LEASE ASSIGNMENT AND ASSUMPTION
This ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment") is made and
entered into as of April, 13, 1999, by and between Fine Arts Engravers Company,
Inc., an Oregon corporation ("Assignor") and Keystone Acquisition Corp.
("Assignee"), a Washington corporation and wholly owned subsidiary
of XxxxxX.xxx, Inc., a Washington corporation.
RECITALS
A. Assignor is the lessee under that certain lease (as amended, the
"Lease") in which Lousouns III2P.W., LLC, successor to Ideal Trade Co., a
partnership of New Jersey is the lessor, dated as of the 1st day of December,
1992, as amended by Extensions of Lease Term dated August 19, 1993 and December
29, 1998, and modified by related correspondence dated December 29, 1998, with
respect to that certain real property and improvements thereon situated in City
of Union, state of New Jersey, which property is more particularly described on
Exhibit A attached hereto.
B. Assignor desires to assign its interest in the Lease to Assignee, and
Assignee wishes to assume Assignor's interest and obligations under the Lease.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants set forth below, and for
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Assignment of Lease. Conditional upon the successful closing of the
transactions contemplated by the Purchase Agreement among Assignor, Assignee and
ImageX dated February 23, 1999, Assignor assigns and transfers to Assignee, as
of the Effective Date (defined below) all of Assignor's right, title and
interest under the Lease, to have and to hold for the duration of the Lease.
2. Assumption of Lease. Conditional upon the successful closing of the
transactions contemplated by the Purchase Agreement among Assignor, Assignee and
ImageX dated February 23, 1999, assignee accepts assignment of the Lease and
covenants with the Assignor that Assignee will assume, observe and perform all
of the terms, conditions, covenants, obligations and provisions on the part of
the tenant under the Lease arising from and after the Effective Date.
3. Effective Date. The Effective Date is April 13, 1999.
4. True and Correct Copy. A true and correct copy of the Lease, together
with all amendments, addenda, assignments and other related documents, is
attached hereto as Exhibit B.
5. Further Assurances: Assignor will, at any time and from time to time
upon written request therefor, execute and deliver to Assignee, Assignee's
successors, nominees or assigns such documents as Assignee or they may
reasonably request in order to fully assign and transfer to and vest in Assignee
or Assignee's successors, nominees and assigns and protect Assignee or
assignee's successors', nominees' and assigns' rights under and interest in the
Lease, or to enable Assignee or Assignee's successors, nominees and assigns to
realize upon or otherwise enjoy such rights and property.
6. Modification: No modification, waiver or termination of this Assignment
will be valid unless the same is in writing and signed by the party against
which the enforcement of the modification, waiver or termination is sought.
7. Miscellaneous. This Assignment shall be construed in accordance with
the laws of the state of Oregon. This Assignment may be executed in
counterparts, which taken together shall comprise an original document. This
Assignment shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
[the remainder of this page is intentionally left blank]
-2-
Assignor:
FINE ARTS ENGRAVERS COMPANY,
INC., an Oregon corporation
By /s/ Xxxx Xxxxxxx
------------------------------------
Name Xxxx Xxxxxxx
-----------------------------
Title President
----------------------------
Assignee:
KEYSTONE ACQUISITION CORP.,
a Washington corporation
By /s/ Xxxxxxx Xxxxxx
-------------------------------------
Name
---------------------------------
Title
--------------------------------
-3-
EXHIBIT "A"
LEASE AGREEMENT
This Lease Agreement is made as of the 1st day of December, 1992, by and
between:
IDEAL TRADE CO.
a partnership of New Jersey
c/o Xxxxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as "Landlord")
and
FINE ARTS ENGRAVERS CO., INC.
X.X. Xxx 0000
Xxxxxxxx, Xxxxxx 00000
(hereinafter referred to as "Tenant")
WITNESSETH:
1. THE DEMISE
Landlord does hereby demise and lease to Tenant, and Tenant does
hereby lease and hire from Landlord, a building of approximately 15,000 square
feet commonly known as 0000 Xxxxxxx Xxxx, Xxxxx, Xxx Xxxxxx 00000 (the
"Building"), as shown on Exhibit A, known as Xxxxx 00-0, Xxx 00, tax map of
Union, and referred to herein as the "Premises", and which Building and
accessory tract of land are referred to herein as the "Tract".
2. QUIET ENJOYMENT
Upon performing its obligations under this Lease, Tenant shall have
and enjoy quiet and peaceable possession of the Premises during the Term (as
hereinafter defined), subject to the terms of this Lease.
3. USE OF PREMISES
The Premises shall be used for commercial printing operation,
or any use permitted by law or under then current
[page missing]
C. Basic Rent and Additional Rent are sometimes hereinafter
collectively referred to as "Rent", "rent" or "rental".
D. Contemporaneously with the execution of this Lease, Tenant has
deposited with Landlord the sum of two (2) months Basic Rent or $10,640.00 as
the security deposit (the "Deposit"), receipt of which is hereby acknowledged by
Landlord, as security for the faithful performance by Tenant of all of the
terms, covenants and conditions of this Lease by Tenant to be kept and
performed. If at any time during the Term, any of the rent herein reserved or
provided to be paid shall be overdue and unpaid beyond any applicable grace
period, then Landlord may, at its option, appropriate and apply any portion of
the Deposit to the payment of any such overdue rent; and in the event of the
failure of Tenant to keep and perform any other term, covenant and/or condition
of this Lease to be kept and performed by Tenant, beyond any applicable cure
period, then Landlord, at its option, may appropriate and apply the Deposit, or
so much thereof as may be necessary, to compensate Landlord for the loss or
damage suffered by Landlord due to the breach on the part of Tenant.
6. ASSIGNMENT OR SUBLETTING
A. Tenant may not assign thin Lease in whole or in part, nor sublet
all or any part of the Premises, without the prior written Consent of Landlord,
which consent will not be unreasonably withheld or delayed. In all circumstances
of assignment or subletting, the assignee or subtenant shall assume in writing
the obligations of Tenant hereunder and the existing Tenant and guarantor
hereunder (if any) and each subsequent assignee, subtenant and guarantor shall
remain Jointly and severally liable under this Lease. Consent to any particular
assignment or subletting shall not be deemed consent to any further or
subsequent assignment or subletting.
B. If Tenant shall assign this Lease or sublet the Premises and at
any time the rent to be received by Tenant pursuant to such assignment or
subletting is in excess of the then applicable rent hereunder, Landlord shall be
entitled to the entire amount of such excess, which excess shall be due and
payable from time to time by Tenant promptly upon receipt by Tenant of payment
of rent by the assignee or subtenant. In addition, Landlord shall be entitled to
receive any other consideration paid to Tenant on account of an assignment or
subletting. Any excess rents or additional sums so remitted to Landlord shall
offset and reduce Tenant obligation to pay Rent following such assignment or
subletting.
C. If Tenant wishes to assign this Lease or sublet to any party,
Tenant first shall give written notice to Landlord of such intention ("Tenant's
Notice"), specifying the name of the proposed assignee or sublessee, the name of
and character of its business, the terms of the proposed assignment or sublease,
and shall provide Landlord with such other information as Landlord reasonably
requests including financial statements in form reasonably acceptable to
Landlord.
-2-
D. Landlord may, within 30 days after its receipt of Tenant's
Notice, by notice to Tenant ("Landlord's Notice"), subject to foregoing
provisions of this Section 6, either consent to or reject the proposal, or
Landlord may terminate this Lease as of a date set forth in Landlord's Notice,
not less than 30 days after delivery of Landlord's Notice, such date of
termination having the same effect as if that date were the original expiration
date of this Lease, with all rents being apportioned and adjusted as of such
date of termination.
7. REAL ESTATE TAXES
A. Tenant shall pay as Additional Rent during the Term, upon demand
from time to time by Landlord, the "Proportionate Share" (an hereinafter
defined) of real estate taxes, which may be made or imposed upon the Premises
("Taxes"), other than income, franchise, gross receipts, corporation, capital
levy, excess profits, revenue, inheritance, devolution, gift, estate, payroll or
stamp tax, or other tax not in lieu of or as substitute for real estate tax;
provided, however, that if any time during the Term the methods of taxation
prevailing at the Commencement Date shall be altered so as to cause the whole or
any part of the Taxes to be imposed, wholly or partly, as a capital levy, on the
rents received from the Premises or otherwise, or if any tax shall be measured
by or based in whole or in part upon the value of the Premises and shall be
imposed upon Landlord, then, to the extent that such other tax is a substitute
for or is enacted in lieu of existing real estate tax, as described above,
Tenant shall be responsible for payment, as Additional Rent, of all such Taxes.
The maximum obligation of Tenant, however, shall be achieved by computing such
substitute tax as if the Premises were the sole property of Landlord. Upon
request of Tenant, Landlord shall execute all documents necessary for, and will
cooperate with Tenant with respect to, the prosecution, in Landlord's name, of
appeals of the tax assessment against the Premises, provided that no such appeal
shall be prosecuted if the prosecution thereof would, in Landlord's reasonable
judgment, jeopardize Landlord's ownership of the Tract or create any lien or
encumbrance thereon not adequately bonded or otherwise secured, and further
provided that Landlord shall incur no expense or obligation in connection with
any such appeals.
B. Following an uncured default by Tenant hereunder, at the option
of Landlord, the share of Taxes shall be paid in monthly installments in such
amounts as are estimated and billed by Landlord, each such installment being due
on the first day of each month. If Landlord elects such option, which it may do
from time to time, then within sixty (60) days after receipt by Landlord of
final Tax bills, Landlord shall provide to Tenant for Tenant's inspection copies
of such Tax bills and/or such accounting, and the monthly payments to be made by
Tenant thereafter shall be adjusted to compensate for any overpayment or
underpayment made by Tenant in the preceding period, or an appropriate refund or
payment made at that time.
C. The phrase "Proportionate Share" shall mean one hundred percent
(100%).
-3-
8. MAINTENANCE AND REPAIRS
Except as otherwise provided in this Lease, including Section 13
hereof, Tenant shall be responsible for undertaking all maintenance and repairs
to the Premises and surrounding land, including the systems servicing the
Premises and exterior maintenance such as but not limited to know removal.
Landlord shall be responsible for capital improvements, restorations and
replacements of the Premises and the Systems thereof and for structural
maintenance of the Building except that Tenant shall be responsible for any
structural repair (including roof repairs) the need for which shall result from
or arise out of the acts or negligence of Tenant or its agents, employees,
contractors, invitees or licenses ("Agents"). Notwithstanding the foregoing,
Tenant shall have no obligation to replace or restore the Premises or any part
or system thereof or to make any capital improvements to the Premises; provided
however that if a system needs replacement or restoration or if capital
improvements are required to be made to the Premises during the Term to keep the
Premises in good order and condition, then Landlord shall make and pay for such
replacement, restoration or capital improvements and subject to the provisions
of Section 13 below, Tenant shall reimburse Landlord monthly for the portion of
the cost of such replacement, restoration or capital improvement as is allocable
to the Term of this Lease when such cost is amortized over the useful life of
such replacement, restoration or capital improvement.
9. INSURANCE AND INDEMNITY; NONLIABILITY
A. Tenant shall during the term, at its sole cost and expense, keep
in full force and effect a policy of public liability insurance with respect to
the premises to which the limits of liability for personal injury and property
damage combined shall not be less than $1,000,000 per occurrence and $2,000,000
annual aggregate. In addition, tenant shall provide an excess limits or umbrella
liability policy with limits of liability not less than $4,000,000 personal
injury and property damage per occurrence and annual aggregate. Landlord shall
be named as an additional insured on each of these policies.
All provisions of said policy, except the limits of liability, shall
operate in the same manner as if there were a separate policy covering each
insured. Certificates of said coverage shall be provided to the Landlord. Said
certificates to offer 30 days prior written notice of any material change or
cancellation. A copy of said policy and the certificate of insurance shall be
delivered to the Landlord on or before the commencement day of this Lease.
B. Tenant shall indemnify and save Landlord harmless against and
from any and all claims, actions, damages, losses, liability and expense,
including court costs and reasonable attorneys' fees, in connection with loss of
life, personal injury and/or damage to property arising form the occupancy or
use by Tenant of the Premises, or any part thereof, or to the extent occasioned
by any act or negligence of Tenant or its Agents. It is understood that Landlord
shall not be liable for any damage or injury which may be sustained by Tenant or
any guest or invitee of Tenant as a consequence of the failure, breakage,
leakage or
-4-
obstruction of the water, plumbing, steam, sewer, waste or soil pipes, roof,
drains, leaders, gutters, valleys, downspouts or the like through no fault or
negligence of the Landlord or of the electrical, gas, power, conveyor,
refrigeration, sprinkler, air conditioning or heating systems through no fault
or negligence by Landlord; or by reason of the elements; or resulting form the
carelessness, negligence or improper conduct on the part of any other tenant or
its Agents.
C. If Tenant shall fail, refuse or neglect to obtain any of the
insurance called for by this Lease or maintain the same and to show Landlord
evidence of the same as aforesaid, Landlord shall have the right (but not the
obligation) upon 15 days prior written notice to Tenant to procure any such
insurance and charge the cost thereof to Tenant.
D. Tenant shall maintain fire and "special perils" insurance
coverage on the building on a replacement cost valuation basis and shall name
the Landlord as an additional insured. Insurance shall be in an amount equal to
the replacement cost of the building which shall be determined by appraisal of
the Tenant's insurance company, or, an independent appraisal service and shall
be updated as a minimum of every three years. At the commencement of this Lease,
it is agreed that for purposes of obtaining replacement value insurance
hereunder, the replacement value shall be $800,000.00. Said policy shall
recognize the interest of the Landlord's mortgagees and/or lienholders.
Policies may be in the name of the Tenant and the Landlord; however,
it should be provided within the policy that loss, if any, shall be payable to
the Landlord (see terms and conditions of paragraph 9A). Coverage shall be with
an insurance company licensed to do business in the state of New Jersey and
rated A XII or better by Bests Rating Service (or the equivalent as rated by
Standard and Poors Rating Service). Copies of said policies shall be provided to
the Landlord and their mortgagees as required. Certificates evidencing 30 day
notice of cancellation or material change shall be provided to the Landlord.
Said policies may provide for deductibles of no more than $5,000. Said policies
shall be written on a no co-insurance and/or agreed amount basis, and shall also
provided coverage in an amount no less than $250,000.00 to provide for increased
cost of construction as the result of changes in ordinances or codes, and for
removal of debris (known as ordinance and law provisions).
E. Each party hereby releases the other from liability for property
damage from any cause whatsoever to the extent such releasing party shall
receive insurance proceeds (or have the availability of the receipt thereof) on
account of such damage or injury and such release does not adversely affect
entitlement to such insurance proceeds. Landlord and Tenant agree to use their
reasonable best efforts, at no direct or indirect additional cost, to include in
their respective property insurance policies, the following: (i) a waiver of the
insurer's right of subrogation against the other party, (ii) an express
agreement that such policy shall not be invalidated if the insured waives the
right to recovery against any party responsible for a casualty, or (iii) any
other form of permission for the release of the other party. Notwithstanding the
foregoing, Landlord hereby acknowledges that Tenant's current blanket fire and
special perils insurance policy does not contain, and Tenant's insurer refuses
-5-
to add, a waiver of subrogation or similar clause or endorsement to the existing
insurance policy, and that Tenant shall have no obligation to attempt to obtain
insurance from a different insurer unless the overall cost to Tenant of such
insurance is reduced and the attempt to obtain such insurance otherwise is
commercially reasonable.
10. TENANT'S RIGHT TO MAKE ALTERATIONS OTHER THAN RENOVATION
WORK; SIGNS ON EXTERIOR OF PREMISES
A. Tenant may, from time to time, at its own cost and expense, make
such nonstructural installations, alterations, restorations, changes or
replacements (hereinafter called "Alterations"), in, of or to the Premises as
Tenant deems necessary or desirable, provided that the prior written consent of
Landlord shall have been obtained, which consent shall not be unreasonably
withheld or delayed if the Alterations will not impair the value of the Premises
in Landlord's reasonable judgment.
B. Tenant, in making the Alterations, shall comply with all
applicable laws, orders and regulations of federal, state, county and municipal
authorities, with any direction pursuant to law or given by any public officer,
and with all regulations of any board of fire underwriters having jurisdiction.
C. Tenant shall obtain or cause to be obtained, all building
permits, licenses, temporary and permanent certificates of occupancy and other
governmental approvals which may be required in connection with the making of
the Alterations, and Landlord shall cooperate with Tenant in the obtaining
thereof (at no out-of-pocket expense to Landlord) and shall execute any
documents reasonably required in furtherance of such purpose.
D. Tenant shall pay all costs and expenses in connection with the
making of Alterations and shall discharge or bond any mechanic's lien filed
against the Premises in connection therewith within a period of fifteen (15)
days after Tenant receives notice of filing of such lien, it being understood
that Landlord shall not be deemed hereby to have given consent to any such
filing.
E. Tenant shall indemnify and hold Landlord harmless against and
from any mechanic's or materialmen's claims arising out of such work and shall
perform all work in a good and workmanlike manner.
F. The Alterations shall be and remain the property of Landlord;
provided, however, that Landlord shall have the option, to be exercised, if at
all, simultaneously with the giving of its consent, to give notice to Tenant
that Tenant is to remove all or any part of Alterations made by Tenant, upon the
giving of which notice Tenant shall be obligated to remove the specified
Alterations prior to such expiration or termination and to repair any damage
caused by the removal and restore the Premises to their condition as existed
prior to the making of the applicable Alterations, reasonable wear and tear
excepted.
-6-
G. No signs may be placed or maintained on the exterior of the
Premises by Tenant without the prior written approval of Landlord, not
unreasonably withheld and any such sign as is placed or maintained by Tenant on
the exterior of the Premises must be kept in good condition and repair at all
times and must be installed and maintained in compliance with all applicable
laws, rules and regulations.
11. FIXTURES AND PERSONAL PROPERTY
Any trade fixtures, equipment and other property installed in or
attached to the premises by and at the expense of Tenant (whether or not deemed
fixtures under New Jersey law) shall remain property of Tenant, and Tenant shall
have the right, at any time, and from time to time, to remove any and all of its
trade fixtures, equipment and other property which it may have stored or
installed in the Premises. Tenant shall make all repairs required as a result of
the removal of such items so as to restore the Premises to their original
condition (including but not limited to repair of any holes in the walls of the
Building), reasonable wear and tear exempted.
12. UTILITY CHARGES
Tenant shall, upon demand by Landlord, pay for all utilities of any
nature serving the Building, provided, however, that at such time as the
Building is also occupied by any other tenant(s), the utilities will either be
separately metered or billed on a pro-rata basis as among all users of the
applicable utility. Tenant shall not overload the electrical wiring serving the
Premises nor use any other utility beyond its normal capacity.
13. OBSERVANCE OF LAWS, ORDINANCES, RULES AND REGULATIONS
A. Tenant shall comply with all statutes, ordinances, rules,
orders, regulations and requirements of all federal, state, county and
municipal and other applicable governmental authorities relating to Tenant's
use of the Premises and shall faithfully observe in the use of the Premises
all municipal and county ordinances and regulations and state and federal
statutes and regulations of the Board of Fire Underwriters or similar agency
for the prevention of fires; provided, however, that Tenant shall not (1)
make any capital improvements or repairs required by law, including without
limitation, sprinklers, earthquake reinforcement or modifications required
under the American Disabilities Act, all of which shall be and remain the
responsibility of Landlord; (ii) be responsible for any loss, cost, damage,
expense, liability, cleanup, or response costs (including without limitation
attorneys' fees at trial and on appeal) attributable to environmental hazards
or hazardous substances (as such are defined in any federal, state or local
law, ordinance, statute, regulation or pronouncement) except to the extent
such environmental hazard or substance has been created or generated by
Tenant; and (iii) be responsible for complying with the Environmental Cleanup
Responsibility Act, N.J.S.A. 13:1K-6, except to the extent any cleanup plans
implementation required in connection therewith are attributable to
environmental hazards or hazardous substances created or generated by Tenant
through its use of the Tract. In case Tenant shall
-7-
fail or neglect to comply with the aforesaid statutes, ordinances, rules,
orders, regulations and requirements, or any of them, within the period of
time for compliance as contain therein or such shorter time as may, upon 15
days notice to Tenant, be required in this Lease, then (not in limitation of
other rights which Landlord may have under this Lease or by law in the case
of a default by Tenant) Landlord or its agents may enter the Premises and
make necessary repairs and comply with any and all of the said statutes,
ordinances, rules, orders, regulations or requirements, at the cost and
expense of Tenant. In case of Tenant's failure to pay therefor, the said cost
and expense shall be added to the next month's rent and be due and payable
promptly as Additional Rent, together with interest as in this Lease provided.
B. Tenant may contest any of the above-stated statutes, ordinances,
rules, orders, regulations or requirements, provided that Tenant shall indemnify
Landlord for any loss or liability (including but not limited to reasonable
attorneys' fees incurred by Landlord), and shall not do so in any circumstances
as would, in Landlord's reasonable Judgment, jeopardize Landlord's ownership of
the Tract or cause any lien or encumbrance to be placed upon the Tract not
adequately bonded or otherwise secured. Landlord agrees to cooperate with any
such contest, provided that Landlord shall entail no out-of-pocket cost or
expense attributable to the responsibility of Tenant as and to the extent
described in this Section 13.
14. DAMAGE TO PREMISES
A. If the Premises shall be damaged by fire, the elements, accident
or other casualty, then, subject to the provisions below, Landlord shall cause
the damage to be repaired to the condition that existed immediately prior to
such casualty. In doing so, Landlord shall commence its repairs promptly and
diligently proceed to conclusion with same, but shall not be required, in any
event, to expend more than the net amount of insurance proceeds received on
account of the damage, exclusive of any deductibles in such policies, which
Landlord shall pay.
B. If the Premises shall be so damaged or destroyed as would render
the Premises unfit for Tenant's intended uses for a period in excess of ninety
(90) days, or if then applicable laws or zoning requirements do not permit the
necessary repair or restoration after occurrence of damage or destruction of the
Premises to whatever extent, then either party shall have the right to cancel
this Lease by written notice to the other served within sixty (60) days of the
occurrence, effective as of the occurrence. Upon such termination, all Rent and
Additional Rent shall be apportioned as of the date of the occurrence.
C. Tenant shall immediately notify Landlord in case of fire or other
damage to the Premises.
D. The repair and restoration of any damage to the property of
Tenant or to the decorations and Alterations of Tenant shall not be the
responsibility of Landlord, unless and to the extent Landlord receives insurance
proceeds therefor.
-8-
E. In the event any damage or destruction of the Premises renders
the Premises unfit for Tenant's intended uses, all rent shall be abated during
such period, except if the damage or destruction shall be due to the negligence
of Tenant or its Agents and the Landlord does not then carry rental business
interruption or similar insurance against loss of rent. If any such damage or
destruction renders the Premises partially unfit for Tenant's intended use and
Tenant reasonably determines it can carry on its business without material
adverse effect, all rent shall be equitably apportioned, subject to the
above-stated exception concerning the negligence of Tenant and its Agents. For
purposes of this Paragraph E, the word "rent" shall not include any Additional
Rent as may be due from Tenant by reason of any uncured default by Tenant under
any term, covenant or condition of this Lease.
F. Insurance proceeds applicable to the Premises and/or Building
shall be and remain the exclusive property of Landlord, and all insurance
proceeds attributable to Tenant's trade fixtures, equipment, furniture,
decoration, (alterations) and other property shall be and remain the exclusive
property of Tenant.
15. EMINENT DOMAIN
A. In the event that more than twenty percent (20%) of the floor
area of the Building, or egress or ingress from or to the Building or any
utility necessary to operate the Premises shall be appropriated or taken under
or in lieu of the power of eminent domain by any public or quasi-public
authority (without the provision by Landlord of alternative ingress and egress
or utility service that is comparable or better than the egress, ingress or
utility service taken), either Landlord or Tenant may terminate this Lease,
effective as of the date of taking, by written notice to the other given within
sixty (60) days from the date of such taking, and the parties shall thereupon be
released from any liability to each other accruing thereafter. Upon such
termination, all Rent and Additional Rent shall be pro-rated to the date of
taking.
B. If there shall occur any such appropriation or taking under or in
lieu of eminent domain not giving rise to a right of termination pursuant to
paragraph A above, or if neither party timely exercises its right of
termination, this Lease shall remain in full force and effect as to the portion
of the Premises remaining, except that (i) to the extent such taking is of a
portion of the Building, the Basic Rent shall be reduced in the proportion that
the floor area taken bears to the total floor area of the Building; and (ii) to
the extent other portions of the Premises are taken, an equitable adjustment in
Basic Rent shall be made. If a portion of the Building shall have been
appropriated or taken and if this Lease shall continue, then and in that event,
Landlord agrees to promptly commence restoration of the Building to a complete
unit of like quality and character as existed prior to such appropriation or
taking. In no event shall Landlord be obligated to incur costs in excess of the
net proceeds of condemnation actually received by Landlord.
-9-
C. If this Lease is terminated as described in this Section, rent
from the date of taking shall be pro-rated and Landlord agrees to refund to
Tenant any rent paid in advance.
D. In the event of any appropriation or taking as aforesaid, whether
whole or partial, Tenant shall not be entitled to any part of the award paid for
such condemnation except as otherwise provided in paragraph E of this Section,
and Landlord is to receive the full amount of such award. Tenant hereby
expressly waives any right or claim to any part of such award, except as
hereinafter provided.
E. Tenant shall have the right to claim and recover from the
condemning authority, but not from Landlord, all such compensation then
permitted by law as may be separately awarded or recoverable by Tenant by reason
of the condemnation (provided that such separate award shall not reduce the
compensation payable to Landlord), including but not limited to compensation for
or on account of any cost or loss to which Tenant might be put in repairing,
altering or removing Tenant's merchandise, furniture, fixtures, leasehold
improvements and equipment.
16. DEFAULT AND REMEDIES
A. If Tenant defaults in the payment of Basic Rent or any Additional
Rent within fifteen (15) days after the due date thereof (no notice thereof
being required to be given by Landlord), or if the Premises shall be deserted,
abandoned or vacated, or if Tenant defaults in compliance with any of the other
covenants or conditions of this Lease and fails to cure the same within thirty
(30) days after the receipt of notice specifying the default, then upon such
rental default or at the expiration of such 30 days, as the case may be,
Landlord may (a) cancel and terminate this Lease upon written notice to Tenant
(whereupon the Term shall terminate and expire, and Tenant shall then quit and
surrender the Premises to Landlord, but Tenant shall remain liable as
hereinafter provided) and/or (b) at any time thereafter re-enter and resume
possession of the Premises as if this Lease had not been made. Anything above to
the contrary notwithstanding, the said 30 day period of time for cure of
non-monetary defaults shall extend beyond such 30 days for the period of time
necessary to effect the cure provided that Tenant shall diligently commence the
cure during such 30 day period and shall diligently and continuously prosecute
the cure to completion.
B. If this Lease shall be terminated or if Landlord shall be
entitled to re-enter the Premises and dispossess or remove Tenant under the
provisions of this Section (either or both of which events are hereinafter
referred to as a "Termination"), Landlord or Landlord's Agents may immediately
or at any time thereafter re-enter the Premises and remove therefrom Tenant, its
Agents, and any subtenants and other persons, firms or corporations, and all or
any of its or their property therefrom, either by summary dispossess proceedings
or by any suitable action or proceeding at law or by peaceable reentry without
being liable to indictment, prosecution or damages therefor, and may repossess
and enjoy the Premises, including all additions, alterations and improvements
thereto.
-10-
C. In case of Termination, the Basic Rent and all other charges
required to be paid by Tenant hereunder shall thereupon become due and shall be
paid by Tenant up to the time of the Termination, and Tenant shall also pay to
Landlord all reasonable expenses which Landlord may then or thereafter incur as
a result of or arising out of a Termination, including but not limited to court
costs, attorneys' fees, brokerage commissions, and costs of terminating the
tenancy of Tenant, re-entering, dispossessing or otherwise removing Tenant and
restoring the Premises to the condition as of the date hereof, reasonable wear
and tear excepted, and from time to time altering and otherwise preparing the
same for re-letting (including but not limited to costs of removing all or any
part of the Alterations made by Tenant). Upon a Termination, Landlord may, at
any time and from time to time (but shall not except to the extent required by
law, be obligated to), re-let the Premises, in whole or in part, either in its
own name or as Tenant's agent, for a term or terms which, at Landlord's option,
may be for the remainder of the Term, or for any longer or shorter period.
D. In addition to the payments required hereinabove in this Section,
Tenant shall be obligated to, and shall, pay to Landlord, upon demand and at
Landlord's option:
(i) damages in an amount which, at the time of Termination, is
equal to the excess, if any, of the then present amount of the installments of
Basic Rent and Additional Rent reserved hereunder, for the period which would
otherwise have constituted the unexpired portion of the Term over the then
present rental value of the Premises for such unexpired portion of the Term
discounted at prime + 2% (the word "Term" for purposes of this clause (i) and
the ensuing clause (ii) being deemed to include any Renewal Term then in effect
or for which the option shall have theretofore been exercised); or
(ii) damages payable in monthly installments, in advance, on
the first day of each calendar month following the Termination, and continuing
until the date originally fixed herein for the expiration of the Term, in
amounts equal to the excess, if any, of the sums of the aggregate expenses paid
by Landlord during the month immediately preceding such calendar month for all
such items as, by the terms of this Lease, are required to be paid by Tenant,
plus an amount equal to the installment of Basic Rent which would have been
payable by Tenant hereunder in respect to such calendar month, had this Lease
not been terminated, over the sum of rents, if any, collected by or accruing to
Landlord in respect to such calendar month pursuant to a re-letting or to any
holding over by any subtenants of Tenant.
E. Except as otherwise required by law in connection with Landlord's
obligation to mitigate damages, Landlord shall in no event be liable for failure
to relet the Premises, or in the event that the Premises are re-let, for failure
to collect rent due under such re-letting; and in no event shall Tenant be
entitled to receive any excess of rents over the sums payable by Tenant to
Landlord hereunder but such excess shall be credited to the unpaid rentals due
hereunder, and to the expenses of reletting and preparing for re-letting as
provided herein.
-11-
F. Suit or suits for the recovery of damages hereunder, or for any
installments of rent; may be brought by Landlord from time to time at its
election, and nothing herein contained shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired if it had not been
terminated under the provisions of this Lease, or under any provision of law, or
had Landlord not reentered into or upon the Premises.
G. Landlord, at its option, in addition to any and all remedies
available to it, shall have the right to charge a fee for payment of rent
received later than fifteen (15) days after the date due, which fee shall be
five percent (5%) of the delinquent payment.
H. Tenant hereby waives all rights of redemption to which Tenant or
any person claiming under Tenant might be entitled, after an abandonment of the
Premises or after a surrender and acceptance of the Premises and Tenant's
leasehold estate, or after a dispossession of Tenant from the Premises, or after
a termination of this Lease, or after a judgment against Tenant in an action in
ejectment, or after the issuance of a final order or warrant of dispossess in a
summary proceeding, or in any other proceeding or action authorized by any rule
of law or statute now or hereafter in force or effect.
I. No mention in this Lease of any specific right or remedy shall
preclude Landlord from exercising any other right or from having any other
remedy or from maintaining any action to which Landlord may otherwise be
entitled hereunder or at law or in equity.
J. Landlord is hereby granted a lien, in addition to any statutory
lien or right to distrain that may exist, upon all property of Tenant in or upon
the Premises, to secure payment of the rent and performance of the covenants and
conditions of this Lease provided however that such lien shall be junior and
subordinate to the lien of existing bank debt, the liens in favor of the Estate
of Xxxxx X. Xxxxxxx (the "Estate") for funds advanced by the Estate prior to the
date hereof, and for any liens granted in connection with any refinancing,
replacement or assignment of such debt. Such lien is agreed to constitute a
security interest and this Lease a security agreement within the meaning of the
Uniform Commercial Code as applicable to New Jersey. Upon default by Tenant
beyond any grace period to cure same, Landlord shall have the right, as agent of
Tenant, and subject to the rights of other lienholders including the Estate, to
take possession of any furniture, fixtures or other personal property of Tenant
found in or about the Premises, and sell the same at public or private sale and
to apply the proceeds thereof to the payment of any monies becoming due under
this Lease, the Tenant hereby waiving the benefit of all laws exempting property
from execution, levy and sale under distress or judgment. Tenant agrees to pay,
as Additional Rent, all reasonable attorneys' fees and other expenses incurred
by Landlord in enforcing its lien given above. Tenant shall be allowed to pursue
any remedies available to it at law or equity in event of default by Landlord.
K. If Landlord defaults in compliance with any terms or conditions
of this Lease, Tenant shall be entitled to pursue any remedy available at law or
in equity in connection therewith.
-12-
17. NOTICES
Wherever in this Lease it shall be required or permitted that
notice or demand be given or served by either party to this Lease to or on the
other, such notice or demand shall be in writing and shall either be served
personally or sent by registered or certified mail, return receipt requested,
to the parties at the addresses described below--to Landlord, at its address
stated at the head of this Lease, with a copy to Xxxxxxx X. Xxxxxxxx, Esq.,
000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxx Xxxxxx 00000; to Tenant, at its
address stated at the head of this Lease with copy to Xxxxxx X. Xxxxxxx, 1100
One Main Place, 000 X. X. Xxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000. Such addresses
may be changed from time to time by either party by written notices served
upon the other, as above provided. Notices shall be effective upon delivery or
5 days after mailing, as the case may be, except that a mailed notice changing
an address for notice purposes hereunder shall be effective upon actual
receipt.
18. ATTORNMENT; DEFINITION OF TERM "LANDLORD"
A. Tenant shall attorn to any new owner of the Tract, including a
mortgagee of the Tract that is a mortgagee as of the Commencement Date, and
shall execute such attornment instrument as shall reasonably be requested by
such new owner, and Tenant waives any right it may have to surrender possession
of the Premises or terminate this Lease in the event of change of ownership of
the Premises. The term "Landlord", as used in this Lease, means only the owner
for the time being of the Premises, so that in the event of any sale or
conveyance thereof, Landlord (and any successor selling or conveying landlord)
shall be and hereby is entirely freed and relieved of all Landlord's covenants
and obligations hereunder arising from and after the date of such conveyance on
the condition that the purchaser or transferee has assumed and agreed to carry
out any and all covenants and obligations of Landlord hereunder.
B. Upon any transfer of title by Landlord, Tenant agrees to give to
the grantee, at the request of Landlord an estoppel or offset statement as
provided for in Section 22 below ("Estoppel or Offset Statements") and then
current unaudited financial statements of Tenant, each in form reasonably
requested by Landlord.
19. COST OF PERFORMING OBLIGATIONS
Unless otherwise specified, the respective obligations of the
parties to keep, perform and observe any terms, covenants or conditions of this
Lease shall be at the sole cost and expense of the party so obligated.
20. RE-ENTRY BY LANDLORD
Should Tenant make an assignment for the benefit of creditors or
file a voluntary petition in bankruptcy or be adjudicated a bankrupt or take
the benefit of any insolvency act or if a receiver or trustee of Tenant and/or
of its property shall be appointed in any proceedings other than bankruptcy
proceedings and such
-13-
appointment, if made in proceedings instituted by Tenant, shall not be vacated
within thirty (30) days after it has been made, or if made in proceedings
instituted by other than Tenant, shall not be vacated within sixty (60) days
after it has been made, any of the foregoing shall constitute a default
hereunder and Landlord, in addition to all other rights or remedies hereunder
and by law or equity, shall have the immediate right of re-entry and subject to
the rights of other lienholders therein may remove all persons and property from
the Premises and such property may be removed and stored in a public warehouse
or elsewhere at the cost and expense of Tenant, all without Landlord being
deemed guilty of trespass or becoming liable to Tenant for any loss or damage
which may be occasioned thereby, and all Rent for the balance of the Term
(including any Renewal Term for which the option shall have theretofore been
exercised) shall become immediately due.
21. MORTGAGE SUBORDINATION
This Lease shall be subordinate to the lien of any present or,
conditional upon the receipt by Tenant of a nondisturbance agreement reasonably
satisfactory to Tenant, future mortgage(s) on the Premises. Notwithstanding the
automatic nature of the subordination described in this Section, Tenant shall
execute, acknowledge and deliver to Landlord, or to its designee(s), any and all
documents evidencing such subordination as may be reasonably requested by
Landlord or by any proposed mortgagee. In default of such responsibility, Tenant
hereby appoints Landlord as Tenant's attorney-in-fact to execute, acknowledge
and deliver such instrument for and in the name and stead of Tenant, such power
of attorney given to Landlord to be deemed irrevocable and coupled with an
interest. If any mortgagee elects to have Tenant's interest in this Lease
rendered superior in priority to that mortgagee's lien on the Premises, then by
notice to Tenant, this Lease shall be deemed superior to that mortgagee's lien,
whether this Lease was executed before or after execution or recording of the
instrument creating that mortgagee's lien. Tenant shall provide to Landlord,
Landlord's mortgagee and/or any prospective mortgagee of Landlord, such
unaudited financial statements and information relating to Tenant as may be
reasonably requested from time to time by Landlord, the mortgagee and/or the
prospective mortgagee.
22. ESTOPPEL OR OFFSET STATEMENTS
Tenant shall, upon the reasonable request from time to time of
Landlord, execute and deliver an estoppel or offset statement (a) certifying
that this Lease is in full force and effect and has not been modified or
amended, or stating all amendments and modifications thereto; (b) specifying the
dates to which Basic Rent and Additional Rent have been paid; (c) stating
whether or not Tenant then alleges that Landlord is in any respect in default,
and, if so, specifying the alleged default; (d) stating the Commencement Date;
(e) stating which options to renew have been exercised, if any; and (f) stating
such other information as Landlord may reasonably request.
-14-
23. HOLDOVER
In the event that Tenant shall for any reason remain in possession
of the Premises after the expiration of the Term, such possession shall at the
option of Landlord be on a month-to-month basis subject to the terms and
conditions of this Lease except as to duration of term and except that the Basic
Rent shall be one hundred and fifty percent (150%) of that in effect at
expiration of the Term. The foregoing is not intended to afford to Tenant the
right to remain in possession of the Premises after expiration of the Term
without Landlord's prior written consent.
24. FORCE MAJEURE
The period of time during which either party is prevented or delayed
in the making of any improvements or repairs or fulfilling any obligation
required under this Lease, with the exception of obligations of the payment of
Basic Rent or Additional Rent, due to unavoidable delays caused by fire,
catastrophe, strikes, labor trouble, civil commotion, Acts of God or public
enemies, government prohibitions or regulations or reasonable inability to
obtain materials or any other similar causes beyond such party's reasonable
control, shall be added to such party's time for performance thereof, and such
party shall have no liability by reason thereof. It is understood, not in
limitation of the generality of the foregoing, that Landlord shall under no
circumstances be liable to Tenant in damages or otherwise for any interruption
in service of water, electricity, heating, air conditioning and/or other
utilities and services of any nature caused by an unavoidable delay, by the
making of any necessary repairs or improvements necessary to Tenant's continued
use and enjoyment of the Premises or by any cause beyond Landlord's reasonable
control.
25. ENTRY BY LANDLORD
For a period commencing one (1) year prior to the termination of
this Lease, Landlord and its Agents shall have reasonable access, during
business hours, to the Premises for the purpose of exhibiting the same to
prospective tenants, and shall during the Term have reasonable access, during
business hours, to the Premises for the purpose of exhibiting the same to
prospective purchasers. Landlord shall exercise its right of access for such
purposes, if exercised at all, upon reasonable advance notice to Tenant and in a
manner not unreasonably to interfere with Tenant's business at the Premises. At
all times during the Term, Tenant will permit Landlord and its Agents to enter
the Premises during business hours in order to inspect the same and/or to
enforce or carry out any provision of this Lease.
26. BROKERS
Each party represents to the other it knows of no broker or other
person who introduced the parties to this transaction other than Xxxxxxx
Tradinovich for whose commission Landlord shall be liable by separate agreement.
In the event of a claim by any other broker or person for commissions arising
out of a misrepresentation by one of the parties hereto, that party shall
indemnify and hold the other harmless from that claim, such
-15-
indemnity and hold harmless agreement to include court costs and reasonable
attorneys' fees incurred in respect to or in defense against such claim.
27. END OF TERM
Upon expiration of the Term or of this Lease, Tenant shall peaceably
and quietly quit and surrender the Premises, broom clean, in the condition
received at the Commencement Date reasonable wear and tear and damage by fire or
other casualty excepted. Tenant shall also, subject to Landlord's rights under
paragraph (J) of Section 16 above ("Default and Remedies"), remove all trade
fixtures and movable partitions, and shall repair any damage caused in so moving
and restore the Premises to such condition as existed prior to installation of
such fixtures and partitions reasonable wear and tear excepted. All Alterations
of Tenant shall be left by Tenant and shall remain part of the Premises except
to the extent Landlord may have otherwise specified in a notice to Tenant given
pursuant to paragraph F of Section 10 ("Tenant's Right to Make Alterations;
Signs on Exterior of Premises").
28. LIABILITY OF LANDLORD
Except as otherwise provided in this Section 28, Tenant agrees that
the liability of Landlord (or of any subsequent landlord) in the event of breach
by Landlord shall be limited to Landlord's interest in the Premises. Tenant
expressly agrees that any judgment or award which Tenant may obtain against
Landlord shall be recoverable and satisfied solely out of the right, title and
interest of Landlord in and to the Premises, and Tenant shall have no personal
rights against any principals or partners of Landlord, and shall have no rights
of lien or levy against any other property of Landlord. Notwithstanding the
foregoing, nothing in this Section 28 shall preclude a recovery by Tenant
against Landlord for Landlord's negligence or intentionally wrongful acts or for
Landlord's liability for any environmental hazards or hazardous substances (as
defined in Section 13 above) on the Property to the extent not created or
generated by Tenant.
29. NET LEASE
It is understood and agreed that, except as may otherwise in this
Lease be expressly provided, Tenant has the responsibility of paying all charges
of any kind or nature attributable to the Premises, whether or not specifically
set forth in this Lease, it being the intention of the parties hereto that,
except as may otherwise herein be provided, the Rent payable to Landlord under
this Lease be absolutely net and that Landlord have no expense whatsoever
attributable to the Premises or to the operation or maintenance of the Premises.
30. PERFORMANCE OF TENANT'S OBLIGATIONS
If Tenant shall be in default hereunder, in any respect, Landlord
may at Landlord's option and without waiving its rights hereunder but following
thirty (30) days prior written notice to Tenant, cure such default on behalf of
Tenant, in which event Tenant shall, promptly upon demand by Landlord, reimburse
Landlord for all expenses incurred by
-16-
Landlord in effecting such cure, including but not limited to attorneys' fees,
together with interest thereon at 12% per annum (whether or not elsewhere in
this Lease it is provided for Landlord to recover interest upon occurrence of a
specified default by Tenant and cure thereof by Landlord). In order to collect
such reimbursement, Landlord shall have all the remedies available under this
Lease and/or by law or equity for a default in the payment of Rent. Tenant shall
also be responsible for all reasonable attorneys' fees incurred by Landlord in
connection with any default or threatened default by Tenant, the enforcement by
Landlord of any covenant made by Tenant, and/or Landlord's exercise of any right
of approval or consent as may be provided for hereunder.
31. FLOOR LOADS
Tenant shall not place a load upon any floor of the Premises
exceeding the floor load per square foot area which it was designed to carry and
which is allowed by law, which Landlord will inform Tenant of prior to the
Commencement Date. Any equipment or property of any nature placed or installed
by Tenant in the Premises shall be placed and maintained in settings sufficient,
in Landlord's reasonable judgment, to absorb and prevent vibration, noise and
annoyance that damages the Building or that is a nuisance to other property
owners.
32. ECRA COMPLIANCE
Except as otherwise provided in this Section 32 and this Lease,
Tenant shall, at Tenant's own expense, comply with the Environmental Cleanup
Responsibility Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated
thereunder ("ECRA"), as well as all other environmental laws, rules or
regulations ("Environmental Laws"). To the extent of its responsibility
hereunder, Tenant shall, at Tenant's own expense, make all submissions to,
provide all information to, and comply with all requirements of, the Bureau of
Industrial Site valuation ("the Bureau") of the New Jersey Department of
Environmental Protection ("NJDEP"). Should the Bureau or any other division of
NJDEP determine that a cleanup plan be prepared and that a cleanup be undertaken
because of any spills or discharges of hazardous substances or wastes at the
Premises which have been generated or created by Tenant and which occur during
the Term, then Tenant shall, at Tenant's own expense, prepare and submit the
required plans and financial assurances, and carry out the approved plans to the
extent attributable to Tenant's generation or creation of hazardous substances
or wastes. At no expense to Landlord, Tenant shall promptly provide all
reasonable information requested by Landlord for preparation of nonapplicability
affidavits with respect to ECRA and shall promptly sign and deliver such
affidavits when requested by Landlord. Tenant shall indemnify, defend and save
harmless Landlord against all fines, suits, procedures, claims and actions of
any kind (including attorneys' fees) arising out of or in any way connected with
any spills or discharges of hazardous substances or wastes at the Premises which
have been generated or created by Tenant and which occur during the Term, and
from all fines, suits, procedures, claims and actions of any kind (including
attorneys' fees) arising out of Tenant's failure to provide all information,
make all submissions and take all actions required by the
-17-
Bureau or any other division of NJDEP, or from any violation under or failure to
comply with ECRA or any other Environmental Law to the extent attributable to
Tenant's generation or creation of hazardous substances or wastes. Tenant's
obligations and liabilities under this Section 32 shall continue so long as
Landlord remains responsible for any spills or discharges of hazardous
substances or wastes at the Premises which have been generated or created by
Tenant and which occur during the Term, notwithstanding expiration of the Term
or other termination of this Lease. Tenant's failure to abide by the terms of
this Section 32 shall be restrainable by injunction. Landlord shall be
responsible and shall pay for all losses, costs, damages, claims, fines,
response costs and expenses (including attorneys' fees at trial and on appeal)
attributable to hazardous substances or wastes at, on, under or proximate to the
Premises which have not been generated or created by Tenant during Term of this
Lease, and shall indemnify and hold Tenant harmless therefrom. Landlord's
obligations hereunder shall survive any termination or expiration of this Lease.
33. INVALIDITY OF PARTICULAR PROVISIONS
Wherever in this Lease any portion or part thereof has been stricken
out, whether or not any relative provision has been added, this Lease shall be
read and construed as if the material so stricken were never included herein and
no implication shall be drawn from the text of the material so stricken which
would be inconsistent in any way with the construction or interpretation which
would be appropriate if such material were never contained herein.
34. GENDER AND PERSON
Words of any gender used in this Lease shall be held to include any
other gender, and words in the singular number shall be held to include the
plural, when the sense of the words require same.
35. MODIFICATION
This Lease may not be modified except by an instrument in writing
signed by the parties hereto.
36. COVENANTS TO BIND RESPECTIVE PARTIES
The covenants and agreements contained in this Lease shall inure to
the benefit of the parties hereto and their heirs, legal representatives,
successors and permitted assigns and, subject to Section 18 ("Attornment,
Definition of Term 'Landlord'"), shall be binding on the parties hereto, their
heirs, legal representatives, successors and assigns.
37. NO WAIVER OF BREACHES
The failure of Landlord or Tenant to insist upon strict performance
of any of the covenants or conditions of this Lease or to exercise any option
herein conferred in any one
-18-
or more instances shall not be construed as a waiver or relinquishment for the
future of any such covenants, conditions or options, but the same shall be and
remain in full force and effect. Acceptance by Landlord of current rent shall
not be deemed a waiver of past obligations of Tenant, nor shall acceptance by
Landlord at any time of any monies proffered by Tenant constituting less than
the entire amount of rent then due be deemed other than receipt of partial
payment on account of the rent due, and shall not constitute an accord or
satisfaction.
38. CAPTIONS
Captions have been used solely for the sake of reference and shall
in no way govern or affect the interpretation hereof.
39. EXHIBITS
All exhibits referred to herein are attached (unless otherwise
specified) and are deemed to be a part hereof.
40. INTEGRATION
The agreements contained in this Lease constitute the full and final
agreement between the parties hereto as to the subject matter hereof, and all
prior agreements or writings of any nature between the parties hereto are hereby
superseded and are integrated herein. This Lease may not be amended except in
writing signed by both parties hereto.
41. JOINT AND SEVERAL LIABILITY
In the event that two or more individuals, corporations,
partnerships or other business associations (or any combination of two or more
thereof) shall sign this Lease as or hereafter become Tenant, the liability of
each such individual, corporation, partnership or other business association to
pay rent and perform all other obligations hereunder shall be joint and several.
In the event that Tenant is or shall be a partnership or other business
association the members of which are, by virtue of statute or general law,
subject to personal liability, the liability of each such member shall be joint
and several.
42. NO OPTION OR OFFER
The submission of this Lease for examination does not constitute a
reservation of, or option for, the Premises nor an offer of any nature, and this
Lease becomes effective only upon execution hereof by Landlord, Tenant and the
guarantor(s), if any.
-19-
43. CHANGES REQUIRED BY LENDER
Tenant shall consent in writing to any changes in this Lease
reasonably required by any prospective mortgage lender provided that no such
changes shall adversely affect Tenant rights hereunder or increase Tenant's
obligations hereunder.
44. CONSENTS AND APPROVALS
Unless it is provided in this Lease that a party hereto shall not
unreasonably withhold a consent or approval required to be received from that
party, the consent or approval shall be at the sole discretion of the party.
45. WAIVER OF JURY TRIAL
The parties waive the right to a jury trial with respect to any
action, including an action for damage or injury, arising out of this Lease or
Tenant's use or occupancy of the Premises.
46. NO LEASE RECORDING
Tenant agrees that it will not record this Lease or any memorandum
hereof.
47. EXTENSION AND RENEWAL
A. For each month during the initial six month Term of this Lease
the Tenant remains on the premises, this Lease is extended for an additional
month. If the Tenant remains on the premises for the initial term of six (6)
months the Lease is extended for a total Term of twelve (12) months from the
Commencement Date to November 30, 1993.
B. Tenant shall be entitled to renew this Lease for one (1) five
(5)-year period, which shall commence on the day immediately subsequent to the
date of the expiration of the initial six month Term plus any extension as
provided in subsection A above (the "Renewal Term"), upon the same terms and
conditions as are contained in this Lease, except that there shall be no further
right of renewal. The Basic Rent during the Renewal Term shall be the same as
set forth in Paragraph 5.A above (i.e., $5,320.00 per month).
C. Subject to Tenant's rights to cure such defaults as provided
in this Lease, Tenant shall only be entitled to exercise its right to renew
if Tenant is not in default of any of the provisions of this Lease at the
time of exercise thereof, and such right shall only be effective if Tenant
shall continue to be current and not in default with respect to the
provisions of this Lease from the date of Tenant's exercise of renewal to the
date of expiration of the initial six month Term as extended by subsection A
above.
-20-
D. Tenant shall exercise its right of renewal, if at all, by
giving Landlord notice of the exercise thereof at least three (3) months prior
to expiration of the initial six month Term plus any extension thereof as
provided in subsection A above.
IN WITNESS WHEREOF, the parties hereto have hereunder set their hands and
seals the day and year first above written.
LANDLORD:
WITNESS OR ATTEST: IDEAL TRADE CO.
2 February 1993 By: /s/ Xxxxxxx Xxxxxx
----------------------------------- ---------------------------------
Xxxxxxx Xxxxxx, Partner
TENANT:
FINE ARTS ENGRAVERS CO., INC.
27 January 1993 By: /s/ XX Xxxxxxxx
----------------------------------- ---------------------------------
X.X. XXXXXXXX, President
-00-
XXXX XXXX XXXX XXXXXXXX
GRAPHICS President
August 19, 1993
VIA REGISTERED MAIL
Xx. Xxxxxxx Xxxxxx
IDEAL TRADE CO.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
RE: EXTENSION OF LEASE TERM
Dear Gil:
Reference is made to that certain Lease Agreement dated as of December
1, 1992 between us, and in particular, to Paragraph 47 of the Lease pursuant
to which Fine Arts Engravers Co., Inc. is granted an option (the "Option") to
renew the Lease term for a five year period by providing written notice to
landlord of exercise of such option on or prior to August 31, 1993.
Subject only to our satisfaction as to the environmental condition of
the property discussed below, this letter provides you written notice of Fine
Arts' exercise of the Option and of its decision to demise the premises for
an additional five year term commencing December 1, 1993 and ending November
30, 1998. As we agreed in our telephone conversation in August 12, 1993,
exercise of this option expressly is contingent upon our receipt from you of
a new environmental audit of the demised property and/or proximate property
that landlord has ordered in connection with a new financing of its property
that is satisfactory to Fine Arts in form, scope and content and that
indicates there are no environmental or potential environmental problems on,
with or near the Property. We understand this report will be completed
sometime in September, 1993. If the environmental report is unsatisfactory to
us in any respect, then, at our option, exercised by written notice to you on
or prior to forty-five (45) days following receipt by us of this report, we
may rescind our exercise of the Option and/or the Lease. Following such
rescission, we will occupy the premises as a month to month tenant.
[LETTERHEAD]
Xx. Xxxxxxx Xxxxxx
August 19, 1993
Page 2
Please acknowledge our right to and the validity of our exercise of the
Option, and please confirm Landlord's acceptance of the conditions thereto as
described herein by executing the enclosed second copy of this letter and
returning same to me.
I hope you had an enjoyable trip to Alaska.
Sincerely yours,
Fine Arts Engravers Company, Inc.
By /s/ X.X. Xxxxxxxx
--------------------------------
X.X. Xxxxxxxx, President
ACKNOWLEDGED, AGREED AND
ACCEPTED this 31 day of
August, 1993
Ideal Trade Co., a New Jersey partnership
By: /s/ [ILLEGIBLE]
-------------------------------
Title: /s/ Managing Partner
-----------------------------
cc: Xxxxxxx X. Xxxxxxxx, Esq. (via registered mail)
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
EXTENSION OF LEASE AGREEMENT
IDEAL TRADE COMPANY, a partnership of New Jersey (hereinafter the
"Landlord") and FINE ARTS ENGRAVERS CO., INC., (hereinafter the "Tenant")
hereby agree to extend a Lease Agreement made between the parties and dated
December 1, 1992 and renewed and extended by virtue of paragraph 47 of said
Lease Agreement, a copy of which is attached hereto and made apart hereof as
Exhibit "A". The parties agree as follows:
1. The terms and conditions of the Lease dated December 1, 1992 shall be
extended as such that the basic rent shall be in accordance with the terms
set forth in Exhibit "B" attached hereto and the lease shall be extended for
an additional five year period beginning November 1, 1998 and terminating on
October 31, 2003. Additionally the terms and conditions as set forth in the
Letter Agreement dated October 16, 1998 of the Xxxxxx Family Partnership and
accepted by supplemental letter of Xxxx Xxxxxxx, CEO of Tenant, copies of
which are attached hereto as Exhibit "C", shall be binding and in full force
and effect with respect to the terms of this extension.
2. The Landlord agrees to said extension and Tenant accepts same subject
to the aforesaid. In the event that any of the terms and conditions of the
Letter Agreement dated October 16, 1998 differ from the Lease Agreement dated
December 1, 1992, the terms and conditions of the Letter Agreement shall
prevail.
IN WITNESS WHEREOF, the parties hereto have hereunder set their hands
and seals this 29 day of December, 1998.
WITNESS OR ATTEST: LANDLORD:
IDEAL TRADE CO.
/s/ [ILLEGIBLE] /s/ Xxxxxxx Xxxxxx
------------------------------- -------------------------------
XXXXXXX XXXXXX, Partner
TENANT:
FINE ARTS ENGRAVERS CO. INC.
/s/ [ILLEGIBLE] /s/ Xxxx Xxxxxxx
------------------------------- -------------------------------
President,
CONSENT TO ASSIGNMENT, ESTOPPEL AND RELEASE
The undersigned Landlord, as successor by purchase to the interest of
Ideal Trade Co., hereby consents to the assignment of that certain Lease
Agreement dated as of the 1st day of December, 1992, by and between IDEAL
TRADE CO., a partnership of New Jersey, and FINE ARTS ENGRAVERS CO., INC.
("Tenant"), as extended by Extensions to Lease dated August 19, 1993 and
December 29, 1998 and as modified by correspondence dated October 16, 1908 and
December 29, 1998 (the "Lease"), on the terms and conditions set forth in the
form of Assignment and Assumption Agreement between Tenant and KEYSTONE
ACQUISITION CORP., a Washington corporation ("Assignee"), attached hereto as
EXHIBIT A (the "Assignment Agreement"). In connection with Landlord's
consent, Landlord further represents and agrees as follows:
1. The Lease is in full force and effect and has not been changed,
modified or amended in any manner;
2. To the best of Landlord's knowledge, (i) all obligations of Tenant
under or in connection with the Lease have been performed to date; (ii)
Landlord has no right of setoff, defense or counterclaim against enforcement
of Tenant's rights under the Lease and Tenant is not in default under the
Lease; and (iii) there has not occurred and there does not exist any
condition or event which, with the passage of time or the giving of notice or
both, would constitute a default or event by either Landlord or Tenant under
the Lease; and
3. Landlord hereby releases Tenant from all obligations under the Lease
arising from and after the Effective Date of the assignment (as defined in
the Assignment Agreement).
IN WITNESS WHEREOF, the undersigned as caused this document to be
executed as of the date written below.
LANDLORD:
LOUSONS 1112 P.W., LLC
BY: PALIN EQUITIES, LLC, MANAGING MEMBER
BY: PALIN ENTERPRISES, MANAGER
BY: PE REALTY CORP.,
MANAGING PARTNER
BY /s/ Xxxxxxx Xxxxx
--------------------------
XXXXXXX XXXXX
PRESIDENT
