EXHIBIT 10.3
OFFICE LEASE
19. Parties. This is a Lease for office space in the building located at 000
Xxxxx 00 Xxxxx, Xxxxxxxxx Xxxxxxx, Xxx Xxxxxx between Xxxxxxx Development
Corporation, a corporation organized under the laws of the State of New
Jersey, as Landlord and, Perma Grass Corporation, a New Jersey
corporation, as Tenant.
20. Definitions. As used in this Lease, the following terms shall have the
indicated meanings:
2.1. "Affiliate of Landlord" shall mean any person, firm or corporation
which controls or is controlled by Landlord.
2.2. "Building" shall mean the office building located at 000 Xxxxx 00
Xxxxx, Xxxxxxxxx Xxxxxxx, Xxx Xxxxxx, commonly known as Airport 17
Office Centre.
2.3. "Bulding Hours" shall mean the time between 8:00 a.m. and 6:00 p.m.,
Mondays through Fridays, and from 8:00 a.m. to 1:00 p.m. on
Saturdays, excluding Holidays.
2.4. "Commencement Date" shall mean the date determined pursuant to
Article 7 as the date on which the Term commences.
2.5. "Common Facilities" shall mean the stairwells, elevators, hallways,
restrooms nad lobbies in the Building and the driveways and parking
lots on the Property.
2.6. "Force Majeure" shall mean fire, catastrophe, casualty,, strikes or
labor trouble, civil commotion, acts of God or the public enemy,
governmental prohibitions or regulations, or inability or difficulty
in obtaining materials, or any other causes beyond the Landlord's
control.
2.7. "Landlord" or "Lessor" shall mean initially Xxxxxxx Development
Corporation, a New Jersey corporation; however, the term "Landlord"
shall only refer to the holder or holders of the fee title to the
Property or the lessee or lessees of the entire interest of such
holder or holders, so that upon any transfer of title to the
Property, the term shall refer only to the party holding title, and
no prior holder of title or lessee of such entire interest shall
have any further liability or obligation with respect to the
performance of any obligation on the part of the Landlord to be
performed under this Lease, except as may be specifically provided
herein. A lease of the entire interest of any Landlord shall be
deemed a transfer of title for
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the purposes of this Lease, and the Lessee under such lease shall be
deemed to hold title to the Property within the meaning of this
Lease.
2.8. "Mortgagee" shall mean the lessor of any present or future ground or
underlying leases affecting all or any part of the Property and the
holder of any mortgage which may now or hereafter be placed on or
affect such leases or all or any part of the Property or any
interest therein, and each of them.
2.9. "Premises" or "Demised Premises" shall mean the rentable square feet
located on the lobby level of the building commonly known as Suite
116 (which is subject to adjustment in the event Tenant leases
additional space in the Building, as hereinafter provided).
2.10. "Property" shall mean the tract of land in Hasbrouck Heights, New
Jersey on which the Building is located, including the Building and
any other improvements thereon.
2.11. "Tenant" or "Lessee" shall mean Perma Grass Corporation.
2.12. "Term" shall mean the Initial Term of this Lease as set forth in
Article 4, as the same may be renewed.
21. Leasing of the Premises. Landlord hereby leases the Premises to Tenant,
and Tenant hereby rents the Premises from Landlord, on the terms and
conditions contained in this Lease.
3.1. Tenant and Tenant's agents, employees, licensees and invitees shall
also have the right, during the Term, to the reasonable use of the
Common Facilities, together with Landlord and other lessees of
portions of the Building, their invitees, licensees, agents and
employees. Landlord reserves the right to grant to the owners and
lesses of office buildings which hereafter may be constructed in the
vicinity of the Building and to their invitees, licensees, agents
and employees the right to use the driveways located on the Property
together with lessees of the Building, and to grant easements and
other rights therein for such purpose, provided that same do not
materially interfere or otherwise materially diminish the use,
occupation and enjoyment of the Premises, Common Facilities and
appurtenances thereto by the Tenant or its employees, invitees and
guests.
22. Initial Term. The Premises are leased to the Tenant for an initial term of
thirty-seven (37) months (the "Initial Term"), commencing on the
Commencement Date, February 1, 1998.
23. Basic Rent.
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5.1. Basic Rent shall be payable in monthly installments, in advance, on
the first day of each calendar month during the term of this Lease,
except that a proportionately lesser sum may be paid for the first
and last months of the ter of this Lease if the Commencement Date is
other than the first day of the month. The annual basic rent payable
by Tenant to Landlord during the term hereof shall be as follows:
(a) The Tenant shall pay to the Landlord during the Initial Term
Basic Rent in the amount of Seventy-Six Thousand Eight Hundred
Dollars ($76,800.00), at an annual rate of Twenty-five
Thousand Six Hundred Dollars ($25,600.00), which shall accrue
at the rate of Two Thousand One Hundred Thirty-three Dollars
and Thirty-three Cents ($2,133.33), per month. (First month's
rent to commence March 1, 1998).
(b) Tenant shall pay basic rent and any additional rent required
to be paid under this Lease in lawful money of the United
States to landlord at Landlord's address set forth in the
section of this Lease captioned "Notices", or at such other
place as Landlord may designate in writing, without demand and
without counterclaim, deduction or setoff, except as otherwise
provided herein.
(c) If Tenant shall fail to pay any basic rent or any
additional rent, within three (3) days of the date when the
same is due and payable, Tenant shall pay upon demand by
Landlord, an additional rent hereunder, interest at the
rate of eighteen (18%) percent per annum, on all such late
payments of rent due hereunder; provided, however, that in
no event shall the interest rate exceed the maximum
permitted by law.
24. Security Deposit. Tenant has deposited with Landlord the sum of Four
Thousand Six Hundred Twenty-six Dollars and Sixty-six Cents ($4,626.66) as
security for the full and faithful performance by the Tenant of all the
terms, covenants and conditions of this Lease upon the Tenant's part to be
performed, which said sum shall be returned to the Tenant without
interest, after the expiration of the Term (including any Renewal Terms),
provided that Tenant has fully and faithfully carried out all of said
terms, covenants and conditions on Tenant's part to be performed. Landlord
shall have the right to apply any part of the security deposit to cure any
default of Tenant, and if Landlord does so, Tenant shall, within ten (10)
days after written demand, deposit with Landlord the amount applied so
that Landlord shall have the full deposit on hand at all times during the
term of this Lease. In the event the annual basic rent is increased
pursuant to Article 24 of this Lease or as otherwise provided herein,
Tenant shall deposit with Landlord on each anniversary date of the
Commencement Date such additional sums required to increase the Security
Deposit then held by Landlord to an amount equal to two (2) months basic
rent. In the event of a sale or lease of the Building, and Tenant electric
subject to this Lease, the Landlord shall thereupon be considered released
by the Tenant from all liability for the return of the security deposit
and the Tenant shall look solely to the new
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Landlord for the return thereof. It is agreed that the foregoing shall
apply to every transfer or assignment made of the security to a new
Landlord. The security deposited under this Lease shall not be mortgaged,
assigned or encumbered by Tenant without the written consent of the
Landlord, and any attempt to do so shall be void. Landlord shall provide
notice to Tenant of all such transfers of the security deposit within
seven (7) days after said transfer. No trust relationship is created
between Landlord and Tenant as said security deposit.
25. Commencement of Term; Estimated Commencement Date.
7.1. The parties intend that the Commencement Date be on or about
February 1, 1998 (the "Estimated Commencement Date"), but the actual
Commencement Date shall be fixed and ascertained as hereinafter set
forth. The actual Commencement Date shall be the date upon which the
Demised Premises shall be "substantially completed". "Substantially
Completed" for the purposes of this Lease, and to fix the Tenants
liability for the payment of the rents payable under this Lease,
shall be the earlier of (a) the date on which the Tenant has
procured, if required by law, a temporary or permanent Certificate
of Occupancy, which ever is first obtained, permitting occupancy of
the Demised Premises by the Tenant, or the date on which Landlord
obtains such Certificate of Occupancy, if Landlord elects to obtain
same, or (b) the date upon which Landlord has substantially
completed the work required to be performed by Landlord pursuant to
the Work Letter and any Extras of Change Orders executed pursuant to
Section 14.1., as determined by landlord in its reasonable judgment.
The work to be done by landlord shall be deemed to be substantially
completed even though minor details of work or adjustments remain to
be done, provided they shall not materially interfere with the
Tenant's use of the Premises.
7.2. After the Commencement Date, Landlord and Tenant, promptly upon the
request of either of them, will execute and deliver to each other a
certificate in recordable form setting forth the Commencement Date.
7.3. If Prior to the Commencement Date, Tenant shall enter the Premises
with Landlord's prior written consent to make any installations of
its equipment, fixtures and furnishings, Landlord shall have no
liability or obligation for the care or preservation of Tenant's
property.
7.4. Landlord agrees to provide access to the Premises to permit Tenant's
installation of telephones provided same shall not in any way
interfere with the work to be performed by Landlord hereunder. The
parties agree, however, that failure to complete the telephone
installation and to provide service on the Commencement Date or
Tenant's failure to timely supply Landlord with the plans and
specifications required under the Landlord's Work Letter (Exhibit
"B") in accordance with Section 11.1, shall not delay or defer the
Commencement Date.
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7.5. Anything contained in this Lease to the contrary notwithstanding, if
for any reason the Premises are not ready for occupancy on the
Estimated Commencement Date, this Lease shall nevertheless continue
in full force and effect; and the Commencement Date shall be
determined as set forth in Section 7.1 above.
7.6. Real Estate Tax Escalation.
(a) For the purpose of this Article:
(i) The term "Taxes" shall mean (a) the real estate taxes,
water and sewer rents and assessments and special
assessments imposed upon the Building and/or the land on
which the building is erected by and governmental bodies
or authorities and (2) any expenses incurred by Landlord
in contesting the same. If at any time during the term
of this Lease the methods of taxation prevailing on the
date hereof shall be altered so that in lieu of, or as
in addition to, or as a substitute for, the whole or any
part of such real estate taxes, water and sewer rents
and assessments and special assessments now imposed on
real estate, there shall be levied, assessed and imposed
(x) a tax, assessment, levy, imposition, license fee or
charge wholly or partially as a capital levy, or
otherwise on the rents received therefrom, or (y) any
other additional or substitute tax, assessment, levy,
imposition, fee or charge, then all such taxes,
assessments, levies, impositions, fees or charges shall
be deemed to be included within the term "Taxes" for the
purposes hereof.
(ii) The term "Base Tax Year" shall mean the Tax Year ending
June 30, 1998.
(iii) The term "Base Tax" shall mean the taxes for the Base
Tax Year.
(iv) The term "Tax Year" shall mean the period of twelve (12)
calendar months beginning January 1st.
(v) The term "Tenant's Share" shall mean one and six-tenths
(1 1/6%) percent.
(b) IF the taxes for any Tax Year during the term of this Lease
commencing after the Base Tax Year shall exceed the Base Tax,
Tenant shall pay, as additional rent, for such Tax year an
amount ("Tax Payment") equal to Tenant's Share of such excess.
If a Tax Year ends after the expiration or Termination of the
term of this Lease, the Tax Payment therefor shall be prorated
to correspond to that portion of such Tax Year occurring
within the term of this Lease. If the real estate fiscal tax
year in the Municipality
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where the Building is located shall be changed during the term
of this Lease, any Taxes for a real estate fiscal tax year, a
part of which is included within a particular Tax year and
part of which is not so included, shall be apportioned on the
basis of the number of days in the real estate fiscal tax year
included in the particular Tax Year for the purpose of making
the computation under this Article.
(c) The Tax Payment shall be payable by Tenant within ten (10)
days after receipt of a demand from Landlord. Notwithstanding
the foregoing, at Landlord's option, to be exercised at any
time during the term of this Lease upon notice to Tenant,
Tenant shall pay on the first day of each month, on account of
the Tax Payment, an amount equal to one-twelfth of the Tax
Payment for the preceding Tax Year. If Landlord shall exercise
such option for the first Tax year following the Base Tax Year
and the Taxes for the first Tax Year have not been
established, then for such first Tax Year said monthly
payments shall be based on the Base Tax of the first Tax Year.
If the aggregate payments on account of the Tax Payment in any
Tax Year shall exceed the Tax Payment of that Tax Year, the
excess shall, at Landlord's option, either be credited against
subsequent payments under this Article or promptly refunded to
Tenant; and if the Tax Payment for any Tax Year shall exceed
the aggregate payments on account of the Tax Payment, the
excess shall be promptly paid by Tenant.
(d) If the Base Tax is reduced as a result of an appropriate
proceeding or otherwise, Landlord shall adjust the amount of
each Tax payment previously made, and Tenant shall pay the
amount of the adjustment on the next rent installment date
immediately following receipt of a demand therefor from
Landlord setting forth the amount of the adjustment.
(e) If Landlord shall receive a refund of the Taxes for any Tax
Year, Landlord shall pay to Tenant, Tenant's Share of the net
refund (after deducting from such total refund the costs and
expenses of obtaining same); provided, however, such payment
to Tenant shall in no event exceed Tenant's Tax Payment
actually paid for such Tax Year.
26. Use and Occupancy. Tenant shall use and occupy the Premises as general
offices and for no other purpose.
27. Repairs and Maintenance.
9.1. Except as otherwise provided in this Lease, Landlord at its cost and
expense, shall keep in good repair the structural parts of the
Building, including the walls, roof, floor, foundation, load bearing
members, trusses and joists, as well as all plumbing, utilities and
facilities located within the walls, ceilings and floors and outside
of the Premises, which serve the Premises, except for repairs or
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maintenance occasioned by the negligence or intentional act of
Tenant or Tenant's agents, employees, licensees or invitees. Any
repairs or maintenance occasioned by the negligence or intentional
act of Tenant's agents, employees, licensees or invitees shall be
repaired at the cost and expense of Tenant.
9.2. Except as otherwise provided in this Lease, the Landlord shall take
good care of and maintain and repair the lawns, shrubbery,
driveways, sidewalks, and entranceways, foyers, curbs and parking
lot on the Property, and the Landlord shall provide for snow removal
and window cleaning.
9.3. Tenant covenants and agrees that it shall not cause or permit any
waste or damage to the Premises or any overloading of the floors of
the Premises. Tenant shall at the expiration of the Term, deliver up
the Premises in good order and condition, ordinary wear and tear and
damage by fire or other casualty excepted.
9.4. Except as specifically provided in Section 13.2 and Article 14 of
this Lease, there shall be no abatement of rent or allowance to
Tenant for any diminution of rental value and no liability on the
part of Landlord by reason of inconvenience, annoyance or injury to
business resulting from Landlord's, Tenant's or other's making or
failing to make any repairs, alterations, additions or improvements
in or to any portion of the Property or the Premises or to the
fixtures, appurtenances or equipment thereof. The provisions of this
Article 9 with respect to the making of repairs shall not apply in
the case of fire or other casualty, which is dealt with in Article
13 hereof.
9.5. Tenant shall throughout the term of this Lease, take good care of
the Premises, the fixtures, glass and equipment therein and the
plumbing, electrical and other utility system on the Premises, and
at Tenant's sole cost and expense, make all repairs thereto as and
when needed to preserve all of the foregoing in good working order
and condition. Tenant shall also repair all damage to the Building
caused by the moving of Tenant's fixtures, furniture and equipment.
In addition, throughout the Term, Tenant shall take good care of any
additions, alterations, improvements and installations made by or at
the request of Tenant in accordance with Article 11 of this Lease,
and at Tenant's sole cost and expense, shall make all repairs
thereto as and when needed to preserve same in good working order
and condition. All repairs required to be made by Tenant shall be of
quality or class equal to the original work or construction. If
Tenant fails after ten (10) days notice to proceed with due
diligence to make repairs required to be made by Tenant, such
repairs may be made by the Landlord at the cost and expense of
Tenant and the cost and expense thereof incurred by Landlord shall
be collectable as additional rent immediately upon demand therefor.
Tenant shall give Landlord prompt notice of any defective condition
in any plumbing, heating system or electrical lines located in,
servicing or passing through the Premises.
28. Window Cleaning. Tenant will not clean nor require or allow any window in
the
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Premises to be cleaned from the outside except by parties authorized by
Landlord.
29. Alterations - As presently constructed and decorated.
11.1. Annexed hereto as Exhibit __ is "Landlord's Building Standard Work
Letter" (the "Work Letter"). Tenant agrees that it shall provide to
Landlord, on or before __________, such plans and specifications as
are required under the Work Letter and such other plans and
specifications as may reasonably be required by Landlord for
Tenant's layout, partitioning, electrical, ceiling and other
installations, subject to the approval and acceptance of Landlord.
Landlord shall furnish and install in accordance with such drawings,
so much of the work required by Tenant as is allowed by Landlord's
Work Letter, at no additional cost to Tenant. To the extent Tenant
requires work, the cost of which is not included in the Work Letter,
the same shall be reduced to an "Extra" or "Change Order" to be
executed by both the Landlord and Tenant, which shall indicate the
work required, the cost thereof to Tenant, and the additional time
required, if any, for completion. Any such Extra or Change Order
shall be paid by Tenant in advance of Landlord performing such work.
Tenant shall be responsible for any delays in completing the
Premises by reason of its failure to furnish Landlord with the
requisite plans and specifications by the date set forth in this
Section 11.1.
11.2. Tenant shall make no alterations, permanent decorations,
installations, substitutions, or improvements in or to the Premises,
including but not limited to the removal or installation of any
partitions, doors, electrical installations, plumbing installations,
water coolers, air-conditioning or cooling systems, or any
apparatus, whether structural or nonstructural (hereinafter the
"Tenant Changes") without Landlord's prior written consent in each
instance, and only upon complying with all of the provisions of this
Section 11.2.
11.2.1. Prior to commencing any Tenant Changes, Tenant, at its sole
cost and expense shall obtain and deliver to Landlord, for
Landlord's prior written consent, all of the following:
11.2.1.1. Detailed architect's plans and specifications,
showing the proposed Tenant Changes;
11.2.1.2. A certificate evidencing that Tenant or Tenant's
contractors have procured and paid for worker's
compensation insurance covering all persons
employed in connection with the Tenant Changes or
who might asset claims for death or bodily injury
against Landlord, Tenant, or the Property;
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11.2.1.3. A certificate evidencing such additional personal
injury and property damage insurance (over and
above the insurance required to be carried by
Tenant pursuant to the provisions of Article 31
hereof) as Landlord may reasonably require in
connection with the Tenant Changes;
11.2.1.4. Copies of all contracts and subcontracts for the
completion of the Tenant Changes together with
Tenant's written certification as to the estimated
total cost of the Tenant Changes;
11.2.1.5. If Landlord's estimate of the total cost of the
Tenant Changes is in excess of $10,000.00, then at
Landlord's option, Tenant shall furnish Landlord
with a surety company performance bond in form and
substance satisfactory to Landlord, procured at
Tenant's cost and expense, and issued by a surety
company acceptable to Landlord, in an amount equal
to at least 120% of the estimated total cost of
the Tenant Changes, guaranteeing to Landlord and
Mortgagee the completion thereof and payment
therefor within a reasonable time, free and clear
of all liens, encumbrances, security interests,
and other charges, and in accordance with the
plans and specifications and any modifications and
amendments thereto approved by Landlord.
11.2.1.6. Such permits, authorizations or consents as may be
required by any applicable law, rule, order or
requirement of any governmental authority having
jurisdiction thereof, provided, however, that no
plans, specifications or applications (or any
modifications or amendments thereto) shall be
filed by Tenant with any governmental authority
without first obtaining Landlord's prior written
consent in each instance.
11.3. If Landlord determines that the prior written consent of the
Mortgagee is required, Tenant shall obtain and deliver such consent
to Landlord, at Tenant's sole cost and expense, prior to the
commencement of the Tenant Changes, and Tenant shall comply fully
with the requirements of the Mortgagee, also at Tenant's sole cost
and expense.
11.4. In no event shall any material or equipment be incorporated in or to
the Premises in connection with any Tenant Changes which is subject
to any lien, encumbrance, security interest or charge of any kind
whatsoever, or subject to any title retention agreement. Any
mechanic's or materialman's lien filed against all
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or any part of the Premises or the Property or Landlord's interest
therein, for work claimed to have been done for Tenant, or materials
claimed to have been furnished to Tenant, shall be discharged by
Tenant within ten (10) days thereafter, at Tenant's cost and
expense, by filing any bond required by law or otherwise. Tenant
shall defend, indemnify and save Landlord harmless from and against
any such liens and all costs and expenses (including reasonable
attorney's fees) incurred by Landlord in connection therewith.
11.5. Tenant shall cause all Tenant Changes to be performed promptly at
its sole cost and expense;
11.5.1. Only pursuant to written contracts with contractors and
mechanics that have been approved in advance by Landlord
in writing;
11.5.2. In a good and workmanlike manner, using prime quality
new materials and equipment, at least equal in quality
and class to the original Building installations;
11.5.3. in compliance with all applicable laws, and government
rules, permits, authorizations, licenses, regulations
and orders;
11.5.4. In compliance with all insurance policies affecting the
Premises and the Building;
11.5.5. So as not to disturb or interfere with or delay Landlord
in the operation of the Building or the provision of
services thereto or to any other lessees of the Building
or any of their employees, agents, licensees or
invitees;
11.5.6. So as not to obstruct or cause to obstruct any of the
Common Facilities;
11.5.7. So as not to cause any damage or injury to the Building
or to the Property of Landlord or any other lessee of
the Building, or any of their employees, agents,
licensees or invitees;
11.5.8. So as not to result in any cost or expense to
Landlord whatsoever.
11.6. Tenant shall not exercise any of its rights pursuant to the
provisions of this Article 11 in a manner which would create any
work stoppage, picketing, labor disruption or dispute, violate
Landlord's union contracts affecting the Property, or interfere with
the business of Landlord or any other lessee or occupant of the
Building.
11.7. When furnished by or at the expense of Tenant (except when same is a
replacement of an item theretofore furnished and paid for by the
Landlord or
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against which Tenant has received a credit), all movable property,
furniture, furnishings and trade fixtures, other than those affixed
so that they cannot be removed without damage to the Building or the
Property ("Tenant's Property") shall remain the property of Tenant,
and may be removed by Tenant prior to the expiration of the Term. In
case Tenant shall decide not to remove any or all of Tenant's
Property, Tenant shall notify Landlord in writing, not less than
sixty (60) days prior to the expiration of the Term, specifying the
items of property which Tenant has decided not to remove. If, within
thirty (30) days after receipt of such notice, Landlord shall
request Tenant to remove any or all of such property, Tenant shall
remove such property, at Tenant's cost and expense, at or prior to
the expiration of the Term. At the expiration of other termination
of this Lease, Tenant shall restore the Premises and the Property to
the same good order and condition as they were in on the
Commencement Date hereof, normal wear and tear excepted, and tenant
shall repair any damage caused in connection with the removal of any
of Tenant's Property therefrom. If Tenant shall fail to remove any
or all of Tenant's property, Landlord may remove any or all of such
property, and dispose of it or place it in storage, and restore the
Premises to good order and condition as herein provided, and Tenant
shall reimburse Landlord for all of Landlord's costs and expenses in
connection therewith as additional rent, within ten (10) days after
Landlord gives Tenant written notice as to the amount hereof. Any of
Tenant's Property not removed by Tenant, at the election of
Landlord, shall be deemed to be abandoned by Tenant, and Landlord
may retain or dispose of such property as Landlord shall elect,
without accountability to Tenant but at Tenant's cost and expense.
The provisions of this Section 11.7 shall survive termination of
this Lease.
11.8. Unless Landlord elects otherwise (which election shall be made by
written notice not less than thirty (30) days prior to the
expiration or other termination of this Lease) all alterations,
decorations, partitions, installations, additions or improvements
upon or to the Property or in the Premises, made by either party
subsequent to the Commencement Date and not easily removable by the
Tenant without material damage, including, but not limited to, all
wall-to-wall carpeting, paneling, railings and the like, affixed to
the Property, or for which Tenant has received a credit, shall
become the property of the Landlord and shall remain upon and be
surrendered with the Premises at the end of the Term. In the event
the Landlord shall exercise such election, then such alterations,
decorations, installations, additions, or improvements made by
Tenant upon the Property or in the Premises as Landlord shall
designate in such notice shall be removed by Tenant and Tenant shall
restore the Property and the Premises to its condition on the
Commencement Date, reasonable wear and tear excepted, at Tenant's
cost and expense, at or prior to the expiration or other termination
of the Term. If Tenant fails to remove any fixture, equipment,
improvement installation or appurtenances which, as herein provided,
are required to be removed by Tenant, within the time above
specified therefor, then Landlord (in addition to all rights and
remedies to which Landlord may be entitled at any time) may, at its
election, deem that the
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same has been abandoned by Tenant and Landlord may retain or dispose
of such property and restore the Property to its condition on the
Commencement Date without accountability to Tenant and at Tenant's
cost and expense. Tenant shall reimburse Landlord for such costs and
expenses, as additional rent, within ten (10) days after written
notice to Tenant of the amount thereof.
11.9. Notwithstanding the right of Landlord to approve any matter
described in the Article, Landlord shall have no responsibility or
liability for the performance or quality of work or materials
furnished by any contractor, subcontractor, agent or consultant of
Tenant. The approval by Landlord, whether expressed or implied, of
any Tenant Changes shall in no way affect Landlord's rights or
Tenant's obligations relating to the restoration of the Property and
Premises at the expiration or other termination of the Term.
30. Compliance with Rules and Regulations; Compliance with Law.
12.1. Tenant shall observe and comply with the rules and regulations
hereinafter set forth in Exhibit "A" attached hereto and with such
further reasonable rules and regulations as Landlord may prescribe,
on written notice to the Tenant, for the safety, care and
cleanliness of the Property or for the comfort, quiet and
convenience of the other occupants of the Building.
12.2. Tenant shall not place a load upon any floor of the Premises
exceeding the floor load per square foot area which it was designed
to carry and which is allowed by law. Landlord reserves the right to
prescribe the weight and position of all safes, business machines
and mechanical equipment. Such installations shall be placed and
maintained by Tenant, at Tenant's expense, in settings sufficient,
in Landlord's judgment, to absorb and prevent vibration, noise and
annoyance.
12.3. Lessee shall, at its expense, comply promptly with all applicable
statues, ordinances, rules, regulations, orders, restrictions of
record, and requirements in effect during the Term or any part of
the Term hereof regulating or relating to the use by Lessee of the
Premises. Lessee shall neither use nor permit the use of the
Premises in any manner that will tend to create waste, nuisance, or
damage to the Building.
12.4. Lessee hereby accepts the Demised Premises subject to all applicable
zoning, municipal, county and state laws, ordinances, covenants of
record, and regulations governing and regulating the use of the
Premises, and accepts this Lease subject thereto and to all matters
disclosed thereby and by any exhibits attached hereto. Landlord
makes no representations as to any permissive use of zoning
ordinance interpretation. Tenant, or Landlord at its sole option,
shall be responsible for obtaining, at Tenant's cost and expense, a
temporary and/or permanent Certificate of Occupancy for the Premises
from the Borough of Xxxxxxxxx Heights
37
permitting Tenant's use of the Property as provided herein, if
required by applicable law. Provide however, the Commencement Date
set forth in Paragraph 7.1 shall not be delayed or otherwise
extended by reason of Tenant's failure to obtain a Certificate of
Occupancy on or before the Commencement Date, except if such failure
results from Landlord's failure to complete any work required to be
performed by Landlord hereunder.
12.5. Lessee represents and warrants that it has reviewed the Standard
Industrial Classification Manual prepared by the Office of
Management and Budget of the U.S. and that the S.I.C. number for the
operations to be conducted by Tenant at the Premises is _________.
Lessee shall advise Lessor immediately in the event its S.I.C.
number should change.
Lessee represents and warrants that the business operations which it
shall conduct at the Premises do not constitute the operation of an
industrial establishment as defined in the Environmental Cleanup and
Responsibility Act (hereinafter "ECRA"), or, on the other hand, if
it is or at any time shall become such an industrial establishment,
Tenant will comply with all ECRA requirements during operations and
at the time of closing, terminating or transferring the operations.
Lessee represents and warrants that no use to be undertaken shall,
in addition to the additional warranties and restrictions contained
herein, violate any rules, regulations or statute of the
Occupational Safety and Health Administration or any other similar
enactment.
If at any time during the original term or any renewal or extension
of this Lease, Lessor shall reasonably believe that Lessee's
operation violates ECRA or ay other environmental law or regulation,
or for other good cause, including the planned closing, termination
or transferring of the operation at, or ownership of, the Premises
or the Property, upon sixty (60) days written notice Lessee shall
submit to Lessor at Lessee's sole cost and expense, either (1) a
letter of non-applicability or a Negative Declaration approved by
the New Jersey Department of Environmental Protection, or (2) a
Cleanup Plan and a surety bond or other financial security
guaranteeing performance of the Cleanup Plan, meeting the
requirements of the New Jersey Department of Environmental
Protection.
31. Damages to Building; Waiver of Subrogation.
13.1. If the Building is damaged by fire or any other cause to such extent
that the cost of restoration, as reasonably estimated by Landlord,
will equal or exceed twenty-five (25%) percent of the replacement
value of the Building (exclusive of foundations) just prior to the
occurrence of the damage then Landlord may, no later than the
sixtieth (60th) day following the damage, given Tenant notice of
election to terminate this Lease, or, if the cost of restoration
will exceed fifty (50%) percent of such replacement value and if the
substantial portion of the
38
Premises are damaged therefrom rendering the Premises wholly
untenantable or unfit for occupancy, then Tenant may, no later than
the sixtieth (60th) day following the casualty or loss, give the
Landlord notice of election to terminate this Lease; provided that
Tenant shall not have the right to terminate this Lease in any such
event if the damage is caused by Tenant or Tenant's employees,
agents, licensees or invitees. If such election is exercised, this
Lease shall be deemed to terminate on the fifteenth (15th) day after
the giving of such notice. The basic rent, and any additional rent,
shall be apportioned as of the date of such termination. If the cost
of restoration as estimated by Landlord shall amount to less than
twenty-five (25%) percent of the replacement value of the Building,
or if, despite the cost, Landlord or Tenant does not elect to
terminate this Lease as provided above, Landlord shall restore the
Building and the Premises with reasonable promptness, subject to
Force Majeure, and the partes shall have waived their right to
terminate this Lease. Landlord shall have no duty or obligation to
restore Tenant's Property, equipment, fixtures or Tenant Changes.
The words "restoration" and "restore" are used in this Article 13
shall include repairs.
13.2 In any case in which Tenant's use of the Premises is materially and
adversely affected by any damage to the Building or appurtenances
thereto, the rent accrued and accruing shall not cease but there
shall be either an abatement of an equitable reduction in basic rent
and additional rent depending on the period for which and the extend
to which the Premiss are not reasonably usable for the purposes for
which they are leased hereunder. IF the damage results from the
fault of the Tenant, or Tenant's agents, employees or invitees,
Tenant shall not be entitled to any abatement or reduction in basic
rent or additional rent.
13.3 Notwithstanding the provisions of this Article 13 of this Lease, in
any event of loss or damage to the Property, the Building, the
Premises and/or any contents, each party shall look first to any
insurance in its favor before making any claim against the other
party, and, to the extent possible without additional cost, each
party shall obtain, for each policy of insurance, provisions
permitting waiver of any claim against the other party for loss or
damage within the scope of such insurance, and each party, to such
extent permitted, for itself and its insurers hereby waives all such
claims against the other party.
32. Eminent Domain. If Tenant's use of the Premises is materially and
adversely affected due to the taking by eminent domain of part or all of
the Premises or any other part of the Building or appurtenances thereto
including the parking lot, this Lease shall terminate on the date when
title vests pursuant to such taking. The basic rent, and any additional
rent, shall be apportioned as of the termination date and any basic and
additional rent paid for any period beyond the termination date shall be
repaid to Tenant. Tenant shall not be entitled to any part of the award
for such taking or any payment in lieu thereof, but Tenant may file a
separate claim for any taking of fixtures and improvements owned by Tenant
which have not become the Landlord's property, and for moving expenses,
39
provided the same shall in no way affect or diminish Landlord's award. In
the event of a partial taking which does not affect a termination of this
Lease but does deprive Tenant of the use of a portion of the Premises,
there shall be an equitable reduction of the basic rent and additional
rent, depending on the period for which and the extent to which the
Premises are not reasonably usable for the purpose for which they are
leased hereunder.
33. Assignment, Subletting.
15.1. If the Tenant shall desire to sublet all or any portion of the
Premises, it shall first submit in writing to the Landlord;
15.1.1. The name and address of the proposed subtenant;
15.1.2. The terms and conditions of the proposed subletting;
15.1.3. The nature and character of the business of the proposed
subtenant;
15.1.4. Banking, financial and other credit information relating
to the proposed subtenant reasonably sufficient to
enable Landlord to determine the proposed subtenant's
financial responsibility; and
15.1.5. Plans and specifications for the layout, partitioning,
HVAC and electrical installations, if any, required for
the Premises to be sublet.
15.2. If the nature and character of the business of the proposed
subtenant, and the proposed use and occupancy of the Premises by the
proposed subtenant, is in keeping and compatible with the dignity
and character of the Building, then Landlord agrees not to
unreasonably withhold or delay its consent to any such proposed
subletting, providing that Tenant shall, by notice in writing as
described in Article 15.1 above, advise Landlord of its intention to
sublease all or any part of the Premises, on and after a stated date
(which shall not be less than sixty (60) days after the date on
which Tenant's notice is given). Landlord shall thereupon have the
right, to be exercised by giving written notice to Tenant within
thirty (30) days after Landlord's receipt of Tenant's notice, to
recapture the Premises. Such recapture notice shall, if given,
cancel and terminate this Lease with respect to the space therein
described as of the date thirty (30) days following the date set
forth in Tenant's notice, or thirty (30) days after Tenant shall
have surrendered possession of the Premises, whichever is later,
with no further obligation due by Tenant with respect to such space.
In the event less than all of the Premises are sublet or recapture,
Tenant or any permitted sublessee shall be obligated to construct
and erect such partitioning and means of ingress and egress as may
be required to sever the space retained by tenant from the space
recaptured or sublet, all in accordance with requirements of Article
11 hereof.
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15.3. If this Lease should be cancelled pursuant to the foregoing with
respect to less than the entire Premises, the basic rent and
additional rent shall be proportionately adjusted, and this Lease,
as so amended, shall continue thereafter in full force and effect.
15.4. In addition to the foregoing requirements, no sublease shall be
made if:
15.4.1 Such sublease shall result in occupancy of the Premises
by more than two (2) tenants, including the Tenant
hereunder, or
15.4.2 The sublease shall be for a term of less than two (2)
years, unless the unexpired term of this Lease shall be
less than (2) years, or
15.4.3. The proposed subtenant shall be an existing tenant of
the Building, or any other building owned by Landlord or
any Affiliate of Landlord, or
15.4.4. Tenant shall be in default under any of the terms or
conditions of this Lease at the time of any notice or
request for consent under the terms of this Article or
at the effective date of such subletting.
15.5. Any subletting which is not recaptured by Landlord shall not in any
event release or discharge Tenant of or from any liability, whether
past, present or future, under this Lease, and Tenant shall remain
liable hereunder with respect to the entire Premises, except as
otherwise provided herein or by law. The subtenant shall also agree
in writing, to assume, comply with, and bound by all of the terms,
covenants, conditions, provisions and agreements of this Lease to
the extent of the space sublet; and Tenant shall deliver to Landlord
promptly after execution, an executed duplicate original copy of
such sublease and an agreement of assumption by the subtenant.
15.6. The sublease must provide that it is subject to all of the terms and
conditions of this Lease and the sublease must provide that in the
event of the expiration or other termination of this Lease for any
reason whatsoever whether voluntary, involuntary or by operation of
law, prior to the expiration date of such sublease, the proposed
subtenant agrees, but only if requested by and at the option of
Landlord, to make full and complete attornment to Landlord for the
balance of the term of the sublease. Such attornment shall be
evidenced by an agreement in form and substance satisfactory to
Landlord, which the proposed subtenant agrees to execute and deliver
at any time within five (5) days after requested of Landlord, it
successors and assigns, and the proposed subtenant waives the
provisions of any law now or hereafter in effect which may give the
proposed subtenant any right of election to terminate the sublease
or to surrender possession
41
of the premises in the event any proceeding is brought by Landlord
under this Lease to terminate this Lease.
15.7. Tenant shall be responsible for obtaining all permits and approvals
required by any governmental or quasigovernmental agency for any
work, or as otherwise required in connection with the proposed
sublease of the Premises. Tenant shall also be responsible for and
is required to reimburse Landlord for all costs which Landlord
incurs in reviewing the proposed sublease, including a charge
payable to Landlord in the sum of Five Hundred Dollars ($500.00),
and for the cost of any permits, approvals and applications for the
construction or alteration of the subleased premises.
15.8. The Tenant shall not assign this Lease.
34. Activities Increasing Fire Insurance Rates. Tenant shall not do or suffer
anything to be done in the Premises which will increase the rate of fire
insurance on the Building.
35. Right to Inspect and Repair. Landlord may enter the Premises, but shall
not be obligated to do so (except as required by an specific provision of
this Lease); at any reasonable time on reasonable notice to Tenant (except
that no notice need be given in case of emergency) for the purpose of
inspection or the making of such repairs, replacements of additions, in,
to, and about the Premises or the Property, as Landlord deems necessary or
desirable, provided Landlord shall not unreasonably interfere with
Tenant's business operations at the Property. Landlord shall restore the
Premises to their pre-existing condition if any damage results in
connection with such repairs, replacements or additions by Landlord and
Landlord shall repair any other property damaged in the course of making
such repairs, replacements or additions, the cost f such restoration and
repair to be at landlord's expense. In no event shall Tenant have any
claims against Landlord for necessary and reasonable interruptions of
Tenant's business, or for any other consequential damages sustained by
Tenant in the course of such repairs, replacements or restoration, however
occurring, including those resulting from the negligence of Landlord, its
agents or employees.
36. No Liability of Landlord.
18.1. Landlord and its agents, and employees, shall not be liable for any
loss of or damage to any of Tenant's Property or Tenant's Changes or
to property of others any of which is entrusted to any employee of
the Building, nor shall Landlord, its agents or employees be liable
for any injury or damage to persons or property resulting from fire,
explosion, falling plaster, steam, gas, electricity, water, rain or
snow or leaks from any part of the Building or from the pipes,
appliances or plumbing works or from the roof, street or sub-surface
or from any other place or by dampness or by any other cause of
whatsoever nature, unless caused by and due to the negligence or
wilful misconduct of Landlord, its agents or employees.
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Nothing in this section 18.1 contained shall be deemed to impose on
the Tenant liability for any of the foregoing unless caused by
Tenant.
18.2. Tenant agrees if Tenant, its contractors, agents or employees shall
be negligent, to indemnify, defend and save harmless, Landlord and
its partners, officers, directors, contractors, agents and employees
from and against any property damage and bodily injury liability
(statutory or otherwise), claims, suits, demands, damages,
judgments, costs, fines, penalties, interest and expenses
(including, but not limited to, reasonable attorney's fees) to which
landlord or any such partner, officer, director, contractor, agent
or employee may be subject or suffer by any liability or claim for
any injury to, or death of, any person, for persons or damage to
property (including any loss of use thereof) or otherwise arising
from or in connection with the negligent use and occupancy of the
Premises or the Property, or from, any work; installation or thing
whatsoever done or omitted (other than by Landlord or its
contractors or the agents or employees of either) in the Premises or
on the Property during the Term and during the period of time, if
any, prior to the Commencement Date that Tenant may have been given
access to the Premises, or arising from any default by Tenant in the
performance of Tenant's obligations under this Lease or from any
negligent act or omission of Tenant or any of Tenant's agents,
contractors, employees, subtenants, licensees, or invitees.
18.3. Tenant shall reimburse and compensate Landlord as additional rent
within five (5) days after rendition of a statement for all
expenditures made by or losses, damages or fines sustained or
incurred by Landlord (including, but not limited to, reasonable
attorney's fees) due to the operation of this Article 18 or
non-performance or non-compliance with or breach or failure by
Tenant to observe any term, covenant or condition of this Lease.
37. Services to be Provided by Landlord; Landlord's Exculpation. While Tenant
is not in default under any of the provisions of this Lease, Landlord
agrees to furnish during Building Hours, except on Holidays, the cleaning
services set forth on Exhibit "C" attached hereto, subject to the
conditions therein stated; heating, ventilating and ordinary
air-conditioning ("HVAC"), as appropriate for the season; and Common
Facilities cleaning, maintenance and lighting.
19.1 Notwithstanding the requirements of any provision of this Lease,
Lessor shall not be liable for failure to furnish any of the
aforesaid services when such failure is due to Force Majeure.
Landlord shall not be liable, under any circumstances, including
negligence of Landlord, its agents and employees, for loss of, or
injury to, Tenant or Tenant's business or property however
occurring, through or in connection with or incidental to the
furnishing of, or failure to furnish, any of the aforesaid services.
19.2. Lessee's use of HVAC in excess of Building Hours shall result in a
direct charge to Tenant to reflect such additional consumption, as
determined by Landlord's
43
independent electrical consultant, which charge shall be payable by
Tenant to Landlord within ten (10) days after demand by Landlord.
19.3. This Lease and obligations of Tenant to pay rent hereunder and to
perform all of the other covenant and agreements hereunder on the
part of Tenant to be performed shall in no way be affected, impaired
or excused if Landlord is unable to supply or is delayed in
supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making repairs, additions,
alterations or decorations or is unable to supply or is delayed in
supplying any equipment or fixtures.
19.4. Landlord reserves the right, without being liable to Tenant and
without abatement or diminution in rent, to suspend, delay or stop
any of Building services to be furnished and provided by Landlord
under this Lease whenever necessary by reason of Force majeure, or
for emergency, or for inspection, cleaning, repairs, replacements,
alterations, improvements or renewals which, in Landlord's
reasonable judgment, are desirable or necessary to be made. Landlord
agrees, however, to use its best efforts and to act with all due
diligence to restore or have restored any services which may be
suspended, delayed or stopped.
38. Electricity. The cost of electrical current which shall be supplied by
Landlord for use by Tenant in the Demised Premises, other than for heating
or air-conditioning purposes, shall be reimbursed to Landlord by Tenant at
terms, classifications and rates normally charged by the public utilities
corporation serving that part of the municipality where the Property is
located. In the event Landlord does not install a separate electric meter
or meters for the Demised Premises or any other part of the Property used
exclusively by Tenant, the provisions of Section 20.1 shall be applicable.
20.1. Tenant agrees that Landlord's independent electrical engineering
consultant shall make a survey of the electrical power demand of the
electric lighting fixtures and the electric equipment used by Tenant
at the Property to determine the average monthly electric
consumption thereof. The findings of said consultant as to the
average monthly electric consumption of Tenant shall, unless
objected to by Tenant within thirty (30) days after notice to Tenant
of said findings, be conclusive and binding on Landlord and Tenant.
After Landlord's consultant has submitted its report to Landlord,
Tenant shall pay to Landlord as additional monthly rent of One
Hundred Eighty Dollars ($180.00) which is a fixed additional rate
that shall not be diminished, reduced or mitigated as a result of
Tenant's failure to use electricity in subject premises, Tenant's
abandonment of subject premises or Tenant's vacator of subject
premises, within ten (10) days after demand therefore by Landlord,
the amount (based on the monthly consumption found by such
consultant and the applicable utility rates) determined by said
consultant as owing from the Commencement Date, through the then
expired months of the Term, to include the then current month.
Thereafter, on the first day of every month, in advance, Tenant
shall pay the amount set forth as the
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monthly consumption in said report, as additional rent.
Proportionate sums shall be payable for periods of less than a full
month if the Term commences on any day other than the first day of
the month. If Tenant objects to said findings, Tenant shall
nevertheless pay and continue to pay the amount determined by
Landlord's consultant. Upon objection by Tenant, Tenant shall retain
a qualified consultant and if landlord's and Tenant's consultants
cannot agree as to Tenant's consumption within ten (10) days of
Tenant's consultant's findings, either Landlord or Tenant may
request the American Arbitration Association to appoint a qualified
electrical engineering consultant whose decision shall be final and
binding on Landlord and Tenant, and whose costs shall be shared
equally. Upon the issue being finally resolved and any overpayment
made by Tenant shall be refunded by Landlord, and any underpayment
shall be paid by Tenant as additional rent.
20.2. In the event that there shall be an increase or decrease in the rate
schedule (including surcharge or demand adjustments), of the public
utility service to the Building, or the imposition of any tax with
respect to such service or increase in any such tax following the
Lease Term's commencement, the additional rent payable under this
Article 20 shall be adjusted equitably to reflect the increase or
decrease in rate or imposition or increase in the aforesaid tax. All
computation shall be made on the basis of Tenant's surveyed usage as
if a meter measuring such usage to the Premises exclusively was in
place.
20.3. Tenant covenants that it shall not introduce any equipment or
lighting material different from that on the Property as of
Landlord's electrical survey or in addition to the aforesaid
equipment or lighting on the Property as of said survey without
Landlord's prior written consent. In no event shall Tenant's use of
electricity in the Premises at any time exceed the capacity of any
electrical conductors and equipment in or otherwise serving the
Premises. The introduction of any new or different equipment or
lighting approved by Landlord shall be cause for a resurveying of
the Premises at Tenant's expense by Landlord's electrical
consultant, subject to Tenant's rights and obligations as contained
in Section 20.1. above. Landlord reserves the right to inspect the
Premises to insure compliance with this provision.
20.4. Landlord shall not be liable in any way to Tenant, for any loss,
damage or expense which Tenant may sustain or incur as a result of
any failure, defect or change in the quantity or character of
electrical energy available for redistribution to the Premises nor
for any interruption in the supply of electricity and Tenant agrees
that such supply may be interrupted for inspection, repairs,
replacement and in emergencies. In no event shall Landlord be liable
for any business interruption suffered by Tenant.
46
20.5. Tenant shall furnish and install all replacement lighting tubes,
lamps, ballasts and bulbs required in the premises, at Tenant's
expense, and at Landlord's option, shall purchase same from
Landlord.
20.6. Lessee's use of electrical service as contemplated herein shall be
during Building Hours, and any use in excess of said Building Hours
shall result in an adjustment computed as set forth in Section 20.1
above to reflect such additional consumption.
39. Bankruptcy of Tenant.
21.1. Upon the filing of a petition by or against Tenant under the U.S.
Bankruptcy Act of 1978, as amended or under any other law relating
to bankruptcy, Tenant, as debtor or as debtor in possession, and any
trustee who may be appointed, agree to perform each and every
obligation of Tenant under this Lease until such time as this Lease
is either rejected or assumed by order of the Court having
jurisdiction thereof; to pay monthly in advance on the first day of
each month as reasonable compensation for use and occupancy of the
Demised Premises an amount equal to all rent and other charges
otherwise due pursuant to this Lease; to reject or assume this Lease
within sixty (60) days of the filing of such petition under Chapter
7 of the Bankruptcy Act or within one hundred twenty (120) days (or
such shorter term as Landlord in its sole discretion, may deem
reasonable so long as notice of such period is given) of the filing
of a petition under any other Chapter; to give Landlord at least
forty-five (45) days prior written notice of any proceeding relating
to any assumption of this Lease; to give at least thirty (30) days
prior written notice of any abandonment of the Premises, any such
abandonment to be deemed a rejection of this Lease; to do all other
things of benefit to Landlord otherwise required under the
Bankruptcy Act; to be deemed to have rejected this Lease in the
event of the failure to comply with any of the above; and to have
consented to the entry of an order by an appropriate United States
Bankruptcy Court providing all of the above, waiving notice and
hearing of the entry of same.
21.2. No default under this Lease by Tenant, either prior to or subsequent
to the filing of such a petition, shall be deemed to have been
waived unless expressly done so in writing by Landlord.
40. Defaults.
22.1 In the event that:
22.1.1. Tenant defaults in the payment of any basic rent or any
additional rent and such default continues for three (3)
days after the same has become due;
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22.1.2. Tenant defaults in fulfilling any of the covenant or
agreements of this Lease on its part to be kept or
performed and such default is not cured within fifteen
(15) days after written notice from Landlord or its
agent or if such default is of such nature that it
cannot be completed cured within such period, Tenant
does not commence such curing within fifteen (15) days
and thereafter fails to proceed with due diligence and
in good faith to cure such default; or
22.1.3. This Lease is transferred to or dissolves by merger,
consolidation or operation of law upon person, firm or
corporation other than Tenant, except as may be
specifically permitted by this Lease;
22.1.4. A receiver is appointed to take possession of all or
substantially all of the Tenant's assets or Tenant makes
a general assignment for the benefit of creditors or
Tenant takes any action or suffers to be taken any
action under any insolvency or bankruptcy act; or
22.1.5. Tenant abandons the Premises or Tenant fails to take
possession of the Premises within ten (10) days after
the Commencement Date; then and in any of such events,
Landlord or its agent, may give Tenant written notice
specifying a day not less than five (5) days thereafter
whereupon if the default is not cured the Term shall
end, and on the day specified the Term shall expire as
if that day were the day herein fixed for the expiration
of the Term, and Tenant shall then quit and surrender
the Premises to Landlord and Tenant shall remain liable
as herein provided.
22.2 Upon the occurrence of any of the events specified in Section 22.1,
and after the expiration of any applicable grace period, Landlord
may re-enter the Premises and remove Tenant by summary proceedings
or otherwise. In case of any such re-entry, expiration of the Term
and/or dispossess by summary proceedings or otherwise, the basic
rent and additional rent shall become due and payable up to the time
of such re-entry, dispossess and/or expiration, together with such
reasonable expenses as Landlord may incur in obtaining possession of
the Premises (including, but not limited to, reasonable attorneys'
fees, brokerage fees and/or the cost of putting the Premises in good
order, and for preparing the same for re-rental) but Tenant shall
not be responsible for substantial "build to suit" types of
expenses.
Landlord may relet the Premises or any part or parts thereof, for a
term or terms which may at Landlord's option be less than or exceed
the period which may otherwise have constituted the balance of the
Term and may grant reasonable concessions, or free rent and Tenant
shall not be credited therewith; and Tenant or the legal
representatives of Tenant shall also pay Landlord as liquidated
damages
48
for the failure of Tenant to observe and perform said Tenant's
covenants herein contained, any deficiency between all basic rent
and additional rent hereby reserved and/or covenanted to be paid and
the net amount, if any, of the basic and additional rents collected
on account of the Lease of the Premises for the period which would
otherwise have constituted the balance of the Term. Any such
liquidated damages shall be paid in monthly installments by Tenant
on the rent days specified in the Lease, until Landlord or Tenant
shall elect to accelerate the payment of such liquidated damages in
which event Tenant shall pay Landlord, within ten (10) days after
Landlord's demand, an amount equal to such deficiency above
discounted to present value by allowing interest at the rate of four
(4%) percent per annum. Any suit brought to collect the amount of
such deficiency for any month shall not prejudice in any way the
rights of Landlord to collect the deficiency for any subsequent
month by a similar proceeding. Landlord shall not be liable for
inability to relet the Demised Premises. The words "re-enter" or
"re-entry" as used in this Lease shall not be restricted to their
technical legal meaning. Tenant shall not be entitled to any surplus
accruing to Landlord as a result of any reletting and no such
reletting shall constitute a surrender and acceptance or be deemed
evidence thereof. Tenant hereby waives all rights of redemption to
which Tenant or any person under Tenant might be entitled by any law
now or hereafter in force.
22.3. In the event of a breach or threatened breach by Tenant of any of
the covenants or provisions of this Lease, Landlord shall have the
right of injunction and the right to invoke any remedy allowed at
law or in equity as if re-entry, summary proceedings and other
remedies were not herein provided for. Mention in this Lease of any
particular remedy shall not preclude Landlord from any other remedy,
in law or in equity.
22.4. If Tenant shall default in the performance of any provision,
covenant or condition on its part to be performed under this Lease,
Landlord may, at its option, perform the same for the account and at
the expense of Tenant. If Landlord at any time shall be compelled to
pay or elects to pay any sum of money or do any act which requires
the payment of any sum of money by reason of the failure of the
Tenant to comply with any provision of this Lease, or if Landlord
incurs any expense including reasonable attorneys fees in
prosecuting or defending any action or proceeding by reason of any
default of Tenant under this Lease, the sums so paid by Landlord,
with interest at the lesser of the rate of eighteen (18%) percent
per annum or the maximum rate permitted by law, together with costs
and damages shall be due from and be paid by Tenant to Landlord on
demand as additional rent hereunder.
41. Excavations. If an excavation or other construction shall be undertaken
with Landlord's approval upon land adjacent to the Building, Tenant shall
afford to the party performing such work permission to enter upon the
Premises for the purpose of doing such work as such part deems necessary
to preserve any wall, or the Building, from injury or damage
49
and to support the same by proper foundations, without the same
constituting an eviction of Tenant, in whole or in part, and without any
claim for damages or indemnity against Landlord, or diminution or
abatement of rent. The party performing such work shall use reasonable
efforts to minimize interference with, or interruption of, Tenant's
business operations, and shall expeditiously repair any damage caused to
the Premises as a result of such work.
42. Adjustments to Basic Rent. The annual basic rent reserved in this Lease
and payable hereunder shall be adjusted, as of the times and in the manner
set forth in this Article.
(a) Definitions: For the purposes of this Article, the following
definitions shall apply:
(i) The term "Price Index" shall mean the "Consumer Price Index"
for All Urban Consumers as published by the Bureau of Labor
Statistics of the U.S. Department of Labor from time to time,
New York, New York-Northeastern, New Jersey, all items
(1982-84 = 100), or a successor or substitute index
appropriately adjusted.
(ii) The term "Initial Price Index" shall mean the Price Index in
effect during the month in which this lease is executed by the
parties.
(b) Effective as of the basic rent payment due on the first day of
January following the Commencement Date, or if said date is less
than six (6) months after the Commencement Date, then effective as
of the first day of July following the Commencement Date, and every
January and July thereafter during the Term of this Lease, there
shall be made a cost of living adjustment in the annual basic rent
payable hereunder (it being the intention of the parties that the
basic rent adjustment provided for in this Article shall be made
every six (6) months after, the first adjustment is made). Each
adjustment shall be based on the percentage difference between the
Price Index in effect for the month immediately preceding the
applicable adjustment period and the Initial Price Index.
(i) In the event the Price Index for the month immediately
preceding the period for which the adjustment is to be made
reflects an increase over the Initial Price Index, than the
annual basic rent to be paid pursuant to Article 5.1(a) hereof
(unchanged by any adjustments under this Article) shall be
multiplied by the percentage difference between the Price
Index for such immediately preceding month and the Initial
Price Index, and the resulting sum shall be added to such
annual basic rent, effective as of the adjustment date. Said
adjusted annual basic rent shall thereafter be payable
hereunder, in equal monthly installments, until it is
readjusted pursuant to the terms of this Lease. In no event
shall the annual basic rent payable during the first
adjustment period be less than the annual basic rent payable
pursuant to the provisions of Article 5.1(a) of this Lease. In
no event shall the annual basic rent payable during any
subsequent
50
adjustment period be less than the annual basic rent payable
during the immediately preceding adjustment period.
The following illustrates the intentions of the parties hereto
as to the computation of the aforementioned cost of living
adjustment in the annual basic rent payable hereunder:
If the Lease is fully executed on March, 1989, and the
Commencement Date is June 1, the first basic rent adjustment
would be effective on January 1, 1990. Assuming that the
annual basic rent is initially $10,000.00, and the Initial
Price Index was 102.0, if the Price Index for the month of
December, 1989, was 105.0, then the percentage increase thus
reflected, e.g., 2.949% (3.0/102.0) would be multiplied by
$10,000.00, and the annual basic rent would be increased by
$249.10, and effective as of January 1, the monthly payment of
basic rent would be increased from $833.33 to $854.09. The
annual basic rent would be adjusted again on July 1, 1990, by
comparing the Initial Price Index and the Price Index for June
of such calendar year, and the percentage increase reflected
would be multiplied by $10,000.00 to determine the applicable
increase in the annual basic rent. Adjustments to the basic
annual rent would continue to be made every six (6) months
during the Term.
In the above example, if the Commencement Date was August 1,
1989, the first adjustment to the annual basic rent would be
made for the six (6) month period commencing on July 1, 1990.
Subsequent adjustments would be made every six (6) months
thereafter.
In the event that the Price Index ceases to use 1982-84 = 100
as the basis of calculation or if a substantial change is made
in the terms or number of items contained in the Price Index,
then the Price Index shall be adjusted to the figure that
would have been arrived at had the manner of computing the
Price Index in effect at the date of this Lease not been
altered. In the even such Price Index (or a successor or
substitute index) is not available, a reliable governmental or
other non-partisan publication evaluating the information
theretofore use din determining the Price Index, as selected
by Landlord in its reasonable judgment shall be used.
No adjustment or recomputations, retroactive or otherwise,
shall be made due to any revision which may later be made in
the first published of the Price Index for any month.
(c) Landlord will cause statements of the cost of living and
adjustments provided for in subparagraph (b) above to be
prepared in reasonable detail and delivered to Tenant.
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(d) Any delay or failure of Landlord, in computing or billing for
the rent adjustments hereinabove provided, shall not
constitute a waiver of or in any way impair the continuing
obligation of Tenant to pay such rent adjustment hereunder and
Tenant shall pay the rent adjustment for the expired months of
the applicable adjustment period within ten (10) days after
Tenant's receipt of notice of the adjustment from Landlord.
(e) Notwithstanding any expiration or termination of this Lease
prior to the lease expiration date (except in the case of a
cancellation by mutual agreement) Tenant's obligation to pay
rent as adjusted under this Article shall continue and shall
cover all periods up to the Lease expiration date, and shall
survive any expiration or termination of this Lease.
43. Partial Invalidity. If any provision of this Lease or any application
thereof to any person or circumstance shall be determined to be invalid or
unenforceable, the remaining provisions of this Lease or the application
of such provision to persons or circumstances other than those to which it
is held invalid or unenforceable shall not be affected thereby and shall
be valid and enforceable to the fullest extent permitted by law.
44. Estoppel Certificate. Tenant agrees, at any time, and from time to time,
upon not less than ten (10) days prior notice by Landlord, to execute,
acknowledge and deliver to Landlord, a statement, in writing, addressed to
Landlord and to any mortgagee, prospective mortgage, or any other party
specified by Landlord, certifying that this Lease is unmodified and in
full force and effect (or, if there have been modifications, describing
them), the improvements required pursuant to Article 11 have been made and
completed (if applicable) and stating that Tenant has accepted possession;
the dates to which base rent, additional rent and other charges have been
paid, the date on which the Term of the Lease commenced and stating
whether or not to the best knowledge of the signer of such certificate,
there exists any default by either party in the performance of any
covenant, agreement, term, provision or condition contained in this Lease,
and, if so, specifying each such default of which the signer may have
knowledge, and stating any other fact or certifying any other condition
reasonably requested by Landlord or reasonably required by any mortgagee,
prospective mortgagee or purchaser or assignees of such mortgagee or of
Landlord, it being intended that any such statement delivered pursuant
hereto may be relied upon by Landlord or a purchaser of Landlord's
interest and by any mortgagee or prospective mortgagee. Tenant hereby
agrees to deliver an Estoppel Certificate to Landlord on or before the
Commencement Date of this Lease.
45. Holding Over. In the event that Tenant shall remain in occupancy of the
Premises for any period beyond the expiration of the Term of this Lease or
any renewals or extensions thereof, such occupancy shall be deemed to be a
month-to-month tenancy at a monthly rental equal to twice the sum of the
basic rent and additional rent payable for the last month of the Term, and
Tenant shall be liable for any additional damages that might be suffered
by Landlord as a result of Tenant's failure to vacate the Premises and
deliver possession thereof to Landlord as required by this Lease. The
acceptance of rent by
52
Landlord shall not be deemed to create a new or additional tenancy other
than as aforesaid.
46. Landlord's Right to Enter. Landlord shall have the right to enter upon the
Premises at all reasonable hours for the following purposes: to inspect or
protect the same; to effect compliance with any law, order or regulation
of any governmental authority having jurisdiction; to exhibit the same to
prospective purchasers, lenders or lessees; to make or supervise repairs,
additions or alterations to the Premises or the Building, and to take all
required materials into the Premises for such purposes; to erect, use and
maintain pipes and conduits in and through the Premises; and to alter,
decorate or otherwise prepare the Premises for reoccupancy but only after
Tenant has vacated the same or shall have removed substantially all of its
property therefrom provided that all of the above is done in conjunction
with Tenant so as to minimize any interruption of Tenant's business
activity so as to meet the objectives of both parties. None of the
foregoing shall constitute an actual or constructive eviction of Tenant or
a deprivation of its rights, not subject Landlord to any liability or
impose upon Landlord any obligation, responsibility or liability
whatsoever, for the care, supervision or repair of the Building of which
the Premises are a part, or any part thereof, other than as herein
specifically provided, or entitle Tenant to any compensation or diminution
or abatement of the rent reserved.
47. No Waiver; Entire Agreement; No Surrender.
29.1. The failure of Landlord or Tenant to seek redress for violation of,
or to insist upon the strict performance of any covenant, agreement,
term, provision or condition of this Lease, or any of Landlord's
Rules and Regulations shall not constitute a waiver thereof and
Landlord shall have all remedies provided herein and by applicable
law with respect to any act, which would have originally constituted
a default by Tenant. The receipt by Landlord of basic rent or
additional rent with knowledge of the breach of any covenant,
agreement, term, provision or condition of this Lease shall not be
deemed a waiver of such breach. The failure of Landlord to xxxx or
collect rent in a timely fashion shall not be construed as a waiver
of Landlord's right to collect rent at any time during the Term or
any time thereafter.
29.2. This Lease with the schedules, riders and exhibits, if any, annexed
hereto contains the entire agreement between Landlord and Tenant,
and any agreement hereafter made between Landlord and Tenant shall
be ineffective to change, modify, waiver, release, discharge,
terminate or effect a surrender or abandonment of this Lease, in
whole or in part, unless such agreement is in writing and signed by
the party against whom enforcement is sought. If Tenant shall have
any right to an extension or renewal of the Term, or any right to
lease other space from Landlord or any Affiliate of the Landlord,
Landlord's exercise of Landlord's right to terminate this Lease
shall operate automatically and without any further action or notice
on the part of Landlord to terminate such renewal, extension or
other right, whether or not theretofore exercised by Tenant.
53
29.3. No employee of Landlord or of Landlord's agents shall have any power
to accept the keys of the Demised Premises prior to the termination
of the Lease. The delivery of keys to any employee of Landlord or of
Landlord's agents shall not operate as a termination of the Lease or
a surrender of the Premises. In the event of Tenant at any time
desiring to have Landlord sublet the Premises for Tenant's account,
Landlord or Landlord's agents are authorized to receive the keys for
such purposes without releasing Tenant from any of the obligations
under this Lease. Tenant hereby relieves Landlord of any liability
for loss or damage to any of Tenant's effects in connection with
such subletting.
48. Landlord's Covenants of Quiet Enjoyment. Landlord covenants and agrees
that if and so long as Tenant pays the rent herein reserved, and performs
and observes the covenants, conditions and agreements hereof upon the part
of the Tenant to be performed and observed, Landlord shall do nothing to
affect Tenant's right to peaceably and quietly have, hold and enjoy the
Premises for the term herein mentioned, subject to the provisions of this
Lease.
49. Indemnity and Tenant's Insurance.
31.1. Tenant shall indemnify and hold harmless Landlord, its invitees,
employees or assigns from and against any and all claims arising
from Tenant's negligence or intentional acts (A) in Tenant's use of
the Premises and any other part of the Property, or (B) from the
conduct of Tenant's business of (C) from any activity, work or
things done, permitted or suffered by Tenant in or about the
Premsies or elsewhere, and shall further indemnify and hold harmless
Landlord from and against any and all claims arising from any breach
or default in the performance of any obligation on Tenant's part to
the be performed under the Terms of this Lease, or arising from any
negligence of the Tenant, or any of Tenant's employees and from and
against all costs, reasonable attorneys fees, expenses and
liabilities incurred in the defense of any such claim or any action
or proceeding brought thereon; and in case any action or proceeding
be brought against Landlord by reason of any such claim, Tenant,
upon notice from Landlord, shall defend the same at Tenant's expense
by counsel reasonably satisfactory to Landlord. Provided, however,
Tenant shall not be obligated to indemnify Landlord from any
liability caused by or resulting from the negligence or intentional
act of Landlord, its invitees, contractors, agents or employees, or
from the act of any third party not associated with Tenant.
31.2. Tenant shall pay, provide and keep in force during the Term hereof,
Comprehensive General Liability Insurance against claims for bodily
injury, death or property damage occurring on, in or about the
Premises or any appurtenances thereto, arising out of Tenant's
negligence or intentional act in the operation and control of the
Premises, including, but not limited to, any liability of Landlord
to
54
third parties arising out of the negligent or intentional act of
Tenant or its employees, in total limits of not less than
$1,000,000.00 in respect to bodily injury or death to any one
person, and $300,000.00 in respect to any one occurrence, accident
or disaster, and property damage with limits of not less than
$500,000.00 or such other amounts as may from time to time be
reasonably required by Landlord, or the holder of the first
mortgage. Tenant shall cause Landlord and any mortgagee to be named
as an additional insureds on said liability insurance.
31.3. Tenant covenants and represents, said representation being
specifically designed to induce Landlord to execute this Lease, that
Tenant's personal property, fixtures and all improvements,
alterations and additions made by Tenant, and any other items which
Tenant may bring to the Premises which may be subject to any claim
for damages or destruction due to Landlord's negligence shall be
fully insured by a policy of insurance covering all risks of loss
with no deductible which such policy shall specifically provide for
a waiver of subrogation for Landlord without regard to whether or
not same shall cost an additional premium and notwithstanding
anything to the contrary contained in this Lease.
31.4. Tenant shall, at its expense, provide and keep in full force for the
benefit of Landlord and Tenant, rent insurance in an amount at least
equal to the then annual basic rent payable hereunder, plus the
additional rent payable by Tenant for the proceeding twelve (12)
month period, and the cost of the annual premiums required to be
paid for the coverages provided for under this Article. Tenant
hereby assigns to lessor all of its right, title and interest in and
to the rent insurance proceeds to be held by lessor as security for
the payment of the rent and additional rents due hereunder until
restoration of the Demised Premises or expiration of the Term.
31.5. Tenant shall provide and keep in force such other insurance and in
such amounts as may, from time to time, be reasonably required by
Landlord, or any mortgagee, wherein Landlord is named as an
additional named insured, or by the holder of any mortgage to which
this Lease is subject, against such other insurable hazards as at
the time are normally insured against in cases of premises similarly
situated and similarly used.
31.6. All insurance required to be provided by Tenant by the provisions of
this Article shall be carried in favor of Landlord, Tenant, and any
mortgagee, as their respective interests may appear, in such
responsible companies and in such form as shall be reasonable
satisfactory to Landlord and to the holder of any mortgage to which
this Lease is subject and subordinate.
31.7. Cancellation of Insurance. All policies referred to hereunder, and
required to be procured by Tenant, shall be paid for by Tenant and
shall be non-assessable and shall require thirty (30) days prior
notice by the insurer by registered mail to
55
landlord, and to the holder of any mortgage to which this Lease is
subject and subordinated, of any cancellation thereof or change
therein affecting the coverage hereunder.
31.8. Landlord to Insure. If Tenant fails to procure the insurance as
required hereunder, Landlord reserves the unqualified right at any
time, after ten (10) days notice, to secure any insurance that is
required of Tenant at Tenant's expense. On Landlord's demand,
reimbursement shall be made by Tenant, as additional rent.
31.9 Evidence of Insurance. Tenant shall procure policies for all said
insurance for periods of not less than one (1) year and shall
deliver to Landlord evidence of insurance and of the payment of
premiums thereon within ten (10) days after the date hereof, and
shall procure renewals thereof from time to time, delivering
certificates of said renewals to the Landlord at least thirty (30)
days before the expiration thereof, together with such evidence of
payment as is provided by the insurance carrier.
31.10.Waiver of Subrogation. Subject to their ability to obtain
appropriate endorsements from their respective insurance carriers,
Tenant and lessor each waive any and all rights of recovery against
the other and against the officers, employees, agents, and
representatives of the other, for loss or damage, etc., to such
waiving party or its property or the property of others under its
control where such loss or damage is insured against under any
insurance policy in force at the time of such loss or damage. In
obtaining policies of insurance required by this Lease, lessor and
Tenant shall obtain a waiver of subrogation endorsement or an
express provision in the policy having that effect. In the event
that any insurer imposes a charge for making such waiver
endorsement, the charge shall be paid by the respective party; and,
in the event that either party fails to obtain such a waiver
endorsement from its insurer, then the other party shall be likewise
relieved from its obligation to do so. Nothing in this paragraph
shall be construed as a waiver of recovery rights with regard to
damages not compensated by insurance.
50. Attorney's Fees. Tenant agrees to pay to Landlord upon demand, as
additional rent, a sum equal to all costs and expenses (including
reasonable attorney's fees) incurred by Landlord during or after the Term
in enforcing all or any of Landlord's rights under this Lease because of a
breach by Tenant, whether or not an action or proceeding is commenced, or
levying and collecting on any judgment in Landlord's favor.
51. Broker. Tenant and Landlord warrant and represent to each other that there
are no brokers who negotiated or brought about this transaction other than
DJM Group. Tenant and Landlord shall indemnify, defend and hold each other
harmless from any and all claims for any brokerage commissions or other
compensation asserted by any other broker or person in connection with
this Lease, arising from the respective acts of Tenant or Landlord, and
their respective expenses (including reasonable attorney's fees) related
56
thereto. Landlord agrees to pay a broker's commission to DJM Group with
respect to this Lease, pursuant to separate agreement.
52. Execution by Landlord. The submission of this Lease Agreement for
examination does not constitute a reservation of or option for the
Premises and this Lease shall be of no force and effect whatsoever unless
it shall have been executed by the Landlord.
53. Recordation. Tenant covenants not to place this Lease or the Commencement
Date certificate referred to in Section 7.2 on record. At the request of
Landlord, Tenant will execute a memorandum of Lease for recording purposes
containing references to such provisions of this Lease as Landlord, in its
sole discretion, shall deem necessary.
54. Subordination.
36.1. This Lease, any amendments, extensions, options (if any) and any
other rights granted to Tenant hereunder shall be subject and
subordinate at all times in lien and priority to any and all present
and future ground and underlying leases affecting all or any part of
the Property or Building and to any and all mortgages which may now
or hereafter be placed on or affect such leases, and/or the Property
or Building, and to all renewals, modifications, consolidations, and
extensions thereof, without the necessity of any further instrument
or act on the part of Tenant. Tenant shall execute and deliver upon
demand any further instrument or instruments confirming the
subordination of this Lease to the lien of any such ground and/or
underlying lease or mortgage if requested to do so by Landlord, and
any further instrument or instruments of attornment that may be
reasonably desired by any such lessee, mortgagee or Landlord. Tenant
hereby irrevocably appoints Landlord attorney-in-fact to execute and
deliver any such instrument for Tenant in the event Tenant fails to
execute and deliver same within five (5) days after demand by
Landlord. Notwithstanding the foregoing, any mortgagee may at any
time subordinate its mortgage to this Lease without Tenant's
consent, by giving notice in writing to Tenant, and thereupon this
Lease shall be deemed prior to such mortgage without regard to their
respective dates of execution and delivery, and in that event, such
mortgagee shall have the same rights with respect to this Lease as
though this Lease had been executed prior to the execution and
delivery of the mortgage and had been assigned to such mortgagee. If
requested by Tenant, Landlord agrees to use its best efforts to
obtain a nondisturbance agreement from any Mortgagee which has
agreed to provide same, in form reasonably satisfactory to any such
Mortgagee.
36.2. In the event of any act or omission by Landlord or Tenant which
would give the other party the right to terminate this Lease or
claim a partial or total eviction, or claim against Landlord for the
payment of money, Tenant will not exercise such right until it has
given written notice of such act or omission to Landlord and the
mortgagee and a reasonable period for remedying such act or omission
shall have elapsed following the giving of such notices, during
which period of time the
57
Landlord or the Mortgagee or any of them, with reasonable diligence
following the giving of such notice, has not commenced and continued
diligently to remedy such act or omission. Nothing herein contained
shall be deemed to create any rights in Tenant not specifically
granted in this Lease or under any applicable provision of law, nor
any obligation on the part of the Mortgagee to remedy any act or
omission of Landlord.
55. Notices. Any notice, request or demand permitted or required to be given
by the terms and provisions of this Lease, or by any law or governmental
regulation, either by Landlord to Tenant or the Tenant to landlord, shall
be in writing, and shall be delivered by hand or courier service, or
mailed by registered or certified mail, return receipt requested,
addressed if to Tenant, to Attention: Xxxxxxx XxXxxxx, Perma Grass
Corporation, 000 Xxxxx 00 Xxxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxx Xxxxxx
00000 and if to Landlord, Xxxxxxx Development Corporation at 000 Xxxxx 00
Xxxxx, Xxxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000, with a copy to:
Such notice, request or demand shall be deemed given when actually
delivered or if mailed, when received by the addressee as evidenced by the
return receipt, or if refused, the date on which delivery was first
attempted as evidenced by the postal records. Either party may from time
to time, by notice as aforesaid, designate a different address for
notices, requests or demand.
56. Personal Property Taxes. Tenant agrees to pay all taxes imposed on the
Property of Tenant for its use and occupancy of the Premises, and to hold
Landlord harmless therefrom.
57. Property Changes. This Lease shall not be affected or impaired by any
change to, or easements or other rights granted in, any lawns, sidewalks,
driveways, curb cuts or streets adjacent to or around the Property, except
as provided in the provisions of this Lease dealing with condemnation.
58. Persons Bound. The covenants, agreements, terms, provisions and conditions
of this Lease shall bind and inure to the benefit of the respective heirs,
distributees, executors, administrators, successors, assigns and legal
representatives of the parties hereto with the same effect as if mentioned
in each instance where a party hereto is named or referred to, but nothing
herein contained shall be construed to give Tenant the right to assign
this Lease. The covenants and obligations on the part of Landlord under
this Lease shall not be binding upon Landlord herein named with respect to
any period subsequent to the transfer of its interest in the Building, by
operation of law or otherwise, and in the event of such transfer or any
subsequent transfer, Tenant agrees to look solely to the transferee fr the
performance of Landlord's covenants and obligations, but only with respect
to the period beginning with such transfer and ending with a subsequent
transfer of such interest, and all acts, covenants or obligations due on
the part of Landlord during its ownership shall survive any act of
transfer of the fee title to or leasehold interest in the Property.
58
59. Miscellaneous Conditions.
41.1. This Lease is expressly conditioned upon Landlord receiving the
consent and approval of Landlord's mortgagee to its terms and
provisions not later than sixty (60) days after its execution and
delivery by both parties, failing which, Landlord may cancel this
Lease and Tenant's deposit and any rent paid shall be returned
without further obligation of the parties. To enable the Landlord to
satisfy the requirements of any present or future mortgagee, if any
mortgagee requires modifications to this Lese, provided such
modifications do not materially alter the approved plans and
specifications of Tenant and do not increase the rent or materially
and adversely affect any other rights of Tenant hereunder, Landlord
shall submit to Tenant a written amendment of this Lease containing
such required modifications. If Tenant fails to execute and return
such amendment within ten (10) days after the amendment has been
received by Tenant, Landlord shall have the right to cancel this
Lease upon written notice to Tenant, whereupon this Lease shall
immediately be cancelled and terminated, any money or security
deposited by Tenant with Landlord shall be returned to Tenant and
both Landlord and Tenant shall thereupon be relieved from any and
all further liability or obligation hereunder.
60. Miscellaneous.
42.1. Tenant agrees that neither Landlord, nor Landlord's agents,
employees or representatives nor any other party has made, and
Tenant does not rely on, any representations, warranties or promises
with respect to the Building, the Property, the Premises or this
Lease, except as herein expressly set forth.
42.2. The Article headings of this Lease are for convenience only and
shall not limit or define the meaning or content hereof. All
pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of
the person or persons may require.
42.3. Anything elsewhere to the contrary notwithstanding, Tenant shall
look solely to the estate of Landlord in the property for the
satisfaction of each and every remedy of Tenant in the event of any
default or breach by Landlord with respect to any of the terms,
covenants and conditions of this Lease to be observed and/or
performed by Landlord, and no other property or assets of Landlord
or any officer, director, shareholder or general partner of Landlord
or their respective successors and assigns shall be subject to levy,
execution or other enforcement procedure for the satisfaction of
Tenant's remedies, such exculpation of liability to be absolute and
without any exceptions whatsoever.
42.4. Except with respect to the signage provided for Tenant in the Work
Letter, Tenant shall not place any sign on the exterior of the
Building without Landlord's
59
consent. Any sign placed on the exterior of the Building shall
comply with all applicable governmental regulations and be of a
style and set in a location which would not, in the option of the
Landlord, give the impression that the Tenant is the only occupant
of the Building.
42.5. If Tenant is a corporation, each individual executing this Lease on
behalf os aid corporation represents and warrants that he is duly
authorized to execute and deliver this Lese on behalf of said
corporation in accordance with a duly adopted resolution of the
Board of Directors of said corporation or in accordance with the
By-Laws of said corporation, and that this Lease is binding upon
said corporation in accordance with its terms. If Tenant is a
corporation, Tenant shall, simultaneously with the execution of this
Lease, deliver to Landlord a certified copy of a resolution of the
Board of Directors of said corporation authorizing or ratifying the
execution of this Lease.
IN WITNESS WHEREOF, this Lease has been executed and delivered as of the
____ day of _________________, _____.
WITNESS: TENANT:
Perma Grass Corporation
BY: BY:
---------------------------- ---------------------------------
ATTESTED: LANDLORD:
Xxxxxxx Development Corp. (Landlord)
BY: BY:
---------------------------- ---------------------------------
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EXHIBIT "A"
RULES AND REGULATIONS
61. The public and common sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors, or halls shall not be obstructed, or
encumbered by any Tenant or used for any purpose other than ingress and
egress to and from the premises.
62. No awnings or other projections shall be attached to the outside walls of
the Building without prior written consent of the Landlord. No curtains,
blinds, shades, or screens shall be attached to or hung in, or used in
connection with any window or door of the Premises, without the prior
written consent of the Landlord. Such awnings, projections, curtains,
blinds, shades, screens or other fixtures must be a quality type, design
and color, and attached in the manner approved by Landlord. All electrical
fixtures hung in offices or spaces along the perimeter of the Premises
must be of a quality, type, design and bulb color approved by the
Landlord.
63. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant or any part of the outside or
inside of the Premiss or Building without prior written consent of the
Landlord. In the event of the violation of the foregoing by any Tenant,
Landlord may remove same without any liability, and may charge the expense
incurred by such removal to the Tenant or Tenants violating this rule.
Interior signs on doors and directory tablet shall be inscribed, painted
or affixes for each Tenant by the landlord at the expense of such Tenant,
and shall be of a size, color and style acceptable to the Landlord.
64. The sashes, sash doors, skylights, windows and doors that reflect or admit
light and air into the halls, passage ways or other public places in the
Building shall not be covered or obstructed by any Tenant, nor shall any
bottles, parcels, or other articles be placed on the windowsills.
65. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the
Tenant who, or whose servants, employees, agents, visitors or licensees,
shall have caused the same.
66. No Tenant shall xxxx, paint, drill into, or in any way deface any part of
the Premises or the Building of which they form a part. No boring, cutting
or stringing of wires shall be permitted, except with the prior written
consent of the Landlord, and as the Landlord may direct. No Tenant shall
lay linoleum or other similar floor covering, so that the same shall come
in direct contact with the floor of the Premises, and if linoleum, rug or
other similar floor covering is desired to be used, and interlining of
builder's deadening felt shall be first affixed to the floor, by a paste
or other material, soluble in water, the use of
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cement or other similar adhesive material being expressly prohibited.
67. No space in the Building shall be used for manufacturing, for the storage
of merchandise, or for the sale of merchandise, goods or property of any
kind at auction.
68. No Tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with other occupants of the Building or
those having business with them whether by the use of any musical
instrument, radio, television set, talking machine, unmusical noise,
whistling, signing, or in any other way. No Tenant shall throw anything
out of the doors, windows or skylights or down the passageways.
69. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any Tenant, nor shall any changes be made in existing
locks or the mechanism thereof. Each Tenant must, upon the termination of
his tenancy, restore to the Landlord all keys of stores, offices and
toilet rooms, either furnished to, or otherwise procured by, such Tenant,
and in the event of the loss of any keys, so furnished, such Tenant shall
pay to Landlord the cost thereof.
70. All removals, or the carrying in or out of any safes, freight, furniture
or bulky matter of any description must take place during the hours which
the Landlord or its agents may reasonably designate from time to time. The
Landlord reserves the right to exclude from the Building all safes,
freight or other bulky articles which violate any of these Rules and
Regulations are a part.
71. No Tenant shall occupy or permit any portion of the Premises demised to
him to be occupied as an office for a public stenographer or typist, or a
small loan company or for the possession, storage, manufacture, or sale of
liquor, narcotics, dope, tobacco, in any form, or as a xxxxxx, beauty
parlor, or manicure shop, or as an employment bureau. No Tenant shall
engage or pay any employees on the Premises, nor advertise for laborers
giving an address at said Premises.
72. No Tenant shall purchase spring water, ice, towels, or other like service,
from any company or persons not approved by the Landlord.
73. The Landlord reserves the right to exclude from the Building between the
hours of 6:00 p.m. and 8:00 a.m. on Monday to Friday, inclusive, and
between the hours of 1:00 p.m. on Saturday and 8:00 a.m. on the following
Monday as well as on legal holidays, all persons who do not present a pass
to the Building signed by the Landlord. The Landlord will furnish passes
to executives for whom Tenant requests same in writing. Each Tenant shall
be responsible for all persons for whom it request such pass and key and
shall be liable to the Landlord for all acts of such persons. At the
option of the Landlord, Tenant agrees to purchase from Landlord all
passes, keys and locks, and to pay the cost thereof.
74. Canvassing, soliciting and peddling in the Building is prohibited and each
Tenant shall cooperate to prevent the same.
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75. There shall not be used in any space, or in the public halls of any
Building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber
tires and side guards.
76. Tenant shall not do any cooking, conduct any restaurant, luncheonette or
cafeteria for the sale or service of food or beverages to its employees or
to others, or cause or permit any odors of cooking or other processes or
any unusual or objectionable odors to emanate from the premises. Tenant
shall not install or permit the installation or use of any food, beverage,
cigarettes, cigar or stamp dispensing machine; or permit the delivery of
any food or beverage to the Premises, except by such persons delivering
the same as shall be approved by Landlord.
77. Tenant shall not use or permit the Premises to be used for any unlawful or
illegal business or purpose or for lodging.
78. Tenant shall not illegally sell or store upon the premises any spirituous,
malt or vinous liquor or any narcotic drugs and shall not exhibit, sell or
offer for sale on the premises of the Building anything whatsoever except
such as are essentially connected with the stated use of the Premises.
79. Tenant shall not do or permit to be done any act or thing upon the
Premises which will invalidate or be in conflict with any fire insurance
policies or increase the rate of fire insurance covering the Building of
which the Premises form a part and shall not do so permit to be done any
act or thing upon the Premises which shall or might subject landlord to
any liability or responsibility for injury to any person or persons or to
property by means of any business or operation being carried on in the
Premises or for any other reason. In no event shall any explosives or
flammable materials be taken into or retained in the Premises.
80. Tenant shall not use or permit the parking areas to be used for the
parking, loading or unloading of trucks exceeding the weight limit
established from time to time by Landlord. Landlord to designate area for
loading or unloading and hours for such use.
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81. Landlord reserves the right, from time to time, to assign and reassign to
Tenant and other Tenants of the Building, specific parking spaces, and
Tenant agrees to be bound thereby.
TENANT:
Perma Grass Corporation
BY:
-----------------------------------
Date:
---------------------------------
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EXHIBIT "B"
LANDLORD IMPROVEMENTS
82. Replace ceiling tile as needed.
83. Shampoo existing carpeting.
84. Install five (5) handsets
85. Paint office one color throughout.
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EXHIBIT "C"
JANITORIAL SERVICES
Janitorial services provided to Tenant by Landlord, five (5) evenings per
week, excluding weekends and holidays, as follows:
86. Low dusting nightly.
87. Carpeting vacuumed nightly.
88. Refuse containers emptied nightly (with plastic liners changed regularly).
89. Glass entryway doors cleaned nightly.
90. Windows washed annually.
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EXHIBIT "D"
HOLIDAY SCHEDULE
New Years Day
President's Day
Good Friday
Memorial Day
Independence Day
Labor Day
Thanksgiving Day [and day after]
Christmas Day
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GUARANTY
In consideration of, and as an inducement for the granting, execution and
delivery of the foregoing lease ("Lease") at Airport 17 Office Centre, 377 Route
17 South, Hasbrouck Heights, New Jersey, Suite 116 on the lobby level by Xxxxxxx
Development Corp., Landlord therein named ("Landlord", which term shall be
deemed to include the named Landlord and its successors and assigns) to Xxxxxxx
XxXxxxx, Tenant named ("Tenant", which term shall be deemed to include the named
Tenant and its successors and assigns), and in further consideration of the sum
of One ($1.00) Dollar and other good and valuable consideration paid by Landlord
to the undersigned, the receipt and sufficiency of which are hereby
acknowledged, the undersigned Xxxxxxx XxXxxxx ("Guarantor", which term shall be
deemed to include the named Guarantor and its successors and assigns), hereby
guarantees, absolutely and unconditionally, to Landlord the full and prompt
payment of rent and other charges and sums for a period of thirty-seven (37)
months, effective February 1, 1998 through February 28, 2001, (including,
without limitation, Landlord's legal expenses and reasonable attorneys' fees and
disbursements) payable by Tenant under the Lease, and hereby further guarantees
the full and timely performance and observance of all the covenants, terms,
conditions and agreements therein provided to be performed and observed by
Tenant; and Guarantor hereby covenants and agrees to and with Landlord that if
default shall at any time be made by tenant in the payment of any rent or other
charges and sums, or if Tenant should default in the performance and observance
of any of the terms, covenants and conditions contained in the Lease, Guarantor
shall and will forthwith pay rent and all other charges and sums, to Landlord
and any arrears thereof, and shall and will forthwith faithfully perform and
fulfill all of such terms, covenants and conditions and will forthwith pay to
Landlord all damages that may arise in consequence of any default by Tenant
under the Lease, including, without limitation, all reasonable attorneys' fees,
and disbursements incurred by Landlord or caused by any such default or the
enforcement of this Guaranty.
This Guaranty is an absolute and unconditional guaranty of payment (and
not of collection) and of performance. The liability of Guarantor is
co-extensive with that of Tenant and this Guaranty shall be enforceable against
Guarantor without the necessity of any suit or proceeding on Landlord's part of
any kind or nature whatsoever against Tenant and without the necessity of any
notice of non-payment, non-performance or non-observance or of any notice of
acceptance of this Guaranty or of any other notice or demand to which Guarantor
might otherwise be entitled, all of which Guarantor hereby expressly waives.
Guarantor hereby expressly agrees that the validity of this Guaranty and the
obligations of Guarantor hereunder shall in no way be terminated, affected,
diminished or impaired by reason of (a) the assertion or the failure to asset by
Landlord against Tenant of any of the rights or remedies reserved to Landlord
pursuant to the terms, covenants and conditions of this Lease, or (b) any
non-liability of Tenant under the Lease, whether by insolvency, discharge in
bankruptcy, or any other defect or defense which may now or hereafter exist in
favor of Tenant.
This Guaranty shall be continuing guaranty, and the liability of Guarantor
hereunder shall in no way be affected, modified or diminished by reason of (a)
any assignment, renewal, modification, amendment, or extension of the Lease, or
(b) any modification or waiver of or change in any of the terms, covenants and
conditions of the Lease by Landlord and Tenant, or (c)
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any extension of time that may be granted by Landlord to Tenant, or (d) any
consent, release, indulgence or other action, inaction or omission under or in
respect of the Lease, or (e) any dealings or transactions or matter of thing
occurring between Landlord and Tenant, or (f) any bankruptcy, insolvency,
reorganization, liquidation, arrangement, assignment for the benefit of
creditors, receivership, trusteeship or similar proceeding affecting Tenant,
whether or not notice thereof or of any thereof is given to Guarantor.
Should Landlord be obligated by any bankruptcy or other law to repay to
Tenant or to Guarantor or to any trustee, receive or other representative of
either of them, any amounts previously paid, this Guaranty shall be reinstated
in the amount of such repayments. Landlord shall not be required to litigate or
otherwise dispute its obligations to make such repayments if it in good faith
believes that such obligation exists.
No delay on the part of Landlord in exercising any right, power or
privilege under this Guaranty or failure to exercise the same shall operate as a
waiver of or otherwise affect any such right, power or privilege, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
No waiver or modification of any provision of this Guaranty nor any
termination of this Guaranty shall be effective unless in writing, signed by
Landlord; nor shall any such waiver be applicable except in the specific
instance for which given.
All of Landlord's rights and remedies under the Lease and under this
Guaranty, now or hereafter existing at law or in equity or by statute or
otherwise, are intended to be distinct, separate and cumulative and no exercise
or partial exercise of any such right or remedy therein or herein mentioned is
intended to be in exclusion of or a waiver of any of the others.
As further inducement to Landlord to make and enter into the Lease and in
consideration thereof, Landlord and Guarantor covenant and agree that in any
action or proceeding brought on, or under or by virtue of this Guaranty,
Landlord and Guarantor shall and do hereby waive trial by jury. Without regard
to principles of conflicts of laws, the validity, interpretation, performance
and enforcement of this Guaranty shall be governed by and construed in
accordance with the internal laws of the State of New Jersey.
Guarantor further agrees to provide Landlord, on the 15th day of January,
during the year of the Lease or Leases involved herein, with a personal
financial statement detailing with specificity all personal assets and
liabilities of the Guarantor as of the date said statement is provided to
Landlord, including but not limited to bank accounts, investment accounts,
details as to receivables, securities, property owned or leased, etc. A breach
by the Guarantor of this provision of this Guaranty shall be considered a
material breach of the Lease by the Tenant, and the Landlord shall have all
rights as set forth in said Lease to take any and all actions in response to
Tenant's material breach of said Lease.
/S/ XXXXXXX XXXXXXX
-----------------------
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STATE OF NEW JERSEY:
: ss.
COUNTY OF :
On the day of ___________, ____, before me personally came
_____________________, to me known to be the individual described in and who
executed the foregoing instrument, and he acknowledged that he executed same.
------------------------
NOTARY PUBLIC
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