Form of Lease, By and Between Amber Alert Safety Centers, Inc. and Emerald Holdings Group L.L.C.
Exhibit
10.38
Form of Lease, By and Between Amber
Alert Safety Centers, Inc. and Emerald Holdings Group L.L.C.
This Lease, dated
the ______________________ day of __________________ 2007.
Parties
Between
Emerald Holdings Group L.L.C. 000 Xxxxxxxxx
Xxxxx, Xxxxxxxx, XX 00000 hereinafter referred to as the Landlord, and
Amber Alert hereinafter referred to as
the Tenant.
WITNESSETH:
That the Landlord hereby demises and leases unto the Tenant, and the Tenant
hereby hires and takes from the Landlord for the term and upon the rentals
hereinafter specified, the premises described as follows, situated in the
Township of Rockaway, County of Xxxxxx and State of New Jersey.
Premises
A portion
of 000 Xxxxxxxxx Xxxxx, Xxxxxxxx, XX (second floor) measuring approximately
4,734 S.F.
Term
The term
of this demise shall be for Five (5) years and Two (2) Months beginning November
1, 2007 and ending January 31, 2013.
The rent
for the demised term shall be Three Hundred Seventy-Three Thousand, One Hundred
Ninety-Seven Dollars ($373,197.00).
Rent
The said
rent is to be payable monthly in advance on the first day of each calendar month
for the term hereof (62 Months), in installments as follows:
Payment of Rent
YEAR I:
$5,917.50 per Month Starting on November 1, 2007 for period ending October 31,
2008.
YEAR 2:
$5,917.50 per Month Starting on November 1, 2008 for period ending October 31,
2009.
YEAR 3:
$6,016.12 per Month Starting on November 1,
2009 for period ending October 31, 2010.
YEAR 4:
$6,114.75 per Month Starting on November 1, 2010 for period ending October 31,
2011.
YEAR 5:
$6,114.75 per Month Starting on November 1, 2011 for period ending January 31,
2013.
at the
office of Emerald Holdings Group L.L.C. or as may be otherwise directed by the
Landlord in writing.
THE
ABOVE LETTING IS UPON THE FOLLOWING CONDITIONS:
First - The Landlord covenants that the
Tenant, on paying the said rental and performing the covenants and conditions in
this Lease contained, shall and may peaceably and quietly have, hold and enjoy
the demised premises for the term aforesaid.
Purpose and Usage
Second
- The Tenant covenants and agrees
to use the demised premises as office space and
agrees not to use or permit the premises to be used for any other purpose
without the prior written consent of the Landlord endorsed hereon, which consent
shall not be unreasonably withheld, conditioned or delayed. There will be no
additional charges for Tenant to operate a small 24/7 call center.
Default in Payment of
Rent
Abandonment of
Premises
Re-entry and
reletting by Landlord
Tenant Liable for
Deficiency
Lien of Landlord
to Secure
Performance
Attorney's Fees
Third.-
The Tenant shall, without any
previous demand therefore, pay to the Landlord, or its agent, the said rent at
the times and in the manner above provided. In the event of the non-payment of
said rent, or any installment thereof, at the times and in the manner provided,
and if the same shall remain in default for ten days after becoming due, or if
the Tenant shall be dispossessed for non-payment of rent, or if the leased
premises shall be deserted or vacated, the Landlord or its agents shall have the
right upon presenting the Tenant with a seven day notice and opportunity to
cure, may enter the said premises as the agent of the Tenant, either by force or
otherwise, without being liable for any prosecution or damages therefor, and may
relet the premises as the agent of the Tenant, and receive the rent therefore,
upon such teens as shall be satisfactory to the Landlord, and all rights of the
Tenant to repossess the premises under this lease shall be forfeited. Such
re-entry by the Landlord shall not operate to release the Tenant from any rent
to be paid or covenants to be performed hereunder during the full term of this
lease. For the purpose of reletting, the Landlord shall be authorized to make
such repairs or alterations in or to the leased premises as may be necessary to
place the same in good order and condition. The Tenant shall be liable to the
Landlord for the cost of such repairs or alterations, and all expenses of such
reletting. If the sum realized or to be realized front the reletting is
insufficient to satisfy the monthly or term rent provided in this lease, the
Landlord, at its option, may require the Tenant to pay such deficiency month by
month, or may hold the Tenant in advance for the entire deficiency to be
realized during the term of the reletting. The Tenant shall not be entitled to
any surplus accruing as a result of the reletting. The Landlord is hereby
authorized to exercise its rights as to any statutory lien or right of distrait'
that may exist, on all personal property of the Tenant in or upon the demised
premises, to secure payment of the rent and performance of the covenants and
conditions of this lease. The Landlord shall have the right, as agent of the
Tenant, to peaceably take possession of any furniture, fixtures or other
personal property of the Tenant found in or about the premises, and sell the
same at public or private sale and to apply the proceeds thereof to the payment
of any monies becoming due under this lease, the Tenant hereby waiving the
benefit of all laws exempting property from execution, levy and sale on distress
or judgment. The Tenant agrees to pay, as additional rent, all reasonable
attomey's fees and other expenses incurred by the Landlord in enforcing any of
the obligations under this lease.
Sub-letting and Assignment
Fourth
- Tenant shall have the right at
any time to assign the lease or to sublease all or any portion of Tenant's
Premises for all or a portion of the remaining Lease Term, to any unrelated
entities with Landlord's prior written consent, which shall not be unreasonably
withheld, conditioned or delayed. Tenant to have the right to assign the lease
or sublease for all or part of the Premises to a related or affiliated company
without the Landlord's right of approval provided that the assignee is of
greater or equal financial worth.
Condition of Premises,
Repairs
ACM
Alterations and
Improvements
Sanitation,
Inflammable Materials
Fifth - The Tenant has examined the demised
premises, and accepts them in their present condition (except as otherwise
expressly provided herein) and without any representations on the part of the
Landlord or its agents as to the present or future condition of the said
premises. To the best of Landlord's knowledge and without further investigation,
there are no hazardous materials on the property inclusive of Asbestos
Containing Materials. The Tenant shall keep the demised premises in good
condition, and shall redecorate, paint and renovate the said premises as may be
necessary to keep them in
repair and good appearance. The Tenant shall quit and surrender the
premises at the end of the demised term in as good condition as the reasonable
use thereof will permit, reasonable wear and tear expected. The Tenant shall not
make any alterations, additions, or improvements to said premises without the
prior written consent of the Landlord. All erections, alterations, additions and
improvements, whether temporary or permanent in character, which may be made
upon the premises either by the Landlord or the Tenant, except furniture or
moveable trade fixtures installed at the expense of the Tenant, shall be the
property of the Landlord and shall remain upon and be surrendered with the
premises as a part thereof at the termination of this Lease, without
compensation to the Tenant. The Tenant further agrees to keep said premises and
all parts thereof in a clean and sanitary condition and free from trash,
inflammable material or other objectionable matter. The Landlord will maintain
and repair at the Landlord's expense the existing HVAC, electrical, and plumbing
systems, and if necessary, make structural repairs to the building to maintain
the premises in condition that is fit for occupancy.
Mechanics' Liens
Sixth
- In the event that any
mechanics' lien is filed against the premises as a result of alterations,
additions, or improvements made by the Tenant, the Landlord, at its option,
after providing the Tenant with thirty days' written notice and an opportunity
to cure, may terminate this lease and may pay the said lien, without inquiring
into the validity thereof, and the Tenant shall forthwith reimburse the Landlord
the total expense incurred by the Landlord in discharging the said lien, as
additional rent hereunder. In the event that the lien is contested, the Tenant
will be given the opportunity to post the sum sought by virtue of the lien with
its attorney.
Glass
Seventh.-
Tenant agrees to replace at the Tenant's expense any and all glass which
may become broken in and on the demised premises.
Liability of Landlord
Eighth
- Other than as a result of the
Landlord's gross negligence or willful conduct, the Landlord shall not be
responsible for the loss of or damage to property, or injury to persons,
occurring in or about the demised premises, by reason of any existing or future
condition, defect, matter or thing in said demised premises or the property of
which the premises are a part, or for the acts, omissions or negligence of other
persons or tenants in and about the said property. The Tenant agrees to
indemnify and save the Landlord harmless from all claims and liability for
losses of or damage to property, or injuries to persons occurring in or about
the demises premises.
Services and
Utilities/Electric
Ninth - Tax and Operating; In calendar year
2006, Real Estate Taxes were $2.47 /
RSF and Operating Expenses were $5.76 /
RPF. Electric; Electric is not included in the above Operating Expense.
There is one (1) meter for the entire building and the Tenant is responsible for
its pro-rata share of electric.
Rent Abatement
Rent
Abatement; Two (2) months of gross rental rate. During this period, Tenant shall
he responsible for electric.
Tax &
Operating
Utilities
and services furnished to the demised premises for the benefit of the Tenant
shall be provided and paid for as follows: water by the Landlord; electricity by
Tenant; real estate taxes by the Landlord; hot water by the Landlord; janitorial
for the common area by the landlord; and rubbish disposal by the Landlord;
domestic sewerage charges by the Landlord; normal buildings systems maintenance
by the Landlord; light bulb and ballast replacement by Tenant. The Landlord
shall not be liable for any interruption or delay on any of the above services
for any reason.
Right to Inspect and
Exhibit
Tenth
- Upon reasonable notice to
Tenant which in no event shall be less than 24 hours, the Landlord, or its
agents, shall have the right to enter the demised premises at reasonable hours
in the day or night to examine the same, or to run telephone or other wires, or
to make such repairs, additions or alterations as it shall deem necessary for
the safety, preservation or restoration of the improvements, or for the safety
or convenience of the occupants or users thereof (there being no obligation,
however, on the part of the Landlord to make any such repairs, additions, or
alterations), or to exhibit the same to prospective purchasers and put upon the
premises a suitable "For Sale" sign. For three months prior to the expiration of
the demised term, the Landlord, or its agents, may similarly exhibit the
premises to prospective tenants, and may place the usual "To Let" signs
thereon.
Damage by fire, Explosion, The
elements or otherwise
Eleventh.-
In the event of the destruction
of the demised premises or the building containing the said premises by fire,
explosion, the elements or otherwise during the term hereby created, or previous
thereto, or such partial destruction thereof as to render the premises wholly
untenantable or unfit for occupancy, or should the demised premises be so badly
injured that the same cannot be repaired within ninety days from the happening
of such injury, then and in such case the term hereby created shall, at the
option of the Landlord, cease and become null and void from the date of such
damage or destruction, and the Tenant shall immediately surrender said premises
and all the Tenant's interest therein to the Landlord, and shall pay rent only
to the time of such
surrender, in which event the Landlord may re-enter and re-possess the premises
thus discharged from this lease and may remove all parties therefrom. Should the
demised premises be rendered untenantable and unfit for occupancy, but yet be
repairable within ninety days from the happening of said injury, the Landlord
may enter and repair the same with reasonable speed, and the rent shall not
accrue after said injury or while repairs are being made, but shall recommence
immediately after said repairs shall be completed. But if the premises shall be
so slightly injured as not to be rendered untenantable and unfit for occupancy,
then the Landlord agrees to repair the same with reasonable promptness and in
that case the rent accrued and accruing shall not cease or determine. The
Tenant shall immediately notify the Landlord in case of fire or other damage to
the premises.
Observation of Laws, Ordinances, Rules and
Regulations
Twelfth.-
The Tenant agrees to observe and
comply with all laws, ordinances, rules and regulations of the
Federal, State, County, and Municipal authorities applicable to the business to
be conducted by the Tenant in the demised premises. The Tenant agrees not to do
or permit anything to be done in said premises, or keep anything therein, which
will increase the rate of fire insurance premiums on the improvements or any
part thereof, or on the property kept therein, or which will obstruct or
interfere with the rights of other tenants, or conflict with the regulations of
the Fire Department or with any insurance policy upon said improvements or any
part thereof. In the event of any increase in insurance premiums resulting from
the Tenant's occupancy of the premises, or from any act or omission on the part
of the Tenant, the Tenant agrees to pay said increase in insurance premiums on
the improvements or contents thereof as additional rent. Landlord shall be
responsible for compliance with all applicable local, state and federal statutes
and codes including the Americans with Disabilities Act.
Signs
Thirteenth.-
No sign, advertisement or notice
shall be affixed to or placed upon the exterior part of t re demised premises by
the Tenant, except in such manner, and of such size, design and color as shall
be approved in advance in writing by the Landlord. Landlord will provide for
Tenant's directory listing in Lobby as well as directional signage on floor,
Tenant may place signage at entrance to suite subject to Landlord's approval,
which approval shall not be unreasonably withheld, conditioned or
delayed.
Subordination to Mortgages and Deeds of
Trust
Fourteenth.-
This lease is subject and is
hereby subordinated to all present and future mortgages, deeds of trust and
other encumbrances affecting the demised premises or the property of which said
premises are a part. The Tenant agrees to execute, at no expense to the
Landlord, any instrument which may be deemed necessary or desirable by the
Landlord to further effect the subordination of this lease to any such mortgage,
deed of trust or encumbrance.
Parking
Fifteenth.-
Parking is at a ratio of 4 / 1,000 square feet of leased space, and there
will be no additional charge for parking.
Rules and Regulations of Landlord
Sixteen
- The rules and regulations
regarding the demised premises, affixed to this lease, if any, as well as any
other further reasonable codes and regulations which shall be made by the
Landlord, shall be observed by the Tenant and by the Tenant's employees, agents
and customers. The Landlord reserves the right to rescind any presently existing
rules applicable to the demised premises, and to make such other and further
reasonable rules and regulations as, in its judgment, may from time to time be
desirable for the safety, care and cleanliness of the premises, and for the
preservation of good order therein, which rules, when so made and notice thereof
given to the Tenant, shall have the same force and effect as if originally made
part of this lease, Such other and further rules shall not, however, be
inconsistent with the proper and rightful enjoyment by the Tenant of the demised
premises.
Violations of Covenants, Forfeiture of Lease, Re-entry
by Landlord
Non-waiver of Breach
Seventeenth.-
In case of violation by the
Tenant of any of the covenants, agreements and conditions of this lease, or of
the rules and regulations now and hereafter to be reasonably established by the
Landlord, and upon failure to discontinue such violation within ten days after
written notice thereof given to the Tenant, and a ten day period in which Tenant
may cure suds violations, this lease shall thenceforth, at the options of the
Landlord, become null and void, and the Landlord may re-enter without further
notice or demand. The rent in such case shall become due, be apportioned and
paid on and up to the day of such re-entry, and the Tenant shall be liable for
all loss and damage resulting from such violation as aforesaid. No waiver by the
Landlord of any violation or breach of condition by the Tenant shall constitute
or be construed as a waiver of any other violation or breach of condition, nor
shall lapse of time after breach of condition by the Tenant before Landlord
shall exercise its option under this paragraphs operate to defeat the right of
the Landlord to declare this lease null and void and to re-enter upon the
demised premises after the said breach or violation.
Notices
Eighteenth.-
All notices and demands, legal or
otherwise, incidental to this lease, or the occupation of the demised premises,
shall be in writing. If the Landlord or its agent desires to give or serve upon
the Tenant any notice or demand, it shall be sufficient to send a copy thereof
by registered mail, addressed to the Tenant at the demised premises, or to leave
a copy thereof with a person of suitable age found on the premises. Notices from
the Tenant to the Landlord shall be sent registered by mail or delivered to the
Landlord at the place hereinbefore designated for the payment of rent, or to
such party or place as the Landlord may from time to time designate in
writing.
Bankruptcy, Insolvency, Assignment of Benefit of
Creditors
Nineteenth.-
It is further agreed that if at
any time during the term of this lease the Tenant shall make any assignment for
the benefit of creditors, or be decreed insolvent or bankrupt according to law,
or if a receiver shall be appointed for the Tenant, then the Landlord may, at
its option, terminate this lease, exercise of such option to be evidenced by
notice to that effect served upon the assignee, receiver, trustee, or other
person in charge of the liquidation of the property of the Tenant or the
Tenant's estate, but such termination shall not release or discharge any payment
of rent payable hereunder and then accrued, or any liability then accrued by
reason of any agreement or covenant herein contained on the part of the Tenant,
or the Tenant's legal representatives.
Holding
Over by Tenant
Twentieth
- In the event that the Tenant
shall remain in the demised premises after the expiration of he term of this
lease without having executed a new written lease with the Landlord, such
holding over shall not constitute a renewal or extension of this lease. The
Landlord may, at its option, elect to treat the Tenant as one who has not removed at the end
of his term, and thereupon be entitled to all the remedies against the Tenant
provided by law in that situation, or the Landlord may elect, at its option, to
construe such holding over as a tenancy from month to month, subject to all the
terms and conditions of this lease, except as to duration thereof, and in that
event the Tenant shall pay monthly rent in advance at the rate provided herein
as effective during the last month of the demised Term plus 20% per month
($7,337.70)
Eminent Domain,
Condemnation
Twenty-first
- If the property or any part
thereof wherein the demised premises are located shalt be taken by public or
quasi-public authority under any power of eminent domain or condemnation, this
lease, at the option of the Landlord, shall forthwith terminate and the Tenant
shall have no claim or interest in or to any award of damages for such
taking.
Security Deposit
Twenty-second
- The Tenant has this day
deposited with the Landlord the suns of $23,670.00 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 suns shall be returned to the Tenant within 60 days after the time
fixed as the expiration of the term herein or earlier termination of this lease,
provided the Tenant has fully and faithfully carried out all of said
terms, covenants and conditions on Tenant's part to be performed. In the
event of a bona fide sale, subject to this lease, the Landlord shall have the
right upon written notice to Tenant, to transfer the security to the vendee for
the benefit of the Tenant and the Landlord shall be considered released by the
Tenant from all liability for the return of such security; and the Tenant agrees
to look- to the new Landlord solely for
the return of said security, and it is agreed that this 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 the Tenant without written consent of the Landlord. (Subject to
Landlord's review of Tenant's financials)
Arbitration
Twenty-third
- Any dispute arising under this
lease shall be settled by arbitration conducted by the American Arbitration
Association. Then Landlord and Tenant shall each choose an arbitrator, and the
two arbitrators thus chosen shall select a third arbitrator. The findings and
award of the three arbitrators thus chosen shall be final and binding on the
parties hereto.
Delivery of Lease / Terms and Conditions
Twenty-fourth -
No rights are to be conferred
upon the Tenant until this lease has been signed by the Landlord,
and an executed copy of the lease has been delivered to the Tenant. The terms
and conditions contained
herein and any other terms and conditions whether written or oral, expressed or
implied, are not binding on either party unless and until a lease agreement is
fully executed and exchanged by the parties thereto and do note create any
obligation by either party to continue negotiations or refrain front negotiating
with other parties. The Landlord reserves the right to modify or withdraw these
xxxxx at any time.
Lease
Provisions Not Exclusive
Twenty-fifth.-
The foregoing rights and remedies
are not intended to be exclusive but as additional to all rights, and remedies
the Landlord would otherwise have by law.
Lease
Binding on Heirs, Successors,
Etc.
Twenty-sixth
- All of the terms, covenants and
conditions of this lease shall inure to the benefit of and be binding upon the
respective heirs, executors, administrators, successors and assigns of the
parties hereto. However, in the event of the death of the Tenant, if an
individual, the Landlord may, at its option, terminate this lease by notifying
the executor
or administrator of the Tenant at the demised premises.
Twenty-seventh
- This lease and the obligation
of Tenant to pay rent hereunder and perform all of the other covenants and
agreements hereunder on part of Tenant to be performed shall in nowise be
affected, impaired or excused because 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 any repairs, additions, alterations or decorations
or is unable to supply or is delayed its supplying any equipment or fixtures if
Landlord is prevented or delayed from so doing by reason of governmental
preemption in connection with the National Emergency declared by the President
of the United States or in
connection with any rule, order or regulation of any department or
subdivision thereof of any governmental agency or by reason of the conditions of
supply and demand which have been or are affected by the war.
Building
Security/Access
Twenty-eighth
- Building business hours
Monday-Friday 8:00 a.m. to 6:00 p.m.; Saturday 8:00 a.m. to 1:00 p.m.; Sunday
Closed. Tenant shall be granted access to Premises 24 hours a day, 7 days
a week.
Insurance
Twenty-ninth - Insurance: During the term of
this Lease, the Tenant shall maintain public liability
insurance insuring the
interests of the Tenant and the Landlord as an additional party insured with
respect to claims in or about the Leased Premises and property in amounts of not
less than Two Million and 00/100 ($2,000,000.00) Dollars
combined single limit Bodily Injury and
Property Damage If the public liability insurance carrier
shall for any reason cancel any contract of insurance covering property, the
Tenant will immediately notify the Landlord
of such effect. Tenant shall furnish to Landlord a certificate of such
liability insurance and renewal certificates at written request of Landlord. It
is expressly understood and agreed that all policies of insurance shall contain
a clause that the same shall not be cancelled except on ten (10) days written
notice to any and all parties in interest, if such an endorsement is available.
In the event the rate of fire insurance carried by the Landlord shall be
increased because of any change ire occupancy or use of Leased Premises
by the Tenant then such increase in cost of fire insurance shall be paid by
Tenant to Landlord after notice and demand in writing within ten (10) days of
such notice. The Landlord shall maintain insurance coverage on the
structure.
I.S.R.A.
Thirtieth - I.S.R.A.: Tenant hereby represents and
warrants that above referenced lease area is to be used as general office space.
I.S.R.A. classification does not apply.
Escalation
of Operating Expenses
Thirty-first -
Tenant shall receive a base year
of 2008, Tenant shall be responsible for its proportionate share of escalations
in operating expenses and real estate taxes that exceed the base year amount.
Tenant shall NOT be responsible for any escalations during the first (1st)
twelve (12) months of occupancy. Any escalations shall contemplate a fully
assessed building with operating expenses adjusted to reflect 95% occupancy.
Tenant will be responsible for its pro rata share of increases in the Operating
Expenses and Real Estate Taxes above a 2008 Base Year.
Expansion
Thirty-second. -
Tenant shall have the Right of
First Offer on contiguous space currently and that becomes available in the
Building during the Lease Term.
Late
Fees
Thirty-third.-
LATE CHARGE: Anything in this
Lease to the contrary notwithstanding, at Landlord's option, Tenant shall pay a
"late charge" of five (5%) percent of any installment of rent or additional rent
paid more than ten (10) days after the due date thereof, to cover the extra
expense involved in handling delinquent payments.
Lease Renewal Option
Thirty-fourth.-
Provided that the Tenant is not
then in default, the Tenant shall have the right under the same terms and
conditions to renew, at Fair Market Value, all the space under lease for One (1)
consecutive Five (5) year term with nine (9) months prior written notification.
All other terms and conditions of the Lease shall remain
unchanged.
Delivery of Space
Thirty-fifth. -
Space shall be delivered vacuumed and debris free and in "As-Is"
condition.
Tenant Improvements
Thirty-sixth. -
Landlord will extend a Tenant Improvement allowance of 88.00 / RSF. The
following qualifications apply: (a) Computer cabling; cable splicing, outlets,
connectors and attachments to be performed by Tenant (b) Furniture and
furnishings not included (c) Telephone and communication equipment installation
t be performed by Tenant.
Brokerage
Thirty-seventh. -
Tenant represents that it has dealt solely with UGL Equise regarding this
leasing of 101 Roundhilt, Rockaway NJ. UGL Equis shall be recognized as the only
brokerage company involved with this transaction, and shall be paid a market
rate commission by the Landlord pursuant to the terms of a separate written
contract.
IN
WITNESS WHEREOF, the said Parties have hereunto set
their hands and seals the day and year first above written.
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Witness:
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Emerald
Holdings Group, LLC
Landlord
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Amber
Alert
Tenant
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