Agreement of Lease Exhibit No. 10.22
Commercial Lease
THIS LEASE made as of November 15, 2002 between Xxxxxxxx Transit Corporate
Center (HTCC), of 000 Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000 (the "Landlord") and
Emtec, Inc., of 000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxx, XX 00000 (the "Tenant").
IN CONSIDERATION of the mutual covenants contained herein, the Landlord and
Tenant hereby agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions. In this Lease the following terms shall have the following
meanings:
"Additional Rent" means all other amounts payable by the Tenant to the
Landlord or to be discharged as Rent under this Lease;
"Building" means the building #5 (partial occupancy consisting of
8,382sq.ft. of warehouse and 1,200sq.ft. of office) located on the
Land, including all alterations and additions thereto and replacements
thereof;
"Commencement Date" means November 15, 2002;
"Event of Default" means an event referred to in Section 10.2;
"Land" means the land known municipally as 000 Xxxxxxxxx Xxxx, Xxxxxxx,
XX 00000 and legally described as same;
"Lease" means this lease and any Schedules attached hereto, which are
referred to in this lease, and every executed instrument, which by its
terms amends, modifies or supplements this lease;
"Lease Year" means each successive periods of twelve (12) calendar
months during the Term ending on an anniversary of the Commencement
Date; provided that if the Landlord deems it necessary for the
Landlord's accounting purposes, the Landlord may by written notice to
the
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Tenant specify another day on which each subsequent lease year is to
commence and in such event, the appropriate adjustments shall be made
accordingly;
"Leased Premises" means the Property and the Building;
"Minimum Rent" means for each Lease Year, the amounts set out
hereunder:
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Year of Aggregate Semi- Monthly Minimum
Term Annual Minimum Rent
Rent
------------------------------------------------------
Year 1 $26,590.05 $4,431.68
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*The above charges are for rent at $4.00/sq.ft. plus an additional
monthly CAM charge of $1.55/sq.ft. This CAM charge includes the
following: Property management, Domestic water and sewer, Landscaping,
Snow removal, Real Estate taxes, Parking Lot lighting, Sprinkler
service charge and Access to room in corner office (Bldg.1).
"Occupancy Date" means November 15, 2002;
"Permitted Use" means the business of office / storage and any and all
uses ancillary thereto;
"Rent" means the aggregate of all amounts payable by the Tenant to the
Landlord under this Lease;
"Term" means a period of One (1) Year, commencing on the Commencement
Date or any renewal period hereunder;
"Termination Date" means November 14, 2003, unless earlier terminated
as provided in this Lease;
"Value Taxes" means all goods and services taxes, sale taxes,
value-added taxes, and any other taxes imposed on the Landlord with
respect to this Lease, the services provided hereunder or the Rent.
ARTICLE 2
GRANT OF LEASE AND GENERAL COVENANTS
2.1 Grant. The Landlord hereby leases to the Tenant and the Tenant hereby
leases from the Landlord the Leased Premises, to have and to hold
during the Term, subject to the terms and conditions of this Lease.
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2.2 Landlord's General Covenants. The Landlord covenants with the Tenant:
(a) for quiet enjoyment of the Leased Premises; and
(b) to observe and perform all the covenants and obligations of the
Landlord herein.
2.3 Tenant's General Covenants. The Tenant covenants with the Landlord:
(a) to pay Rent; and
(b) to observe and perform all the covenants and obligations of the
Tenant herein.
ARTICLE 3
TERM AND POSSESSION
3.1 Term. The Term of this Lease shall begin on the Commencement Date and
end on the Termination Date unless terminated earlier as provided in
this Lease. After April 14, 2003 either Tenant or Landlord may
terminate this lease upon thirty (30) days written notice to the other
party.
3.2 Possession of Leased Premises. Notwithstanding the Term, the Tenant
shall have occupancy of the Leased Premises from and after the
Occupancy Date to the Termination Date, during which period the Tenant
shall pay all Rent, other than Minimum Rent, and shall observe and
perform all the covenants and obligations of the Tenant herein.
ARTICLE 4
RENT
4.1 Rent. The Tenant shall pay to the Landlord as Rent for the Leased
Premises the aggregate of:
(a) Minimum Rent in respect of each year of the Term or renewal terms
as the case may be, payable in advance and without notice or demand
in monthly installments commencing on the Commencement Date; and
(b) Additional Rent at the times and in the manner provided in this
Lease or, if not so provided, as reasonably required by the
Landlord for the Tenants use of additional space at an annual rate
of $4.00/sq.ft. + CAM charge of $1.55/sq.ft.
If the Commencement Date is not the first day of a calendar month, Rent
for the period from the Commencement Date to the first day of the next
calendar month shall be pro-rated on a per diem basis and paid on the
Commencement Date and thereafter all subsequent monthly installments of
Rent shall be paid in advance on the first day of each calendar month.
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4.2 Net Lease. It is the intent of the Landlord and the Tenant that this
Lease shall be fully net to the Landlord, provided that the Tenant
shall not be responsible for costs and expenses expressly excluded by
the terms of this Lease, and including but not limited to the
following:
(a) mortgage payments of capital or interest on any mortgage affecting
the Leased Premises;
(b) any income taxes of the Landlord, except to the extent that such
income taxes are imposed in lieu of real property taxes;
(c) any ground rental;
(d) any structural repairs or replacements; and
(e) any expenditures with respect to the Leased Premises, which are of
a capital nature.
4.3 Payment of Rent. Two (2) months security deposit is required. All
amounts payable by the Tenant to the Landlord pursuant to this Lease
shall be deemed to be Rent and shall be payable and recoverable as
Rent in the manner herein provided and the Landlord shall have all
rights against the Tenant for default in any such payment as in the
case of arrears of rent. Except as provided in Section 8.1, Rent shall
be paid to the Landlord in lawful money of the United States of
America, without deduction or set-off, at the address of the Landlord
or to such other person or such other address as the Landlord may from
time to time designate in writing. The Tenant's obligation to pay Rent
shall survive the expiration of earlier termination of this Lease if
termination occurs prior to May 14, 2003.
ARTICLE 5
USE AND OCCUPATION
5.1 Use of Leased Premises. The Tenant shall use the Leased premises only
for the Permitted Use and shall not use or permit to be used the
Leased Premises or any part thereof for any other purpose or business
or by any persons other than the Tenant.
5.2 Compliance with Laws. The Tenant shall comply with present and future
laws, regulations and orders relating to the occupation or use of the
Leased Premises, the condition of the leasehold improvements,
equipment and other property of the Tenant therein, the making by the
Tenant of any repairs, changes or improvements and the conduct of
business in the Leased Premises.
5.3 Prohibited Uses. The Tenant shall not commit, cause or permit any
nuisance or any waste or injury to or in or about the Leased Premises,
or to any of the leasehold improvements, merchandise or fixtures
therein, or conduct any use or manner of use causing annoyance to any
person. Without limiting the generality of the foregoing, the Tenant
shall not use or permit the use of any portion of the Leased Premises
for any dangerous, illegal, noxious, odorous or offensive trade,
business or occurrence or other use contrary to the provisions of
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this Lease. The Tenant shall keep the Leased Premises free of debris or
anything of a dangerous, noxious, odorous or offensive nature or which
could create an environmental or a fire hazard (through undue load on
electrical circuits or otherwise) or undue vibration, heat or noise.
5.4 Hazardous Use. The Tenant shall not do, omit to do or permit to be
done anything which will cause or shall have the effect of causing the
cost of the Landlord's insurance in respect of the Leased Premises to
be increased at any time during the Term or any policy of insurance on
or relating to the Leased Premises to be subject to cancellation.
Without waiving the foregoing prohibition, the Landlord may demand and
the Tenant shall pay to the Landlord upon demand, the amount of any
increase in the cost of insurance caused by anything so done or
omitted to be done. The Tenant shall forthwith upon the Landlord's
request comply with the requirements of the Landlord's insurers, cease
any activity complained of and make good any circumstance which has
caused any increase in insurance premiums or the cancellation of any
insurance policy. If any policy of insurance in respect of the Leased
Premises is cancelled or becomes subject to cancellation by reason of
anything so done or omitted to be done, the Landlord may without prior
notice terminate this Lease and re-enter the Leased Premises.
5.5 Signage. The Tenant shall, with the Landlord's prior written approval,
not to be unreasonably withheld, be permitted to install and exhibit
sign(s) identifying the Tenant and the Tenant's business activities on
the Leased Premises. Subject to requirements of existing municipal
by-laws, such sign(s) are to be installed and maintained at the
Tenant's own expense.
5.6 Rules and Regulations. The Landlord shall be entitled from time to
time to make reasonable rules and regulations for the operation,
maintenance, safety, and use of the Leased Premises and the Tenant
shall comply with such rules and regulations and shall cause its
servants, agents, employees, customers, invitees and licensees to
comply with such rules and regulations.
ARTICLE 6
RIGHTS AND OBLIGATIONS OF THE LANDLORD
6.1 Operation of Leased Premises. The Tenant shall assume full
responsibility for the operation and maintenance of the Leased
Premises and for the repair or replacement (only if directly caused by
tenants neglect/misuse) of all fixtures or chattels located therein or
thereon. The Landlord shall have no responsibility whatsoever, with
respect to maintenance, repairs or replacement, except as provided in
Section 6.2 herein, provided that if the Tenant fails to do so, the
Landlord may at its sole option upon 14 days prior written notice and
without any obligation to the Tenant elect to perform such
maintenance, repairs or replacement as the Landlord may reasonably
deem necessary or desirable. In so doing, the Landlord shall not be
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liable for any consequential damage, direct or indirect to any person
or property, including, but without restricting the generality of the
foregoing, damages for a disruption of the business of the Tenant and
damage to, or loss of, the goods, chattels and equipment and other
property of the Tenant nor shall any reduction or disruption of
services be construed as a breach of the Landlord's covenants or as an
eviction of the Tenant, or release of the Tenant from any obligation
under this Lease provided that the Tenant's business is not
unreasonably interfered with.
6.2 Access by Landlord. The Tenant shall permit the Landlord to enter the
Leased Premises at any time outside normal business hours in case of
an emergency and otherwise during normal business hours where such
will not unreasonably disturb or interfere with the Tenant's use of
the Leased Premises or operation of its business, to examine, inspect
and show the Leased Premises for purposes of leasing, sale or
financing, to provide services or make repairs, replacements, changes
or alterations as provided for in this Lease and to take such steps as
the Landlord may deem necessary for the safety, improvement or
preservation of the Leased Premises. The Landlord shall, whenever
possible, consult with or give reasonable notice to the Tenant prior
to entry but no such entry shall constitute an eviction or a breach of
the Landlord's covenant for quiet enjoyment or entitle the Tenant to
any abatement of Rent. The Tenant shall also permit the Landlord, its
employees and agents, at any time during the six (6) months prior to
the expiry or termination of this Lease to enter the Leased Premises
for the purpose of showing it to any such persons as may be desirous
of purchasing or leasing the Leased Premises.
ARTICLE 7
TENANT'S RESPONSIBILITIES
7.1 Tenant's Obligations. In connection with the Leased Premises, the
Tenant hereby agrees that it shall be responsible for the following
throughout the Term:
(a) Insurance - to take out and maintain, in the name of the Landlord
its agents and employees, the Tenant and each mortgagee of the
Leased Premises as their interests may appear the following forms
of insurance:
(i) insurance upon property of every description owned by the
Tenant or for which the Tenant is legally liable and
installed or kept within the Leased Premises (including
leasehold improvements) in an amount not less than the full
replacement costs value;
(ii) comprehensive public liability and broad form property
damage insurance with limits of not less than $2,000,000 per
occurrence with extensions including but not limited to
personal injury, intentional acts, blanket contractual,
cross-liability and severability of interest, occurrence
property damage, employer's liability and non-owned
automobile coverage;
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(iii) rental interruption insurance covering a period of at least
12 months payable to the Landlord as the named insured.
All insurance policies required under this provision shall provide
for a waiver of subrogation against the Landlord or those for whom
it is in law responsible whether any damage is caused by the acts,
omission, or negligence of the Landlord or those for whom it is in
law responsible. Each such insurance policy shall further contain a
prohibition against cancellation or material change that reduces or
restricts the insurance coverage except upon 30 days prior written
notice to the Landlord. The Tenant shall provide the Landlord with
certified copies of each such insurance policy on or before the
Commencement Date.
(b) Utilities - to promptly pay and discharge all charges, rates,
assessments and levies for gas and electric and all other utilities
supplied to or consumed in the Leased Premises, other than items
included in the CAM;
(c) Taxes - included in CAM charges
(d) Heating and Cooling - to pay and discharge as Rent the cost of all
heating, cooling, ventilating and air conditioning required in the
Leased Premises and the cost of all repairs, replacements (only if
directly caused by tenants neglect/misuse) and improvements to the
heating, ventilating, air conditioning and other service and
utility systems;
(e) Maintenance - to maintain the Leased Premises and all improvements
therein in good order and condition. Keep the Leased Premises in a
clean condition and remove from the Leased Premises at its expense
all debris and garbage;
(f) Repairs - to perform all preventive maintenance of fixtures,
systems, facilities, equipment, machinery, leasehold improvements
and plate glass in the Leased Premises as may be necessary; and
(g) All Other Expenses - to pay all other expenses of every nature
incurred in connection with the maintenance and operation of the
Leased Premises.
7.2 Payment of Costs. The Tenant shall pay all of the costs and expenses
associated with the Tenant's obligations directly to the appropriate
party as they come due and shall, at the Landlord's request, provide
the Landlord with copies of receipts or other proof acceptable to the
Landlord that such costs have been paid. If the Tenant fails to
perform any obligation under this Lease or to pay any costs and
expenses as set out herein, the Landlord may at its sole option and
discretion, on seven (7) days written notice to the Tenant, perform
such obligation or pay such amounts on behalf of the Tenant and the
Tenant shall forthwith upon receipt of an invoice therefor reimburse
the Landlord for the cost of such action or the amount of such
payment.
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7.3 Leasehold Improvements. The Tenant may install in the Leased Premises
its usual fixtures and personal property in a proper manner; provided
that no installation or repair shall interfere with or damage the
mechanical or electrical systems or the structure of the Leased
Premises. If the Tenant is not then in default hereunder, the fixtures
and personal property installed in the Leased Premises by the Tenant
may be removed by the Tenant from time to time in the ordinary course
of the Tenant's business or in the course of reconstruction,
renovation or alteration of the Leased Premises by the Tenant,
provided that the Tenant promptly repairs at its own expense any
damage to the Leased Premises resulting from the installation and
removal reasonable wear and tear excepted. The Tenant shall, if
required by the Landlord, remove any Leasehold Improvements or
fixtures from the Leased Premises upon the termination of this Lease.
7.4 Alterations by Tenant. The Tenant may from time to time at its own
expense make changes, additions and improvements to the Leased
Premises to better adapt the same to its business, provided that any
change, addition or improvement shall be made only after obtaining
written consent of the Landlord, such consent not to be unreasonably
withheld and shall be carried out in a good and workmanlike manner and
only by persons selected by the Tenant and reasonably approved in
writing by the Landlord. If any such changes, additions or
improvements require alterations to the exterior walls, roof, or other
structural components of the Leased Premises or modification to the
heating, ventilation or air conditioning systems in the Leased
Premises, the Tenant shall be solely responsible for the cost of such
modifications and the Landlord hereby reserves the right to perform
any such work at the expense of the Tenant provided that the cost of
such work to the Tenant is reasonable in the circumstance.
7.5 Liens. The Tenant shall pay promptly when due all costs for work done
or caused to be done by the Tenant in the Leased Premises which could
result in any lien or encumbrance on the Landlord's interest in the
property, shall keep the title to the property and every part thereof
free and clear of any lien or encumbrance in respect of the work and
shall indemnify and hold harmless the Landlord against any claim,
loss, cost, demand and legal or other expense, whether in respect of
any lien or otherwise, arising out of the supply of materials,
services or labor for the work.
7.6 Notify Landlord. The Tenant shall immediately notify the Landlord of
any accidents or defect in the Leased Premises or any systems thereof,
and as well of any matter or condition, which may cause injury or
damage to the Leased Premises, or any person or property located
therein.
ARTICLE 8
DAMAGE AND DESTRUCTION
8.1 Damage and Destruction. If during the Term the Leased Premises or any
part thereof shall be damaged by fire, lightning, tempest, structural
defects or acts of God or by any additional
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perils from time to time defined and covered in the standard
broad-coverage fire insurance policy carried by the Tenant on the
Leased Premises, the following provisions shall apply:
(a) If as a result of such damage the Leased Premises are rendered
partially unfit for occupancy by the Tenant, the Rent shall xxxxx
in the proportion that the part of the Leased Premises rendered
unfit for occupancy by the Tenant is of the whole of the Leased
Premises. If the Leased Premises are rendered wholly unfit for
occupancy by the Tenant, the Rent shall be suspended until the
Leased Premises have been rebuilt and repaired or restored.
(b) Notwithstanding subsection (a) above, if in the opinion of the
Landlord's architect or engineer given within 60 business days of
the happening of damage, the Leased Premises shall be incapable of
being rebuilt, repaired, or restored with reasonable diligence
within 180 days after the occurrence of the damage then either the
Landlord or the Tenant may, at its option, terminate this Leased by
notice in writing to the other given within 15 days of the giving
of the opinion of the Landlord's architect or engineer. If notice
is given by the Landlord or Tenant under this Section, then this
Lease shall terminate from the date of such damage and the Tenant
shall immediately surrender the Leased Premises and all interest
therein to the Landlord and the Rent shall be apportioned and shall
be payable by the Tenant only to the date of the damage and the
Landlord may thereafter re-enter and repossess the Leased Premises.
(c) If the Leased Premises are capable with reasonable diligence of
being rebuilt, repaired or restored within 180 days of the
occurrence of such damage, then the Landlord shall proceed to
rebuild, restore or repair the Leased Premises with reasonable
promptness within 180 days plus any additional period due to delay
caused by strikes, lock-outs, slow-downs, shortages of material or
labor, acts of God, acts of war, inclement weather or other
occurrences which are beyond the reasonable control of the
Landlord, and the Rent shall xxxxx in the manner provided for in
subsection (a) above until the Leased Premises have been rebuilt,
repaired or restored; provided that nothing in this Section shall
in any way be deemed to affect the obligation of the Tenant to
repair, maintain, replace or rebuild the Leased premises as
otherwise provided by the terms of this Lease.
ARTICLE 9
INDEMNITY
9.1 Indemnity. The Tenant shall indemnify and save harmless the Landlord
and its agents and employees from any and all liabilities, damages,
costs, claims, suits or actions growing or arising out of:
(a) any breach, violation or non-performance of any covenant, condition
or agreement in this Lease set forth and contained on the part of
the Tenant to be fulfilled, kept, observed and performed;
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(b) any damage to property while the property is in or about the Leased
Premises; and
(c) any injury to person or persons including death resulting at any
time therefrom occurring in or about the Leased Premises.
9.2 Limitation of Landlord's Liability. The Landlord and its agents and
employees shall not be liable for any damage to the Leased Premises or
any property located therein caused by any latent defect or by steam,
water, rain or snow which may leak into, issue or flow from any part
of the Leased Premises or from the water, steam, sprinkler or drainage
pipes or plumbing works of the same or from any other place or from
any damage caused by or attributable to the condition or arrangement
of any electrical or other wiring or for any damage caused by anything
done or omitted to be done by any person or for damage caused by
interruption or failure of any service or utility or for damage
however caused to merchandise, stock in trade, books, records, files,
money, securities, negotiable instruments, papers or other valuables.
9.3 Survival of Obligations and Indemnities. All obligations of the
Tenant, which arise during the Term pursuant to this Lease and which
have not been satisfied and the indemnities, and other obligations of
the Tenant contained in Section 9.1 shall survive the expiration or
other termination of this Lease.
ARTICLE 10
DEFAULT
10.1 Interest and Costs. The Tenant shall pay monthly to the Landlord
interest at a rate equal to the lesser of the prime rate established
as such by the Landlord's bank from time to time plus one per cent per
annum and the maximum rate permitted by applicable law, upon any
default in payment of Rent from the due date for payment thereof until
the same is fully paid and satisfied. The Tenant shall indemnify the
Landlord against all costs and charges reasonably incurred in
enforcing payment of Rent hereunder and in obtaining possession of the
Leased Premises should the same be necessary.
10.2 Events of Default. Each of the following events shall constitute an
event of default (an "Event of Default"):
(a) all or any part of the Rent hereby reserved is not paid when due
and upon written notice by the Landlord default continues for five
(5) days after notice thereof; or
(b) the Term or any goods, merchandise, stock in trade, chattels or
equipment of the Tenant is seized or is taken or exigible in
execution or in attachment or if a writ of execution is issued
against the Tenant or if a creditor takes possession thereof; or
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(c) the Tenant or any person or corporation bound to perform the
obligations of the Tenant hereunder either as guarantor or
indemnifier or as one of the parties constituting the Tenant takes
any steps or suffers any order to be made for its winding-up or
other termination of its corporate existence or becomes insolvent
or commits an act of bankruptcy or becomes bankrupt or takes the
benefit of any statute that may be in force for bankrupt or
insolvent debtors or becomes involved in voluntary or involuntary
winding-up proceedings or if a receiver or receiver/manager shall
be appointed for the business, property, affairs or revenues of the
Tenant or such person or corporation; or
(d) the Tenant makes a bulk sale of its goods or moves or commences,
attempts or threatens to move its goods, chattels and equipment out
of the Leased Premises (other than in the normal course of its
business) or ceases to conduct business from the Leased Premises
for in excess of 14 days; or
(e) the Tenant fails to observe, perform and keep each and every of the
covenants, agreements and conditions herein contained to be
observed, performed and kept by the Tenant and persists in the
failure after 10 days notice by the Landlord requiring the Tenant
to remedy, correct, desist or comply (or if any breach would
reasonably require more than 10 days to rectify, unless the Tenant
commences rectification within the 10 day notice period and
thereafter promptly and effectively and continuously proceeds with
the rectification of the breach).
10.3 Remedies on Default. Upon the occurrence of one or more Events of
Default, the Landlord may, at its option, and in addition to and
without prejudice to all rights and remedies of the Landlord available
to it either by any other provision of this Lease or by statute or the
general law:
(a) be entitled to the full amount of the current month's and the next
three months' installments of Rent which shall immediately become
due and payable and the Landlord may immediately distrain for the
same, together with any arrears then unpaid;
(b) without notice or any form of legal process, forthwith re-enter
upon and take possession of the Leased Premises or any part thereof
in the name of the whole and re-let the Leased Premises or any part
thereof on behalf of the Tenant or otherwise as the Landlord sees
fit and remove and sell the Tenant's merchandise, stock in trade,
goods, chattels and trade fixtures therefrom, any rule of law or
equity to the contrary notwithstanding;
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(c) seize and sell such goods, chattels and equipment of the Tenant as
are in the Leased Premises and may apply the proceeds thereof to
all Rent to which the Landlord is then entitled under this Lease.
Any such sale may be effected by public auction or otherwise, and
either in bulk or by individual item, all as the Landlord in its
sole discretion may decide;
(d) terminate this Lease by leaving upon the Leased Premises ten (10)
days prior written notice of the termination, and termination shall
be without prejudice to the Landlord's right to damages; it being
agreed that the Tenant shall pay to the Landlord as damages the
loss of income of the Landlord to be derived from the Leased
Premises for the unexpired portion of the Term had it not been
terminated, provided that the Landlord shall not be entitled in any
event to receive any damages greater than those damages the
Landlord would be entitled to receive at law; or
(e) re-enter into and upon the Leased Premises or any part thereof in
the name of the whole and repossess and enjoy the same as of the
Landlord's former estate, anything herein contained to the contrary
notwithstanding;
and the Tenant shall pay to the Landlord forthwith upon demand all
expenses of the Landlord in re-entering, terminating, re-letting,
collecting sums due or payable by the Tenant or realizing upon assets
seized including tenant inducements, leasing commissions, legal fees
on a solicitor and client basis and all disbursements and the expense
of keeping the Leased Premises in good order, and preparing the same
for re-letting.
10.4 Waiver. If the Landlord shall overlook, excuse, condone or suffer nay
default, breach or non-observance by the Tenant of any obligation
hereunder, this shall not operate as a waiver of the obligation in
respect of any continuing or subsequent default, breach or
non-observance and no such waiver shall be implied but shall only be
effected if expressed in writing.
10.5 Waiver of Exemption and Redemption. Notwithstanding anything contained
in any statute now or hereafter in force limiting or abrogating the
right of distress, none of the Tenant's goods, merchandise, stock in
trade, chattels or trade fixtures on the Leased Premises at any time
during the Term shall be exempt from levy by distress for Rent in
arrears, and upon any claim being made for exemption by the Tenant or
on distress being made by the Landlord, this agreement may be pleaded
as an estoppel against the Tenant in any action brought to test the
right to the levying upon any such goods as are named as exempted in
any such statute, the Tenant hereby waiving all and every benefit that
could or might have accrued to the
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Tenant under and by virtue of any such statute but for this Lease. The
Tenant hereby expressly waives any and all rights of redemption and
relief from forfeiture granted by or under any present or future laws
in the event of the Tenant being evicted or dispossessed for any cause,
or in the event of the Landlord obtaining possession of the Leased
Premises, by reason of the violation by the Tenant of any of the terms
or conditions of this Lease or otherwise.
ARTICLE 11
ASSIGNMENT AND TRANSFERS
11.1 No Assignment By Tenant. The Tenant shall not assign, sublet, pledge
or transfer this Lease or any interest therein or in any way part with
possession of all or any part of the Leased Premises, or permit all or
any part of the Leased Premises to be used or occupied by any other
person without the Landlord's prior written consent, which consent may
not be unreasonably withheld. The Tenant shall be permitted to assign
this lease without prior consent of the Landlord to an associated
corporation, a parent or wholly owned subsidiary of the Tenant or to a
corporation which results from the reorganization, consolidation,
amalgamation or merger of the Tenant, provided that any such
assignment or any transfer, or transfers, or other dealing with any of
the shares of the Tenant, which taken alone or together have the
effect of changing control of the Tenant, shall be deemed to be an
assignment of this Lease which requires the prior approval of the
Landlord as set out herein.
11.2 Sale, Conveyance and Assignment by the Landlord. Nothing in this Lease
shall restrict the right of the Landlord to sell, convey, assign,
pledge or otherwise deal with the Leased Premises subject only to the
rights of the Tenant under this Lease. A sale, conveyance or
assignment of the Leased Premises by the Landlord shall operate to
release the Landlord from liability from and after the effective date
thereof in respect of all of the covenants, terms and conditions of
this Lease, express or implied, except as they may relate to the
period prior to the effective date, and only to the extent that the
Landlord's successor assumes the Landlord's obligations under the
Lease and the Tenant shall thereafter look solely to the Landlord's
successor in interest and to this Lease.
11.3 Subordination. This Lease is and shall be subject and subordinate in
all respects to any and all mortgages (including deeds of trust and
mortgage) now or hereafter placed on the Leased Premises and all
advances thereunder, past, present and future and to all renewals,
modifications, consolidations, replacements and extensions thereof.
The Tenant agrees to execute promptly after request therefor an
instrument of subordination as may be requested.
ARTICLE 12
SURRENDER AND OVERHOLDING
12.1 Surrender. Upon the expiration or other termination of the Term, the
Tenant shall immediately quit and surrender possession of the Leased
Premises and all leasehold improvements in substantially the condition
in which the Tenant is required to maintain the
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Leased Premises excepting only reasonable wear and tear, and upon
surrender, all right, title, and interest of the Tenant in the Leased
Premises shall cease. It is understood that the Landlord has the right
to remove and sell or otherwise dispose of any leasehold improvements,
chattels, equipment or any other property of the Tenant left on the
Leased Premises by the Tenant after the termination of this Lease, and
to retain the proceeds thereof, and the Tenant shall pay to the
Landlord upon written demand all of the costs incurred by the Landlord
in connection therewith.
12.2 Overholding. If the Tenant continues to occupy the Leased Premises
after the expiration or other termination of the Term without any
further written agreement, the Tenant shall be a monthly tenant at an
Minimum Rent equal to two times the Minimum Rent paid by the Tenant
immediately prior to the expiration or other termination of the Term
but subject to all other provisions in this Lease to the extent that
the same are applicable to a month to month tenancy, and a tenancy
from year to year shall not be created by implication of law. Nothing
contained in this Section shall preclude the Landlord from exercising
all of its rights set out in this Lease including, without limitation,
the taking of any action for recovery or possession of the Leased
Premises.
ARTICLE 13
GENERAL
13.1 Entire Agreement. There is no promise, representation or undertaking
by or binding upon the Landlord except such as are expressly set forth
in this Lease, and this Lease including the Schedules contains the
entire agreement between the parties hereto.
13.2 Registration. The Tenant agrees not to register this Lease. If the
Tenant wishes to register a notice of this Lease, the Landlord agrees
to execute at the expense of the Tenant, an acknowledgement or short
form of lease sufficient for such purpose, which shall preserve the
confidentiality of the Rent and other financial terms of this Lease.
The Tenant shall at its own expense, upon expiration or earlier
termination of the Term, discharge any registration made against the
Leased Premises providing notice of its interest in the Lease.
13.3 Notice. Any notice required or contemplated by any provision of this
Lease shall be given in writing and shall be sufficiently given if
mailed by registered mail or delivered or if sent by telecopy or
similar form of immediate transmission and if to the Landlord,
delivered to the address set out on page 1 and if to the Tenant,
personally (or to a partner or officer of the Tenant if the Tenant is
a firm or corporation) or delivered to the Leased Premises (whether or
not the Tenant has departed from, vacated or abandoned the same). Any
notice shall be deemed to have been received five postal delivery days
after the date of mailing or on the day following the date of delivery
or sending. If it is reasonably anticipated that mail service may be
disrupted, notice must be delivered or sent by telecopy or other form
of immediate transmission.
13.4 Relationship of Parties. Nothing contained in this Lease shall create
any relationship
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between the parties hereto other than that of Landlord and Tenant.
13.5 Governing Law. This Lease shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by,
the laws of the State of New Jersey.
13.6 Amendment or Modification. No amendment, modification or supplement to
this Lease shall be valid or binding unless put out in writing and
executed by the Landlord and the Tenant.
13.7 Force Majeure. In the event that either party hereto shall be delayed
or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lock-outs, labor troubles, inability
to procure materials, failure of power, restrictive governmental laws
or regulations, riots, insurrection, war or other reason of a like
nature not the fault of the party delayed in performing work or doing
acts required under the terms of this Lease, then performance of such
act shall be excused for the period of the delay and the period for
the performance of any such act shall be extended for a period
equivalent tot he period of such delay.
13.8 Severability. All of the provisions of this Lease are to be construed
as covenants and agreements. If any provision of this Lease is illegal
or unenforceable, it shall be considered separate and severable from
the remaining provisions of this Lease, which shall remain in force
and be binding as thought he provision had never been included.
13.9 Captions and Headings. The captions and headings contained in this
Lease are for convenience of reference only and are not intended to
limit, enlarge or otherwise affect the interpretation of the Articles,
Sections or parts thereof to which they apply.
13.10 Interpretation. Wherever necessary or appropriate in this Lease, the
plural shall be interpreted as singular, the masculine gender as
feminine or neuter and vice versa and when there are two or more
parties bound by the Tenant's covenants herein contained their
obligations shall be joint and several.
13.11 Time of the Essence. Time shall be of the essence hereof.
13.12 Successors and Assigns. Subject to specific provisions contained in
this Lease to the contrary, this Lease shall enure to the benefit of
and be binding upon the successors and assigns of the Landlord and the
heirs, executors and administrators and the permitted successors and
assigns of the Tenant.
13.13 Consent Not Unreasonably Withheld. For greater clarity and except as
otherwise specifically provided, whenever consent or approval of
Landlord or Tenant is required under the terms of this Lease, such
consent or approval shall not be unreasonably withheld or delayed. If
either party withholds any consent or approval such party shall on
written request deliver to the other a written statement giving the
reasons therefor.
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13.14 Net Lease. The Tenant acknowledges and agrees that it is intended that
this Lease is a completely carefree net lease to the Landlord, except
as herein set out, that the Landlord is not responsible during the
term for any costs, charges, expenses or outlays of any nature
whatsoever arising form or related to the Leased Premises, or the use
and occupancy thereof, or the business carried on therein, and the
Tenant shall pay all charges impositions, costs and expenses of every
nature and kind relating to the Leased Premises except as expressly
herein set out.
IN WITNESS WHEREOF the Landlord and the Tenant have executed this Lease as of
the date first set forth above.
-------------------------------- -------------------------------------------
Witness Xxxxx X. Xxxxxxx
President
Xxxxxxxx Transit Corporate Center
-------------------------------- -------------------------------------------
Witness Xxx Xxxxx
CFO
Emtec, Inc.
