Exhibit 10.21
THIS AGREEMENT BETWEEN XXXXXXX X. XxXXXX, RESIDING AT 000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
as Landlord
and DATA PATH TECHNOLOGIES, INC., a domestic Corporation with
offices at 000 Xxxxxxxx Xxx., Xxxxxxxxxxxxx, XX 00000
as Tenant
Witnesseth: The Landlord hereby leases to the Tenant the following
premises:
The warehouse building on the westerly side of Xxxxxxxx Avenue, Pleasantville,
NY, as shown on plan annexed hereto together with use of the loading dock on the
southerly side of the building and together with the right to park over the
parking area on the southerly side of the building and also the right to park in
common with other tenants on the macadam parking area on the northerly side of
the building, as shown on the parking plan annexed hereto as Exhibit "A".
for the term of Four Years to commence from the 1st day of May 1994 and
to end on the 30th day of April, 1998 to be used and occupied only for
warehouse and storage purposes and accessory uses for the storage of
computers and related merchandise. No storage of any kind of any
chemicals or solid waste or other materials which might be considered
toxic shall be stored in or about the premiums at any time during this
lease upon the conditions and covenants following:
1st. That the Tenant shall pay the annual rent of FIFTY THOUSAND and No/100
($50,000.00) DOLLARS during the first year of the term of this lease. FIFTY-FIVE
THOUSAND and No/100 ($55,000.00) DOLLARS per annum during the second year of the
term of this lease; SIXTY THOUSAND and No/100 ($60,000.00) during the third term
of this lease; and SIXTY-FIVE THOUSAND and No/100 ($65,000.00) DOLLARS during
the fourth term of this lease.
said rent to be paid in equal monthly payments in advance on the first day of
each and every month during the term aforesaid, as follows:
Commencing May 1, 1994 $4,167.00 per month
Commencing May 1, 1995 $4,583.00 per month
Commencing May 1, 1996 $5,000.00 per month
Commencing May 1, 1997 $5,417.00 per month
2nd. That the Tenant shall take good care of the premises and shall, at the
Tenant's own cost and expense make all repairs
and at the end or other expiration of the term, shall deliver up the demised
premises in a good order or condition, damages by the elements excepted.
3rd. That the Tenant shall promptly execute and comply with all statutes,
ordinances, rules, orders, regulations and requirements of the Federal, State
and Local Governments and of any and all their Departments and Bureaus
applicable to said premises, for the correction, prevention, and abatement of
nuisances or other grievances, in, upon, or connected with said premises during
said term; and shall also promptly comply with and execute all rules, orders,
and regulations of the New York Board of Fire Underwriters, or any other similar
body, at the Tenant's own cost and expense.
4th. That the Tenant, successors, heirs, executors or administrators shall not
assign this agreement, or underlet or underlease the premises, or any part
thereof, or make any alterations on the premises, without the Landlord's consent
in writing; or occupy, or permit or suffer the same to be occupied for any
business or purpose deemed disreputable or extra-hazardous on account of fire,
under the penalty of damages and forfeiture, and in the event of a breach
thereof, the term herein shall immediately cease and determine the option of the
Landlord as if it were the expiration of the original term.
5th. Tenant must give Landlord prompt notice of fire, accident, damage or
dangerous or defective condition. If the Premises can not be used because of
fire or other casualty, Tenant is not required to pay rent for the time the
Premises unusable. If part of the Premises can not be used, Tenant must pay rent
for the usable part. Landlord shall have the right to decide which part of the
Premises is usable. Landlord need only repair the damaged structural parts of
the Premises. Landlord is not required to repair or replace any equipment,
fixtures, furnishings or decorations unless originally installed by Landlord.
Landlord is not responsible for delays due to settling insurance claims,
obtaining estimates, labor and supply problems or any other cause not fully
under Landlord's control.
If the fire or other casualty is caused by an act or neglect of Tenant,
Tenant's employees or invitees, or at the time of the fire or casualty Tenant is
in default in any term of this Lease, then all repairs will be made at Tenant's
expense and Tenant must pay the full rent with no adjustment. The cost of the
repairs will be added rent.
Landlord has the right to demolish or rebuild the Building if there is
substantial damage by fire or other casualty. Landlord may cancel this Lease
within 30 days after the substantial fire or casualty by giving Tenant notice of
Landlord's invention to demolish or rebuild. The Lease will end 30 days after
Landlord's cancellation notice to Tenant. Tenant must deliver the Premises to
Landlord on or before the cancellation date in the notice and pay all rent due
to the date of the fire or casualty. If the Lease is cancelled Landlord is not
required to repair the Premises or Building. The cancellation does not release
Tenant of liability in connection with the fire or casualty. This Section is
intended to replace the terms of New York Real Property Law Section 227.
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6th. The said Tenant agrees that the said Landlord and the Landlord's agents and
other representatives shall be to enter into and upon said premises, or any part
thereof, at all reasonable hours for the purpose of examining making such
repairs or alterations therein as may be necessary to the safety and
preservation thereof.
7th. The Tenant also agrees to permit the Landlord or the Landlord's agents to
show the premises to persons wishing to hire or purchase the same; and the
Tenant further agrees that on and after the sixth month, next preceding the
expiration of the term hereby granted, the Landlord or the Landlord's agents
shall have the right to place notices on the front of said premises, or any part
thereof, offering the premises "To Let" or "For Sale", and the Tenant hereby
agrees to permit the same to remain thereon without hindrance or molestation.
8th. That if the said premises, or any part thereof shall be deserted or become
vacant during said term, or if any default be made in the payment of the said
rent or any part thereof, or if any default be made in the performance of any of
the covenants herein contained, the Landlord or representatives may re-enter the
said premises by force, summary proceedings or otherwise, and remove all persons
therefrom, without being liable to prosecution therefor, and the Tenant hereby
expressly waives the service of any notice in writing or intention to re-enter,
and the Tenant shall pay at the same time as the rent becomes payable under the
terms hereof a sum equivalent to the rent reserved herein, and the Landlord may
rent the premises on behalf of the Tenant, reserving the right to rent the
premises for a longer period of time than fixed in the original lease without
releasing the original Tenant from any liability, applying any moneys collected,
first to the expense of resuming or obtaining possession, second to restoring
the premises to a rentable condition, and then to the payment of the rent and
all other charges due and grow due to the Landlord, any surplus to be paid to
the Tenant, who shall remain liable for any deficiency.
9th. [Text struck through.]
10th. That the Tenant shall neither encumber nor obstruct the sidewalk in front
of, entrance to, or halls and stairs of said premises, nor allow the same to be
obstructed or encumbered in any manner.
11th. The Tenant shall neither place, or cause or allow to be placed, any sign
of any kind whatsoever at, in or about the entrance to said premises or any
other part of same, except in or at such place or places as may be indicated by
the Landlord and consented to by the Landlord in writing. And in case the
Landlord or the Landlord's representatives shall deem it necessary to remove any
such sign or signs in order to paint the said premises or building or any part
thereof, the Landlord shall have the right to do so, providing the same be
removed and replaced at the Landlord's expense, whenever the said repairs,
alterations or improvements shall be completed.
12th. That the Landlord is exempt from any and all liability for any damage or
injury to person or property caused by or resulting from steam, electricity,
gas, water, rain, ice or snow, or any leak or flow from or into any part of said
building or from any damage or injury resulting or arising from any other cause
or happening whatsoever unless said damage or injury be caused by or be due to
the negligence of the Landlord.
13th. That if default be made in any of the covenants herein contained, then it
shall be lawful for the said Landlord to re-enter the said premises, and the
same to have again, re-possess and enjoy. The said Tenant hereby expressly
waives the service of any notice in writing of intention to re-enter.
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14th. That this instrument shall not be a lien against said premises in respect
to any mortgages that are now on or that hereafter may be placed against said
premises, and that the recording of such mortgage or mortgages shall have
preference and precedence and be superior and prior in lien of this lease,
irrespective of the date of recording and the Tenant agrees to execute, without
cost, any such instrument which may be deemed necessary or desirable to further
effect the subordination of this lease to any such mortgage or mortgages, and a
refusal to execute such instrument shall entitle the Landlord, or the Landlord's
assigns and legal representatives to the option of cancelling this lease without
incurring any expense or damage and the term hereby granted is expressly limited
accordingly.
15th. The Tenant has this day deposited with the Landlord the sum of $6,600 as
security for the full and faithful performance by the Tenant of all the terms,
covenants and conditions of this lease upon the Tenant's part to be performed,
which said sum shall be returned to the Tenant after the time fixed as the
expiration of the term herein, provided the Tenant has fully and faithfully
carried out all of said terms, covenants and conditions on Tenant's part to be
performed. In the event of a bona fide sale, subject to this lease, the Landlord
shall have the right to transfer the security to the vendee for the benefit of
the Tenant and the Landlord shall be considered released by the Tenant from all
liability for the return of such security; and the Tenant agrees to look to the
new Landlord solely for the return of the said security, and it is agreed that
this shall apply to ever transfer or assignment made of the security to a new
Landlord.
16th. That the security deposited under this lease shall not be mortgaged,
assigned or encumbered by the Tenant without the written consent of the
Landlord.
17th. It is expressly understood and agreed that in case the demised premises
shall be deserted or vacated, or if default be made in the payment of the rent
or any part thereof as herein specified, or if, without the consent of the
Landlord, the Tenant shall sell, assign, or mortgage this lease of if default be
made in the performance of any of the covenants and agreements in this lease
contained on the part of the Tenant to be kept and performed, of if the Tenant
shall fail to comply with any of the statutes, ordinances, rules, orders,
regulations and requirements of the Federal, State and Local Governments or of
any and all their Departments and Bureaus, applicable to said premises, or if
the Tenant shall file or there be filed against Tenant a petition in bankruptcy
or arrangement, or Tenant be adjudicated a bankrupt or make an assignment for
the benefit of creditors or take advantage of any insolvency act, the Landlord
may, if the Landlord so elects, at any time thereafter terminate this lease and
the term hereof, on giving to the Tenant five days' notice in writing of the
Landlord's intention so to do, and this lease and the term hereof shall expire
and come to an end on the date fixed in such notice as if the said date were the
date originally fixed in this lease for the expiration hereof, Such notice may
be given by mail to the Tenant addressed to the demised premises.
18th. Tenant shall pay to Landlord the rent or charge, which may, during the
demised term, be assessed or imposed for the water used or consumed in or on the
said premises, whether determined by meter or otherwise, as soon as and when the
same may be assessed or imposed, and will also pay the expenses for the setting
of a water meter in the said premises should the latter be required. Tenant
shall pay Tenant's proportionate part of the sewer, rent or change imposed upon
the building. All such rents or charges or expenses shall be paid as additional
rent and shall be added to the next month's rent thereafter to become due.
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19th. That the Tenant will not nor will the Tenant permit undertenants or other
persons to do anything in said premises, or bring anything into said premises,
or permit anything to be brought into said premises or to be kept therein, which
will in any way increase the rate of fire insurance on said demised premises,
nor use the demised premises or any part thereof, nor suffer or permit their use
for any business or purpose which would cause an increase in the rate of fire
insurance on said building, and the Tenant agrees to pay on demand any such
increase.
20th. The failure of the Landlord to insist upon a strict performance of any of
the terms, conditions and covenants herein, shall not be deemed a waiver of any
rights or remedies that the Landlord may have, and shall not be deemed a waiver
of any rights or remedies that the Landlord may have, and shall not be deemed a
waiver of any subsequent breach or default in the terms, conditions and
covenants herein contained. This instrument may not be changed, modified,
discharged or terminated orally.
21st. If the whole or any part of the demised premises shall be acquitted or
condemned by Eminent Domain or any public or quasi public use or purpose, then
and in that event, the term of this lease shall cease and terminate from the
date of title vesting in such proceeding and Tenant shall have no claim against
Landlord for the value of any unexpired term of said lease. No part of any award
shall belong to Tenant.
22nd. If after default in payment of rent or violation of any other provisions
of this lease, or upon the expiration of this lease, the Tenant moves out or is
dispossessed and fails to remove trade, fixtures or other property prior to such
said default, removal, expiration of lease, or prior to the issuance of the
final order or execution of the warrant, then and in that event, the said
fixtures and property shall be deemed abandoned by the said Tenant and shall
become the property of the Landlord.
23rd. In the event that the relation of the Landlord and Tenant may cease or
terminate by reason of the re-entry of the Landlord under the terms and
covenants contained in this lease or by the ejectment of the Tenant by summary
proceedings or otherwise, or alter the abandonment of the premises by the
Tenant, it is hereby agreed that the Tenant shall remain liable and shall pay in
monthly payments the rent which accrues subsequent to the re-entry by the
Landlord, and the Tenant expressly agrees to pay as damages for the breach of
the covenants herein contained, the difference or deficiency between the rent
herein reserved and the rent collected if any, shall become due and payable in
monthly payments during the remainder of the unexpired term, as the amounts of
such difference or deficiency shall from time to time be ascertained, and it is
mutually agreed between Landlord and Tenant that the respective parties hereto
shall and hereby do waive trial by jury in any action, proceeding or
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counterclaim brought by either of the parties against the other on any matters
whatsoever arising out of or in any way connected with this lease, the Tenant's
use or occupancy or said premises, and/or any claim of injury or damage.
24th. The Tenant waives all rights to redeem under any law of the State of New
York.
25th. This lease and the obligation of Tenant to pay rent hereunder and perform
all of the other covenants and agreements hereunder on part of Tenant to be
performed shall in nowise be affected, impaired or excused because Landlord is
unable to supply or is delayed in supplying any service expressly or impliedly
to be supplied or is unable to make, or is delayed in making any repairs,
additions, alterations or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures if Landlord is prevented or delayed from so
doing by reason of governmental preemption in connection with a National
Emergency or in connection with any rule, order or regulation of any department
of subdivision thereof of any governmental agency or by reason of the condition
of supply and demand which have been or are affected by war or other emergency.
26th. No diminution or abatement of rent, or other compensation, shall be
claimed or allowed for inconvenience or discomfort arising from the making of
repairs or improvements to the building or to its appliances, nor for any space
taken to comply with any law, ordinance or order of a governmental authority. In
respect to the various "services," if any, herein expressly or impliedly agreed
to be furnished by the Landlord to the Tenant, it is agreed that there shall be
no diminution or abatement of the rent, or any other compensation, for
interruption or curtailment of such "service" or to some other cause, not gross
negligence on the part of the Landlord. No such interruption or curtailment of
any such "service" shall be deemed a constructive eviction. The Landlord shall
not be required to furnish, and the Tenant shall not be entitled to receive, any
of such "services" during any period wherein the Tenant shall be in default in
respect of the payment to rent. Neither shall there be any abatement or
diminution of rent because of making of repairs, improvements or decorations to
the demised premises after the date above fixed for the commencement of the
term, it being understood that rent shall, in any event, commence to run at such
date so above fixed.
27th. Landlord shall not be liable for failure to give possession of the
premises upon commencement date by reason of the fact that premises are not
ready for occupancy or because a prior Tenant or any other person is wrongfully
holding over or is in wrongful possession, of for any other reason. The rent
shall not commence until possession is given or is available, but the term
herein shall not be extended.
28th. SEE RIDER ANNEXED HERETO
And the Landlord doth covenant that the said Tenant on paying the said
yearly rent, and performing the covenants aforesaid, shall and may peacefully
and quietly have, hold and enjoy the said demised premises for the term
aforesaid, provided, however, that this covenant shall be conditioned upon the
retention of tile to the premises by the Landlord.
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And it is mutually understood and agreed that the covenants and
agreements contained in the within lease shall be binding upon the parties
hereto and upon their respective successors, heirs, executors and
administrators.
In Witness Whereof, the parties have interchangeably set their hands
and seals (or caused these presents to be signed by their proper corporate
officers and caused their proper corporate seal to be hereto affiliated) this
day of March 1994.
Signed, sealed and delivered
in the presence of
L.S.
-------------------------
XXXXXXX X. XxXXXX -- LANDLORD
L.S.
-------------------------
DATA PATH TECHNOLOGIES, INC.
By: L.S
----------------------
President
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Rider to Lease Agreement between XXXXXXX X. XxXXXX, Landlord, and DATA PATH
TECHNOLOGIES, INC., as Tenant, dated March 1994.
29. In addition to the rent to be paid hereunder, Tenant shall
reimburse tot he Landlord its proportionate share of all Real
Estate Taxes and assessments above the taxes paid by the
Landlord for Calendar Year 1998. The tax base shall be
computed on the basis of the Town, School and Village Taxes,
which are due in April, June and September of 1998. The
parties agree that the current taxes allocable to the Tenant,
based upon current assessments of the property by the Town and
Village is as follows:
Town Tax - 100% Village Tax - 49.10%
The Landlord represents that the property being leased herein
consists of all the property being assessed by the Town under
a separate tax lot for the premises being rented herein, and
that the premises herein, on the Village Tax Assessment Lot,
comprises 49.10% of the value thereof, in that the Village Tax
Parcel contains property in excess of the property being
leased herein.
30. The Tenant not sublet the premises or assign this lease in
whole or in part without the Landlord's consent, in writing,
which consent shall not be unreasonably withheld. In the event
the Tenant shall sublet all or part of the premises or assign
this lease for a use which is for other than the use permitted
herein by the Tenant if a request is made to assign the lease
or sublet the premises to a party who is not a successor or
purchaser of the business enterprise being conducted by the
Tenant, then, in lieu of such approval, the Landlord shall
have the option of cancelling this lease.
31. The Landlord will furnish cold water to the demised premises
for normal lavatory use, at Tenant's expense.
32. The Tenant may, at its own expense, make nonstructural
alterations and installations to the demised premises, as the
Tenant deems necessary or desirable. In the event structural
alterations are required, the Landlord's consent to same shall
not be unreasonably withheld.
33. The premises shall be delivered to the Tenant in their "as is"
condition, except for Landlord's work to be completed as shown
on "Schedule B" annexed hereto.
34. The Tenant agrees that it shall, at its own cost and expense,
keep the demised premises insured with public liability
insurance in an approved company, satisfactory to the
Landlord, which policy shall name the Landlord as co-insured,
and shall deliver the policy to the Landlord at or before the
commencement of the term of this lease. Such limits shall not
be less than $500,000.00 injury to one person, and
$1,000,000.00 for each occurrence.
35. The Tenant shall keep the above-mentioned policy in full force
and effect during the term of this lease and shall pay all
premiums on the above-mentioned policy as the same become due,
and if the Tenant shall default in providing such policy, or
in paying the premiums thereon, the Landlord may cause said
policy to be written and/or pay the premiums thereon, and the
Tenant agrees to pay to the Landlord the amount so paid by the
Landlord, as rent with the next accruing installment of rent
hereunder.
36. The Tenant agrees to keep all of the property demised herein
in a neat and clean condition, to repair the macadam pavement
when required to keep the grass areas cut, trimmed and neat at
all times, and to maintain the loading dock now on the
premises.
37. Tenant shall be responsible for providing for its own trash
removal and shall hire a private carting company for such
purpose.
38. The landlord, within six months of the date of the
commencement of the terms of this Lease, will complete the
following repairs and perform the work as hereafter set forth.
a) The rear loading dock bumper and plate will be repaired or
replaced.
b) The rear overhead door will be replaced by Xxxxxxxx Door
Co.
c) The Landlord will install service to the building which
will consist only of a gas pipe from Xxxxxxxx Avenue to a
meter located along the northerly side of the building.
d) The Landlord shall install two to three receptacles in the
warehouse.
e) The roof shall be checked and any leaks sealed.
f) Replace one flush valve in the bathroom urinal.
g) Repair plumbing line to supply hot water in the large
bathroom.
h) Repair roof vents so that they operate.
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39. The Tenant shall have the right to terminate this Lease on
the second anniversary date, April 31, 1996; provided Tenant
gives Landlord notice of its intention to terminate this Lease
on the second anniversary date not later than December 31,
1995, which notice shall be in writing.
_______________________________________
XXXXXXX X. XxXXXX, Landlord
DATA PATH TECHNOLOGIES, INC.
_______________________________________
By: President
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