EXHIBIT 10.27
SECOND LEASE MODIFICATION AGREEMENT
THIS AGREEMENT made this 12th day of February 1998 between Salpat
Realty, Inc., a Sub-Chapter S New Jersey Corporation, having an office at 000
Xxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as
"Landlord") and F & G Mechanical Corporation, a New Jersey Corporation having an
address at 000 Xxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx (hereinafter referred to as
"Tenant").
W I T N E S S E T H:
WHEREAS, as Landlord and Tenant have entered into a lease at certain
premises located at Secaucus, New Jersey pursuant to a lease dated June 30,
1994, as amended by the First Lease Modification Agreement dated June 30, 1994
(together, the "Lease"); and
WHEREAS, as a condition to and concurrent with the sale of the capital
stock of Tenant, the Tenant desires to and Landlord agrees to amend such lease
to more clearly delineate the responsibilities of the parties with regard to
certain matters.
1. Amendment. The Lease is hereby amended by the insertion,
immediately following Article 12 and 38, of the following text,
respectively:
Article 12A: Insurance
Any policies required hereunder shall contain a waiver of
subrogation provision.
Article 39: Hazardous Substances
Tenant shall indemnify, protect and hold harmless Landlord and
each of its respective subsidiaries from and against all costs and
damages incurred by Landlord in connection with the presence, emanation,
migration, disposal, release or threatened release of any oil or other
petroleum products or hazardous materials or substances on, within, or
to or from the Premises as a result of (i) the operations of the Tenant,
(ii) the activities of third parties affiliated with Tenant or invited
on the Premises by Tenant, and (iii) the activities of any unrelated
third parties on the Premises at any time during Term. Landlord shall
indemnify, protect and hold harmless Tenant and each of its respective
subsidiaries from and against all costs and damages incurred by Tenant
in connection with the presence, emanation, migration, disposal, release
or threatened release of any oil or other petroleum products or
hazardous materials or substances on, within, or to or from the Premises
as a result of (i) any activity or action prior to the Commencement
Date, (ii) the condition of the Premises prior to the Commencement Date,
including any future manifestations of such conditions, (iii) the
activities of Landlord or (iv) the activities
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of any unrelated third party not on the Premises. Each party agrees that
such party will promptly give written notice to the other party of any
investigation, claim, demand, lawsuit or other action by any
governmental or regulatory agency or private party involving the
Premises and any hazardous substance or environmental law of which such
party has actual notice.
2. No Other Modifications
Except as expressly modified herein, the terms of the Lease (including
the riders thereto) are hereby confirmed and shall remain in full force and
effect and are hereby incorporated herein as if set forth more particularly at
length herein.
3. Miscellaneous
All terms used herein shall have the same meaning as proved in the Lease
unless a different meaning is expressly provided for herein. This agreement
shall be governed by and construed under the laws of the State of New Jersey.
This Agreement shall be binding upon and inure to the benefit of the parties
thereto, their successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their proper corporate officers as of the day and year first above
written.
Landlord:
SALPAT REALTY, INC.
By: /s/ XXXXXXXXX X. XXXXXXXX
Tenant:
F & G MECHANICAL CORPORATION
By: /S/ XXXXXXXXX XXXXXXX
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FIRST LEASE MODIFICATION AGREEMENT
THIS AGREEMENT made this 30th day of June, 1994 between Salpat Realty,
Inc. a Sub-Chapter S New Jersey Corporation, having an office at 000 Xxx Xxxxxx
Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000, (hereinafter referred to as "Landlord") and F
& G Mechanical Corporation, a New Jersey Corporation having an address at 000
Xxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx (hereinafter referred to "Tenant").
W I T N E S S E T H:
WHEREAS, the Landlord and Tenant desire to amend the lease dated June
30, 1994 (the "Lease"); and
WHEREAS, the Landlord and Tenant desire to amend the lease to amend the
term of the lease pursuant to Article 2.1 of said lease.
NOW THEREFORE, in consideration of $10.00 in hand, well and truly paid
and the covenants contained herein, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. LEASE TERM
a) The subject Lease is hereby extended to December 31, 2002.
2. NO OTHER MODIFICATIONS
Except as expressly modified herein, the terms of the Lease (including
the riders thereto) are hereby confirmed and shall remain in full force and
effect and are hereby incorporated herein as is set forth more particularly at
length herein.
3. MISCELLANEOUS
1. All terms used herein shall have the same meaning as proved in the Lease
unless a different meaning is expressly provided for herein. This Agreement
shall be governed by and construed under the laws of the State of New Jersey.
This Agreement shall be binding upon and inure at the benefit of the parties
thereto, their successors and permitted assigns.
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I WITNESS THEREOF, the parties hereto have caused this Agreement to be
signed by their proper corporate officers as of the day and year first
above written.
Landlord:
Salpat Realty, Inc.
By: /s/ XXXXXXXXX X. XXXXXXXX
Tenant:
F & G Mechanical Corporation
By: /s/ XXXXXXXXX XXXXXXX
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THIS LEASE, made this 30th day of June, 1994 between SALPAT REALTY, INC.
a New Jersey Corporation, having an office at 000 Xxx Xxxxxx Xxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 (hereinafter called the "Landlord") and F&G MECHANICAL CORP. having
an address at 000 Xxx Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx (hereinafter called
"Tenant").
W I T N E S S E T H
Article 1: PREMISES
Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord,
upon and subject to the terms, covenants and conditions herein set forth, a
portion of the lands and of the Building containing a total of approximately
38,000 square feet of space therein by Landlord (hereinafter called the
"Building") in Secaucus, New Jersey to be renovated in accordance with plans and
specifications annexed hereto as Exhibit B. Said portion of the lands and
Building, containing approximately 7,264 square feet of office space and 7,311
square feet of warehouse space (outlined in red on the site plan attached hereto
as Exhibit A), are hereinafter referred to as the "Premises" or Demised
Premises";
SUBJECT TO (a) any and all existing encumbrances, conditions, rights,
covenants, easements, restrictions, and right of way, of record, and other
matters of record, if any, applicable zoning and building laws, regulations and
codes, and such matters as may be disclosed by inspection or survey provided,
however Landlord represents that the Premises may be used and occupied for the
purposes set forth herein; (b) easements now or hereinafter created by Landlord
in under, over, across and upon strips of land running along all lot lines of
the Demised Premises for sewer, water, electric, gas, and other utility lines
and services new or hereinafter installed.
TO HAVE AND TO HOLD the Demised Premises for the term, at the rents, and
upon the conditions as hereinafter provided.
Landlord and Tenant hereby expressly covenant to keep, perform and
conditions contained herein on their respective parts to be kept, performed, and
observed.
Article 2: TERM; COMMENCEMENT
2.1 Subject to the provisions of Article 38 the term of this Lease is five
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(5) years beginning on the Commencement Date (as in hereafter defined)plus the
fractional month, if any, between the Commencement Date if it falls on a day
other than the first day of the month, and the first day of the following month.
If the Commencement Date is not the first day of the month, the term shall end
on the last day of the month in which the fifth (5th) anniversary of the
Commencement Date. For purposes of this lease, a lease year shall be each
consecutive period of 12 calendars months of the term plus any fractional month
at the beginning of the term.
2.2 For purposes of this Lease the phrase "Commencement Date" shall mean
the date on which the last of all the following shall have occurred or been
performed:
(i) The Landlord's architect or engineer shall have
certified to Tenant in writing that the Landlord's work
is ( as hereinafter defined) in the Demised Premises are
substantially complete in accordance with the plans and
specifications therefore, and that they shall
substantially complete and reasonable ready for use and
occupancy by Tenant, for purposes of performing Tenant's
work (as hereinafter defined);
2.3 The Landlord's work at the Demised Premises shall be deemed
substantially complete and ready for use and occupancy be Tenant for the
performance of Tenant's Work when the conditions referred to in paragraph 2.2
have occurred and been performed notwithstanding that insubstantial items of
construction, installation, finishing work or mechanical adjustment remain to be
done which (or the completion of which) will not unreasonably interfere with the
Tenant's use and occupancy. Landlord, shall, however diligently complete all
such incomplete items in an unreasonable manner. For purposes of this lease
Landlord's Work shall be the work to be completed by Landlord at Landlord's
expense as provided in the Building Design Criteria included in Exhibit B
annexed hereto.
2.4 Tenant shall be notified of the projected Commencement Date and
Tenant shall be notified when the Premises are sufficiently ready for Tenant to
enter upon the premises for the purpose of installing its trade fixtures and
making premises ready for its occupancy (hereunder referred to as "Tenant's
Work"); provided, however, Tenants shall not interfere with Landlord's Work in
completing the premises and shall employ only under labor in connection
therewith. In the event Tenant is permitted to enter the premises to install its
fixtures and equipment prior to the Commencement Date of this Lease, a
certificate of insurance covering Tenant or its subcontracts is required.
2.5 Notwithstanding the foregoing, in the event Tenant occupies or uses
the Premises for the conduct of its business prior to the Commencement Date, the
Commencement Data and the Rent Commencement Date shall be accelerated to the
date of the commencement of such use by Tenant. Tenant's use of the Premises for
the purposes set forth in Article 2.4 shall not constitute the use of the
premises for the conduct of its business.
Article 3: PLANS AND CONSTRUCTION
3.1 The parties have approved and signed for purposes of identification
outline plans and specifications for the renovation of the Demised Premises
which are attached hereto as Exhibit B and made a part hereof.
3.2 Landlord shall diligently prosecute the Landlord's Work in
accordance with the final plans in a good and workmanlike manner, by mechanics
skilled in their respective trades, and in accordance with all applicable laws.
The Commencement Date of this lease shall not be deferred for any period of
delay in the substantial completion of the Demised Premises caused by Tenant,
its agents, contractors of employees.
3.3 Landlord shall not be a default under this lease or liable to Tenant
in any manner for any damages by reason of delays in the performance of any
covenant or condition of this Lease if such delay is caused by Tenant or its
agents, contractors or employees, present or future governmental regulations,
restrictions or controls, strikes, lockouts, or other labor disputes, shortages
or unavailability of material or labor, acts of God, civil commotion or other
causes or conditions, whether similar or not to be foregoing, which are beyond
the reasonable control of the Landlord.
Article 4: RENT
4.1 Tenant agrees to pay to Landlord commencing on the date which is the
later to occur of the Commencement Date or June 30, 1994 (hereinafter referred
to as the "Rent Commencement Date") a Fixed Annual Net Rent at the rates set
forth on the Rent Schedule annexed hereto as Exhibit C in equal monthly
installments shall be payable in advance on the first day of each month during
the term hereof without notice of demand, and without deduction, abatement, or
set off for any reason whatsoever, except as in this Lease specifically
provided. The first monthly installment shall be paid on the date hereof. If the
Rent Commencement Date shall be on a day other than the first day of a calendar
month, the Fixed Rent of such first fractional month shall be prorated and shall
be paid by Tenant to Landlord on said date. All amounts payable hereunder, as
well as other amounts payable by Tenant to Landlord under the terms of this
lease, shall be paid at the office of the Landlord set forth above or at such
other places as Landlord may from time to time designate by notice to Tenant.
4.2 Upon substantial completion of the Building, Landlord's architect
shall certify in writing to Landlord and Tenant the number of square feet of
floor area contained in the Demised Premises measured from exterior wall to
exterior wall.
4.3 It is intended that the Fixed Rent provided for in paragraph 4.1
shall be absolutely net return to Landlord throughout the term hereof, free of
any expense charge or other deduction whatsoever, with respect to the Demised
Premises, the Building and/or the ownership, leasing, operation, management,
maintenance, repair, rebuilding, use or occupation thereof or any portion
thereof with respect to any interest of Landlord therein.
4.4 In the event that any installment of rent due hereunder is not
received when due a "late charge" of $.04 for each dollar so overdue may be
charged by Landlord for each month or part thereof that the same remains
overdue. This charge shall be in addition and not in lieu of any other remedy
the Landlord may have under the circumstances and it its in addition to any
reasonable fees and charges of any agents or attorneys Landlord may employ on
any rental default hereunder whether authorized herein or by law. Any such "late
charges" if not previously paid shall, at the option of the Landlord, be added
to and become part of the succeeding rental payment to be made hereunder.
Article 5: REAL ESTATE TAXES
5.1 Throughout the term of this lease, Tenant agrees to pay to Landlord,
or directly to the appropriate governmental authority as provided in Article
5.3, as additional rent hereunder five (5) days in advance of the final due date
therefore without interest or penalty, in immediately available funds for its
proportionate share of all real estate taxes, assessments, sewer rents, water
charged and all other taxes and charges in the same categories and any payment
in lieu of real estate taxes payable with respect to the Demised Premises
(sometimes hereinafter referred to collectively as "Impositions" levied,
assessed, imposed, or attributable to the Land and Building or arising from the
use, occupancy or possession of the Demised Premises. If any assessment is
payable in annual installments or in a lump sum,, there shall be added to the
amount of the real estate taxes payable for the calendar year in which such
assessment is payable and each subsequent calendar year only that amount of such
assessment, together with such interest thereon, as would have been payable to
the municipality in said calendar year if Landlord had elected to pay said
assessment in annual installments.
5.2 The Land and Building presently constitute part of a single tax lot.
The impositions to be paid by Tenant under this Article shall be determined as
follows: (a) (i) real estate taxes shall be the sum of (1) such taxes
attributable to the Building and related improvements calculated by multiplying
the assessed valuation
thereof by the then applicable tax rate (provided, however, that is such
assessed valuation covers buildings and improvements other than the Building,
such taxes attributable to the Building and related improvements shall be
determined by apportioning the same based upon the square footage of the
Building and related improvements as compared to the total square footage of all
buildings and improvements which constitute a part of said tax lot measured as
provided in paragraph 4.2 above, and taking into account the character of such
other buildings and improvements) and apportioning the result in a square
footage basis and (2) such taxes attributable to the Land calculated by
multiplying the assessed valuation of the entire Land portion of the tax lot by
then the applicable tax rate and apportioning the result on a square footage
basis, or (ii) such charges payable twice respect to the land and Building in
lieu of real estate taxes (including charges levied pursuant to any real estate
tax abatement) apportioned on a square footage basis as foresaid: and (b) other
Imposition not separated fixed shall be equitably apportioned on a square foot
basis.
5.3 If such separate tax lot, assessment and xxxx is obtained for the
Land and Building , Tenant agrees to pay all Impositions directly to the
appropriate governmental authority as and when the same become due. Tenant shall
furnish to Landlord within 10 days after the date on which any such Imposition
is due and payable satisfactory evidence of any payment thereof.
5.4 Impositions, as is allocable to the demised term, provided however,
that such apportionment shall be subject to set-off by Landlord if Tenant shall
then be in default of any term, covenant or condition of this lease.
5.5 Tenant, at its own cost and expense, may contest any such
Impositions in any manner permitted by law, in Tenant's name, and whenever
necessary, in Landlord's name. Landlord will cooperate with Tenant and execute
any document of pleadings required for such purpose.. Such contest may include
appeals from any judgment, decreed or orders until a final determination is made
by a court of governmental department or authority having final jurisdiction in
the matter. However, notwithstanding, such contest, Tenant shall pay the contest
Imposition in the manner and on the dates provided for in this Article. Any tax
refund with respect to Impositions paid by Tenant shall be property of the
Tenant.
5.6 Subject to the provisions of Article 35, Tenant shall not be
obligated or required to pay for any franchise, excise, corporate, estate,
inheritance, succession capital levy of transfer tax of Landlord, or any income,
profit or revenue tax upon the income ort receipts of Landlord, or any other
tax, assessment, charge or levy upon the rent reserved under this Lease, or any
tax or other Imposition, charge or levy (i) not commonly deemed to be a real
estate tax, and (ii) not arising solely from the ownership, occupation or
operation of the Demised Premises, although the same may be or become a lien
upon the real property or improvements thereon, nor shall Tenant be obligated or
required hereunder to pay
interest, amortization or principal on any mortgage governing or affecting the
fee or Ground Lease of the Demised Premises.
5.7 If during the term if this lease there shall be levied or assessed
any Imposition in rents or against the Fixed Rent or against Landlord or the
Demised Premises and substitute in whole or in part of real setae taxes on land
or buildings, such Imposition shall be included within those payable by Tenant
pursuant to paragraphs 5.1 an 5.3 above.
Article 6: PUBLIC UTILITY CHARGES
Tenant shall pay all charges for gas, water, sewer, electricity, heat or
other utility or service supplied to the Demised Premises (including Tenant's
proportionate share, on a square footage basis, of all common areas, if any),
and the cost of repair, maintenance, replacement, and reading of any meters
measuring Tenant's consumption thereof. In the event separate water meters are
not obtained, Tenant shall pay its proportionate share of such charges, on a
square footage basis. Tenant expressly agrees that Landlord shall not be
responsible for the failure to supply to Tenant any of the aforesaid, or any
other utility service, Landlord shall not be responsible for any public or
private telephone service to be installed in the space.
Article 7: USE AND COMPLIANCE WITH LAWS, ETC.
7.1 Tenant shall use and occupy the Demised Premises for an office and
warehouse facility. Tenant shall not use, permit or suffer the use of the
Demised Premises, or any part thereof for any hazardous or illegal purpose.
7.2 Tenant shall, at its expense, promptly comply, or cause compliance,
with all laws and orders, rules, regulations and requirements of all federal,
state, county and municipal governments, and appropriate departments,
commissions, boards and offices thereof, foreseen or unforeseen, ordinary as
well as extraordinary, and whether or not the same shall presently by within the
contemplation of the parties hereto or shall involve any change of governmental
policy or require extraordinary or structural repairs (other than those which
Landlord is required to make under paragraph 9.2), alterations, equipment or
addictions or any work of any kind and irrespective of the cost thereof which
may be applicable to Demised Premises, including, without limitation , the
fixtures and equipment thereof and the sidewalks, curbs and walks, if any,
adjoining the Demised Premises, for the purposes to which the Premises are put,
or manner of use the Premises at the commencement of or during the terms.
7.3 Tenant, after notice to Landlord may contest by appropriate legal
proceedings, without cost or expense to Landlord, the validity of any law,
ordinance, order, rule, regulation or requirement of nature herein referred to,
provided, however, that (a) such non-compliance shall not constitute a crime on
the part of the Landlord, (b) Tenant shall first reasonably satisfy Landlord
concerning its financial ability to comply with such law, ordinance, order,
rule, regulation or requirement, and (c) Tenant shall indemnify Landlord against
any and all liability loss and damage which Landlord may sustain by reason of
Tenants' failure to delay in complying therewith. Tenant shall prosecute such
contest and Tenant shall cooperate with Landlord in prosecuting such contest and
Landlord may, if required, continue in Tenant's name. In any event, however
constitute a default of any of the provisions of any mortgage reasonably with
Tenant, and to use execute any documents or pleading reasonably required for the
purpose of any such contest, provided that the same shall be without cost or
expense to Landlord. Landlord shall have the right, but not the obligation to
contest by appropriate legal proceedings, at Landlord's expense, and such law,
ordinance, rule, regulation or requirement.
7.4 No abatement, diminution or reduction of the annual rent, or of any
additional rent or other charges required to be paid by Tenant pursuant to the
terms of the Lease, shall be claimed by or allowed to, the Tenant for any
inconvenience, interruption, cessation or loss of business or otherwise caused
directly or indirectly by any present or future laws, rules, requirements,
orders, directions, ordinances, or regulations of the United States of America,
or of the State, County or City government or of any other municipal,
governmental, or lawful authority whatsoever, or by priorities, rationing, or
curtailment, of labor, or materials, or by war, civil commotion, strikes or
riots, or any matter or thing resulting therefrom, or by any other or causes
beyond the control of the Landlord, nor shall this Lease be affected by and such
causes. Subject to the provisions of paragraph 4.2, no diminution of the amount
of space used by Tenant caused by legally required change in the construction,
equipment, operation or use of the Demised Premises shall entitle Tenant to nay
reduction or abatement of the annual rent, additional rent or any other charges
required to be paid by Tenant hereunder, the provisions of this paragraph are
expressly made subject to the provisions of Article 14 hereof.
Article 8: INDEMNIFICATION; COSTS IN OBTAINING POSSESSION:
8.1 Tenant covenants and agrees at its sole cost and expense to indemnify
and save harmless Landlord against and from any loss, cost expense, and
liability, from claims by third parties including without being limited to,
reasonable attorney's' fees and court costs, arising from or in connection with
(a) the conduct or management of, or from, any work, or thing whatsoever, done
in or on the Demised Premises prior to or during the demised term (other than
any work or thing done by or at the instance of Landlord or its servants or
employees : (b) any breach or default on the part of Tenant in the performance
of any covenant of agreement on the part of Tenant to be performed pursuant to
the terms of this Lease; (c) any act or
negligence of Tenant , or any its agents, contractors, servants, employees or
licensees, of (d) any accident , injury or damage whatsoever caused to any
person , firm or corporation occurring during the demised term, in or on the
Demised Premises except to the extent caused y Landlord's negligence; and in
case any action or proceeding is brought against Landlord by reason of any
claims covered by the foregoing indemnity, Tenant, upon notice from Landlord
agrees to resist or defend such action or proceeding by counsel reasonably
satisfactory to Landlord. Counsel for Tenant's insurance carrier shall be deemed
satisfactory.
8.2 Tenant agrees to pay, and to indemnify Landlord against all legal
cost and charges, including counsel fees, lawfully and reasonably incurred in
obtaining possession of the Demised Premises after default of Tenant, or upon
expiration of earlier termination of the demised term, or in enforcing any
covenant or agreement of Tenant herein contained.
Article 9: MAINTENANCE AND REPAIRS, COVENANT AGAINST WASTE AND RIGHT OF
INSPECTION
9.1 Tenant shall, throughout the demised term and at no expense
whatsoever to Landlord, take good care of the Demised Premises (including
Tenant's proportionate share of all common areas, if any), and shall not do or
suffer any repairs to the Demised Premises, including but not limited to, all
Building equipment, heating, air conditioning, plumbing, and electrical systems,
of every kind and nature, interior and exterior, ordinary as well as
extraordinary, foreseen as well as unforeseen (other than those which Landlord
is obligated to make) necessary to keep Premises in good and lawful order and
condition. When used in the Article, the term "repairs" shall include
replacement, restoration and/or renewals when necessary. The provisions and
conditions of Article 11 applicable to changes or alterations shall similarly
apply to repairs required to be done by Tenant under this Article. Tenant shall
keep and maintain all portions of the Demised Premises (including Tenant's
proportionate share of all common areas, if any, ) including, without
limitation, all Building equipment, heating, air conditioning, plumbing, and
electrical systems .and the sidewalks, landscaping and lawn areas adjoining
same, in a clean and orderly condition, free of accumulation of dirt and
rubbish, and Tenant shall mot permit of suffer any overloading of the floors of
the Demised Premises. Tenant shall keep the interior and exterior walls and
areas of the Demised Premises clean and in good order and condition. Tenant
shall, at its expense, remove or plow all snow and refuse from the premises. In
the event Tenant plows snow, same shall be done in a manner so as not to
interfere with the use and occupancy of the Building by any other tenants or
their invitees.
9.2 Landlord shall make available to Tenant all warranties and
guarantees on materials, equipment and systems received by it in connection with
the construction of the Building.
9.3 Xxxxx shall permit Landlord and the authorized representative of
Landlord, upon notice which is reasonable under the circumstances, to enter the
Demised Premises at reasonable times during usual business hours for the purpose
of exhibiting or inspecting the same and or curing any defaults on the part of
Tenant in making any necessary repairs to the Demised Premises, or in the
performance of any work therein that may be necessary to comply with any laws,
ordinances, rules, regulations or requirements, of any public authority, or that
may be necessary in case of emergency. Nothing in this Section 9.3 shall imply
any duty upon the part of the Landlord to any such work or make any alterations
or repairs, additions or improvements to the Demised Premises, of any kind
whatsoever except as in the lease specifically provided. The performance thereof
by failing to perform the dame. Unless caused by Landlord's inconvenience,
annoyance, disturbance, loss of business or other consequential damage of the
Tenant or any other occupant of the Demised Premises or part thereof, by reason
of making repairs or the performance of any work on the Demised Premises or on
account of bringing material, supplies and equipment into or through the Demised
Premises during the course thereof and the obligations of Tenant under this
Lease shall not thereby be affected in any manner whatsoever, Landlord will
exercise due diligence not to interfere with Tenant's business operation, but
shall not be required to employ overtime labor to avoid such interference.
Article 10: MECHANIC'S LIENS
10.1 Tenant shall not suffer or permit any liens to stand against the
Demised Premises or any part thereof by reason of work, labor, services or
materials done for, or supplied, or claimed to have been done for, or supplied
to, Tenant or anyone holding the Demised Premises or any part thereof through
under Tenant. If such lien shall at any time be field against the Demised
Premises, Tenant shall cause the same to be discharged of record within 15 days
after the date of filing the dame, by either payment, deposit or bond. If Tenant
shall fail to discharge any such lien within such period (or such period as may
be required by any mortgagee to which this lease is subordinated), then, in
addition to any other right or remedy of Landlord, Landlord may, but shall not
be obligated , procure the discharge of the same either by paying the amount
claimed to be due buy deposit in court or bonding, and/or Landlord shall be
entitled , if Landlord so elects, to compel the prosecution of an action for the
foreclosure of such lien by the linear with interest, costs, and allowances. Any
amount paid or deposited by Landlord for any of the aforesaid purposes, and all
legal and other expensed by Landlord , including reasonable counsel fees, in
defending any such action or in or about procuring the discharge of such lien,
with all necessary disbursements in connection therewith, together with interest
thereon at the then maximum legal rate per annum from the date of payment or
deposit, shall become due and payable forthwith by Tenant to Landlord, or, at
the option of Landlord, shall be payable by Tenant to Landlord as additional
rent,, as provided in Article 15 hereof.
10.2 Nothing in this Lease shall be deemed to be, or construed in any
way as constituting, the consent or request of Landlord, expressed or implied,
by inference or otherwise, to any person , firm or corporation for the
performance of any labor or the furnishing of any material s for any
construction, rebuilding, alteration or repair of or to the Demised Premises or
any part thereof, nor as giving Tenant any right, power or authority to contract
for or permit the rendering of any services for the furnishing of any materials
which might in any way give rise to the right to file any lien against
Landlord's interest in the Demised Premises. Landlord shall have the right to
post and keep posted at all reasonable times on the Demised Premises any notices
which Landlord shall be required to so post for the protection of Landlord and
Demised Premises from any such lien.
Article 11: ALTERATIONS
11.1 Tenant shall not make, or cause, or permit the making of (a) any
structural alterations, additions, or improvements in or to the Demised Premises
or (b) any non-structural alterations, additions or improvements equal to or
exceeding a cost of $50,000.00 for any one project, or in the Demised Premises
without obtaining Landlord's prior written consent thereto in each instance,
which consent shall not be unreasonably withheld in the case of non-structural
alterations, or improvements costing less than said amount Landlord's consent
will be required if the same should reduce the value, size, or generality of the
same building or would not be of architectural harmony with the Building . In
addition, any approval by Landlord as aforesaid may be upon condition that
Tenant furnishes to Landlord such evidence of Tenant's financial ability to
assure completion as Landlord may reasonably require. If Landlord shall so elect
(upon approval of such alterations, or if approval has not required, then at any
time prior to the termination of the lease), Tenant shall, at its sole cost and
expense, remove any structural or non-structural alterations, additions, and
improvements at the expiration of or other termination if this Lease and repair
all damage caused by removal and restore the Premises to the condition they were
in prior to the installation f any such alteration, addition, or improvement.
Nothing herein contained shall be construed in any way to restrict Tenant's
right to make any alterations, additions, or improvements in Tenant's right to
make any alterations, additions, or improvement, in Tenant's won movable trade
fixtures. The provisions of this Article 11 are subject to the terms and
conditions of any mortgagee is required for such work, such consent shall be
obtained by Tenant before any such work is commenced. Preliminary plans and
specifications showing such proposed alterations, additions, and improvements
shall be submitted to Landlord for approval upon the application for its
consent, if required: together with a contractor's estimate of the cost thereof
any changes in said plans and specifications shall be submitted to Landlord for
approval.
11.2 In connection with any alteration, addition or improvement, by this
Article, and any repairs or restoration work contemplated by this other terms
and conditions of this Lease, Tenant shall comply with all applicable laws,
regulations, ordinances, and order and shall procure all requisite permits at
its expense. The originals of all such approvals, authorizations and permits
shall be delivered to retained by Landlord. Landlord will, on written request
from Tenant, execute any documents unnecessary to b e signed on its part to
obtain any such permit, provided that Tenant shall discharge any expense or
liability of Landlord in connection therewith, All alterations, additions, and
improvements made hereunder by Tenant shall be performed using union labor, in a
first class, workmanlike manner.
11.3 All alterations, changes and additions (other than Tenant's trade
fixtures) made by Tenant shall upon installation immediately be and become part
of the realty and the sole absolute property of Landlord and shall remain upon
and be surrendered with the Demised Premises at the expiration or other
termination of the Lease unless Landlord shall have elected as provided in
paragraph 11.1 above that any such alterations, changes, and additions be
removed, in which event they shall be removed by Tenant and the premises
restored to their original condition at Tenant's expense upon or prior to the
expiration of the term.
Article 12: INSURANCE
During the term hereof, Tenant shall at its own cost and expense provide
and keep in force the following insurance:
a) Comprehensive public liability insurance for the mutual benefit
of Landlord and Tenant against claims for bodily injury, death
or property damage occurring in or about the Demised Premises
and the Building (including, without limitation bodily injury,
death, or property damage resulting directly or indirectly from
or in connection with any change, alteration, improvement, or
repair thereof.) with limits of not less than $3,000,000 for
bodily injury or death to any one person and $5,000,000 for
bodily injury or death to any number of persons, and property
damage with limits of not less than $250,000 which insurance may
be carried under a so-called "blanket policy". Commencing with
the second lease year and continuing thereafter for each lease
year during the term of this Lease the amounts of Comprehensive
public liability insurance to be carried by Tenant hereunder
shall be increased by the yearly percentage increase in the
consumer price index (for urban wage earners and clerical
workers for New York, N.Y. and Northeastern new Jersey) over
said years; in the event said index decreases, the insurance
coverage shall be maintained in the same amount as the preceding
year.
b) Insurance covering the Demised Premises against loss or damage
by fire and lightning and such risks as are customarily included
in extended coverage endorsements attached to fire insurance
policies covering property similar to such Premises in an amount
equal to 100% of the full replacement value thereof as same
might increase from time to time or such higher amount as either
may be required by he holder o any mortgage covering the
Premises or is necessary to prevent Landlord and/or Tenant from
becoming a co-insurer.
c) Rent insurance with broad from extended coverage endorsement in
an amount equal to the Fixed Rent, Impositions, and all other
charges payable by Tenant pursuant to this Lease for a period of
one year.
d) Such other insurance, in such amounts that may from time to time
be reasonably requested by Landlord against other insurable
hazards which at the time are reasonably available and commonly
insured against in the case of Premises, its construction, use
and occupancy, including but not limited to, war damage, boiler
insurance (if applicable) and machinery insurance.
12.2 All insurance to be provided and kept in force by Tenant under the
provisions hereof shall name the insured Landlord and Tenant as their respective
interests may appear, except that the insurance carried pursuant to Article 12.1
(b) shall also be carried in favor of the Ground Lessor and the holder of any
mortgagee clause shall be attached to the appropriate policies, Insurance
carried pursuant to the Article 12.1 (b) provide that the loss, if any, shall be
adjusted with and payable to the party who will perform the work of restoration
pursuant to Article 12 and such mortgagee as their interests may appear.
12.3 All policies shall be obtained by Tenant certificate thereof of
valid company binders shall be delivered to Landlord upon executing hereof and
shall be taken in responsible companies reasonably satisfactory to Landlord and
authorized to do business in the State of New Jersey. All policies shall be for
period of not less than one year and shall contain a provision whereby the same
cannot be cancelled unless Landlord is given at Lease 10 days written notice of
such cancellation. Tenant shall procure and pay for renewals of such insurance
from time to time and Tenant shall promptly deliver to Landlord certificate
thereof or valid company under at least 30 days before the expiration thereof.
12.4 Tenant hereby releases Landlord from any and all liability or
responsibility to or anyone claiming through or under it by way of subrogation
or otherwise, fir any loss or damage caused by fire, lightning, or any of the
extended coverage casualties, whiter or nor insured, even if such fire or other
casualty shall have been caused by the fault or negligence of Landlord, or
anyone for whom Landlord may be responsible.
Article 13: DAMAGE OR DESTRUCTION
If the premises shall be damaged by fire or any other cause , Tenant
shall, at the election of Landlord, cause same to be restored, subject to an in
accordance after the date of damage to perform the work of restoration with the
proceeds of any insurance covering the Premises. If the cost of restoration as
estimated by Landlord (a copy of which estimate shall be delivered by Landlord
to Tenant within 90 days after the date of such loss) shall equal or exceed
twenty-five percent (25%) of the replacement value of the Premises in their
condition just prior to the occurrence of the damage, Landlord may, no than the
120th day following the damage , give Tenant a notice stating that it reflects
to cancel this Lease; and in such even Tenant shall pay or assign to Landlord
the proceeds covering such loss and/or the right to adjust or receive the same
(provided, however , Tenant shall pay to Landlord the estimated cost of
restoration in excess of such proceeds if such insurance does not comply with
the insurance's to be carried by Tenant pursuant to paragraph 12.1 (b) above ),
and thereupon shall expire surrender possession of the Premises on said date of
the loss (or on which Tenant ceases to use the premises , if later) and any rent
paid for any period beyond said date shall be repaid to Tenant. All restoration
work shall be done and completed with due diligence and reasonable promptness,
subject to ordinary delay and to delays beyond the control of the party
performing the work and to delays in the making of insurance adjustments.
Subject to the terms of any fee of ground lease mortgage covering the Demised
Premises, the proceeds of any insurance payable as the result such damage shall
be held by Landlord, as a trust fund to be used for the cost of restoration
before being applied to any other purpose.
13.2 In the event of any such damage by fire or other casualty which
does not result in a cancellation of this lease as aforesaid, the provisions of
this Lease shall be unaffected and Tenant shall remain and continue to be liable
for the payment of the Fixed Rent, Impositions and all other charges required
hereunder to be paid by Tenant as though no damage by fire or other casualty had
occurred, and there shall be no abatement or reduction thereof except to the
extent, if any, that Landlord shall receive the proceeds of rent insurance in
lieu thereof.
13.3 In the event that any of the insurance monies paid by the
insurance company to Landlord or Tenant, as hereinabove provided, shall remain
after the completion of such repairs, restoration, construction, or erection,
the excess shall be the property of and paid to Landlord. If the insurance
monies paid to Landlord or Tenant shall be insufficient to pay the entire cost
of such work and replacement, Tenant agrees to pay deficiency.
13.4 Tenant agrees to give prompt notice to Landlord with respect to all
fires and casualties occurring upon the Demised Premises.
Article 14: CONDEMNATION
14.1 If at any time during the term of this Lease, title to the whole or
materially all of the Demised Premises shall be taken by the exercise of the
right of condemnation or eminent domain (hereinafter referred to as the
"proceedings") or by agreement between (Landlord and those authorized to
exercise such right, or at Landlord's option if twenty-five percent (25%) or
more of the Demised Premises are taken, this Lease shall terminate and expire on
the date of such taking, the Fixed Rent and additional rent and other charges
provided to be paid by Tenant shall be apportioned and paid to the date of such
taking, and the total award in such proceedings shall be paid to Landlord. For
the purpose of this Lease, "materially all of the Demised Premises" shall be
deemed to have taken if the Premises a reasonably usable for Tenant's business
purposes shall be settled by arbitration to be held in New Jersey in accordance
with the rules of the American Arbitration Association then in effect. Judgement
may be entered o the arbitrator's determination in any court having jurisdiction
and the parties consent to the jurisdiction of the New Jersey courts for this
purpose.
14.2 If at any time during the term of this lease title to less than
materially all o the Demised Premises shall be taken as aforesaid, the entire
award shall be paid to Landlord and the Landlord shall restore the Premises to
and architecturally complete unit with reasonable promptness, subject to
ordinary delays beyond Landlord's control. The proceeds of award shall be held
by Landlord or Ground Lessor pursuant to the Ground Lease, as a trust fund to be
used for the cost for restoration before being applied to any other purpose.
14.3 If title to less than materially all of the Demised Premises shall
be taken as aforesaid, this Lease shall continue, except that thereafter the
Fixed Rent shall be reduced to an amount equal to an amount determined in
accordance with paragraph 4.2 hereof.
14.4 Tenant further agrees that if, at any time after the date hereof,
the whole or any part of Tenant's interest under this Lease shall be taken or
condemned by any competent authority for its or their temporary xxx or
occupancy, this Lease shall not terminate by reason thereof and Tenant shall
continue to pay, in the manner and at the time herein specified, the full amount
of the Fixed Tent, Impositions, and all additional rent and other charges
payable by Tenant may be prevented from so doing pursuant to the terms of the
order of the condemning authority , to perform and observe all of the other
terms, covenants, conditions and obligation hereof upon the part of Tenant to be
performed and observed, as though such taking had not occurred. In the event of
any such taking as in the paragraph 14.4 referred to, Tenant shall be entitled
to receive the entire amount of any award made for such taking, whether paid by
way of damages, rent or otherwise, but if such period to temporary use or
occupancy shall extend beyond the expiration date of this
Lease such award shall be apportioned between Landlord and Tenant as of such
date of expiration of the term hereof. Tenant agrees that, upon the termination
of any such period of temporary use of occupancy it will, at its sole cost and
expense, restore the Demised Premises as nearly may be practicable, to the
condition in which the same were immediately prior to such taking.
14.5 Tenant shall have a right to make a claim in any proceeding for its
trade fixtures and moving expenses provided same do not adversely affect
Landlord or Landlord's rights.
Article 15: SELF-HELP
Tenant covenants and agrees that if it shall at any time fail to make
any payments or perform any act which the Tenant is obligated to make or perform
under this Lease then the Landlord may, but shall not be obligated so to do,
after Tenant's time to make any such payment of perform any such act as provided
in Article 16 has expired, and without waiving, or releasing the Tenant from,
any obligations of the Tenant in this Lease contained, make any payment or
perform any act which the Tenant is obligated to perform under this Lease, in
such manner and to such extent as shall be necessary, and in exercising any such
rights, pay necessary and incidental cost and expenses, employ counsel and incur
and pay reasonable attorney's fees. Notwithstanding the foregoing, Landlord may
make any such payment or perform any such act before Tenant's time to do so as
provided in Article 16 has expired if the same is necessary or required for the
preservation or protection of the Demised Premises. All sums so paid by Landlord
and all necessary and incidental costs and expenses in connection with the
performance of any such act by Landlord, together with interest thereon at the
then prime rate charged by Chemical Bank, New York, New York, plus $% on the
date of the making of such expenditure by Landlord, shall be deemed additional
rent hereunder and, except as otherwise in the Lease expressly provided, shall
be payable to Landlord on demand or at the option of the Landlord may be added
to any rent then due to thereafter becoming due under this lease, and Tenant
covenants to pay any such sum or sums with interest as aforesaid and Landlord
shall have (in addition to any other right or remedy of Landlord) the same
rights and remedies in the event of non-payment thereof by Tenant as in the case
of default by Tenant in the payment of rent.
Section 16: CONDITIONAL LIMITATIONS- DEFAULT PROVISIONS
16.1 This lease and the demised term are subject to the limitation that,
if at any time after the date hereof, any one of the following events
(hereinafter called an "event of default") shall occur, that is to say:
(a) If Tenant shall make an assignment for the benefit of its
creditors; or
(b) If any petition shall be filed by or against Tenant in any
court, whether or not pursuant to any statute of any State, in
an reorganization, composition, extension arrangement or
insolvency proceedings, and the same is not dismissed in 30 days
as respects a petition filed against Tenant provided during such
period Tenant continues to pay all rent, Impositions and other
charges and perform all of its obligations under this lease; or
(c) If, Tenant, or a trustee or custodian appointed for all or a
substantial portion of Tenant's property pursuant to the
provisions of any insolvency, bankruptcy, reorganization or
other law then in effect, shall fail within the time provided by
law and order of a court having competent jurisdiction to
provide Landlord with adequate protection as the item is used in
11 USC 361 and specifically the "indubitable equivalent" of
Landlord's interest in the Demised Premised as Premises as
provided in 11 USC (3) ; or
(d) If Tenant shall assign, mortgage or encumber this Lease, or
sublet the whole or any part of the Demised Premises, otherwise
than as expressly Permitted hereunder; or
(e) If Tenant shall fail to pay any installment of the Fixed Rent
set forth in this lease provided for in Article 4 and Article 39
of this Lease, or in any part thereof when same is due and
payable; or
(f) If Tenant shall fail to pay any item of additional rent or any
other charge required to be paid by Tenant hereunder (other than
the payment of the rental as set forth in said Article 4) and
such failure shall continue for ten (10) days after notice
thereof, from Landlord to Tenant; or
(g) If Tenant shall fail to perform or observe any other requirement
of this lease (not hereinbefore in this paragraph 16.1
specifically referred to ) on the part of Tenant to be performed
or observed and such failure shall continue for fifteen (15)
days after written notice, thereof from Landlord to Tenant
(subject, however, to the provisions of paragraph 16.6);or
(h) If Tenant shall abandon the Premises or fail to keep the
Premises occupied to the extent necessary to maintain fire
insurance coverage; or
(i) If a petition or a proceeding is filed of commenced by or
against Tenant or a substantial portion of Tenant's property
whereupon the Premises shall be, or attempted to be , taken or
occupied by someone other than Tenant; or
(j) If a petition or a proceeding is filed of commenced by or
against Tenant for its dissolution or liquidation (other than in
connection with any merger provided same as is consented to or
permitted hereunder), or if it property is taken by any
governmental authority in connection with a dissolution or
liquidation, and if filed or commenced against Tenant the same
is not dismissed within (30) days;
(k) If Tenant shall fail to pay to Landlord or an affiliated entity
any amount due in connection with orders for extra work,
material and/or equipment made by Tenant in connection with the
construction of finishing of the Building and if said default is
not cured by Tenant within fifteen (15) days of written notice
from Landlord or contested by the institution of appropriate
proceedings; or
(l) If Tenant shall breach any of its obligations or covenants
contain in Article 35 of this lease;
Then upon the happening of any one or more of the aforementioned events
of default, and the expiration of the period of time for curing the same,
Landlord may give to Tenant a notice (hereinafter called "notice of
termination") and at the expiration of such fifteen (15) days, the term hereof,
a s well as all of the right, title and interest of Tenant hereunder, shall
wholly cease and expire in the same manner and with the same force and effect as
if the date of expiration of such fifteen (15) days period were the date
originally specified herein for the expiration of this Lease and the demised
term, and Tenant shall remain liable as hereinafter provided.
16.2 If this lease shall not be terminated as in the preceding paragraph
16.1 hereof provided, Landlord or Landlord's agents or servants, may immediately
or at any time thereafter re-enter the Demised Premises and remove therefrom
Tenant , its agents, employees, servants, licensees, and any subtenants and
other persons, firms, or corporations, and all or any of its or their property
therefrom, either by summary dispossess proceedings or by any suitable action or
proceeding at law, without being liable to indictment, prosecution or damages
therefore, and repossess and enjoy said Premises, together with all additions,
alterations and improvements thereto.
16.3 In case of any such termination, re-entry or dispossess by summary
proceedings or otherwise, Tenant agrees that:
(a) The Fixed Rent, additional rents, Impositions and all other
charges required to be paid by Tenant hereunder shall thereupon
become due and be paid up to the time such termination, re-entry
or dispossess, and Tenant shall also pay to Landlord all
reasonable expenses which Landlord may then or thereafter incur
for legal expenses attorneys' fees, brokerage commissions, and
all other costs paid or incurred by Landlord for restoring the
Demised Premises to good order and condition and for altering
and otherwise preparing the same for reletting.
(b) Landlord may, at any time from time to time, relet the Demised
Premises, in whole or in part, either in its own name or as
agent of Tenant, for a term or terms which, at Landlord's
option, may be for the remainder of the current term of this
lease, or for any longer or shorter period and grant free rent
concessions in connection therewith.
(c) Tenant shall be obligated to and agree to pay to Landlord, upon
demand, ad Landlord shall be entitled to recover from Tenant,
damages in an amount equal to the excess, if any, of all Fixed
Rent, additional rents, Impositions and other charges and items
as would be required hereunder to be paid to be paid by Tenant
for each calendar month had this lease and the demised term been
so terminated, or had Landlord not so re-entered, over the
rents, if any , collected by Landlord in respect of such
calendar month pursuant to any reletting. Said damages shall be
payable by Tenant to the Landlord in monthly installments in the
same manner as Fixed Rent hereunder, and any suite or action
brought to collect the amount of the deficiency for any month
shall not prejudice in any way the right if Landlord to collect
the deficiency for any subsequent month by a similar proceeding.
(d) If the statute or rule of law governing Landlord's claim for
damages shall limit the amount of such claim capable of being so
proved and allowed, Landlord shall be entitled to prove as and
for liquidated damages and have allowed an amount equal to the
maximum allowed by or under any such statute or rule of law.
16.4 In Connection with any leasing, Landlord at its option, may make
such alterations, repairs and/or decorations in the Demised Premises as in its
reasonable judgment Landlord considers advisable and necessary, and the making
of such alterations, repairs and/or decorations shall not operate or be
construed to release Tenant from liability hereunder. Landlord shall be in no
event be liable in any way whatsoever for failure to relet, for failure to
collect rent thereof under such reletting; and in no event shall Tenant be
entitled to receive any excess of such annual rents over the sums payable by
Tenant to Landlord from time to time at is
election, and nothing herein contained shall be deemed to require Landlord to
postpone suite until the date when the term of this Lease would have expired if
it had not been terminated under the provisions of this Lease, or under any
provision of law, or had Landlord not re-entered into or upon the Demised
Premises.
16.5 Tenant, for itself an any and all persons claiming through or under
Tenant, including but not limited to its creditors, upon the termination of this
lease and of the demised term in accordance with the terms hereof, or in the
event of entry of judgment for the recovery of the possession of the Demised
Premises by process o flaw or otherwise, hereby waives any right or redemption
provided or permitted by any statute, law or decision now or hereafter in force,
and does hereby waive, surrender and give up all rights an privileges which it
or they may or might have under and by reason of any present or future law or
decision, to redeem the Demised Premises or for a continuation of this Lease
after having been dispossessed or ejected therefrom by process of law, or
otherwise. Tenant waives all right to trial by jury in any action or summary
other judicial proceeding hereafter instituted by Landlord against Tenant in
respect of the Demised Premises.
16.6 Anything in this Article 16 to the contrary notwithstanding, it is
expressly understood that, with respect to any event of default within the
purview of subdivision (g) of Article 16 hereof, if such event of default cannot
for reasons beyond Tenants control be cured within the period of forty-five (45)
days provided for in said subdivision (g), the Landlord shall not be entitled to
serve a notice of termination up Tenant, as provided in said Article 16.1, if
Tenant shall commence the curing of such default promptly upon the cessation of
the reasons beyond Tenant's control which prevented Tenant from curing the
default not susceptible of being cured with due diligence within such period of
(45) days, time of Tenant within which to cure the same shall be extended for
such period as may be necessary to complete the dame with all due diligence.
16.7 The words "re-inter" and "re-entry" as used herein are not
restricted to their technical legal meeting.
16.8 In the event that a petition shall be filed by or against Tenant in
any bankruptcy, reorganization, composition, arrangement, or insolvency
proceeding pursuant to the provisions of the present bankruptcy Code or any
subsequent Act similar thereto or amending same, demand shall be deemed
automatically made for relief from the imposition of the automatic stay
presently imposed by 11 USC 362 or such later Section as shall be deemed the
request of Landlord for a hearing to be held with regard to the modification,
termination, or lifting of said stay and shall be deemed effective as of the
date of filing of said stay and shall be deemed effective as of the date of
filing of said petition or by or against Tenant.
Article 17: CUMULATIVE REMEDIES, WAIVER, ORAL CHANGE
17.1 Every term, condition, agreement or provision contained in the
Lease shall be deemed to be also a covenant,
17.2 The specified remedies to which the Landlord 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 Landlord may be lawfully entitled in
case of any breach by Tenant of any provision of this Lease.
17.3 The failure of Landlord or Tenant to insist in any one or more
cases upon the strict performance of any of the terms, covenants, conditions,
provisions or agreements of this Lease or to exercise any option herein
contained shall not be construed as a waiver or a relinquishment for the future
of any such term, covenant, condition, provision agreement or option. A receipt
and acceptance by Landlord of rent or any other payment, or the acceptance by
Landlord of performance of anything required by this Lease to be performed, with
the knowledge of the breach of any term, covenant, condition provision or
agreement of this Lease, shall not be deemed a waiver of such breach, nor shall
any such acceptance of rent in a lesser amount than is herein provided for
(regardless of any endorsement on any check or any statement in any letter
accompanying any payment of rent) operate or be construed as an accord and
satisfaction or in any manner other than as payment on account of the earliest
rent then unpaid by Tenant, and no waiver by Landlord of any term, covenant,
conditions, provision or agreement of this Lease shall be deemed to have been
made unless expressed in writing and signed by Landlord.
17.4 In addition to the other remedies in this Lease provided, Landlord
shall be entitled to the restraint by injunction of any violation or attempted
or threatened violation, of any of the terms, covenants, conditions, provisions
or agreements of this Lease.
17.5 This Lease may not be changed orally, but only by agreement in
writing signed by the party against whom enforcement of the change, modification
or discharge is sought or by his agent.
Article 18: QUIET ENJOYMENT
Landlord covenants and agrees that Tenant, upon payment the rent and all
charges herein provided for and performing and observing the covenants,
conditions, and agreements hereof upon the part of Tenant to be performed and
observed, shall and may peaceably hold and enjoy the said Premise during the
term hereof, without any hindrance or molestation from Landlord, subject,
however, to the terms of this Lease and any fee mortgage or mortgage of the
Ground Lease, to which this Lease is subordinate.
Article 19: SURRENDER OF PREMISES
Tenant shall, upon the expiration or termination of this Lease for any
reason whatsoever, surrender to Landlord the Demised Premises, together with all
alterations (unless Landlord shall elect otherwise as hereinbefore provided) and
replacements thereof then on the Demised Premises, in good order, condition and
repair, except for reasonable wear and tear. Title to all of Tenant's trade
fixtures, furniture and equipment (other than Building equipment) installed in
the Demised Premises shall remain in Tenant, and upon expiration or other
termination of this Lease, the same shall be removed and any resultant damage to
the Demised Premises shall be repaired, by and at the expense of Tenant.
Article 20: ASSIGNMENTS, SUBLETTING AND ENCUMBRANCES
20.1 Tenant shall not assign, mortgage or otherwise encumber this Lease, or
sublet all or any part of the Premises, without the prior written consent of
Landlord in each instance. Landlord may condition its consent to an assignment
of this Lease upon Tenant's delivery to Landlord, in recordable form, and within
three (3) days after its execution, by ( i) a duplicate original of the
assignment, and (ii) an agreement wherein assumes and agrees to keep, observe
and perform all of the covenants, conditions and obligations to be kept,
performed and observed under Lease on the part of Tenant. Landlord shall not
unreasonably withhold or delay its consent to any sublease; provided, however,
at no time shall there be more than three (3) subleases in effect with regard to
the Premises, excluding bonafide subsidiary corporations. Notwithstanding any
assignment, Tenant hereby agrees at all times to be and remain primarily and
jointly liable on this Lease. If this Lease be assigned or if the Premises or
any part thereof be sublet or occupied by anybody other than Tenant, Landlord
may, after default by Tenant, collect Rent from the assignee, subtenant or
occupant, and apply the net amount collected to the Rent herein reserved, but no
such assignment, subletting, occupancy or collection shall be deemed a waiver of
this covenant, or the acceptance of the assignee, subtenant or occupant as
Tenant, or a release of Tenant from the further performance by Tenant of the
terms, covenants and conditions of this Lease on the part of Tenant to be
performed. Any violation of any provision of this Lease, whether by act or
omission, by an assignee, subtenant or similar occupant, shall be deemed a
violation of such provision by Tenant, it being the intention and meaning of the
parties hereto that Tenant shall assume and be liable to Landlord for any and
all acts and omissions of any and all assignees, subtenant and similar
occupants. The consent by Landlord to an assignment, encumbrance or subletting
shall not be construed in any way to relieve Tenant from obtaining the express
consent in writing of Landlord to any further assignment, encumbrance or writing
of Landlord to any further assignment, encumbrance or subletting. In the event
the rent and other charges payable in connection with such assignment or
subletting exceed the fixed rent, additional rent and Impositions payable
hereunder such excess amount shall be payable to Landlord as additional rent.
20.2
(a) If Tenant desires to assign this Lease or to sublet all or part
of the Demised Premises, it shall make written application to
Landlord for Landlord's consent to the making of such assignment
or subletting, which application shall set forth the name and
address of the proposed assignee or subtenant and in the case of
any assignment, the full and complete terms and conditions of
the assignment, and in the case of a subletting the exact space
to be sublet, the amount of the rental to be paid by the
subtenant if the sublease will cover all or substantially all of
the Demised Premises, and a statement of all of the Material
terms and conditions of the sublease.
(b) In the event Tenant desires to assign this Lease or sublet all
or a portion of the space in the Building, Landlord shall have
the right within twenty-one (21) days after receipt of said
application to terminate this lease by giving Tenant notice of
its election to do so and such termination shall become
effective date of the earlier than thirty (30) days after the
giving of such notice, and the Fixed Rent, additional rent and
all other charges payable by Tenant shall be so adjusted and
apportioned as of the date of termination. If Landlord does not
elect to terminate this Lease as aforesaid, Tenant shall have
the right to enter into the assignment or sublease which gave
rise to Landlord's right of termination.
20.3 Notwithstanding the foregoing provisions, Tenant may:
(i) sublet any part of the Premises to any parent affiliate
or wholly owned subsidiary of Tenant; or
(ii) assign this Lease to any parent, affiliate, or wholly
owned subsidiary of Tenant; or
(iii) assign this Lease to a corporation, or subsidiary of a
corporation, into which Tenant is merged or
consolidated, or to which all or substantially all of
Tenant's assets (provided this Lease is not the sole or
most substantial asset of Tenant) and business as a
continuing concern are transferred, or to any
corporation which controls or is controlled by Tenant or
is under common control with Tenant provided, this in
any of such events the corporation or its subsidiary
succeeding to Tenant has a net worth computed in
accordance with generally accepted accounting principles
equal to or greater than (1) the net worth of Tenant at
the date immediately prior to such
merger, consolidation or transfer, or (2) the net worth
of Tenant on the date of this Lease whichever is
greater;
provided, however, the Tenant shall at all times be and remain primarily and
jointly liable under this Lease despite any such subletting or assignment,
except that in connection with a permitted assignment under (iii) above, Tenant
shall be released from any an all further obligation of liability hereunder upon
the delivery to Landlord of (a) a duplicate original of the assignment, and (b)
an agreement wherein the assignee assumes and agrees to keep, observe, and
perform the obligations to be kept, performed and observed under this Lease on
the part of Tenant.
ARTICLE 21: ESTOPPEL CERTIFICATES
Landlord and Tenant agree at any time and from time to time, upon not
less than five (5) days prior request by either party to execute, acknowledge
and deliver to each other a statement in writing certifying that this Lease in
unmodified and in full force and effect (or if there have been modifications
that the same is in full force and effect as modified and stating the
modification), and the dates to which the rent and other charges have been paid
in advance, and if there are any defaults or rent abatements or offsets claimed
by either party; it being intended that any such statement delivered pursuant to
this Article may be relied upon by any prospective purchaser or mortgagee or
assignee of any mortgage of the Demised Premises by Landlord and relied upon by
any permitted subtenant, assignee, lender or purchaser of the Tenant. Nothing
herein shall be construed as permitting the Tenant to sell, assign, mortgage or
otherwise encumber its interest in the Demised Premises other than expressly
provided for in the Lease.
Article 22: SUBORDINATION AND NON-DISTURBANCE
22.1 This Lease is and shall be subject and subordinate to the lien of
any fee or Ground Lease mortgage or mortgages on or affecting the Demised
Premises, or any part thereof, at the date hereof, and to any mortgage or
mortgages hereafter made affecting the Demised Premises, and to all renewals,
modifications, consolidation, replacements or extensions thereof, irrespective
of the time of recording such mortgage. The provisions of this subordination
shall be automatic and no further instruments as may be reasonably desired by
the holders of said mortgages. Tenant hereby appoints Landlord the irrevocable
attorney-in-fact of Tenant to execute and deliver any such instruments for
Tenant.
22.2 The foregoing provisions of paragraph 22.1 are expressly
conditioned upon any such mortgagee executing and delivering to Tenant and
agreement, in form for recording pursuant to which such mortgagee shall agree
that the lease-hold estate granted to Tenant hereunder and the rights of Tenant
pursuant to this Lease to quiet and peaceful possession under this Lease will
not be terminated, modified, affected or disturbed by any action which any such
mortgagee may take to foreclose any such
mortgage or to enforce the rights or remedies of the holder thereof, so long as
an event of default shall not have occurred under this Lease and Tenant shall
pay the fixed annual net rent, Impositions and additional rents, within the
applicable grace periods without offsets or defenses thereto, except as
otherwise herewith expressly set forth, and shall fully perform and comply with
all terms, covenants, conditions and provisions of this Lease on the part of the
Tenant hereunder to be performed or complied with and shall attorn to such
mortgagee.
Article 23: NOTICES
All notices, demand and requests which are required or desired to be
given by either party to the other shall be in writing and shall be either hand
delivered or sent by United States registered or certified mail, return receipt
requested, addressed to Landlord at its address set forth above and to Tenant at
the Demised Premises, or at such other place as either part may from time to
time designate in a written notice to the other party. Notices, demands, and
requests which are served upon Landlord or Tenant in the manner aforesaid, shall
be deemed to have been given or served when hand delivered or on the date
indicated on the return receipt as the date of delivery.
Article 24: CAPTIONS AND MARGINAL NOTES
The captions and marginal notes of this lease are for convenience and
reference only, and in now any define, limit or described the scope or intent of
this lease nor in any way affect this lease.
Article 25: ENTIRE AGREEMENT
This instrument constitutes the entire agreement between the parties and
there are no verbal or collateral understanding, agreements representations or
warranties not expressly set for herein.
Article 26: COVENANTS BINDING ON RESPECTIVE PARTIES
Subject to the provisions of Article 20 hereof, the terms and
conditions, covenants shall be binding upon an inure to the benefit of the
parties hereto and their respective successors and assigns.
Article 27: BROKERAGE
The parties hereto each agree and represent to the other that no broker
was in any way instrumental or had any part in bringing about this lease.
Landlord and Tenant agree to indemnify, defend, and hold harmless each other
from and against all loss, liability, cost and expenses (including, without
limitation, reasonable attorney's fees) resulting from any claim made by any
broker, or other person claiming a commission, fee, or other compensation by
reason of this lease, if such claim shall arise by, of this lease, if such
claim shall arise by, through or on account of any act of the indemnifying party
or its representatives.
Article 28: SIGNS
Tenant shall not place any signs on the roof, exterior walls or ground
of the Demised Premises without first obtaining Landlord's written consent
thereto, which consent shall not be unreasonably withheld or delayed. In placing
any signs on or about the Demised Premises, Tenant shall, at its expense, comply
with all applicable laws and regulations of the governmental authorities having
jurisdiction and obtain all required permits and/or licenses.
Article 29: HOLDOVER
If Tenant continues in the occupancy of the Premises after the expiration of the
term or any extended term, such occupancy shall be deemed a tenancy from month
to moth upon the terms, covenants, conditions, and rental rate in effect upon
the expiration of the term, except that the fixed annual net rental shall be at
2-1/2 times such rental as was in effect upon expiration of the term. The
provisions of this Article shall not be construed to relieve Tenant from
liability to Landlord for damages resulting from any such holding over.
Article 30: SHORT FORM LEASE
The parties will at any time at the request of either one execute
duplicate originals of an instrument in recordable form which will constitute a
short form of lease, setting forth a description of the Demised Premises, the
term of the Lease any other portions hereof, except the rent provisions, that
either party may request.
Article 31: SECURITY
Tenant shall deposit an amount equal to two (2) months rent as security
for its faithful performance of the terms of this Lease upon execution,.
Provided Tenant is not in default under the terms of this Lease, said security
deposit shall be returned to Tenant without interest at the end of the Lease
term or any extensions thereof.
Article 32: LIMITATION OF LIABILITY
Landlord shall be under no personal liability with respect to any of the
provisions of the Lease, and if it is in breach or default with respect to its
obligations or otherwise, under this Lease, Tenant shall look solely to the
equity of Landlord in the premises for the satisfaction of Tenant's remedies. It
is expressly understood and agreed that Landlord's liability under the terms,
covenants, warranties and obligations of this Lease shall in no event exceed the
loss of its equity in the Premises.
Article 33: TENANT'S FINANCIAL STATEMENTS
33.1 In addition to Tenant's obligations pursuant to Article 34 of this
Lease, Tenant and any subtenant or assignee shall, upon written request, furnish
to Landlord a copy of its then current financial statement which shall be
employed by Landlord in connection with the financing of the Premises. Any
adverse modification of the financial condition of Tenant or any subtenant or
assignee shall be furnished to Landlord in writing forthwith and without demand
by Landlord for same.
Article 34: GROUND LEASE
34.1 This lease is subject to the terms, covenants and conditions of a
certain ground lease (the "Ground Lease"), a copy of which has been furnished to
Tenant.
Article 35: TAX EXEMPT FINANCING
35.1 As used in this Article 34, the following terms, have the meaning
indicated:
a) "Aggregate Amount"--The aggregate amount of the
Financing and the Capital Expenditures.
b) "Capital Expenditures"--The capital expenditures
referred to in IRC Section 103 (b) (6) (d) (ii) which
under such section are taken into account in determining
the qualification of the Financing under IRC Section 103
(b) (6) (other than capital expenditures financed out of
the proceeds of the Financing).
c) "Expenditure Excess"--The excess of (x) the aggregate
amount offer (y) $10,000.00
d) "Financing"--As defined in Section 35.1
e) "IRC" Internal Revenue Code.
f) "IRS"--Internal Revenue Service
g) "Loss"-- any loss, or other cost (including reasonable
attorneys fees) resulting from a loss of Exemption.
h) "Loss of Exemption"--Loss of tax-exempt status of the
Financing or acceleration of the obligation to repay the
Financing resulting from an alleged loss of the
tax-exempt
status of the Financing .
i) "Loss Month"--The month on which the loss of Exemption
occurs.
j) "NJEDA"- New Jersey Economic Development Authority.
k) "Regs"--Income Tax Regulations
l) "Related Person"--Any person related to the Tenant or a
{partner in the Tenant within the meaning of IRC Section
103 (b) (6) (C) (other than the Landlord).
m) "Tenant Excess"--The excess of (x) the aggregate amount
of Capital Expenditures made or caused to be made by the
Tenant , any related persons and Tenant space users over
(y) $_________.
n) "Tenant Space Principal User"--Any Tenant space user who
is "principal user" within the meaning of IRC Section
103 (b) (6) (E) (ii) with respect to the Land and
Building (and including for this purpose any partnership
that is such a principal user).
o) "Tenant Space user"--Any person using any portion of the
Demised Premises.
35.2 Tenant acknowledges that a material inducement for Landlord, to
enter into this Lease is Landlord's ability to obtain through the auspices of
NJEDA, financing in the amount of $_________ for the construction of the
Building, that interest on which will exempt from federal income tax under IRC
Section 103 (a) (1) by virtue of IRC Section 103 (b) (6) (D) (the "financing").
35.3 Tenant agrees upon reasonable notice to execute all necessary
application forms and to furnish all necessary financial, employment and other
data necessary to support Landlord's application for financing assistance.
35.4 Tenant covenants to keep, perform and observe and to cause all
Tenant Space Users to keep , perform, and observe, all of the terms, covenants
and conditions necessary to maintain NJEDA financing assistance.
35.5 Tenant represents and agrees that (a) neither Tenant , any related
Person or any Tenant Space Principal User has been or will be a "principal;
user" within the meaning of ode Section 103 (b) (6) (E) (ii) , or a partner in a
partnership that is a "principal user" as so defined, with respect to any
facility other than the
Land and Building capital expenditures with respect to which would be taken into
account under IRC Section 103 (b) (6) (D) for purposes of determining
qualification under IRC Section 103 (b) (6) of the Financing; (b) neither
Tenant, any related Person or any Tenant Space User has made or caused to be
made Capital Expenditures which for purposes of IRC Section 103 (b) are treated
as having been made with respect to the land and Building aggregating more than
$__________, and (c) the aggregate face amount of industrial development bonds
(other than the bonds issued under the Financing ) which are or will be
allocated to Tenant and all related persons under code section 103(b) (15) does
not and will not exceed $---------. Tenant further agrees that it will execute
and file with the IRS (a) the supplementary statements required by Regs. Section
1.103-10 (b) (2) (vi) (c) and (b) any other statement schedules, affidavits or
other documents reasonably requested by Landlord for the purpose in insuring
qualification of the Financing under IRC Section 103 (b) (6) and that it will
deliver to Landlord executed copies of any documents so field with the Service.
If there is a Loss of Exemption which results from a breach of the covenants set
forth in this section, Tenant shall indemnify Landlord for the full amount of
the Loss.
35.6 Any breach of covenants set forth
Article by Tenant, its subtenants, or assigns shall be considered a
default of this Lease and shall subject the Tenant to such remedies as are
provided to the Landlord in Article 15 of this Lease and to the payment of such
damages to Landlord as are provided by Law.
Article 36: CONTINGENCIES
In the event all required governmental approvals and as commitment for
the proposed renovations are not obtained within ninety (90) days of the date of
this Lease, Landlord shall have the right, upon written notice to Tenant to
terminate this Lease.
Article 37: ARBITRATION
In the event the Landlord or the Tenant requests arbitration in order to
resolve a dispute where resolution of such dispute by arbitration is
specifically provided in this Lease, same shall be done in accordance with this
Article. The party requesting arbitration shall do so by giving notice to the
effect to the other party, specifying in said notice the nature of the dispute,
and said dispute shall be determined in Newark, New Jersey, by a single
arbitrator, in accordance with the rules then obtaining of the American
Arbitration Association (or any organization which is the successor thereto).
The order in such arbitration may be enforced on the application of either party
by the order or judgement of a court of competent jurisdiction. The fees and
expenses of any arbitration shall be borne by the parties equally, but each
party shall bear the expense of its own attorneys and experts
and the additional expenses of presenting its own proof.
Article 38: EXTENSION OF TERM
38.1 If Tenant shall not then be in default in observing or performing
any of the terms, covenants and conditions of this Lease, Tenant shall have the
option to extend the Term for three (3) additional periods of four (4) years at
a Fixed Rent determined in accordance with Paragraph 38.2 below (instead of the
Fixed Rent herein reserved for the original Term), and otherwise upon the terms,
covenants and conditions of the Lease in effect at the expiration of the
original Term. The first such four (4) year period herein referred to as the
"First Extended Period", the second such period herein referred to as the
"Second Extended Period" the third such period herein referred to as the "Third
Extended Period". Such option to extend may be exercised only by Tenant giving
written notice to Landlord of its election to extend the term at lease on (1)
year before the expiration of the lease period immediately preceding such
Extended Period. Upon Tenant's giving such notice, the Term shall be extended
automatically without the execution of an extension agreement or other
instrument. It is expressly agreed that Tenant shall not have an option to
extend the Term beyond the expiration of the Fourth Extended Period. If Tenant
shall be in default in observing or performing any of the terms, covenants and
conditions of this Lease at the time of the commencement of any Extended Period,
or if this Lease shall be terminated before the commencement of the next
Extended Period, Tenant's option to Extend the Term, or its exercise thereof, or
the Extended Period created by any such exercise, shall be abrogated and
rendered null an void. In default of such notice, Tenant's options to extend
this Lease shall terminate and be deemed waived by Tenant. Tenant may not
exercise its option to extend hereunder independent of an assignment of the
Lease.
38.2 The Fixed Rent during the Extended Periods shall be determined as
provided on the Rent Schedule for the Extended Periods annexed hereto as Exhibit
C.
IN WITNESS WHEREOF, the partied hereby affix their respective signatures
as of the day and year first above written.
Landlord:
SALPAT REALTY, INC. CORP.
A New Jersey Corporation
ATTEST:
/s/ XXXXX D'VIALO BY /s/ XXXXXXXXX X. XXXXXXXX
ATTEST: Tenant:
F&G MECHANICAL CORP.
/s/ XXXXX XXXXXXXX BY /s/ XXXXXXXXX XXXXXXX
EXHIBIT C
RENT SCHEDULE
The Fixed Annual Net Rent shall be computed at the following rates:
WAREHOUSE SPACE --- $ 6.00 PER SQUARE FOOT
OFFICE SPACE --- $13.00 PER SQUARE FOOT
The parties agree that the Warehouse space in the Demised Premises equal
7,311 square feet and the office space equals 7,624 square feet. The net annual
rent shall therefore equals $146,790.00 per year during the five (5) year term.
SCHEDULE C-1
In addition to the base rent provided in this lease, Tenant agrees to
pay as additional rent a cost of living increase as hereinafter computer during
each renewal period.
(a) (1) As promptly as practicable after the end of the initial five year
term of this lease and each renewal period thereafter, the Landlord shall
compute the increase, if any, in the cost of living for the preceding five year
period based upon the "Revised Consumers Price Index - Cities (1957-59-100)"
(hereinafter called the Index), published by the Bureau of Labor Statistics of
the United States Department of Labor.
(2) The Index number indicate on the column for the City of New York,
entitled "all items," for the month of April, 1990 shall be the "base index
number" and the corresponding Index number for the month of April 1994, and each
Fifth anniversary thereafter, shall be the "Current Index number."
(3) The current Index number shall be divided by the base Index
Number, For the quotient thereof, there shall be subtracted the integer 1, and
any resulting positive number shall be deemed to be the percentage of increase
in the cost of living.
(4) The percentage of increase multiplied by the monthly base rent
shall be the increase required to be determined by this paragraph.
(5) The Landlord shall, within a reasonable time after obtaining the
appropriate data necessary for computing such increase, give the Tenant notice
of any increase so determined, and the Landlord's computation thereof shall be
conclusive and binding but shall not preclude any adjustment which may be
required in the event of a published amendment of the index figures upon which
the computation was based unless the Tenant shall, within 60 days after the
giving of such notice, notify the Landlord of any claimed error within.
(b) The fixed monthly rent, as so determined, shall be due and payable
to the Landlord in equal monthly installments commencing with the first month of
the Fifth year of the term of this lease (any retroactive payments then due
being payable within five days after the giving of such notice), and in the
event any subsequent redetermination of such amount the adjustment thus
indicated shall be promptly between the Landlord and the Tenant and on each
Fifth anniversary thereafter.
(c) If publication of the Consumers Price Index shall be discontinued,
the parties hereto shall thereafter accept comparable statistics on the cost of
living for the City of New York, as they shall be computed and published by an
agency of the United State or by a responsible financial periodical of
recognized authority then to be selected by the parties hereto, or, if the
parties cannot agree upon a selection by arbitration. In the event of (1) use of
comparable statistics in place of the Consumers Price Index as above mentioned,
or (2) Publication of the Index figures at other monthly intervals, there shall
be made in the method of computation herein provided for such revisions as the
circumstances may require to carry out the intent of this paragraph, and may
dispute between the partied as to the making of such adjustment shall be
determined by arbitration.
