Exhibit 10.1
DEED OF LEASE AGREEMENT
THIS DEED OF LEASE AGREEMENT (this "Lease"), is made as of this 22nd day of
September, 2006 , by and between IPofA Water View, LLC, a Delaware limited
liability company (the "Landlord"), First Montauk Financial Corp., a New Jersey
corporation (the "Tenant").
WITNESSETH
That for and in consideration of the below stated rent and other terms and
conditions stipulated in this Lease, Landlord does hereby lease to Tenant and
Tenant does hereby rent from Landlord the following described premises located
in the County of Monmouth, New Jersey, and more particularly described or shown
on Exhibit A, attached hereto and by this reference made a part hereof (the
"Leased Premises"). The Useable Square Footage is estimated to be approximately
29,800 square feet, subject to adjustment based upon the actual measurements.
1. TERM:
The term of this Lease (the "Term") shall be for ONE HUNDRED AND TWENTY
(120) months and shall commence on the 22nd day of, September 2006 (the
"Commencement Date"), and shall end on the 21st day of September, 2016 (the
"Expiration Date"). The twelve-month period following each anniversary of the
Commencement Date is referred to herein as a "Lease Year". Notwithstanding
anything contained herein to the contrary, Landlord and Tenant mutually agree
that if the Leased Premises cannot be delivered to Tenant on the Commencement
Date for any reason, then the Commencement Date shall be adjusted to the date
possession is given to Tenant and the Expiration Date will be adjusted to
reflect the Term of this Lease as contemplated herein, and Tenant agrees that it
shall not be entitled to any damages, rights or remedies whatsoever which Tenant
might otherwise have by reason of possession of the Leased Premises not being
given on the originally contemplated Commencement Date; provided, however, that
if Landlord is unable to give possession of the Leased Premises to Tenant on the
Commencement Date due to work undertaken by Landlord at Tenant's request, then
the Rent (as hereinafter defined) shall nevertheless commence as scheduled on
the Commencement Date without abatement or allowance and the Expiration Date and
the Term of this Lease shall not be adjusted.
2. RENT:
Tenant hereby agrees to pay Landlord, as rent for the Leased Premises,
without any demand, offset, or reduction whatsoever, an annual sum of SEVEN
HUNDRED THIRTY-THREE THOUSAND EIGHTY AND XX/00 Dollars ($733,080.00), payable in
equal monthly installments in the monthly amount of SIXTY-ONE THOUSAND NINETY
AND 90/100 Dollars ($61,090.00) each, payable in advance beginning on the
Commencement Date and continuing thereafter on the first day of each succeeding
month for the Term of the Lease (together with the Renewal Rent, as hereinafter
defined, and all additional charges and rentals, hereinafter referred to as the
"Additional Rent", the "Rent"). All Rent payments shall be made at the office of
Landlord and made payable to the property manager, IPofA Water View PM, LLC, as
Landlord's agent, at 10800 Midlothian Turnpike, Suite 309, Richmond, Virginia
23235, or such other address as Landlord may direct in writing.
Rental payments will be reduced pro rata to the space actually occupied
by tenant during the refit and buildout period and will be recalculated each
month as the refit and build out is completed.
A. ADDITIONAL RENT:
Tenant further shall pay as Additional Rent, which Additional Rent
shall be payable at the same time as, and in addition to, the aforesaid Rent,
Tenant's Proportionate Share (hereafter defined) of the increase in Landlord's
expenses for real estate taxes and common area maintenance. Tenant's
Proportionate Share of such increase shall be determined by multiplying the
total cost thereof by a fraction, the numerator of which is the Leaseable square
footage of the Leased Premises, and the denominator of which is the total
rentable square footage in the building in which the Leased Premises are
located.
B. LATE CHARGES:
Any Rents or Additional Payments as herein described not paid when due
shall bear interest at the rate of the lesser of (i) 12% per annum, or (b) the
highest interest rate per annum permitted under the laws of the State in which
the Premises are located, or under federal law, to the extent applicable.
C. RENT FOR RENEWAL LEASE TERMS:
In the event that Tenant exercises a Renewal Option (as hereinafter
defined) to extend this Lease under the Renewal Lease Terms (as hereinafter
defined) pursuant to Section 14, the Rent for such Renewal Lease Term shall be
payable in equal monthly installments on the first day of each month, the amount
to be Fair Market Value.
D. OPERATING EXPENSES:
The Operating Expenses to be paid by the Tenant shall be paid monthly
in advance with installments of base annual rental based upon reasonable
estimates for such charges made by Landlord. An adjustment shall be made for
Operating Expenses on a calendar year basis when the actual costs from the
preceding year and reasonable estimates for the upcoming year have been
determined. Operating Expenses shall be prorated on a monthly basis for any
partial calendar year.
In the event the annual reconciliation reveals a balance due from
Tenant, Landlord will invoice Tenant for the remaining balance of its Operating
Expenses. Tenant shall have thirty (30) days from the date of such invoice to
pay Landlord the balance due. Should the annual reconciliation reveal an
overpayment by Tenant, Landlord shall notify Tenant of such overpayment and
apply a credit to Tenant's account. Should there be an overpayment by Tenant
during the last lease year, Landlord shall notify Tenant of such overpayment and
upon Tenant's request, refund any monies due to Tenant within forty-five (45)
days after receipt of such request from Tenant.
For purposes of this Agreement, the term "Operating Expenses" means all
costs and expenses of every kind and nature paid or incurred by Landlord in its
discretion in operation and maintenance of the Premises. Such costs shall
include (but shall not be limited to) all direct costs of operation and
maintenance of the Premises as determined by standard accounting practices and
shall include by way of illustration, but is not limited to: ad valorem real and
personal property taxes, hazard and liability insurance premiums, utilities,
heat, air conditioning, janitorial service, labor, materials, supplies,
equipment and tools, permits, licenses, inspection fees, water and sewer
charges; utilities system installation charges; fees for required business
licenses and permits; costs of supplies; costs for utilities serving the the
Premises (including on and off-site utilities and facilities such as sewer lift
stations, retention/detention ponds, drainage facilities, roadways, driveways,
and all expenses relating thereto); security; common area improvements;
elevators and stairways; project related legal and accounting costs; solid waste
assessments; costs of operation and maintenance of lift stations; property
management fees at the rate of five percent (5%) of the base annual rental,
percentage rent and additional rental which may be payable to Landlord or a
third party; costs of equipping, cleaning, lighting, traffic control, striping,
resurfacing, resealing, snow removal and maintaining all parking facilities and
driveways; reserves for repairs, maintenance and replacement of building
facilities; costs for painting exterior walls; costs for maintaining and
monitoring fire sprinkler systems and costs for the maintenance, planting,
replanting and replacement of all landscaping and gardening and the maintenance
of sprinkler or irrigation systems for such landscaping or gardening. "Operating
Expenses" shall not, however, include depreciation on the Premises or equipment
therein, interest, executive salaries, real estate brokers' commissions, or
other expenses that do not relate to the operation of the Premises.
3. SECURITY DEPOSIT:
Tenant shall deposit with Agent upon execution of this Lease the sum of
$0.00 as security for the full and faithful performance by Tenant of Tenant's
obligations contained in this Lease (the "Security Deposit"). Agent shall
maintain the Security Deposit in a non-interest bearing account. If Tenant fails
to pay any amount which Tenant is obligated to pay pursuant to this Lease or
fails to perform any other obligation for which it is liable under this Lease,
Landlord may, at its option (but Landlord shall not be obligated to), apply any
portion of such Security Deposit to any damages incurred by Landlord, any sums
advanced by Landlord, any commissions due to Agent and all other amounts to
which Landlord is entitled upon Tenant's failure to perform or comply with all
of its obligations under this Lease. Any such application by Landlord shall not
waive the default created by Tenant's failure to pay or perform. If any portion
of the Security Deposit is so applied by Landlord, Tenant shall, within five (5)
days after demand from Landlord, restore the Security Deposit held by Landlord
to its original amount. After the Expiration Date, the Security Deposit, less
amounts charged against same, shall be refunded to Tenant within thirty (30)
days after Tenant has paid all amounts owed and performed all of its obligations
under this Lease.
4. [INTENTIONALLY DELETED]
5. USE OF LEASED PREMISES:
Tenant shall use the Leased Premises solely for general office use, and
not for medical or retail uses unless otherwise permitted in this Lease, and in
strict accordance with all applicable codes, laws, ordinances and regulations of
all governmental authorities and all applicable restrictions, covenants and
agreements. Tenant shall not use the Leased Premises for any other purpose
without the prior written consent of Landlord, in its sole discretion. Tenant
will not use or permit or suffer the use of the Leased Premises for any unlawful
or offensive business or purpose. Tenant will not, without the prior written
consent of Landlord, in its sole discretion, use or permit the walls, fences,
roof or any other part of the Leased Premises to be used for advertising
purposes. Tenant will not store upon the Leased Premises any combustible or
explosive materials. Tenant acknowledges that the Leased Premises are suitable
for the proposed business use and is in compliance with all ordinances,
regulations, zoning and municipal state, or federal law as relates to the Leased
Premises and Tenant's intended use thereof.
Landlord shall have the right, in its sole discretion, to prescribe the
weight, size and proper location of safes and other weighty articles before the
same are admitted into the building, and any damage done to the building in the
putting in or out of such articles, or during the time they are in or on the
Leased Premises, shall be made good by Tenant. All persons employed by or
contracted with by Tenant for repairs, alterations, or the moving of safes,
furniture or other bulky articles in and out of the building and the Leased
Premises must be acceptable to Landlord and shall be at Tenant's sole cost and
liability, and such work is to be done only at a time designated by Landlord.
6. CONDITION OF LEASED PREMISES:
Landlord makes no warranty or representation, expressed or implied,
with respect to the Premises or the condition thereof or the location, use,
description, design, merchantability, fitness for use, fitness for any
particular purpose, condition or durability thereof, or its condition of title,
it being agreed that all risks incident thereto are to be borne by Tenant.
Tenant shall take the Premises in an "As Is" condition as of the
Commencement Date. No damage or destruction of the Premises from whatever cause
prior to the Commencement Date shall in any way affect this Lease or the Base
Rent or Additional Rent hereunder.
7. TENANT SIGN APPROVAL:
Tenant may install Tenant's sign in the place designated for Tenant's
sign on the Leased Premises or on the building containing the Leased Pemises,
provided Tenant's sign meets Landlord's criteria, size requirements, and any
applicable local, state or federal laws, ordinances, rules and regulations and
provided further that such sign shall be subject to Landlord's prior written
approval as to material, color, design and content.
Tenant must deliver to Landlord two (2) copies of detailed plans and
specifications of Tenant's proposed sign showing the size, shape and color of
Tenant's proposed sign for Landlord's approval. If Tenant fails to properly
maintain signage, Landlord, at Tenant's expense, shall have the right, but not
the obligation to repair Tenant's sign. Any expense incurred by Landlord for
maintaining Tenant's sign shall be payable hereunder as Additional Rent.
Prior to the expiration or sooner termination of this Lease, Tenant
shall remove all signage and repair any holes or damage.
8. [INTENTIONALLY DELETED]
9. INSURANCE REQUIREMENTS:
A. MAINTENANCE OF INSURANCE:
Tenant shall, at Tenant's sole cost and expense, at all times
throughout the Term of this Lease, maintain insurance on the Premises for the
mutual benefit of Landlord and Tenant in accordance with the insurance
requirements set forth on Exhibit B of this Lease.
B. POLICIES AND CERTIFICATES:
All insurance provided for under this Lease shall be effected under
valid enforceable policies issued by insurers of responsibility and licensed to
do business in the State where the Premises are located. The original policies
and the certificates for the policies under Section 9A shall be delivered to
Landlord within five days of Tenant's receipt of Landlord's written request
therefor. Prior to the expiration date of any policy required pursuant to this
Article, the original renewal policy (or the certificate as concerns the
insurance required pursuant to Section 9A) for such insurance shall be delivered
by Tenant to Landlord, together with satisfactory evidence of payment of the
premium on such policy. To the extent obtainable, all such policies shall
contain agreements by the insurers that (a) no act or omission by the Tenant
shall impair or affect the rights of the insured to receive and collect the
proceeds under the policies, (b) such policies shall not be cancelled except
upon not less than 10 days' prior written notice to each named insured and loss
payee, and (c) the coverage afforded thereby shall not be affected by the
performance of any work in or about the Premises.
C. LOSS PAYABLE:
The loss, if any, under all policies of insurance of the kind referred
to in Section 9A shall be payable to Tenant, unless the casualty results in
Tenant's termination of this Lease pursuant to the provisions of Article XV, in
which event the loss shall be payable to Landlord. All policies of insurance of
the kind aforesaid shall expressly provide that all losses thereunder shall be
adjusted and paid as provided in Sections 9D and 9E.
D. ENDORSEMENTS:
All policies under Sections 9A shall contain endorsements that the
rights of the insured to receive and collect the proceeds shall not be
diminished because of any additional insurance carried by Tenant on Tenant's own
account.
E. TENANT'S INDEMNITY:
The requirements of this Article shall not be deemed or construed to
negate or modify Tenant's obligations to defend and indemnify Landlord pursuant
to the provisions of this Lease, or to negate or modify Tenant's obligations to
restore the Premises following a Taking or casualty pursuant to the provisions
of this Lease.
F. ADDITIONAL INSUREDS:
Notwithstanding anything herein to the contrary, the holder of the
Permitted Mortgage (including, without limitation, any assignee of the Permitted
Mortgage) shall be named an additional insured under any liability policies and
proceeds under such other policies shall be payable to holder or such assignee
as a mortgagee under a standard mortgagee clause in favor of, and acceptable to,
such holder or such assignee. Tenant's obligations hereunder to deliver
certificates of insurance or original insurance polices to Landlord shall,
during the time the Permitted Mortgage is in existence, include delivery of such
items to such lender in addition to (or where necessary in lieu of) delivery of
such items to Landlord. To the extent that any insurance proceeds are paid to
the lender under the Permitted Mortgage in accordance with the requirements of
the Permitted Mortgage, such payment (and, as applicable, the use of any such
proceeds by Tenant to repair any related damage in accordance with the terms of
the Permitted Mortgage), will be deemed to satisfy Tenant's obligations under
the Lease, including Article XIII, where such proceeds would, without such
Permitted Mortgage, be available to Tenant to perform its repair obligations
under this Lease. Tenant's and Landlord's rights in and to any insurance
proceeds are subject to the rights of the holder of the Permitted Mortgage under
the Permitted Mortgage.
10. ASSIGNMENT AND SUBLETTING:
Tenant shall not assign this Lease or sublet the Leased Premises, in
whole or in part, without Landlord's prior written consent, in Landlord's sole
discretion. If consent to assign or sublease is obtained or if a new lease is
entered into, as hereinafter provided, no such assignment or sublease shall in
any way release or relieve Tenant or any guarantor from any of its covenants or
undertakings contained in this Lease. Tenant and any guarantor shall remain
liable on this Lease during the Term and all Renewal Lease Terms. Tenant's
request for consent to any subletting or assignment of this Lease shall be
accompanied by a written statement setting forth the details of the proposed
sublease or assignment and any other information Landlord deems relevant. Upon
receipt thereof, Landlord shall have the right to terminate this Lease as of the
effective date of such sublease or assignment and enter into a direct lease with
the proposed assignee or subtenant. Tenant shall be liable for reasonable fees
incurred by the Landlord in connection with any assignment of this Lease or
subletting of the Leased Premises or any part thereof, including, but not
limited to, reasonable attorneys' fees. No consent to an assignment or sublease
shall be deemed to constitute a waiver by Landlord of its right to consent to
any subsequent assignments or subleases.
11. [INTENTIONALLY DELETED]
12. REPAIRS AND ALTERATIONS:
A. REPAIRS:
Throughout the Term of the Lease, Tenant shall be obligated to pay for
all repairs and replacements of the Premises, including the structure,
foundation, roof, exterior walls, and parking lot.
B. ALTERATIONS:
Tenant shall make no other improvements except as otherwise further set
forth herein. Tenant will make no alterations in or additions or improvements to
the Leased Premises without first obtaining the written consent of Landlord, in
Landlord's sole discretion. Landlord shall have the right to approve the plans
for, and designate the contractors and/or workmen to perform any such work, and
all additions and improvements made by Tenant shall become the property of
Landlord immediately upon completion thereof; provided, however, that Landlord,
by giving written notice to Tenant not less than two (2) months prior to the
expiration of this Lease, or any continuance or renewal thereof, may require
Tenant to remove any alterations, additions or improvements and to restore the
Leased Premises to the condition in which they were on the Commencement Date.
13. DESTRUCTION OF LEASED PREMISES, CONDEMNATION:
A. DESTRUCTION OF LEASED PREMISES:
If the Leased Premises are damaged by fire or other casualty, then
Landlord shall repair and restore the Leased Premises to substantially the same
condition of the Leased Premises immediately prior to such casualty, subject to
the following terms and conditions: (i) The casualty must be insured under
Landlord's insurance policies, and Landlord's obligation is limited to the
extent of the insurance proceeds received by Landlord. Landlord's duty to repair
and restore the Leased Premises shall not begin until receipt of the insurance
proceeds; (ii) Landlord's mortgagee(s) must permit the insurance proceeds to be
used for such repair and restoration; and (iii) Landlord shall have no
obligation to repair and restore Tenant's trade fixtures, decorations, signs,
contents or any of Tenant's improvements to the Leased Premises.
Landlord shall have the option of terminating this Lease if: (i) The
Leased Premises are rendered wholly untenantable; (ii) The Leased Premises are
damaged in whole or in part as a result of a risk which is not covered by
Landlord's insurance policies; (iii) Landlord's mortgagee(s) do not permit a
sufficient amount of the insurance proceeds to be used for restoration purposes;
(iv) The Leased Premises are damaged in whole or in part during the last two
years of the Term, or during any Renewal Lease Term; (v) the insurance proceeds
received by Landlord are insufficient to repair and restore the Leased Premises
to the condition described above; or (vi) The building containing the Leased
Premises is damaged (whether or not the Leased Premises are damaged) to an
extent of twenty-five percent (25%) or more of the fair market value thereof.
Tenant shall vacate and surrender the Leased Premises to Landlord within fifteen
(15) days after receipt of Landlord's notice of termination.
Unless terminated, the Lease shall remain in full force and effect, and
Tenant shall promptly repair, restore or replace Tenant's trade fixtures,
decorations, signs, contents and all of Tenant's improvements to the Leased
Premises. All repair, restoration and replacement by Tenant shall be at least to
the same condition as existed prior to the casualty. The proceeds of all
insurance carried by Tenant on its property shall be held in trust by Tenant for
the purposes of such repair, restoration and replacement.
If the Leased Premises are rendered wholly untenantable by the
casualty, then the Rent and other payments under the Lease payable by Tenant
shall be fully abated. If the Leased Premises are only partially damaged, then
Tenant shall continue the operation of Tenant's business in any part not damaged
to the extent reasonably practicable from the standpoint of prudent business
management, and Rent and other charges shall be abated proportionately to the
portion of the Leased Premises rendered untenantable. The abatement shall be
from the date of the casualty until the Leased Premises have been substantially
repaired and restored, or until Tenant's business operations are restored in the
entire Leased Premises, whichever shall first occur. However, if the casualty is
caused by the negligence or other wrongful conduct of Tenant or Tenant's
subtenants, licensees, contractors or invitees successors or assigns, or their
respective agents or employees, there shall be no abatement of Rent.
The abatement of Rent set forth above is Tenant's exclusive remedy
against Landlord in the event of casualty. Tenant hereby waives all claims
against Landlord for any compensation or damage for loss of use of the whole or
any part of the Leased Premises and/or for any loss of business, loss of
profits, inconvenience or annoyance by any casualty and any resulting damage,
destruction, repair or restoration.
B. CONDEMNATION:
If all of the Leased Premises is taken under the power of eminent
domain (or by a conveyance in lieu thereof) (a "Taking"), or if only a portion
of the Leased Premises are so taken such that the remaining portion thereof are
unusable or unsuitable for the continued feasible and economic occupancy of the
Leased Premises for the use permitted in Section 5 of this Lease, then this
Lease shall terminate as of the date possession is taken by the condemnor, and
Rent shall be adjusted between Landlord and Tenant as of such date. If only a
portion of the Leased Premises is taken and the remainder is suitable for the
continued feasible and economic occupancy of the Leased Premises for the use
permitted in Section 5 of this Lease, then this Lease will not terminate, but
Rent shall abate in a just and proportionate amount to the loss of use
occasioned by the Taking. Landlord shall use commercially reasonable efforts to
make all necessary repairs and restorations to the Leased Premises within one
hundred eighty (180) days after the Taking (the "Restoration Period") so that
the Leased Premises shall constitute a complete architectural unit and serve the
functions originally contemplated therefor under this Lease. Notwithstanding any
provision in this Lease to the contrary, Tenant shall have the right to
terminate this Lease upon a partial Taking if Landlord shall not complete or be
unable to complete all necessary restorations or repairs within the Restoration
Period, by giving written notice thereof to Landlord within fifteen (15) days
after the end of the Restoration Period (as extended by any Force Majeure
delays). To the extent that Landlord receives an award from the condemning
authority specifically designated for Tenant's relocation, moving or storage
expenses, the loss of Tenant's personal property or Tenant's improvements,
Tenant shall be entitled to claim compensation from the condemning authority
therefor. Except as provided in the preceding sentence, Tenant shall not be
entitled to any part of Landlord's award relating to any Taking of the Leased
Premises or any part thereof, including but not limited to, the value of the
unexpired leasehold interest in the Leased Premises.
14. RENEWAL:
Tenant shall have the right to extend the Lease for two (2) additional
five (5) year periods on the same terms and conditions as those contained in the
original term provided that the rent shall be determined at the Fair Market
Rate, as determined by Landlord, on each anniversary of the Commencement Date.
This option is contingent upon the following (i) Tenant is not in default at the
time Tenant gives Landlord written notice of Tenant's intention to exercise the
Renewal Option; (ii) upon the Expiration Date or the expiration of any Renewal
Lease Term, Tenant has no outstanding default; (iii) no event has occurred that
upon notice or the passage of time would constitute a default; and (iv) Tenant
is occupying the Premises. Tenant shall exercise each Renewal Option by giving
Landlord written notice at least one hundred twenty (120) days prior to the
Expiration Date or the last day of any Renewal Lease Term. If Tenant fails to
give such notice to Landlord prior to said one hundred twenty (120) day periods,
then Tenant shall forfeit the Renewal Option.
15. HOLDING OVER:
If Tenant shall remain in possession of the Leased Premises or any part
thereof after the expiration or termination of the Term of this Lease, whether
by lapse of time or otherwise, then Tenant shall pay Landlord base monthly
rental equal to 150% of the base monthly rental payable immediately prior to
such expiration or termination, and Tenant also shall pay all damages sustained
by Landlord, whether direct or consequential, on account thereof. Such holdover
shall be as a tenant at will and all of the terms and provisions of this Lease
shall be applicable during such period. No holding over by Tenant, whether with
or without consent of Landlord, shall operate to extend this Lease except as may
be herein provided. The provisions of this paragraph shall not be held as a
waiver by Landlord of any right of re-entry, or any other right of Landlord as
provided under this Lease or at law or in equity; nor shall the receipt of any
Rent or any other act in apparent affirmance of tenancy, operate as a waiver of
the right to terminate this Lease and the Term for the period still unexpired,
for any breach of any of the covenants herein.
16. ACCESS BY LANDLORD:
Tenant shall permit Landlord and its authorized representatives to
enter upon the Leased Premises and all parts thereof during business hours (and
in emergencies at all times) for the purposes of inspecting the same, making
repairs, additions, alterations or improvements or to enforce and carry out any
provision of this Lease and for the further purpose of showing the Leased
Premises to prospective tenants and purchasers and representatives of lending
institutions. Following any default by Tenant under this Lease or during the
last six (6) months of the original Term and all renewals or extensions thereof,
Landlord shall have the right to place "For Rent" signs in conspicuous places on
the Leased Premises and to otherwise advertise the Leased Premises for rent, in
addition to having the rights of entry and inspection set forth herein.
17. DEFAULT BY TENANT:
Tenant shall be in default under this Lease if Tenant: (i) fails to pay
when due any Rent, Additional Rent or any other payment which Tenant is
obligated to pay, as provided in this Lease; (ii) except as otherwise
specifically provided herein, breaches any other agreement, covenant or
obligation in this Lease and such breach is not remedied within thirty (30) days
after Landlord gives Tenant notice specifying the breach, or if such breach
cannot, with due diligence, be cured within thirty (30) days, if Tenant does not
commence to cure such default within said thirty (30) day period and thereafter
prosecute the cure of such default as quickly as reasonable practicable
(provided that no such notice to Tenant and opportunity to cure shall be
necessary more than once during any twelve (12) month period); (iii) files any
petition or action for relief under any creditor's law (including bankruptcy,
reorganization, or similar action), either in state or federal court, or has
such a petition or action filed against Tenant which is not stayed or vacated
within sixty (60) days after filing; (iv) makes any transfer in fraud of
creditors as defined in Section 548 of the United States Bankruptcy Code (11
U.S.C. 548, as amended or replaced), has a receiver appointed for its assets
(and the appointment is not stayed or vacated within thirty (30) days), or makes
an assignment for the benefit of creditors; (v) vacates the Leased Premises or
advertises in any manner that would indicate or lead the public to believe that
Tenant was going out of business or intending to vacate the Leased Premises; or
(vi) assigns this Lease or sublets the Leased Premises or any part thereof in
violation of the provisions of this Lease. Tenant shall also be deemed to be in
default of this Lease if (i) any guarantor breaches the terms of a Guaranty
attached to this Lease as an addendum hereto; (ii) any guarantor of this Lease
files any petition or action for relief under any creditor's law (including
bankruptcy, reorganization, or similar action), either in state or federal
court, or has such a petition or action filed against such guarantor which is
not stayed or vacated within sixty (60) days after filing; (iii) any guarantor
of this Lease makes any transfer in fraud of creditors as defined in Section 548
of the United States Bankruptcy Code (11 U.S.C. 548, as amended or replaced),
has a receiver appointed for its assets (and the appointment is not stayed or
vacated within thirty (30) days, or makes an assignment for the benefit of
creditors; or (iv) if any guarantor of this Lease dies or becomes incapacitated.
In the event of default by Tenant, Landlord may at its option do one or
more of the following: (i) terminate this Lease and recover all damages caused
by Tenant's breach, including but not limited to, indirect and consequential
damages and damages for lost Rent; (ii) repossess and relet the Leased Premises
at such rent as Landlord desires; (iii) declare the entire remaining Rent
immediately due and payable, such amount to be discounted to its present value
at a discount rate equal to the U.S. Treasury Bill or Note rate with the closest
maturity to the remaining Term of the Lease as selected by Landlord; (iv) bring
action for recovery of all amounts due from Tenant, including, but not limited
to, all costs and expenses incurred by Landlord in connection with, arising out
of or related to any default or in enforcing its rights and remedies and for
placing the Leased Premises in a condition to re-rent and all fees and expenses
of attorneys, consultants and experts in all tribunals and whether or not legal
proceedings are commenced by or against Landlord or Tenant; (v) seize and hold
any personal property of Tenant located in the Leased Premises and assert
against the same a lien for monies due Landlord; or (vi) pursue any other remedy
available at law or equity.
All rights and remedies of Landlord are cumulative, and the exercise of
any one shall not be an election excluding Landlord at any other time from
exercising of a different or inconsistent remedy. No exercise by Landlord of any
right or remedy granted herein shall constitute or effect a termination of this
Lease unless Landlord shall so elect by notice delivered to Tenant. The failure
of Landlord to exercise its rights in connection with this Lease or any breach
or violation of any term, or any subsequent breach of the same or any other
term, covenant or condition herein contained shall not be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other covenant
or condition herein contained.
No acceptance by Landlord of a lesser sum than the Rent, Additional
Rent and any other payments then due shall be deemed to be other than on account
of the earliest installment of such payment due, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such installment
or pursue any other remedy provided in this Lease.
No payment of money by Tenant to Landlord after the expiration or
termination of this Lease shall reinstate or extend the Term, or make
ineffective any notice of termination given to Tenant prior to the payment of
such money. After the service of notice or the commencement of a suit, or after
final judgment granting Landlord possession of the Leased Premises, Landlord may
receive and collect any sums due under this Lease, and the payment thereof shall
not make ineffective any notice or in any manner affect the pending suit or any
judgment previously obtained.
Tenant agrees that in addition to all other rights and remedies
Landlord may obtain an order for unlawful detainer from any court of competent
jurisdiction without prejudice to Landlord's rights to otherwise collect Rent or
damages from Tenant.
18. SUBORDINATION OF LEASE:
A. SUBORDINATION AND ATTORNMENT:
Tenant agrees to execute and deliver within five (5) days after request
to do so from Landlord or any mortgagee an agreement (the "SNDA"): (i) making
this Lease superior or subordinate to the interests of the mortgagee; (ii)
agreeing to attorn to the mortgagee; (iii) giving the mortgagee notice of, and a
reasonable opportunity (which shall in no event be less than ten (10) days for
monetary default or thirty (30) days for a non-monetary default after receipt of
written notice thereof is delivered to mortgagee) to cure any Landlord default
and agreeing to accept such cure if effected by the mortgagee; provided, that
within said 10-day or 30-day period, as applicable, such mortgagee shall give
Tenant written notice of such mortgagee's desire to cure such default and within
said 10-day period such mortgagee shall actually cure such monetary default or
within said 30-day period such mortgagee shall commence to cure such
non-monetary default and shall thereafter diligently pursue such cure to its
conclusion as quickly as practicable; (iv) permitting the mortgagee (or other
purchaser at any foreclosure sale or conveyance in lieu thereof), and its
successors and assigns, on acquiring Landlord's interest in the Leased Premises
and this Lease, to become substitute Landlord hereunder, with liability only for
such Landlord obligations as may accrue after Landlord's interest is so
acquired; (v) agreeing to attorn to any successor Landlord; and (vi) containing
such other agreements and covenants on Tenant's part as Landlord's mortgagee may
reasonably request.
B. NON-DISTURBANCE:
Tenant's obligation to subordinate its interests or attorn to any
mortgagee is conditioned upon the mortgagee's agreements not to disturb Tenant's
possession and quiet enjoyment of the Leased Premises under this Lease, and to
continue this Lease in full force and effect for so long as Tenant is not in
default under the terms of this Lease.
C. ESTOPPEL CERTIFICATES:
Tenant agrees to execute and deliver within five (5) days after receipt
of a written request thereof and as often as reasonably requested, estoppel
certificates confirming any factual matter reasonably requested therein which is
true regarding this Lease, the Leased Premises or any part thereof or Tenant's
use thereof, including, but not limited to, Effective Date, the Expiration Date
of this Lease, the amount of Rent and any other payments required by this Lease,
whether or not Tenant has any defenses or offsets to the enforcement of this
Lease or the Rent payable hereunder or knowledge of any default or breach by
Landlord and that this Lease, together with any modification or amendments, is
in full force and effect.
19. ENVIRONMENTAL COMPLIANCE:
For the purposes of this Section 19, the term "Environmental Laws"
shall mean all now existing or hereafter enacted or issued statutes, laws,
rules, ordinances, orders, permits and regulations of all state, federal, local
and other governmental and regulatory authorities, agencies and bodies
applicable to the Leased Premises, pertaining to environmental matters or
regulating, prohibiting or otherwise having to do with asbestos and all other
toxic, radioactive, or hazardous wastes or materials including, but not limited
to, the Federal Clean Air Act, the Federal Water Pollution Control Act, and the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as from time to time amended.
Tenant covenants and agrees that it will keep and maintain the Leased
Premises at all times in compliance with Environmental Laws. Tenant shall not
(either with or without negligence) cause or permit the escape, disposal or
release of any biologically active or other hazardous substances, or materials
on the Property (as hereinafter defined). Tenant shall not allow the storage or
use of such substances or materials in any manner not sanctioned by law or in
compliance with the highest standards prevailing in the industry for the storage
and use of such substances or materials, nor allow to be brought onto the
Property any such materials or substances except for use in the ordinary course
of Tenant's business, and then only after notice is given to Landlord of the
identity of such substances or materials. Tenant shall execute affidavits,
representations and the like, from time to time, at Landlord's request,
concerning the presence of hazardous substances or materials on the Leased
Premises.
Tenant shall hold Landlord and Agent free, harmless, and indemnified
from any penalty, fine, claim, demand, liability, cost, or charge whatsoever
which Landlord or Agent shall incur, or which Landlord or Agent would otherwise
incur, by reason of Tenant's failure to comply with this Section 19 including,
but not limited to: (i) the cost of full remediation of any contamination to
bring the Property into the same condition as immediately prior to the
Commencement Date and into full compliance with all Environmental Laws; (ii) the
cost of all appropriate tests and examinations of the Leased Premises to confirm
that the Leased Premises and any other contaminated areas have been remediated
and brought into compliance with all Environmental Laws; and (iii) the fees and
expenses of attorneys, engineers, and consultants incurred by Landlord and/or
Agent in enforcing and/or confirming compliance with this section.
Landlord and its engineers, technicians, and consultants (collectively
the "Auditors") may, from time to time, as Landlord deems appropriate, conduct
periodic tests and examinations ("Audits") of the Leased Premises to confirm and
monitor Tenant's compliance with this Section 19. Tenant shall fully cooperate
with Landlord and its Auditors in the conduct of such Audits. The cost of such
Audits shall be paid by Landlord unless an Audit shall disclose a failure of
Tenant to comply with this Section 19, in which case, the cost of such Audit,
and the cost of all subsequent Audits made during the Term and within thirty
(30) days thereafter, shall be paid for on demand by Tenant.
For the purposes of this Section, the term "Property" shall include the
Leased Premises, any building of which the Leased Premises may be a part, any
common areas appurtenant to the Leased Premises, the real estate upon which the
Leased Premises are located; all personal property (including that owned by
Tenant); and the soil, ground water, and surface water of the real estate upon
which the Leased Premises are located.
The covenants contained in this Section 19 shall survive the expiration
or termination of this Lease, and shall continue for so long as Landlord and
Agent and their respective successors and assigns may be subject to any expense,
liability, charge, penalty, or obligation against which Tenant has agreed to
indemnify Landlord under this Section 19.
20. LIMITATION OF LANDLORD'S OBLIGATIONS: Landlord shall have no liability to
Tenant by reason of any inconvenience, annoyance or injury to business arising
from Landlord, other tenants or others making repairs, alterations, additions or
improvements in or to a portion of the building containing the Leased Premises
or the Leased Premises, or to fixtures, appurtenances, or equipment thereof, or
by reason of the failure of Landlord or others to make any repairs, alterations,
additions or improvements in or to a portion of the building containing the
Leased Premises or the Leased Premises, or the building's fixtures,
appurtenances, or equipment thereof.
21. [INTENTIONALLY DELETED]
22. RESERVED RIGHTS:
Landlord reserves the following rights: (i) To change the name or
street address of the building, or of the door number on the Leased Premises,
without liability of Landlord to Tenant; (ii) To enter the Leased Premises
during the last ninety (90) days of the Term, provided Tenant shall have removed
all or substantially all of Tenant's property from the Leased Premises, for the
purpose of altering, renovating, remodeling, repairing or otherwise preparing
the Leased Premises for re-occupancy; (iii) To grant to any other tenant the
exclusive right to conduct any particular business or undertaking in the
building containing the Leased Premises or on Landlord's other property adjacent
to the Leased Premises; (iv) To enter the Leased Premises at all times (1) for
the making of inspections, repairs, alterations, improvements or additions at or
to the Leased Premises or building, as Landlord may deem necessary or desirable,
and (2) for any purpose whatsoever related to the safety, protection,
preservation or improvement of the Leased Premises or of the building or of
Landlord's interest thereon; (v) At any time or times, Landlord, either
voluntarily or pursuant to governmental requirement, may make repairs,
alterations or improvements in or to the building containing the Leased Premises
or any part of the Leased Premises, and during such operations, may close
entrances, doors, corridors, elevators or other facilities; (vi) Landlord may
require that Tenant relocate its parking to a designated location within walking
distance should Landlord ever commence construction work on the parking lot for
any reason. Landlord may exercise any or all of the foregoing rights hereby
reserved by Landlord without being deemed guilty of an eviction or disturbance
of Tenant's use and possession and without being liable in any manner to Tenant
and without elimination or abatement of Rent, or other compensation, and such
acts shall have no effect upon this Lease.
23. MISCELLANEOUS:
The failure of the Landlord to enforce in any one or more instances any
term, condition, rule, regulation or covenant as to which Tenant shall be guilty
of a breach or be in default, shall not be deemed to waive the right of Landlord
to enforce the same or any subsequent breach or default even if Landlord had
knowledge of such breach or default at the time of the receipt of any Rent or
other sums by Landlord, whether the same be that originally reserved or that
which may be payable under any of the covenants or agreements herein contained,
or any portion thereof. The acceptance by Landlord of checks or cash from
persons other than Tenant shall in no event evidence consent of Landlord to any
assignment or sub-lease by Tenant. No waiver or modification of this Lease nor
any release or surrender of the same shall be claimed by Tenant unless such
waiver or modification or release or surrender be in writing and signed by
Landlord.
Each provision hereof shall bind and inure to the benefit of Landlord
and Tenant and as the case may be: if Tenant is an individual, Tenant's
legatees, heirs, executors, administrators and personal representatives;
Landlord's successors and assigns; if Tenant is a corporation or other entity,
its successors; and in the event that Landlord consents to the assignments of
this Lease notwithstanding the terms hereof, Tenant's assigns.
The parties hereto agree that whenever the word "Tenant" and/or "party"
is used herein it shall be construed to mean Tenant and/or parties, if there be
more than one, and generally, feminine or neuter pronouns shall be substituted
for those of the masculine form, and vice versa, and the plural is to be
substituted for the singular number in any place herein in which the context
shall require such substitution.
24. QUIET ENJOYMENT:
Provided Tenant is not in default in the performance of any of its
obligations under this Lease, Landlord covenants that Tenant shall have and
enjoy quiet and peaceable use and possession of the Leased Premises during the
Term of this Lease and any renewals thereof.
25. [INTENTIONALLY DELETED]
26. CLAIMS FOR DAMAGES:
All personal property belonging to Tenant or to any other person,
located in or about the building or the Leased Premises shall be there at the
sole risk of Tenant or other such person, and neither Landlord nor Agent shall
be liable for the theft or misappropriation thereof, nor for any damage or
injury thereto, nor for damage or injury to Tenant or its employees, guests,
licensees, contractors, agents, customers or invitees, or to other persons or to
other property in and about the building caused by water, fire, snow, frost, or
other elements, steam, heat or cold, dampness, falling plaster, sewers or
sewage, gas odors, noise, the bursting or leaking of pipes, plumbing, electrical
wiring and equipment and fixtures of all kinds, operation or use of elevators,
or by any act or neglect of other tenants or occupants of the building or of any
other person, or caused in any manner whatsoever. Tenant shall give to Landlord,
or its duly authorized agent, immediate written and telephone notice of any
accidents to, or defects in any equipment or part of the building and of any
fire, to the end that Landlord may promptly remedy such conditions or cause such
conditions to be remedied. Tenant shall protect, defend, indemnify and save
harmless Landlord and Agent from all losses, liabilities, suits, causes of
action, proceedings, penalties, damages, costs and expenses, including, without
limitation, fees of attorneys, consultants and experts, sustained by reason of
or arising out of or related to, directly or indirectly, in whole or in part,
any act or other occurrence causing injury to any person and/or property
whomsoever or whatsoever, due directly or indirectly to the use or occupancy of
the Leased Premises, the building containing the Leased Premises or any part
thereof by Tenant or its employees, guests, invitees or customers. The
provisions of this paragraph shall survive the expiration or other termination
of this Lease.
27. LIENS ON LEASED PREMISES:
Tenant agrees to pay promptly for any work done (or materials
furnished) by or on behalf of Tenant in or about the Leased Premises, and Tenant
shall not permit or suffer any lien to attach to the Leased Premises by reason
of any work, labor, services or materials performed at or furnished to, or
claimed to have been performed at or furnished to, the Leased Premises by, or at
the direction or sufferance of Tenant or anyone holding the Leased Premises
through or under Tenant, and Tenant shall promptly cause any such lien, or any
claim therefor, to be released.
28. LANDLORD'S LIEN:
In addition to all other remedies, Landlord shall have a lien against
all goods, wares, equipment, fixtures, furniture, improvements and other
personal property of Tenant now or hereafter located on the Leased Premises and
all proceeds therefrom to secure payment of all Rent and other sums of money
becoming due hereunder from Tenant and to secure payment of any damages or loss
which Landlord may suffer by reason of the breach by Tenant of any covenant,
agreement or condition contained herein. No such property shall be removed from
the Leased Premises without the consent of Landlord until all arrearages in Rent
as well as any and all other sums of money then due to Landlord hereunder shall
first have been paid and discharged and all covenants, agreements and conditions
hereof have been fully complied with and performed by Tenant.
Upon the occurrence of a default by Tenant, Landlord may, in addition
to any other remedies provided herein, enter the Leased Premises and take
possession of any and all goods, wares, equipment, fixtures, furniture,
improvement and other personal property of Tenant situated on the Leased
Premises, without liability for trespass or conversion, and sell the same at
public or private sale, with or without having such property at the sale, after
giving Tenant reasonable notice of the time and place of any public sale or of
the time after which any private sale is to be made, at which sale Landlord or
its assigns may purchase unless otherwise prohibited by law. Unless otherwise
provided by law, and without intending to exclude any other manner of giving
Tenant reasonable notice, the requirement of reasonable notice shall be met if
such notice is given in the manner prescribed in Section 29 of this Lease ten
(10) days before the time of sale. Any sale made pursuant to the provision of
this section shall be deemed to have been a public sale conducted in a
commercially reasonable manner if held in the above-described Leased Premises or
where the property is located after the time, place, and method of sale and a
general description of the types of property to be sold have been advertised in
a daily newspaper published in the city or county in which the Leased Premises
are located for five (5) consecutive days before the date of sale. The proceeds
from any such disposition, less any and all expenses connected with the taking
of possession, holding and selling of the property (including, but not limited
to, attorneys' fees and legal expenses) shall be applied as a credit against any
amounts owed to Landlord. Any surplus shall be paid to Tenant or as otherwise
required by law; Tenant shall pay any deficiencies forthwith.
29. 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
notices or demands shall be deemed given or served, whether or not actually
received, when deposited in the United States Postal Service, postage pre-paid,
certified or registered mail, addressed to parties hereto at the respective
addresses set out below or any other address that may be specified by the
parties.
TO LANDLORD: IPofA Water View, LLC
----------- c/o Investment Properties of America, LLC
10800 Midlothian Turnpike, Ste 309
Richmond, Virginia 23235
Attention: Edward H. Okun
COUNSEL: Gregory Kaplan, PLC
------- 1710 E. Franklin Street, Ste 200
Richmond, Virginia 23223
Attention: Richard W. Gregory
TO TENANT: First Montauk Financial Corp.
--------- Parkway 109 Office Center
328 Newman Springs Road
Red Bank, NJ 07701
Attention:
COUNSEL: ---------------------------------------
-------- ---------------------------------------
---------------------------------------
---------------------------------------
30. JOINT VENTURE DISCLAIMER:
Any intention to create a joint venture or partnership relation between
the parties hereto is hereby expressly disclaimed.
31. SEVERABILITY:
The invalidity of any provision of this Lease as determined by a court
of competent jurisdiction shall in no way affect the validity of any other
provision hereof.
32. SALE OF LEASED PREMISES:
Landlord may sell the Leased Premises without affecting the obligations
of Tenant hereunder; upon the sale of the Leased Premises, Landlord shall be
relieved of all responsibility for the Leased Premises and shall be released
from any liability thereafter accruing under this Lease.
33. FINAL UNDERSTANDING:
This Lease and all Exhibits and Addenda hereto contain all agreements
of the parties with respect to any matter mentioned herein. No prior or
contemporaneous agreement or understanding pertaining to any such matter shall
be effective. This Lease or Exhibits may be modified in writing only, signed by
the parties in interest at the time of the modification.
34. GOVERNING LAW:
This Lease shall be construed and enforced in accordance with the laws
of the State in which the Premises are located and venue with respect to any
action to construe or enforce this Lease shall be laid in the State where the
Premises are located.
35. [INTENTIONALLY DELETED]
36. WAIVER OF JURY TRIAL:
Landlord, Tenant, Agent and the Guarantor(s), if any, hereby knowingly,
voluntarily and intentionally waive the right they may have to a trial by jury
in respect of any litigation based hereon, or arising out of, under or in
connection with this Lease or the Guaranty, if any, or any course of conduct,
course of dealing, statements (whether verbal or written) or actions of any
party.
37. CAPTIONS:
The captions or headings throughout this Lease are for convenience and
reference only and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or meaning
of the provisions of this Lease.
38. FORCE MAJEURE:
In the event Landlord shall be delayed or hindered in or prevented from
performance of any act required hereunder by reason of strikes, lockouts, labor
troubles, inability to procure materials, failure of power, restrictive
governmental laws or regulations, riots, insurrection, war or other reason of a
like nature, then performance of such act shall be excused for the period of
delay and the period for the performance of such act shall be excused for the
period of delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of such delay.
39. LIMITATION OF LIABILITY:
Notwithstanding anything contained herein to the contrary, there shall
be absolutely no personal liability on persons, firms or entities which
constitute Landlord with respect to any of the terms, covenants, conditions and
provisions of this Lease, and Tenant agrees to look solely to the interest of
Landlord, its successors and assigns, in the Leased Premises for the
satisfaction of each and every remedy of Tenant in the event of default by
Landlord hereunder. Such exculpation of personal liability is absolute and
without any exception whatsoever.
LANDLORD AND TENANT HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM
AND PROVISION CONTAINED HEREIN AND HAVE HAD AN OPPORTUNITY TO SEEK LEGAL
ADVICE WITH RESPECT TO THIS LEASE. BY EXECUTION OF THIS LEASE LANDLORD AND
TENANT EVIDENCE THEIR INFORMED AND VOLUNTARY CONSENT HERETO. THE PARTIES HEREBY
AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE
COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND
TENANT WITH RESPECT TO THE LEASED PREMISES.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each individual party hereto has hereunto signed
his or her name and affixed his or her seal, and each corporate party hereto has
caused its name to be signed and its seal to be affixed by its duly authorized
officers.
LANDLORD:
Date: September 22, 2006 IPOFA WATER VIEW, LLC,
----------------------- a Delaware Limited Liability Company
By: IPofA Fund Manager, LLC,
a Virginia limited liability company,
its Manager
By: /s/ Edward H. Okun
-----------------------------------
Edward H. Okun, President and CEO
TENANT:
Date: September 22, 2006 FIRST MONTAUK FINANCIAL CORP,
----------------------- a New Jersey corporation,
By: /s/ Victor K. Kurylak
----------------------------------------
Name: Victor K. Kurylak
Title: President, Chief Executive Officer
EXHIBIT A
Description of Leased Premises
ALL that certain tract, lot and parcel of land lying and being in the Township
of Middletown, County of Monmouth and State of New Jersey, being more
particularly described as follows:
Commonly known as Lot(s) 1 Block 1036 on the Tax Map, township of Middletown,
County of Monmouth, New Jersey.
EXHIBIT B
INSURANCE REQUIREMENTS
Tenant shall at all times provide and maintain, or cause to be
maintained, the following insurance coverages with respect to the Property and
the Collateral issued by companies qualified to do business in the State of New
Jersey, having a Best's Rating of not less than A-X and otherwise acceptable to
Landlord in its sole discretion:
(i) physical insurance on an all-risk basis without exception (including,
without limitation, flood required if property is in a "Special Flood Hazard
Area" A or V), vandalism and malicious mischief, earthquake, collapse, boiler
explosion, sprinkler coverage, cost of demolition, increased costs of
construction and the value of the undamaged portion of the building and soft
costs coverage) covering all the real estate, fixtures and personal property to
the extent of the full insurable value thereof, on a builder's risk
non-reporting form prior to completion and occupancy to Occupy Endorsement,
having replacement cost and agreed amount endorsements (with deductibles not in
excess of 1% of insurable value);
(ii) rent loss or business interruption insurance in an amount equal to one
year's projected rentals or gross revenues;
(iii) public liability insurance, with underlying and umbrella coverages
totaling not less than $2,000,000 per occurrence and $10,000,000.00 in the
aggregate or such other amounts as may be determined by Landlord from time to
time;
(iv) automobile liability insurance (including non-owned automobile) with a
coverage of $1,000,000 per occurrence during construction;
(v) worker's compensation, employer's liability and other insurance required by
law;
(vi) such other insurance coverages in such amounts as Landlord may request
consistent with the customary practices of prudent developers and owners of
similar properties.
Without limiting the generality of the insurance requirements set forth herein,
if commercially available (and up to the fullest amount commercially available)
at commercially reasonable rates, either (i) the casualty and property insurance
policy required hereunder shall specifically cover "insured losses" as defined
in the Terrorism Risk Insurance Act of 2002 (hereinafter referred to as "TRIA"),
whether or not TRIA remains in force and effect, or (ii) excess coverage with
respect to such "insured losses" shall be provided, which excess coverage must
be in an amount, from an insurer, and in accordance with the terms and
conditions acceptable to Landlord. The Tenant agrees not to decline coverage for
such "insured losses" offered in accordance with TRIA with any casualty and
property insurance policy obtained or renewed by the Tenant without notifying
the Landlord in writing prior thereto, such notification to include a statement
as to the amount of the premium with respect thereto.
An actual insurance policy or certified copy thereof, or a binder,
certificate of insurance, or other evidence of property coverage in the form of
Acord 27 (Evidence of Property Coverage), Acord 25 (Certificate of Insurance),
or a 30-day binder in form acceptable to Landlord with an unconditional
undertaking to deliver the policy or a certified copy within thirty (30) days,
shall be delivered at closing of the Loan and prior to the first Loan.
Flood insurance shall be provided if the property or the collateral is
located in a flood prone, flood risk or flood hazard area as designated pursuant
to the Federal Flood Disaster Protection Act of 1973, as amended, and the
Regulations thereunder, or if otherwise reasonably required by Landlord.
Landlord, on behalf of the Lenders, shall be named as first mortgagee on
policies of all risk-type insurance on the Property, as loss payee on the
Collateral and its contents, and as first mortgagee on rent-loss or business
interruption coverages related thereto.
Except with respect to public liability insurance, as to which
Landlord, on behalf of the Lenders, shall be named as an additional insured with
respect to the Property or the Collateral, all other required insurance
coverages shall have a so-called "Mortgagee's endorsement" or "Landlord's
loss-payable endorsement" which shall provide in substance as follows:
A. Loss or damage, if any, under the policy shall be paid to Landlord
and its successors and assigns ("Landlord") in whatever form or capacity its
interest may appear and whether said interest be vested in said Landlord in its
individual or in its disclosed or undisclosed fiduciary or representative
capacity, or otherwise, or vested in a nominee or trustee of said Landlord.
B. The insurance under the policy, or under any rider or endorsement
attached thereto, as to the interest only of Landlord, its successors and
assigns, shall not be invalidated nor suspended:
(a) by any error, omission or change respecting the ownership,
description, possession or location of the subject of the insurance or
the interests therein or the title thereto; or
(b) by the commencement of foreclosure or similar proceedings
or the giving of notice of sale of any of the property covered by the
policy by virtue of any mortgage, deed of trust, or security interest;
or
(c) by any breach of warranty, act, omission, neglect, or
noncompliance with any provisions of the policy by the named insured,
or any one else, whether before or after a loss, which under the
provisions of the policy of insurance, would invalidate or suspend the
insurance as to the named insured, excluding, however, any acts or
omissions of Landlord while exercising active control and management of
the insured property.
C. Insurer shall provide Landlord and each of the Lenders with not less
than thirty (30) days, prior written notice of cancellation of the policy (for
non-payment or any other reason) or of the non-renewal thereof.
D. The insurer reserves the right to cancel the policy at any time, but
only as provided by its terms. However, in such case this policy shall continue
in force for the benefit of Landlord for thirty (30) days after written notice
of such cancellation is received by Landlord and shall then cease.