EXHIBIT 10.4
LEASE MODIFICATION AND SURRENDER AGREEMENT
THIS LEASE MODIFICATION AND SURRENDER AGREEMENT (the "Agreement") is made
as of this 30th day of June, 2003 between T.F. ASSOCIATES a New Jersey General
Partnership having an address of X.X. Xxx 000, Xxx Xxxx, Xxx Xxxxxx 00000
("Landlord") and STORAGE ENGINE, INC., a New Jersey Corporation, formerly known
and operating as E.C.C.S., INC., having an office at Xxx Xxxxxx Xxxxx, Xxxxxx
Xxxxx, Xxx Xxxxxx 00000 ("Tenant").
R E C I T A L S:
A. Landlord and Tenant entered into a lease dated September 20, 1988
regarding space at 0 Xxxxxx Xxxxx and subsequently amended to include 0 Xxxxxx
Xxxxx, Xxxxxx Xxxxx, Xxx Xxxxxx (the "Original Lease"). The Original Lease was
modified and amended on various dates pursuant to the following instruments:
(1) Extension of Lease and Additional Space Amendment dated May 13,
1991;
(2) Modifications of Lease dated June 10, 1992;
(3) Modification of Lease dated February, 1993;
(4) Modification of Lease dated March 1, 1993;
(5) Modification of Lease dated September 1, 1994;
(6) Lease Modification and Surrender Agreement as of January 1, 1995;
(7) Lease Modification and Surrender Agreement (PCE and former FRG)
dated August, 1995, initialed September 12, 1995;
(8) Lease Renewal letter dated March 16, 2000; and
(9) Lease Modification and Surrender Agreement dated April 26, 2001.
The Original Lease and all the foregoing modifications are collectively referred
to herein as the "Lease".
B. Tenant has vacated and desires to surrender certain space leased to it
pursuant to the Lease comprising 6,034 rentable square feet in 0 Xxxxxx Xxxxx,
known as Unit #7, ("Vacated Premises") and Landlord has agreed to allow Tenant
to surrender such space and to reduce the rent and the term of the Lease, on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and intending to be legally bound, Landlord and Tenant agree as follows:
1. Pursuant to the Lease, Tenant currently owes an operating cost
reconciliation for calendar year 2002, as well as for the period of January 1,
2003 through July 31, 2003 being a total of $2,801.33. Tenant shall pay Landlord
such amounts upon execution of this Agreement and as a condition of Landlord's
agreement to allow Tenant to surrender the Vacated Premises as set forth herein.
2. Tenant vacated the Vacated Premises on May 9, 2003, and as of the date
of this Agreement hereby assigns, conveys, transfers, grants and surrenders to
Landlord all of Tenant's right, title and interest in, to and under the Lease
with respect to the Vacated Premises. Landlord accepts such surrender and as of
the date of this Agreement agrees that the Lease shall be terminated and of no
further force and effect with respect to the Vacated Premises, except as
otherwise expressly provided in this Agreement. The Lease shall remain in full
force and effect, except as set forth herein, for the Tenant's remaining
premises as defined in the Lease.
3. Tenant covenants, represents and warrants to Landlord that as of the
date of this Agreement: (i) Tenant is and shall be the present tenant under the
Lease and Tenant has no assigned, conveyed, encumbered, pledged, sublet or
otherwise transferred, in whole or in part, its interest in the Lease; (ii)
there are no persons or entities claiming under Tenant, or who or which may
claim under Tenant, any rights of possession with respect to the premises
demised under the Lease; (iii) Tenant has the right, power and authority to
execute and deliver this Agreement and to perform Tenant's obligations
hereunder; (iv) this Agreement is a valid and binding obligation of Tenant
enforceable against Tenant in accordance with the terms hereof; (v) no rent or
other sums payable under the Lease have been prepaid more than one month in
advance; (vi) there is no existing default by Landlord or Tenant, upon payment
by Tenant of the amounts set forth in this Agreement, under any of the terms and
provisions of the Lease, nor has ay event occurred which, with passage of time
or notice, or both, would constitute a default; and (vii) Tenant has no
defenses, setoffs or counterclaims against Landlord arising out of the Lease or
in any way relating thereto, or arising out of any other transaction between
Landlord and Tenant that might be set off or credited against the accruing
rents. The foregoing covenants, representations and warranties shall survive the
surrender of the Vacated Premises.
4. On or before July 1, 2003, Tenant shall pay Landlord monthly rent,
operating costs and real estate taxes for the remaining 12, 028 square feet, as
well as the Vacated Premises in the amount of $24,732.68 for July 2003 ("July
Payment"). Tenant's obligation to pay such charges survives the surrender of the
Vacated Premises. Other than as set forth herein, Tenant shall not be obligated
to pay rent, operating costs and real estate taxes attributable to the Vacated
Premises for any period after July 31, 2003, provide Tenant make the July
Payment on or before July 1, 2003. If Tenant fails to make the July Payment on
or before July 1, 2003, rent and other charges under the Lease shall continue to
accrue after July 1, 2003 and shall be paid in accordance with the terms of the
lease.
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5. Effective as of the date of this Agreement, Tenant releases Landlord
and its successors and assigns from all claims, obligations and liabilities of
every kind and nature whatsoever, arising out of, or in connection with, the
Vacated Premises.
6. Effective as of the date of this Agreement, subject to payment of
July, 2003 monthly rent and expenses and the operating cost reconciliation as
provided herein, Landlord releases Tenant and its successors and assigns from
all claims, obligations and liabilities of every kind and nature whatsoever
arising out of, or in connection with, the Vacated Premises. Notwithstanding the
foregoing, Tenant shall not be released from any covenant, representation or
warranty contained in this Agreement or the Lease, which by the terms of this
Agreement or the Lease is specifically stated to survive the surrender of the
Vacated Premises or the termination of the Lease.
7. Except as provided herein, all of the terms and conditions of the
Lease remain in full force and effect, have not been modified, amended,
supplemented, or superseded and contain the entire agreement between Landlord
and Tenant.
8. In no event shall Tenant be entitled to receive, or take any credit or
offset, if the rent received or payable when Landlord relets the Vacated
Premises exceeds the rent paid by Tenant under the lease for the Vacated Space.
9. This Agreement shall inure to the benefit of and bind the successors
and assigns of the respective parties.
10. This Agreement shall be governed by and construed in accordance with
the laws of the State of New Jersey.
11. This Agreement shall not be binding upon or enforceable against
Landlord unless and until Landlord shall have executed and delivered to Tenant
an executed counterpart of this Agreement.
12. This Agreement contains the entire understanding and agreement of the
parties with respect to the matters set forth herein, and supersedes any prior
agreements or understandings. This Agreement cannot be modified or amended
except in a written instrument signed by the parties.
13. As of August 1, 2003, Tenant's new monthly rental for the remaining
12,028 square feet will be $11,500.00 per month in addition to operating costs
calculated at $2,706.30 for a total monthly payment of $14,206.30, plus any
operating cost reconciliations or other charges due and owing under the Lease.
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14. As of the date of this Agreement, the term of the Lease shall be
modified to terminate on December 31, 2003 ("Termination Date"). On or before
the Termination Date, Tenant shall surrender and deliver the remaining premises
to Landlord in accordance with the terms of the Lease.
INTENDING TO BE LEGALLY BOUND, the parties to this Agreement have caused
this Agreement to be executed as of the day and year first above written.
WITNESS: LANDLORD:
T.F. ASSOCIATES, a New Jerssey
General Partnership
/s/ Xxxxxx Xxxxxxx By: /s/ Xxxx Xxxxxx, Jr.
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Name: Xxxx Xxxxxx, Jr.
Title: Partner
TENANT:
STORAGE ENGINE, INC., a New Jersey
Corporation
/s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxx
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Nane: Xxxxx Xxxxx
Title: President and CEO
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