THIS LEASE, dated the 25th day of July 1997, between XXXXXXX
REAL ESTATE GROUP III, L.P., a New Jersey limited partnership, with offices at
000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as the
"Landlord"); and IMAGING DYNAMICS, INC.,a New Jersey corporation, with offices
at 00 Xxxx Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx, hereinafter referred to as the
"Tenant")
W I T N S S E T H:
ARTICLE I
Demise of Premises
Section 1.01. The Landlord, for and in consideration of the rents to be
paid and of the covenants and agreements thereinafter contained to be kept and
performed by the Tenant, hereby demises aid leases unto the Tenant, and the
Tenant hereby lures and Lakes from the Landlord, for the term and the rent, and
upon the covenants and agreements hereinafter set forth, the premises described
iii Exhibit A attached hereto and made a part hereof (such premises together
with a portion of the Building as hereinafter defined being hereinafter referred
to as the "Demised Premises") , which is situated on that certain parcel of land
located at 00 Xxxx Xxxxxxx Xxxx, in the Borough of Paramus, County of Bergen,
State of New Jersey (hereinafter referred to as the "Real Property"), to include
the use of fifteen (15) parking spaces and use of one (1) tailgate loading door,
as described on Exhibit B, subject, however, to all of the following:
(a)Any state of facts an accurate survey may disclose;
(b)Zoning regulations and ordinances of the governmental subdivision(s) in
which the Demised Premises lie; and
(C)Covenants, restrictions, conditions, easements and party wall agreements
of record, if any.
ARTICLE II
Term of Lease
Section 2.01. The term of this Lease and the demise of the Demised Premises
shall be for three (3) years beginning, subject to Section 29.13, on August 1,
1997 (the "Commencement Date") and ending July 31, 2000 or on such earlier or
later commencement or termination as hereinafter set forth (which term is
hereinafter called the "Term")
ARTICLE III Rent
Section 3.01. Tue Tenant shall pay to the Landlord, during the Term without
counterclaim, deduction or setoff, basic rent, in the amount of One Hundred
Eighty-four Thousand Nine Hundred Seventeen and 60/100 ($184,917.60) Dollars
(hereinafter "Term Basic Rent"), payable in such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
Section 3.02. The Term Basic Rent shall accrue at an annual rate of
Sixty-one Thousand Six Hundred Thirty-nine and 20/100 ($61,639.20) Dollars
(hereinafter "Annual Basic Rent"),and shall be payable in advance on the first
day of each calendar month during the Term in monthly installments of Five
Thousand One Hundred Thirty~six and 60/100 ($5,136.60) Dollars each (hereinafter
"Monthly Basic Rental) except that a proportionately lesser sum lay be paid for
the first and last months of the Term of this lease if the Term commences on a
date other than the first day of the month, in accordance with the provisions of
this Lease hereinafter set forth. The Basic Rent shall be payable at the office
of the Landlord at the address above set forth, or as may otherwise be directed
by notice from the Landlord to the Tenant. As used in this Lease, Basic Rent
shall mean either Term Basic Rent, Annual Basic Rent or Monthly Basic Rent, as
appropriate.
Section 3.03. the Tenant shall, and will, during the Term well and truly
pay, or cause to be paid, to the Landlord, the installments of Monthly Basic
Rent as herein provided and all other sums that may become due and payable by
the Tenant thereunder, at that time and in the manner herein provided, without
counterclaim, offset or deduction; and all other sums due and payable by the
Tenant hereunder may, at the Landlord's option, be deemed to be, and treated as,
Additional Rent, and added to any Term Basic Rent due and payable by the Tenant
hereunder, and, in the event of nonpayment of such other sums, the Landlord
shall have all the rights and remedies herein provided for in the case of the
nonpayment of the Term Basic Rent and Additional Rent, or of a breach of any
covenant to be performed by the Tenant
Section 3.04. The Basic Rent payable by the Tenant pursuant to thus Lease
is intended to be net to the Landlord, and all other charges and expenses
imposed upon the Demised Premises or incurred in connection with its use,
occupancy, care, maintenance, operation aud control, including but not limited
to the charges and expenses payable pursuant to Articles VII and VIII of this
Lease, shall be paid by the Tenant, excepting liens resulting from acts or
omissions of the Landlord and other payments to be paid or obligations
undertaken by tile Landlord as specifically provided in this Lease.
Section 3.05. The Basic Rent payable under this Lease shall be payable to
Xxxxxxx Real Estate Group III, L.P., at the office of the Landlord at the
address set forth in Section 16.01, or as may otherwise be directed by notice
from the Landlord to the Tenant, and shall be payable in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts.
ARTICLE IV
The Demised Premises
Section 4.01. The Demised Premises consists of approximately 9,784 gross
square feet located in a portion of a presently existing building of
approximately 34,966 gross square feet (which building is hereinafter called the
"Building") previously erected thereon) which the Tenant acknowledges that it
has inspected aud is fully familiar with its condition and is leasing the same
"AS Is" condition, subject to the work described in Exhibit C to be done by
Landlord, at Landlord's sole cost and expense. Lisidloid represents that as of
the Commencement Date all Building Systems (i.e. electrical, plumbing,
sprinkler) shall be in working order. Tenant shall, at its sole cost and
expense, perform all initial improvements to tile Demised Premises. Tenant shall
obtain all governmental approvals required for the performance of such work and
shall provide landlord with copies thereof. All work performed by Tenant shall
be iii a 900(3 and workmanlike manner, consistent with the character aud
integrity of the Building and subject to all of the requirements of Sect ions
9.02 and 9.03.
Section 4.02. The Demised Premises herein above described constitutes a
self-contained unit and nothing in this Lease shall impose upon the Landlord any
obligation to provide any services for the benefit of the Tenant, including but
not limited to waLer, gas, electricity, heat, janitorial or garbage removal,
unless aud to the extent expressly provided for in this lease.
ARTICLE V
Use
Section 5.01. The Demised Premises may be used for photographic imaging and
processing and offices in connection therewith. Notwithstanding)y anything to
the contrary, the Landlord makes no representation that the Demised Premises may
be used for those purposes set forth in this Section 5.01. Tenant, at its sole
cost and expense, shall be responsible for obtaining any and all certificates
and/or permits sanctioning Tenant's use from any governmental agencies having
jurisdiction over the Demised Premises, including by way of example, but not
limitation, a Certificate of Occupancy for the Demised Premises. The Tenant
shall not use or permit to be used the Demised Premises or any part thereof for
any purpose other than the aforementioned. In no event shall Tenant store any
products, materialS, machinery, equipment or inventory or perform any activities
outside of the Building.
ARTICLE VI
Quiet Enjoyment
Section 6.01. The Landlord covenants that if, and so long as. the Tenant
pays the Term Basic Rent, and any Additional Rent as herein provided, and
performs the covenants hereof, the Landlord shall do nothing to affect the
Tenant's right to peaceably and quietly have, hold and enjoy the Demised
Premises for the Term herein mentioned, subject to the provisions of this Lease
and to any mortgage or deed of trust to which this Lease shall be subordinate.
ARTICLE VII
Additional Rent, Taxes, Assessments, Water Rates, charges, Etc.
Section 7.01. It is expressly agreed that Tenant shall pay, in addition to
the Basic Rent provided in Article III above, as Additional Rent, Tenant's
Proportionate Share, as defined herein, of the Operating Costs for the Demised
Premises and Building. The Tenant shall pay its Proportionate Share of the
Operating Costs to Landlord before any interest or penalties accrue thereon.
Operating Costs, as used herein, shall mean all reasonable costs incurred for
the operation, maintenance, repair and replacement of the Building and shall
include by way of illustration but; not limitation, Real Estate Taxes, all
domestic water charges, fire sprinkler stand-by charges, costs for snow removal
and landscaping charges, sewer rates and charges, and all other governmental
charges imposed during the Term on the Real Property and Building of which the
Demised Premises are a part, parking lot repairs, pothole maintenance and all
other charges relating to the maintenance of the parking lot area. There shall
be apportioned any tax or charge relating to the fiscal years in which the Term
of this Lease commences or terminates.
Section 7.02. The Tenant shall not be required to pay any estate,
inheritance, devolution, succession, transfer, legacy or gift tax charged
against the Landlord or the estate or
interest of the Landlord in the Demised Premises or upon the right of any
person to succeed to the same or any part thereof by inheritance, succession,
transfer or gift, nor any capital stock tax or corporate)franchise tax incurred
by the Landlord, nor any income tax upon or against the income of the Landlord
(including any rental income derived by the Landlord from the Demised Premises
but titis exclusion shall not be applicable to a gross receipts or rental tax
which shall be considered a Real Estate Tax)
Section 7.03. The Tenant shall pay 20.37(%) percent of all assessments that
may be imposed upon the Real Property by reason of any specific public
improvement (including but not limited to assessments for street openings,
grading, paving and sewer installations and improvements) except that if by law
such special assessment is payable, or may, at the option of the taxpayer, be
paid, in installments, the Tenant may whether or not interest accrues on the
unpaid balance thereof, pay the same and any accrued interest on any unpaid
balance thereof in installments as each installment becomes due and payable, but
in any event before any penalty or cost may be added thereto for payment of any
installment or interest. Any such benefit, assessment or installment thereof
relating to a fiscal period in which the Term~of this lease begins or ends shall
be apportioned.
Section 7.04. The Tenant, in its name or the Landlord's name, shall have
the right to contest, or review, by appropriate proceedings, iii such manner as
it may deem suitable, at its only expense, and without expense to the Landlord,
any tax, assessment, water aud sewer rates or charges, or other charges payable
by the Tenant pursuant to this Lease, and upon the request of this Tenant, and
upon receipt by Landlord of the taxes payable by Tenant under this Article, the
Landlord will pay, under protest, any tax, assessment, water or sewer rent or
charge, or any other charge payable by the tenant pursuant to this Lease, which
shall be contested or reviewed by the Tenant. In the event any such appeal is
successful 20.37(%) percent of any refund resulting from such contest or review
shall be assigned to aud belong to the Tenant and shall be paid to the Tenant
promptly upon its receipt by the Landlord. If the refund relates to a tax year
that is apportioned between the Landlord and the Tenant, the refund shall be
apportioned between the Landlord and the Tenant
Section 7.05. Notwithstanding anything contained herein to the contrary,
should Landlord's mortgagee require at any time, the maintenance of an escrow
reserve for the tax obligations of Tenant or to any other obligation of Tenant
as in this Lease contained, 'Tenant shall promptly pay to said escrowee the
required amount that may be periodically adjusted from time to time
Section 7.06. The Tenant shall be required to pay, as its Proportionate
Share of the total charges for the items enumerated in Section 7.01, the
following:
(i) Real Estate Taxes imposed upon tile Building and land 20.37%
(ii) Fire sprinkler standby 27.98%
(iii) Domestic water and sewer 22.01%
(iv) Parking lot repairs, parking lot lighting and snow removal 25.33%
(v) Landscaping 27.98%
The Tenant shall pay its Proportionate Share of the items enumerated ii)
this Article as well as any other sums due and payable by Tenant under this
Lease within ten (10) days after being billed by landlord, failing which the
Landlord may, but without being required to do so, pay said proportion and add
the amount hereof as Additional Rent to the Term Basic Rent due for the next
ensuing months. In the event that Landlord incurs an Operating Cost for which
Tenant's Proportionate Share is not specified above, Landlord shall in good
faith, using its reasonable determination, establish the Tenant's Proportionate
Share with respect to such item(s) . In the event that any of the above
enumerated items are separately metered to the Demised Premises, the Tenant
stall pay the amount metered. If any of the aforesaid items are increased beyond
that which have existed but for Tenant's acts, use or installation, Tenant shall
pay said increase in ful]
Section 7.08. Tenant shall pays before delinquency, all taxes, assessments,
license fees, and other charges that are levied or assessed against Tenant's
personal property located on the Demised Premises. On demand by Landlord, Tenant
shall furnish Landlord with satisfactory evidence of these payments. If any
taxes on Tenant's personal property are levied against Landlord or Landlord' S
property, or if the assessed value of the Building is increased by the inclusion
of a value placed on Tenant's personal property or as a result of alterations,
additional improvements made to the Demised Premises by or for Tenant, Tenant,
on demand, shall immediately pay to Landlord as Additional Rent, the sum of
taxes levied against Landlord, or the proportion of the taxes resulting from
such increase in Landlord's assessment caused thereby. Landlord shall be
entitled to, in good faith using its reasonable determination, ascertain the
value of the tax increase attributable to Tenant's personal property or
alterations, additions or improvements.
ARTICLE VIII
Insurance
Section 8.01. The Landlord shall, during the Term of this Lease, cause the
Building to be insured for the benefit of the Landlord and ground lessor, if
any, and any and all mortgagees of the Landlord and for the Tenant, as its
interest may appear, "All Risk" property insurance against damage or loss by
tire, malicious mischief, sprinkler leakage and such other hazards and perils as
now or hereafter may be included in a standard "extended coverage" endorsement
from time to time including boiler insurance and with a vandalism and malicious
mischief endorsement, in ah amount not less than the full replacement value of
an identical building (excluding Tenant improvements and alterations)
constructed in accordance with all requirements, rules and regulations, which
may be applicable at the time of any loss or damage, of all governmental
agencies having jurisdiction over the Building and construction of such Building
and improvements. Such policies shall be issued by insurance companies licensed
to do business in New Jersey. Tenant shall pay, as Additional Rent, 22.23(%)
percent of the total premium promptly when billed. In addition, the Tenant shall
pay the full amount of any increase in the premium imposed solely by reason of
its ~)~ing a named insured and for any increase assessed against the entire
Building resulting from Tenant's use. If the Tenant shall fail to pay the amount
of such premiums within ten (10) days after being billed by Landlord, the amount
thereof shall be added to the amount of the Monthly Basic Rent next coming due
hereunder and shall be due and payable as part of said Monthly Basic Rent next
coming due. Any deductible shall be deemed self-insurance by the Tenant, to the
extent of 22.23(%) percent of the amount thereof. Landlord's current insurance
policy covering the Building provides for a Five Thousand and 00/100 ($5,000.00)
Dollar deductible. Landlord agrees to advise Tenant in the event of any increase
in the deductible.
Section 8.02. The Tenant shall provide and keep in force, during tike Term
of this Lease, for the benefit of the Landlord and ground lessor, if any,
comprehensive general liability insurance policies in standard form, insuring
the Landlord with respect to ownership, maintenance and use against liability
for personal injury, bodily injury, broad form property damage. operations
hazard, owner's protective
coverage, blanket contractual liability, products and completed operations
liability in or upon the Demised Premises during the Term of this Lease. Said
policies shall be written by insurance companies licensed to do business in the
State of New Jersey rated A+XV by A.M. Best Company, Oldwick, New Jersey, and
shall cover the entire Demised Premises as well as any sidewalk in front of the
same, and shall be in the minimum amount of Two Million and 00/100
($2,000,000.00) Dollars and shall contain provision for ten (10) days' written
notice by registered mail to the Landlord of any change or cancellation of said
policy. The said policies shall also contain an endorsement protecting the
Landlord for water damage and sprinkler damage liability with respect to
property other than the Landlord's. The Landlord reserves the right to require
an increase in the aforesaid amount during the term of this lease to an amount
reasonable under the circumstances considering the character and location of the
Building and Tenant 's use of the Demised Premises.
Tenant represents, said representation being specifically designed to
induce the Landlord to execute this Lease, that Tenant shall insure its business
against interruption and its Premises, improvements, alterations, personal
property and fixtures and any other items which Tenant may bring to the Demised
Premises or which may be under Tenant's care, custody and control which may be
subject to any claim for damages or destruction, which property value shall
never exceed the amount of insurance which Tenant is required to carry pursuant
to this Lease. If at any time the value of the personal property fixtures or
other goods located at the Demised Premises shall exceed said amount, Tenant
covenants to so notify Landlord and at the same time increase the amount of
insurance required to be carried pursuant to this Section 8.02 to an amount
sufficient to cover the aforesaid. Should Tenant fail to do so, or fail to
maintain insurance coverage adequate to cover the aforesaid, then Tenant shall
be in default hereunder and shall be deemed to have breached its covenants as
set forth herein.
Section 8.03. The Tenant shall provide and keep in force, during the Term
of this Lease, for the benefit of the Landlord and ground lessor, if any,
machinery insurance if applicable. The Landlord shall be named as an additional
named insured and loss payee under the policy, with respect to real property.
Upon failure at any time on the part of the Tenant to procure any or all of the
policies of insurance as herein provided, or to pay the premiums therefor, the
Landlord shall be at liberty from time to time as often as such failure shall
occur, to procure such insurance and pay the premiums therefor as herein
provided in case of fire insurance, and all and any sums paid for such failure
by the Landlord together with interest thereon from date of payment shall be and
become and are hereby declared to be Additional Rent under this Lease, forthwith
due and payable, and shall be collectible accordingly.
Section 8.04. The Landlord shall provide on behalf of the Tenant and keep
in force during the Term of this Lease, for the benefit of the Landlord, rental
income insurance insuring the Landlord against the loss of Term Basic Rent and
Additional Rent, as in this Lease provided, from the perils of fire and extended
coverage for a period of no less than one (1) year. The Tenant
shall reimburse Landlord for the cost of said insurance when billed. If the
Tenant shall fail to pay the amount of such premiums within ten (10) days after
being billed, the amount thereof shall be added to the amount of the Term Basic
Rent next coining due hereunder and shall be due and payable as part of said
Tern Basic Rent next coming due.
Section 8.05. Each such insurance policy carried by Landlord arid each such
insurance policy carried by Tenant insuring the Demised Premises, its business
against interruption, and its fixtures and contents against loss by fire, water
and causes covered by standard extended coverage or all risks endorsement
insurance, shall be written in a manner so as to provide that the insurance
company waives all right of recovery by way of subrogation against Landlord or
Tenant in connection with any loss or damage covered by such policies. Neither
party shall be liable to the other for any loss or damage caused by fire, water
or any of the risks enumerated in standard extended coverage insurance or all
risks endorsement insurance, provided such insurance was obtainable at the time
of such loss or damage. If the release of either Landlord or Tenant, as set
forth in the second sentence of this paragraph, shall contravene any law with
respect to exculpatory agreements, the liability of the party in question shall
be deemed not released but shall be deemed secondary to the latter's insurer.
Section 8.06. The Tenant shall also furnish insurance for such other
hazards and in such amounts as the Landlord may reasonably require and as at the
time are commonly insured against with respect to buildings similar in
character, general location and use and occupancy to the Demised Premises in
relative amounts normally carried with respect thereto. The Landlord reserves
the right at any time and from time to time to require that the limits for any
of the insurance required pursuant to Article VIII be increased to limits as at
the time are reasonable with respect to Tenant's use and to buildings similar in
character, general location and use and occupancy to the Demised Premises.
Section 8.07. In the event any mortgagee, ground lessor or trust deed
holder requires an escrow for insurance, taxes or any other recurring charges,
Tenant shall, on demand from Landlord, deposit tire required escrow as required
by any of the aforesaid.
Section 8.08. If any taxes on Tenant's personal property are levied against
Landlord or Landlord's property, or if the assessed value of the Building is
increased by the inclusion of a value placed on Tenant's personal property or as
a result of alterations, additions or improvements made to the Demised Premises
by or for Tenant, Tenant, on demand, shall immediately pay to Landlord as
Additional Rent the sum of the taxes levied against Landlord, or the proportion
of the taxes resulting from such increase in Landlord's assessment caused
thereby. If such separate valuation is not reasonably available to Landlord,
Landlord shall be entitled to, in good faith using its reasonable determination,
ascertain the value of the tax increase attributable to 'tenant's personal
property or alterations, additions or improvements.
ARTICLE IX
Repairs
Section 9.01. The Tenant shall keep the Demised Premises in good condition
and repair, and shall redecorate, paint and renovate the Demised Premises as may
be necessary to keep them in good condition and repair and good appearance. The
Tenant shall keep the Demised Premises and all parts thereof in a
clean and sanitary condition and free from trash, inflammable material and
other objectionable matter. The Tenant shall comply with all of the requirements
and recommendations as announced from time to time by tire engineering
department or any other similar enforcement department of the fire insurance
company insuring the Demised Premises or any agencies or departments of the
Borough of Paramus including by way of example but not limitation the health or
fire department. The Tenant shall keep the sidewalks and roadway's forming part
of the Demised Premises clean arid free Of obstruct ions, snow and ice. Except
as hereinafter in this Lease set forth, throughout the Term of this Lease, the
Tenant, at its sole cost and expense, will take good care of the Demised
Premises including by way of example but not limitation, boiler, heating,
ventilating and air conditioning systems, plumbing systems, electrical system
and sprinkler, landscaping and weed removal, and the sidewalks and curbs
adjoining the Demised Premises and will keep the same in good order and
condition and make all necessary repairs thereto, interior and exterior,
ordinary and extraordinary, foreseen and unforeseen. Tenant shall return the
Demised Premises at the end of the Term in the same condition they were in at
the commencement, subject to reasonable wear and tear. In addition, the Tenant
shall replace, at the Tenant's expense, all glass in and on the Demised Premises
which may become broken after the date of Tenant' s occupancy. All repairs made
by Tenant shall be equal in quality and class to the original work. The Tenant
shall quit Demised Premises at the end of the Term in broom-clean condition and
in as good condition as the reasonable use thereof will permit. when used in
this Article, the term "repairs" shall include all necessary replacements and
renewals
In case the Tenant shall fail or neglect at any time to make any of the
repairs or replacements herein above agreed to be made by it and shall continue
such failure or neglect after thirty (30) days' notice in writing thereof from
the Landlord, unless the critical nature of the repair requires immediate
attention in which event the repair or replacement shall be made within
twenty-four (24) hours after such written notice, then the Landlord or its
agents, at the option of the Landlord, may enter the Demised Premises and make
such repairs or replacements at the cost and expense of the Tenant and in case
of the Tenant's failure to pay therefor, the same cost and expense may be added
to tire next installment of Monthly Basic Rent and be due and payable as such,
or the Landlord may, at its option, terminate this Lease or pursue any of its
other remedies hereunder
The Tenant shall obtain and keep in full force and effect during the Term
of tins Lease, at its own cost and expense, a maintenance contract oil the
heating, ventilation and air conditioning system
section 9.02. The Tenant shall not, without the written consent of the
Landlord, make any alterations, additions or improvements with respect to the
following:
(a)the structure of the Building (which shall include, but not be limited
to, footings, foundation walls, exterior bearing and non-bearing walls,
structural steel framework, floor slab, roofing, framework consisting of
barjoists, girders and purlins, and load-bearing interior masonry partitions)
(b)mechanical, plumbing and electrical systems; and
(c)any other alterations, additions or improvements, the cost of which
would exceed Five Thousand and 00/~00 ($5,000.00) Dollars on an annual basis in
the aggregate
If so requested by the Landlord, the Tenant will remove all improvements
made by it under this Lease (including by way of example but not limitation, any
interior partitions and dark rooms installed in the Demised Premises) prior to
the expiration of the Term and leave the Demised Premises in such condition as
it was at the commencement of the Term of this Lease, reasonable wear and tear
excepted. In the event the Tenant so tails to remove such improvements, the
Landlord may do so and collect from the Tenant, as Additional Rent, its costs
and expense of doing so. All erections, alterations, additions and improvements,
whether temporary or permanent in character, which may be made upon or to the
Demised Premises either by the Landlord or the Tenant, except furniture or
movable trade fixtures installed at the expense of the Tenant, shall be the
property of the Landlord and shall remain upon and be surrendered with the
Demised Premises as a part thereof at the termination of this Lease, without
compensation to the Tenant. All furniture, movable trade fixtures and personalty
of the Tenant remaining in the Demised Premises after the expiration of the Term
shall be deemed abandoned aud 'nay be removed by Landlord who may collect from
the Tenant, as additional Rent, its costs and expenses of so removing
Section 9.03. The Landlord~may, as a condition to granting its consent to
any alteration, addition or improvement referred to in (a), (b) or (c) of
Section 9.02 above, require the following
(a)Plans and Specifications therefor are first submitted to the Landlord;
(b)The Landlord shall approve such plans and specifications, the Landlord
agreeing that, as to nonstructural repairs and alterations, its approval will
not be unreasonably withheld;
(c) Provided the Landlord has approved the same, the said Plans and
Specifications are appropriately filed (if necessary) with the governing body or
agency having jurisdiction of building alterations, construct ions and
improvements; and
(d)Consent (if necessary) is granted by that body for any of the said
alterations, improvements, construction or repairs.
Section 9.04. Notwithstanding anything contained herein to the contrary,
Landlord shall, throughout the Term, keep and maintain in good order, condition
and repair, the exterior load-bearing walls (excluding windows and glass) ,
foundation and structural steel framework, exclusive of windows, window frames,
door frames, and normal maintenance items including but not limited to caulking,
pointing, painting and waterproofing, and the roof (including membrane and
structure) , provided that Tenant furnishes Landlord with notice of the need for
such repairs as and when the need arises and further provided that such repairs
are not required as a result of the negligence of Tenant, its agents, servants
or employees.
ARTICLE X
Casualty
Section 10~01. If the Demised Premises or the Building is damaged or
destroyed by fire, explosion, the elements or otherwise during the Term so as to
render the Demised Premises wholly untenantable or unfit for occupancy, or
should the Demised Premises be so badly injured that the same cannot be repaired
within one hundred eighty (180) days from the happening of such injury, then,
and in such case, the Term hereby created shall, at the option of either the
'landlord or the Tenant, terminate upon the giving of a notice of termination.
If a notice of termination is given, the Term of this Lease shall terminate
effective as of the xxxx of such damage or destruction, and the Tenant shall
immediately surrender the Demised Premises and all the Tenant's interest therein
to the Landlord, and pay Term Basic Rent and Additional Rent to the time of such
damage or destruction, and the Landlord may re-enter and repossess the Demised
Premises discharged from this Lease and may remove all parties therefrom
Section 10.02. Should the Demised Premises be rendered untenantable and
unfit for occupancy, but yet be repairable within one hundred eighty (180) days
from the happening of said injury, the Landlord will, provided the mortgagee
makes the proceeds of any casualty insurance required to be carried pursuant to
this Lease available to the Landlord to restore and further provided that the
insurance proceeds so received are adequate to restore the Building and the
Demised Premises, enter and repair the same with reasonable speed, and the Term
Basic Rent and Additional Rent shall xxxxx to the extent of rent insurance
received by the Landlord until the earlier of Ci) such time as the Landlord
makes such repairs so as to render the Demised Premises once again usable by the
Tenant for the purposes under this Lease or (ii) the cessation of Landlord's
receipt of rent insurance
Section 10.03. If the Demised Premises shall be so slightly injured as not
to be rendered untenantable and unfit for occupancy, the Landlord shall repair
the same with reasonable promptness and the Term Basic Rent and Additional Rent
accrued and accruing shall not cease or terminate. The Tenant shall immediately
notify the Landlord in case of fire or other damage to the Demised Premises
Section 10.04. Notwithstanding anything to the contrary in Section 10.01,
neither the Landlord nor the Tenant shall have any obligation to terminate this
Lease upon the happening Of an injury referred to iii Section 10.01 provided Ci)
that the happening of such injury occurs at a time when the unexpired Term of
this lease is two (2) years or more; (ii) further provided that the mortgagee
makes the proceeds of any casualty insurance required to be carried pursuant to
this Lease available to Landlord to restore; and (iii) further provided that the
insurance proceeds so received are adequate to restore the Building and the
Demised Premises. In such event, the Landlord shall repair the Demised Premises,
even to the extent of rebuilding the Building if necessary, subject, however, to
the receipt of sufficient insurance proceeds. The Landlord shall promptly enter
and repair the Demised Premises with reasonable speed, making due allowance for
conditions beyond the Landlord's control, including, but not limited to time
lost in adjusting insurance claims' and strikes, and the Term Basic Rent and
Additional Rent shall xxxxx to the extent of rent insurance received by Like
Landlord until the earlier of such time as the Landlord makes such repairs so as
to render the Demised Premises once again usable by the Tenant for the purposes
under this Lease or (ii) the cessation of Landlord's receipt of rent
insurance. Landlord shall have no obligation to repair or restore Tenant'
improvements.
ARTICLE XI
Condemnation
Section 11.01. If, during the Term, twenty-five (25%) percent or more of
the area of the Demised Premises shall be taken under any power of eminent
domain or condemnation then, at the option of the Tenant, to be exercised in
writing within thirty (30) days of taking of title thereto, this Lease shall
expire within thirty (30) days of the date of such notice and the Tern Basic
Rent and any Additional Rent herein reserved shall be apportioned as of said
date. However, if the Tenant does not exercise the aforementioned option, or if
the taking does not deprive the Tenant of at least twenty~five (25%) percent of
the area of the Demised Premises, this Lease shall not expire but the Term Basic
Rent and Additional Rent shall be equitably apportioned. If the Landlord and the
Tenant fail to agree upon an equitable apportionment, the Term Basic Rent and
Additional Rent for the Building, after such taking, shall be determined in
accordance with the Commercial Rules of the American Arbitration Association,
and the arbitrator shall be empowered to assess the costs and expenses of the
proceedings as part of the determination. Pending such determination the Tenant
shall pay, on account of the Term Basic Rent and Additional Rent, such
proportion of the Term Basic Rent and Additional Rent reserved in this Lease as
the total area of the Building after the taking bears to the total area of the
Building before the taking, subject to adjustment in accordance with the
arbitrator's award. No part of any award shall belong to the Tenant except that
nothing contained herein is intended to affect or limit the Tenant's claim for
fixtures or other improvements owned by Tenant provided the same does not
diminish the Landlord's award. It is expressly understood and agreed that the
provisions of this Article XI shall not be applicable to any condemnation or
taking for governmental occupancy for a limited period of time.
ARTICLE XII
Compliance With Laws, Etc.
Section 12.01. The Tenant shall not do or permit anything to be done in the
Demised Premises which shall constitute a public nuisance or which will conflict
with the regulations of the Fire Department or with any insurance policy upon
improvements or any part thereof
Section 12.02. The Tenant shall, at its own expense, obtain all necessary
environmental and operating permits and comply with all present and future
requirements of law and with all present and future ordinances or orders, rules
and regulations of any State, Municipal or other public authority affecting the
Demised Premises and with all requirements of the Fire Insurance Executive or
similar body, and of any liability insurance company insuring the Landlord
against liability for accidents in or connected with the Demised Premises
including, but not limited to laws, ordinance, orders, rules and regulations
which apply to the interior or exterior of the Demised Premises, the structural
or nonstructural parts thereof, and to make all improvements and repairs
required by such laws, ordinances, orders, rules and regulations, ordinary or
extraordinary foreseen or unforeseen. Landlord represents that it has not
received any notice of violation from any state, municipal, federal or other
public authority affecting the Demised Premises.
ARTICLE X
Section 12.03. Tenant acknowledges the existence of environmental laws,
rules and regulations, including but not limited to the provisions of ISRA, as
hereinafter defined. Tenant shall comply with any and all such laws, rules and
regulations. Tenant represents to Landlord that Tenant's Standard Industrial
Classification (SIC) Number as designated in the Standard Industrial
Classification Manual prepared by the Office of Management and Budget in the
Executive Office of the President of the United States will not subject the
Demised Premises to ISRA applicability. Any change by Tenant to an operation
with an SIC Number subject to ISRA shall require Landlord's written consent. Any
such proposed change shall be sent in writing to landlord sixty (60) days prior
to the proposed change. Landlord, at its sole option, may deny consent.
Tenant hereby agrees to execute such documents as Landlord reasonably deems
necessary and to make such applications as Landlord reasonably requires to
assure compliance with all applicable environmental laws including ISRA. In
addition, prior to the expiration of the Term, Tenant agrees to make such
applications as are required to comply with ISRA in connection with closing,
terminating or transferring operations. Tenant shall bear all costs and expenses
incurred in connection with any required ISRA compliance resulting from Tenant's
use of the Demised Premises including but not limited to state agency fees,
engineering-' fees, clean up costs, filing fees and suretyship expenses . As
used herein, ISRA compliance shall include applications for determinations of
nonapplicability by the appropriate governmental authority, issuance of a
negative declaration or implementation, and the completion of a clean up plan.
The foregoing undertaking shall survive the termination or sooner expiration of
the Lease and surrender of the Demised Premises and shall also survive sale, or
lease or assignment of the Demised Premises by Landlord. Tenant agrees to
indemnify and hold Landlord harmless from any violation of ISRA occasioned by
Tenant's use of the Demised Premises. The Tenant shall immediately provide the
Landlord with copies of all correspondence, reports, notices, orders, findings,
declarations and other materials pertinent to the Tenant's compliance and
requirements of the New Jersey Department of Environmental Protect ion " NJDEP")
under ISRA as they are issued or received by the Tenant
Tenant agrees not to generate, store, manufacture, refine, transport,
treat;, dispose of, or otherwise permit to be present on or about the Demised
Premises, any Hazardous Substances. As used herein, hazardous Substances shall
be defined as any "hazardous chemical," "hazardous substance" or similar tern as
defined in the Comprehensive Environmental Responsibility Compensation and
Liability Act, as amended (42 U.S.C. 9601, et seq.) ,The New Jersey
Environmental Cleanup Responsibility Act, as amended, N.J.S.A. 13:1K-6 et seq.
and/or the Industrial Site Recovery Act ("ISRA"), the New Jersey Spill
Compensation and Control Act, as amended, N.J.S.A. 58:10-23.11b, et seq., any
rules or regulations promulgated thereunder, or in any other applicable federal,
state or local law, rule or regulation dealing with environmental protection. It
is understood and agreed that the provisions contained in this Article shall be
applicable notwithstanding the fact that any substance shall not be deemed to be
a Hazardous Substance at the time of its use by the Tenant but shall thereafter
be deemed to be a hazardous substance. Notwithstanding the foregoing, Tenant may
store hazardous Substances used in the ordinary course of its business
operations in the Demised Premises, provided: (i) such hazardous Substances
shall be stored in containers having not greater than a five (5) gallon
capacity; (ii) at no time shall such hazardous Substances exceed twenty-five
(25) gallons in the aggregate, at any one tine; and (iii) such Hazardous
Substances shall be stored and disposed of in the manner required by all
applicable laws, rules, ordinances, regulations and codes.
ARTICLE X
In the event Tenant fails to comply with ISRA as stated in this Section or
any other governmental law as of the termination or sooner expiration of the
Lease and as a consequence thereof Landlord is unable to rent the Demised
Premises, then the Landlord shall treat the Tenant as one who has riot removed
at the end of its Term, and thereupon be entitled to all remedies against the
Tenant provided by law in that situation including a monthly basic rental of two
hundred (200%) percent of the Monthly Basic Rent for the last month of the Term
or any renewal term, payable iii advance on the first day of each month, until
such time as Tenant provides Landlord with a negative declaration or
confirmation that any required clean up plan has been successfully completed
Tenant agrees to indemnify and hold harmless the Landlord and each
mortgagee of the Demised Premises from and against any and all liabilities,
damages, claims, losses, judgments, causes of action costs and expenses
(including the reasonable fees and expenses of counsel) which may be incurred
the Landlord or any such mortgagee or threatened against the Landlord or such
mortgagee, relating to or arising out of any breach by Tenant of the
undertakings set forth in this Article, said indemnity to survive the Lease
expiration or sooner termination
ARTICLE XIII
Subordination/Estoppels
Section 13.01. This Lease and any option contained herein is and shall be
subject and subordinate to all present and future first mortgages or first deeds
of trust affecting the Demised Premises. The Tenant shall execute any instrument
which may be deemed necessary or.. desirable by the Landlord to further effect
or to evidence the subordination of this Lease to any such first mortgage or
first deed of trust. The Landlord may assign this Lease to any such first
mortgagee or first trust deed holder in connection with any such lien superior
to this Lease, and the Tenant shall execute any instrument which may be
necessary or desirable by the Landlord or the holder of said lien in connection
with said assignment. Any expense incurred in the preparing or recording of such
assignment or subordination to any such holder shall be without expense or cost
to the Tenant.
Section 13.02. The Tenant further agrees, within ten (10) days of
Landlord's written request, to certify by written instrument duly executed and
acknowledged to any first mortgagee, first trust deed holder or purchaser, or
any proposed first mortgage lender, first trust deed holder or purchaser, that
this Lease is in full force and effect, or if not, in what respect it is not,
that this Lease has not been modified, or the extent to which it has been
modified, that there are no existing defaults hereunder to the best of the
knowledge of the party so certifying, or specifying the defaults, if any, and
any other information which Landlord shall reasonably require. Any such
certification shall be without prejudice as between the Landlord and the Tenant,
it being agreed that any document required hereunder shall not be used in any
litigation between the Landlord and the Tenant
ARTICLE XIV
Defaults, Remedies
Section 14.01. If, during the Term, any one or more of the following acts
or occurrences (any one of such occurrences or acts being hereinafter called an
Event of Default) shall happen:
(A) The Tenant shall default in making any payment of Term Basic Rent or
any Additional Rent as and when the same shall become due and payable, and such
default shall continue for a period of ten (10) days after notice from the
Landlord that such payment is due and unpaid; or
(B) The Tenant shall default in the performance or if compliance with any
of the other covenants, agreements, terms or conditions of this Lease to be
performed by the Tenant (other than any default curable by payment of money) ,
and such default shall continue for a period of twenty (20) days after written
notice thereof from the Landlord to the Tenant, or, in the case of a default
which cannot with due diligence be cured within twenty (20) days, the Tenant
shall fail to proceed promptly (except for unavoidable delays) after the giving
of such notice and with all due diligence to cure such default and thereafter to
prosecute the curing hereof with all due diligence (it being ii~tended that as
to a default not susceptible of being cured with due diligence within twenty
(20) days, the time within which such default may be cured shall be extended for
such period as may be reasonably necessary to permit the same to be cured with
all due diligence) ; or
(C) Tue Tenant or any guarantor of this Lease shall tile a voluntary
petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall
file any petition or answer seeking any reorganization, composition,
readjustment or similar relief under any present or future bankruptcy or other
applicable law, or shall seek or consent to or acquiesce in the appointment of
any trustee, receiver, or liquidator of the Tenant or any guarantor of this
Lease or of all or any substantial part of its properties or of all or any part
of the Demised Premises; or
(D) If within sixty (60) days after the filing of an involuntary petition
in bankruptcy against the Tenant or any guarantor of This Lease, or the
commencement of any proceeding against the Tenant or such guarantor- seeking any
reorganization, composition, readjustment or similar relief under any law, such
proceeding shall not have been dismissed, or if, within sixty (60) days after
the appointment, without the consent or acquiescence of the Tenant or such
guarantor, of any trustee, receiver or liquidator of the Tenant or such
guarantor, or of all or any part of the Demised Premises, such appointment shall
not have been vacated or stayed on appeal or otherwise, or if, within .sixty
(60) days after the expiration of any such stay, such appointment shall have
been vacated, or if, within sixty (60) days after the taking possession, without
the consent or acquiescence of the Tenant or such guarantor, of the property of
the Tenant, or of such guarantor by any governmental office or
agency pursuant to statutory authority for the dissolution or liquidation
of the Tenant or such guarantor, such taking shall not have been vacated or
stayed on appeal or otherwise; or
(E)If the Demised Premises shall be abandoned by the Tenant for a period of
thirty (30) consecutive days, then, and ii) any such event, and during the
continuance thereof, the Landlord may, at its option, then or thereafter while
any such~ Event of Default shall continue and notwithstanding the fact that the
Landlord may have any other remedy hereunder or at law or in equity, by notice
to the Tenant, designate a date, not less than ten (10) days after the giving of
such notice, on which this Lease shall terminate; and thereupon, on such date
the Term of this Lease and the estate hereby granted shall expire and terminate
upon the date specified in such~notice with the same force and effect as if the
date specified in such notice was the date hereinbefore fixed for the expiration
of the Term of this Lease, and all rights of the Tenant hereunder shall expire
and terminate, but the Tenant shall remain liable as hereinafter provided.
Additionally, Tenant agrees to pay, as Additional Rent, all attorney's fees and
other expenses incurred by the Landlord in enforcing any of the obligations
under this Lease, this covenant to survive the expiration or sooner termination
of this Lease.
Section 14.02. If this Lease is terminated as provided in Section 14.01, or
as permitted by law, the Tenant shall peaceably quit and surrender the Demised
Premises to the Landlord, and the Landlord may, without further notice, enter
upon, re-enter, possess and repossess. the same by summary proceedings,
ejectment or other legal proceedings, and again have, repossess and enjoy the
same as if this Lease had not been made, and in any such event neither the
Tenant nor any person claiming tI~rougki or under the Tenant by virtue of any
law or an order of any court shall be entitled to possession or to remain in
possession of the Demised Premises, and the Landlord, at its option, shall
forthwith, notwithstanding any other provision of this Lease, be entitled to
recover from the Tenant (in lieu of all other claims for damages on account of
such termination) as and for liquidated damages an amount equal to the excess of
all Term Basic Rent and Additional Rent reserved hereunder for the unexpired
portion of the Term of this Lease discounted at the rate of six (6%) percent per
annum to the then present worth, over the fair rental value of the Demised
Premises at the time of termination for such unexpired portion of the Term.
Nothing herein contained shall limit or prejudice the right of the Landlord, in
any bankruptcy or reorganization or insolvency proceeding, to prove for and
obtain as liquidated damages by reason of such termination for such amount equal
to the maximum allowed by any bankruptcy or reorganization or insolvency
proceedings, or to prove for and obtain as liquidated damages by reason of such
termination, an amount equal to the maximum allowed by any statute or rule of
law whether such amount shall be greater or less than the excess referred to
above.
Section 14.03. If the Landlord re-enters and obtains possession of the
Demised Premises, as provided in Section 14.02 of this Lease, fol~owing an Event
of Default, the Landlord shall have the right, without notice, to repair or
alter the Demised Premises in such manner as the Landlord may deem necessary or
advisable so as to put the Demised Premises in good order and to make the same
rentable, and shall have the right, at the Landlord's option, to relet the
Demised Premises or a part thereof, and the Tenant shall pay to the Landlord on
demand all reasonable expenses incurred by the Landlord in obtaining possession,
and in altering, repairing and putting the Demised
Premises in good order and condition and in reletting the same, including
reasonable fees of attorneys and architects, and all other reasonable expenses
or commissions, and the Tenant shall pay to the Landlord upon (he rent payment
dates following the dare of such re-entry and including the date for the
expiration of the Term of this Lease in effect immediately prior to such
re-entry, The sums of money which would have been payable by the Tenant as Term
Basic Rent and Additional Rent hereunder on such rent payment dates if the
Landlord had not re-entered and resumed possession of the Demised Premises,
deducting only the net amount of Term Basic Rent and Additional Rent, if any,
which the Landlord shall actually receive (after deducting from the gross
receipts the expenses, costs and payments of the Landlord which in accordance
with rite terms of this Lease would have been borne by the Tenant) in the
meantime from and by any reletting of the Demised Premises, and the Tenant shall
remain liable for all sums otherwise payable by the Tenant under this Lease,
including but not limited to the expense of the Landlord aforesaid, as well as
for any deficiency aforesaid, and the Landlord shall have the right from time to
time to begin and maintain
successive actions or other legal proceedings against the Tenant for the
recovery of such deficiency, expenses or damages or for a sum equal to any Term
Basic Rent payment and Additional Rent. As an alternative remedy, the Landlord
shall be entitled to damages against the Tenant for breach of this lease, at any
time (whether or not the Landlord shall have become entitled to or shall have
received any damages as herinabove) Provided) in an amount equal to the excess
if any, of the Term Basic Rent and Additional Rent which would be payable under
this Lease at the date of the expiration of the Xxxxx, less (lie amount of Term
Basic Rent and Additional Rent received by the Landlord upon any reletting, both
discounted to present worth at the rate of six (6%) percent per annum. The
obligation and liability of the Tenant to pay the Term Basic Rent and the
Additional Rent shall survive the commencement, prosecution and termination of
any action to secure possession of rite Demised Premises. Nothing herein
contained shall be deemed to require the Landlord to wait to begin such action
or other legal proceedings until the date when this Lease would have expired had
there not been an Event of Default.
Section 14.04. The Tenant hereby waives all right of redemption to which
the Tenant or any person under it may be entitled by any law now or hereafter in
force. In addition, in the event of an Event of Default which results in the
Landlord recovering possession of the Demised Premises, Landlord shall be under
no duty to mitigate Tenant's damages as provided for in this Article XIV. The
Landlord's remedies hereunder are in addition to any remedy allowed by law
Section 14.05. In the event of any breach or threatened breach by Tenant of
any of the agreements, terms, covenants or conditions contained in this Lease,
Landlord shall be entitled to enjoin such breach or threatened breach and shall
have the right to invoke arty right or remedy allowed at law or in equity or by
statute or otherwise as though re-entry, summary dispossess proceedings, arid
other remedies were not provided for in this Lease. During the pendency of any
proceedings brought by Landlord to recover possession by reason of default,
Tenant shall continue all money payments required to be made to Landlord, and
Landlord may accept such payments for use and occupancy of the Demised Premises.
In such event, Tenant waives its right in such proceedings to claim as a defense
that the receipt of such money payments by Landlord constitutes a waiver by
Landlord of such default.
Section 14.06. If Tenant fails, on three (3) separate occasions in any
twelve (12) month period during the Term hereof, to make payment of the Monthly
Basic Rent and/or any Additional Rent and/or late charge on or before the due
date, then, whether or not Tenant ultimately takes and Landlord accepts the
required
payment after the due date, such failure shall entitle Landlord, upon or at
any time after such third (3rd) separate occasion, to pursue the remedies
provided in this Article, said circumstances being hereby declared a default no
longer susceptible of being cured or removed by Tenant.
ARTICLE XV
Subletting
Section 15.01. (A) The Tenant may sublet the whole or any part of the
Demised Premises subject to the following:
(B)In the event that the Tenant desires to sublease the whole or any part
of the Demised Premises to any other party, then Tenant shall first offer to
terminate the Lease and surrender the Demised Premises to the Landlord, by a
written offer to Landlord to terminate the Lease and surrender the Demised
Premises, on a specified date which shall be not less than ninety (90) days from
the date of the giving of such notice nor more than one hundred twenty (120)
days after such date. Landlord shall give written notice to Tenant of its
acceptance or rejection of such offer, within sixty (60) days of the receipt of
such written offer from the Tenant, and if the Landlord accepts said offer, this
Lease shall terminate on the date set forth in the aforesaid offer to Landlord
to terminate the Lease and the Tenant shall surrender the Demised Premises to
the Landlord on said specified date, and each party shall be released from all
obligations under the Lease except those which have accrued or shall accrue
prior to the date of termination and surrender. In the event of such termination
of the Lease, rent and other charges due and owing hereunder shall be
apportioned as of the date of such termination and any part of the Lease deposit
made under this Lease which shall not have been returned or applied under the
terms thereof, or which may not be required to bring about performance of
Tenant's obligations under the terms of this Lease, shall be returned to the
Tenant.
(C)If Landlord rejects Tenant's offer of termination and surrender, or
fails to give notice of its intention to accept or reject same, within the sixty
(60) day period provided for above, Tenant shall have the right to underlet the
whole or any part of the Demised Premises for a use permitted hereunder, but
only with the written consent of the Landlord first had and obtained, on the
basis of the following terms and conditions
(1)A copy of the sublease shall be furnished to the Landlord which shall
provide that said sublease assumes all of the obligations of this Lease.
(2)The Tenant shall be and remain liable for the observance of all of the
covenants and provisions of this Lease, including but not limited to the payment
of the Term Basic Rent reserved herein, through the entire Term of this Lease,
as the same may be renewed, extended or otherwise modified
(3) The Tenant shall promptly pay to the Landlord one-half (1A) of the
rent, as and when received, in excess of the rent (Basic and Additional)
required to be paid by the Tenant for the area sublet, computed on the basis of
an average square foot rent for the entire demised Building.
(D)In any event, the acceptance by the Landlord of any rent from any of the
subtenants, or the failure of the Landlord to insist upon a strict performance
of any of the terms, conditions and covenants herein shall not release the
Tenant herein from any and all of the obligations herein during and for the
entire Term of this Lease
(E)The Landlord shall require a Five Hundred and 00/100 ($500.00) Dollar
payment to cover its handling charges for each request for consent to any sublet
prior to its consideration of the same. The Tenant acknowledges that its sole
remedy with respect to any assertion that the Landlord's failure to consent to
any sublet is unreasonable shall be the remedy of specific performance, and the
Tenant shall have no other claim or cause of action against the Landlord as a
result of the Landlord's actions in refusing to consent thereto.
(F)In the event that any or all of Tenant's interest in the Demised
Premises and/or this Lease is transferred by operation of law to any trustee,
receiver, or other representative or agent of Tenant, or to Tenant as a debtor
in possession, and subsequently any or all of Tenant's interest in the Demised
Premises and/or this Lease is offered or to be offered by Tenant or any trustee,
receiver, or other representative or agent of Tenant as to its estate or
property (such person, firm or entity being hereinafter referred to as the
"Grantor"), for assignment, conveyance, lease, or other disposition to a person,
firm or entity other than Landlord (each such transaction) being hereinafter
referred to as a "Disposition"), it is agreed that Landlord has and shall have a
right of first refusal to purchase, take, or otherwise acquire, the same upon
the same terms and conditions as the Grantor thereof shall accept upon such
Disposition to such other person, firm, or entity; and as to each such
Disposition the Grantor shall give written notice to Landlord in reasonable
detail of all of the terms and conditions of such Disposition within twenty (20)
days next following its determination to accept the same but prior to accepting
the same, and Grantor shall not make the Disposition until and unless Landlord
has failed or refused to accept such right of first refusal as to the
Disposition, as set forth herein.
Landlord shall have sixty (60) days next following its receipt of the
written notice as to such Disposition in which to exercise the option to acquire
Tenant's interest by such Disposition, and the exercise of the option by
Landlord shall be effected by notice to that effect sent to the Grantor; but
nothing herein shall require Landlord to accept a particular Disposition or any
Disposition, nor does the rejection of any oi~e such offer of first refusal
constitute a waiver or release of the obligation of the Grantor to submit other
offers hereunder to Landlord In the event Landlord accepts such offer of first
refusal, the transaction shall be consummated pursuant to the terms aud
conditions of the Disposition described in the notice to Landlord. In the event
Landlord rejects such offer of first refusal, Grantor may consummate the
Disposition with such other person, firm, or entity; but any decrease in price
of more than two (2%) percent of the price sought from Landlord or any change in
the terms of payment for such Disposition shall constitute a new transaction
requiring a further option of first refusal to be given to Landlord hereunder.
(G)Without limiting any of the provisions of Article XIV, if pursuant to
the Federal Bankruptcy Code (or any similar law hereafter enacted having the
same general purpose), Tenant is permitted to assign this Lease, notwithstanding
the restrictions contained iii this Lease, adequate assurance of future
performance by an assignee expressly permitted under such Code shall be deemed
to mean the deposit of cash security in an amount equal to the sum of one (1)
year's Annual Basic Rent and
Additional Rent for the next succeeding twelve (12) months (which
Additional Rent shall be reasonably estimated by Landlord) , which deposit shall
be held by Landlord for the balance of the Term, without interest, as security
for the full performance of all of Tenant's obligations under this Lease, to be
held and applied in the manner specified for security in Section 22.02.
(H)Without limiting any of the provisions of Article XIV, if pursuant to
the Federal Bankruptcy Code (or any similar law hereafter enacted having the
same general purpose) * Tenant is permitted to assign this Lease, the Tenant aud
any assignee shall promptly pay to Landlord one-halt (1/2) of any consideration
received for any assignment.
(I)Except as specifically set forth above, no portion of the Demised
Premises or of Tenant's interest in this Lease may be acquired by any other
person or entity, whether by assignment, mortgage, sublease, transfer, operation
of law or act of the Tenant, nor shall Tenant pledge its interest in this Lease
or in any security deposit required hereunder.
(J)If Tenant is a corporation other than a corporation whose stock is
listed and traded on a nationally recognized stock exchange, the provisions of
this subsection 15.01(J) shall apply to a transfer (however accomplished,
whether in a single transaction or in a series of related or unrelated
transactions) of stock (or any other mechanism such as, by way of example, the
issuance of additional stock, a stock voting agreement or change in class(es) of
stock] which results in a change of control of Tenant as if such transfer of
stock (or other mechanism) which results in a change of control of Tenant were
an assignment of this Lease, and if Tenant is a partnership or joint venture,
said provisions shall apply with respect to a transfer (by one or more
transfers) of an interest in the distributions of profits and losses of such
partnership or joint venture (or other mechanism, such as, by way of example,
the creation of additional general partnership or limited partnership interests)
which results in a change of control of such a partnership or joint venture as
if such transfer of an interest in the distributions of profits and losses of
such partnership or joint venture which results in a change of control of such
partnership or joint venture were an assignment of this Lease; but said
provisions shall not apply to transactions with a corporation into or with which
Tenant is merged or consolidated or to which all or substantially all of
Tenant's assets are transferred or to any corporation which controls or is
controlled by Tenant or is under common control with Tenant, provided that in
the event of such merger, consolidation or transfer of all or substantially all
of Tenant's assets, (i) the successor to Tenant has a net worth computed in
accordance with generally accepted accounting principles at least equal to the
greater of (a) the net worth of Tenant immediately prior to such merger,
consolidation or transfer or (b) the net worth of Tenant herein named on the
date of this Lease, and (ii) proof satisfactory to Landlord of such net worth
shall have been delivered to Landlord at least ten (10) days prior to the
effective date of any such transaction.
ARTICLE XVI
Notices
Section 16.01. All notices, demands, consents, approvals, requests and
instruments or documents by this Lease required or permitted to be given to or
served upon the Landlord or the Tenant shall be in writing. Any such notice,
demand, consent, approval, request, instrument or document shall be sufficiently
given or served only if delivered personally or if sent by a recognized
overnight courier service, or if sent by
certified or registered mail, postage prepaid, addressed at the address set
forth below, or at such other address as it shall designate by notice, as
follows
If to Landlord:
Xxxxxxx Real Estate
Group III, L.P.
with copy to:
c/o Tryon Management
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Xxxxxxxxx & Xxxxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
If to Tenant:
Imaging Dynamics Inc.
00 Xxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
with copy to:
Xxxxx X. Xxxxxx, Esq.
000 Xxxxx Xxxxxx Xxxxxxxxxx, XX 00000
Any notice so sent shall be deemed given or served upon receipt or
rejection thereof.
ARTICLE XVII
Holding Over
Section 17.01. If the Tenant shall remain in the Demised Premises after the
expiration of the Term without having executed and delivered a new lease with
the Landlord, such holding over shall not constitute a renewal or extension of
this Lease. The Landlord may, at its option, elect to treat the Tenant as one
who has not removed at the end of its Term, and thereupon be entitled to all the
remedies against the Tenant provided by law in that situation, or the Landlord
may elect, at its option, to construe such holding over as a tenancy from month
to month, subject to all the terms and conditions of this Lease, except as to
duration thereof, and in that event the Tenant shall pay installments of Monthly
Basic Rent as provided for pursuant to N.J.S.A. 2A:42-6, but in no event less
than the rate provided herein for the last month of the Term.
ARTICLE XVIII
Liens
Section 18.01. This Lease may be cancelled by the Landlord if any
mechanic's lien is filed against the Demised Premises as a result of
alterations, additions or improvements made by the Tenant and not discharged by
payment or bonding with~in thirty (30) days after notice by the Landlord to the
Tenant. In addition, after thirty (30) days' written notice to the Tenant, the
Landlord, at its option, may pay and discharge such lien, without inquiring into
the validity thereof, and the Tenant shall, on demand of the Landlord, reimburse
the Landlord as Additional Rent hereunder for the total expense incurred by the
Landlord in discharging such lien
ARTICLE XIX
Condition of Demised Premises, Loss, Etc.
Section 19.01. After the commencement of the Tenant's occupancy, the
Landlord shall not be responsible for the loss of, or damage to, Tenant's
property or that under its care, custody or control, or injury to Tenant
occurring in or about the Demised
Premises, or for any business interruption loss, for any reason whatsoever,
to include but not be limited to: any existing or future condition, defect,
matter or thing in the Demised Premises; the acts, omissions or negligence of
other persons or tenants in and about the Demised Premises; theft or burglary
from the Demised Premises; the negligence of Landlord, its agents, servants or
invitees; and defects, errors or omissions in the construction or design of the
Demised Premises and/or the Building including the structural and nonstructural
portions thereof. Tenant covenants and agrees to make no claim for any such
loss, damage or injury at any time.
ARTICLE XX
Inspection, For Sale and For Rent Signs
Section 20.01. The Landlord, or its agents, shall have the right to enter
the Demised Premises at reasonable hours to examine the same, or to exhibit the
Demised Premises to prospective purchasers and to place upon the Demised
Premises a suitable "For Sale" sign, which sign must be approved by the Tenant,
which approval shall not be unreasonably withheld. For twelve (12) months prior
to the expiration of the Term, the Landlord, or its agents, 'nay exhibit the
Demised Premises to prospective tei~ants and may place the usual "To Let" signs
therein
ARTICLE XXI
Signs
Section 21.01. No sign, advertisement or notice shall be affixed to or
placed upon any part of the Demised Premises by the Tenant, except in such
manner, and of such size, design and color as shall be approved in advance in
writing by the Landlord, which approval the Landlord shall not unreasonably
withhold, provided; (i) that Tenant comply with all applicable governmental
ordinances and regulations and receives all necessary governmental approvals
required for erection and maintenance of the sign and (ii) no later than the
last day of the Term, Tenant shall, at Tenant's expense, remove the sign and
repair all injury done by or in connection with the installation or removal of
the sign.
ARTICLE XXII
Advance Rent, Security and Late Charge
Section 22.01. simultaneously herewith, the Tenant has deposited with the
Landlord the sum of Five Thousand One Hundred Thirty-six and 60/100 ($5,136.60)
Dollars in advance for Monthly for the first month of the Term
Section 22.02. The Tenant has this day deposited with the Landlord the sum
of Fifteen Thousand Four Hundred Nine and 80/100 ($15,409.80) Dollars
(hereinafter "Security Deposit") as security for the full and faithful
performance by Tenant of all of the terms and conditions upon the Tenant's part
to be performed, which said sum shall be returned to the Tenant after the time
fixed as the expiration of the Term herein, provided the Tenant has fully and
faithfully carried out all of the terms, covenants and conditions on tue
Tenant's part to be performed. In the event the Landlord uses any of said
Security Deposit to cure Tenant's default(s) or meet any of Tenant's
obligations, Tenant covenants to upon demand replace the amount so utilized. In
the event of a bona fide sale, subject to this Lease, the Landlord shall have
the right to transfer the Security Deposit to the vendee, and the Landlord shall
be considered released by the Tenant from all liability for the return of such
Security
Deposit; and the Tenant agrees to look solely to the new landlord for the
return of the said Security Deposit, and it is agreed that this shall apply to
every transfer or assignment made of the Security Deposit to a new landlord. The
security deposited under this shall not be mortgaged1 assigned or encumbered by
the Tenant without the written consent of the Landlord.
At all Limes during the Term or any extension or renewal thereof, the
Security Deposit shall equal the sum of three (3) installments of Monthly Basic
Rent. As and when the Monthly Basic Rent increases, Tenant shall deposit with
Landlord the difference between the then existing Security Deposit and the
aforementioned sum (hereinafter "Additional Security") . Failure of Tenant to
deposit Additional Security within ten (10) days after Landlord's written demand
sI~all constitute a material breach of this Lease by Tenant.
Section 22.03. In the event of the insolvency of Tenant or in the event of
the entry of a judgment in bankruptcy in any court against Tenant which is not
discharged within thirty (30) days after entry, or in the event a petition is
filed by or against Tenant under any chapter of the bankruptcy laws of the State
of New Jersey or the united States of America, then and in such event Landlord
may require the Tenant to deposit Additional Security in the amount specified in
Subsection 15.01(H) to adequately assure Tenant's performance of all of its
obligations under this Lease, including all payments subsequently accruing.
Failure of Tenant to deposit the security required by this Section within ten
(10) days after Landlord's written demand shall constitute a material breach of
this Lease by Tenant.
Section 22.04. Anything in this Lease to the contrary notwithstanding, at
Landlord's option, Tenant shall pay a "Late Charge" of seven (7%) percent of any
installment of Monthly Basic Rent or Additional Rent paid more than five (5)
days after the due date thereof, to cover the extra expense involved in handling
delinquent payments. Tenant shall not be charged a Late charge the first time
Tenant is late during each twelve (12) month period during the Term commencing
on the Commencement Date until Tenant, as to such time in each twelve (12) month
period, is given five (5) days' notice and an opportunity to cure said
nonpayment within said notice period and fails to cure said nonpayment witkiin
said time
ARTICLE XXIII
Financial Statements
Section 23.01. The Tenant agrees, within ninety (90) days after the end of
the Tenant's accounting year, at the request of the Landlord, or at the request
of the holder of any first mortgage upon the Demised Premises, to furnish to the
Landlord or mortgagee, a certified balance sheet and profit and loss statement
for the last accounting year.
ARTICLE XXIV
Broker
Section 24.01. The Tenant represents and warrants to the Landlord that
Xxxxx Management Corporation is the sole broker which advised it of the
availability of the Demised Premises for leasing and is the sole broker which
introduced it to the Landlord, and the Landlord shall pay the commission, if
any, which may be due to said broker. The Tenant agrees to indemnify and hold
Landlord harmless from any and all claims of other brokers and expenses in
connection therewith arising out of or in connection with the negotiation of or
the entering into this Lease by Landlord and Tenant.
ARTICLE XXV
Short Form or Memorandum of Lease
Section 25.01. At the request of either party the Landlord and the Tenant
will execute and deliver, in duplicate original counterparts, a recordable
memorandum of this Lease identifying the Demised Premises and stating the
commencement and termination dates of the Term of this Lease
ARTICLE XXVI
Waiver of Jury Trial~Non-Mandatory Counterclaims
Section 26.01. If Landlord commences any summary I proceedings or an action
for nonpayment of Term Basic Rent or Additional Rent, Tenant shall not interpose
any non-mandatory counterclaim of any nature or description in any such
proceedings or action. Tenant and Landlord both waive a trial by jury of any or
all issues arising in any action or proceeding between the parties hereto or
their successors under or connected with this Lease or any of its provisions
ARTICLE XXVII
Waiver of Distraint
Section 27.01. Landlord waives all lien, right, interest and claim it might
otherwise have in and waives its right of distraint of, the machinery, fixtures
and other property of the Tenant, and in any other property of any nature
whether on or off the Demised Premises, belonging to the Tenant. The provisions
of this Section are intended to apply to the Landlord's common law (if any) and
statutory right of distraint because of failure to pay Term Basic Rent or
Additional Rent.
ARTICLE XXVIII
Retained Rights
Section 28.01. Landlord hereby reserves to itself, its successors and
assigns the full use of the roof and the right to grant, construct, maintain and
use ingress and egress easements, railroad easements, utility easements,
drainage easements, across, through, over and under the Demised Premises,
Building and Real Property or to or from other lands and other portions of the
Real Property now owned or in the future acquired by the Landlord, and to
construct and install pipes and other equipment necessitated thereby, provided,
however, that the same be at the cost of the Landlord and does not unreasonably
interfere with the use of or access to the Demised Premises by the Tenant.
ARTICLE XXIX
Miscellaneous
Section 29.01. Partial Invalidity. If any term or provision of this Lease
or the application thereof to any party I or circumstances shall to any extent
be invalid or unenforceable, the remainder of this Lease or the application of
such term or provision to parties or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby, and each term
and provision of this Lease shall be valid and enforced to the fullest extent
permitted by law.
Section 29.02. Waivers. One or more waivers by either party of the
obligation of the other to perform any covenant or condition shall not be
construed as a waiver of a subsequent breach of the same or any other covenant
or condition.
The receipt of Monthly Basic Rent and Additional Rent by the Landlord, with
knowledge of any breach of this Lease by the Tenant or of any default on the
part of the Tenant in the observance or performance of any of the conditions or
covenants of this Lease, shall not be deemed to be a waiver of any provision of
this Lease. Neither acceptance of the keys nor any other act or thing done by
the Landlord or any agent or employee during the Term herein demised shall be
deemed to be an acceptance of a surrender of said Demised Premises, excepting
only an agreement in writing signed by the Landlord accepting or agreeing to
accept such a surrender.
Section 29.03. Number, Gender. Wherever herein the singular number is used,
the same shall include the plural, and the masculine gender shall include the
feminine and neuter genders.
Section 29.04. Successors, Assigns. The terms, covenants and conditions
herein contained shall be binding upon and inure to the benefit of the
respective parties and their successors and assigns.
Section 29.05. Headings. The Article and marginal headings herein are
intended for convenience in finding the subject matters, are not to be taken as
part of this Lease and are not to be used in determining the intent of the
parties to this Lease.
Section 29.06. Entire Agreement. This instrument contains the entire and
only agreement between the parties and no oral statements or representations or
prior written matter not contained in this instrument shall have any force or
effect. This Lease shall not be modified in any way or terminated except by a
writing executed by both parties.
Section 29.07. Landlord. The term "Landlord" as used in this Lease means
only the holder, for the time being, of the Landlord's interest under this Lease
so that in the event of any transfer of title to the Demised Premises the
Landlord shall be and hereby is entirely freed and relieved of all obligations
of the Landlord hereunder accruing after such transfer, and it shall be deemed
without further agreement between the parties that such grantee, transferee or
assignee has assumed and agreed to observe and perform all obligations of the
Landlord hereunder arising during the period it is the holder of the Landlord's
interest hereunder.
Section 29.06. Words of Duty. Whenever in this Lease any words of
obligation or duty are used, such words or expressions shall have the same force
and effect as though made in the form of covenants
Section 29.09. Cumulative Remedies. The specified remedies to which the
Landlord or the Tenant may resort under the terms of this Lease are cumulative
and are not intended to be exclusive of any other remedies or means of redress
to which the Landlord or the Tenant may lawfully be entitled in case of any
breach or threatened breach of any provision of this Lease.
Section 29.10. No option. The submission of this Lease Agreement for
examination does not constitute a reservation of, or option for, the Demised
Premises, and this Lease Agreement
becomes effective as a Lease Agreement only upon execution and delivery
thereof by Landlord and Tenant.
Section 29.11. Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of a lesser amount than the Monthly Basic Rent and additional charges
payable hereunder shall be deemed to be other than a payment on account of the
earliest stipulated Monthly Basic Rent and Additional Rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment for Basic Rent or Additional Rent 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 Basic Rent and Additional Rent or pursue
any other remedy provided herein or by law.
Section 29.12. Corporate Authority. If Tenant is a corporation, Tenant
represents and warrants that this Lease and the undersigned's execution of this
Lease has been duly authorized and approved by the corporation's Board of
Directors. The undersigned officers and representatives of the corporation
executing this Lease on behalf of the corporation represent and warrant that
they are officers of the corporation with authority to execute this Lease on
behalf of the corporation, and within fifteen (15) days of execution hereof,
Tenant will provide Landlord with a corporate resolution confirming the
aforesaid.
Section 29.13. Lease Commencement. Notwithstanding anything contained
herein to the contrary, if Landlord, for any reason whatsoever including
Landlord's negligence, cannot deliver possession of the Demised Premises to
Tenant at the commencement of the agreed Term as set forth in Section 2.01, this
Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for
any loss or damage resulting therefrom, but in that event, the Term shall be for
the full Term as specified above to commence from and after the date Landlord
shall have delivered possession of the Demised Premises to Tenant, and, if
requested by Landlord, Landlord and Tenant shall, by a writing signed by the
parties, ratify and confirm said commencement and termination dates. Landlord
and Tenant acknowledge and agree that Tenant's obligations hereunder are
conditioned upon Tenant obtaining a Certificate of Occupancy permitting its use
of the Demised Premises for the purpose set forth in the first sentence of
Section 5.01 (the "Use CO), as opposed to a Certificate of Occupancy that may be
required upon completion of any tenant improvements. Tenant shall have a period
of thirty (30) days from the date of this Lease to procure the Use CO. Upon
execution of this Lease, Tenant shall promptly file for and thereafter in good
faith diligently prosecute an application for the Use CO. In the event that on
or before said thirtieth (30th)day following the date of t)~is Lease Tenant has
not obtained the Use CO, then either party may cancel this Lease upon notice to
the other given on or after said thirtieth (30th) day, in which event all
advance rent and security paid by Tenant shall be returned and the parties
released herefrom. Nothing herein contained shall be construed to permit Tenant
to enter the Demised Premises and perform any work prior to the Commencement
Date
Section 29.14. Real Estate Taxes. As used in this Lease, Real Estate Taxes
shall mean the property taxes and assessments imposed upon the Real Property
including the Building, or upon the Term Basic Rent and Additional Rent, as
such, payable to Landlord, including, but not limited to, real estate, city,
county, village, school and transit taxes, or taxes, assessments or charges
levied, imposed, or assessed against the Demised Premises including the Building
by any other taxing authority, whether general or specific, ordinary or
extraordinary, foreseen or unforeseen. If due to a future change in the method
of taxation, any franchise, income or profit tax or other tax shall be levied
against Landlord in substitution for,
or in lieu of, or in addition to, any tax which would otherwise constitute
a Real Estate Tax, such franchise, income or profit tax or other tax shall be
deemed to be a Real Estate Tax for the purposes hereof; conversely, any
additional real estate tax hereafter imposed in substitution for, or in lieu of,
any franchise, income or profit tax or other tax (which is not in substitution
for, or in lieu of, or in addition to, a Real Estate Tax as hereinbefore
provided) shall not be deemed a Real Estate Tax for the purposes. hereof.
Section 29.15. Additional Rent. Additional Rent shall mean all sums in
addition to Term Basic Rent payable by Tenant to Landlord pursuant to the
provisions of this Lease.
ARTICLE XXX
Personal Liability
Section 30.01. Notwithstanding anything to the contrary provided in this
Lease, it is specifically understood and agreed, such agreement being a primary
consideration for the execution of this Lease by Landlord, that there shall be
absolutely no personal liability on the part of Landlord, its successors,
assigns or any mortgagee in possession (for the purposes of this Section,
collectively referred to as "Landlord"), with respect to any of the terms,
covenants and conditions of this Lease, and that Tenant shall look solely to the
equity of Landlord in the Building for the satisfaction of each and every remedy
of Tenant in the event of any breach by Landlord of any of the terms, covenants
and conditions of this Lease to be performed by Landlord, such exculpation of
liability to be absolute and without any exceptions whatsoever.
ARTICLE XXXI
Renewal option
Section 31.01. Tenant is hereby granted an option to renew this Lease upon
the following terms and conditions:
(A)At the time of the exercise of the option to renew and at the time of
the said renewal, the Tenant shall not be default in accordance with the terms
and provisions of this Lease, and shall be in possession of the Demised Premises
pursuant to this Lease.
(B)Notice of the exercise of the option shall be sent to the Landlord in
writing at least nine (9) months before the expiration of the Term of this
Lease.
(C)The renewal term (herein "Extended Term") shall be for the term of three
(3) years, to commence at the expiration of the Term of this Lease, and all of
the terms and conditions of this Lease, other than the Term Basic Rent, shall
apply during any such renewal term.
(D)The Annual Basic Rent to be paid during the Extended Term (August 1,
2000 through July 31, 2003) shall accrue at the rate equal to the Annual Basic
Rent paid during the last year of the Term [Sixty-one Thousand Six hundred
Thirty-nine and 20/100 ($61,639.20) Dollars, increased by the percentage of
increase in the index now known
as the Revised Consumer Price Index for All Urban Consumers of the New
York, N.Y.-Northeastern, New Jersey area as published by the Bureau of Labor
Statistics of the United States Department of Labor (1982-84-100) (hereinafter
"Index") between May 1997 and May 2000, but in no event to be less than the
Annual Basic Rent paid for the Demised Premises for the last year of the
original Term of the Lease.. If, at the time required for the determination of
the renewal rent the aforesaid Index is no longer published or issued, the
parties shall use such other index as is then generally recognized and accepted
for similar determinations of cost of living increases.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals the day and year first above written.
XXXXXXX REAL ESTATE GROUP III, L.P., Landlord
BY:
XXXXXX X. XXXXXXX, XX.,
General Partner
IMAGING DYNAMICS, INC., Tenant
By:
Name:
Title:
