otherwise
except as expressly set forth in the provisions of this Lease. The taking of
possession of the demised premises by the Tenant shall be conclusive evidence
that the Tenant shall have accepted the same in an "as is" condition, except as
otherwise expressly set forth, and that the demised premises and the building
were in good condition at the time of the commencement of the term. In no event
shall the Landlord be liable for any defect in such property or for any
limitation on its use.
47. EXTENSION OF TERM:
A. FIRST RENEWAL TERM Upon the expiration of the term herein
demised, if immediately prior thereto this Lease shall be in full force and
effect and Tenant shall not be in default, then, subject to the provisions of
this section, the Tenant shall have and is hereby given the option to renew and
extend this Lease for an additional term of five (5) years to commence on April
1, 2001 and to expire on March 31, 2006. The first renewal term shall be upon
the same terms, covenants and conditions as those herein contained insofar as
then in force and applicable to such first renewal term (including all
provisions as to the items of payment of additional rent) except as to the
amount of fixed rental. The said renewal shall be exercised by Tenant in the
following manner:
(i) Not later than nine (9) months prior to the end of the initial
term, the Tenant shall notify Landlord in writing that the Tenant desires to
extend said Lease by exercising this option.
(ii) In the event the Tenant exercises its option to extend the term
of this Lease as hereinabove set forth, the fixed rental as set forth in
sub-paragraph (e) of paragraph 1 of this Lease, during such first renewal term
shall be the lesser of $246,612.05 per annum, payable in equal monthly
installments of $20,551.00, due and payable the first day of each and every
month in advance or a sum equal to the fair market rent to be determined as
follows:
The Landlord and the Tenant shall each select an appraiser, such
appraiser shall be a licensed real estate broker, specializing in the renting of
office and/or industrial premises in Passaic County, New Jersey and each such
appraiser shall be a member of the Society of Industrial Realtors. Such
appraisers shall be engaged to determine the fair market rental on a net basis
in accordance with the terms of this Lease of the premises demised. In the
event the two such appraisers cannot agree upon such net rental, then they shall
appoint a third appraiser with like credentials, and the opinion of the majority
as to the fair market rental, shall be controlling. If a sum equal to the fair
market rental of the premises pursuant to the appraisal is less than $246,612.05
per annum, then the fixed rental shall be adjusted to a sum equal to the fair
market rental of the Premises determined pursuant to the appraisal. The
determination of the appraisers shall be in accordance with the provisions of
the terms of this lease for a five (5) year term. Such rental shall be
determined as of the first day of the first renewal term. Pending the
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determination of the fixed rent for the first renewal term, the Tenant shall
continue to pay the rent at the rate of $246,612.05 per annum and when the
appraisals have been determined, and if the fair market rent so determined is
less than $246,612.05, Landlord shall immediately refund to Tenant any amount
greater than that which would otherwise be payable pursuant to the appraised
fair market rental.
B. SECOND RENEWAL TERM Upon the expiration of the first renewal
term, if immediately prior thereto this Lease shall be in full force and effect
and Tenant shall not be in default, then, subject to the provisions of this
section, the Tenant shall have and is hereby given the option to renew and
extend this Lease for an additional term of five (5) years to commence on April
1, 2006 and to expire on March 31, 2011. The second renewal term shall be upon
the same terms, covenants and conditions as those herein contained insofar as
then in force and applicable to such second renewal term (including all
provisions as to the items of payment of additional rent) except as to the
amount of fixed rental, and further excepting that such renewal shall not
contain a provision for a further renewal. The said renewal shall be exercised
by Tenant in the following manner:
(i) Not later than nine (9) months prior to the end of the initial
term, the Tenant shall notify Landlord in writing that the Tenant desires to
extend acid Lease by exercising this option.
(ii) In the event the Tenant exercises its option to extend the term
of this Lease as hereinabove set forth, the fixed rental as set forth in
sub-paragraph (e) of paragraph 1 of this Lease, during such second renewal term
shall be the higher of the fixed rental payable during the last year of the
first renewal term or a sum equal to the fair market rent to be determined as
follows:
The Landlord and the Tenant shall each select an appraiser, such
appraiser shall be a licensed real estate broker, specializing in the renting of
office and/or industrial premises in Passaic County, New Jersey and each such
appraiser shall be a member of the Society of Industrial Realtors. Such
appraisers! shall be engaged to determine the fair market rental on a net basis
in accordance with the terms of this Lease of the premises demised. In the
event, the two such appraisers cannot agree upon such net rental then, they
shall appoint a third appraiser, with like credentials, and the opinion of the
majority as to the fair market rental, shall be controlling. If a sum equal to
the fair market rental of the premises pursuant to the appraisal is greater than
the fixed rental payable during the last year of the first renewal term, then
the fixed rental shall be adjusted to a sum equal to the fair market rental of
the Premises pursuant to the appraisal. The determination of the appraisers
shall be, in accordance with the provisions of the terms of this lease, for a
five (5) year term. Such rental shall be determined as of the first day of the
second renewal term. Pending the determination of the fixed rent for the second
renewal term, the Tenant shall continue to pay the rent at the rate payable
during the last year of the first renewal term and when the adjusted rent has
been determined, the Tenant on the first day immediately following the
furnishing by the appraisers to the Landlord and the Tenant of the computation
thereof, shall pay the Landlord the monthly deficiency for the number of
installments
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that shall have elapsed from the commencement of the second renewal term
beginning on the first day of the second renewal term to and including the first
day of such month. During the second renewal term, the fixed rental shall be
the higher of the rent payable during the last year of the first renewal term or
a sum equal to the fair market rent as determined by the appraisers.
48. OPTION BY TENANT TO TERMINATE:
A. FIRST TERMINATION OPTION. Tenant shall have the right, subject to
the following conditions, to terminate this Lease effective as of the last day
of the thirty-sixth (36) month of the Lease Term, provided and subject, however,
that Tenant shall:
(i) exercise such right by written notice to Landlord delivered and
received by Landlord on a date no later than the last day of the twenty-seventh
(27) month of the Lease Term, TIME BEING OF THE ESSENCE; and
(ii) simultaneously with the delivery of the Notice of Termination,
deliver to Landlord good funds in the amount of Six Hundred Sixty-Five Thousand
Eight Hundred Nine and 51/100 Dollars ($665,809.51) payable to Landlord, such
amount to be deemed an additional payment to Landlord in consideration of
Tenant's exercise of its right of termination.
The Notice of Termination shall be executed in a manner consistent
with the execution of this Lease. The Lease shall terminate as of the last day
of the thirty-sixth (36) month, as though such date was the original Termination
Date as otherwise set forth in the Lease, and all of Tenant's obligations upon
termination shall be applicable as of such date.
B. SECOND TERMINATION OPTION. Tenant shall have the right, subject to
the following conditions, to terminate this Lease effective as of the last day
of the sixtieth (60) month of the Lease Term, provided and subject, however,
that Tenant shall:
(i) exercise such right by written notice to Landlord delivered and
received by Landlord on a date no later than the last day of the fifty-first
(51) month of the Lease Term, TIME BEING OF THE ESSENCE; and
(ii) simultaneously with the delivery of the Notice of Termination,
deliver to Landlord good funds in the amount of Two Hundred Thousand and No/100
Dollars ($200,000.00) payable to Landlord, such payment to be deemed an
additional payment to Landlord in consideration of Tenant's exercise of its
right of termination.
The Notice of Termination shall be executed in a manner consistent
with the execution of this Lease. The Lease shall terminate as of the last day
of the sixtieth (60) month, as though such date was the original Termination
Date as otherwise set forth in the Lease, and all of Tenant's obligations upon
termination shall be applicable as of such date.
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49. MISCELLANEOUS:
A. Tenant shall comply with the Rules and Regulations attached
hereto and as same may be amended or promulgated by Landlord from time to time.
B. Tenant warrants and represents that it will, at no time, install
any underground storage tanks on the Demised Premises. A breach of this
covenant shall be deemed a default under the Lease, and Landlord shall have the
right to terminate the Lease upon the happening of such event.
C. Tenant shall, not without Landlord's prior consent, install any
window coverings, blinds, curtains, shades, except, as may be otherwise
consented to by Landlord. Tenant acknowledging that Landlord intends to have
all Tenants in the building in which the Demised Premise are located use a
uniform window treatment.
D. Tenant shall be responsible for removal of its own trash. Tenant
shall engage the services of a refuse hauler, as may be designated by Landlord.
Tenant acknowledging that for economics of scale, all Tenants in the building in
which the Demised Premises are located are to use the same refuse hauler.
E. If Tenant believes that the Landlord has unreasonably withheld
its consent and/or delayed its consent, then Tenant's sole remedy shall be to
seek a declaratory judgment. The Tenant shall have no right to seek money
damages.
F. CORPORATE AUTHORITY If Tenant is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the By-Laws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. If Tenant is a corporation, Tenant shall, within thirty (30)
days after execution of this Lease, deliver to Landlord a certified copy of a
resolution of the Board of Directors of said corporation authorizing or
ratifying the execution of this Lease.
G. Tenant in cooperation with Landlord will apply to the Planning
Board of the Borough of Totowa for a use permit. Tenant recognizes that the
procurement of the use permit is a condition precedent to Landlord obtaining a
building permit to undertake the construction contemplated to effectuate the
purposes of this Lease. This Lease is subject and contingent upon Landlord
obtaining either a temporary or permanent certificate of occupancy as otherwise
provided in paragraph 3B hereof. In the event Landlord does not obtain a use
permit, or having obtained a use permit, does not obtain a Certificate of
Occupancy, then Landlord shall notify Tenant of such fact, and thereafter this
Lease shall be void, without further liability of either party to the other
except to return to Tenant the prepaid rent, if any, and the security deposit.
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H. A portion of the premises to be demised to Tenant under the Lease
are presently occupied by Xxxx Atlanticom Systems Inc., pursuant to a lease
dated March 19, 1992 between Landlord and Xxxx Atlanticom Systems Inc. Xxxx
Atlanticom Systems Inc. has requested Landlord to terminate the aforementioned
Lease. This Lease is subject to Landlord receiving an executed Termination
Agreement upon those terms as otherwise set forth in a certain Agreement of
Termination to be entered into between Landlord and Xxxx Atlanticom Systems Inc.
I. Landlord agrees that if any space contiguous to the area demised
to the Tenant under this Lease becomes available during the lease term, and if
no other Tenant has a right or option to lease said space, then in such event,
Landlord agrees to notify Tenant of the availability of such area for lease.
Landlord's notice shall specify the terms and conditions and rental under which
Landlord will lease such space to the Tenant. Tenant shall have five (5) days
in which to respond in writing to Landlord as to whether or not Tenant is
willing to enter into a lease on the terms so specified by Landlord. Failure of
Tenant to respond in the time period as aforesaid affirmatively agreeing to
enter into a lease on Landlord's terms as specified shall be deemed a waiver of
Tenant's rights as specified in this Section 27.22. Except for Landlord's
obligation to notify Tenant as aforesaid, Landlord shall have no other
obligation to Tenant hereunder as to the provisions of this Section.
J. ALTERNATIVE DISPUTE RESOLUTION. Landlord and Tenant shall
attempt to settle any claim or controversy arising out of it through
consultation and negotiation in the spirit of mutual friendship and cooperation.
If such attempts fail, then the dispute shall first be submitted to a mutually
acceptable neutral advisor for mediation, fact-finding or other form of
alternate dispute resolution. Neither of the parties may unreasonably withhold
acceptance of such an advisor, and his or her selection will be made within
thirty (30) days after notice by the other party demanding such mediation. The
cost of such mediation or any other alternate dispute resolution agreed upon by
both parties shall be shared equally by Landlord and Tenant. Any dispute which
cannot be so resolved between the parties within sixty (60) days of the date of
the initial demand by either party for such mediation shall be finally
determined by the courts. The use of such a procedure shall not be construed to
affect adversely the rights of either party under the doctrines of laches,
waiver or estoppel. And nothing in this paragraph shall prevent either party
from resorting to judicial proceedings if (a) good faith efforts to resolve a
dispute under these procedures have been unsuccessful or (b) interim resort to a
court is necessary to prevent serious and irreparable injury to a party or to
others.
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals
or caused these presents to be signed by their proper corporate officers, and
their proper corporate seal to be hereto affixed, in the day and year first
above written.
WITNESS: 00 XXXXXXXX XXX ASSOCIATES, LANDLORD
/s/ Xxxxx Xxxxxx BY: /s/ Xxxxxxx Xxxxxx
------------------- ----------------------
ATTEST: MOTOROLA, INC., TENANT
/s/ Xxxxxx X. Xxxxx BY: /s/ Xxxxxxxx Xxxxx
-------------------- ----------------------
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EXHIBIT A
RULES AND REGULATIONS ATTACHED TO AND MADE A PART OF LEASE
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and public parts of the Property shall not be obstructed or
encumbered by Tenant or used by Tenant for any purpose other than ingress and
egress to and from the Premises. The Tenant will not use or permit to be used
the sidewalk area by motor vehicles, and will limit such vehicles to the
driveway and parking areas.
2. No awnings, air conditioning units or other projections shall be
attached to the outside walls or windowsills of the building on the Property or
otherwise project from the building.
3. The Tenant shall not erect, make or maintain on or attach or affix to
any part of the Premises including the windows and doors, any sign, picture or
other representation or advertisement or notice of any kind, without the express
written consent of the Landlord obtained in advance. Tenant shall have the
right to apply on the main entrance door to the Premises lettering of approved
type, size and style as well as company logo where applicable.
4. The windows in the Premises shall not be covered or obstructed by
Tenant, nor shall articles be placed on the windowsills or in the halls or in
any other part of the building, nor shall any articles be thrown out of the
doors or windows of the Premises.
5. Tenant shall not lay linoleum or other similar floor covering so that
the same shall come in direct contact with the floor of the Premises, and if
linoleum or other similar floor covering is desired to be used, an interlining
of builder's deadening felt shall first be fixed to the floor by a paste or
other material that may easily be removed with water, the use of cement or other
similar adhesive material being expressly prohibited.
6. Tenant shall not make, or permit to be made, any unseemly or
disturbing noises nor interfere with other tenants or those having business with
them. Tenant shall not place office machines or other equipment against walls
which divide the Premises from space leased to other Tenants.
7. No additional locks or bolts or any kind shall be placed upon any of
the doors or windows by Tenant, and Tenant shall upon the termination of this
tenancy, deliver to Landlord all keys to the Premises either furnished to, or
otherwise procured by, Tenant and in the event of the loss of any keys so
furnished, Tenant shall pay to Landlord the cost thereof.
8. Tenant shall not keep in the Premises and explosives, cleaning fluid
or any inflammable material. Tenant shall not bring or place any bed or bedding
in the Premises and shall not use the Premises and shall not use the Premises as
a lodging place.
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9. Landlord shall not be responsible to Tenant for the non-observance or
violation of any of these Rules and Regulations by any other tenants.
10. Tenant shall have the right, provided same is done in accordance with
the zoning ordinance of the municipality, to park trucks on the property along
the area wherein are located the loading docks. The Tenant shall not park
trucks in any other portion of the premises demised.
11. The Tenant shall advise Landlord, if Tenant's S.I.C. number is changed
from that otherwise indicated in paragraph 1(j).
12. Tenant agrees that Tenant will supply the names, address and telephone
numbers of at least two representatives of the Tenant who can be contacted in
the event of an emergency. Tenant will keep such "emergency list" current.
Upon notice by the Landlord to the Tenant of a breach of any of the rules and
regulations Tenant shall, within five (5) days thereafter, comply with such rule
and regulation and in the event Tenant shall not comply, then the Landlord may
at its discretion either: (1) cure such condition and add any cost and expense
incurred by the Landlord therefor to the next installment of rental due under
this Lease and the Tenant shall then pay such amount as additional rent
hereunder; or (2) treat such failure on the part of the Tenant to remedy such
condition as a material default of this Lease on the part of the Tenant
hereunder.
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