FIRST AMENDMENT TO LEASE
This First Amendment to Lease dated as of this 1st day of January, 1997
by and between J.W.S. Partnership, an Illinois general partnership
(hereinafter referred to as "Lessor") and Battery Network, Inc., an Illinois
corporation (hereinafter referred to as "Lessee").
WITNESSETH
WHEREAS, Lessor and Lessee are parties to a certain Lease dated as of the
1st day of January, 1997 for the property commonly known as 00 Xxxxxxx Xxxx,
Xxxx 0, Xxxxx Xxxxxx, Xxx Xxxxxx 00000 for a five (5) year term commencing
January 1, 1997 and ending on December 31, 2001; and
WHEREAS, the parties hereto desire to amend the Lease to provide for an
option for an additional five (5) year term upon the expiration of the initial
five (5) year term of the Lease.
NOW THEREFORE, in consideration of the mutual covenants and conditions in
the Lease and as hereinafter contained, the parties agree as follows:
1. The Lease is hereby modified to add the following Sections 3102:
"3102. Lessee shall have the right, exercisable by giving
written notice thereof to Lessor, at least six (6) months prior to
the expiration of the primary term of this Lease to extend the term
of this Lease for an additional term of five (5) years commencing on
January 1, 2002 and expiring on December 31, 2006, upon all of the
terms, covenants and conditions hereof except that the Minimal
Annual Rental shall be determined as hereinafter set forth in
Section 3102, provided that (i) Lessee shall not be in default
pursuant to the terms of this Lease as of the date of such exercise
and as of the commencement of such renewal term and (ii) there has
been no prior termination of this Lease."
2. The Lease is hereby modified to add the following Sections 3102:
"3102. The Minimal Annual Rental payable during the option period
shall be equal to the Minimal Annual Rental payable during the last
year of the initial term of the Lease subject to an increase
commencing with the first year of the option term in accordance with
the provisions of Sections 301(a)(ii). Each successive year of the
option term shall be subject to increase in accordance with the
provisions of said Sections 301 (a)(ii)."
3. Except as modified herein all terms and conditions of the Lease shall
remain in full force and effect.
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IN WITNESS WHEREOF the parties hereto have executed this First
Amendment to Lease as of the date and year first above written.
LESSOR:
J.W.S. PARTNERSHIP
/s/ Xxxxx Xxxxxx
-------------------------
Xxxxx Xxxxxx
Title: General Partner
LESSEE:
BATTERY NETWORK, INC.
/s/ Xxxxx Xxxxxx
---------------------------
Xxxxx Xxxxxx
Title: President
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L E A S E
---------
THIS LEASE, effective as of this 1st day of January, 1997, between J.W.S.
PARTNERSHIP, an Illinois General Partnership (hereinafter referred to as
"Lessor,") and BATTERY NETWORK, INC., an Illinois corporation, (hereinafter
referred to as "Lessee").
W I T N E S S E T H:
PREMISES
--------
SECTION 101. Lessor, for and in consideration of the rents herein
reserved and of the covenants and agreements herein contained on the part of
the Lessee to be kept, observed and performed, does by these presents, demise
and lease to Lessee, and Lessee hereby hires and lets from Lessor, the real
estate commonly known as 00 Xxxxxxx Xxxx, Xxxx 0, Xxxxx Xxxxxx, XX 00000, and
legally described on Exhibit A attached hereto and made a part hereof,
together with all improvements now located and hereinafter located thereon.
SECTION 102. Said real estate and improvements are sometimes herein
referred to as "demised premises."
TERM
----
SECTION 201. The term of this Lease shall be for a period of five (5)
years commencing on January 1, 1997, and terminating on December 31, 2001.
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RENTAL
------
SECTION 301. Lessee agrees to pay as rental for the use and occupancy of
the demised premises, at the times and in the manner hereinafter provided, the
following sums of money:
(a) MINIMUM ANNUAL RENTAL: For the purposes hereof, "Minimum Annual
Rental" shall mean the amount provided in this Section 301, adjusted as
provided in this Lease.
(i) Lessee agrees to pay to Lessor without deduction or set-off
of any kind, the sum of Eighty Thousand Four Hundred and 00/100 ($80,400.00)
Dollars per annum as Minimum Annual Rental for the leased premises, said
Minimum Annual Rental to be payable in twelve (12) equal monthly installments
of Six Thousand Seven Hundred and 00/100 ($6,700.00) Dollars, in advance, upon
the first day of each and every month during the term hereof, commencing on
January 1, 1997 (the Rental Commencement) and, subject to the terms of this
Lease, ending upon the termination date of this Lease. In the event such
rental shall be determined to commence or end on a day other than the first
day of last day respectively of a month, then the monthly installment of the
Minimum Annual Rental for such partial month shall be prorated accordingly.
All past due rentals, additional rentals, and/or other sums due to Lessor
under the terms of this Lease shall bear interest from the due date until paid
by Lessee, at a rate equal to the then published prime rate of The First
National Bank of Chicago plus two percent (2%) (such rate of interest is
hereinafter referred to as the "Default Rate"); and such interest shall be
deemed to be additional rental. All rentals provided for in this Lease (those
hereinafter stipulated as well as said Minimum Annual Rental) shall be paid or
mailed to:
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J.W.S. PARTNERSHIP
0000 Xxxxxx Xxxx
XxXxxxx, Xxxxxxxx 00000, Attention: Xx. Xxxxx Xxxxxx
or to such other payee or address as Lessor may designate in writing to
Lessee. Payments shall be deemed made only upon receipt by such payee at such
address.
(ii) The Minimum Annual Rental shall be increased on each
anniversary of the Rental Commencement Date commencing with the second
anniversary of the Rental Commencement Date by an amount equal to the percent
increase of the Consumer Price Index (All items - Chicago-Xxxx-Lake County,
1982-84 = 100) ("Index") as published by the United States Department of
Labor, Bureau of Labor Statistics, for the "Comparison Month" (described
below) over the Index for the calendar month ("Base Month") which is two (2)
months prior to the first (1st) anniversary of the Rental Commencement Date.
The Base Month Index shall be compared with the Index for the month which is
two (2) months prior to the applicable anniversary of the Rental Commencement
Date ("Comparison Month"). If the Index for any Comparison Month is higher
than the Base Month Index, then the Minimum Annual Rental for the lease year
following the Comparison Month shall be increased commencing on each
anniversary of the Rental Commencement Date by a percentage which shall be
calculated by dividing that number which represents the difference when
subtracting the Base Month Index from the Index for any Comparison Month by
the Base Month Index. In no event, shall the Minimum Annual Rental be less
than 100% of the Minimum Annual Rent payable during the preceding year. If
said increase is determined after the rental has been paid for the month of
the anniversary of the Rental Commencement Date or subsequent months, Lessee
shall pay to Lessor the amount of any shortage upon demand. Should said Bureau
discontinue the
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publication of the Index, or publish the same less frequently, or alter the
same in some other manner, then Lessor shall adopt a substitute Index or
substitute procedure which reasonably reflects and monitors consumer prices.
TAXES AND ASSESSMENTS
---------------------
SECTION 401: Lessee further agrees to pay as additional rent for the
demised premises, all taxes and assessments, general and special, water rates,
condominium assessments (if applicable), and all other impositions, ordinary
and extraordinary, of every kind and nature whatsoever, which may be levied,
assessed or imposed upon the demised premises or any part thereof or upon any
building or improvements at any time situated thereon, accruing or becoming
due and payable during the term of this Lease and any extension thereof
provided, however, that the general taxes levied against the demised premises
shall be prorated between Lessor and Lessee as of the date of expiration of
said term for the last year of the term hereof and any extension thereof, all
on the basis of the then last available tax bills.
SECTION 402. Nothing herein contained shall be construed to require
Lessee to pay any franchise, inheritance, estate, succession or transfer tax
of Lessor or any income or excess profits tax assessed upon or in respect of
any income of Lessor or chargeable to or required to be paid by Lessor unless
such tax shall be specifically levied against the gross income of Lessor
derived from the rent by this Lease reserved, expressly and as and for a
specific substitute for the real estate taxes, in whole or in part, upon the
demised premises or the improvements situated thereon, in which event said
rent shall be considered as the sole income of Lessor.
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SECTION 403. Upon written request, Lessee further agrees to deliver to
Lessor duplicate receipts or photostatic copies thereof showing the payment of
all said taxes, assessments and other impositions within thirty (30) days
after the due date for payment.
SECTION 404. Lessor shall, at her option, have the right at all times
during the term hereof to pay any such taxes, assessments or other charges or
impositions not paid by Lessee within thirty (30) days after the due date
thereof, and the amounts so paid, including reasonable expenses, interest and
penalties, if any, shall be so much additional rent due at the next rent day
after any such payments, with interest at The First National Bank of Chicago's
then prime rate plus two percent (2%) per annum from the date of payment
thereof.
SECTION 405. Lessee shall not be required to pay any tax, assessment, tax
lien or other imposition or charge upon or against said demised premises or
any part thereof or the improvements at any time situated thereon so long as
Lessee shall, in good faith and with due diligence, contest the same or the
validity thereof by appropriate legal proceedings which shall have the effect
of preventing the collection of the tax, assessments, tax lien or other
imposition or charge so contested, provided that, pending any such legal
proceedings Lessee shall give Lessor such reasonable security as may be
demanded by Lessor to ensure payment of the amount of the tax, assessment, tax
lien or other imposition or charge, and all interest and penalties thereon.
SECTION 406. In the event that Lessee at any time institutes suit to
recover any tax, assessment, tax lien or other imposition or charge paid by
Lessee under protest in Lessor's name, Lessee shall have the right at its own
sole expense, to institute and prosecute such suit or suits in Lessor's name,
in which event Lessee covenants and agrees to indemnify Lessor
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and save her harmless from and against all costs, charges or liabilities in
connection with any such suit. All funds recovered as a result of any such
suit shall belong to Lessee.
USE
---
SECTION 501. The demised premises may be used and occupied for
assembly, warehouse, office and related business purposes, provided, however,
that if the use thereof is other than assembly, warehouse, office and related
business purposes, then notwithstanding anything to the contrary hereinbefore
or hereinafter stated, if said use causes wear and tear to the leased premises
over and above the wear and tear the premises would have been subject to if
used for assembly, warehouse, office and related purposes, then Lessee shall
restore the premises at the end of the term or any extended term to the same
condition as the premises would have been had they been used for assembly,
warehouse, office and related purposes.
Lessee shall not use or occupy the demised premises or permit the demised
premises to be used or occupied contrary to any statute rule, order,
ordinance, requirement or regulation applicable thereto or in any manner which
would violate any certificate of occupancy affecting the same, or which cause
structural injury to the improvements or preclude the obtaining of insurance
as required under the terms of this Lease or cause the value or usefulness of
the demised premises or any part thereof to diminish or which would constitute
a public or private nuisance or waste, and Lessee agrees that it will,
promptly upon discovery of any such use, take all necessary steps to compel
the discontinuance of such use and to oust the principal occupant guilty of
such use.
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UTILITIES
---------
SECTION 601. Lessee agrees to pay or cause to be paid all charges for
gas, water, electricity, light, heat or power, telephone or other
communication service used, rendered or supplied upon or in connection with
the demised premises throughout the term of this Lease, (and if any of the
foregoing are not paid when due the same shall constitute additional rent
under this Lease), and to indemnify Lessor and save her harmless against any
liability or damages on such account. Lessee further shall, at its sole cost
and expense, procure any and all necessary permits, licenses or other
authorizations required for the lawful and proper installation and maintenance
upon the demised premises of wires, pipes, conduits, tubes and other equipment
and appliances for use in supplying any such service to and upon the demised
premises.
REPAIR AND MAINTENANCE OF PREMISES
----------------------------------
SECTION 701. Lessee shall be responsible for repairs to the building
systems, foundation, roof and structural members of the demised premises and
for structural repairs to the exterior walls. Lessee represents that it has
inspected the demised premises and accepts the demised premises in the
condition it is in at the commencement of this Lease and shall maintain said
demised premises in the same condition, order and repair as it is at said
time.
SECTION 702. Lessee covenants through the term of this Lease, at Lessee's
sole cost and expense, to take good care of the demised premises, the
buildings and improvements now or at any time erected thereon, including but
not limited to the equipment, fixtures, motors and machinery thereof, and the
parking areas, sidewalks, fences and vaults, if any, and to keep the same in
good order and condition (except for reasonable wear), and shall
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promptly, at Lessee's own cost and expense, make all necessary repairs,
structural and nonstructural, ordinary as well as extraordinary, foreseen as
well as unforeseen. The term "repairs" and "maintenance" shall include
replacements or renewals when necessary, and all such repairs made by Lessee
shall be equal in quality and class to the original work. At the termination
of this Lease, Lessee shall surrender the premises in the same condition as
when received, except for reasonable use and natural wear.
SECTION 703. All work done in connection with any repairs or alterations
shall be done in good and workmanlike manner and in compliance with building
and zoning ordinances, and with all other applicable laws, ordinances, rules,
regulations and requirements of all federal, state and municipal governments
or appropriate departments, commissions, boards and officers thereof, and in
accordance with the rules, orders and regulations of the fire underwriters.
Lessee shall provide lien waivers to Lessor and any other documentation which
may be reasonably required by any title company examining same to ensure
prompt and full payment for any such repairs.
SECTION 704. Lessor shall have the right at all times by its duly
authorized agents to go upon and inspect the demised premises during
reasonable business hours except in emergency situations, and Lessor may make
demand in writing upon Lessee to make any necessary repairs to the demised
premises, which are the obligation of Lessee. In the event that Lessee shall
fail to make any such repairs within thirty (30) days after notice by Lessor,
Lessor may enter upon the demised premises and cause such repairs to be made,
and charge the cost thereof to Lessee as additional rental with all the rights
and remedies hereinafter provided for the collection of rents, provided,
however, such payments must be reimbursed
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to Lessor within ten (10) days after Lessee's receipt of invoices for such
work and payments not made within such ten (10) day period shall bear interest
at a per annum rate equal to the First National Bank of Chicago's then prime
rate plus two percent (2%) from the date when the same was due hereunder until
the same shall be paid. Nothing herein shall imply any duty upon the part of
the Lessor to do any such work, which, under provision of this Lease, Lessee
shall be required to perform and the performance thereof by Lessor shall not
constitute a waiver of Lessee's default in failing to perform the same. Lessor
may, during the progress of any work in the demised premises, keep and store
upon the demised premises all necessary materials, tools and equipment. Lessor
shall not in any event be liable for inconvenience, annoyance, disturbance,
loss of business or other damages to Lessee by reason of making repairs or the
performance of any work in the demised premises during the course thereof, and
the obligation of Lessee under this Lease shall not thereafter be affected in
any manner whatsoever. Lessor agrees, however, in connection with the doing of
any such work, to cause as little inconvenience, annoyance, disturbance, loss
of business or other damage to Lessee as may reasonably be possible in the
circumstances.
LIABILITY AND BOILER INSURANCE
------------------------------
SECTION 801. Lessee further agrees that it will at all times during the
term hereof, carry and maintain, for the mutual benefit or Lessor and Lessee,
general public liability insurance against claims for personal injury,
sickness or disease, including death and property damage in, on or about the
demised premises, or in, on or about the streets, sidewalks or premises
adjacent to the demised premises, such insurance to afford protection to the
limit of not less than One Million and 00/100 Dollars ($1,000,000.00) bodily
injury
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and property damage per occurrence. Lessee shall furnish Lessor with a
duplicate certificate or certificates of such insurance policy or policies
naming Lessor and its beneficiary as additional insured. All such insurance
shall be procured from a responsible company or companies reasonably
satisfactory to Lessor and authorized to do business in the state where the
demised premises are located and may be obtained by Lessee by endorsement on
its blanket insurance policies, provided the insurance company or companies
are reasonably satisfactory to Lessor. All such policies shall provide that
the same may not be canceled or altered except upon thirty (30) days' prior
written notice to Lessor.
FIRE INSURANCE
--------------
SECTION 901. Lessee shall, at all times during the term of this
Lease, at its expense, keep in effect, insurance on all buildings and
improvements on the demised premises against loss by fire, the risks covered
by what is commonly known as "extended coverage," malicious mischief and
vandalism, in an amount equal to the replacement value, excluding foundation,
from time to time, of such buildings and improvements. The policy or policies
evidencing such insurance shall be written by a company or companies
reasonably satisfactory to Lessor and authorized to do business in the state
where the demised premises are located, and shall provide that losses shall be
paid to said Lessor and Lessee. The deductible on Lessee's fire insurance
shall not exceed $1,000.00. Lessor and its beneficiary shall be named as loss
payee on said policy. The policy shall contain a waiver by the insurance
company of recourse against Lessor and Lessee and their officers and agents
because of any act or negligence of Lessor or Lessee and shall further provide
that the same
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shall not be canceled or altered except upon ten (10) days prior written
notice to Lessor and to its mortgagee.
SECTION 902. In case Lessee shall at any time fail, neglect or refuse to
insure such buildings and improvements and to keep the same insured as
hereinabove provided, then Lessor may, at her election, procure or renew such
insurance, and any amounts paid therefor by Lessor shall be so much additional
rental due at the next rent day after any such payment, with interest at a per
annum rate equal to The First National Bank of Chicago's then prime rate, plus
two (2%) percent, from the date of payment thereof.
SECTION 903. It is further agreed that, in the event of loss under any
such policy or policies, the insurance proceeds shall be deposited into an
escrow at Chicago Title Insurance Company and paid out during the course of
Lessee's repairs and rebuilding upon deposit of proper lien waiver
documentation and architects' certificates, and providing the terms of Section
1002 shall be complied with, for the expense of repairing or rebuilding the
buildings or improvements which have been damaged or destroyed, provided,
however, that it shall first appear to the reasonable satisfaction of Lessor
that the amount of insurance money in its hands shall at all times be
sufficient to pay for the completion of said repairs and rebuilding; and upon
the completion of said repairs or rebuilding, free from all liens of mechanics
and materialmen and others, any surplus of insurance money shall be paid to
Lessor. In the event the insurance proceeds are not sufficient to complete the
repairs or rebuilding, Lessee shall immediately deposit with Lessor a sum
sufficient to increase the monies on deposit to an amount equal to the cost or
repairing or rebuilding the buildings or improvements. The cost of said escrow
shall be paid by Lessee.
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DAMAGE OR DESTRUCTION
---------------------
SECTION 1001. Lessee further agrees that in case of damage to or
destruction of any building or improvements on the demised premises or of the
fixtures and equipment therein, by fire or other casualty, it will promptly
repair, restore or rebuild the same to a condition equal to or greater than
existed immediately prior to such damage. Lessor shall cooperate with Lessee
in the event the damage is caused by an insurable risk and shall make
available to Lessee for said repair or rebuilding the entire insurance
proceeds arising out of such damage or destruction. Rent shall not xxxxx
during the period of such repair, restoration or rebuilding or if the
improvements are not tenantable because of such damage or destruction.
SECTION 1002. Before commencing such repairing, restoration or
rebuilding, involving an estimated cost of more than One Hundred Thousand and
00/100 Dollars ($100,000.00), (a) plans and specifications therefor shall have
been submitted to and approved by Lessor, provided, however, that Lessor shall
not unreasonably withhold nor delay its approval and further provide that
Lessor shall be deemed to have approved such plans and specifications if they
provide for repair, restoration or rebuilding to a condition substantially
similar to the condition existing prior to the occurrence of the damage or
destruction; (b) Lessee shall have furnished to Lessor, an estimate of the
cost of the proposed work certified by a licensed architect by whom such plans
and specifications shall have been prepared; and (c) Lessee shall establish a
construction escrow at Chicago Title Insurance Company and otherwise comply
with the terms and provisions of Section 903.
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LIENS
-----
SECTION 1101. Lessee shall not do any act which shall in any way encumber
the title of Lessor in and to said demised premises nor shall the interest or
estate of Lessor in said demised premises be in any way subject to any claim
by way of lien or encumbrance, whether by operation of law or by virtue of any
express or implied contract by Lessee, and any claim to or lien upon said
demised premises arising from any act or omission of Lessee shall accrue only
against the leasehold estate of Lessee and shall in all respects be subject
and subordinate to the paramount title and rights of Lessor in and to said
premises and the buildings and improvements thereon.
Lessee will not permit the demised premises to become subject to any
mechanic's, laborers' or materialmen's lien on account of labor or materials
furnished to Lessee or claimed to have been furnished to Lessee in connection
with work of any character performed or claimed to have been performed on the
demised premises by or at the direction or sufferance of Lessee; provided,
however, that Lessee shall have the right to contest in good faith and with
reasonable diligence, the validity of any such lien or claimed lien if Lessee
shall give to Lessor reasonable security to ensure payment thereof and to
prevent any sale, foreclosure or forfeiture of the demised premises by reason
of nonpayment thereof; provided on final determination of the lien or claim
for lien, Lessee will immediately pay any judgment rendered, with all proper
costs and charges, and will, at its own expense, have the lien released and
any judgment satisfied. Lessee shall remove or bond over any such lien claim
within thirty (30) says after receipt of written notice from Lessor.
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SECTION 1102. In case Lessee shall fail to contest the validity of any
lien or claimed lien and give security to Lessor to ensure payment thereof, or
having commenced to contest the same and having given such security, shall
fail to prosecute such contest with diligence, or shall fail to have the same
released and satisfy any judgment rendered thereon, then Lessor may, at its
election (but shall not be required so to do) remove or discharge such lien or
claim for lien (with the right, in its discretion, to settle or compromise the
same) and any amounts advanced by Lessor for such purposes shall be so much
additional rental due from Lessee to Lessor at the next rental day after any
such payment, with interest at a per annum rate equal to The First National
Bank of Chicago's then prime rate, plus two (2%) percent, from the date of
payment thereof.
CONDEMNATION
------------
SECTION 1201. In the event the whole of the demised premises shall be
taken or condemned for a public or quasi-public use or purpose by any
competent authority, then the term of this Lease shall terminate when
possession of the demised premises shall be required for such use or purpose.
SECTION 1202. In the event only a portion of the demised premises shall
be taken or condemned for a public or quasi-public use or purpose by any
competent authority, and as a result thereof this Lease may not be terminated
as per the terms of Section 1203 by Lessee as to a portion of the demised
premises, then Lessor at her sole cost and expense shall repair and restore
the demised premises to a condition substantially similar to the condition
which existed prior to the taking, which restoration shall take place after
Lessor has been paid the condemnation proceeds. Further the annual net rental
due under the terms of this Lease shall
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be reduced on a pro rata basis based upon the reduction of square footage of
the building from the size of the original building.
SECTION 1203. In the event in excess of fifty (50%) percent of the square
footage of the building shall be taken for public or quasi-public purposes,
and the remaining portion of any such parcel is not suitable for the purpose
for which it is then being used, then Lessee shall have the option of
terminating this Lease on the date possession of the parcel or parcels is
surrendered to the governmental agency condemning the same, by giving written
notice to Lessor of its election so to do, which notice must be given within
sixty (60) days of the date of the notice given to the parties of such
condemnation. In the event such option to terminate is not so exercised within
the sixty (60) day period, then it cannot be exercised thereafter but the
annual net rental due under the terms of this Lease shall be reduced on a pro
rata basis based upon the reduction of square footage from the size of the
original parcel. Also, if such option to terminate is not so exercised Lessor
shall, at its sole cost and expense, repair and restore as set forth in
Section 1202.
It is further understood and agreed that anything notwithstanding stated
in Section 1203 Lessor shall not be required to restore any leasehold
improvements to which Lessee will be entitled to a portion of the award as
specified in Section 1204 of this Lease.
SECTION 1204. It is expressly agreed and understood that all sums awarded
or allowed for such taking of said leased premises or any part thereof, or for
damages for such taking, or paid in lieu thereof, shall belong to Lessor, and
the same are hereby assigned to Lessor, and Lessee shall have no interest in
or claim to such award, or any part thereof, whether such award shall be for
the taking of such property or for damages or otherwise. Lessee
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may, at its own expense, take independent proceedings against the public
authority exercising the power of Eminent Domain, to prove and establish any
damage Lessee may have sustained.
RENT ABSOLUTE
-------------
SECTION 1301. Except as otherwise specifically provided herein, damage to
or destruction of any portion or all of the buildings, structures and fixtures
upon the demised premises, by fire, the elements or any other cause
whatsoever, whether with or without fault on the part of Lessee, shall not
terminate this Lease or entitle Lessee to any abatement of or reduction in the
rent payable, or otherwise affect the respective obligations of the parties
hereto, any present or future law to the contrary notwithstanding. If the use
of demised premises for any purpose should at any time during the term of this
Lease, be prohibited by law or ordinance or other governmental regulation, or
prevented by injunction, this Lease shall not, except as otherwise
specifically provided herein, be thereby terminated, nor shall Lessee be
entitled by reason thereof to surrender the demised premises or to any
abatement or reduction in rent.
ASSIGNMENT AND SUBLET
---------------------
SECTION 1401. Lessee shall not have the right without the written consent
of Lessor to assign this Lease or to sublet all or any portion or portions of
the demised premises, provided, however, such consent shall not be
unreasonably withheld. In the event of any assignment, letting or subletting,
Lessee shall remain liable to Lessor for the performance of all the
obligations imposed on Lessee under the terms of this Lease, and with such
assignee or sublessee shall be jointly and severally bound to abide by the
terms of this Lease, and said
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Lessee shall obtain from its assignee or sublessee such forms or other
documents as may be reasonably required by Lessor to bind such assignee or
sublessee, together with Lessee, to the terms and obligations of this Lease.
No sublessee or assignee shall have the right to pay the mortgage on the
premises directly to the Mortgagee or the right to exercise the right of first
refusal, the right of first offer or the rights to extend the term of the
lease.
SECTION 1402. Lessor shall have the absolute right to sell, assign,
transfer, set over and convey any or all of its right, title and interest in
and to this Lease, including the rent to accrue hereunder.
RESPONSIBILITY OF LESSEE
------------------------
SECTION 1501. Lessee agrees to indemnify and save harmless Lessor against
and from any and all claims, costs, losses, expenses and fees by or on behalf
of any person or persons, firm or firms, corporation or corporations,
municipality, state or federal agency or entity, arising from the conduct or
management of or from any work or thing whatsoever, done in or about the
demised premises during the term hereof and to further indemnify and save
Lessor harmless against and from any and all claims, costs, losses, expenses
and fees arising during the term of this Lease from the demised premises, or
any vaults, passageways or spaces therein or appurtenant thereto, or signs
affixed to the demised premises, or arising from any breach or default on the
part of Lessee in the performance of any covenant or agreement on the part of
Lessee to be performed pursuant to the terms of this Lease or arising from any
act of negligence of Lessee, or any of its agents, contractors, servants,
employees or licensees, or arising from any accident, injury or damage
whatsoever caused to any person, firm or corporation occurring during the term
of this Lease in or about the
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demised premises, or upon or under the sidewalk and the land adjacent thereto,
and from and against all costs, counsel fees, expenses and liabilities
incurred in or about any such claim or action or proceeding brought thereon,
and in case any action or proceeding be brought against Lessor by reason of
any such claim, Lessee, upon notice from Lessor, covenants to resist or defend
such action or proceeding, with counsel reasonably acceptable to Lessor,
provided, however, that Lessee shall not be liable for acts or omissions of
Lessor, its agents or employees.
INDEMNITY FOR LITIGATION
------------------------
SECTION 1601. Lessee further agrees to pay all costs and expenses,
including attorneys fees, which may be incurred by or imposed on Lessor in
enforcing this Lease, and if paid by Lessor, shall be so much additional rent
due on the next rent date after such payment together with interest at a per
annum rate equal to The First National Bank of Chicago's then prime rate, plus
two (2%) percent, from the date of payment thereof. Anything to the contrary
notwithstanding under Section 1601, the Lessee's obligation to pay costs,
expense and attorneys' fees as provided in this section shall apply only if
Lessor is successful in any litigation involving the enforcement of this Lease
by Lessor. Lessor shall be obligated to pay all Lessee's costs, expenses and
attorneys' fees incurred by Lessee because of Lessee, through no fault of
Lessee, becoming a defendant in any litigation arising out of this Lease.
ESTOPPEL CERTIFICATE
--------------------
SECTION 1701. Lessee further agrees at any time and from time to time,
upon not less than ten (10) days prior written request by Lessor, to execute,
acknowledge and deliver to
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Lessor a statement in writing certifying that this Lease is unmodified and in
full force and effect if such be the case (or if there have been
modifications, that the same is in full force and effect as modified, and
stating the modifications) and the date to which the rental and other charges
have been paid in advance, if any, and such other representations as may be
reasonably requested by Lessor, it being intended that any such statement
delivered pursuant to this Section 1701, may be relied upon by a prospective
purchaser of the fee, or mortgagee or assignee of any mortgage upon the fee of
the demised premises.
ALTERATIONS
-----------
SECTION 1801. Lessee shall not make any exterior or interior, structural
alterations, improvements or additions to the demised premises without the
prior written consent of Lessor, which consent will not be unreasonably
withheld. Lessee shall pay the entire cost of all such alterations,
improvements or additions. All alterations, improvements, additions or
fixtures installed upon the premises shall remain upon the premises at the
expiration or sooner termination of this Lease and become the property of
Lessor, excepting such trade fixtures that are susceptible of removal without
structural damage or injury to said premises, provided such removal shall not
damage the premises in such manner as to reduce its value and that Lessee
shall restore as hereinafter provided. In the event of the removal of any such
trade fixtures, Lessee shall place that portion of the demised premises in the
same condition as prior to the installation or placement thereof. Lessor may,
upon the termination of this Lease, give written notice to Lessee to remove,
and thereupon Lessee shall remove such alterations, improvements and
additions, and restore the premises to the same good order and
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condition in which they were prior to the making of such alterations,
additions or improvements, except for reasonable use and natural wear.
SECTION 1802: Lessor may require, as a condition for its consent to the
making of any exterior and interior alterations, additions or improvements,
Lessee's compliance with Section 1002 and proof of the procurement of all
municipal permits and other governmental permits for such alteration, approval
of Lessor of detailed plans and specifications for any structural change or
alterations, which approval shall not be unreasonably withheld, and
satisfactory guarantee against mechanics' liens. Lessor may also require proof
of workmen's compensation, public liability and property damage insurance in
amounts and in companies reasonably satisfactory to Lessor, including
insurance coverage for Lessor and its beneficiary from all major contractors
employed for such alterations. All payments for such work shall be processed
in the manner set forth in Section 903 through an escrow at Chicago Title
Insurance Company.
SECTION 1803. In the event Lessor has consented to Lessee's alteration,
Lessee shall submit to Lessor copies of all architectural, structural and
mechanical drawings, plans and specifications for the proposed work, as well
as copies of all contracts let or to be let for the work.
DISPLAY OF SIGNS
----------------
SECTION 1901. Lessor is hereby given the right, during usual business
hours to enter and inspect the demised premises and to exhibit the same to
prospective purchasers. Lessor shall also have the right, during the last six
(6) months of the term of this Lease, to display the usual "for sale" or "for
rent" signs in such manner as to not unreasonably interfere with
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Lessee's business, and the Lessee agrees that such signs may remain unmolested
upon the demised premises.
SECTION 1902. Lessee shall have the right to install, maintain and
display upon the demised premises such inside and outside signs as Lessee may
reasonably deem necessary or desirable for the carrying on of its business,
provided that such signs shall be restricted to those advertising Lessee's
name or the products manufactured or sold by Lessee, and shall comply with all
local, county or state laws, or any regulations and restrictions applicable
thereto. Lessee agrees that all signs installed by it shall not hinder the
obtaining of any liability or fire insurance required under the terms of this
Lease and shall not create any damage to the premises being leased at the time
of installation. Further, Lessee agrees that at the time this Lease is
terminated, Lessee shall remove the signs upon request by Lessor and repair or
replace at Lessee's cost any damage done by installation thereof, normal wear
and tear excepted.
SECTION 1903. It is expressly understood and agreed that this Lease shall
be subject and subordinate to any mortgage or mortgages or deed of trust now
upon the demised premises and be subject and subordinate to any first mortgage
hereafter placed upon the demised premises by Lessor. Lessee agrees to
execute, if the same is required within ten (10) days of submission to Lessee,
any and all instruments in writing which may be requested by Lessor to
subordinate Lessee's rights acquired by the Lease to the lien of any mortgage
described herein.
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NON-LIABILITY OF LESSOR
-----------------------
SECTION 2001. To the extent permitted by law, Lessor shall not be liable
to Lessee or to its officers, agents and employees for any injury done or
occasioned by wind or by or from any defect of plumbing, electric wiring or of
insulation thereof, gas pipes, water pipes or steam pipes, or from broken
stairs, railings or walks, or from the backing up of sewer pipe or downspout,
or from the bursting, leaking or running of any tank, tub, washstand, water
closet or waste pipe, drain, or any other pipe or tank in, upon or about the
premises or the building of which they are a part nor from the escape of steam
or hot water from any radiator, it being agreed that said radiators are under
the control of Lessee, nor for any such damage or injury occasioned by water,
snow or ice being upon or coming through the roof, skylight, trap door,
stairs, walks or any other place upon or near the premises, or otherwise, nor
for any such damage or injury done or occasioned by the falling of any
fixture, nor for any damage or injury arising from any act, omission, or
negligence of other persons, occupants of adjoining or contiguous buildings or
of owners of adjacent or contiguous property, or of Lessor's agents, employees
or officers, all claims for any such damage or injury being hereby expressly
waived by Lessee.
COVENANT OF QUIET POSSESSION
----------------------------
SECTION 2101. The Lessee, upon the payment of the rent herein reserved
and upon the performance of all the terms of this Lease, shall at all times
during the lease term and during any extension or renewal term peaceably and
quietly enjoy the leased property without any disturbance from the Lessor or
from any other person claiming through the Lessor.
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DEFAULT AND LESSOR'S REMEDIES
-----------------------------
SECTION 2201. The following events shall constitute a default by Lessee:
(a) Failure to pay any of the rentals or other monies provided to be
paid herein within five (5) days after the due date for payment of
rentals or other monies due to Lessor;
(b) Failure to pay, when due, any taxes, assessments or other
charges as required herein, unless in the case of taxes or assessments
there be a permissive contest as authorized in this Lease;
(c) Failure to observe or perform any other covenants, conditions,
agreements or provisions hereof, which are not remedied within thirty
(30) days after notice of such default in writing from Lessor or in the
case of such covenants, conditions, agreements or provisions which are
not capable of being remedied within thirty (30) days, the failure to
diligently proceed to remedy such covenant, condition, agreement or
provision continuously to completion;
(d) If Lessee makes an assignment for the benefit of creditors, or
applies for or consents to the appointment of a trustee or receiver for
all or for a major part of its property;
(e) If a trustee or receiver is appointed for Lessee or for the
major part of its property and is not discharged within ninety (90) days
after such appointment;
(f) If bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings for relief under any
bankruptcy law or similar law for the relief of debtors is instituted by
or against Lessee, and if instituted against
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Lessee, is allowed against Lessee, or is consented to, or is not
dismissed within ninety (90) days after such institution;
SECTION 2202. In the case of any default as hereinabove provided, Lessor
may, at her option, exercise any one or more of the following remedies:
(a) Lessor may terminate this Lease by giving to Lessee notice of
Lessor's intention so to do, in which event the term of this Lease or any
renewal thereof shall end, and all right, title and interest of Lessee
hereunder shall expire on the date stated in such notice, which shall not
be less than ten (10) days after the date of the notice by Lessor of her
intention so to terminate;
(b) Lessor may terminate the right to Lessee to possession of the
premises by giving notice to Lessee that Lessee's right of possession
shall end on the date stated in such notice, which shall not be less than
ten (10) days from the date of such notice, whereupon the right of Lessee
to the possession of the premises or any part thereof shall cease on the
date stated in such notice;
(c) Lessor may enforce the provisions of this Lease and may enforce
and protect the rights of Lessor hereunder by actions in equity or at law
for the specific performance of any covenant or agreement contained
herein or for the enforcement of any other appropriate legal or equitable
remedy.
SECTION 2203. If Lessor exercises either of the remedies provided for in
Section 2202(a) or 2202(b) aforesaid, Lessor may then or at any time
thereafter reenter and take complete and peaceful possession of the premises,
with process of law, and may remove all
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persons therefrom, and Lessee covenants in any such event peacefully and
quietly to yield up and surrender the premises to Lessor.
SECTION 2204. If Lessor terminates the right of possession as provided in
Section 2202(a) or 2202(b), Lessor may reenter the premises and take
possession of all thereof (including any and all equipment and apparatus
thereon), may remove any portion of the equipment, machinery, or apparatus
thereon which Lessor elects so to do, and shall, sublet or re-let, for the
account and benefit of Lessee, the premises or any part thereof from time to
time for all or any part of the unexpired part of the then term hereof, or for
a longer period for such reasonable rents and on such reasonable terms and
conditions and to such persons and for such periods as may seem reasonably fit
to Lessor. Lessor agrees to accept or receive any reasonable tenant offered by
Lessee. Lessor may collect the rents from such re-letting or subletting, and
apply the same, first, to the payment of the expenses of reentry and
re-letting, including commissions to agents, and such expenses as Lessor may
have incurred in putting the premises in good order and condition, or
preparing or altering the same for re-letting, and all other expenses and
charges paid, assumed or incurred by Lessor in or about re-letting the
premises, and, secondly, to the fixed dollar rentals herein provided to be
paid by Lessee, and in the event that the proceeds of such re-letting or
subletting are not sufficient to pay in the foregoing, Lessee shall remain and
be liable therefor, and Lessee promises and agrees to pay the amount of any
such deficiency from time to time on the demand of Lessor, and Lessor may at
any time and from time to time xxx and recover judgment for any such
deficiency or deficiencies. Any such re-letting may be for the remainder of
the term or any renewal term of this Lease or for a longer or shorter period.
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Lessor shall be entitled, notwithstanding any other provision of this Lease,
or Lessee's estate, to the extent permitted by law, the amount of damages
which Lessor sustains by reason of Lessee's default, including the right to
recover the difference between the total rent, taxes and charges which the
Lessor is able to obtain in a new lease for the balance of the term. The
acceptance of a tenant by Lessor, in place of Lessee, shall not operate as a
cancellation hereof, nor release Lessee from the performance of any covenant,
promise or agreement herein contained, and performance by any substituted
tenant by the payment of rent, or otherwise, shall constitute only
satisfaction pro tanto of the obligations of Lessee arising hereunder.
SECTION 2205. In the event of the termination of this Lease by Lessor as
provided for in Section 2202(a) hereof, Lessor shall be entitled to recover
from Lessee all the fixed dollar rentals accrued and unpaid for the period up
to and including such termination date, as well as all other additional sums
payable by Lessee, or for which Lessee is liable or in respect to which
Lessee, under any of the provisions hereof, has agreed to indemnify Lessor,
which may be then owing and unpaid, and all costs and expenses, including
court costs and reasonable attorneys' fees incurred by Lessor in the
enforcement of her rights and remedies hereunder. In addition, Lessee shall
pay to Lessor as damages the discounted present value (at the then Federal
Reserve Bank discount rate) of the aggregate rent and other charges during the
period commencing with the termination date and ending on the expiration date
of this Lease.
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NOTICES OR DEMANDS
------------------
SECTION 2301. All notices to or demands upon Lessor or Lessee desired or
required to be given under any of the provisions hereof, shall be in writing.
Any notice or demand from Lessor to Lessee shall be deemed to have been fully
and sufficiently given if a copy thereof has been delivered personally, or
mailed by United States registered or certified mail, return receipt
requested, in an envelope properly stamped and addressed to Lessee at
_____________________________________, or at such other address as Lessee may
theretofore have furnished by written notice to Lessor; with a copy of any
such notice to Xxx Xxxxxxxxxxx, Brock, Fensterstock, Xxxxxxxxxxx, XxXxxxxxx &
Xxxx, L.L.C., One Citicorp Center, 000 X. 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
XX 00000, and any notice or demand from Lessee to Lessor shall be deemed to
have been duly and sufficiently given if a copy thereof has been delivered
personally or mailed United States registered or certified mail, return
receipt requested, in an envelope properly stamped and addressed to Lessor at
0000 Xxxxxx Xxxx, XxXxxxx, Xxxxxxxx, 00000, at such other address as Lessor
may theretofore have furnished by written notice to Lessee, and a copy to
Xxxxxxx X. Wolfe, Berger, Newmark & Xxxxxxx, P.C., 000 X. XxXxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000.
COVENANTS OF LEASE EXTEND TO
ASSIGNS, SUCCESSORS & TRANSFEREES
---------------------------------
SECTION 2401. All of the covenants, agreements, conditions and
undertakings in this Lease contained shall extend and inure to and be binding
upon the heirs, executors, administrators, successors and assigns of the
respective parties hereto, the same as if they were in every case specifically
named, and wherever in this Lease reference is made to either of the parties
hereto, it shall be held to include and apply to, wherever applicable, the
heirs,
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executors, administrators, successors and assigns of such party. Nothing
herein contained shall be construed to grant or confer upon any person or
persons, firm, corporation or governmental authority, other than the parties
hereto, their heirs, executors, administrators, successors and assigns, any
right, claim or privilege by virtue of any covenant, agreement, condition or
undertaking in this Lease contained.
SECTION 2402. The term "Lessor" as used in this Lease, so far as
covenants or obligations on the part of Lessor are concerned, shall be limited
to mean and include only the owner or owners at the time in question of the
fee of the demised premises, and in the event of any transfer or transfers of
the title to such fee, Lessor herein named (and in case of any subsequent
transfers or conveyances, the then grantor) shall be automatically freed and
relieved, from and after the date of such transfer or conveyance, of all
personal liability as respects the performance of any covenants or obligations
on the part of Lessor contained in this Lease thereafter to be performed;
provided that any funds in the hands of such Lessor or the then grantor at the
time of such transfer, in which Lessee has an interest, shall be turned over
to the grantee, and any amount then due and payable to Lessee by Lessor or the
then grantor under any provisions of this Lease, shall be paid to Lessee.
TIME OF ESSENCE
---------------
SECTION 2501. Time is of the essence of this Lease, and all provisions
herein relating thereto shall be strictly construed.
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MISCELLANEOUS
-------------
SECTION 2601. The captions of this Lease are for convenience only and are
not to be construed as part of this Lease and shall not be construed as
defining or limited in any way the scope or intent of the provisions hereof.
SECTION 2602. If any term or provision of this Lease shall to any extent
be held invalid or unenforceable, the remaining terms and provisions of this
Lease shall not be affected thereby, but each term and provision of this Lease
shall be valid and be enforced to the fullest extent permitted by law.
SECTION 2603. This Lease shall be construed and enforced in accordance
with the laws of the State of New Jersey.
SECTION 2604. Lessee hereby waives any and all rights it may have to
demand a jury trial in any proceedings arising out of this Lease.
SECTION 2605. The obligations of this Lease shall run with the land, and
this Lease shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. No owner of the demised
premises shall be liable under this Lease except for breaches of Lessor's
obligations occurring while owner of the demised premises. The obligations of
Lessor shall be binding upon the assets of Lessor which comprise the demised
premises but not upon other assets of Lessor. No individual partner, member,
trustee, employee, or beneficiary of Lessor shall be personally liable under
this Lease and Lessee shall look solely to Lessor's interest in the demised
premises in pursuit of its remedies upon an event of default hereunder, and
the general assets of Lessor and its partners, members, trustees,
stockholders, officers, employees or beneficiaries of Lessor shall not be
subject to levy, execution or other enforcement procedure for the satisfaction
of the remedies of Lessee.
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SECTION 2606. All waivers shall be in writing and signed by the waiving
party. Lessor's failure to enforce any provision of this Lease or its
acceptance of Rent shall not be a waiver and shall not prevent Lessor from
enforcing that provision or any other provision of this Lease in the future.
No statement on a payment check from Lessee or in a letter accompanying a
payment check shall be binding on Lessor. Lessor may, with or without notice
to Lessee, negotiate such check without being bound by to the conditions of
such statement.
SECTION 2607. If Lessee is a corporation, each person signing this Lease
on behalf of Lessee represents and warrants that (s)he has full authority to
do so and that this Lease binds the corporation. Within thirty (30) days after
this Lease is signed, Lessee shall deliver to Lessor a certified copy of a
resolution of Lessee's Board of Directors authorizing the execution of this
Lease or other evidence of such authority reasonably acceptable to Lessor.
SECTION 2608. This Lease may be executed in counterparts and, when all
counterpart documents are executed, the counterparts shall constitute a single
binding instrument. Lessor's delivery of this Lease to Lessee shall not be
deemed to be an offer to lease and shall not be binding upon either party
until executed and delivered by both parties.
SECTION 2609. All representations and warranties of Lessor and Lessee
shall survive the termination of this Lease.
SECTION 2610. Lessor and Lessee expressly agree that there are and shall
be no implied warranties of merchantability, habitability, suitability,
fitness for a particular purpose or of any other kind arising out of this
Lease, and there are no warranties which extend beyond those expressly set
forth in this Lease without limiting the generality of the foregoing, Lessee
expressly acknowledges that Lessor has made no warranties or representations
concerning any Hazardous Materials or other environmental matters
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affecting any part of the Property and Lessor hereby expressly disclaims and
Lessee waives any express or implied warranties with respect to any such
matters.
SECTION 2611. Lessee represents and warrants to Lessor that there are no
agents, brokers, finders or other parties with whom Lessee has dealt who may
be entitled to any commission or fee with respect to this Lease or the demised
premises. Lessee agrees to indemnify and hold Lessor harmless from any claim,
demand, cost or liability, including, without limitation, attorneys' fees and
expenses, asserted by any party based upon dealings of that party with Lessee.
SECTION 2612. Lessee shall accept the demised premises and the Premises
in their condition as of the execution of the Lease, subject to all recorded
matters, laws, ordinances, and governmental regulations and orders. Except as
provided herein, Lessee acknowledges that neither Lessor nor any agent of
Lessor has made any representation as to the condition of the demised premises
or the suitability of the demised premises for Lessee's intended use. Lessee
represents and warrants that Lessee has made its own inspection of and inquiry
regarding the condition of the demised premises and is not relying on any
representations of Lessor or any Broker with respect thereto.
SECTION 2613. Lessee shall cause a Guaranty in form and substance, as
attached hereto and made a part hereof as Exhibit B, to be executed by the
Guarantor named herein. Any dishonor or purported repudiation of said Guaranty
by, or insolvency, bankruptcy or dissolution of said Guarantor shall be a
default hereunder.
REMEDIES TO BE CUMULATIVE
-------------------------
SECTION 2701. No remedy herein or otherwise conferred upon or reserved to
Lessor, shall be considered exclusive of any other remedy, but the same shall
be cumulative and shall be in addition to every other remedy given hereunder
now or hereafter existing at law or in
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equity or by statute, and every power and remedy given by this Lease to Lessor
may be exercised from time to time and as often as occasion may arise or as
may be deemed expedient. No delay or omission of Lessor to exercise any right
or power arising from any default, shall impair any such right or power or
shall be construed to be a waiver of any such default or an acquiescence
therein.
SECTION 2702. No waiver of any breach of any of the covenants of this
Lease shall be construed, taken or held to be a waiver of any other breach or
waiver, acquiescence in or consent to any further or succeeding breach of the
same covenant.
SECTION 2703. Neither the rights herein given to receive, collect, xxx
for or distrain for any rent or rents, moneys or payments or to enforce the
terms, provisions and conditions of this Lease, or to prevent the breach or
nonobservance thereof, or the exercise of any such right or of any other right
or remedy hereunder or otherwise granted or arising, shall in any way affect
or impair or toll the right or power of Lessor to declare the term hereby
granted ended, and to terminate this Lease as provided for in this Lease,
because of any default in or breach of the covenants, provisions or conditions
of this Lease.
SECTION 2704. In the event Lessor shall fail to pay any sum due under any
mortgage upon the demised premises to which this Lease is subordinate, or
commit any other default thereunder, Lessee shall have the right at its sole
option to pay such sum or cure such default on behalf of Lessor and any sums
expended by Lessee to cure such default shall be paid by Lessor to Lessee upon
demand and, if not so paid, Lessee shall have the right to deduct such sums
from rentals due hereunder.
HOLDOVER
--------
SECTION 2801. Lessee will, at termination of this Lease by lapse of time
or otherwise, yield up immediate possession to Lessor, and failing so to do,
will pay as liquidated
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damages, for each and every month or partial month during which Lessee shall
withhold possession, a sum of money equal to one hundred fifty percent (150%)
of the monthly rental (the Minimum Annual Rental and any further rent) in
effect and payable just prior to the termination of this Lease; but the
provisions hereof shall not be held as a waiver by Lessor of any right granted
to Lessor in this Lease.
STATUTORY COMPLIANCE
--------------------
SECTION 2901. Lessee acknowledges and warrants and represents to
Lessor that the Lessee at all times during its occupancy of the demised
premises shall be:
a) in full compliance with any and all applicable state, federal and
local laws, ordinances, rules, regulations and policies as more fully set
forth in the Americans with Disabilities Act of 1990, 42 U.S.C. ss.12101
et seq.;
b) the demised premises shall be in compliance with the public
accommodation provisions of the Americans with Disabilities Act of 1990,
and with any and all other applicable related federal, state and local
laws, ordinances, rules, regulations and policies;
c) the demised premises shall be in compliance with all federal,
state and local laws, ordinances, rules, regulations and policies; and
d) the Lessee shall take all actions necessary to ensure compliance
therewith.
ENVIRONMENTAL
-------------
SECTION 3001. As used in this Lease, the term "Hazardous Material" shall
mean any flammable items, explosives, radioactive materials, oil, hazardous or
toxic substances, material or waste or related materials, including any
substances defined as or included in the definition of "hazardous substances",
"hazardous wastes," "hazardous materials" or "toxic substances" now or
subsequently regulated under any applicable federal state or local laws or
regulations, including without limitation petroleum-based products, paints,
solvents, lead,
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cyanide, DDT, printing inks, acids, pesticides, ammonia compounds and other
chemical products, asbestos, PCBs and similar compounds, and including any
different products and materials which are subsequently found to have adverse
effects on the environment or the health and safety of persons. Lessee shall
not cause or permit any Hazardous Material to be generated, produced, brought
upon, used, stored, treated or disposed of in or about the demised premises by
Lessee, its agents, employees, contractors, sublessees or invitees without the
prior written consent of Lessor. Lessor shall be entitled to take into account
such other factors or facts as Lessor may reasonably determine to be relevant
in detecting whether to grant or withhold consent to Lessee's proposed
activity with respect to Hazardous Material. In no event, however, shall
Lessor be required to consent to the installation or use of any storage tanks
on the demised premises. If Lessee's transportation, storage, use or disposal
of Hazardous Materials on the Premises results in the contamination of the
soil or surface or ground water or loss or damage to person(s) or property,
then Lessee agrees to: (a) notify Lessor immediately of any contamination,
claim of contamination, loss or damage, (b) after consultation with the
Lessor, clean up the contamination in full compliance with all applicable
statutes, regulations and standards and (c) indemnity, defend and hold Lessor
harmless from and against any claims, suits, causes of action, costs and fees,
including attorney's fees and costs, arising from or connected with any such
contamination, claim of contamination, loss or damage. Lessee agrees to fully
cooperate with Lessor and provide such documents, affidavits and information
as may be requested by Lessor (i) to comply with any environmental law, (ii)
to comply with the request of any lender, purchaser or tenant, and/or (iii)
for any other reason deemed necessary by Lessor in its sole discretion. Lessee
shall notify Lessor promptly in the event of any spill or other release of any
Hazardous Material at, in, on, under or about the Premises which is required
to be reported to a
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governmental authority under any environmental law, will promptly forward to
Lessor copies of any notices received by Lessee relating to alleged violations
of any environmental law and will promptly pay when due any fine or assessment
against Lessor, Lessee or the Premises relating to any violation of an
environmental law during the term of this Lease. If a lien is filed against
the Premises by any governmental authority resulting from the need to expend
or the actual expending of monies arising from an act or omission, whether
intentional or unintentional, of Lessee, its agents, employees or invitees, or
for which Lessee is responsible, resulting in the releasing, spilling,
leaking, leaching, pumping, emitting, pouring, emptying or dumping of any
Hazardous Material into the waters or onto land located within or without the,
State where the Premises is located, then Lessee shall, within thirty (30)
days from the date that Lessee is first given notice that such lien has been
placed against the lien) either (i) pay the claim and remove the lien, or (ii)
furnish a cash deposit, bond, or such other security with respect thereto as
is satisfactory in all respects to Lessor and is sufficient to effect a
complete discharge of such lien on the Premises. The provisions of this
Section 502 shall survive the expiration or earlier termination of this Lease.
SECURITY DEPOSIT
----------------
SECTION 3101. Lessee has deposited with Lessor the sum of Thirteen
Thousand Four Hundred and 00/100 ($13,400.00) Dollars as security for the full
and faithful performance and observance by Lessee of all the covenants, terms,
and conditions herein contained to be performed and observed by Lessee, and
Lessor may use, apply, or retain the whole or any part of said security to the
extent required for the payment of any rent or any sum as to which Lessee is
in the default in respect to any of the covenants, terms, or conditions of
this Lease. Said sum, without interest, or any balance thereof, shall be
returned to Lessee after the time fixed as the expiration of the Lease
provided that Lessee shall have fully performed
-35-
all of said covenants, terms and conditions. It is agreed that said security
is not an advance payment of, or on account of the rent herein reserved, or
any part of settlement thereof, or a measure of Lessor's damages, and in no
event, shall Lessee be entitled to a return or particular application of said
sum or any part thereof, until the end of the term hereby granted. If, as a
result of any default by Lessee, Lessor shall apply any part of said security
deposit toward damages, prior to the expiration of this Lease, Lessee shall
promptly pay the amount so applied to Lessor so that said security deposit
amount shall remain constant. In the event of a sale of the demised premises,
Lessor shall have the right to transfer the security to the Purchaser and
Lessor shall thereupon be released from all liability for the return of such
security.
IN WITNESS WHEREOF, the parties hereto have caused this
Lease to be executed effective the day and year first above-written.
LESSOR:
J.W.S. PARTNERSHIP
By: /s/ Xxxxx Xxxxxx
---------------------------
Xxxxx Xxxxxx
General Partner
LESSEE:
BATTERY NETWORK, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------
Xxxxx Xxxxxx
President
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EXHIBIT A
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Legal description for property commonly known as 00 Xxxxxxx Xxxx, Xxxx 0,
Xxxxx Xxxxxx, Xxx Xxxxxx, 00000.
ALL THAT CERTAIN TRACT, PARCEL AND LOT OF LAND LYING AND BEING
SITUATE IN THE TOWNSHIP OF READINGTON, COUNTY OF HUNTERDON, STATE OF
NEW JERSEY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
UNIT NO. 2 IN THE CONDOMINIUM MASTER DEED MADE BY GRANTOR UNDER DATE
OF JANUARY 18, 1988 AND RECORDED IN THE HUNTERDON COUNTY CLERK'S
OFFICE ON JANUARY 21, 1988 IN BOOK 1001 OF DEEDS AT PAGE 901, AS
AMENDED BY AMENDMENT TO CONDOMINIUM MASTER DEED DATED FEBRUARY 6,
1990 AND RECORDED IN THE HUNTERDON COUNTY CLERK'S OFFICE ON MARCH 28,
1990 IN BOOK 1041 OF DEEDS AT PAGE 023, ALONG WITH AN UNDIVIDED 12.54
PERCENT INTEREST IN THE COMMON ELEMENTS OF THE CONDOMINIUM.
BEING ALSO KNOWN AS (REPORTED FOR INFORMATIONAL PURPOSES ONLY):
LOT 53.04 00002, BLOCK 39, ON THE OFFICIAL TAX MAP OF THE
TOWNSHIP OF READINGTON
PERMANENT INDEX NUMBER: 00-00-000-000
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EXHIBIT B
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GUARANTY
FOR VALUE RECEIVED, and in consideration for, and as an inducement to
J.W.S. Partnership, an Illinois general partnership ("Lessor") to enter into
the lease dated January 1, 1997 (the "Lease"), for the premises commonly known
as 00 Xxxxxxx Xxxx, Xxxx 0, Xxxxx Xxxxxx, Xxx Xxxxxx, 00000, with Battery
Network, Inc., an Illinois corporation ("Lessee"), the undersigned hereby
absolutely and unconditionally guarantees to Lessor, its successors and
assigns, the prompt and full payment of all rent, including, without
limitation, Minimum Annual Rental, additional rent, and all other payments to
be made by Lessee under the Lease, and the full performance and observance by
Lessee of all the other terms, covenants, conditions and agreements therein
provided to be performed and observed by Lessee, for which the undersigned
shall be jointly and severally liable with Lessee. The undersigned hereby
waives any notice of nonpayment, nonperformance or nonobservance, or proof of
notice or demand. The undersigned agrees that, in the event of a default by
Lessee under the Lease, Lessor may proceed against the undersigned before,
after or simultaneously with proceeding against Lessee. This Guaranty shall
not be terminated, affected or impaired in any manner by reason of: (1) the
assertion by Lessor against Lessee of any of the rights or remedies reserved
to Lessor pursuant to the provisions of the Lease; (2) the relief of Lessee
from any of Lessee's obligations under the Lease by operation of law or
otherwise; (3) the commencement of summary or other proceedings against
Lessee; (4) the failure of Lessor to enforce any of its rights against Lessee;
or (5) the granting by Lessor of any extensions of time to Lessee; and the
undersigned hereby waives all defenses of suretyship. The undersigned further
covenants and agrees that: (1) the undersigned shall be bound by all the
provisions, terms, conditions, restrictions and limitations contained in the
Lease which are to be observed or performed by Lessee thereunder, the same as
if the undersigned were named therein as Lessee; and (2) this Guaranty shall
be absolute and unconditional and shall be in full force and effect
notwithstanding any amendment, addition, assignment, sublease, transfer,
renewal, extension or other modification of the Lease, whether or not the
undersigned shall have knowledge or have been notified of or agreed or
consented thereto. The failure of Lessor to insist in any one or more
instances upon strict performance or observance of any of the terms,
provisions or covenants of the Lease or to exercise any right therein
contained shall not be construed or deemed to be a waiver or relinquishment
for the future of such term, provisions, covenant or right but the same shall
continue and remain in full force and effect. If Lessor at any time is
compelled to take action, by legal proceedings or otherwise, to enforce or
compel compliance with the terms of this Guaranty, the undersigned shall, in
addition to any other rights or remedies to which Lessor may be entitled
hereunder or as a matter of law or in equity, pay to Lessor all costs,
including reasonable attorneys' fees, incurred or expended by Lessor in
connection therewith. In the event the Lease is disaffirmed by a Trustee in
Bankruptcy for Lessee, the undersigned agrees that it shall, at the election
of Lessor, either assume the Lease and perform all of the covenants, terms and
conditions of Lessee thereunder or enter into a new lease, which said new
lease shall be in form and substance identical to the Lease. All duties and
obligations of the undersigned pursuant to this Guaranty shall be binding upon
the successors and assigns of the undersigned. If the undersigned consists of
more than one person, then each such person shall be jointly and severally
liable for the obligations of he undersigned under this Guaranty.
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For purposes of this Guaranty, the word "Lessee" shall also include the
successors and permitted assigns of Lessee. All capitalized terms used in this
Guaranty shall have the same meanings as are given to such terms in the Lease,
unless otherwise specifically defined in this Guaranty. This Guaranty shall be
governed and construed in accordance with the laws of the State of Illinois.
IN WITNESS WHEREOF, this Guaranty is executed as of the FIRST day of
JANUARY, 1997.
BATTERIES BATTERIES, INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------
CEO
Address:
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--------------------------
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