Exhibit 10.1
Lease
THIS LEASE is made as of the 21 day of February, 2003, by and between:
NJ MORTGAGE ACQUISITION, LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(hereinafter referred to as "Mortgagee")
and
INTERNATIONAL TECHNIDYNE CORP.
0 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as "Tenant")
WITNESSETH:
Mortgagee and Tenant agree as follows:
1. Demised Premises. Mortgagee hereby leases to Tenant and Tenant hereby
rents from Mortgagee an approximately 22,500 square foot building located at 000
Xxxxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx. Said building is hereinafter referred to as
the "Demised Premises" and the Demised Premises, together with the land on which
it is located, is hereinafter referred to as the "Property".
2. Term. The term ("Term") of this Lease shall be ten (10) Lease Years,
shall commence on the date Mortgagee delivers possession of the Demised
Premises to Tenant which date shall not be later than May 1, 2003, subject to
circumstances beyond Mortgagee's control* (the "Commencement Date") and shall,
subject to the Option Periods (as such term is hereinafter defined), expire on
the day immediately preceding the tenth (10th) anniversary of the Commencement
Date (the "Termination Date"), or such date upon which this Lease may be
*If delay is greater than 60 days, tenant has the option to cancel lease.
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sooner terminated pursuant to the terms hereof. The term "Lease Year" shall
mean twelve (12) consecutive months starting on the Commencement Date. Upon the
extension of this Lease for the First Option Period and Second Option Period
(as such terms are hereinafter defined), if applicable, all references to the
term "Term" shall include the First Option Period and Second Option Period.
3. Rent and Option.
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a. Tenant hereby covenants and agrees to pay Mortgagee during the
Term of this Lease a fixed annual rental for the Demised Premises, payable in
equal monthly installments, in accordance with the following schedule:
Fixed Annual Monthly
Lease Year Rental Installments
---------- ------------ -------------
1 $123,750.00 $10,312.50
2 $126,000.00 $10,500.00
3 $128,250.00 $10,667.50
4 $130,500.00 $10,875.00
5 $132,750.00 $11,062.50
6 $135,000.00 $11,250.00
7 $137,250.00 $11,437.50
8 $139,500.00 $11,625.00
9 $141,750.00 $11,812.50
10 $144,000.00 $12,000.00
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b. All payments of fixed annual rental and additional rent shall be made
by Tenant to Mortgagee without notice or demand in equal monthly installments,
in advance, without setoff or abatement, and shall be due and payable on the
first day of each and every calendar month throughout the term of this Lease
commencing on the Commencement Date, provided, however, that the first month's
fixed and additional rent hereunder shall be payable upon Tenant's execution of
this Lease. In the event the Commencement Date is not the first day of the
month, then the rent due for such month in which the Commencement Date occurs
shall be pro-rated for the number of days from the Commencement Date to the last
day of the month in which the Commencement Date occurs. All payments shall be
made payable to "NJ Mortgage Acquisition, LLC" and forwarded to the following
address:
PNC Bank
X.X. Xxx 000000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
For credit to: NJ Mortgage Acquisition, LLC
Account #8014135244
or if by wire to:
PNC Bank
ABA #000000000
For credit to: NJ Mortgage Acquisition, LLC
Account #8014135244
c. In the event Tenant shall fail to pay any fixed annual rental or
additional rent installment as provided herein, or any part thereof, within
five (5) days following the due date for such installment, Mortgagee shall
impose, and Tenant agrees to pay, a late charge of five (5%) percent of the
rent due, said late charges to be immediately due and payable. It is agreed
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that this late charge has been reasonably calculated to offset Mortgagee's
added expense in handling the late payment and other costs to Mortgagee,
including but not limited to, the costs Mortgagee may incur for late charges on
its mortgages.
d. The parties hereto agree that the fixed annual rental payable
hereunder shall be net to Mortgagee so that this Lease shall yield to Mortgagee
the fixed rent per annum specified herein during the Term of this Lease. Tenant
shall pay, as additional rent, the costs and expenses as provided for herein so
as to render the fixed annual rental net to Mortgagee.
e. Whenever under the terms of this Lease, any sum of money is required
to be paid by Tenant in addition to the fixed annual rental reserved hereunder,
said additional sum shall not be deemed to suspend or delay the obligation of
Tenant to pay any and all other sums as and when due hereunder, nor otherwise
limit or circumscribe any other remedy of Mortgagee, except as provided herein.
f. Tenant shall have the option to extend the Term of this Lease for two
(2) consecutive periods of five (5) Lease Years each, with the first option
period (the "First Option Period") commencing on the day immediately following
the Termination Date and terminating on the day immediately preceding the fifth
anniversary of the commencement date of the First Option Period and the second
option period (the "Second Option Period"; the First Option Period and the
Second Option Period are sometimes collectively referred to herein as the
"Option Period") commencing on the day immediately following the end of the
First Option Period and terminating on the day immediately preceding the fifth
anniversary of the commencement date of
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the Second Option Period, upon the same terms and conditions of this Lease,
except for the adjustment to the rent payable hereunder. The option to extend,
as well as the commencement of each Option Period, shall be expressly
conditioned upon Tenant not being in default, beyond any applicable notice or
grace period, of any of Tenant's obligations under this Lease and, in the case
of the Second Option Period, Tenant having exercised the First Option Period.
The option is exercisable by Tenant only in strict compliance with the aforesaid
conditions and by giving Mortgagee written notice at any time but in any event
not later than the date which is nine (9) months prior to the Termination Date
in the case of the First Option Period and nine (9) months prior to the end of
the First Option Period in the case of the Second Option Period. Strict
compliance with the conditions of the option and the exercise thereof is deemed
material to the parties, and Time For Exercise Is Of The Essence. Tenant's
failure to timely exercise the option shall be deemed a waiver of the option
(and any remaining option) by Tenant, in which event this Lease shall expire on
the Termination Date.
g. Fixed annual rental for each Lease Year of the Option Periods
shall be the greater of: (i) the fair market rental value for the Demised
Premises for said period as determined by a New Jersey-based M.A.I. appraiser
("Appraiser") who shall be selected by mutual agreement of Mortgagee and Tenant
and (ii) the sum of (1) the fixed annual rent for the immediately prior rent
period plus (2) the fixed annual rent for the immediately prior rent period
multiplied by the CPI Adjustment Factor (as defined below).
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h. To determine the fair market rental value for the Demised
Premises, within thirty (30) days of the selection of the Appraiser, Mortgagee
and Tenant shall each confidentially submit to the Appraiser such party's
determination of the fair market rental value for the Demised Premises for the
applicable Option Period. In the event either party fails to submit its
determination of the fair market rental value within said thirty (30) day
period, such party shall be barred from making such submission to the Appraiser.
The Appraiser shall then have ten (10) days after its receipt of the parties'
submissions to choose which party's submission is the proper fair market rental
value for the Demised Premises for the applicable Option Period and the
Appraiser's determination shall be binding on all parties. The "CPI Adjustment
Factor" shall be a factor, the numerator of which shall be the CPI (as defined
below) for the calendar month immediately preceding such date of determination
minus the CPI for the last calendar month of the prior Lease Year, and the
denominator of which shall be the CPI for the last calendar month of the prior
Lease Year. For example:
CPI in February 2003 = 104
CPI in February 2012 = 101
The CPI Adjustment Factor shall be 104 minus 101 divided by 101 = 2.97%.
Therefore, the fixed annual rent for the first Lease Year of the First Option
Period shall be $144,000.00 + (2.97% x 144,000.00) = $148,276.80. "CPI" means
the United States Department of Labor, Bureau of Labor Statistics "Consumer
Price Index" for Urban Wage Earners and Clerical Workers (CPI-W) published for
New York,
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Northern New Jersey, Long Island, NY-NJ-CT-PA, with a base of 1982-1984=100. If
the CPI ceases to be published, and there is no successor thereto, such other
index as Mortgagee and Tenant shall agree upon in writing shall be substituted
for the CPI. If the Mortgagee and Tenant cannot agree on such substituted index,
such dispute shall be settled by arbitration.
4. Real Estate Taxes and Assessments.
a. Beginning on the Commencement Date, Tenant shall arrange to have
the annual real estate taxes, assessments and other local governmental charges,
whether general or special, ordinary and extraordinary, unforeseen as well as
foreseen, of every kind and nature, assessed against the Property billed
directly to Tenant, Tenant shall pay same when due and shall furnish Mortgagee
with evidence of payment within five (5) days after the date each payment was
due.
b. Tenant may not institute an action seeking a reduction in the tax
assessment for the Property without the prior, written consent of Mortgagee,
which consent shall not be unreasonably withheld. In the event Mortgagee
consents to the institution of such an action, Tenant shall keep Mortgagee fully
apprised of all proceedings therein. Mortgagee shall not be obligated to bring
any such action seeking a reduction in the assessment, nor shall Mortgagee be in
any way liable to Tenant in the event any such action results in an increase in
the assessment.
c. If at any time during the Term of this Lease, under the laws of
the State of New Jersey or any political subdivision thereof, a tax on rents is
assessed against Mortgagee as a
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substitution, in whole or in part, for a real estate tax or assessment, water or
sewer charge, or other governmental imposition or charge, Tenant shall pay same.
5. Utilities.
a. Beginning on the Commencement Date, Tenant shall arrange to have
the utilities for the Demised Premises billed in its own name, shall pay when
due all charges therefor directly to the utility company furnishing the services
and shall furnish Mortgagee with evidence of payment within five (5) days after
Mortgagee's request for same. Removal of Tenant's trash from the Property shall
be Tenant's responsibility and shall be done at Tenant's sole cost and expense.
b. Mortgagee reserves the right to enter upon the Demised Premises
upon reasonable notice, provided Mortgagee shall not unreasonably disturb
Tenant's operation, for the purpose of connecting wires, cables, conduits and
pipes and the like within the Demised Premises which supply utilities to the
Demised Premises.
6. Property Maintenance.
Beginning on the Commencement Date, Tenant shall pay for the cost
of grounds and lawn maintenance, snow and ice removal, trash removal and parking
lot and driveway lighting of the Property throughout the Term. Mortgagee shall,
at Tenant's sole cost and expense, be responsible for the maintenance of the
pavement at the Property and the repair and painting of the exterior of the
Building. Tenant shall reimburse Mortgagee for such items no later than ten (10)
days after Mortgagee furnishes Tenant with invoices for such work. In the
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event Tenant shall fail to maintain the Property in a commercially reasonable
condition, Mortgagee may take all steps necessary to repair and maintain the
Property in such condition at Tenant's sole cost and expense.
7. Use and Operation of Demised Premises.
a. Throughout the Term of this Lease, Tenant covenants to use the
Demised Premises solely for the sale and distribution of medical supplies and
devices and for such other lawful uses, subject to Landlord's prior written
consent, which consent shall not be unreasonable withheld.
b. In the event Tenant's use of the Demised Premises shall result
in a Use Group H - High Hazard Uses classification for the Demised Premises
under the applicable BOCA codes or other applicable laws, Tenant shall be
solely responsible, at its cost, to bring the Demised Premises within
compliance of the applicable BOCA codes or other applicable laws.
c. Tenant shall not enter into any activities at the Property which
involve the on-site generation, manufacture, refining, transportation,
treatment, storage, handling or disposal of "Hazardous Substances" and/or
wastes as defined in ISRA and its implementing regulations, or as defined under
the New Jersey Spill Compensation and Control Act (the "Spill Act"), N.J.S.A.
58: 10-23.11, et seq., as amended, or the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. 9601 et seq. ["CERCLA" ]) or any
other applicable environmental law. Tenant shall indemnify, defend and save
Mortgagee harmless from all fines,
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costs, suits, damages, procedures, judgments, or actions of any kind resulting
from such use by Tenant of the Property.
d. The use by Tenant of the Property shall be in a careful, lawful,
safe and proper manner, and Tenant shall not permit the same to be used for any
unlawful purpose, nor commit nor suffer any waste. Tenant covenants to comply
with all reasonable rules and regulations which Mortgagee may, at any time or
from time to time during the Term of this Lease, impose on other tenants, their
employees, agents, licensees and customers.
8. Insurance.
a. Beginning on the Commencement Date, Tenant agrees to pay monthly
during the Term of this Lease, as additional rent, an amount equal to
one-twelfth (1/12th) of the annual cost for all insurance Mortgagee maintains
for the Property, including, but not limited to, all insurance for loss or
damage by fire and all other casualties ordinarily included in extended
coverage, public liability, insurance for the payment of rent, personal injury,
property damage and all other insurance of any type, kind or description which
may be reasonably required for the Property.
b. Tenant shall not do, not permit to be done, any act or thing on
the Property which shall invalidate or be in conflict with, or cause any
additional premium for, any insurance policy insuring the Property.
c. Tenant shall, during the Term hereof, at its sole cost and
expense, keep in full force and effect a policy of comprehensive public
liability and property damage insurance
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with respect to the Demised Premises and the business operated by Tenant in the
Demised Premises as to which the limits of liability shall not be less than TWO
MILLION ($2,000,000.00) DOLLARS per person and THREE MILLION ($3,000,000.00)
DOLLARS per accident or occurrence and in which the property damage liability
shall not be less than TWO MILLION ($2,000,000.00) DOLLARS. The policy shall be
from a New Jersey licensed company, with at least a Best's rating of "A", and
shall name Mortgagee as an additional insured. The policy shall contain a clause
that the insurer will not cancel the insurance coverage without first giving
Mortgagee thirty (30) days' prior written notice. A copy of a certificate
evidencing such coverage will be delivered to Mortgagee before the Commencement
Date and thereafter on each successive renewal of said coverage.
9. Tenant's Work. Tenant shall receive an allowance of up to Twenty-Five
Thousand and No/100 Dollars ($25,000.00) (the "Allowance Amount") for
improvements (including reasonable architectural and engineering fees) completed
by Tenant (the "Tenant Improvements") at the Property. Such allowance shall be
paid upon Mortgagee's receipt of paid bills from bona-fide contractors detailing
the work completed, the date completed, the cost of such completed work and duly
executed lien waivers for said work. Upon Mortgagee's receipt and approval of
the above items, Tenant shall receive reimbursement within ten (10) days after
Mortgagee's receipt of the above items. In the event Mortgagee fails to provide
such reimbursement or a notice of disapproval within said ten (10) day period,
Tenant shall be entitled to affect the reimbursement amount against payments
becoming due under this Lease. Tenant shall retain a licensed architect for the
development of all plans for the Tenant Improvements.
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Tenant shall retain licensed contractors to complete the Tenant
Improvements in a good and workmanlike manner and in accordance with the
terms of this Lease, including Paragraphs 10(b) and 10(c), and all
applicable laws, statutes, rules, regulations and ordinances of the
federal, state and municipal governments. Tenant shall take all reasonable
steps during the completion of the Tenant Improvements to minimize any
interference with Mortgagee's completion of the Mortgagee's Work (as such
term is hereinafter defined). Tenant shall indemnify, defend and save
Mortgagee harmless from and against all injuries, liability, judgment,
expenses, claims or damages to any persons or property arising out of the
construction and/or completion of the Tenant Improvements. Tenant shall be
responsible for obtaining any and all work permits and certificates of
occupancy required for Tenant's Improvements.
10. Repairs and Alterations.
a. Tenant covenants that throughout the Term of this Lease it will
take good care of the Demised Premises, including all alterations, changes and
improvements at any time erected thereon, and to keep and maintain same in good
order and condition subject to normal wear and tear and damage. Except for roof
and structural repairs (not required as a result of Tenant's negligence or
wilful act) Tenant shall promptly make, at its sole cost and expense, all
repairs and replacements to the Demised Premises, including but not limited to
those portions of electrical, air-conditioning, heating and plumbing servicing
(including HVAC on roof) the Demised Premises. Except for the work to be
performed by Mortgagee as set forth on Exhibit A attached hereto (the
"Mortgagee's Work"), Mortgagee shall deliver, and Tenant shall accept, the
Demised Premises in its "as is" condition. Mortgagee shall be responsible, at
its sole cost and
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expense, for obtaining any required certificate of occupancy or continuing
certificate of occupancy for the Demised Premises due to Mortgagee's Work,
subject, however, to the conditioning of the issuance of the certificate of
occupancy or continuing certificate of occupancy on the completion of work for
which Tenant is responsible. Tenant shall be responsible, at its sole cost and
expense, for obtaining any required certificate of occupancy or continuing
certificate of occupancy for the Demised Premises required for items other than
Mortgagee's Work.
b. Tenant shall, during the Term of this Lease, at its sole cost and
expense, promptly comply with any statute, ordinance, rule, order, regulation or
requirement of the federal, state and municipal governments and any and all
departments, agencies, bureaus and subdivisions thereof as same shall apply to
the Demised Premises and observe and promptly comply with: (i) all reasonable
rules, orders and regulations of the Board of Fire Underwriters or any like
agency; and (ii) the requirements of all insurance carriers issuing policies
maintained by Mortgagee on the Demised Premises or on the Property.
c. Tenant shall have the right during the Term of this Lease to make
interior alterations and improvements to the Demised Premises subject to the
following conditions: (i) any and all governmental permits and authorizations
required therefor shall have been obtained by Tenant prior to the undertaking of
said alterations or improvements; (ii) no structural alteration or structural
improvement of the Demised Premises shall be undertaken until detailed plans and
specifications have first been submitted to and approved in writing by Mortgagee
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which approval shall not be unreasonably withheld and which approval shall be
deemed granted if Mortgagee does not respond within fifteen (15) days after
Mortgagee's receipt of said plans and specifications; (iii) all alterations and
improvements, when completed, shall be of such a character as shall not reduce,
or otherwise adversely affect, the value of the Demised Premises, reduce the
cubic content of the Demised Premises, affect the structural soundness of the
Demised Premises, or change the character of the Demised Premises; (iv) all work
done in connection with any alterations and improvements shall be done promptly
and in a good and workmanlike manner and in compliance with all building and
zoning laws, and with all laws, ordinances, orders, rules, regulations and
requirements of all federal, state and municipal governments and the appropriate
departments, commissions, boards and officers thereof, and in accordance with
orders, rules and regulations of the Board of Fire Underwriters (or like agency)
where the Demised Premises is situated, or any other body exercising similar
functions and having jurisdiction thereover; (v) all alterations and
improvements shall be completed free of liens for labor and materials supplied
or claimed to have been supplied to the Demised Premises; and (iv) Tenant shall,
at its sole cost and expense, maintain adequate insurance therefor, including
statutory workmen's compensation insurance covering all persons employed in
connection with the work and with respect to whom death or injury claims could
be asserted against Mortgagee, Tenant or the Demised Premises; and general
liability insurance naming Mortgagee as an additional insured, which policy
shall have limits of not less than TWO MILLION ($2,000,000.00) DOLLARS per
person and THREE MILLION ($3,000,000.00) DOLLARS per accident or occurrence and
TWO MILLION ($2,000,000.00) DOLLARS for property damage.
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The policy shall provide that the insurer will not cancel the insurance coverage
without first giving Mortgagee thirty (30) days' prior written notice and that
the deductible thereunder shall not exceed $50,000,000. All such insurance will
be in a company or companies authorized to do business in New Jersey, with at
least a Best's rating of "A", and all such policies or certificates thereof
shall be delivered to Mortgagee prior to the commencement of any work.
11. Eminent Domain.
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a. If the total Demised Premises is taken, acquired or purchased by
or through condemnation proceedings or any right of eminent domain or any other
authority of law, with or without the entry of an order in a judicial
proceeding, this Lease shall terminate as of the date of taking without further
liability by the parties hereto.
b. The date of any taking shall be the date specified in the
official notice of the condemning authority, or in the absence of such notice,
the vesting of title in said authority. Subject to the provisions as hereinafter
provided in this paragraph, all rent or other charges paid or payable by Tenant
to Mortgagee shall be abated as of the date of said taking. Upon any termination
or cancellation of this Lease, as provided in this section, all rent or other
charges paid in advance for any period after the effective date of the taking
shall be refunded to Tenant, less any sums due Mortgagee from Tenant.
c. Mortgagee reserves to itself all rights to damages or
compensation accruing on account of any such taking of the real property
comprising and included in the Demised Premises as aforesaid or by reason of
any act of any public or quasi-public authority for
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which damages are payable. Tenant shall not be entitled to any portion of the
award as a result of the loss of its leasehold interest; however, Tenant may
seek compensation for Tenant's fixtures and moving expenses, provided such award
shall not diminish Mortgagee's award.
d. In the event that only a portion of the Demised Premises is taken,
this Lease shall remain in full force and effect and the rental payable
hereunder shall be equitably adjusted.
12. Indemnity and Liability for Injury and Loss.
a. Mortgagee: (1) shall not be liable to Tenant or any other person on
the Property for any damage either to person or property; (2) shall not be
responsible or liable in any way whatsoever for the quality, quantity,
impairment, interruption, stoppage of or other interference with services
involving water, heat, gas, electrical current for light and power, telephone or
any other service by any public utility; and (3) shall not be liable for any
damage or injury by water, steam, electricity, gas, rain, ice or snow which may
be sustained by Tenant or any other person.
b. Tenant shall indemnify, defend and save Mortgagee harmless from and
against all injuries, liability, judgments, expenses, claims or damages to any
person or property while on or about the Property arising out of the use or
occupancy of the Property by Tenant.
13. Lease Subordination.
a. Any mortgages (as defined below) that are now or hereafter may be
placed against the Property or any part thereof shall have preference and
precedence and be superior and
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prior to this Lease (and this Lease shall be subordinate to any such mortgages),
irrespective of the date of granting or recording and Tenant does hereby agree
to accept (and attorn to) any mortgagee as the landlord hereunder and to perform
its obligations as Tenant under this Lease, if any mortgagee acquires title to
the Property by foreclosure or otherwise. Mortgagee shall use its good faith
efforts to secure a non-disturbance agreement from future mortgagees in favor of
Tenant, but such failure to secure a non-disturbance agreement shall in no way
affect the subordination of this Lease.
b. The term "mortgage" as used in this section includes mortgages,
deeds of trust or any similar instruments and modifications, extensions,
renewals and replacements thereof given to: (1) institutional lenders unrelated
to Mortgagee and (2) any lender provided it enters into an non-disturbance
agreement with Tenant.
c. In the event Mortgagee desires confirmation of such subordination
and attornment, Tenant shall deliver any instrument which may be reasonably
required to further evidence the subordination of this Lease to the lien of any
such mortgage or mortgages and the agreement by Tenant to accept the mortgagee
as the landlord and perform under this Lease if this mortgagee acquires title to
the Property by foreclosure or otherwise, as shall be desired by any aforesaid
mortgagees, provided such instrument shall not alter the terms of this Lease.
d. Tenant does hereby agree to any assignment by Mortgagee of the
rentals under this Lease to a mortgagee.
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e. Tenant shall, within ten (10) days after receipt of Mortgagee's
written request: (i) execute and deliver to Mortgagee a certified financial
statement; and/or (ii) execute and deliver an estoppel certificate in a form
required by Mortgagee, stating, to the extent such statements are accurate: (i)
it is the tenant under this Lease; (ii) the Demised Premises has been accepted
and occupied and rent payments have commenced; (iii) the Lease is in full force
and effect and fully sets forth the agreement of the parties; (iv) the Lease has
not been modified, amended, assigned or sublet, or if it has been, in what
manner; (v) no claim or right of setoff exists, and neither Mortgagee nor
Tenant is in default and no grounds for reducing the rent or canceling the
Lease exist; (vi) the date through which rent has been paid; and (vii) such
other matters as Mortgagee shall reasonably require. Tenant's failure to timely
deliver the certified financial statement and/or the estoppel certificate shall
be deemed a material default under this Lease.
14. Casualty.
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a. If, after the date hereof, the Demised Premises is damaged by
fire, enemy action, or other casualty which shall result in a significant
interference with the conduct of Tenant's business at the Demised Premises and
Mortgagee is so notified in writing by Tenant (such damage being hereafter
called "damage"), Mortgagee shall, at its option, repair or restore the Demised
Premises. In the event Mortgagee elects to repair or restore the Demised
Premises, there shall be a fair and proportionate abatement of all rent payable
hereunder according to the time during which, and the portion or extent to
which, the Demised Premises may not be used by Tenant.
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b. In the event Mortgagee shall elect to repair or restore the
damage, Mortgagee shall notify Tenant in writing of the time required to repair
or restore. In the event Mortgagee shall notify Tenant that such time shall
exceed one hundred eighty (180) days from the date of occurrence of the damage,
Tenant may elect to terminate this Lease by written notice to Mortgagee within
thirty (30) days of receiving Mortgagee's notice, time being of the essence.
Tenant's failure to timely exercise this option to terminate shall be deemed a
waiver of this option. In the event Mortgagee shall not substantially complete
the repairs by the 210th day following the date of the damage, Tenant may upon
written notice to Mortgagee terminate this Lease. In the event Tenant fails to
exercise this option by the 215th day following the date of the damage, time
being of the essence, Tenant shall be deemed to have waived its option to
terminate.
c. If Mortgagee shall elect not to repair or restore the damage,
this Lease shall terminate as of the date of occurrence of the damage.
15. ISRA Compliance.
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a. Anything contained to the contrary in Paragraph 15(b) below
notwithstanding, Tenant shall not be responsible for any environmental
conditions existing at the Property as of the Commencement Date of this Lease.
b. Tenant shall, at Tenant's own expense, comply with N.J.S.A.
13:1k-6 et seq., and the regulations promulgated thereunder ("ISRA"), as well
as all other environmental laws now or hereafter enacted and applicable to the
Property and Tenant's use thereof. In the
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event of Tenant's actions or inactions which cause a problem, Tenant shall, at
Tenant's own expense, make all submissions to, provide all information to, and
comply with all requirements of, the New Jersey Department of Environmental
Protection (the "NJDEP") or such other appropriate agency charged with the
administration of ISRA or other applicable environmental laws. Should any
division of NJDEP determine that a cleanup plan be prepared and that a cleanup
be undertaken because of any spills or discharges of hazardous substances or
wastes which occur during the Term of this Lease, then Tenant shall, at Tenant's
own expense, prepare and submit the required plans and financial assurances and
carry out the approved plans. Tenant shall indemnify, defend and save Mortgagee
harmless from and against all fines, suits, procedures, claims and actions of
any kind arising out of or in any way connected with any spills or discharges of
hazardous substances or wastes at the Property which occur during the Term of
this Lease. Tenant shall also indemnify, defend and save Mortgagee harmless from
and against all fines, suits, procedures, claims and actions of any kind arising
out of Tenant's failure to provide all information, make all submissions and
take all actions required by ISRA, or any other division of NJDEP or under any
environmental law. Tenant's failure to abide by the terms of this paragraph
shall be restrainable by injunction. Tenant shall effectuate and complete full
compliance with ISRA and any other applicable environmental law, including but
not limited to, any necessary cleanup, prior to the Termination Date of this
Lease. Tenant shall commence its compliance with such laws in sufficient time
prior to the Termination Date so as to complete its obligations under this
paragraph by no later than the Termination Date. In the event ISRA shall not
apply to Tenant's occupancy of the Property at the end of the Term of this
Lease, Tenant
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shall furnish Mortgagee with a letter of non-applicability from the NJDEP at the
end of the Term. Tenant represents that its SIC number is, and shall remain
throughout the term of this Lease, 3841. Tenant's obligation under this
paragraph shall survive the termination of this Lease.
c. Within a reasonable period of time after the execution of this
Lease, Mortgagee shall furnish to Tenant copies of materials in its possession
relating to the environmental condition of the Property. Mortgagee is furnishing
this material to Tenant solely as an accommodation and makes no representations
or warranties as to the environmental condition of the Property or the
truthfulness or accuracy of the materials furnished.
16. Defaults and Remedies.
a. The following shall constitute events of default under this
Lease:
(i) failure to pay, when due, any installment of the fixed rent,
or additional rent, or any part thereof;
(ii) failure in the performance of or compliance with any of the
other covenants, conditions and/or terms of this Lease, which failure shall
continue for more than thirty (30) days after written notice thereof by
Mortgagee to Tenant;
(iii) if this Lease shall be assigned or there shall be a
subletting of the Demised Premises without Mortgagee's prior written consent;
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(iv) the filing by or against Tenant of any petition with respect to
its own financial condition under any bankruptcy law or any amendment thereto
(including, without limitation, a petition for reorganization, arrangement or
extension), or under any other insolvency law or laws providing for the relief
of debtors (which petition, if filed against Tenant, shall not be dismissed
within ninety (90) days); the appointment of a receiver, trustee, custodian,
conservator or liquidator for Tenant of all or substantially all of Tenant's
assets, and the custodianship or appointment is not dismissed within ninety (90)
days after the commencement thereof; the admission by Tenant of its insolvency;
the making of a general assignment for the benefit of creditors; however, the
foregoing shall not be a default if rent is paid on a current basis;
(v) if Tenant liquidates or ceases to exist;
(vi) Tenant's recording this Lease or a memorandum thereof.
b. Upon the occurrence of any event of default, Mortgagee, in
addition to any and all rights and remedies it may have at law and equity, may
exercise any one or more of the following remedies:
(i) Mortgagee may give Tenant a notice (the "Termination Notice") of
its intention to terminate this Lease specifying a date not less than ten (10)
days thereafter, upon which date this Lease, the term and estate hereto granted
and all rights of Tenant hereunder shall expire and terminate. Notwithstanding
the foregoing: (i) Tenant shall remain liable for damages as hereinafter set
forth and (ii) Mortgagee may institute dispossess proceedings for non-payment
22
of rent, or other proceedings to enforce the payment of rent, without giving
the Termination Notice. Upon any such termination or expiration of this Lease,
Tenant shall peaceably quit and surrender the Demised Premises to Mortgagee,
and Mortgagee may without further notice enter upon, re-enter, possess and
repossess itself thereof, by summary proceedings, ejectment or otherwise and
may have, hold and enjoy the Demised Premises and the right to receive all
rental and other income of and from the same;
(ii) Mortgagee may, at Mortgagee's sole option (without imposing an
duty upon Mortgagee to do so), and Tenant hereby authorizes and empowers
Mortgagee to: (i) re-enter the Demised Premises for its own account or
otherwise; (ii) relet the same for any term; (iii) remove Tenant's improvements
if reasonably necessary or desirable for such reletting purposes; (iv) restore
the Demised Premises to the condition in which it was required to be surrendered
by Tenant; and (v) receive and apply the rent so received to pay all fees and
expenses incurred by Mortgagee, directly or indirectly, as a result of Tenant's
default, including, without limitation, any reasonable legal fees and expenses
arising therefrom, the reasonable cost of re-entry, repair, remodeling and
reletting and the payment of the rent and other charges due hereunder. No entry,
re-entry or reletting by Mortgagee, whether by summary proceedings, termination
or otherwise, shall discharge Tenant from any of its liability to Mortgagee as
set forth in this Lease; and in no event shall Tenant be entitled to, or receive
any benefit or credit from, any rental in excess of the rent reserved under this
Lease which results from a reletting of the Demised Premises after Tenant's
default;
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(iii) Tenant will pay Mortgagee, and be liable to Mortgagee for, the
full amount of all fixed annual rent and additional rent thereafter to become
due. Mortgagee shall be deemed to have satisfied its obligation, if any, to
mitigate its damages provided Mortgagee shall list the Demised Premises for
lease with a licensed real estate broker;
(iv) If Tenant shall fail to make any payment required to be made
under this Lease, or shall default in the performance of any covenant,
agreement, term, provision or condition herein contained, Mortgagee may, without
being under any obligation to do so and without thereby waiving such default,
make such payment and/or remedy such default for the account and at the sole
expense of Tenant. Tenant shall pay to Mortgagee, on demand, the amount of all
sums so paid and all expenses so incurred by Mortgagee;
(v) Tenant, for itself and on behalf of any and all persons claiming
through or under it, including without limitation, creditors of every kind,
hereby waives and surrenders all rights and privileges which it or any of them
may have under, or by reason of, any present or future law to redeem the Demised
Premises, or to have a continuance of this Lease for the remainder of the Term,
after a judgment for possession or after Tenant is ejected therefrom by process
of law or after the termination of this Lease as herein provided;
(vi) Mortgagee and Tenant shall be liable to the other for any and
all reasonable attorney's fees and costs which the other may incur as a result
of Mortgagee or Tenant seeking to enforce or protect its rights against the
other in connection with this Lease.
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c. The failure on the part of Mortgagee to re-enter or repossess the
Demised Premises, or to enforce any of its rights as provided in this section
upon any default, shall not be deemed a waiver of any of the terms and
conditions of this Lease and shall not preclude said Mortgagee from exercising
any such rights upon any subsequent occurring default or defaults. All of
Mortgagee's rights shall be cumulative and shall not preclude Mortgagee from
exercising any other rights which it may have under law.
17. Assignment and Subletting.
a. Tenant shall not be entitled to transfer, sell, mortgage, pledge,
hypothecate, or assign this Lease or sublet or grant a concession or license or
otherwise permit any other person or entity to occupy the Demised Premises or
any part thereof (hereinafter referred to as an "Assignment") without the prior
written consent of Mortgagee, which consent shall not be unreasonably withheld.
Notwithstanding anything contained in this Paragraph 17(a) to the contrary,
Tenant shall be entitled to assign this Lease to a parent, subsidiary or
affiliate of Tenant or in connection with a merger, consolidation, combination
or sale of substantially all of Tenant's assets provided said parent,
subsidiary, affiliate or surviving entity, as the case may be, is at least as
creditworthy on the date of such transaction as Tenant is on the date hereof as
determined by Mortgagee in its sole discretion.
b. In the event Mortgagee consents to an Assignment (however,
Mortgagee may terminate this Lease in lieu of consenting to an Assignment) such
consent to that
25
Assignment shall be expressly conditioned upon the compliance by Tenant and the
proposed assignee with the following provisions:
(i) From the time of the request for a consent to the Assignment
through the effective date of the Assignment itself, this Lease must be in full
force and effect without any breach or default thereunder existing on the part
of Tenant;
(ii) The Assignee shall assume, by written instrument, in form and
content reasonably satisfactory to Mortgagee, the due performance of all of
Tenant's obligations under the Lease, including any accrued obligations at the
time of the Assignment;
(iii) A copy of the Assignment and the original assumption agreement
(both in form and content satisfactory to Mortgagee) fully executed and
acknowledged by the Assignee, together with a certified copy of a properly
executed corporate resolution authorizing such assumption, if applicable, shall
be delivered to Mortgagee prior to the effective date of such Assignment. Tenant
shall acknowledge, in writing, in a form acceptable to Mortgagee, that it shall
remain liable under this Lease regardless of the Assignment;
(iv) Such Assignment shall be upon and subject to all the
provisions, terms, covenants and conditions of this Lease and shall expressly
set forth that Tenant and Assignee shall continue to be and remain liable
hereunder;
(v) Tenant shall comply with the requirements of ISRA in
accordance with the provisions of Section 15.
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18. Signs. Tenant shall not display any sign, picture, advertisement, or
notice on the Demised Premises, nor anywhere in the Common Area, except Tenant
may display such signs as first approved by Mortgagee in writing, which approval
shall not be unreasonably withheld. Tenant shall be responsible for the
maintenance and repair of its signs and shall remove them at the expiration of
the Term of this Lease and repair all damage caused by the removal.
19. Mortgagee's Right to Make Modifications. Mortgagee reserves the right
to make improvements to the Demised Premises, provided Mortgagee furnishes
Tenant with prior, written notice of such improvements and such improvements and
construction shall not unreasonably interfere with Tenant's use of the Demised
Premises or access to the Demised Premises.
20. Bankruptcy of Tenant.
a. Upon the filing of a petition by or against Tenant under the United
States Bankruptcy Code, Tenant, as debtor and as debtor in possession, and any
trustee who may be appointed, agree as follows: (i) to perform each and every
obligation of Tenant under this Lease including, but not limited to, the manner
of "use and operation" of the Demised Premises as provided in paragraph 7 of
this Lease until such time as this Lease is either rejected or assumed by order
of the United States Bankruptcy Court; and (ii) to pay monthly in advance on the
first day of each month, as reasonable compensation for use and occupancy of the
Demised Premises, an amount equal to all rent and other additional rent
otherwise due pursuant to this Lease; and (iii) to reject or assume this Lease
within sixty (60) days of the filing of such petition under
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Chapter 7 of the Bankruptcy Code or within one hundred twenty (120) days (or
such shorter term as Mortgagee, in its sole discretion, may deem reasonable so
long as notice of such period is given) of the filing of a petition under any
other Chapter; and (iv) to give Mortgagee at least forty-five (45) days' prior
written notice of any proceeding relating to any assumption of this Lease; and
(v) to give at least thirty (30) days' prior written notice of any abandonment
of the Demised Premises; and such abandonment to be deemed a rejection of this
Lease; and (vi) to do all other things of benefit to Mortgagee otherwise
required under the Bankruptcy Code; and (vii) to be deemed to have rejected this
Lease in the event of the failure to comply with any of the above; and (viii) to
have consented to the entry of an order by an appropriate United States
Bankruptcy Court providing all of the above, waiving notice and hearing of the
entry of same.
b. No default of this Lease by Tenant, either prior to or after the
filing of such a petition, shall be deemed to have been waived unless expressly
done so in writing by Mortgagee.
21. Holding Over.
Tenant shall have no right to remain in possession after the
Termination Date. If Tenant shall occupy the Demised Premises after the
expiration of this Lease with the consent of Mortgagee (which consent shall be
the obligation of Tenant to obtain in writing prior to the Termination Date and
which consent Mortgagee shall be under no obligation to give), and rent is
accepted and collected from said Tenant, such occupancy and payment shall be
construed as an extension of this Lease for a term of month-to-month only, from
the date of such expiration. In
28
such event, if either Mortgagee or Tenant desires to terminate said occupancy at
the end of any month after the termination of this Lease, the party so desiring
to terminate the same shall give the other party (30) days' written notice to
that effect. If such occupancy continues after the aforesaid notice of
termination, or if Tenant shall continue its occupancy after the Termination
Date without obtaining Mortgagee's written consent, Tenant shall pay to
Mortgagee, as partial damages, double the amount of both fixed annual rent (at
the rate which was last in effect for the Term) and all additional rent for the
time, on a per diem basis, Tenant retains possession of the Demised Premises or
any part thereof, after termination of the Term, together with all costs,
expenses and damages incurred by Mortgagee and its agents to obtain possession
from Tenant. Furthermore, if such occupancy continues after the aforesaid notice
of termination, or if Tenant shall continue its occupancy after the Termination
Date without obtaining Mortgagee's written consent, Tenant shall be liable to
Mortgagee for any loss of rents and/or liability sustained by Mortgagee or its
agents in connection with any subsequent tenancy which may have intended to
occupy said Demised Premises at the expiration of the Term herein. The
acceptance of rent and/or additional rent by Mortgagee shall not be deemed to
create a new or additional tenancy other than aforesaid.
22. Surrender.
a. On the last day of the Term or on the sooner termination
thereof, Tenant shall, at Tenant's sole cost and expense: (i) peaceably
surrender the Demised Premises broom-clean, in as good order and condition as of
the commencement of the Term of this Lease, except for reasonable wear and tear
and damage by casualty; and (ii) remove from the Demised
29
Premises its signs, furniture, equipment, machinery and trade fixtures
("Tenant's Property"). Tenant's Property not so removed within thirty (30) days
following the Termination Date, may at Mortgagee's election and without limiting
Mortgagee's right to compel removal thereof, be deemed abandoned. Any damage to
the Demised Premises caused by the Tenant in the removal of Tenant's Property
shall be immediately repaired by Tenant at Tenant's sole cost and expense, and
this obligation shall survive the expiration or sooner termination of the Lease.
b. Title to all alterations, additions, improvements, repairs,
fixtures, other than Tenant's Property, which shall have been made, furnished or
installed by or at the expense of either Mortgagee or Tenant in or upon the
Demised Premises, shall vest in Mortgagee upon the installation thereof, and the
same remain upon and be surrendered with the Demised Premises as part thereof
without disturbance and without charge, unless otherwise required by Mortgagee.
23. Notices.
a. All notices and demands which are required by or are permitted by
the terms of this Lease shall be given in writing, whether herein specified or
not, and shall be deemed effectively given upon receipt or rejection if
personally delivered, delivered by overnight courier with return receipt,
telecopied or sent by United States registered, express or certified mail,
postage prepaid, addressed to the parties at the following address:
For Mortgagee:
NJ MORTGAGE ACQUISITION, LLC
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000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
For Tenant:
INTERNATIONAL TECHNIDYNE CORP.
0 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn:
-------------------
Tel:
-------------------
Fax:
-------------------
Said addresses and the names of the parties to whom notices are to be sent
may be changed from time to time by either party, or by an assignee or successor
of either of them, by the giving of written notice to the other sent as
above provided.
24. Miscellaneous.
a. Definitions.
(i) The words "rent" or "rental" may be used interchangeably and are
defined to include all monies specifically reserved as fixed annual rental,
additional rent, and all costs, expenses and damages which Mortgagee may suffer
or incur by reason of any default of Tenant or failure on Tenant's part to
comply with the covenants, terms or conditions of this Lease, and all other sums
of money which by virtue of this Lease shall at any time or times become due and
owing by Tenant to Mortgagee.
b. Abandonment of Fixtures. If, after the default in payment of
rent or violation of any other provisions of this Lease or at any time during
the Term hereof or upon
31
expiration of this Lease, Tenant moves out or is dispossessed and fails to
remove any trade fixtures or any other property within thirty (30) days after
said moving or dispossession then, in that event, the said fixtures and
property shall be deemed abandoned by Tenant and shall become the property of
Mortgagee.
c. Waiver. No agreement to accept a surrender of the Demised
Premises shall be valid unless in writing signed by Mortgagee. The delivery of
keys to any employee of Mortgagee or of Mortgagee's agents shall not operate as
a termination of the Lease or a surrender of the Demised Premises. The failure
of Mortgagee to seek redress for violation of, or to insist upon the strict
performance of, any covenant or condition of this Lease, or of any rule or
regulation, shall not be construed as a waiver or relinquishment for the future
of such covenants, condition, rule or regulation. The receipt by Mortgagee of
rent with knowledge of a breach of any covenant of this Lease shall not be
deemed a waiver of such breach, except for a breach in the payment of the rent
so accepted. No payment by Tenant or receipt by Mortgagee of a lesser amount
than the rent herein stipulated shall be deemed to be other than on account of
the earliest stipulated rent, nor shall any endorsement or statement on any
check nor any letter accompanying any check or payment as rent be deemed an
accord and satisfaction, and Mortgagee may accept the balance of such rent or
pursue any other remedy provided in this Lease.
d. Entire Agreement. This Lease and the Exhibits, if any, attached
hereto and forming a part hereof, set forth all the covenants, promises,
agreements, conditions and
32
understandings between Mortgagee and Tenant concerning the Demised Premises.
There are no oral agreements or understandings between the parties hereto
affecting this Lease, and this Lease supersedes and cancels any and all
previous negotiations, arrangements, agreements and understandings, if any,
between the parties hereto with respect to the subject matters hereof, and none
thereof shall be used to interpret or construe this Lease. Except as herein
otherwise expressly provided, no subsequent alteration, amendment, change or
addition to this Lease, shall be binding upon Mortgagee or Tenant unless
reduced to writing and signed by them.
e. Lease Effective. The submission of this Lease by Mortgagee to
Tenant for examination shall not be deemed to constitute an offer by Mortgagee
or a reservation to Tenant of an option to lease, and this Lease shall become
effective as a binding instrument only upon the execution and delivery thereof
by both Mortgagee and Tenant.
f. Partial Invalidity. If any term, covenant or condition of this
Lease or the application thereof shall, to any extent, be invalid or
unenforceable, the remainder of this Lease or the application of such term,
covenant or condition to persons or circumstances, other than those for which
it is held invalid or unenforceable, shall not be affected thereby and each
remaining term, covenant or condition of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
5. Rights of Entry. Mortgagee or its duly authorized agents or
representatives shall have the right, upon reasonable notice, except in the
case of an emergency, to enter upon the Demised Premises during all reasonable
business hours for the purpose of
33
examining the same, showing the same to banking and insurance representatives,
governmental inspectors, or, in the event of emergency, in order that repairs
and alterations may be made for the safety and preservation thereof, provided,
however, that Mortgagee's right to enter upon said Demised Premises shall be
subject to the exercise of ordinary care and caution in doing so. Mortgagee and
Mortgagee's duly authorized agents or representatives shall also have the right
to show the Demised Premises to persons wishing to purchase or lease the same
during the six (6) months next prior to the expiration of the Term of this
Lease. Mortgagee or its duly authorized agents or representatives shall have the
right to place notices on the front of the Building offering the Demised
Premises for lease or for sale.
h. Elimination of Liens by Tenant. Tenant shall not suffer or permit
or cause any liens or any action to be filed against the Demised Premises by
reason of any cause of Tenant or Tenant's agents or employees. In the event that
any such lien is filed, Tenant shall have the same discharged within thirty (30)
days after notice thereof or post appropriate security satisfactory to Mortgagee
to protect Mortgagee's interest as a result of said lien. Nothing in this Lease
contained shall be deemed to be a consent on the part of Mortgagee to subject
the Demised Premises to a lien or a claim under a mechanic's lien law of New
Jersey by reason of labor or material furnished to Tenant in connection with the
Demised Premises.
i. Interpretation. The captions and headings throughout this Lease
are for convenience and reference only and the words contained therein shall in
no way be held or deemed to define, limit, describe, explain, modify, amplify or
add to the interpretation,
34
construction or the meaning of any provisions of, or the scope or intent of,
this Lease, nor in any way affect this Lease.
All references to nouns and pronouns used herein shall be construed in the
singular or plural and in such gender and tense as the sense of this Lease
requires.
The words "hereby", "herein", "hereof", "hereto", "hereunder", and similar
words shall always be deemed to refer to this Lease in its entirety, and not
merely to the subparagraph or paragraph wherein such words appear, unless
expressly so modified.
j. Trial by Jury Waiver. The parties hereby waive trail by jury in
any action, proceeding or counterclaim brought by either party against the other
on any matter arising out of or in any way connected with this Lease, the
relationship of Mortgagee and Tenant, or Tenant's use and occupancy of the
Demised Premises.
k. Successors and Assigns. This Lease shall be binding upon and
shall inure to the benefit of the parties hereto, their respective heirs,
representatives, successors, and to the extent that this Lease is assignable by
the terms hereof, to the assigns of such parties. No rights, however, will inure
to the benefit of any assignee of Tenant unless the assignment to such assignee
has been made in accordance with the provisions of this Lease.
l. Real Property. It is specifically understood and agreed by Tenant
that there shall be absolutely no personal liability on the part of Mortgagee or
on the part of the direct or indirect shareholders, principals, directors,
officers, agents or employees of Mortgagee (the "Related Parties") or any
subsequent landlord with respect to any of the terms, covenants and
35
conditions of the Lease, and the liability of Mortgagee and any subsequent
landlord shall not exceed and shall be limited to, and Tenant shall look solely
to, the equity, rent and profits of Mortgagee or any subsequent landlord in and
of the Demised Premises for the satisfaction of each of the terms, covenants and
conditions of this Lease to be performed by Mortgagee or any subsequent
landlord, and including any judgments or other liens obtained by Tenant against
Mortgagee or any subsequent landlord, and Tenant shall not look to any other
property or assets of Mortgagee or any subsequent landlord or the property or
assets of any of the Related Parties in seeking either to enforce Mortgagee's or
any subsequent landlord's obligations under this Lease or to satisfy or collect
on a judgment for Mortgagee's (or any subsequent landlord's) failure to perform
such terms, covenants and conditions. Except as provided herein, no other
property or assets of Mortgagee and/or the Related Parties shall be subject to
levy, lien, execution, attachment or other enforcement procedure.
m. Mortgagee's Obligations. The obligations of Mortgagee under this
Lease shall not be binding upon Mortgagee after the sale, conveyance, assignment
or transfer by Mortgagee, whether by operation of law or otherwise (including,
without limitation, upon the exercise by the fee owner of the Property of any
right of redemption under applicable law) of Mortgagee's interest as landlord
under this Lease (whether prior to or after Mortgagee's acquisition of fee title
in and to the Property), or upon any subsequent landlord after a sale,
conveyance, assignment or transfer by such subsequent landlord of its interest
as landlord under this Lease. In the event of any such sale, conveyance,
assignment or transfer described in the preceding sentence, Mortgagee shall be
and hereby is entirely (except for fraud by, or the
36
criminal acts of, Mortgagee or the partners or agents of Mortgagee) freed and
relieved of all existing and future covenants, obligations and liabilities as
landlord hereunder, and it shall be deemed and construed without further
agreement between the parties or their successors in interest, or the parties
and the assignee or other transferee of the interest of landlord hereunder, that
any such purchaser, grantee, assignee, successor by operation of law or
otherwise or other transferee (including, without limitation, the fee owner of
the Property upon the exercise of any right of redemption) has assumed and
agreed to carry out, undertake and perform and shall be subject to any and all
covenants, obligations and liabilities of the landlord hereunder.
25. Brokers. Tenant and Mortgagee represent and warrant to the other that
it has not dealt with any broker or agent in connection with the negotiation or
execution of this Lease other than Xxxxxx Associates and Binswanger/Klatskin,
whose commission shall be paid by Mortgagee pursuant to a separate written
agreements. Tenant and Mortgagee shall each indemnify the other against all
costs, expenses, attorneys' fees, and other liability for commissions or other
compensation claimed by any other broker or agent claiming the same by, through
or under the indemnifying party.
26. Authority. Tenant acknowledges that Mortgagee does not currently own
fee title to the Property and is executing this Lease solely in its capacity as
mortgagee of the Property pursuant to the authority granted to Mortgagee, as
mortgagee, under the Order attached hereto as Exhibit B and made a part hereof.
Tenant acknowledges that if the fee interest in the Property is redeemed, the
redeeming party shall succeed to the rights and obligations of Mortgagee
37
hereunder.
27. Security Deposit. Tenant shall, upon the execution of this Lease,
deposit with Mortgagee the sum of Fifty Thousand and 00/100 Dollars ($50,000.00)
(the "Security Deposit") as security for the full and faithful performance by
Tenant of its obligations pursuant to this Lease. The Security Deposit is not an
advance payment of rent or a measure or limit of Mortgagee's damages upon an
event of default. Mortgagee may, from time to time and without prejudice to any
other remedy, use all or a part of the Security Deposit to perform any
obligation Tenant fails to perform hereunder. Following any such application of
the Security Deposit, Tenant shall pay to Mortgagee on demand the amount so
applied in order to restore the Security Deposit to its original amount. The
Security Deposit shall be returned to Tenant, without interest, after the
expiration of the Term, provided that Tenant has carried out all of the terms,
covenants and conditions to be performed by Tenant under this Lease and all
amendments or modifications hereto. If Mortgagee transfers its interest in the
Property and the transferee assumes Mortgagee's obligations under this Lease,
then Mortgagee may assign the Security Deposit to the transferee and Mortgagee
shall have no further liability for the return of the Security Deposit.
38
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals the day and year first above written.
MORTGAGEE:
NJ MORTGAGE ACQUISITION, LLC
a Delaware limited liability company
By: SLG NJ Servicing, LLC, a Delaware limited
liability, its Asset Manager
By: Xxxxxx Xxxxxxx
-----------------------------------------
Name:
Title:
TENANT:
INTERNATIONAL TECHNIDYNE CORP.
a Delaware corporation
By: D. Xxxxx Xxxxxxxx
-------------------------------------------
Name:
Title:
39
EXHIBIT A
Mortgagee's Work
1. Replace the roof and ensure the proper condition of the roof during the
Term.
2. Repair exterior cracks in the Demised Premises.
3. Maintain landscaping in good condition during the Term.
4. Put the overhead doors and loading docks in working order on the
Commencement Date.
5. Resurface the parking lot.
6. Put the HVAC, plumbing and electric systems in working order on the
Commencement Date.
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EXHIBIT B
Order
41
