EXHIBIT 10.1
AGREEMENT OF LEASE
between
XXXXXX AT WALL 4, LLC
Landlord
and
VELOCITY ASSET MANAGEMENT, INC.
Tenant
Premises:
Approximately 2,450 Square Feet
in Building #4 located at
0000 Xxxxx 00, Xxxx Xxxxxxxx, Xxx Xxxxxx,
said building being designated as Block 945, Lot 16.04
on the Tax Map of the Township of Wall
Date: May 2, 2007
TABLE OF CONTENTS
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Article Page
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ARTICLE 1 DEMISE OF PREMISES
Section 1.1 Demise
Section 1.2 Common Areas
ARTICLE 2 TERM
Section 2.1 Initial Term
Section 2.2 Renewal Periods
Section 2.3 Lease Year
ARTICLE 3 RENT
Section 3.1 Rent
Section 3.2 Fixed Rent
Section 3.3 Tenant's Tax Rent
Section 3.4 Tenant's Operating Expense Increase
Section 3.5 Corrected Statements
Section 3.6 Intentionally Omitted
Section 3.7 Late Charge
Section 3.8 Security
ARTICLE 4 INITIAL CONSTRUCTION
Section 4.1 Landlord's Work
Section 4.2 Acceptance of Demised Premises
ARTICLE 5 USE
Section 5.1 Permitted Use
Section 5.2 Prohibited Uses
Section 5.3 [Reserved]
Section 5.4 Rules and Regulations
ARTICLE 6 ASSIGNMENT/SUBLETTING
Section 6.1 Consent Required
Section 6.2 Continuation of Liability
Section 6.3 [Reserved]
Section 6.4 Default after Transfer
Section 6.5 Recapture
Section 6.6 Excess Consideration
ARTICLE 7 REPAIRS AND MAINTENANCE
Section 7.1 Tenant's Obligations
Section 7.2 Landlord's Obligations
ARTICLE 8 COMPLIANCE WITH LAW
Section 8.1 Legal Requirements
Section 8.2 Hazardous Materials
Section 8.3 ISRA
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ARTICLE 9 UTILITIES
ARTICLE 10 ALTERATIONS
ARTICLE 11 INSURANCE
Section 11.1 Tenant's Coverages
Section 11.2 Failure to Maintain
Section 11.3 Landlord's Coverages
Section 11.4 Intentionally Omitted
Section 11.5 Policies Generally
Section 11.6 Waiver of Subrogation
ARTICLE 12 DAMAGE AND DESTRUCTION
Section 12.1 Notice
Section 12.2 Termination
Section 12.3 Restoration by Landlord
Section 12.4 Restoration by Tenant
Section 12.5 Effect on Lease
ARTICLE 13 EMINENT DOMAIN
Section 13.1 Taking
Section 13.2 Termination
Section 13.3 Restoration by Landlord
Section 13.4 Restoration by Tenant
Section 13.5 Effect on Lease
Section 13.6 Award
ARTICLE 14 LANDLORD'S COVENANTS
ARTICLE 15 DEFAULT; REMEDIES AND DAMAGES
Section 15.1 Event of Default
Section 15.2 Remedies
Section 15,3 Waivers
Section 15.4 [INTENTIONALLY OMITTED]
ARTICLE 16 UNAVOIDABLE DELAYS, FORCE MAJEURE
ARTICLE 17 NOTICES
ARTICLE 18 ACCESS
ARTICLE 19 [RESERVED]
ARTICLE 20 END OF TERM
Section 20.1 Surrender
Section 20.1 Survival
Section 20.3 Vacant Possession
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ARTICLE 21 HOLDING OVER
ARTICLE 22 INDEMNITY
Section 22.1 Indemnity
Section 22.2 Defense
ARTICLE 23 SUBORDINATION
Section 23.1 Fee Mortgage
Section 23.2 Subordination
Section 23.3 Attornment
Section 23.4 Non-Disturbance
ARTICLE 24 CERTIFICATES
ARTICLE 25 MISCELLANEOUS
Section 25.1 No Waiver
Section 25.2 Relationship of Parties
Section 25.3 Recording
Section 25.4 Captions
Section 25.5 Applicable Law
Section 25.6 Mechanics Liens
Section 25.7 Brokerage
Section 25.8 Limitation of Landlord's Liability
Section 25.9 Attorneys' Fees
Section 25.10 Waiver of Trial by Jury
Section 25.11 Interest Rate
Section 25.12 Excavations on Adjoining Property
Section 25.13 Non-Binding Until Executed
Section 25.14 No Claim for Damages
Section 25.15 Independent Covenants
Section 25.16 Interpretation
Section 25.17 Entire Agreement
Section 25.18 Binding Effect
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INDEX OF FREQUENTLY USED TERMS
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Section
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Additional Rent 3.1
Building(s) Prelim. State. A
Commencement Date 2.1
Common Areas 1.2(a)
Common Area Expense 3.4(c)
Demised Premises Prelim. State. B.
Event of Default 15.1
Expiration Date 2.1
Fee Mortgage 23.1
Fee Mortgagee 23.1
Fixed Rent 3.2(a)
Governmental Authorities 8.1
Hazardous Materials 8.2(b)
Interest Rate 25.11
Lease Term 2.1
Lease Year 2.1
Legal Requirements 8.1
Property Prelim. State. A
Real Estate Taxes 3.3(b)
Rent 3.1
Taking 13.1(a)
Tenant's Fraction 3.3(a)
Tenant's Work 4.3(a)
Unavoidable Delays 16.1
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THIS LEASE made and entered into as of this _____day of April, 2007, by and
between XXXXXX AT WALL 4, LLC, a New Jersey limited liability company having its
principal office at 00 Xxxxxxx Xxx, Xxxxxxxxx, Xxx Xxxxxx 00000 ("Landlord") and
VELOCITY ASSET MANAGEMENT, INC., a corporation of the state of Delaware, having
an address of 0000 Xxxxx 000 Xxxx, Xxxx, Xxx Xxxxxx 00000 ("Tenant").
W I T N E S S E T H:
- - - - - - - - - -
Preliminary Statement
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A. Landlord is the owner of that certain parcel of real property
more particularly described on Exhibit A annexed hereto (the
"Property"). Landlord has constructed a single story flex
building of approximately 51,500 square feet (the "Building")
and made other improvements on the Property (the Property, the
Buildings, the "Common Areas" (hereinafter defined) and other
improvements on the Property are herein collectively called
the "Project").
B. Tenant desires to lease a portion of the Building consisting
of 2,450 rentable square feet, which amount includes an add-on
factor of 10.66% and shall only be used for general offices.
The parties agree that within ten (10) business days of the
Commencement Date, the Demised Premises will be re-measured
utilizing current BOMA standards. The portion of the Building
which Tenant desires to lease is shown on the crosshatched
area on the sketch annexed hereto as Exhibit B, such portion
herein called the "Demised Premises"), and Landlord desires to
lease the Demised Premises to Tenant upon and subject to the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the terms, covenants and conditions
herein set forth, Landlord and Tenant hereby covenant and agree as follows:
ARTICLE 1 DEMISE OF PREMISES
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Section 1.1 Demise. Landlord hereby leases the Demised Premises to
Tenant, and Tenant hereby takes the Demised Premises from Landlord, subject to
all liens, encumbrances, easements, restrictions, covenants, zoning laws and
regulations affecting and governing the Demised Premises, none of which shall
adversely impact Tenant's ability to use the Demised Premises for its permitted
uses, and together with the nonexclusive right to use the Common Areas in common
with other tenants and occupants of the Project for the term hereinafter
provided. Included in the Demised Premises shall be the non-exclusive right of
Tenant to use up to six (6) parking spaces per 1,000 square feet.
Section 1.2 Common Areas.
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(a) The term "Common Areas" shall include, those portions of
the Project which are available from time to time for common use by any and all
of the owners, tenants or users of land and/or buildings within the Project and
the business invitees of such owners, tenants or users, including, without
limitation, the parking areas, lanes, drives and driveways, entrances, all means
of ingress and/or egress, curb cuts, roadways, passageways, sidewalks,
landscaped areas, lighting facilities and equipment located in the Project.
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(b) Landlord may, at any time and from time to time,
increase, reduce or change the Common Areas, or any portion thereof, and/or
erect additional buildings thereon and Tenant shall not be entitled to any
compensation as a result thereof, nor shall same be deemed an actual or
constructive eviction.
(c) Landlord may temporarily close any part of the Common
Areas for such time as may be required to prevent a dedication thereof or an
accrual of any rights in any person or in the public generally therein, or when
necessary for the maintenance or repair thereof, or for such other reason as
Landlord in its judgment may deem necessary or advisable.
ARTICLE 2 TERM
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Section 2.1 Initial Term. Tenant shall have and hold the Demised
Premises, together with any and all appurtenances thereto, and the easements,
rights and privileges herein granted to Tenant, for and during the term of this
Lease ("Lease Term"). The Lease Term shall commence upon: (a) the Substantial
Completion of the Landlord's Work identified on Exhibit C; and (b) the issuance
of a Certificate of Occupancy (temporary or final) (the "Commencement Date").
Unless sooner terminated or extended as provided elsewhere in this Lease, shall
end on the last day of the Fifth (5th) Lease Year (the "Expiration Date"). It is
anticipated that the Commencement Date will be July 1, 2007 or sixty (60) days
after receipt of a building permit by Landlord. However, in the event the
Demised Premises are not ready for Tenant's occupancy by that date, the same
shall not be considered a default and the Commencement Date will be delayed
until substantial completion of Landlord's Work and issuance of a Certificate of
Occupancy (temporary or final), ("Substantial Completion"). However, Tenant
shall have the right to terminate this Lease if Substantial Completion is not
achieved by sixty (60) days from the anticipated Commencement Date. The outside
date for Substantial Completion of sixty (60) days from the anticipated
Commencement Date is conditioned upon Tenant approving the Demising Plan (to be
attached as Exhibit B) and the identification of Landlord's Work (attached as
Exhibit C) no later than April 30, 2007. In the event such items are not
approved by April 30, 2007, then the outside date shall be extended on a
day-for-day basis.
Section 2.2 Renewal Period. Provided no Event of Default shall have
occurred and be continuing on the date Tenant gives Landlord notice of Tenant's
election to extend the Lease Term for the applicable renewal period, Tenant
shall have two (2) option(s) to extend the Lease Term for a period of five (5)
years commencing at the expiration of the initial Lease Term. In the event that
Tenant shall desire to extend the Lease Term for the renewal period herein
granted, Tenant shall advise Landlord by notice no later than six (6) months
prior to the expiration of the then current Lease Term. Time is of the essence
with respect to the giving of a renewal notice. If Tenant shall fail to deliver
notice of Tenant's election to extend the Lease Term for the next succeeding
renewal period by the date set forth herein, Tenant's right to do so shall be
deemed waived and of no further force and effect, regardless of whether Landlord
shall have taken any action in reliance upon the fact that the notice was not
given. If Tenant exercises said renewal option, the Lease Term shall be
automatically extended for the renewal period covered by such renewal option
upon the same terms and conditions as are in effect immediately preceding the
commencement of such renewal period, except that (x) Tenant shall not have any
further option to extend the Lease Term beyond the expiration of the renewal
period, and (y) "Fixed Rent" shall be at ninety-five (95%) of fair market value,
but not less than the prior year's Fixed Rent, and without execution of any
extension or renewal lease. Any cancellation or termination of this Lease shall
terminate any option to extend or renew the Lease Term pursuant hereto.
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Section 2.3 Lease Year. As used herein, the term Lease Year shall
mean each successive period of twelve (12) consecutive calendar months,
commencing on the first day of the month following the month in which the
Commencement Date falls. The first Lease Year shall include the period from the
Commencement Date through the first day of the following month.
ARTICLE 3 RENT
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Section 3.1 Rent. From July 1, 2007 and throughout the Lease Term,
Tenant shall pay to Landlord the sums set forth in this Article as rent or
additional rent, without prior demand therefor and without deduction or setoff
therefrom. The term "Rent" shall be deemed to include Fixed Rent and all
additional sums payable by Tenant to Landlord pursuant to this Lease
("Additional Rent"). All payments of Rent shall be paid to or on behalf of
Landlord in lawful money of the United States which shall be legal tender for
payment of public and private debts, without demand or notice and without any
abatement, deduction or setoff whatsoever, except as otherwise expressly
provided in this Lease. Except as expressly and specifically provided to the
contrary elsewhere in this Lease, no abatement, diminution or reduction of Rent
shall be claimed by or allowed to Tenant, or any persons claiming under it,
under any circumstances, whether for inconvenience, discomfort, interruption of
business, or otherwise, arising from the making of alterations, changes,
additions, improvements or repairs to the Demised Premises, the Buildings or the
Common Areas; by virtue or because of any present or future Legal Requirements;
by virtue or arising from, and during, the restoration of the Demised Premises,
the Buildings or the Common Areas after the destruction or damage thereof by
fire or other casualty or the taking or condemnation of a portion thereof; or
arising from any other cause or reason. This Lease shall not be affected by any
laws, ordinances or regulations, whether federal, state, county, city, municipal
or otherwise, which may be enacted or become effective from and after the date
of this Lease affecting or regulating or attempting to affect or regulate the
Rent herein reserved. All payments of Rent shall be delivered to Landlord at the
address set forth in this Lease for notices, or to any other place designated by
Landlord. Provided, however, Landlord has agreed to provide Tenant with a one
(1) month rent concession. Accordingly, payment of rent shall commence on August
1, 2007.
Section 3.2 Fixed Rent.
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(a) Tenant shall pay to Landlord as rental for the Demised
Premises, an annual rent (the "Fixed Rent") of:
Total Total
Rent Annual Monthly
Lease Years psf Fixed Rent Fixed Rent
---------------------------------------------------------------------
1-5 $17.75 psf/nnn $43,487.50 $3,623.96
(b) Fixed Rent shall be paid in equal monthly installments in
advance on or before the first day of each month during the Lease Term. If the
Commencement Date is not the first day of a calendar month, Fixed Rent for the
period from the Commencement Date to the last day of the month in which the
Commencement Date occurs shall be apportioned on the basis of a 30 day month and
paid on the first day of the month following the Commencement Date, together
with the first full monthly installment of Fixed Rent. Simultaneous with the
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execution of this Lease, Tenant shall pay to Landlord Fixed Rent, together with
the estimated payments set forth in Section 3.5, below, for the first month of
the Lease Term.
(c) As used herein, the "Commencement Date" shall have the
meaning set forth in Section 2.1, above.
(d) Upon the determination of the Commencement Date, Landlord
and Tenant shall execute, acknowledge and exchange duplicate originals of a
recordable agreement setting forth the Commencement Date and the Expiration Date
of the initial Lease Term and each renewal period.
Section 3.3 Tenant's Tax Rent.
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(a) Commencing on the Commencement Date and throughout the
Lease Term, Tenant shall pay to Landlord, as Additional Rent, a portion of all
"Real Estate Taxes" affecting and imposed upon the Project which accrue during
the Lease Term, as hereinafter provided ("Tenant's Tax Rent"). Tenant's Tax Rent
shall be equal to the product of (x) the Real Estate Taxes assessed against the
Project, and (y) a fraction, the numerator of which shall be the number of
square feet of the Demised Premises, and the denominator of which shall be the
number square feet of the Building of which the Demised Premises are a part
(such fraction herein called "Tenant's Fraction").
(b) (i) The term "Real Estate Taxes" shall mean all ad
valorem real estate taxes and general, special and betterment assessments,
ordinary and extraordinary, foreseen and unforeseen, which are imposed by
Governmental Authorities and assessed against the Demised Premises, or any
portion thereof, the Improvements thereon, or any portion thereof, or against
Landlord as owner of the Demised Premises including, without limitation, taxes,
fees and charges imposed in respect of the ownership, operation, management,
use, leasing or alteration of the Demised Premises, or any portion thereof; the
various estates in and to the Demised Premises, or any portion thereof; the Rent
payable to Landlord pursuant to this Lease; taxes on all water and sewer
charges; and any taxes, fees and charges imposed in lieu of or in addition to
the foregoing due to a future change in the method of taxation.
(ii) Nothing contained in this Lease shall require
Tenant to pay any estate, inheritance, succession, corporate franchise or income
tax of Landlord, nor shall any of same be deemed Real Estate Taxes, except to
the extent same are substituted in lieu of Real Estate Taxes.
(c) Tenant's Tax Rent shall be paid in accordance with the
following:
(i) Tenant shall pay Tenant's Tax Rent to Landlord in
equal monthly installments, together with and in the manner prescribed for the
payment of Fixed Rent, in an amount reasonably estimated by Landlord to be equal
to 1/12th of Tenant's Tax Rent for the current or ensuing real estate fiscal tax
year, as the case may be.
(ii) Landlord shall, after the end of each calendar
year, furnish to Tenant a statement (which statement shall include a copy of the
relevant Real Estate Tax xxxx or bills) of the actual amount of Tenant's Tax
Rent for the preceding calendar year. If the amount paid by Tenant hereunder is
less than the actual amount of Tenant's Tax Rent for said calendar year, Tenant
shall, within ten (10) days after receipt of Landlord's statement, pay to
Landlord the deficiency. If the amount paid by Tenant hereunder exceeds the
actual amount of Tenant's Tax Rent for said calendar year, such excess shall be
credited against the next monthly installment or installments of Tenant's Tax
9
Rent due from Tenant to Landlord hereunder, or shall be refunded or credited to
Tenant if such excess relates to the calendar year in which the Lease Term
expires. Thereafter, the estimated Tax Rent shall be adjusted accordingly.
(d) Any Real Estate Taxes for a real estate fiscal tax year
only a part of which is included within the Lease Term, shall be adjusted
between Landlord and Tenant on the basis of a 365 day year as of the
Commencement Date or the Expiration Date or sooner termination of the Lease
Term, as the case may be, for the purpose of computing Tenant's Tax Rent.
(e) (i) Landlord may elect to contest the amount or
validity of assessed valuation or Real Estate Taxes for any real estate fiscal
tax year. Landlord shall pay the cost of appeal and include the cost as part of
Common Area Expenses only if the appeal results in a reduction of taxes. If
after Tenant shall have made a payment of Tenant's Tax Rent, Landlord shall
receive a refund of any portion of the Real Estate Taxes on which such payment
shall have been based, then Landlord shall, after deducting all expenses paid by
Landlord, if any, incurred in obtaining such refund, apply Tenant's Fraction of
such net refund against the next installment or installments of Tenant's Tax
Rent to be paid by Tenant, or shall refund such amount to Tenant is such refund
related to the calendar year in which the Lease Term expires.
(ii) Tenant shall cooperate with Landlord, execute any
and all documents required in connection therewith and, if required by Legal
Requirements, shall join with Landlord in the prosecution thereof.
(f) In addition to Tenant's Tax Rent, Tenant shall pay,
before delinquent, any and all taxes and assessments levied specifically against
Tenant's fixtures, equipment, signs and personal property located or installed
in, about or upon the Demised Premises; any rent, income or other payments
received by Tenant or anyone claiming by, through or under Tenant; the use or
occupancy of the Demised Premises; and this transaction, or any document to
which Tenant is a party creating or transferring an interest or estate in the
Demised Premises.
Section 3.4 Tenant's Common Area Payment.
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(a) Commencing on the Commencement Date, Tenant shall pay to
Landlord, as Additional Rent, "Tenant's Common Area Payment". "Tenant's Common
Area payment" shall be equal to the product of (x) "Common Area Expenses", and
(y) Tenant's Fraction.
(b) (i) Tenant's Common Area Payment shall be paid to
Landlord in equal monthly installments, together with and in the manner
prescribed for the payment of Fixed Rent. Prior to delivery of Landlord's first
statement of Common Area Expense hereunder, Tenant's Common Area Payment shall
be included in the payments set forth in Section 3.5, below.
(ii) After the end of each calendar year, Landlord
shall furnish to Tenant a statement of "Common Area Expense" for such calendar
year. Within fifteen (15) days after receipt of Landlord's statement, Tenant,
shall pay to Landlord any deficiency between the amount of Tenant's Common Area
Payment as paid during such calendar year and the amount thereof as shown on
Landlord's statement. If the amount paid by Tenant hereunder exceeds the actual
amount of Tenant's Common Area Payment for said calendar year, such excess shall
be credited against the next monthly installment or installments of Tenant's
Common Area Payment due from Tenant to Landlord hereunder, or shall be refunded
to Tenant if such excess relates to the calendar year in which the Lease Term
expires. After receipt of Landlord's statement, Tenant's Common Area Payment
shall be paid based on Landlord's estimate of Common Area Expense anticipated
during the then current calendar year, and Tenant shall, without demand, pay to
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Landlord 1/12th of the amount thereof, in advance, on or before the first day of
each calendar month until the next statement of Common Area Expense is received
from Landlord.
(c) The term "Common Area Expense" shall mean all amounts
paid or incurred by Landlord to operate, maintain and repair the Common Areas,
including, without limitation, cleaning; snow removal and treatment of ice;
maintaining, repairing, repaving and restriping the parking area; replanting and
replacing landscaping; maintaining, repairing and replacing common utility
lines; water and sewerage charges; maintaining, repairing and replacing the
roof, gutters and downspouts of the Buildings; maintaining, repairing or
replacing the HVAC of the Buildings; electricity charges; premiums for insurance
policies Landlord is required to maintain pursuant to Section 11.2; wages,
salaries and worker's compensation (including employee benefits and unemployment
and social security taxes and insurance) of staff performing services in
connection with the Common Areas; management fees for supervision, management
and operation of the Project; security services; traffic control; rental or
depreciation on equipment used in connection with operation and maintenance of
the Common Areas; the cost of compliance with and/or contesting Legal
Requirements relating to the Common Areas; license and permit fees; personal
property, sales, service and/or use taxes on material, equipment, supplies and
services; and other similar direct costs chargeable to the operation and
maintenance of the Common Areas. Any and all charges which are paid to Landlord
or an affiliate of Landlord shall only be included in the calculation of the
Common Area Expense to the extent same are reasonable, customary and are similar
to charges incurred by other similarly situated properties in the area.
Accordingly, to the extent any fees paid directly to Landlord or Landlord's
affiliates exceeds such standards, such excess shall not be included in the
calculation of Common Area Expense.
The term "Common Area Expense" shall also include items which are
capital in nature. Provided, however, for purposes of determining the Common
Area Expense in any given Lease Year, Landlord shall amortize such capital items
over the useful life of same (on a straight line basis in accordance with
generally accepted accounting principals, but not more than ten (10) years).
Notwithstanding the above, the following items shall be excluded from Common
Area Expense:
1. Cost of decorating, redecorating, cleaning or other services
not provided on a regular basis to the tenants of the Project;
2. Wages, salaries, fees and fringe benefits paid to
administrative or executive personnel or officers or partners
of Landlord, unless employed at reasonable rates as
independent contractors at the building or Project;
3. All cost relating to activities for the solicitation,
negotiation and execution of leases of space in the Project;
4. Cost of any repair made by Landlord because of the total or
partial destruction of the Building or the condemnation of a
portion of the Building;
5. Any insurance premium for which Landlord is reimbursed by
Tenant, pursuant to this Lease, or by any other tenant of the
Project;
6. Depreciation, interest on any mortgage loan or rents paid
pursuant to any ground lease or incurred by Landlord;
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7. Any charge to Landlord for income taxes, franchise taxes or
similar taxes;
8. Collection costs for bad debt expenses not related to Tenant;
9. Cost of tenant improvements;
10. Legal, accounting, bank or other fees incurred in connection
with any equity or debt financing or sale of the Building or
Project;
11. Costs of specialized services provided to other tenants but
not provided to tenants generally;
12. Cost to comply with ADA related to the interior of the
individual buildings, but not exterior doors or the Project;
and
13. Electric (other than for common areas or that which is billed
directly to Tenant).
Section 3.5 Initial Year Tax Rent and Common Area Payment.
The parties acknowledge that it is very difficult to estimate the initial year's
Real Estate Taxes and Common Area Expenses. Therefore, the parties are unable to
estimate the Tenant's Tax Rent and Tenant's Common Area Payment for the initial
lease year. Accordingly, the parties have agreed that the Tenant shall pay
Landlord the estimated amount of Four and 00/100 ($4.00) Dollars per square foot
as a combined estimated payment for the Tenant's Tax Rent and Tenant's Common
Area Payment for the first lease year. After the first Lease Year, the Tax Rent
and Common Area Payment shall be reconciled and going forward Tenant shall pay
to Landlord Tenant's Tax Rent and Tenant's Common Area Payment in accordance
with the provisions of Section 3.3 and Section 3.4, above, respectively.
Landlord agrees that increases over the combined estimated payment for the
Tenant's Tax Rent and Tenant's Common Area Payment shall be capped at 10% per
annum over the prior year's estimated payments during the initial lease term as
well as any renewals or expansions.
Section 3.6 Net Lease.
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(a) The Fixed Rent and Additional Rent shall be absolutely
net to Landlord without any abatement, deduction, counterclaim, setoff or offset
whatsoever and Landlord shall not be required to provide any services or do any
act in connection with the Demised Premises, except as specifically provided in
this Lease. Tenant's obligation to pay Additional Rent shall survive the
Expiration Date.
(b) Except as expressly and specifically provided to the
contrary elsewhere in this Lease, no abatement, diminution or reduction of Rent
shall be claimed by or allowed to Tenant, or any persons claiming under it,
under any circumstances, whether for inconvenience, discomfort, interruption of
business, or otherwise, arising from the making of alterations, changes,
additions, improvements or repairs to the Demised Premises, the Buildings or the
Common Areas; by virtue or because of any present or future Legal Requirements;
by virtue or arising from, and during, the restoration of the Demised Premises,
the Buildings or the Common Areas after the destruction or damage thereof by
fire or other casualty or the taking or condemnation of a portion thereof; or
arising from any other cause or reason.
(c) It is expressly understood and agreed by and between the
parties that this Lease is a triple net lease and, except as specifically
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provided herein, Landlord is not obligated to expend any funds in connection
with the Demised Premises.
(d) This Lease shall not be affected by any laws, ordinances
or regulations, whether federal, state, county, city, municipal or otherwise,
which may be enacted or become effective from and after the date of this Lease
affecting or regulating or attempting to affect or regulate the Rent herein
reserved.
Section 3.7 Late Charge/Default Rate of Interest. In the event any
installment of Fixed Rent is not paid to Landlord within ten (10) days after its
due date or, in the case of any payment of Additional Rent, within ten (10) days
after written notice thereof from Landlord to Tenant that said Additional Rent
has not been received by Landlord when due, a late charge equal to five (5%)
percent of the then late payment ("Late Charge") shall be automatically due from
Tenant to Landlord. Any payment which is not made within thirty (30) days of its
due date shall accrue interest at the Interest Rate, which term is defined
below.
Section 3.8 Security. Tenant has, simultaneously with the execution
hereof, deposited with Landlord the sum of $3,624.00 as security for the
faithful performance and observance by Tenant of the terms, covenants,
conditions and provisions of this Lease on Tenant's part to be performed. In the
event of an "Event of Default" hereunder, Landlord may draw up to the full
amount of said deposit, in one or multiple draws, to the extent required for the
payment of any Rent or any other sum as to which Tenant is in default or for any
other sum which Landlord may expend or may be required to expend by reason of
Tenant's default. In the event Landlord applies or retains any portion or all of
the security deposit delivered hereunder, Tenant shall forthwith restore the
amount so applied or retained so that at all times the amount deposited shall be
not less than the security deposit required pursuant to the first sentence of
this Section 3.8. In the event Tenant shall fully and faithfully comply with all
of the terms, covenants, conditions and provisions of this Lease on Tenant's
part to be performed, Landlord shall, within thirty (30) days after the later of
the date of expiration of the Lease Term or the date of surrender of possession
of the Demised Premises to Landlord in accordance with this Lease, return said
security deposit, or such portion thereof as shall then remain, to Tenant.
ARTICLE 4 INITIAL CONSTRUCTION
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Section 4.1 Landlord's Work. The Landlord shall, at its own cost and
expense, provide all necessary labor and materials and perform all the work
required for construction of the Demised Premises ("Tenant Improvements"). The
Landlord shall supervise and direct the work on the Tenant Improvements using
Landlord's best skill and attention, and Landlord shall be solely responsible
for all construction means, methods, techniques, sequences and procedures and
for coordinating all portions of the work on the Tenant Improvements. Landlord
warrants to the Tenant that all materials and equipment incorporated in the
Tenant Improvements will be new unless otherwise specified, and that all work on
the Tenant Improvements will be of good quality, free from known faults and
defects, and in substantial conformity with the Plans.
Section 4.2 (a) Landlord shall complete the construction of the
Leased Premises in a good and workmanlike manner and in substantial accordance
with plans and specifications ("Plans") to be prepared by Landlord and approved
by Tenant. A complete set of the agreed upon Plans shall be initialed by and
distributed to Landlord and Tenant.
13
(b) The Plans shall not be changed or altered in any
way except by change order approved in writing by Landlord and Tenant ("Change
Order"). All Change Orders shall be valid and binding upon Landlord and Tenant
only if authorized by written Change Order signed prior to commencement of the
work on the Tenant Improvements reflected thereby. The Landlord shall have the
right to substitute for the materials and equipment required by the Plans,
materials and equipment of equal quality and standard, provided said
substitutions conform with applicable building codes and are the subject of a
Change Order. Each and every Change Order shall state whether the change will
entail a delay in the date of Substantial Completion.
Section 4.3 The Landlord shall obtain and pay for the construction
permits and for all other permits and governmental fees, licenses and
inspections necessary for the proper execution and completion of the Tenant
Improvements. Landlord shall not, however, be responsible for securing any
environmental or operating permits or certifications which are required in order
for Tenant to actually conduct its business.
Section 4.4 The Tenant Improvements shall be commenced upon approval
by governmental entities having jurisdiction therefor and, subject to authorized
adjustments, Substantial Completion shall be achieved on or about the date set
forth in Section 2.1 for the anticipated Commencement Date, notwithstanding that
minor details, adjustments or punch list items which shall not materially impair
Tenant's use and enjoyment of the Leased Premises may not have been finally
completed. Landlord shall notify Tenant approximately five (5) days prior to the
date Landlord expects Substantial Completion to occur. Prior to the date on
which Landlord expects to achieve Substantial Completion, Landlord and Tenant
shall jointly inspect the construction and jointly develop a mutually agreeable
list of those items which are not, as of the date of the joint inspection,
completed and which may be completed either prior to, or immediately subsequent
to, the date of Substantial Completion ("Punch List Work"). Tenant shall have
until the 30th business day after Substantial Completion to amend the list of
work comprising the Punch List Work. Tenant shall allow Landlord and its
contractors to enter the Leased Premises at agreed upon times, during normal
working hours to complete the Punch List Work. Landlord shall diligently pursue
and complete the Punch List Work, including amendments thereto, within thirty
(30) days of delivery by Tenant (subject to delays for availability of materials
and weather permitting).
Section 4.5 In the event Landlord obtains a temporary CO it shall
promptly take all necessary steps to comply with the conditions thereof, weather
and availability of materials permitting, so as to obtain a permanent CO within
120 days.
Section 4.6 Tenant shall be permitted access to the Demised Premises
prior to Substantial Completion for the purpose of installing its telephones and
office furnishings. Tenant shall coordinate the installation with Landlord, and
shall undertake reasonable business efforts to assure that the telephones and
office furnishings are installed in a manner which does not unreasonably
interfere with Landlord's construction efforts and does not cause any damage to
any of the existing built out spaces, which damage Tenant shall be obligated to
repair if it occurs. Such work shall be covered by the indemnification
provisions hereof. Before commencing such work Tenant shall provide Landlord
with certificates of insurance satisfactory to Landlord.
ARTICLE 5 USE
-------------
Section 5.1 Permitted Use. The Demised Premises shall, at all times
during the Lease Term (except during Temporary Closings) may only be used for
general offices and for no other use or purpose.
14
Section 5.2 Prohibited Uses .With regard to the Permitted Use, Tenant
acknowledges that the Fixed Rent specifically takes into account the intended
use of the Premises. Therefore, Tenant may not use any area for any purpose
other than the Permitted Use identified herein.
Section 5.3 [Reserved]
----------- ----------
Section 5.4 Rules and Regulations . In its use of the Demised
Premises and Common Areas, Tenant shall comply with, and cause its employees,
contractors, subtenants, licensees and business invitees to comply with, the
rules and regulations annexed hereto as Exhibit D.
ARTICLE 6 ASSIGNMENT/SUBLETTING
-------------------------------
Section 6.1 Consent Required. Tenant shall not, without the prior
written consent of Landlord in each instance, which consent shall not be
unreasonably withheld, assign its rights or delegate its duties under this Lease
(whether by operation of law, transfers of interests in Tenant or otherwise),
mortgage or encumber its interest in this Lease, in whole or in part; sublet, or
permit the subletting of the Demised Premises or any part thereof; or permit the
Demised Premises or any part thereof to be occupied or used by any person other
than Tenant, except in the case of a "Permitted Sublease" or "Permitted
Assignment". For purposes of this Lease, the following shall be considered a
Permitted Sublease and/or Permitted Assignment, as the case may be, shall be a
sublease or assignment to any controlling entity of Tenant, including through
merger, consolidation or the sale of all of the assets and stock. In the case of
a Permitted Sublease or Permitted Assignment, Tenant shall not be required to
obtain Landlord's consent but shall only be required to provide written notice
of the same at least twenty (20) business days prior to such occurrence,
provided Tenant provides proof to Landlord that the permitted sublessee or
permitted assignee shall have a net worth equal to or greater than that of
Tenant and a financial strength equal to or better than Tenant at the time of
such assignment or sublet. Further, Landlord agrees it shall not unreasonably
withhold its delay or consent to Tenant's request to sublet the Demised Premises
to a third party of equal or greater financial creditworthiness, provided the
proposed use of the subtenant is a Permitted Use and that such proposed
subtenant's occupancy is in keeping with the character of the office/industrial
park in which the Project is located. Any sublet or assignment to third parties
shall be specifically governed in accordance with the remainder of this Article
6.
Section 6.2 Continuation of Liability. If this Lease shall be
assigned or transferred in any manner whatsoever, such assignment or transfer
shall be upon and subject to all of the terms, covenants, provisions and
conditions contained in this Lease and, notwithstanding any consent by Landlord
to any such assignment or transfer or any subletting by Tenant, Tenant shall
continue to be and remain liable hereunder.
Section 6.3 [Reserved]
----------- ----------
Section 6.4 Default after Transfer. If this Lease be assigned, or if
the Demised Premises or any part thereof be sublet or occupied by anybody other
than Tenant, Landlord may, after default by Tenant, collect rent from the
assignee, subtenant or occupant, and apply the net amount collected to the Rent
herein reserved, but no such assignment, subletting, occupancy or collection
15
shall be deemed an acceptance of the assignee, subtenant or occupant as tenant,
or a release of Tenant from the further performance by Tenant of the terms,
covenants and conditions of this Lease on the part of Tenant to be performed.
Any violation of any provision of this Lease, whether by act or omission, by any
assignee, subtenant or similar occupant, shall be deemed a violation of such
provision by Tenant, it being the intention and meaning of the parties hereto
that Tenant shall assume and be liable to the Landlord for any and all acts and
omissions of any and all assignees, subtenants and similar occupants.
Section 6.5 Recapture. If Tenant shall desire to assign this Lease,
or to sublet the whole or more than fifty (50%) percent of the Demised Premises,
except in the case of a Permitted Sublease and/or Permitted Assignment, Tenant
shall submit to Landlord a written request ("Tenant's Request") for Landlord's
consent to such assignment or subletting. Tenant's Request shall include the
name and address of the proposed assignee or subtenant, the proposed use of the
Demised Premises, any other documentation reasonably required by Landlord.
Landlord shall then have the right, within fifteen (15) days after Landlord's
receipt of Tenant's Request, to (x) consent to the proposed assignment or
subletting, (y) reasonably deny its consent to the proposed assignment or
subletting, or (z) terminate this Lease by giving Tenant notice of Landlord's
election hereunder ("Recapture Notice"). In the event Landlord fails to respond
to Tenant's Request, within fifteen (15) days after Landlord's receipt of same,
Tenant may send a second notice ("Second Notice") which provides that in the
event Landlord does not timely respond within five (5) additional days from the
Second Notice, the original Tenant's Request shall be considered approved. If
Landlord gives a Recapture Notice, this Lease shall terminate (in whole if
Tenant's Request is for an assignment of this Lease or subleasing of all or
substantially all of the Demised Premises, or with respect to that part of the
Demised Premises which is the subject of a subletting if Tenant's Request is for
a subletting of less than substantially all of the Demised Premises) (that
portion, whether the whole or a part, of the Demised Premises which is the
subject of Tenant's Request is hereinafter referred to as the "Subject Portion")
on the date which is thirty (30) days after the date of Landlord's Recapture
Notice (the "Surrender Date"). Tenant shall vacate the Subject Portion on or
before the Surrender Date in the condition required by this Lease. Effective as
of the Surrender Date, neither Landlord nor Tenant shall have any further
obligations under this Lease with respect to the Subject Portion, except for
those accruing prior to the Surrender Date. Effective as of the Surrender Date,
Fixed Rent shall be reduced to and be equal to the product of (x) Fixed Rent
which would have been payable otherwise under this Lease, and (y) a fraction,
the numerator of which shall be the number of square feet of floor area of the
Demised Premises less the Subject Portion, and the denominator of which shall be
the number of square feet of floor area of the Demised Premises prior to the
Surrender Date. If the Subject Portion is less than all or substantially all of
the Premises, Landlord and Tenant shall execute, acknowledge and exchange joint
easements necessary for the continued operation of the Demised Premises as
independent store premises.
Section 6.6 Excess Consideration. If Tenant subleases all or a part
of the Demised Premises at a rental per square foot in excess of the Fixed Rent
hereunder calculated on a per square foot basis, or if Tenant assigns this Lease
and receives consideration therefor (herein called "Rent Bonus"), then Tenant
shall pay to Landlord a sum (herein called "Landlord's Share") equal to fifty
(50%) of the "Profit" (hereinafter defined), if any, received by Tenant on
account of such assignment or subletting. The term "Profit" with respect to an
assignment shall mean the Rent Bonus, less any alteration to the Premises made
by Tenant in contemplation of such assignment (and not reimbursed to Tenant in
addition to the Rent Bonus), brokerage commissions, costs of removing fixtures
and equipment and legal expenses. The term "Profit" with respect to a subletting
shall mean the difference between (x) minimum rent (howsoever designated)
16
received from the subtenant under the sublease (omitting any amount allocable to
the payment of real estate taxes, insurance premiums, common area charges and
similar items of additional rent payable as additional rent under this Lease but
included in minimum rent under the sublease), and (y) Fixed Rent payable under
this Lease multiplied by a fraction, the numerator of which shall be the number
of square feet of floor area within the Subject Portion, and the denominator of
which shall be the number of square feet of floor area within the Demised
Premises.
ARTICLE 7 REPAIRS AND MAINTENANCE
---------------------------------
Section 7.1 Tenant's Obligations.
----------- --------------------
(a) Except as provided in Section 7.2 below, throughout the
Lease Term, Tenant shall, at Tenant's sole cost and expense, keep and maintain
in good order and condition, and make all repairs to the Demised Premises, as
and when needed to preserve them in good working order and condition.
(b) Tenant shall keep the sidewalk adjoining the Demised
Premises free from snow, ice, rubbish, dirt, garbage and other refuse. The
parties hereto acknowledge that it is Landlord's primary responsibility to keep
the sidewalk area adjoining the Demised Premises free from snow, ice, rubbish,
dirt, garbage and other refuse. However, notwithstanding same, Tenant shall use
reasonable efforts to take intermediate actions to remove same when Landlord is
not present.
(c) Tenant shall be responsible for its own janitorial
maintenance and refuse removal to an area designated by Landlord.
Section 7.2 Landlord's Obligations.
----------- ----------------------
(a) Landlord agrees to make all repairs and replacements to
the structural portions of the Project, consisting of structural portions of the
exterior walls and roof and the floor slab of the Building, unless the same
shall be required as a result of Tenant's misuse or neglect.
(b) Landlord shall perform all necessary maintenance, repairs
and replacement to the roof surface, membrane, gutters and downspouts; and
maintain the exterior surface of the buildings (including exterior painting,
water treatment and removal of graffiti).
(c) Landlord shall operate, maintain, repair and replace the
Common Areas to substantially the standards of similar projects in Monmouth
County, New Jersey, including, without limitation, cleaning and sweeping the
Common Areas; removal of snow from the parking areas and treatment of ice
thereon; maintenance of common utility systems (including electricity and
lighting) serving the Common Areas and lighting of the Common Area on days and
hours that the Project is open for business;
(d) the cost of the foregoing items shall be included in
Common Area Expenses.
ARTICLE 8 COMPLIANCE WITH LAW
-----------------------------
Section 8.1 Legal Requirements. Tenant shall, throughout the Lease
Term, promptly comply, or cause compliance, with all laws and ordinances and the
orders, rules, regulations and requirements (individually and collectively, the
17
"Legal Requirements") of all federal, state, county and municipal governments
and appropriate departments, commissions, boards and officers thereof
(individually and collectively, the "Governmental Authorities"), and with all of
the requirements of the Board of Fire Underwriters or similar body having
jurisdiction, foreseen or unforeseen, ordinary as well as extraordinary, and
whether or not the same shall presently be within the contemplation of the
parties hereto or shall involve any change of governmental policy, which may be
applicable to the Demised Premises or the use or manner of use thereof.
Section 8.2 Hazardous Materials.
----------- -------------------
(a) Tenant agrees to refrain, and to prevent its employees,
invitees, agents, contractors and subtenants, from bringing any Hazardous
Materials onto the Demised Premises, except for substances used in connection
with Tenant's business operations which shall be stored in proper containers and
in compliance with Legal Requirements. Tenant hereby covenants and agrees to
indemnify, defend and hold Landlord harmless from and against any and all
claims, actions, administrative proceedings, judgments, damages, penalties,
costs, expenses, losses and liabilities of any kind or nature that arise
(indirectly or directly) from or in connection with the presence (or suspected
presence), release (or suspected release), spill (or suspected spill) or
discharge (or suspected discharge) of any Hazardous Materials in, on or about
the Demised Premises at any time after possession thereof by Tenant, or
resulting from the acts or omissions of Tenant, its subtenants or their
respective employees, agents or contractors. Without limiting the generality of
the foregoing, the indemnity set forth above shall specifically cover any
investigation, monitoring and remediation costs.
(b) The term "Hazardous Materials" shall mean in any
hazardous or toxic substances, materials, wastes, pollutants and the like which
are defined as such in, and/or regulated by (or become defined in and/or
regulated by), any Legal Requirements including, without limitation, the
Comprehensive Environmental Response Compensation and Liability Act (42 U.S.C.
xx.xx. 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. ss.
1801 et seq.), the Clean Water Act (33 U.S.C. ss. 1251 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C. ss. 6901 et seq.), the Clean Air Act
(42 U.S.C. ss. 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. ss.
2601 et seq.), the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.
ss. 136 et seq.), the Occupational Safety and Health Act (29 U.S.C. ss. 651 et
seq.), ISRA (and its predecessor statutes), the Spill Compensation and Control
Act (N.J.S.A. 58:10-23.11, et seq.), the Air Pollution Control Act (N.J.S.A.
26:2C-2, et seq.), the New Jersey Water Pollution Control Act (N.J.S.A.
58:10A-1, et seq.), the Underground Storage Tank Act (N.J.S.A. 58:10A-21, et
seq.), the Solid Waste Management Act (N.J.S.A. 13:1E-1, et seq., any other
Legal Requirement which is presently in effect or hereafter enacted relating to
environmental matters, any rules and regulations promulgated under any of the
foregoing, and any and all amendments to the foregoing. The provisions of this
Article 8 shall survive the expiration or sooner termination of this Lease.
(c) Landlord expressly covenants and agrees to indemnify,
defend and save the Tenant harmless against any claim, damages, liability, cost,
penalties, or fines which the Tenant may suffer as a result of air, ground or
water pollution caused by the Landlord in connection with the Demised Premises
or existing on the Demised Premises prior to the execution of this Lease. The
Landlord covenants and agrees to notify the Tenant immediately of any claim or
notice served upon it with respect to any claim that the Landlord is causing
air, ground or water pollution; and the Landlord shall take immediate steps to
halt, remedy or cure any such pollution which affects the Demised Premises.
Landlord shall be responsible for that portion of the costs of compliance with
Environmental Laws, including ISRA, which are attributable to the presence of
any Hazardous Substances at the Demised Premised unless Tenant's Release of
18
Hazardous Substances caused them. Landlord represents and warrants to Tenant
that to the best of its knowledge, as of the Commencement Date of the Lease, the
Demised Premises will be in compliance with Environmental Laws and that no
Hazardous Substances are currently present on, in, under or emanating from the
Demised Premises or will be, in the future, as a result of Landlord's actions or
failure to act.
(d) The parties agree that any remediation required to be
conducted at the Demised Premises shall be no more stringent than necessary to
meet Legal Requirements, including, without limitation, the non-residential
cleanup standards of the NJDEP.
Section 8.3 ISRA. Tenant further covenants and agrees that (x) its
operation at the Demised Premises shall not involve Hazardous Materials, and (y)
Tenant's Standard Industrial Classification number as designated in the Standard
Industrial Classification manual prepared by the Office of Management and Budget
in the Executive Office of the President of the United States is and shall be
during the term of the Lease ________. Tenant shall comply with the Industrial
Site Recovery Act, N.J.S.A. 13:1k-6 et seq., and the rules and regulations
promulgated thereunder, as same may be amended from time to time ("ISRA")
throughout the Lease Term. If Tenant's operations on the Demised Premises now or
hereafter constitute an Industrial Establishment subject to the requirements of
ISRA, then prior to the expiration or sooner termination of this Lease, Tenant
shall comply with all requirements of ISRA pertaining to an Industrial
Establishment closing or transferring operations, at its sole cost and expense,
to the satisfaction of the New Jersey Department of Environmental Protection
("DEP") and Landlord. If Tenant has not fully complied with ISRA prior to the
expiration or sooner termination of the Lease, then Tenant, at Landlord's option
and in addition to all other rights and remedies of Landlord under this Lease,
at law, in equity or otherwise, shall be deemed to be a holdover tenant and the
provisions of Section 22.1 shall be applicable. In addition to the foregoing,
Tenant shall obtain and deliver to Landlord, at Tenant's sole cost and expense,
at least thirty (30) days prior to the expiration of the term of the Lease, a
letter from the DEP stating that termination of Tenant's operations at the
Demised Premises is in compliance with ISRA (e.g, Letter of No Further Action or
Letter of Non-Applicability, as applicable), together with true copies of any
affidavits or submissions upon which confirmation is based.
ARTICLE 9 UTILITIES
-------------------
Section 9.1 Tenant agrees to pay or cause to be paid all charges for
gas, water, sewer, electricity, light, heat, power, telephone or other
communication service or other utility or kind of service used, rendered or
supplied to, upon or in connection with the Demised Premises throughout the
Lease Term, and Tenant agrees to defend and indemnify Landlord and save it
harmless against any liability or damages on such account. Tenant expressly
agrees that Landlord is not, nor shall it be, under this Lease required to
furnish to Tenant or any other occupant of the Demised Premises, during the
Lease Term, any water, sewer, gas, heat, electricity, light, power or any other
facilities, equipment, labor, materials or services of any kind whatsoever. If a
separate meter shall be required to be installed for electric or gas services,
the same shall be installed by Landlord. The parties acknowledge that the Fixed
Rent set forth in this Lease initially includes a payment of $1.50 per square
foot per annum for the cost of Tenant's anticipated gas and electric charges. In
the event Landlord elects to submeter the Demised Premises as permitted herein,
Tenant shall pay for gas and/or electric service directly to the applicable
utility provider and the Fixed Rent will be adjusted accordingly.
19
Section 9.2 Tenant covenants and agrees that its use of utility
services (including, without limitation, electric, gas, water and sewer) will
not exceed either the capacity or maximum load of the utility lines serving the
Demised Premises or which may from time to time be prescribed by applicable
Governmental Authorities.
Section 9.3 Landlord shall in no event be liable or responsible to
Tenant for any loss, damage or expense which Tenant may sustain or incur if
either the quantity or character of utility services is changed or is no longer
available or suitable for Tenant's purposes.
ARTICLE 10 ALTERATIONS
----------------------
Section 10.1 Tenant shall not make any structural Alterations to the
Demised Premises without the prior consent of Landlord.
Section 10.02. Any Alterations that Tenant has a right to make, and
any Alterations that Landlord has approved, shall be made at Tenant's sole cost
and expense, and in making any such Alterations Tenant shall comply with the
following conditions:
(i) Tenant shall submit to Landlord a copy of any plans and specifications
prepared in connection with any proposed Alteration (including layout,
architectural, mechanical and structural drawings) and, if such Alteration shall
require Landlord's consent hereunder, Tenant shall not commence any such
Alteration without first obtaining Landlord's approval of such plans and
specifications;
(ii) no Alterations shall be undertaken until Tenant shall have procured and
paid for, so far as the same may be required, all necessary permits and
authorizations of all municipal departments and governmental subdivisions having
jurisdiction. Landlord shall join in the application for such permits or
authorizations upon request of Tenant if necessary provided Landlord is promptly
reimbursed for any filing or other costs, fees or expenses incurred;
(iii) before commencing any Alterations, Tenant shall provide any necessary
and appropriate riders for fire and extended coverage, and comprehensive general
public liability and property damage insurance, covering the risks during the
course of such Alteration;
(iv) any Alterations shall be made with reasonable diligence (Unavoidable
Delays excepted), in a good and workmanlike manner and in compliance with all
applicable permits, authorizations, building codes, zoning laws, and all other
laws, ordinances, orders, rules, regulations and requirements of all
governmental departments having jurisdiction, and upon completion Tenant shall
obtain and deliver to Landlord any necessary amendment to the certificate of
occupancy; and
(v) the cost of any Alterations shall be promptly paid so that the fee
estate and leasehold estates in the Project at all times shall be free of liens
for labor and materials supplied or claimed to have been supplied to Tenant or
the Demised Premises. If any lien shall be filed with respect to the Demised
Premises or Project as a result of work performed by or on behalf of Tenant,
Tenant shall cause such lien to be removed or bonded within twenty (20) days of
notice by Landlord.
Section 10.03. All such Alterations made by Tenant, except any trade
fixtures or personal property of Tenant, shall immediately be and become part of
20
the realty and the sole and absolute property of Landlord and at the time
Landlord consents to the Alteration it shall advise the Tenant whether said
Alteration shall remain upon and be surrendered with the Demised Premises at the
expiration or other termination of this Lease.
ARTICLE 11 INSURANCE
--------------------
Section 11.1 Tenant's Coverages. Commencing with the date of
delivery of possession of the Demised Premises to Tenant and throughout the
Lease Term, Tenant shall, at Tenant's cost and expense, provide and cause to be
maintained:
(a) comprehensive general public liability insurance
(including contractual liability coverage) insuring against claims for bodily
injury, death or property damage that may arise from or be occasioned by (x) the
condition, use or occupancy of the Demised Premises, the sidewalks adjacent
thereto, and the loading docks and other appurtenances, or (y) any act, omission
or negligence of Tenant, its subtenants, or their respective contractors,
licensees, agents, servants, employees, invitees or visitors; such insurance to
afford minimum protection of not less than $5,000,000 in respect of bodily
injury or death to any one person, and of not less than $5,000,000 in respect of
any one accident, and of not less than $500,000 for property damage. The
liability insurance requirements hereunder may be reviewed by Landlord every
three (3) years for the purpose of increasing (in consultation with their
respective insurance advisors) the minimum limits of such insurance from time to
time to limits which shall be reasonable and customary for similar facilities of
like size and operation in accordance with generally accepted insurance industry
standards;
(b) "All-risk" insurance (including coverages against loss or
damage by fire, lightning, windstorm, hail, explosion, vandalism and malicious
mischief, riot and civil commotion, smoke and all other perils now or hereafter
included in extended coverage endorsements) covering Tenant's merchandise,
inventory, trade fixtures, furnishings, equipment, leasehold improvements (other
than the original leasehold improvements completed by Landlord prior to the
Commencement Date) and all other items of personal property of Tenant located
on, in or about the Demised Premises, in an amount equal to one-hundred percent
(100%) of the actual replacement cost thereof (with provisions for a deductible
as shall be reasonable in comparison with similar properties);
(c) rent insurance, for the benefit of Landlord, in an amount
equal to all Rent payable for a period of twelve (12) months commencing on the
date of loss;
(d) if at any time a steam boiler or similar equipment is
located in, on or about the Demised Premises, a policy insuring against loss or
damage due to explosion, rupture or other failure of any boiler, pipes,
turbines, engines or other similar types of equipment; and
(e) during performance of any Alteration, Tenant shall
maintain Worker's Compensation, public liability and builder's risk form of
casualty insurance in amounts appropriate to the status of the construction
being performed by Tenant.
Section 11.2 Failure to Maintain. If Tenant fails to maintain the
insurance to be maintained by Tenant hereunder, the same may be purchased by
Landlord at the expense of Tenant, and the expense therefor incurred by
Landlord, with interest thereon at the Interest Rate, shall be forthwith paid to
Landlord as Additional Rent after rendition of a xxxx or statement therefor.
21
Section 11.3 Landlord's Coverages. Commencing with the Commencement
Date and throughout the Lease Term, Landlord shall maintain, or cause to be
maintained:
(a) "All-risk" insurance covering the Buildings, in an amount
equal to one-hundred percent (100%) of the actual replacement cost thereof,
(exclusive of the cost of excavations, foundations and footings) with or without
provisions for a deductible as shall be reasonable in comparison with similar
properties;
(b) "All-risk" insurance covering the Common Area
improvements, in an amount equal to one-hundred percent (100%) of the actual
replacement cost thereof, (exclusive of the cost of excavations, foundations and
footings) with or without provisions for a deductible as shall be reasonable in
comparison with similar properties;
(c) comprehensive general public liability insurance
(including contractual liability) covering the Common Areas, in an amount not
less than $5,000,000 for personal and bodily injury to all persons in any one
occurrence and for property damage.
Section 11.4 Tenant's Premium Payment. Commencing on the
Commencement Date and throughout the Lease Term, Tenant shall pay to Landlord,
as Additional Rent, a portion of the premiums for the insurance coverages
Landlord is required to maintain pursuant to Section 11.3(i) above which
premiums shall be at competitive rates ("Tenant's Premium Payment"), which
portion shall be equal to the product of (x) said premiums, and (y) a fraction,
the numerator of which shall be the number of square feet of Floor Area within
the Demised Premises, and the denominator of which shall be the number of square
feet of Floor Area within all Buildings covered under the policy of insurance
maintained by Landlord pursuant to Section 11.3(i) above. Premiums for the
insurance coverages Landlord is required to maintain pursuant to Section 11.3,
above, may be included in Common Area Expenses, at Landlord's discretion.
Section 11.5 Policies Generally.
------------ ------------------
(a) All insurance policies required to maintain pursuant to
this Article 11 shall be effected under policies issued by insurers which are
permitted to do business in the State of New Jersey and rated "A/VIII" by A.M.
Best Company, or any successor thereto. Landlord and Tenant shall provide to the
other, and to any Fee Mortgagee, certificates of the policies required to be
maintained pursuant. Each such policy shall contain a provision that no act or
omission of the insured shall affect or limit the obligation of the insurance
company to pay the amount of any loss sustained and an agreement by the insurer
that such policy shall not be modified or canceled without at least '10 days'
prior notice to Landlord and to any Fee Mortgagee.
(b) All policies of insurance provided for under this Article
shall name the insuring party as the insured, and the other party as an
additional insured, and any Fee Mortgagee pursuant to a standard first mortgagee
clause, subject in all respects to the terms of this Lease.
(c) Any insurance provided for in this Article 11 may be
effected by a blanket policy or policies of insurance, provided that the amount
of the total insurance available shall be at least the protection equivalent to
separate policies in the amounts herein required, and provided further that in
other respects, any such policy or policies shall comply with the provisions of
this Article 11. An increased coverage or "umbrella policy" may be provided and
utilized to increase the coverage provided by individual or blanket policies in
lower amounts, and the aggregate liabilities provided by all such policies shall
22
be satisfactory provided they otherwise comply with the provisions of this
Article 11.
(d) Each policy carried by either party shall be written as a
primary policy not contributing with, and not in excess of, coverage carried by
the other.
Section 11.6 Waiver of Subrogation. Every insurance policy carried
by either party shall include provisions denying to the insurer subrogation
rights against the other party and any Fee Mortgagee to the extent such rights
have been waived by the insured prior to the occurrence of damage or loss. Each
party hereby waives any rights of recovery against the other party for any
direct damage or consequential loss covered by said policies against which such
party is protected by insurance or (by the inclusion of deductible provisions
therein or otherwise) has elected to be selfinsured, to the extent of the
proceeds paid under such policies and the amount of any such selfinsurance,
whether or not such damage or loss shall have been caused by any acts or
omissions of the other party.
ARTICLE 12 DAMAGE AND DESTRUCTION
---------------------------------
Section 12.1 Notice. If the Demised Premises, or any portion
thereof, shall be damaged by fire or other casualty, Tenant shall immediately
give notice thereof to Landlord.
Section 12.2 Termination. (a) In the event the Demised Premises
shall be damaged or destroyed, in whole or in part, (i) in excess of 33 1/3% of
the replacement cost thereof, exclusive of the cost of footings and foundations,
by fire or other casualty; or (ii) by fire or other casualty against which
Landlord is not required to insure by the terms of this Lease; or (iii) during
the last two (2) years of the Lease Term, then Landlord shall have the right to
terminate this Lease by giving notice of such election to the Tenant within
forty (40) days after such damage or destruction shall have occurred. If such
notice shall be given, this Lease shall terminate as of the last day of the
calendar month immediately following the month in which such notice shall have
been given. In the event of such termination, Landlord shall not be required to
restore or rebuild the damaged or destroyed Demised Premises, or any portion
thereof, and all insurance proceeds payable on account of such damage or
destruction to the Building may be retained by Landlord (excluding, however,
insurance proceeds payable on account of insurance policies held by Tenant for
damage or destruction to Tenant's merchandise, inventory, trade fixtures,
furnishings, equipment, leasehold improvements paid for by Tenant, which shall
be retained by the Tenant.)
(b) In the event the Demised Premises shall be damaged or
destroyed, in whole or in substantial part (i.e. thirty (30%) percent or more of
the floor area), during the last two (2) years of the Lease Term, then either
party shall have the right to terminate this Lease by giving notice of such
election to the other party within forty (40) days after such damage or
destruction shall have occurred. If such notice shall be given, this Lease shall
terminate as of the last day of the calendar month immediately following the
month in which such notice shall have been given. In the event of such
termination, neither party shall be required to repair, restore, redecorate and
refixture the Demised Premises in a manner and to at least a condition equal to
that existing immediately prior to such damage or destruction.
Section 12.3 Restoration by Landlord.
------------ -----------------------
(a) In the event the whole or any part of the Demised
Premises shall, during the Lease Term, be damaged or destroyed by fire or other
casualty, and this Lease is not terminated pursuant to the terms of Section 12.2
23
hereof, Landlord shall, to the extent of insurance proceeds received by Landlord
as a result of such damage or destruction, repair, restore and/or rebuild the
Demised Premises or damaged portions thereof, substantially to the condition and
character existing as of the date on which the possession of the Demised
Premises was delivered to Tenant within one hundred fifty (150) days of the date
which Landlord makes a determination as to rebuild the Demised Premises. In the
event the repairs are not completed within such one hundred fifty (150) days,
Tenant shall have the right to terminate by serving a thirty (30) day written
notice upon Landlord of its intentions. However, Landlord shall have the right,
within such thirty (30) day period, to deliver the repaired Demised Premises to
Tenant, in which case, Tenant's notice of termination shall be null, void and
the Lease shall continue in full force and effect. If Landlord does not complete
such repairs within such thirty (30) day period, this Lease shall be null, void
and of no further force and effect, except to the extent of items which are to
survive lease termination.
(b) In the event the whole of, or any portion of, the Common
Areas shall, during the Lease Term, be damaged or destroyed by fire or other
casualty, and this Lease is not terminated pursuant to the provisions of Section
12.2 hereof, Landlord shall, to the extent of insurance proceeds received by
Landlord as a result of such damage or destruction, repair, restore and/or
rebuild the Common Areas to substantially their condition and character
immediately prior to such damage.
(c) In no event shall Landlord be required to repair or
replace Tenant's merchandise, inventory, trade fixtures, furnishings, equipment,
leasehold improvements (unless installed by Landlord as part of the Tenant
Improvements) or other items of personal property of Tenant.
Section 12.4 Restoration by Tenant. In the event the whole of, or
any portion of, the Demised Premises shall, during the Lease Term, be damaged or
destroyed by fire or other casualty, and this Lease is not terminated pursuant
to the provisions of Section 12.2(a) or 12.2 (b) hereof, Tenant shall, promptly
upon substantial completion of the restoration work to be performed by Landlord
pursuant to Section 12.3(a) hereof, promptly repair, restore, redecorate and
refixture the Demised Premises in a manner and to at least a condition equal to
that existing immediately prior to such damage or destruction.
Section 12.5 Effect on Lease.
------------ ---------------
(a) If the Demised Premises is damaged such that the Tenant's
business operations can continue in the undamaged portion, Rent should be abated
on a pro rata basis based on the percentage of the Demised Premises affected,
until the Landlord has substantially completed its restoration obligation, or,
if earlier when Tenant again occupies the Demised Premises. If damage renders
the Demised Premises unusable, Rent should be abated completely until the
Landlord has substantially completed its restoration obligation, or, if earlier
when Tenant again occupies the Demised Premises.
[(b) Except to the extent specifically provided in this Lease,
no damage or destruction of the Demised Premises by fire or other casualty, nor
the untenantability of the Demised Premises or Common Areas, shall permit Tenant
to terminate this Lease or surrender the Demised Premises, nor shall relieve
Tenant from its obligation to pay Rent (except to the extent that Rent shall be
24
paid by application of the proceeds of rent insurance actually collected by
Landlord under policies maintained by Tenant pursuant to Section 11.1(c) hereof)
or perform any of Tenant's other obligations under this Lease.
(c) Except as provided herein, Tenant hereby expressly waives
any rights now or hereafter conferred by any law or statute to terminate this
Lease or surrender the Demised Premises, or any portion thereof, or to suspend,
diminish, xxxxx or reduce Rent on account of any such damage or destruction.
(d) Tenant shall not be entitled to and hereby waives any and
all claims against Landlord for any compensation or damage for loss of use of
the Demised Premises, the Common Areas or any portion thereof, and/or for any
inconvenience or annoyance resulting from any damage, destruction, repair or
restoration.
ARTICLE 13 EMINENT DOMAIN
-------------------------
Section 13.1 Taking. In the event of a taking for any public or
quasipublic use by any lawful power or authority by exercise of the right of
condemnation or eminent domain or by agreement between Landlord and those having
the authority to exercise such right (herein called "Taking") of all or
substantially all of the Demised Premises, parking, access, loading docks or
common areas, then this Lease shall terminate as of the date of vesting of title
or transfer of possession, whichever is earlier (the "Vesting Date"). In the
event of a Taking of less than substantially all of the Demised Premises, then
this Lease shall terminate with respect to the portion so taken on the Vesting
Date.
Section 13.2 Termination.
------------ -----------
(a) In the event of a Taking of less than substantially all
of the Demised Premises, Landlord may elect to terminate this Lease if there is
any Taking occurring during the last two (2) years of the Lease Term; or in
Landlord's reasonable judgment, it shall not be economically feasible to restore
and replace the Building(s), the Demised Premises, the Common Areas, or part
thereof, to tenantable condition capable of being operated as an
office/warehouse Project in an economical manner. In the event Landlord elects
to terminate this Lease pursuant to this Subsection (a), Landlord shall, within
one hundred twenty (120) days of the Taking, give notice to Tenant, and the
Lease Term shall expire and come to an end as of the last day of the calendar
month in which such notice is given.
(b) In the event of a Taking of less than substantially all
of the Demised Premises, Tenant may elect to terminate this Lease if, by reason
of the Taking (i) more than thirty-three percent (33%) of the Floor Area within
the Demised Premises shall be taken; (ii) there is a prohibition of the use of
the Demised Premises for office/warehouse purposes; or (iii) there is any Taking
of the Demised Premises occurring during the last two (2) years of the Lease
Term. In the event Tenant elects to terminate this Lease pursuant to this
Subsection (b) hereof, Tenant shall, within one hundred twenty (120) days of the
Taking, give notice to Landlord, and the Lease Term shall expire and come to an
end as of the last day of the calendar month in which such notice is given.
Section 13.3 Restoration by Landlord.
------------ -----------------------
(a) If this Lease is not terminated pursuant to Section 13.2
hereof, Landlord shall, to the extent of the award received by Landlord as
compensation for a Taking of the Demised Premises, repair, restore and/or
rebuild the remaining portions of the Demised Premises to a complete
architectural unit substantially to the condition and character existing as of
the date on which possession of the Demised Premises was delivered to Tenant.
25
(b) If this Lease is not terminated pursuant to Section 13.2
hereof, Landlord shall to the extent of the award received by Landlord as
compensation for a Taking of the Common Areas, make all repairs to the Common
Areas affected by such Taking to the extent necessary to restore the same to a
complete architectural and functional unit (to the extent permitted, however,
taking into consideration the amount of land remaining after any such Taking).
Section 13.4 Restoration by Tenant. In the event of a Taking of a
portion of the Demised Premises and this Lease is not terminated pursuant to
Section 13.2 hereof, Tenant shall, promptly upon substantial completion of the
restoration work to be performed by Landlord pursuant to Section 13.3(a) above,
promptly repair, restore, redecorate and refixture the Demised Premises in a
manner and to at least a condition equal to that existing immediately prior to
such Taking.
Section 13.5 Effect on Lease.
------------ ---------------
(a) If there is a Taking, then commencing on the Vesting
Date, Fixed Rent shall be the product of (i) Fixed Rent immediately preceding
the Taking, and (ii) a fraction, the numerator of which shall be the Floor Area
of the Demised Premises remaining after the Taking, and the denominator of which
shall be the Floor Area of the Demised Premises immediately preceding the
Taking.
If any portion of the parking area is taken then other parking shall be provided
by Landlord convenient to the Demised Premises or the Tenant shall have the
right to terminate this Lease. Provided, however, that nothing contained in this
Section 13.5(a) shall require to expend monies in excess of the condemnation
award.
Section 13.6 Award. All compensation awarded or paid in respect of a
total or partial taking of the Demised Premises, or any part thereof, shall
belong to and be the property of Landlord without any participation by Tenant.
Nothing herein shall be construed to preclude Tenant from prosecuting any claim
directly against the condemning authority in such condemnation proceeding for
moving expenses; any fixtures or equipment owned by Tenant; and the unamortized
cost of Tenant's betterments and improvements, provided that no such claim shall
(x) diminish or otherwise adversely affect Landlord's award or the award of any
Fee Mortgagee, or (y) include any value for the leasehold estate created hereby
or the unexpired term of this Lease.
ARTICLE 14 LANDLORD'S COVENANTS
-------------------------------
Section 14.1 Tenant, upon paying the Rent and performing and
observing all of Tenant's other obligations under this Lease, shall have and
enjoy, during the Lease Term, quiet and undisturbed possession and use of the
Demised Premises and all appurtenances thereto, subject to the terms and
provisions of this Lease. This covenant shall be construed as running with
Landlord's estate as owner of the Demised Premises and is not, nor shall it
operate or be construed as, a personal covenant of Landlord, except to the
extent of Landlord's interest in the Demised Premises and only so long as such
interest shall continue, and thereafter this covenant shall be binding only upon
such subsequent owners and successors in interest, to the extent of their
respective interests, as and when they shall acquire the same, and only so long
as they shall retain such interest.
26
ARTICLE 15 DEFAULT; REMEDIES AND DAMAGES
----------------------------------------
Section 15.1 Event of Default. Each of the following shall be deemed
an "Event of Default":
(i) any failure by Tenant to pay Fixed Rent by the date it was payable
under this Lease, subject to any specified grace period, or Additional Rent or
other sum of money payable under this Lease when due;
(ii) any failure by Tenant to perform any of the other terms, conditions or
covenants of this Lease to be observed or performed by Tenant for more than
thirty (30) days after notice of such default shall have been given to Tenant,
or if such default is of such nature that it cannot with due diligence be
completely remedied with said period of thirty (30) days such larger period of
time as may be reasonably necessary to remedy such default provided Tenant shall
commence within said period of thirty (30) days and shall thereafter diligently
prosecute to completion, all steps necessary to remedy such default, but in no
event more than ninety (90) days after notice of such default shall have been
given to Tenant;
(iii) Tenant shall abandon or vacate the Demised Premises;
(iv) any interest of Tenant hereunder shall pass to another without
Landlord's consent, except in the case of a Permitted Sublease or a Permitted
Assignment;
(v) if proceedings in bankruptcy shall be instituted by or against Tenant,
or if Tenant shall file, or any creditor or other person shall file, any
petition in bankruptcy under any law, rule or regulation of the United States of
America or of any State, or if a receiver of the business or assets of Tenant
shall be appointed, or if a general assignment is made by Tenant for the benefit
of creditors, or any sheriff, marshall, constable or other duly constituted
public official takes possession of the Demised Premises, or any part thereof,
by authority of any attachment or execution proceedings, and offers same for
sale publicly, and, with respect to any of the foregoing actions which shall be
involuntary on Tenant's part, such action is not vacated or withdrawn within
thirty (30) days thereafter;
(vi) an Event of Default provided for under any other section of this Lease.
Section 15.2 Remedies.
------------ --------
(a) If an Event of Default shall occur, Landlord shall, in
addition to any other right or remedy available at law, in equity or otherwise,
have the right:
(i) to bring suit for the collection of the Fixed Rent, Additional Rent
and/or other amounts for which Tenant may be in default, or for the performance
of any other covenant or agreement devolving upon Tenant, all without entering
into possession or terminating this Lease;
(ii) terminate this Lease, and after this Lease is terminated, Landlord, its
agents or representatives, may re-enter the Demised Premises by summary
proceedings, force or otherwise, and dispossess Tenant and any other occupants
thereof, remove their effects not previously removed by them and hold the
Premises free of this Lease; or
(iii) without terminating this Lease, re-enter the Demised Premises by
summary proceedings and dispossess Tenant and any other occupants thereof,
remove their effects not previously removed by them and hold the Premises free
of this Lease.
27
No such reentry or taking possession of the Demised Premises by
Landlord shall be construed as election on its part to terminate this Lease
unless a written notice of such intention be given to Tenant or unless such
termination be decreed by a court of competent jurisdiction.
(b) After such a dispossession or removal, (x) Fixed Rent and
Additional Rent shall be paid up to the date thereof, (y) Landlord may relet the
Premises or any part or parts thereof either in the name of Landlord or
otherwise, for a term or terms which may, at the option of Landlord, be less
than or exceed the period which would otherwise have constituted the balance of
the Term of this Lease, and (z) Tenant shall pay to Landlord any deficiency
between the sum of Fixed Rent and Additional Rent due hereunder plus the
reasonable costs and expenses incurred or paid by Landlord in terminating this
Lease or in re-entering the Demised Premises and in securing possession thereof,
as well as the expenses of reletting the Demised Premises, including, without
limitation, repairing, altering and preparing the Demised Premises for new
tenants, brokers' commissions, legal fees, and other expenses and concessions
("Default Costs"), and the amount of rents and other charges collected on
account of the new lease or leases of the Demised Premises for each month of the
period which would otherwise have constituted the balance of the Lease Term (not
including any Renewal Periods, the commencement of which shall not have occurred
prior to such dispossession or removal). Such deficiency shall be paid by Tenant
in monthly installments on the dates specified in this Lease for payment of
Fixed Rent. Landlord reserves the right to bring actions or proceedings for the
recovery of any deficits remaining unpaid without being obliged to await the end
of the Lease Term for a final determination of Tenant's account, and the
commencement or maintenance of any one or more actions or proceedings shall not
bar Landlord from bringing other or subsequent actions or proceedings for
further accruals pursuant to the provisions of this Section. Any rent received
by Landlord from such reletting shall be applied first to the payment of any
indebtedness (other than Rent due hereunder) of Tenant to Landlord; second, to
the payment of any Default Costs; third, to the payment of Rent due and unpaid
hereunder, and the balance, if any, shall be held by Landlord and applied in
payment of future Rent as it may come due and payable hereunder. In the
alternative, following any such dispossession or removal, Landlord may claim as
damages no more than the difference between the balance of Fixed Rent and
Additional Rent payable over the remainder of the Lease Term and the fair market
rental value of the Demised Premises over the same period, discounted to present
value at a discount rate equal to the then effective rate on obligations of the
U.S. Treasury having a maturity closest to the number of months remaining in the
then current Lease Term.
(c) If Landlord is required by Legal Requirements to mitigate
its damages, then Tenant agrees that Landlord's duty to mitigate (i) shall arise
only after Landlord regains possession of the Demised Premises, (ii) shall be
deemed satisfied if Landlord has used commercially reasonable efforts to relet
the Demised Premises, whether or not such efforts are successful, and (iii)
shall not require Landlord to market the Demised Premises ahead of other
property which are vacant or about to become vacant in properties owned by
Landlord or its affiliates within ten (10) miles of the Demised Premises.
(d) In addition to the foregoing, if an Event of Default
shall occur other than as to the payment of Rent, Landlord, in addition to any
other right or remedy available at law or in equity, shall have the right, but
not the obligation, to cure such failure. Notwithstanding the provisions of
Subsection (a) above, if, in Landlord's reasonable judgment, an emergency shall
exist, Landlord may cure such Event of Default upon such notice to Tenant as may
be reasonable under the circumstances (and may be without any prior notice if
28
the circumstances shall so require). If Landlord cures such failure as
aforesaid, Tenant shall pay to Landlord on demand, as Additional Rent, the
reasonable and necessary cost or amount thereof, together with interest thereon
at the Interest Rate from the date of outlay of expense until payment.
(e) In the event of a breach or threatened breach by Tenant,
or any persons claiming through or under Tenant, of any term, covenant or
condition of this Lease, Landlord shall have the right to enjoin such breach and
the right to invoke any other remedy allowed by law or in equity as if re-entry,
summary proceedings and other special remedies were not provided in this Lease
for such breach.
(f) The right to invoke the remedies hereinbefore set forth
are cumulative and shall not preclude Landlord from invoking any other remedy
allowed at law, in equity or otherwise.
(g) The words "re-enter", "re-entry: and "re-entered" as used
in this Lease shall not be deemed to be restricted to their technical legal
meanings.
Section 15.3 Waivers.
-----------------------
(a) Tenant, on its own behalf and on behalf of all persons
claiming through or under Tenant, including all creditors, does further hereby
waive any and all rights which Tenant and all such persons might otherwise have
under any present or future law to redeem the Demised Premises, or to re-enter
or repossess the Demised Premises, or to restore the operation of this Lease,
after Tenant shall have been dispossessed by a judgment or by warrant of any
court or judge; or any re-entry by Landlord; or any expiration or termination of
this Lease and the Lease Term, whether such dispossess, re-entry, expiration or
termination shall be by operation of law or pursuant to the provisions of this
Lease.
Section 15.4 Landlord's Default. (a) If Landlord shall fail to
observe, perform or comply with any of its duties and obligations as set forth
in this Lease for a period of thirty (30) days after notice thereof from Tenant
to Landlord, or if such failure is of such a nature that it cannot be completely
remedied within said period of thirty (30) days, if Landlord shall not (x)
promptly upon the giving by Tenant of such notice, advise Tenant of Landlord's
intention to institute reasonable steps necessary to remedy such failure, (y)
promptly institute and thereafter diligently prosecute to completion reasonable
steps necessary to remedy same, and (z) complete such remedy within a reasonable
time after the date of the giving of said notice by Tenant, Tenant may at any
time thereafter cure such breach or failure, but only if such breach or failure
is creating a material impairment to the operation of Tenant's business at the
Demised Premises, for the account of Landlord, provided that Tenant may cure any
such breach or failure as aforesaid prior to the expiration of said waiting
period, without notice to Landlord if an emergency situation exists, or after
notice to Landlord, but solely if the curing of such breach or failure prior to
the expiration of said waiting period is necessary to protect the Demised
Premises or Tenant's interest therein or to prevent injury or damage to persons
or property. Landlord shall reimburse Tenant for the amounts reasonably and
properly incurred by Tenant as aforesaid within thirty (30) days of Tenant's
written demand therefor. In no event whatsoever shall Tenant seek, nor shall
Landlord be held liable for, any consequential or incidental damages, whether in
connection with or as a result of any default by Landlord hereunder.
29
(b) Notwithstanding that certain additional rights or
remedies may now or hereafter be available to Tenant at law, in equity or
otherwise, the rights and remedies as, when and to the extent specifically
provided Tenant in Subsection (a) hereof shall be Tenant's sole and exclusive
rights and remedies under this Lease in the event of Landlord's failure to
observe, perform or comply with any of its duties and obligations of this Lease
on its part to be observed, performed or complied within the time periods
provided in this Lease.
ARTICLE 16 UNAVOIDABLE DELAYS, FORCE MAJEURE
--------------------------------------------
Section 16.1 If either party shall be prevented or delayed from
punctually performing any obligation or satisfying any condition under this
Lease by any strike, lockout, labor dispute, inability to obtain labor,
materials or reasonable substitutes therefor, Act of God, weather, soil
conditions, site conditions, present or future governmental restrictions,
regulation or control, insurrection, sabotage, fire or other casualty, or any
other condition beyond the control of the party, other than unavailability of
funds or financing (individually and collectively "Unavoidable Delays"), then
the time to perform such obligation or satisfy such condition shall be extended
by the delay caused by such event. If either party shall as a result of an
Unavoidable Delay be unable to exercise any right or options within any time
limit provided therefor in this Lease, such time limit shall be deemed extended
for a period equal to the duration of such Unavoidable Delay.
ARTICLE 17 NOTICES
------------------
Section 17.1 Any notices, consents, approvals, elections,
submissions, requests or demands required or permitted to be given under this
Lease or pursuant to any law or governmental regulation (individually and
collectively "notice") by Landlord to Tenant or by Tenant to Landlord shall be
in writing (whether or not expressly so provided) at the following respective
addresses:
To Tenant Before the Commencement Date:
Velocity Asset Management, Inc.
0000 Xxxxx 000 Xxxx
Xxxx, XX 00000
After the Commencement Date:
Velocity Asset Management, Inc.
0000 Xxxxxxx 00 Xxxxx, Xxxx #0
Xxxxx 000
Xxxx, XX 00000
To Landlord: Xxxxxx at Wall 4, LLC
c/o Xxxx Xxxxxx, Xx.
00 Xxxxxxx Xxx
Xxxxxxxxx, XX 00000
30
With a copy to: Xxxxxx Xxxx Xxxxx & Xxxxx, PC
0000 Xxxxxxxx Xxxxxx - CN 0000
Xxxxx Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, Esq.
Notices shall be deemed given upon personal delivery; being deposited in the
United States mail, registered or certified mail, return receipt requested,
postage prepaid; or being sent by overnight express mail or nationally
recognized courier service (e.g., Federal Express) to Landlord or Tenant, at the
respective addresses hereinafter set forth, and shall be deemed received upon
actual receipt or rejection. Notices may be signed by the attorneys for the
party on whose behalf the notice is sent. Changes in addresses may be designated
by written notice as provided in this Section 17.1.
ARTICLE 18 ACCESS
-----------------
Section 18.1 Landlord and/or its designees shall have the right, at
all times, to enter upon the Demised Premises to inspect, to make repairs
subject to advance notice to Tenant, to respond to emergency situations, and for
exhibiting same to prospective purchasers and/or mortgagees. During the period
commencing twelve (12) months prior to the end of the Lease Term, Landlord
and/or its designee, shall have the right to enter upon the Demised Premises for
the purpose of exhibiting same to prospective tenants.
Section 18.2 Tenant shall be permitted twenty-four (24) hour per
day, seven (7) day per week, access to the Demised Premises.
ARTICLE 19 [RESERVED]
---------------------
ARTICLE 20 END OF TERM
----------------------
Section 20.1 Surrender. Upon the expiration or other termination of
the Lease Term, Tenant shall peaceably and quietly quit and surrender the
Demised Premises, together with all alterations which are then part of the
realty, broom clean, in good order and condition, reasonable wear and tear and
the provisions of Articles 12 and 13 excepted, and otherwise in accordance with
the terms of this Lease, including, without limitation, Article 10.
Section 20.2 Survival. Upon the expiration of the Lease Term or
other earlier termination of this Lease, any item of Rent which is payable to
the date of the expiration of the Lease Term or earlier termination of this
Lease which is not then ascertainable shall be paid to Landlord when the same is
determined.
Section 20.3 Vacant Possession. Any personal property and trade
fixtures remaining upon the Demised Premises after the expiration of the Lease
Term shall be deemed abandoned and shall become the property of Landlord upon 10
days written notice to Tenant without payment therefor. Landlord may dispose of
or store any personal property and/or trade fixtures remaining in, upon or about
the Demised Premises after the expiration or earlier termination of the Lease
Term and Tenant shall pay to Landlord the cost of removal, disposal or storage
of same, which obligation shall survive the expiration or earlier termination of
this Lease. The provisions of this Section 20.3 shall survive the expiration of
the Lease Term or other earlier termination of this Lease.
31
ARTICLE 21 HOLDING OVER
-----------------------
Section 21.1 Should Tenant hold over in possession after the
Expiration Date, such holding over shall not be deemed to extend the Lease Term
or renew this Lease. Tenant agrees to indemnify and save Landlord harmless from
and against all claims, losses, damages, liabilities, costs and expenses
(including, without limitation, reasonably attorneys' fees and disbursements)
resulting from delay by Tenant in surrendering the Demised Premises, including,
without limitation, any claims made by any succeeding tenant founded on such
delay. The parties recognize and agree that the damage to Landlord resulting
from any failure by Tenant to timely surrender possession of the Demised
Premises as aforesaid will be extremely substantial, will exceed the amount of
the monthly installments of the Fixed Rent and Additional Rent theretofore
payable hereunder, and will be impossible to accurately measure. Tenant
therefore agrees that if possession of the Demised Premises is not surrendered
to Landlord on the Expiration Date, in addition to any other rights and remedies
Landlord may have hereunder or at law, and without in any manner limiting
Landlord's right to demonstrate and collect any damages suffered by Landlord and
arising from Tenant's failure to surrender the Demised Premises as provided
herein, Tenant shall pay to Landlord on account of use and occupancy of the
Demised Premises for each month and for each portion of any month during which
Tenant holds over after the Expiration Date, a sum equal to 150% of that portion
of the Fixed Rent, Additional Rent and other Rental which was payable under this
Lease during the last month of the Lease Term. Nothing herein contained shall be
deemed to permit Tenant to retain possession of the Demised Premises after the
Expiration Date or to limit in any manner Landlord's right to regain possession
of the Demised Premises through summary proceeding or otherwise, and no
acceptance by Landlord of payments from Tenant after the Expiration Date shall
be deemed to be other than on account of the amount to be paid by Tenant in
accordance with the provisions of this Section 21.1. The provisions of this
Section 21.1 shall survive the Expiration Date.
ARTICLE 22 INDEMNITY
--------------------
Section 22.1 Tenant's Indemnity. Tenant shall not do or permit any
act or thing to be done in or about the Demised Premises which may subject
Landlord to any liability or responsibility for injury, damages to persons or
property or to any liability by reason of any violation of any Legal
Requirement, and shall exercise such control over the Demised Premises as to
fully protect Landlord against any such liability. Tenant shall indemnify and
save the Landlord, the members comprising Landlord and its and their partners,
shareholders, members, officers, directors, employees, agents and contractors
(the "Indemnitees") harmless from and against (x) all claims of whatever nature
against the Indemnitees arising from any act, omission or negligence of Tenant,
its contractors, licensees, agents, servants, employees, invitees or visitors
directly related to the Demised Premises, (y) all claims against the Indemnitees
arising from any accident, injury or damage whatsoever caused to any person or
to the property of any person caused by Tenant, its agents or invitees and
occurring during the Lease Term in or about the Demised Premises, and (z) any
breach, violation or non-performance of any covenant, condition or agreement in
this Lease set forth and contained on the part of Tenant to be fulfilled, kept,
observed and performed. This indemnity and hold harmless agreement shall include
indemnity from and against any and all liability, fines, suits, demands, costs
and expenses of any kind or nature (including, without limitation, attorneys'
fees and disbursements) incurred in or in connection with any such claim or
proceeding brought thereon, and the defense thereof.
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Section 22.2 Landlord's Indemnity. Landlord shall indemnify, defend
and save harmless Tenant and Tenant's shareholders, officers, directors,
employees, agents and contractors (collectively, the "Tenant Indemnitees" ) from
and against any and all claims: (a) arising from any accident, injury or damage
occurring within the Industrial Park, or inside the Demised Premises where such
accident, injury or damage results from the negligent or otherwise wrongful act
or omission of Landlord, its agents, employees or contractors solely in the
fulfillment of Landlord's responsibilities under this Lease; or (b) any default
by Landlord in the performance of Landlord's obligations under this Lease. In
case any action or proceeding be brought against Tenant by reason of such claim,
Landlord, upon notification from Tenant, shall resist and defend such action or
proceeding.
Section 22.3 Defense. If any claim, action or proceeding is made or
brought against a party hereto, which claim, action or proceeding the other
party shall be obligated to indemnify against pursuant to the terms of this
Lease, then, upon demand by the party liable shall resist or defend such claim,
action or proceeding in the name of the indemnified party, if necessary, by such
attorneys as the indemnified party shall approve, which approval shall not be
unreasonably withheld. Attorneys for the Tenant's insurer are hereby deemed
approved for purposes of this Section 22.2. The provisions of this Article 22
shall survive the expiration or earlier termination of this Lease. Each party
shall promptly notify the other, in writing, of any such claim asserted against
it and shall promptly send to the other party copies of all papers or legal
process served upon it in connection with any such action or proceeding.
ARTICLE 23 SUBORDINATION
------------------------
Section 23.1 Fee Mortgage. Landlord shall have the right at any time
during the Lease Term to subject its interest in the Demised Premises, the
Project and/or this Lease to any one or more mortgages on Landlord's interest
therein ("Fee Mortgage") and to renew, modify, consolidate, replace, extend
and/or refinance any such Fee Mortgage. Landlord shall be entitled to all of the
proceeds from any such Fee Mortgage at any time effected pursuant hereto.
Section 23.2 Subordination . This Lease shall at all times be
subordinate to any such Fee Mortgage. The foregoing provisions shall be
self-operative and no further instrument of subordination shall be required. If
Landlord or a Fee Mortgagee desires confirmation of such subordination, Tenant
shall promptly execute, without charge therefor, any certificate that Landlord
or the Fee Mortgagee may request.
Section 23.3 Attornment. Notwithstanding the provisions of Section
23.2 hereof, should any Fee Mortgagee require that this Lease be prior rather
than subordinate to any such Fee Mortgage, Tenant shall, within fourteen (14)
days after request therefor by Landlord or such Fee Mortgagee, and without
charge therefor, execute a document effecting or acknowledging such priority,
which document shall contain, at the option of such requesting party, an
attornment to the Fee Mortgagee, or any person acquiring the interest of
Landlord as a result of any foreclosure or the granting of a deed in lieu of
foreclosure, as landlord, upon the then executory terms and conditions of this
Lease for the remainder of the Lease Term.
Section 23.4 Non-Disturbance. Upon written request of Tenant,
Landlord shall use reasonable efforts to obtain a non-disturbance agreement from
any existing or future mortgagee.
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ARTICLE 24 CERTIFICATES
-----------------------
Section 24.1 On the request of either party, at any time or from
time to time, Landlord and Tenant shall execute, acknowledge and deliver to each
other, within ten (10) days after request, a written instrument, duly executed
and acknowledged, (i) certifying that this Lease has not been modified and is in
full force and effect or, if there has been a modification, that this Lease is
in full force and effect as modified, stating such modification, and that this
Lease is the only lease between Landlord and Tenant affecting the Demised
Premises, (ii) specifying the dates to which Fixed Rent, Additional Rent and
other Rent have been paid, (iii) stating that whether or not, to the knowledge
of the party executing such instrument, the other party hereto is in default
and, if so, stating the nature of such default, (iv) stating whether or not
there are then existing any credits, offsets or defenses against the enforcement
of any provisions of this Lease, (v) stating the Commencement Date, the
Commencement Date and the Expiration Date of this Lease, (vi) stating which
options to extend the Lease Term have been exercised, if any, (vii) stating that
there are no actions, whether voluntary or otherwise, pending against Tenant
under the bankruptcy laws of the United States or any state thereof, and (viii)
stating such further information with respect to the Lease or the Demised
Premises as may reasonably be requested. Any such certificate may be relied upon
by any prospective purchaser of the Demised Premises (or any portion thereof) or
of the interest of Landlord in any part thereof, by any mortgagee or prospective
mortgagee thereof, by a lessor or prospective lessor thereof, by any lessee or
prospective lessee thereof, or by any prospective assignee of any mortgage
thereof. The failure of Tenant to execute, acknowledge and deliver to Landlord a
statement in accordance with the provisions of this Section 24.1 within ten (10)
days after request therefor shall constitute an acknowledgment by Tenant, which
may be relied on by any person who would be entitled to rely upon any such
statement, that such statement as submitted by Landlord is true and correct.
ARTICLE 25 MISCELLANEOUS
------------------------
Section 25.1 No Waiver. Failure of either party to complain of any
act or omission on the part of the other party, no matter how long it may
continue, shall not be deemed to be a waiver by such party of any of its rights
hereunder. No waiver by either party at any time, express or implied, of any
breach of any provision of this Lease shall be deemed a waiver of a breach of
any other provision of this Lease or a consent to any subsequent breach of the
same or any other provision. If an action by either party shall require the
consent or approval of the other party, the other party's consent to or approval
of such action on any one or more occasions shall not be deemed a consent to or
approval of said action on any subsequent occasion or a consent to or approval
of any other action on the same or any subsequent occasion. Any and all rights
and remedies which either party may have under this Lease on any breach shall be
distinct, separate and cumulative and shall not be deemed inconsistent with each
other, and no one of them, whether exercised by such party or not, shall be
deemed to be in exclusion of any other. Any two or more or all of such rights
and remedies may be exercised at the same time.
Section 25.2 Relationship of Parties . Nothing contained in this
Lease shall be construed to create the relationship of principal and agent,
partnership, joint venture or any other relationship between the parties hereto
other than the relationship of Landlord and Tenant. Nothing contained herein
shall in any way impose any liability upon the members, officers or directors of
Landlord.
34
Section 25.3 Recording. Neither Landlord nor Tenant shall record
this Lease; however, upon the request of either party hereto, the other party
shall join in the execution of a memorandum or socalled "short form" of lease
for the purposes of recordation. Said memorandum or short form of lease shall
describe the parties, the Demised Premises, the Lease Term, any subordination,
any special provisions other than those pertaining to Rent, and shall contain
such additional information as may be required for recordation in the
jurisdiction in which the Demised Premises is located.
Section 25.4 Captions. The captions, section numbers, and index
appearing in this Lease are inserted only as a matter of convenience and in no
way define, limit, construe, or describe the scope or intent of such sections or
articles nor in any way affect this Lease.
Section 25.5 Applicable Law. This Lease shall be governed by, and
construed in accordance with the laws of the State of New Jersey. If any
provision of this Lease or the application thereof to any person or
circumstances shall, to any extent, be invalid or unenforceable, the remainder
of this Lease shall not be affected thereby and each provision of the Lease
shall be valid and enforceable to the fullest extent permitted by the law.
Section 25.6 Mechanics Liens.
------------ ---------------
(a) Throughout the Lease Term, Tenant shall not suffer or
permit any liens to stand against the Demised Premises or any part thereof, by
reason of any work, labor, services or materials done for, or supplied, or
claimed to have been done for, or supplied to, Tenant or anyone holding the
Demised Premises or any part thereof through or under Tenant. If any such lien
shall at any time be filed against the Demised Premises, Tenant shall cause the
same to be discharged of record within ten (10) days after the date of filing
the same, by either payment, deposit or bond. If Tenant shall fail to discharge
any such lien within such period, then, in addition to any other right or remedy
of Landlord, Landlord may, but shall not be obligated to, procure the discharge
of the same either by paying the amount claimed to be due by deposit in court or
bonding, and/or Landlord shall be entitled, if Landlord so elects, to compel the
prosecution of an action for the foreclosure of such lien by the lienor and to
pay the amount of the judgment, if any, in favor of the lienor with interest,
costs and allowances. Any amount paid or deposited by Landlord for any of the
aforesaid purposes, and all legal and other expenses of Landlord, including
counsel fees, in defending any such action or in or about procuring the
discharge of such lien, with all necessary disbursements in connection
therewith, together with interest thereon at the Interest Rate from the date of
payment or deposit, shall become due and payable forthwith by Tenant to
Landlord, or, at the option of Landlord, shall be payable by Tenant to Landlord
as Additional Rent.
(b) Nothing in this Lease shall be deemed to be, or construed
in any way as constituting, the consent or request of Landlord, expressed or
implied, by inference or otherwise, to any person, firm or corporation for the
performance of any labor or the furnishing of any materials for any
construction, rebuilding, alteration or repair of or to the Demised Premises, or
any part thereof, or as giving Tenant any right, power or authority to contract
for or permit the rendering of any services or the furnishing of any materials,
which might in any way give rise to the right to file any lien against or
Landlord's interest in the Demised Premises. Landlord shall have the right to
post and keep posted at all reasonable times upon the Demised Premises any
notices which Landlord shall be required so to post for the protection of
Landlord and/or the Demised Premises from any such lien.
35
Section 25.7 Brokerage. Landlord and Tenant each represent that it
dealt with no broker or brokers or other person in connection with the
negotiation, execution and delivery of this Lease, except The Acclaim Group,
LLC, who shall be paid a commission by Landlord pursuant to a separate written
agreement. Each party shall defend, indemnify and hold the other harmless from
and against any claims or demands for any brokerage commissions, finder's fees
and/or other compensation resulting from a breach by it of the foregoing
representation.
Section 25.8 Limitation of Landlord's Liability.
------------ ----------------------------------
(a) The term "Landlord" as used in this Lease means only the
owner of the Demised Premises, for the time being, so that in the event of any
sale of Landlord's interest in the Demised Premises or in this Lease, Landlord
shall be and hereby is entirely freed and relieved of all obligations of
Landlord hereunder with respect to the Demised Premises, and it shall be deemed
without further agreement between the parties and such purchaser(s) or
assignee(s) that the purchaser or assignee has assumed and agreed to observe and
perform all obligations of Landlord hereunder relating to the Demised Premises.
(b) It is specifically understood and agreed that there shall
be no personal liability on the principals of Landlord in respect to any of the
covenants, conditions, or provisions of this Lease. In the event of a breach or
default by Landlord of any of its obligations under this Lease, Tenant shall
look solely to the equity of Landlord in the Demised Premises for the
satisfaction of Tenant's claims, and to no other property or assets of Landlord.
No constituent of Landlord including, without limitation, any agent, partner,
member, shareholder, managing agent or otherwise shall be in any manner
personally liable under this Lease.
Section 25.9 Attorneys' Fees. Should either party hereto institute
any action or proceeding in court to enforce any provision hereof, or for
damages or for declaratory or other relief hereunder, the prevailing party shall
be entitled to receive from the losing party, in addition to court costs, such
amount as the court may adjudge to be reasonable as attorneys' fees for services
rendered to said prevailing party, and said amount may be made a part of the
judgment against the losing party.
Section 25.10 Waiver of Trial by Jury. Landlord and Tenant do hereby
waive trial by jury in any action, proceeding or counterclaim brought by either
against the other upon any matters whatsoever arising out of or in any way
connected with this Lease, Tenant's use or occupancy of the Demised Premises,
and/or any claim of injury or damage.
Section 25.11 Interest Rate. Wherever this Lease refers to "Interest
Rate", same shall be computed at a rate equal to the Prime Rate (hereinafter
defined) plus five (5%) percent for the time period when any interest is due as
provided in this Lease, and, if no time period is designated, the period shall
be from the date of the occurrence in question to the date of payment. If,
however, payment of interest at such rate by Tenant (or by the tenant then in
possession having succeeded to Tenant's interest in accordance with the terms of
this Lease) should be unlawful, i.e., violative of usury statutes or otherwise,
then "Interest Rate" shall, as against such party, be computed at the maximum
lawful rate payable by such party. "Prime Rate" shall mean the prime rate as
published from time to time by the Wall Street Journal, Eastern Edition, for
short term (90day) unsecured loans. Tenant shall pay to Landlord interest at the
Interest Rate for all sums due Landlord which are not paid within twenty (20)
days of their due date.
Section 25.12 Excavations on Adjoining Property. If any excavation or
other building operation shall be about to be made or shall be made upon any
36
adjoining premises or streets, Tenant shall permit any third persons obligated
by law to protect the Building(s), and their respective representatives, to
enter upon the Demised Premises shore the foundations and walls thereof and to
do any other act or thing necessary for the safety or preservation thereof.
Section 25.13 Non-Binding Until Executed. This Lease is offered for
signature by Tenant and it is understood that this Lease shall not be binding
upon Landlord or Tenant unless and until Landlord and Tenant shall have executed
and unconditionally delivered a fully executed copy of this Lease to each other.
Section 25.14 No Claim for Damages. Landlord agrees that whenever it
is required to act pursuant to this Lease, it will do so in a reasonable manner.
Tenant agrees that its sole remedy for any claim that Landlord has unreasonably
withheld or unreasonably delayed any consent or approval requested by Tenant
shall be an action or proceeding to enforce any related provision or for
specific performance, injunction or declaratory judgment. In the event of a
determination that such consent or approval has been withheld or delayed
unreasonably, the requested consent or approval shall be deemed to have been
granted; however, Landlord shall have no liability to Tenant for its refusal or
failure to give such consent or approval. Tenant's sole remedy for Landlord's
unreasonably withhold or delaying consent or approval shall be as provided in
this Section 25.14.
Section 25.15 Independent Covenants. Tenant agrees that Tenant's
covenants and obligations under this Lease shall be independent of Landlord's
covenants and obligations under this Lease and that each such covenant and
obligation is independent of any other covenant or obligation. Landlord's breach
or non-performance of any of Landlord's covenants or obligations under this
Lease shall not excuse Tenant of Tenant's covenants and obligations under this
Lease, and shall not be the basis for any defense, of any kind or nature
whatsoever, to any suit by Landlord for Tenant's breach or non-performance of
any of tenant's covenants or obligations under this Lease (including, without
limitation, Tenant's failure to pay Fixed Rent or Additional Rent). It is the
express agreement of Landlord and Tenant that all payments of Fixed Rent and
Additional Rent due under this Lease are absolutely and unconditionally due at
the time set forth herein, without any right of set-off or deduction of any kind
or nature whatsoever except as expressly provided to the contrary in this Lease.
Section 25.16 Interpretation. No provision of this Lease shall be
construed against or interpreted to the disadvantage of either Landlord or
Tenant by any court or other governmental or judicial authority by reason of
either Landlord or Tenant having or being deemed to have drafted, structured or
dictated such provision.
Section 25.17 Entire Agreement. This Lease and the exhibits attached
hereto and forming a part hereof, set forth all the covenants, promises,
agreements, conditions and understandings between Landlord and Tenant concerning
the subject matter hereof and there are no covenants, promises, agreements,
conditions or understandings heretofore made, either oral or written, between
the parties other than as herein set forth. No modification, amendment, change
or addition to this Lease shall be binding upon Landlord or Tenant unless
reduced to writing and signed by each party.
Section 25.18 Binding Effect. The covenants and agreements contained
in this Lease shall bind and inure to the benefit of Landlord and Tenant and
their respective heirs, personal representatives, successors and assigns.
37
IN WITNESS WHEREOF, the parties have this day set their hands and
seals.
LANDLORD: XXXXXX AT WALL 4, LLC
By: /s/ XXXXXXX XXXXXX
-------------------------------------
Name: Xxxxxxx Xxxxxx
Title: President
TENANT: VELOCITY ASSET MANAGEMENT, INC.
By: /s/ XXXXX X. XXXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: CFO & Chief Legal Officer
38
EXHIBIT A
---------
Legal Description of the Property
---------------------------------
1
EXHIBIT B
---------
Demised Premises
----------------
1
EXHIBIT C
---------
Landlord's Work
---------------
1
EXHIBIT D
---------
Rules and Regulations
---------------------
1. At no time shall the Common Areas be used:
(A) except as hereinafter provided, for any purpose other than
the parking of automobiles of customers of the Project,
deliveries and for access to and from the Buildings within the
Project;
(B) for picketing, hand billing or solicitation, whether of a
political nature or otherwise;
(C) for any use other than a Permitted Use;
(D) by any person or legal entity other than tenants, tenants'
subtenants, licensees and concessionaires, and their
respective assigns, employees, contractors, customers,
invitees and deliverymen;
2. In the event that Tenant shall perform any construction or
alteration in the Project during such time as any premises in the Project shall
be open for business to the public:
(A) with respect to any exterior construction or alteration,
Tenant agrees to erect, or cause to be erected, adequate,
painted construction barricades substantially enclosing the
areas of such construction or alteration, such barricades to
be maintained until such construction or alteration shall be
substantially completed, and
(B) with respect to any construction or alteration, Tenant
will require that all trucks, construction equipment or
machinery enter and exit the Project via the entrance which
will eliminate the possibility of such trucks, equipment or
machinery passing in front of another tenant's premises and
further, such trucks, equipment or machinery will not use any
other portion of the Common Areas and Tenant will otherwise
perform such construction or alteration in such manner as
would minimize the impact on the business of other tenants in
the Project.
3. Tenant shall store within the premises, all trash and garbage
in adequate containers, which shall be maintained in a neat and clean condition.
All trash and garbage shall be located in the area designated by Landlord and in
such manner so as not to create or permit any health hazard or fire hazard.
Tenant, at its own expense, shall arrange for regular removal of said trash and
garbage.
4. Tenants shall not burn any papers, trash or garbage of any
kind in or about the premises or Common Areas.
1
5. Tenant nor any person claiming by or through Tenant, shall, in
or on any part of the Common Areas:
(A) Exhibit any sign, placard, banner, notice, or other
written material, except as otherwise permitted pursuant to
this Lease.
(B) Solicit signatures on any petition or for any other
purpose, disseminate any information in connection therewith,
or distribute any circular, booklet, handbill, placard, or
other material.
(C) Solicit membership in any organization, group, or
association, or solicit contributions for any purpose.
(D) Parade, rally, patrol, picket, demonstrate, or engage in
any conduct that might tend to interface with or impede the
use of any of the Common Areas by any customer, business
invitee, employee, or tenant of the Project, create a
disturbance, attract attention, or harass, annoy, disparage,
or be detrimental to the interest of any of the tenants within
the Project.
6. Tenant agrees to promptly remove or cause to be removed from
the Project, all persons hired or engaged by Tenant who are actively creating
labor disharmony and to comply with Landlord's directives in providing separate
accommodations and accesses to the extent necessary and appropriate in
connection with the construction of the various improvements upon the Project.
In no event shall Tenant be expected or obligated to engage in any conduct which
is in conflict with or violates any federal, state or local law including,
without limitation, the National Labor Relations Act or the regulations thereto.
Nothing contained herein shall be construed to require either Landlord or Tenant
to use any particular contractor.
2
