EXHIBIT 10.1
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made as of the 26th day of
________________, 1996 by and between ADVENT REALTY LIMITED PARTNERSHIP II, a
Delaware Limited Partnership ("Landlord"), and Brighton Industries Corporation
(a Delaware Corporation) ("Tenant") (the words "Landlord" and "Tenant" to
include their respective legal representatives, successors and permitted assigns
where the context requires or permits).
BASIC LEASE PROVISIONS
The following constitutes the basic provisions of this Lease. These basic
provisions are more fully described under the applicable provisions of this
Lease:
(1) Demised Premises Address: 0 Xxxxx Xxxxx, Xxxxxxxxx, XX
(2) Demised Premises Square Footage: 5,000 sf
(3) Building Square Footage: 100,000 sf
(4) Annual Base Rent:
Lease Year 1: $41,250.00 $8.25 PSF
Lease Year 2: $42,500.00 $8.50 PSF
Lease Year 3: $43,750.00 $8.75 PSF
Lease Year 4: $45,000,00 $9.00 PSF
Lease Year 5: $46,250.00 $9.25 PSF
(5) Monthly Base Rent Installments:
Lease Year 1: $3,437.50
Lease Year 2: $3,541.67
Lease Year 3: $3,645.83
Lease Year 4: $3,750.00
Lease Year 5: $3,854.17
(6) Lease Commencement Date: August 1, 1996
(7) Base Rent Commencement Date: October 1, 1996
(8) Expiration Date: July 31, 2001
(9) Term: Five (5) years
(9) Tenant's Operating Expense
Percentage of Building: 5%
(10) Security Deposit: Two months rent $6,875.00
(11) Permitted Use: General/Administrative offices, light assembly
and non-hazardous storage
W I T N E S S E T H
That Landlord, for and in consideration of the rents and all other charges and
payments hereinafter reserved and payable by Tenant, and of the covenants,
agreements, terms, provisions and conditions to be kept and performed hereunder
by Tenant, does hereby demise and lease to Tenant, and Tenant does hereby hire
and take from Landlord, the Premises described below ("Premises"), subject to
all matters hereinafter set forth and upon the subject to the covenants,
agreements, terms, provisions and conditions of this Lease for the term
hereinafter stated.
1. PREMISES. The Premises demised by this lease are approximately 5,000 square
feet located at 0 Xxxxx Xxxxx, Xxxxxxxxx, New Jersey ("Building") ,
together with a nonexclusive right to use parking and other common areas.
The location and dimensions of the Premises are shown on Exhibit "A", which
is attached hereto and incorporated herein by reference. No easement for
light or air is incorporated in the Premises.
2. TERM. The term of this Lease shall begin on the 1st day of August, 1996
and ends on the 31st day of July, 2001 at midnight, unless sooner
terminated as hereinafter provided.
3. RENT. Tenant agrees to pay Landlord by payment to office as Landlord may
designate, promptly on the first day of each month, in advance, during the
term of this Lease, a monthly rental ("Rent") in U.S. currency as follows:
YEAR MONTHLY
Year 1 $3,437.50
Year 2 3,541.67
Year 3 3,645.83
Year 4 3,750.00
Year 5 3,854.17
It is intended that the Rental provided for in this lease shall be an absolutely
net return to Landlord throughout the Term hereof, free of any expense, charge
or other deduction whatsoever, with respect to the Premises, the Building
management, maintenance, repair, rebuilding, use or occupation of any interest
of Landlord therein, except only as otherwise expressly provided in this lease.
4. RENT INCREASE. Intentionally Omitted.
5. ADDITIONAL RENT.
a. In addition to the Rent, Tenant shall pay to Landlord that percent of
the total cost of the following items ("Adjustments") as the total
floor area of the Premises bears to the total floor area of the
Building as of the first day of each calendar month.
(i) All real estate taxes and insurance premiums. Said real
estate taxes shall include all real estate taxes and
assessments that are levied upon or assessed against the
Premises, including any taxes which may be levied on rents.
Said insurance premiums shall include all insurance premiums
for fire, extended coverage, public liability, and other
insurance which Landlord deems necessary. If any tenant(s)
in the Building pay taxes directly to any taxing authority
or carry their own
2
insurance, as may be provided in their leases, the square
footage of their leased Premises shall not be included as
part of the floor area of the Building for purposes of
calculating Tenant's share of Adjustments:
(ii) All costs to maintain, repair, replace, supervise, insure
(including provision of public liability insurance) and
administer common areas, parking lots, landscaping,
sidewalks, driveways, roof covering, downspouts and gutters,
the structural portions of the roof, foundations and
exterior walls of the Building, and other areas used in
common by the tenants or occupants of the Building. Said
costs may include a reasonable administrative fee payable to
Landlord. Nothing in the foregoing sentence shall be
construed to make Tenant liable for capital improvement.
(iii) Any parking charges or other costs levied, assessed or
imposed by, or at the direction of, or resulting from
statutes or regulations, or interpretations thereof,
promulgated by any governmental authority or insurer in
connection with the use or occupancy of the Premises or the
common areas of the Building.
(iv) Management fees for the operation of the Building not to
exceed, however, any annual sum equal to four (4%) percent
of the total annual fixed rent for the Building.
b. Upon commencement of this Lease, Landlord shall submit to Tenant an
estimate of monthly Adjustments for the period between such
commencement date and the following July 1 and Tenant shall pay these
estimated Adjustments on a monthly basis concurrently with the payment
of the Rent. Tenant shall continue to make such monthly payments
until notified by Landlord of a change therein. Once annually,
Landlord shall provide to Tenant a statement showing the total
Adjustments for the prior year and Tenant's allocable share thereof,
prorated from the commencement date of this Lease during the first
year. If the total monthly payments which Tenant has made for the
prior year (or portion thereof during which the Lease was in effect)
is less than the Tenant's actual share of such Adjustments, then
Tenant shall pay the difference in a lump sum and ten (10) days after
receipt of such statement from Landlord. Any overpayment by Tenant
shall be credited towards the Adjustments next due. The actual
Adjustments for the prior year shall be used for purposes of
calculating the estimated monthly Adjustments for the current year
with actual determination of such Adjustments occurring after the end
of each calendar year, except that in any year in which resurfacing of
the common parking area or major roof repairs are planned, Landlord
may include the estimated cost of such work in the estimated monthly
Adjustments. Even though the term of this Lease has expired and
Tenant has vacated the Premises, when the final determination is made
of Adjustments for the year in which this Lease terminates, Tenant
shall immediately pay any increase over the estimated Adjustment
previously paid and, conversely, any overpayment shall be credited to
the Tenant's account.
6. PERSONAL PROPERTY TAXES. Tenant shall pay, or cause to be paid, before
delinquency any and all taxes levied or assessed and which become payable
during the term hereof upon all Tenant's leasehold
3
improvements, equipment, furniture, fixtures, and any other personal
property located on the Premises. In the event any or all of the
Tenant's leasehold improvements, equipment, furniture, fixtures and
other personal property shall be assessed and taxed with the real
property, Tenant shall pay to Landlord its share of such taxes within
ten (10) days after delivery to Tenant by Landlord of a statement in
writing setting forth the amount such tax is applicable to Tenant's
property.
7. UTILITY BILLS. Tenant shall promptly pay all water, sewer, gas,
electricity, fuel, phone, light, heat, electric power and other utility
bills from the Premises. If Tenant does not pay these bills, Landlord may
pay them and such payment shall be added to the Rent.
8. LATE CHARGES. Tenant hereby acknowledges that late payment to Landlord of
Rent or other sums due hereunder will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. If any Rent or other sums due from Tenant is not
received by Landlord or Landlord's designated agent within ten (10) days
after its due date, then Tenant shall pay to Landlord a late charge equal
to the maximum amount permitted by law (and in the absence of any governing
law, two percent (2%) of such overdue amount) , plus reasonable attorneys'
fees incurred by Landlord due hereunder. The parties hereby agree that
such late charges represent a fair and reasonable estimate of the cost that
Landlord will incur by reason of Tenant's late payment. Landlord's
acceptance of such late charges shall not constitute a waiver of Tenant's
default with respect to such overdue amount or estop Landlord from
exercising any of the other rights and remedies granted hereunder.
9. SECURITY DEPOSIT. Concurrently with Tenant's execution of this Lease,
Tenant has deposited with Landlord $6,875.00. Said sum shall be held by
Landlord as security for the faithful performance by Tenant of all the
terms, covenants, and conditions of this Lease to be kept and performed by
Tenant during the term hereof. If Tenant defaults with respect to any
provisions of this Lease, including, but not limited to, the provisions
relating to the payment of Rent, Landlord may (but shall not be required
to) use, apply or retain all or any part of this security deposit for the
payment of any Rent or any other sum in default, or for the payment of any
amount which Landlord may spend or become obligated to spend by reason of
Tenant's default, or to compensate Landlord for any other loss or damage
which Landlord may suffer by reason of Tenant's default. If any portion of
said security deposit is so used or applied, Tenant shall, within ten (10)
days after written demand therefor, deposit cash with Landlord in any
amount sufficient to restore the security deposit to its original amount
and Tenant's failure to do so shall be a default under this Lease.
Landlord shall not be required to keep this security deposit separate from
its other funds, and (unless otherwise required by law) Tenant shall not be
entitled to interest of such deposit. If Tenant shall fully and faithfully
perform every provision of this Lease to be performed by it, the security
deposit or any balance thereof shall be returned to Tenant (or, at
Landlord's option, to the last assignee of Tenant's interest hereunder)
within ten (10) days following expiration of this Lease term. In the event
of termination of Landlord's interest in this Lease, Landlord shall
transfer said deposit to Landlord's successor in interest,
4
10. USE OF PREMISES.
a. The Premises shall be used for general/Administrative offices, light
assembly and non-hazardous storage. Tenant shall not create any
nuisance or trespass or vitiate the insurance or increase the rate of
insurance on the Premises or the Building. Tenant agrees not to
overload the floor(s) of the Premises or the Building. Tenant agrees
not to use the Premises for any purpose or business which is illegal,
noxious, offensive because of emission of noise, creates smoke, dust,
or odors or which could damage the Building or the Lands
environmentally or otherwise or be a nuisance or menace to or
interfere with any other tenant or the public.
b. Simultaneously herewith, Tenant shall furnish Landlord with all
Standard Industrial Classification numbers as issued by the United
States, the State of New Jersey or any other governmental authority
("SIC,,), which relates to the business of the Tenant and the uses and
purposes for which the Premises shall be utilized, together with all
additions and/or amendments thereto, prior to creating any such
addition or amendment. Landlord, within thirty (30) days following
receipt of notice of any addition or amendment thereto, shall have the
right to refuse to permit such change or addition in use and/or in SIC
and upon notification to tenant of such refusal, Tenant shall not have
the right to effect such changes or addition. Tenant's SIC number is
_______.
11. ABANDONMENT OF PREMISES. Tenant agrees not to abandon the Premises during
the term of this Lease and agrees to use said Premises for the purposes
stated above and only for such purpose.
12. DESTRUCTION AND DAMAGE.
a. If the Building is damaged by fire or other perils covered by extended
coverage insurance Landlord shall, at Landlord's option:
(i) In the event of total destruction of the Building, elect
either to promptly commence repair and restoration of the
Building and prosecute the same diligently to completion, in
which event this Lease shall remain in full force and
effect; or not to repair or restore said Building, in which
event this Lease shall terminate. In either case, Landlord
shall give Tenant written notice of its intention within
sixty (60) days after the occurrence of such destruction.
If Landlord elects not to restore the building, this Lease
shall be deemed to have terminated as of the date of such
total destruction.
(ii) In the event of a partial destruction of the Building to an
extent not exceeding twenty-five percent (25%) of the full
insurable value thereof and if the damage thereto is such
that the Building may be repaired or restored within ninety
(90) days from the date of such destruction and Landlord
will receive insurance proceeds sufficient to cover the cost
of such repairs, commence and proceed diligently with the
work or repair and restoration, in which event the Lease
shall continue in full force and effect; or if such repair
and restoration requires longer than ninety (90) days or the
cost
5
thereof exceeds twenty-five percent (25%) of the full
insurable value thereof or if said insurance proceeds will
not be sufficient to cover such costs, Landlord may elect
either to so repair and restore, in which event the Lease
shall continue in full force and effect, or not repair,
reconstruct or restore, in which event the Lease shall
terminate. In either case, Landlord shall give written
notice to Tenant of its intention within ninety (90) days
after the destruction occurs. If Landlord elects not to
restore the Building, this Lease shall be deemed to have
terminated as of the date of such partial destruction.
b. Upon termination of this Lease under any of the provisions of this
Article, the parties shall be released thereby without further
obligation to the other from the date of the damage or destruction,
except for items which have theretofore accrued and are then unpaid.
c. In the event of repair and restoration as herein provided, the Rent
shall be abated proportionately in the ratio which the Tenant's use of
the Premises is impaired during the period of such repair,
reconstruction or restoration. Tenant shall not be entitled to any
compensation or damages from loss of use of the whole or any part of
said Premises and/or any inconvenience or annoyance occasioned by such
damage, repair, reconstruction or restoration.
d. Tenant shall not be released from any of its obligations under this
Lease except to the extent and upon the conditions expressly stated in
this Article. Notwithstanding anything to the contrary contained in
this Article, if Landlord has elected to repair and restore the
Premises and is thereafter delayed or prevented from repairing and
restoring said Premises within one (1) year after the occurrence of
such damage or destruction by reason of acts of God, war, governmental
restrictions, inability to procure the necessary labor or materials,
or other cause beyond the control of Landlord, Landlord shall be
relieved of its obligation to make such repairs or restoration and, at
Landlord's option, Tenant shall be released from its obligations under
this Lease as of the end of said one (1) year period.
e. If damage to the Building or the Premises is due to any cause other
than fire or other peril covered by extended coverage, insurance,
Landlord or Tenant may elect to terminate this Lease.
f. If Landlord is obligated to or elects to repair or restore as herein
provided, Landlord shall repair or restore only those portions of said
Building and Premises which were originally provided at Landlord's
expense, and the repair and restoration of areas or items not provided
at Landlord's expense shall be the obligation of Tenant.
g. Notwithstanding anything to the contrary contained in this article,
Landlord shall not have any obligation to repair or restore the
Premises or the Building during the last twelve (12) months of this
Lease or any extension thereof. If Landlord elects not to restore the
Building, this Lease shall be deemed to have terminated as of the date
of such partial destruction.
6
13. CONDEMNATION. If twenty-five percent (25%) or more of the Premises is taken
for any public or quasi-public purpose by any lawful governmental power or
authority, by exercise or the right of appropriation, reverse condemnation,
condemnation or eminent domain or sold to prevent such taking, the Tenant
or the Landlord may at its option terminate this Lease as of the effective
date thereof, Tenant shall not because of such taking assert any claim
against the Landlord or the taking authority for any compensation because
of such taking, and Landlord shall be entitled to receive the entire amount
of any award without deduction for any estate or interest of Tenant. If
less than twenty-five percent (25%) of the Premises is taken, Landlord at
its option may terminate this Lease. If Landlord does not so elect,
Landlord shall promptly proceed to restore the Premises to substantially
their same condition prior to such partial taking, allowing for the
reasonable effects of such taking, and a proportionate allowance shall be
made to Tenant for the Rent and Additional Rent corresponding to the time
during which, and to the part of the Premises of which, Tenant is deprived
on account of such taking and restoration.
14. INDEMNIFICATION BY TENANT. Tenant agrees, as its sole cost and expense, to
indemnify and save Landlord harmless from and against any and all claims,
actions, demands and suits, for, in connection with, or resulting from, any
accident, injury or damage whatsoever caused to any person or property
arising, directly or indirectly, in whole or in part, out of the business
conducted in or the use of the Premises, or occurring in, on or about the
Premises or any part thereof, or arising, directly or indirectly, in whole
or in part, from any act or omission of Tenant or any concessionaire or
subtenant or their respective licensees, servants, agents, employees or
contractors, or arising out of the breach or default by Tenant or any term,
provisions, covenant or condition herein contained, and from and against
any and all losses, costs, expenses, judgments and liabilities incurred in
connection with any claim, action, demand, suit or other proceeding brought
thereof, except for any loss or damage caused by negligence of the
Landlord, its employees and agents. Said indemnity shall include defending
or resisting and proceeding by attorneys reasonably satisfactory to
Landlord.
15. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and keep in
force during the term of this Lease a policy of comprehensive public
liability insurance insuring Landlord and Tenant against any liability
arising out of the ownership, use, occupancy, or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be in the
amount of not less than Three Million Dollars ($3,000,000) for injury or
death of one person in any one accident or occurrence and in the amount of
not less than Three Million Dollars ($3,000,000) for injury or death of
more than one person in any one accident or occurrence. Such insurance
shall further insure Landlord and Tenant against liability for property
damage of at least Three Million Dollars ($3,000,000). The limit of any
such insurance shall not limit the liability of the Tenant hereunder.
Tenant may provide this insurance under a blanket policy, provided that
said insurance shall have a Landlord's Agent protective liability
endorsement attached thereto. If Tenant fails to procure and maintain said
insurance, Landlord may, but shall not be required to, procure and maintain
same, but at the expense of Tenant. Insurance required hereunder shall be
in companies rated A:XIII or better in "Best Key Rating Guide". Tenant
shall deliver to Landlord copies of certificates of insurance evidencing
the liability insurance required herein with loss payable clauses
reasonably Satisfactory to Landlord. No policy shall be cancelable
7
or subject to reduction of coverage. All such policies shall name Landlord
and Xxxxxxxx Associates, Inc. as additional insured, shall be written
primary policies not contributing with and not in excess of coverage which
Landlord may carry and shall be written with an insurance carrier
satisfactory to Landlord.
16. FIRE INSURANCE - FIXTURES AND EQUIPMENT. Tenant shall maintain in full
force and effect on all of its fixtures and equipment on the Premises a
policy or policies of fire and extended coverage insurance with standard
coverage endorsement in amount or amounts equal to the full replacement
cost of such fixtures and equipment. During the term of this Lease the
proceeds from any such policy or policies of insurance shall be used for
the repair or replacement of the fixtures and equipment so insured.
Landlord shall have no interest in the insurance upon Tenant's equipment
and fixtures and will sign all documents reasonably necessary or proper in
connection with the settlement of any claim or loss by Tenant. Landlord
will not carry insurance on Tenant's possessions. Tenant shall furnish
Landlord with a certificate evidencing such policy and whenever required
shall satisfy Landlord that such policy is in full force and effect.
17. REPAIRS BY LANDLORD. Landlord agrees to keep in good repair the structural
portions of the roof, foundations, and exterior walls of the Premises
(exclusive of all glass and all exterior doors) and underground utility and
sewer pipes outside the exterior walls of the Building, if any, except
repairs rendered necessary by the negligence of Tenant, its agents,
customers, employees or invitees. Landlord gives to Tenant exclusive
control of the Premises and shall be under no obligation to inspect said
Premises. Tenant shall promptly report in writing to Landlord any
defective condition known to it which Landlord is required to repair.
18. REPAIRS BY TENANT. Except for renovations to be provided by Landlord prior
to occupancy, as set forth on Exhibit B and Exhibit C attached hereto,
Tenant represents that it accepts the Premises in their present condition
and as suited for the uses intended by Tenant. Tenant shall, throughout
the initial term of this Lease and all renewals thereof, at its expense,
take good care of the Premises and shall keep repair, replace and maintain
the Premises in good order, condition and repair, reasonable wear and tear
excepted, and each and every part thereof (including, without limitation,
painting and decorating, and the repair, maintenance and replacement of any
heating, ventilating and air conditioning. units or system) , except only
such matters that are expressly stated herein to be within the Landlord's
obligation to maintain, and shall not cause nor permit any dirt, debris or
rubbish to be put, placed or maintained on the sidewalks, driveways,
parking lots, yards, entrances and curbs, in, on or adjacent to the
Building. Tenant further agrees not to use the Premises or permit the
Premises to be used in any manner as to cause excessive depreciation of or
to the Building and improvements, and agrees not to cause nor permit waste
of or damage or nuisance to, in, or about the Premises of the Building.
19. NO ACCESS TO ROOF. Tenant shall have no right to access to the roof of the
Premises or the Building and shall not install, repair, place or replace
any aerial, fan, air conditioner or other device on the roof of the
Premises or the Building without the prior written consent of Landlord.
Any aerial, fan, air conditioner or device installed without such written
consent shall be subject to removal at Tenant's expense, without notice, at
any time. Landlord shall repair at Tenant's expense, any damage to the
Building or roof
8
resulting from the installation, repair, use, or replacement or any such
air conditioner or other device.
20. ASSIGNMENT AND SUBLETTING. Tenant shall not either voluntarily, or by
operation of law, assign, transfer, mortgage, pledge, hypothecate or
encumber this Lease or any interest therein, and shall not sublet the
Premises or any part thereof, or any right or privilege appurtenant
thereto, or allow any other person (the employees, agents, servants and
invitees of Tenant excepted) to occupy or use their Premises, or any
portion thereof, without first obtaining the written consent of Landlord,
which consent shall not be unreasonably withheld, Tenant can transfer its
rights to this Lease to a related entity provided Tenant owns in excess of
51% of the entity. when Tenant requests Landlord's consent to such
assignment or subletting, it shall notify Landlord in writing of the name
and address of the proposed assignee or subtenant and the nature and
character of the business of the proposed assignee or subtenant and shall
provide financial statements for the proposed assignee or subtenant.
Landlord shall have the option (to be exercised within fifteen (15)
business days from the submission of Tenant's request) to cancel this Lease
as of the commencement date stated in the proposed sublease or assignment.
If Landlord shall not exercise its option within the time set forth above,
its consent to any proposed assignment or subletting shall not be
unreasonably withheld. if Landlord approves an assignment or subletting as
herein provided, Tenant shall pay to Landlord, as Additional Rent, the
difference, if any, between Rent plus Additional Rent allocable to that
part of the Premises affected by such assignment or sublease pursuant to
the provisions of this Lease, and the Rent and Additional Rent payable by
the assignee or sublessee to Tenant, less reasonable expenses actually
incurred by Tenant related to the sublease or assignment to include
attorney fees, brokerage commission and construction costs as evidenced by
receipted bills. A consent to one assignment, subletting, occupation or
use shall not be deemed to be a consent to any other or subsequent
assignment, subletting, occupation or use and consent to any assignment or
subletting shall in no way relieve Tenant of any liability under this
Lease. Any assignment or subletting without Landlord's consent shall be
void, and shall, at the option of the Landlord, constitute a default under
this Lease. In the event that Landlord shall consent to a sublease or
assignment hereunder, Tenant shall pay Landlord's reasonable fees, not to
exceed one hundred dollars per transaction, incurred in connection with
processing of documents necessary to the giving of such consent.
21. TENANT DEFAULT. The occurrence of any one of the following events shall
constitute an event of default ("Default") on the part of Tenant:
a. The abandonment of the Premises by Tenant;
b. Failure to pay any installment of Rent or any other monies due and
payable hereunder;
c. Default in the performance of any of Tenant's covenants, agreements or
obligations hereunder, said Default (except Default in the payment of
any installment of Rent, or other monies) continuing for ten (10) days
after written notice thereof from Landlord to Tenant. If effort is
made to cure default but such effort is not completed within the ten
(10) days provided for above, then Tenant shall have an additional
fifteen (15) days to cure same.
9
d. The filing of a voluntary petition in bankruptcy by Tenant, the filing
of a voluntary petition for any arrangement, the filing of a petition,
voluntary or involuntary, for reorganization, or the filing of an
involuntary petition by Tenant's creditors, said involuntary petition
remaining undischarged for a period of sixty (60) days; unless tenant
continues to pay rent.
e. Receivership, attachment, or other judicial seizure of substantially
all of Tenant's assets on the Premises, such attachment or other
seizure remaining undismissed or undischarged for a period of sixty
(60) days after the levy thereof.
22. LANDLORD'S REMEDIES.
a. DAMAGES. In the event of any such Default by Tenant, then in addition
to any other remedies available to Landlord at law or in equity,
Landlord shall have the immediate option to terminate this Lease and
all rights of Tenant hereunder by giving written notice to such
intention to terminate. In the event that Landlord shall elect to so
terminate this Lease then Landlord may recover from Tenant:
i. the worth at the time of award of any unpaid Rent which has been
earned at the time of such termination; plus
ii. the worth at the time of award of the amount by which the unpaid
Rent which would have been earned after termination until the
time or award exceeds the amount of such rental loss Tenant
proves could have been reasonably avoided; plus
iii. the worth at the time of award of the amount by which the unpaid
Rent for the balance of the Term after the time of award exceeds
the amount of such rental loss that Tenant proves could be
reasonably avoided; plus
iv. any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform his
obligation under this Lease of which in the ordinary course of
things would be likely to result therefrom; plus
v. such reasonable attorney's fees incurred by Landlord as a result
of such Default, and costs in the event suit is filed by Landlord
to enforce such remedy; and
vi. at Landlord's election, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by
applicable law, The term "Rent", as used in this Article 22,
shall be deemed to be and to mean the monthly Rent, Additional
Rent and all other sums required to be paid by Tenant pursuant to
the terms of this Lease.
As used in Subparagraphs i and ii above, the "worth at the time
of award" is computed by allowing interest at the rate of the
Federal Reserve Bank of New York at the time of award plus one
percent (1%).
10
b. RE-ENTRY. In the event of any such default by Tenant, Landlord shall
also have the right, with or without terminating this Lease, to
reenter the Premises and remove all persons and property from the
Premises; such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Tenant.
c. ELECTION. In the event of the vacation or abandonment of the Premises
by Tenant or in the event that Landlord shall elect to re-enter as
provided in Paragraph b. above or shall take possession of the
Premises pursuant to legal proceeding or pursuant to any notice
provided by law, then if Landlord does not elect to terminate this
Lease as provided in Paragraph (a) above, Landlord may from time to
time, without terminating this Lease, either recover all Rent as it
becomes due or relet the Premises or any part thereof for such term or
terms and at such rental or rentals and upon such other terms and
conditions as Landlord in its sole discretion may deem advisable with
the right to make alterations and repairs of the Premises.
In the event that Landlord shall elect to so relet, then rentals
received by Landlord from such reletting shall be applied, first, to
reasonable attorney's fees incurred by Landlord as a result of such
Default and costs in the event suit is filed by Landlord to enforce
such remedies; second, to the payment of any indebtedness other than
Rent due hereunder from Tenant to Landlord; third, to the payment of
any cost of such reletting; fourth, to the payment of cost of any
alterations and repairs to the Premises; fifth, to the payment of Rent
due and unpaid hereunder; and the residue, if any, shall be held by
Landlord and applied in payment of future rent as the same may become
due and payable hereunder. Should that portion of such rentals
received from such reletting during any month, which is applied by the
payment of Rent hereunder, be less than the Rent payable during the
month by Tenant hereunder, then Tenant shall pay such deficiency to
Landlord. Such deficiency shall be calculated and paid monthly.
Tenant shall also pay to Landlord, as soon as ascertained, any costs
and expenses incurred by Landlord in such reletting or in making such
alterations and repairs not covered by the rentals received from such
reletting.
d. TERMINATION. No re-entry or taking of possession of the Premises by
Landlord pursuant to this Article shall be construed as an election to
terminate this Lease unless a written notice of such intention is
given to Tenant or unless the termination thereof is decreed by a
court of competent jurisdiction. Notwithstanding any reletting
without termination of Landlord because of any Default by Tenant,
Landlord may at any time after such reletting elect to terminate this
Lease for any such Default.
23. SUBORDINATION -- ATTORNMENT. Upon request of Landlord, Tenant will in
writing subordinate its rights hereunder to the lien of any mortgage or
deed of trust now or hereafter in force against the Premises, provided the
holder of such mortgage or deed of trust grants tenant a non-disturbance
agreement, and to all advances made or hereafter to be made upon the
security thereof.
In the event any proceedings are brought for foreclosure, or in the event
of the exercise of the power of sale under any mortgage or
11
deed of trust made by the Landlord covering the Premises, the Tenant shall
attorn to the purchaser upon any such foreclosure or sale and recognize
such purchaser as the Landlord under this Lease.
The provisions of this Article to the contrary notwithstanding, and so long
as Tenant is not in default hereunder, this Lease shall remain in full
force and effect for the full term hereof.
24. ALTERATIONS AND ADDITIONS REMOVAL OF FIXTURES.
a. Tenant shall not make or allow to be made any alterations, additions
or improvements to or on the Premises or any part thereof without
first obtaining the written consent of Landlord, which consent shall
not be unreasonably withheld and any alterations, additions or
improvements to or on said Premises, including, but not limited to,
wall covering, paneling and built-in cabinet work, but excepting
movable furniture and trade fixtures, shall at once become a part of
the realty and belong to the Landlord and shall be surrendered with
the Premises. In the event any such work shall cost in excess of Ten
Thousand ($10,000) Dollars, such work shall not be commenced until
Tenant shall submit to the Landlord plans and specifications relating
to any such repairs, alterations, additions or improvements, and all
such work shall be performed in accordance with the provisions of this
lease. Landlord shall not unreasonably withhold its consent to any
such alterations, addition or improvement, but shall have the right to
determine if such work would reduce the value, size or general utility
of the Building or any portion thereof, or whether such work maintains
the architectural harmony of the Building. Any approval by Landlord
as aforesaid may be upon condition thereof and payment therefor, as
Landlord may reasonably require, including the furnishing of adequate
security. In the event Landlord consents to the making of any
alterations, additions or improvements to the Premises by Tenant, the
same shall be made by Tenant at Tenant's sole cost and expense and
subject to the provisions of Section 42 herein. Upon the expiration
or sooner termination of the term hereof, Tenant shall, upon written
demand by Landlord, given at least thirty (30) days prior to the end
of the term, at Tenant's sole cost and expense, forthwith and with all
due diligence, remove any alterations, additions, or improvements made
by Tenant, designated by Landlord to be removed, and Tenant shall,
forthwith and with all due diligence, at its sole cost and expense,
repair any damage to the Premises caused by such removal.
b. Any work performed by Tenant, irrespective of cost, shall be subject
to the Landlord's inspection and approval after completion to
determine whether it complies with the requirements of this lease.
The approval or consent of the Landlord shall not relieve Tenant of
its obligation that all such repairs, alterations, improvements and/or
additions be constructed and performed in a first-class good and
workmanlike manner and in accordance with all applicable governmental
and fire underwriting requirements, nor constitute a waiver of any
rights of Landlord if Tenant fails to perform its obligations.
Tenant, at its sole cost and expense, shall procure all necessary
governmental approvals, permits or certificates in connection with all
work performed by Tenant in, on or at the Premises and shall deliver
the
12
original of all such approvals, permits or certificates to the
Landlord, to be retained by Landlord.
c. During the course of any and all repairs, alterations, additions or
improvements which the Tenant shall either be required to perform or
which the Tenant shall elect to perform, Tenant at its sole cost and
expense, shall at all times obtain and maintain or cause to be
obtained and maintained, workmen's compensation insurance and any
other insurance which shall then be required by law, together with
public liability insurance as set forth in Section 15 hereof, to
insure against any additional hazards created in connection with the
performance of any of the aforesaid work. Prior to the commencement
of any such work, Tenant shall deliver to Landlord copies of all
policies or certificates of insurance with respect to all policies
required pursuant to this Section 24(c).
25. EXTERIOR SIGNS. Tenant may not provide, install or maintain any exterior
signs on the roof or in the windows; nor shall the Tenant, provide, install
or maintain any exterior signs on the facade or walls of the Building or on
any grounds adjacent thereto, unless: (1) such installation be made in such
manner as will not affect any roofing bond and/or other guarantee which
shall then be in force and effect; (ii) all such signs shall have been
approved by Landlord in writing before installation; and (iii) all such
signs must at all times conform to all applicable rules and regulations,
codes and ordinances of any governmental agencies having jurisdiction
thereover. Any and all signs placed on the Premises by Tenant shall comply
with Landlord's rules and regulations governing such signs and Tenant shall
be responsible to Landlord for any damage caused by installation, use, or
maintenance of such signs. Tenant agrees upon removal of said signs to
repair all damage incident to such removal.
26. ENTRY FOR CARTING AND REPAIRS.
a. Landlord and its designees shall have the right to place and maintain
all utility equipment of any kind in and on the Premises as may be
necessary or desirable to serve the Building or any portion thereof.
If the space should be reduced, the Rent and Adjustments will be
reduced in an amount equal to the percentage that the lost space bears
in relation to the entire building. Landlord and its designees shall
have the right to enter upon the Premises at all reasonable hours (and
in emergencies at all times): (i) to inspect the same; (ii) to make
repairs, additions or alterations to and/or to complete initial
construction of, the Premises and/or to the Building or to prevent
waste or depreciation thereof; (iii) to post "For Sale" signs on the
Premises and to exhibit the Premises to any prospective purchaser or
mortgagee; or (iv) for any other lawful purpose. This paragraph shall
not be deemed to be a covenant by Landlord nor be construed to create
an obligation or duty on the part of the Landlord to make such
inspection, repairs, additions or alterations except as otherwise
herein provided. Any performance by Landlord hereunder shall not be
deemed a waiver of Tenant's default in failing to perform same, nor
shall Landlord be liable for any inconvenience disturbance, loss of
business, loss of use of the Premises or any other damage suffered by
Tenant, due to said performance by Landlord and the obligations of
Tenant pursuant to this lease shall not thereby be affected in any
manner whatsoever. Landlord agrees to exercise due care to
13
cause the least possible interference with Tenant's business, but
Landlord shall not be required to employ labor on weekends or on any
overtime basis to avoid or reduce any such interference.
b. For a period commencing one hundred eighty (180) days prior to the end
of the Term, Landlord and its designees shall have reasonable access
to the Premises for the purpose of exhibiting the same to prospective
tenants.
c. Landlord shall have the right to carry material in and on the Premises
and to perform work in or on the Premises pursuant to the provisions
of this lease, without the same constituting an actual or constructive
eviction to Tenant, in whole or in part, without the same permitting
any rent reduction or abatement and without the Tenant having the
right to assert any claim for damages to the Tenant's tangible
property or injury or death to persons. In no event shall the
Landlord be liable for any inconvenience, disturbance, loss of
business, loss of use of the Premises or any consequential damages
which Tenant may suffer.
27. MORTGAGEE'S RIGHTS. Tenant's rights shall be subject to any mortgage or
deed of trust to secure debt which is now, or may hereafter be, placed upon
the Premises by Landlord. Tenant agrees to give any mortgagee and/or trust
deed holder, by registered mail, a copy of any notice of default served
upon the Landlord, provided that prior to such notice Tenant has been
notified, in writing (by way of notice of assignment of rents and leases,
or otherwise), of the address of such mortgagee(s) and/or trust deed
holder(s). Tenant further agrees that if Landlord shall have failed to
cure such default within the time provided for in this Lease, then the
mortgagee and/or trust deed holder shall have an additional thirty (30)
days within which to cure such default or if such default cannot be cured
within that time, then such additional time as may be necessary if within
such thirty (30) days, any mortgagee and/or trust deed holder has commenced
and is diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings, if
necessary to effect such cure), in which event this Lease shall not be
terminated while such remedies are being so diligently pursued.
28. END OF TERM. Tenant agrees to promptly vacate the Premises at the
conclusion of the term of the Lease and to leave such Premises broom clean,
free of all debris, waste(s) and by-products, and in an environmentally
safe (in Landlord's reasonable opinion) condition, in compliance with all
governmental laws, rules, orders, and regulations. Landlord may, at its
option, retain an environmental or engineering consultant or consulting
firm to verify Tenant's compliance with this provision, and Tenant agrees
to (1) provide access and reasonable assistance to such consultant or
consulting firm at the Premises, (2) implement the recommendation of such
consultant or consulting firm, promptly upon Landlord's request therefor.
Except for Tenant's initial build-out as per Exhibit B attached hereto,
should Landlord desire to have the Premises or any part thereof restored to
the condition in which they were originally delivered to Tenant, Landlord
shall so notify Tenant in writing no less than thirty (30) days prior to
the end of the Term. In the event Landlord shall so desire, then Tenant,
prior to the end of the Term at its sole cost and expense shall so restore
the Premises, additions and improvements as may be requested by Landlord,
and fix and repair any and all damage or defacement to the Building and/or
14
lands caused by the installation and/or removal of alterations, additions,
improvements, furniture, equipment, trade fixtures or any other property.
Any and all of such property, alterations, additions or improvements not so
removed, at Landlord's option, shall become the exclusive property of
Landlord and be disposed of by Landlord, at Tenant's cost and expense,
without further notice or demand. If the Premises be not surrendered as
and when aforesaid, Tenant shall indemnify Landlord against any damages,
loss or liability resulting therefrom, including, without limitations, any
claims made by any succeeding occupant founded on such delay. Tenant's
obligation under this paragraph shall survive the expiration or sooner
termination of the Term.
29. NO ESTATE IN LAWS. This Lease shall create the relationship of Landlord
and Tenant between the parties hereto; no estate shall pass out of
Landlord. Tenant has only a usufruct, not subject to levy and sale, and
not assignable by Tenant except with Landlord's prior written consent.
30. HOLDING OVER. If Tenant remains in possession of the Premises after
expiration of the term hereof, without the express written consent of
Landlord, Tenant's occupancy shall be a tenancy from month to month at 150%
of the Rent in effect for the last month of the term of this Lease, plus
all other charges payable hereunder, and upon the same terms and conditions
herein contained. In no event, however, shall Tenant be relieved of any
liability to Landlord for damages resulting from such holding over.
31. HOMESTEAD RIGHTS. Tenant waives all homestead rights and exemptions which
it may have under any law as against any obligation owing under this Lease.
Tenant hereby assigns to Landlord its homestead and exemption.
32. SALE OF PREMISES BY LANDLORD. In the event of any sale of the Premises by
Landlord, Landlord shall be and is hereby entirely freed and relieved of
all liability under any and all of its covenants and obligations contained
in or derived from this Lease arising out of any act, occurrence or
omission occurring after the consummation of such sale; and the purchaser,
at such sale or any subsequent sale of the Premises shall be deemed,
without any further agreement between the parties of their successors in
interest or between the parties and any such purchaser, to have assumed and
agreed to carry out any and all of the covenants and obligations of the
Landlord under this Lease.
33. RULES AND REGULATIONS.
a. Tenant agrees to comply with such reasonable rules and regulations as
Landlord may adopt from time to time for the orderly and proper
operation of the Building and parking and other common areas. Such
rules may include but shall not be limited to the following: (1) the
restriction of employee parking to a limited, designated area or
areas; and (2) regulation of the removal, storage and disposal of
Tenant's refuse and other rubbish at the sole cost and expense of
Tenant. The rules and regulations shall be binding upon Tenant upon
delivery of a copy of them to Tenant. Landlord shall not be
responsible to Tenant for the nonperformance of any of said rules and
regulations by any other tenants or occupants of the Building.
Landlord agrees to enforce the rules and regulations in a
nondiscriminatory manner.
15
b. Tenant agrees at all times during the Term hereof, and at its sole
cost and expense:
i. not to take or permit any action which would violate Landlord's
union contracts, if any, affecting the Building or the Premises,
or which would create any work stoppage, picketing, labor
disruption or any work performed or to be performed by Landlord
or any other persons in or about the Building, or which would
hinder the activities or operations of the Landlord in bringing
about the cessation of any work stoppage, picketing or other
labor disruption or dispute affecting the Building or any work
being performed or to be performed in or about the Building;
ii. to pay promptly and when due, all taxes, licenses, fees,
assessments or other charges levied or imposed upon the business
of Tenant or upon any fixtures, furnishings or equipment in, on
or at the Premises;
iii. not to commit any waste or nuisance, nor use the plumbing
facilities for any purpose injurious to same or dispose of any
garbage or any foreign substance therein, nor place a load on any
floor in the Premises exceeding the floor load per square foot
which such floor was designed to carry, nor install, operate
and/or maintain in the Premises any heavy equipment except in a
location approved by Landlord, not install, operate and/or
maintain in the Premises any electrical equipment which will
overload the electrical system therein, or any part thereof,
beyond its capacity for proper and safe operation as determined
by Landlord or which does not have Underwriter's approval; or
which would require any plan and/or bond to be furnished or which
would require any work to be performed in order to cure and/or
correct any condition created by Tenant, pursuant to any
applicable governmental law or requirement;
iv. to keep the Premises in a neat, clean, orderly and sanitary
condition, free of any insects, rodents, vermin and pests of
every type and kind;
v. not to use the Premises for any purpose or business which is
illegal, noxious, offensive because of the emission of noise,
smoke, dust or odors or which could damage the Building or be a
nuisance or menace to or interfere with, any other tenants or the
public;
vi. to comply with all requirements of all suppliers of public
utility services to the Building and not to suffer or permit any
act or omission the consequence of which could be to cause the
interruption, curtailment, limitation or cessation of any utility
service to the Building;
vii. Simultaneously herewith, and thereafter upon the request of
Landlord, Tenant agrees to deliver to Landlord a written
statement detailing all processes, functions, procedures and
other methods of operation used at the Premises, a description of
all materials stored at the Premises, and any changes,
modifications or amendments thereto;
viii. Tenant further agrees to properly and accurately label and
segregate all materials stored at the Premises. At all
times during the Term hereof, and upon the termination of
the Term hereof , Tenant shall comply with all applicable
environmental protection laws, rules or requirements, and
shall promptly cure all violations
16
thereof arising from its non-compliance including but not
limited to, the preparation, delivery and/or filing with the
applicable governmental authorities and with the Landlord, or
all forms, certificates, notices, documents, plans and other
writings, and the furnishing of such other information as may
be required or requested by the Landlord, its mortgagee or any
applicable governmental authority in connection with
compliance or curing of any applicable requirement or in
connection with the sale, lease, transfer, mortgaging or other
disposition of the Building and/or Lands. It is specifically
acknowledged and agreed that the provisions of this
sub-paragraph shall survive the termination of the lease,
regardless of the reason or cause thereof.
c. No abatement, diminution or reduction of the Rental or other charges
required to be paid by Tenant pursuant to the terms of this lease,
shall be claimed by or allowed to, the Tenant for the inconvenience,
interruption, cessation or loss of business or otherwise cause
directly or indirectly by any present or future laws, rules,
requirements, orders, directions, ordinances or regulations of the
federal, state, county or municipal government, or of any other
governmental or lawful authority whatsoever, or as a result of any
diminution of the amount of space used by Tenant caused by legally
required changes in the construction, equipment operation or use of
the Premises.
d. Tenant, following notice to Landlord, shall have the right to contest
by appropriate legal proceedings, at its sole cost and expense, the
validity of any law, ordinance, order, rule, regulation or requirement
of the nature herein referred to, provided, however , that: (i) any
noncompliance shall not constitute a crime on the part of the Landlord
or otherwise adversely affect, jeopardize or threaten the interest of
Landlord; (ii) Tenant shall diligently prosecute any such contest to a
final determination by a court, department or governmental authority
having final jurisdiction and keep Landlord advised in writing as to
all changes in status and determinations in connection with any such
proceedings; and (iii) Tenant shall indemnify and save harmless
Landlord against any and all losses, costs, expenses, claims,
penalties, actions, demands, liabilities, judgments or other damages
which Landlord may sustain by reason of such contest or as a result of
Tenant's failure or delay in compliance. It is agreed however that
Landlord has the right to demand that the Tenant furnish adequate
security to ensure its ability to perform its indemnity obligations
hereunder, which security if so requested, shall be furnished to
Landlord prior to the Tenant commencing or continuing which such
contest, as the case may be. In no event, however shall Tenant defer
compliance if such deferment would constitute a violation of any of
the provisions of any mortgage or ground lease to which this lease is
or shall be subordinate. Landlord agrees to cooperate as reasonably
required for the purpose of any such contest, provided that the same
shall be without cost or expense to Landlord. Landlord shall have the
right, but not the obligation to contest by appropriate legal
proceedings, at Landlord's expense, any such law, ordinance, rule,
regulation or requirement.
17
34. RIGHTS CUMULATIVE. All rights, power and privileges conferred hereunder
upon parties hereto shall be cumulative but not restrictive to those given
by law.
35. WAIVER OF RIGHTS. No failure of Landlord to exercise any power given
Landlord hereunder, or to insist upon strict compliance by Tenant with his
obligation hereunder, and no custom or practice of the parties at variance
with the terms hereof shall constitute a waiver of Landlord's right to
demand exact compliance with the terms hereof.
36. TIME OF ESSENCE. Time is of the essence of this agreement.
37. DEFINITIONS. "Landlord" as used in this Lease shall include Landlord's
heirs, representatives, assigns and successors in title to Premises.
"Tenant" shall include Tenant's heirs and representatives, and if this
Lease shall be validly assigned or the Premises sublet, shall include
Tenant's assignees or sublessees, as to Premises covered by such assignment
or sublease. "Landlord" and "Tenant" include male and female, singular and
plural, corporation, partnership or individual, as may fit the particular
parties.
38. NOTICES. All notices and demands which may or are to be required or
permitted to be given to either party by the other hereunder shall be in
writing. All notices and demands by the Landlord to the Tenant shall be
sent by United States mail, postage prepaid, addressed to the Tenant at the
Premises, and to the address hereinbelow, or to such other place as Tenant
may from time to time designate in a notice to the Landlord. All notices
and demands by the Tenant to the Landlord shall be sent by United States
mail, postage prepaid, addressed to the Landlord at the address set forth
herein, and to such other person or place as the Landlord may from time to
time designate in a notice to the Tenant.
To Landlord at: c/o Kwartler Associates, Inc.
0 Xxxxx Xxxxxx, Xxxxxxxx, XX 00000
To Tenant at: 0 Xxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
39. ESTOPPEL CERTIFICATES. Tenant shall, from time to time, upon written
request of Landlord, execute, acknowledge and deliver to Landlord or its
designee a written statement stating: the date this Lease was executed and
the date it expires, the date Tenant entered into occupancy of the
Premises; the amount of minimum monthly rent and the date to which such
rent has been paid; that this Lease is in full force and effect and has not
been assigned, modified, supplemented or amended in any way (or specifying
the date and terms of any agreement so affecting this Lease); that this
Lease represents the entire agreement between the parties as to this
leasing; that all conditions under this Lease to be performed by the
Landlord have been satisfied; that all required contributions by Landlord
to Tenant on account of Tenant's improvements have been received; that on
this date there are no existing defenses or offsets which the Tenant has
against the enforcement of this Lease by the Landlord; that no rent has
been paid more than one (1) month in advance; and that no security has been
deposited with Landlord (or, if so, the amount thereof). It is intended
that any such statement delivered pursuant to this paragraph may be relied
upon by a prospective purchaser of Landlord's interest or a mortgage of
Landlord's interest or assignee of any mortgage upon Landlord's interest in
the Building. If Tenant shall fail to respond within
18
fifteen (15) days of receipt by Tenant of a written request by Landlord
as herein provided, Tenant shall be deemed to have given such
certificate as above provided without modification and shall be deemed
to have admitted the accuracy of any information supplied by Landlord to
a prospective purchaser or mortgagee.
40. SUBROGATION. As long as their respective insurers so permit, Landlord and
Tenant hereby mutually waive their respective rights of recovery against
each other, for any loss insured by fire, extended coverage and other
property insurance policies existing for the benefit of the respective
parties. Each party shall apply to their insurers for such waivers and
shall obtain any special endorsements required by their insurer to evidence
compliance with the aforementioned waiver.
41. GOVERNMENTAL ORDERS. Tenant agrees, at its own expense, to promptly comply
with all requirements of any legally constituted public authority made
necessary by reason of Tenant's occupancy of said Premises. Landlord
agrees to promptly comply with any such requirements if not made necessary
by reason of Tenant's occupancy.
42. LIENS. Tenant shall keep the Premises and the property on which the
Premises are situated free from any liens arising out of any work
performed, materials furnished or obligations incurred by or on behalf of
Tenant. Landlord may require, at Landlord's sole option, that Tenant
provide to Landlord, at Tenant's sole cost and expense, a lien and
completion bond in an amount equal to one and one-half (1-1/2) times the
estimated cost of any improvements, additions, or alterations which the
Tenant desires to make.
43. DISPLAYS. Tenant may not display or sell merchandise or allow grocery
carts or other similar devices within the control of Tenant to be stored or
to remain outside the exterior walls and doorways of the Premises. Tenant
further agrees not to install any exterior lighting, amplifiers or similar
devices or use in or about the Premises an advertising medium which may be
heard or seen outside the Premises, such as flashing lights, searchlights,
loudspeaker, phonographs or radio broadcasts.
44. AUCTIONS. Tenant shall not conduct or permit to be conducted any sale by
auction in, upon or from the Premises whether said auction be voluntary,
involuntary, pursuant to any assignment for the payment of creditors or
pursuant to any bankruptcy or other insolvency proceeding.
45. AUTHORITY OF TENANT. If Tenant is a corporation or partnership, each
individual executing this Lease on behalf of said corporation or
partnership represents and warrants that he is duly authorized to execute
and deliver this Lease on behalf of said corporation or partnership, and
that this Lease is binding upon said corporation or partnership.
46. NO ACCORD OR SATISFACTION. No payment by Tenant or receipt by Landlord of
a lesser amount than the monthly rent and other sums due hereunder shall be
deemed to be other than on account of the earliest rent or other sums due,
nor shall any endorsement or statement on any check or accompanying any
check or payment be deemed an accord and satisfaction; and Landlord may
accept such check or payment without prejudice to Landlord's right to
recover the balance of such rent or other sum or pursue any other remedy
provided in this Lease.
19
47. BROKERS. Tenant represents and warrants to Landlord that neither it nor
its officers or agents nor anyone acting on its behalf has dealt with any
real estate broker other than Xxxxxxxx Associates, Inc. and The Xxxxxxxxx
Company in negotiating or making of this Lease, and Tenant agrees to
indemnify and hold Landlord harmless from any claim or claims, as well as
costs and expenses including attorneys' fees incurred by Landlord in
conjunction with any claim or claims, of any other broker or brokers
claiming to have interested Tenant in the Building or Premises or claiming
to have caused Tenant to enter into this Lease.
48. NON-LIABILITY OF LANDLORD.
a. Landlord shall not be liable for any damage or injury which may be
sustained by Tenant or by any other person, as a consequence of the
failure, breakage, leakage or obstruction of the street or
sub-surface; or of the water, plumbing, steam, sewer waste or soil
pipes; or of the roof, walls, drains, leaders, gutters, valleys,
downspouts or the like; or of the electrical, gas, power conveyor,
refrigeration, sprinkler, air conditioning or heating systems; or
of the elevators or hoisting equipment; or of any other structural
failure; or by reason of the elements; or resulting from theft or
pilferage; or resulting from fire, explosion, or other casualty; or
resulting from the carelessness, negligence, or improper conduct on
the part of the Tenant, any other tenant, or of Landlord, except
willful misconduct of Landlord, its agents, employees, guests,
licensees, invitees, subtenants, assignees or successors; or
attributable to any interference with, interruption of or failure,
beyond the control of Landlord, of any services to be furnished or
supplied by Landlord. All property kept, maintained or stored at
the sole risk of the Tenant.
b. Landlord shall not be liable to Tenant or any person or entity
claiming through the Tenant, nor shall Tenant be excused from the
performance of any obligation hereunder, due to any breach or
violation by Landlord, by any other tenant or by any other person or
entity, of:
(i) any rule or regulation established by Landlord; or
(ii) any provision, covenant, term or condition of any other
agreement affecting the Building and lands or any portion
thereof. Further, Landlord shall not be liable, nor shall
Tenant be excused from the performance of any obligation
hereunder, due to the Landlord enforcing any right or remedy
against the Tenant and/or against other tenants of the
Building, but not against all tenants of the Building.
49. UNAVOIDABLE DELAYS.
a. If, as a result of strikes, lockouts, labor disputes, inability to
obtain labor, materials or reasonable substitutes therefore, acts of
God, governmental restrictions, regulations or controls, enemy or
hostile governmental action, civil commotion, insurrection,
revolution, sabotage, fire or other casualty, acts or failure to act
by Tenant or any other tenant or other conditions beyond the control
of Landlord, whether prior to or during the Term, Landlord shall fail
punctually to perform any lease obligation, then and in any of such
events,
20
such obligation shall be punctually performed as soon as
practicable after such condition shall xxxxx. In the event that
Landlord, as a result of any such condition, shall be unable to
exercise any right or option within any time limit provided in this
lease, such time limit shall be deemed extended for a period equal to
the duration of such condition. The failure of Landlord to perform
any lease obligation for the reasons set forth herein shall not
affect, curtail, impair or excuse this lease or the obligations of
Tenant hereunder.
b. 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, or arising from the construction of or repairs or
improvements to, other buildings, structures, land or appliances, to
the various "services", if any, 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
shall be due to accident, alterations or repairs necessary to be made
or to inability or difficulty in securing supplies or labor for the
maintenance of such service or to some other cause, not gross
negligence on the part of the Landlord. No such interruption or
curtailment of such "service" nor any nonperformance by Landlord
pursuant to subparagraph (a) of this Paragraph, shall be deemed a
constructive eviction, nor shall there be any abatement or diminution
of rent because of making of repairs, improvements or decorations to
the Premises after the date above fixed for the commencement of the
Term, it being understood that the Rental shall in any event, commence
to run at such date as above fixed.
50. ENVIRONMENTAL PROVISIONS.
a. For purposes of this lease, the following additional definitions shall
apply:
i. "Hazardous Substances" shall include any pollutants, petroleum
products, dangerous substances, toxic substances, hazardous
wastes, hazardous materials, or hazardous substances as defined
in or pursuant to the Industrial Site Recovery Act, N.J.S.A.
13:1K-6 ET SEQ. and all rules, regulations, orders, directives
and opinions promulgated thereunder ("ISRA"); the Spill
Compensation and Control Act, N.J.S.A. 58:10-23.11 ET SEQ. and
all rules, regulations orders, directives and opinions
promulgated thereunder ("Spill Act"); the Solid Waste Management
Act, N.J.S.A. 13:1E-1 ET SEQ.; and all rules and regulations
promulgated thereunder; the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901 ET SEQ.; the Comprehensive
Environmental Response Compensation and Liability Act, 42 U.S.C.
Section 9601 ET SEQ. and all rules and regulations promulgated
thereunder ("CERCLA"); or any other Federal, State or Local
environmental law or ordinance and all rules and regulations
promulgated under the foregoing, (collectively "Environmental
Laws").
ii. "Release" means releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping.
21
iii. "Notice" means any summons, citation, directive, order,
claim, litigation, investigation, proceeding, judgment,
letter or other communication, written or oral, actual or
threatened, from the New Jersey Department of
Environmental Protection and Energy ("DEP"), the United
States Environmental Protection Agency ("EPA"), any other
Federal, State or Local agency or authority or any other
entity or any individual, concerning any act or omission
resulting or which may result in the Release of Hazardous
Substances into the waters or onto the lands of the State
of New Jersey or into waters outside the jurisdiction of
the State of New Jersey or into the "environment" as such
terms are defined in CERCLA. "Notice" shall include the
imposition of any liens of any real or personal property
or revenues of Tenant including, but not limited to,
Tenant's interest in the premises or any of Tenant's
property located thereon pursuant to or resulting from
the violation of, any Environmental Law, or any other
governmental actions, orders or permits or any knowledge
after due inquiry and investigation of any facts which
could give rise to any of the above.
b. To the extent that Tenant uses the Premises, whether as permitted by
law or otherwise, for the generating, manufacturing, refining,
transporting, treating, storing, handling, disposing, transferring or
processing of Hazardous Substances, Tenant shall ensure that said use
shall be conducted at all times strictly in accordance with applicable
Environmental Laws. Tenant shall not cause nor permit as a result of
any intentional or unintentional act or omission, a Release of
Hazardous Substances, except in accordance with a valid permit or as
otherwise permitted by law. If any intentional or unintentional act
or omission results in any actual or alleged Release of Hazardous
Substances, Tenant promptly shall conduct necessary sampling and
cleanup and remediate such Release in accordance with applicable
Environmental Laws.
c. Within ten (10) days from date hereof, and thereafter within ten (10)
days after written request by Landlord, but not more frequently than
once per Lease Year and on each anniversary of the Commencement Date
hereof, Tenant shall deliver to Landlord a duly executed and
acknowledged affidavit of Tenant's chief executive officer certifying:
i. The proper SIC Industry Group Number relating to Tenant's then
current business and use(s) of the Premises; and
ii. That Tenant's then current use(s) of the Premises does not
involve the generation, manufacture, refining, transportation,
treatment, storage, handling or disposal of Hazardous Substances
on site, above ground or below ground (all herein referred to as
the "Presence of Hazardous Substances"); or
iii. That Tenant's then current use(s) of the Premises does involve
the Presence of Hazardous Substances, in which event, said
affidavit shall describe in detail that portion of Tenant's
operations which involve the Presence of Hazardous Substances.
Said description,
22
INTER ALIA, shall identify each Hazardous Substance and describe
the manner in which it is generated, handled, manufactured,
refined, transported, treated, disposed of, and/or stored.
Tenant shall supply Landlord with such additional information
relating to said Presence of Hazardous Substances as Landlord may
request.
d. Tenant, at its sole cost and expense, promptly shall apply for ISRA
approval prior to the occurrence of any event caused by Tenant that
would trigger ISRA applicability, and pursue the matter to obtain an
approved negative declaration or an approved remedial action workplan
completion. Tenant shall have the right to utilize streamlined
procedures for compliance with ISRA, as set forth in Sections 17 and
18 of ISRA, provided that if required by DEP, Tenant shall post a
remediation funding source in an amount at least equal to 125% of the
amount requested by DEP in a form satisfactory to DEP, and shall
remain as a holdover tenant for such portion of the Premises as shall
not be usable or rentable as a result of Tenant remediation until all
obligations extending beyond the expiration of the Term shall have
been performed pursuant hereto. In the event that the occurrence is
the transfer of title or other action by Landlord, Landlord at its
cost and expense shall be responsible for ISRA compliance. Tenant
shall furnish such information and otherwise cooperate reasonably with
Landlord in connection with Landlord's compliance with ISRA.
e. In connection with the performance of its obligations pursuant to this
Paragraph 50, Tenant shall properly and accurately label and segregate
all Hazardous Substances stored at the Premises and promptly shall
furnish to Landlord true and complete copies of all documents,
submissions and correspondence provided by Tenant to DEP and all
documents, reports, directives and correspondence provided by DEP to
Tenant, together with true and complete copies of all sampling and
test results obtained from samples and tests taken at and around the
Premises.
f. Should DEP determine that pursuant to ISRA, a remedial action workplan
be prepared and a cleanup be undertaken because of a Release of a
Hazardous Substance at the Premises which occurred during the period
in which Tenant shall have leased the Premises, whether or not
pursuant to this Lease, for which Tenant is responsible hereunder,
Tenant, at its sole cost and expense, promptly shall prepare and
submit the required plan and remediation funding source and promptly
shall carry out the approved plan. Should Tenant's operations at the
Premises be outside of those industrial operations covered by ISRA,
Tenant, at its own cost and expense, shall obtain a Letter of
Nonapplicability or DE MINIMIS quantity exemption from DEP prior to
termination of the Term and Tenant, at Landlord's option, shall hire a
consultant satisfactory to Landlord to undertake sampling at the
Premises sufficient to determine whether or not Tenant's operations
have resulted in a Release of a Hazardous Substance at or around the
Premises. Tenant's sampling, at a minimum, shall establish the
integrity of all underground storage tanks at the Premises. Should
the sampling reveal any Release of a Hazardous Substance, then Tenant,
at its sole cost and expense, promptly shall cleanup the Premises in
accordance with Environmental Laws and to the satisfaction of DEP.
23
g. Should the submission of a remedial action workplan be required
pursuant to ISRA for which Tenant is responsible hereunder, then
Tenant, at is sole cost and expense, shall furnish to DEP, if
required, a remediation funding source satisfactory to DEP, in the
amount of at least 125% of the amount requested by DEP, in a form
satisfactory to DEP, guaranteeing the performance and completion of
Tenant's obligations pursuant to ISRA. The security furnished by
Tenant shall be renewed and kept in force by Tenant, at Tenant's sole
cost and expense, until such time as Tenant shall have received final
approval of the cleanup and a release of the remediation funding
source from DEP, it being acknowledged that said remediation funding
source may be utilized by Tenant to pay for its remediation costs, to
the extent and in the manner permitted by DEP.
h. Regardless of which party may trigger the applicability of ISRA, or
pursuant to any other Environmental Law, Tenant shall be responsible
only for the remediation and obtaining of DEP approval for any Release
of Hazardous Substances from, on, to or within the Premises which
shall have occurred during the period in which Tenant shall have
leased the Premises, whether or not pursuant to this Lease, unless
such Release shall not have been caused by the intentional or
unintentional act(s) and/or omissions of Tenant, and Landlord shall be
responsible for the remediation and obtaining of DEP approval for any
such Release which shall have occurred prior to the commencement of
the Tenant"s leasing of the Premises, or which was not caused by the
intentional or unintentional act(s) and/or omissions of Tenant.
i. In the event Tenant is or would be responsible for triggering ISRA and
is unable to obtain either (a) a non-applicability letter; (b) an
approval of a negative declaration; (c) a de minimis quantity
exemption; or (d) an approval of a remedial action workplan, prior to
the occurrence of the event triggering applicability of ISRA, then
Tenant, at its sole cost and expense, shall do everything necessary in
order to obtain agreement with DEP, authorizing the occurrence of the
event triggering ISRA and obligating Tenant to comply, at its sole
cost and expense, with all requirements of ISRA and without imposing
any restrictions or prohibitions against the Premises.
j. Notwithstanding anything in this lease to the contrary, and without
limiting any other provisions of this Xxxxxxxxx 00, Xxxxxx, at its
sole cost and expense, shall observe, comply and fulfill all of the
terms and provisions of all applicable Environmental Laws, as the same
may be amended from time to time, as they relate to Tenant's use and
occupancy of the Premises, whether or not pursuant to this Lease,
unless caused by Landlord.
Without limiting the foregoing, Tenant agrees:
i. That it shall not do or omit to do nor suffer the commission or
omission of any act, the commission or omission of which is
prohibited by or may result in liability pursuant to any
Environmental Law, including without limitation, the Release of
Hazardous Substances;
24
ii. Except as otherwise herein provided, whenever the provisions of
any Environmental Law requires the "owner or operator" to do any
act, Tenant, on behalf of Tenant and/or Landlord, as the case may
be, shall do such act at its sole cost and expense, including the
making of all submissions and the providing of all information,
it being the intention of the parties hereto that Landlord shall
be free of all expenses and obligations arising from or in
connection with compliance with Environmental Laws and that
Tenant shall fulfill all such obligations and pay all such
expenses.
k. In the event there shall be filed a lien against the Building, Land
and/or Premises arising out of a claim(s) by DEP pursuant to the
provisions of the Spill Act or by EPA pursuant to the provisions of
CERCLA, resulting from any act of commission or omission of Tenant or
relating to a condition or circumstance which Tenant is obligated to
cure, then and in such event, Tenant immediately either shall: 1) pay
the claim and remove the lien from the premises; or, 2) furnish a
bond, cash receipt or other security satisfactory to Landlord
sufficient to discharge the claim out of which the lien arises.
l. Each party hereby covenants and agrees to indemnify and hold the other
harmless from and against any and all losses of whatever nature,
including lost rentals, claims, costs, fines, penalties, losses and
expenses, including but not limited to, reasonable attorney,
consultant and expert fees that the other party may sustain as a
result of such party's non-compliance or failure to comply in a timely
fashion with the provisions of this Paragraph 50 or any Environmental
Law or by Tenant's Release of Hazardous Substances at the Premises.
m. i. Tenant promptly shall provide Landlord with all reports and
notices made by Tenant pursuant to the Hazardous Substance
Discharge Reports and Notices Act, N.J.S.A. 13:1K-15, ET SEQ. and
all rules, regulations, orders, directives and opinions
promulgated thereunder.
ii. Tenant promptly shall provide Landlord with a copy of all permits
relating to the Premises obtained pursuant to any Environmental
Law.
n. Tenant acknowledges that for Landlord to comply with the requirements
of Environmental Laws, Landlord from time to time, may have to enter
the Premises. Landlord and/or its agents shall have an irrevocable
license and right to enter the Premises for such purposes, as well as
for removing soil, installing test and/or monitoring xxxxx, such other
equipment and undertaking such other work as may be required by DEP.
All such entry by Landlord and/or its agents shall be upon reasonable
notice to Tenant.
o. Tenant shall cooperate fully in allowing, from time to time, Such
examinations, tests, inspections, and reviews of the Premises as
Landlord, in its sole and absolute discretion, shall determine to be
advisable in order to evaluate any potential environmental problems.
Landlord expressly reserves the right, but without any obligation, to
conduct examinations, tests, (including but not limited to a
geohydrological survey of soil and subsurface conditions),
25
inspections and reviews of the Premises as Landlord, in its sole and
absolute discretion, may determine to be necessary.
p. Landlord and Tenant agree to cooperate with each other to provide any
information necessary to the other in order to effect compliance with
any Environmental Law.
q. Notwithstanding anything to the contrary contained in this lease,
Tenant shall not be responsible for complying with any Environmental
Law in connection with any spill or Release of Hazardous Substances
which occurred prior to the commencement of its leasing of the
Premises, whether or not pursuant to this Lease or which was caused by
Landlord.
r. Tenant shall commence the performance of its obligations within the
time period specified herein or within ten (10) days after obtaining
knowledge or receiving notice requiring its performance hereunder, if
no other time period is specified herein, and shall proceed diligently
and in good faith to complete the performance of its obligations
within a reasonable time. In the event Tenant shall fail to comply in
full with this Paragraph, Landlord, at its option, may perform any and
all of Tenant's obligations as aforesaid, and all costs and expenses
incurred by Landlord, in the exercise of its rights shall be deemed a
claim against Tenant as Additional Rent payable on demand.
s. The provisions of this Paragraph 50 shall survive the expiration or
earlier termination of this lease, regardless of the reason for such
termination and compliance with the provisions of this Paragraph 50
may require Landlord or Tenant to expend funds or perform acts after
the expiration or termination of this lease. Landlord and Tenant
agree to expend such funds and/or perform such acts and shall not be
excused therefrom notwithstanding any expiration or termination of
this lease, it being agreed and acknowledged that the parties would
not have entered into this Lease but for the provisions of this
Paragraph 50 and the survival thereof.
t. During, at the end of, or after the Term of this Lease, Tenant, at no
cost to Tenant, agrees to execute any or all documents required and/or
prepared by Landlord in connection with compliance with any
Environmental Law.
51. GENERAL PROVISIONS
a. JOINT OBLIGATION. If there be more than one Tenant, the obligations
hereunder imposed shall be joint and several.
b. MARGINAL HEADINGS, ETC. The marginal headings index, lease summary
sheet and titles to the articles of this Lease are not a part of the
Lease and shall have no effect upon the construction or interpretation
of any part hereof.
c. CHOICE OF LAW. This Lease shall be governed by and construed in
accordance with the laws of the State in which the Premises are
located.
d. SUCCESSORS AND ASSIGNS. The covenants and conditions herein
contained, subject to the provisions as to assignment, inure
26
to and bind the heirs, successors, executors, administrators and
assigns of the parties hereto.
e. RECORDATION. Neither Landlord nor Tenant shall record this Lease, but
a short-form memorandum hereof may be recorded at the request of
Landlord.
f. QUIET POSSESSION. Upon Tenant's paying the rent reserved hereunder
and observing and performing all of the covenants, conditions and
provisions on Tenant's part to be observed and performed hereunder,
Tenant shall have quiet possession of the Premises for the entire term
hereof, subject to all the provisions of this Lease.
g. INABILITY TO PERFORM. This Lease and the obligations of the Tenant
hereunder shall not be affected or impaired because the Landlord is
unable to fulfill any of its obligations hereunder or is delayed in
doing so, if such inability or delay is caused by reason of strike,
labor troubles, acts of God, or any other cause beyond the reasonable
control of the Landlord.
h. PARTIAL INVALIDITY. Any provision of this Lease which shall prove to
be invalid, void, or illegal shall in no way affect, impair or
invalidate any other provision hereof and such other provisions shall
remain in full force and effect.
i. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, whenever possible, be cumulative with all other
remedies at law or in equity.
j. ENTIRE AGREEMENT. This lease contains the entire agreement and no
representations, inducements, promises or agreements, oral or
otherwise, between the parties, not embodied herein, shall be of any
force or effect.
k. NO OPTION. The submission of this Lease for examination does not
constitute a reservation of or option for the Premises, and this Lease
becomes effective only upon execution and delivery thereof by
Landlord.
52. OPTION TO RENEW: Tenant shall have the option to renew this lease for an
additional term of five (5) years under the following terms and conditions:
a. COMMENCEMENT. The next day following the termination date of the
initial term.
b. NOTICE. Tenant shall notify Landlord, or its agents or assigns, in
writing, by Certified mail, no later than twelve (12) months prior to
the expiration of the initial term of this lease.
27
c. RENT. Rent as described in Article 3 of this lease shall be replaced
with the following rental rates during the renewal period.
PERIOD MONTHLY RENT ANNUAL RENT
------ ------------ -----------
8/1/2001 - 7/31/2002 $4,062.50 $48,750.00
8/1/2002 - 7/31/2003 $4,166.67 $50,000.00
8/1/2003 - 7/31/2004 $4,270.83 $51,250.00
8/1/2004 - 7/31/2005 $4,375.00 $52,500,00
8/1/2005 - 7/31/2006 $4,479.17 $53,750.00
d. OTHER TERMS. In each and every respect and matter, all of the terms,
conditions, provisions and covenants of the original lease shall be
binding upon and inure to the benefit of the parties hereto, their
successors and assigns, in the same manner and to the same extent as
if each of the parties hereto had been the initial parties to the
original lease.
53. DELIVERY OF PREMISES.
a. Landlord agrees to deliver the Premises, substantially completed and
ready for occupancy by Tenant on or before August 26, 1996, provided
the following conditions are met:
i. Tenant executes Lease and this Addendum on or before June 26,
1996 along with required payment of first monthly payment of Rent
($3,437.50). Additional Rent ($1,108.33) and Security Deposit
($6,875.00); plus
ii. Tenant provides whatever approvals are required relating to the
renovation and construction of the Premises within one (1)
business day of any such requested approval by Landlord or its
agents.
b. If the Tenant's conditions outlined in this article 53 (a) hereinabove
are met and this Landlord does not deliver the Premises substantially
completed and ready for occupancy by Tenant on or before August 26,
1996, then in that event, the Landlord shall credit the Tenant $111.00
per day for each day following August 26, 1996 until such day that
Landlord does deliver the Premises. Anything to the contrary
notwithstanding, any delay caused by the specification of special
items (i.e. equipment, fixtures and/or finishes that are non-standard)
or change orders by Tenant, shall in effect postpone the deadline for
delivery of Premises by that period of time required to install such
special items and/or make such change orders.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and seals
in triplicate, the date and year first above written.
LANDLORD: ADVANT REALTY LIMITED PARTNERSHIP, II
BY: ADVANT REALTY XX XX LIMITED PARTNERSHIP (Its General Partner)
By: /s/ XXXXXXX X. XXXXX
-------------------------------------------
Xxxxxxx X. Xxxxx, Chairman
28
TENANT: BRIGHTON INDUSTRIES CORPORATION
BY: /s/ KIT KUNG
-------------------------------------------
Kit Kung, Chairman
29
