LEASE AGREEMENT
Between
Summit Plaza, Inc.
"Landlord"
-and-
ALL-TECH INVESTMENT GROUP, INC.
"Tenant"
160 Summit Avenue
Montvale, New Jersey 07645
TABLE OF CONTENTS
ARTICLE NO. DESCRIPTION PAGE
- ----------- ----------- ----
Basic Lease Provisions 1
I Demised Premises 4
II Term 4
III Rent 5
IV Use and Occupancy 6
V Alterations or Improvements
by Tenant 7
VI Maintenance 8
VII Compliance with Laws, Indemnity
and Insurance 9
VIII Subordination and Estoppel 10
IX Destruction - Fire or other
Casualty 10
X Mutual Waiver of Subrogation 11
XI Condemnation and Other Proceedings 12
XII Assignment and Subletting 12
XIII Surrender 14
XIV Holding Over 15
XV Landlord's Right of Entry 15
XVI Default 16
XVII Landlord's Rights Upon Tenant's
Default 16
XVIII Landlord's Remedies Cumulative:
Expenses 18
XIX No Waiver 19
XX Landlord's Reserved Rights 19
XXI Landlord's Liability 20
XXII Tenant's Liability 21
XXIII Tenant's Insurance 21
XXIV Mechanics' Liens 22
XXV Quiet Enjoyment 22
XXVI Air and Light 23
XXVII Landlord's Services 23
XXVIII Additional Rent 25
XXIX Personal Property Taxes 29
XXX Security Deposit 29
XXXII Definition of Landlord 30
XXXIII Notice 30
XXXIV Signs 30
XXXV Notice of Defects and Accidents 30
ARTICLE NO. DESCRIPTION PAGE
- ----------- ----------- ----
XXXVI Rules and Regulations 31
XXXVII Directory 31
XXXVIII Hazardous Materials and Compliance
with Environmental Laws 31
XXXIX Miscellaneous 33
EXHIBITS EXHIBIT A: The Premises
EXHIBIT B: Landlord's Work in
the Premises
EXHIBIT C: Rules and Regulations
BASIC LEASE PROVISIONS
of the
LEASE AGREEMENT FOR 160 SUMMIT AVENUE, MONTVALE
between
160 SUMMIT AVENUE, MONTVALE, as Landlord,
and All-Tech Investment Group, Inc., as Tenant.
The following basic terms of the Lease (hereinafter referred to as the
"Basic Lease Provisions") between Landlord and Tenant are an integral part of
and are incorporated by reference into within Lease:
A. The "Building": 160 Summit Avenue, Montvale, New
Jersey 07645, containing
approximately 32,371 square feet.
B. The "Premises": The space within the Premises is
described in the Lease, including
the floor plan attached hereto as
Exhibit A, and consisting of the
following approximate number of the
rentable square feet: 12,395.
C. The "Term": The Term of this Lease shall be four
(4) years and ten (10) months,
beginning on June 1, 1998 (the
"Commencement Date") and ending on
March 31, 2003 (the "Expiration
Date").
D. The "Basic Rent": (1) Annual Base Rent:
$247,900
(2) Monthly Installments of Base
Rent:
$20,658.33
In additional to the above
to the above base rent, the
Tenant will be liable for
Tenant Electric as
hereinafter set forth and
any other additional rent
items.
E. Tenant's
Proportionate
Share: 38.29%
F. The Security
Deposit: None
G. Broker(s): None
H. Addresses for
Notice and
Payments: (1) Landlord:
Summit Plaza, Inc.
160 Summit Avenue
Montvale, New Jersey 07645
ATTN: Mark Shefts
(2) Tenant:
All-Tech Investment Group, Inc.
160 Summit Avenue
Montvale, New Jersey 07645
(3) Checks Payable to:
Summit Plaza, Inc.
Mail Payment to:
Summit Plaza, Inc.
160 Summit Avenue
Montvale, New Jersey 07645
ATTN: Mark Shefts
I. Base Tax Year: 1998
J. Base Operating
Year: 1998
K. Tenant Liability
Insurance: The Tenant Liability Insurance
required pursuant to Section 23.1 of
this Lease shall be in the sum of
$1,000,000.00 single limit.
Approved by Landlord: Approved by Tenant:
SUMMIT PLAZA, INC. s/ All-Tech Investment Group, Inc.
----------------------------------
By: s/Mark Shefts By: s/Mark Shefts
---------------- ----------------
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AGREEMENT OF LEASE (this "Lease") dated as of the 1st day of June, 1998, between
SUMMIT PLAZA, INC, a New Jersey Corporation, (hereinafter referred to as the
"Landlord"), and All-Tech Investment Group, Inc. (hereinafter referred to as
"Tenant").
W I T N E S S E T H:
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE I
Demised Premises
1.1 Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord for the term and upon the terms, conditions, covenants and agreements
hereinafter provided, the Premises. The Premises consist of space which: (i) is
located as is specified in Item B of the Basic Lease Provisions, and (ii) is
bounded by the proposed or existing demising walls therefor, the approximate
locations of such demising walls and space being marked in color or crosshatched
and shown on the diagram(s) of the floor plan for such floor, such diagram(s)
being attached to this Lease as Exhibit A and made a part hereof. The
appropriate number of rentable square feet contained in the Premises, as
determined by Landlord, for identification purposes only, is specified in Item B
of the Basic Lease provisions (the "Rentable Area"). The lease of the Premises
includes the right, together with other tenants of the Building and members of
the public, to use the common public areas of the Building, but includes no
other rights not specifically set forth herein. Landlord shall finish the
Premises as set forth in Exhibit B attached hereto and made a part hereof. It is
understood and agreed that Landlord will not make and is under no obligation to
make any alterations, decorations, additions or improvements in or to the
Premises, structural or otherwise, except as set forth in Exhibit B. Landlord
agrees to deliver possession of the Premises to Tenant and Tenant agrees to
accept the same from Landlord, upon written notice from Landlord to Tenant that
Landlord's work in the Premises described in Exhibit B has been substantially
completed.
ARTICLE II
Term
2.1 The Premises are leased for the period of years and months as
specified in Item C of the basic Lease Provisions, to commence at 12:01 A.M. on
the Commencement Date and to end at 11:59 p.m. on the Expiration Date unless the
Term shall sooner terminate
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pursuant to any of the terms, covenants or conditions of this Lease or pursuant
to law.
2.2 Notwithstanding anything in Paragraph 2.1 to the contrary, if, on
or prior to the Commencement Date of the Term, the Premises are not ready for
occupancy, this Lease shall nevertheless continue in full force and effect and
Tenant shall have no right to rescind, cancel or terminate same nor shall
Landlord be liable for damages, if any, sustained by Tenant by reason of
inability to obtain possession thereof on such date. In such event, Landlord
shall give to Tenant written notice at least fifteen (15) days in advance of the
date when Landlord expects Premises to be ready for occupancy by Tenant, which
date shall then become the revised Commencement Date. The Term shall end on the
revised Expiration Date, which date shall be the same number of days after the
revised Commencement Date as it was after the original Commencement Date, unless
sooner terminated pursuant to any of the terms, covenants or conditions of this
Lease or pursuant to law.
2.3 When Tenant takes possession of the Premises, Tenant shall be
deemed to have accepted the Premises as being satisfactory and in good condition
as of the date of such possession.
ARTICLE III
Rent
3.1 Tenant covenants and agrees to pay to the Landlord, as rent for and
during the Term hereof, the annual sum as specified in Item D(1) of the Basic
Lease Provisions as Basic Rent.
3.2 Basic Rent and any Additional Rent payable pursuant to the
provisions of this Lease shall be payable by Tenant to Landlord at the address
specified in Item H(3) of the basic Lease Provisions (or at such other place as
Landlord may designate in a notice to Tenant) in lawful money of the United
States without prior demand therefor and without any offset or deduction
whatsoever except as otherwise specifically provided in this Lease for the
convenience of Tenant. Basic Rent shall be payable in equal monthly installments
as specified in Item D(2) of the Basic Lease Provisions, in advance, on the
first (1st) day of each month during the Term. The installment of Basic Rent for
the first (1st) full calendar month of the Term is due and payable by Tenant to
Landlord at the time of the execution and delivery of this Lease. In the event
that the Commencement Date shall occur on a date other than the first (1st) day
of any calendar month Tenant shall pay to Landlord on the first (1st) day of any
calendar month next succeeding the month during which the Commencement Date
shall occur, a sum equal to that specified in Item D(2) of the Basic Lease
Provision divided by 30 (thirty) then multiplied by the number of calendar days
in the period from the Commencement Date to the last day of the month in which
the Commencement Date shall occur, both inclusive. Such payment, together with
the sum paid by
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the Tenant upon execution of this Lease, shall constitute payment of the Basic
Rent for the period from the Commencement Date to and including the last day of
the next succeeding calendar month.
3.3 Tenant covenants to pay Basic Rent and any Additional Rent payable
pursuant to the provisions of this Lease and to observe and perform and to
permit no violation of the terms, covenants and conditions of this Lease on
Tenant's part.
ARTICLE IV
Use and Occupancy
4.1 Tenant shall use and occupy the Premises solely for general office
purposes and only in accordance with the uses permitted under applicable zoning
and other municipal regulations. Without the prior written consent of Landlord,
the premises shall not be used for any other purpose, or for any purpose that
will constitute a nuisance or unreasonable annoyance to Landlord or other
tenants of the Building and shall comply with all present and future laws,
ordinances, regulations and orders of the United States of America, the
jurisdiction in which the Building is located, and any other public or
quasi-public authority having jurisdiction over the Premises (collectively
hereinafter referred to as "Governmental Authorities"), it is expressly
understood that if any law, ordinance, regulation or order requires an occupancy
permit for the Premises, Tenant shall obtain such permit at Tenant's own
expense.
4.2 Tenant acknowledges that the Building is a non-smoking building
and, as such, smoking within the building is absolutely prohibited. Landlord has
placed ashtrays at the western entrance to the Building for the convenience of
persons who smoke.
4.3 Tenant shall have the right to the non-exclusive use of the parking
lot on the Real Property (as defined in Paragraph 5.1) for all employees and
visitors. The same right has been or will be given to all other tenants in the
Building, and to their respective employees, agents, customers and invitees and
to other persons, and it does not entitle Tenant to any particular assigned
spaces in the parking lot, except for five (5) spaces which shall be designated
for Tenant's use only. Tenant covenants and agrees to comply with all reasonable
rules and regulations which Landlord may hereafter from time to time or at any
time make pursuant to the terms of Article XXXVI hereof to assure exclusive use
of designated parking spaces on the Real Property by permitted users. Landlord's
remedies under such rules and regulations may include, but shall not be limited
to, the right to tow away, at the owner's expense, any vehicles not parked in
compliance with these rules and regulations. Landlord shall not be responsible
to Tenant for the non-compliance or breach by any other tenant of said rules and
regulations; provided, however, Landlord agrees to use reasonable efforts to
enforce such rules and regulations uniformly.
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ARTICLE V
Alterations or Improvements by Tenant
5.1 Tenant shall make no changes in or to the Premises of any nature
without Landlord's prior written consent. Subject to the prior written consent
of the Landlord, Tenant, at Tenant's sole expense, may hire contractors approved
by Landlord to make alterations, installations, additions or improvements in or
to the Premises (collectively hereinafter referred to as the "Alterations")
which are non-structural and which do not affect utility services, plumbing or
electrical lines in or to the Premises or the Building. The Alterations shall,
upon installation, become the property of Landlord and shall remain upon and be
surrendered with the Premises, unless Tenant, by written notice to Landlord no
later than thirty (30) days prior to the notice to the Expiration Date, requests
Landlord's consent to remove same. If Landlord so consents, the Alterations
shall be removed from the Premises by Tenant prior to the Expiration Date at
Tenant's sole expense. Nothing in this Article V shall be construed to give
Landlord title to or to prevent Tenant's removal of trade fixtures, moveable
office furniture and equipment, but upon removal of any other installation as
may be permitted by Landlord, Tenant shall immediately and at its expense,
repair and restore the Premises to the condition existing prior to Alterations.
Tenant shall repair any damage to the Premises, the Building, or the real
property on which the Building is located (hereinafter collectively referred to
as the "Real Property") incurred during such removal. All property permitted or
required to be removed by Tenant at the Expiration Date or sooner termination of
the Term which remains on the Premises after the Expiration Date or sooner
termination of the Term shall be deemed abandoned and may, at the election of
Landlord, either be retained as Landlord property or may be removed from the
Premises by Landlord at Tenant's expense. If Tenant does not repair or restore
said damage, Landlord is entitled to deduct said cost and expense from Tenant's
security deposit.
5.2 Prior to the commencement of the Alterations, Tenant shall, at its
sole expense, obtain all required permits, approvals and certificates required
by all Governmental Authorities and upon completion of the Alterations,
certificates of final approval thereof. Tenant shall deliver duplicates of same
to Landlord promptly upon their receipt. Tenant shall carry and shall cause
Tenant's contractors and subcontractors to carry such workers' compensation,
general liability, personal and property damage insurance as required by law and
in amounts no less than the amounts set forth in Article XXIII hereof.
5.3 As a condition precedent to the written consent of Landlord, Tenant
agrees to obtain and deliver to Landlord written and unconditional waivers of
mechanics' and materialmen's liens upon Real Property or a part for all work,
labor and services to be
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performed, and materials to be furnished, by them in connection with such work,
signed by all contractors, subcontractors, materialmen and laborers to be
involved in such work. If, not withstanding the foregoing, any mechanic's or
materialmen's lien is filed against the Real Property for work claimed to have
been done for, or materials claimed to have been furnished to, Tenant, such lien
shall be discharged by Tenant within ten (10) days thereafter, at Tenant's sole
cost and expense, by the payment thereof or by filing any bond required by law.
If Tenant shall fail to discharge any such mechanic's or materialmen's lien,
Landlord may, at its option, discharge the same and treat the cost thereof as
Additional Rent payable with the monthly installment of rent next becoming due;
it being hereby expressly covenanted and agreed that such discharge by Landlord
shall not be deemed to waive or release the default of Tenant in not discharging
the same. It is understood and agreed by Landlord and Tenant that any
alterations, decorations, additions or improvements shall be constructed on
behalf of Tenant and that in the event Landlord gives its written consent to
Tenant's making any such alterations, decorations, additions or improvements,
such written consent shall not be deemed to be an agreement or consent by
Landlord to subject Landlord's interest in the Premises, the Building or the
Real Property to any mechanic's or materialmen's liens which may be filed in
respect to any such work done by or on behalf of Tenant.
5.4 Tenant shall indemnify and hold Landlord harmless from and against
any and all expenses, liens, claims or damages to person or property which arise
directly or indirectly by reason of the Alterations, structural or otherwise,
made by Tenant without the prior written consent of Landlord. Landlord shall
have the right to remove same and Tenant shall be liable for any and all
expenses incurred by Landlord in said removal and subsequent restoration of the
Premises to the original condition.
ARTICLE VI
Maintenance
6.1 Tenant shall take good care of the Premises throughout the Term and
preserve the same in the condition delivered to Tenant on the Commencement Date,
normal wear and tear and damage by fire or other casualty not caused by Tenant
excepted. Tenant further agrees not to injure, overload, deface or commit waste
of the Premises. Tenant shall be responsible for all injury or damage of any
kind or character to the Real Property, including the windows, floors, walls,
ceilings, lights, electrical equipment and HVAC equipment caused by Tenant or by
anyone using or occupying the Premises by, through or under Tenant. Landlord
shall repair the same and Tenant shall pay the costs incurred therefor to
Landlord immediately upon demand, plus a ten percent (10%) management fee. If
the Premises become infested with vermin, Tenant shall, at Tenant's expense,
cause the same to exterminated from time to time
7
to the satisfaction of Landlord and shall employ such exterminators as shall be
approved by Landlord.
6.2 Landlord shall be responsible for all repairs to the roof,
foundation and permanent exterior walls and support columns of Building
(hereinafter referred to as "Structural Repairs") and shall maintain, repair and
replace all plumbing, heating, air conditioning, electrical and mechanical
fixtures (exclusive of (a) starters, ballasts, incandescent and fluorescent
lamps and (b) electrical and mechanical fixtures installed by Tenant) which
shall be standard for the building, when required, and maintain and make repairs
to the parking area and the exterior of the Building, except for those repairs
or replacements arising from the negligence of Tenant, its agents, servants,
employees, licensees, or invitees, which shall be the sole responsibility of
Tenant.
ARTICLE VII
Compliance with Laws, Indemnity and Insurance
7.1 Tenant shall not do, or permit anything to be done in or to the
Premises, or bring or keep anything therein which will, in any way, increase the
cost of fire or public liability insurance on the Real Property, or invalidate
or conflict with the fire insurance or public liability insurance policies
covering the Real Property, the Building, fixtures or any personal property kept
therein, or obstruct or interfere with the rights of Landlord or of other
tenants, or in any other way injure or annoy Landlord or other tenants, or
subject Landlord to any liability for injury to persons or damage to property,
or interfere with the good order of the Building, or conflict with the present
or future laws, rules or regulations of any Governmental Authority. Tenant
hereby indemnifies and shall hold Landlord harmless from and against all
liability for injury to persons or damage occurring on the Premises or in the
building or on the Real Property whether occasioned by any act or omission of
Tenant, or Tenant's agents, servants employees, invites or licensees. Tenant
agrees that any increase in fire and casualty insurance premiums on the Building
or contents caused by the occupancy of Tenant and any expense or cost incurred
in consequence of negligence, carelessness or willful action of Tenant, Tenant's
agents, servants, employees, invitees or licensees, shall be reimbursed to
Landlord with ten (10) days of demand therefor. Landlord shall have all the
rights and remedies for the collection of Basic Rent provided to paid pursuant
to terms hereof.
ARTICLE VIII
Subordination and Estoppel
8.1 Tenant agrees that this Lease is subject and subordinate to all
ground or underlying leases and to the lien of any mortgages or deeds of trust
now on or which at any time in the future may be made a lien upon the Real
Property, and to all advances made or
8
hereafter to be made upon the security thereof. This subordination provision
shall be self-operative and no further instrument of subordination shall
required; provided, however, that Tenant agrees to execute and deliver within
two (2) business days, upon request, such further instrument or instruments
confirming this subordination as shall be desired by Landlord or by any
mortgagee or proposed mortgagee of the Real Property; and Tenant hereby
constitutes and appoints Landlord as Tenant's attorney-in-fact to execute any
such instrument or instruments. Tenant further agrees that at the option of the
holder of any mortgage or of the trustee under any deed of trust securing the
Real Property, this Lease may be made superior to said mortgage or deed of trust
by the insertion therein of a declaration that this Lease is superior.
8.2 Tenant agrees, at any time and from time to time upon not less than
five (5) days' prior written request by Landlord, to execute, acknowledge and
deliver to Landlord a statement in writing certifying that this Lease is
unmodified and in full force and effect (or, it there have been modifications,
that the same are in full force and effect as modified) and stating the
modifications, that there are no offsets, defenses, defaults or counterclaims
under this Lease or against Landlord, the dates to which the Basic Rent and
Additional Rent have been paid in advance, if any, it being intended that any
such statement delivered pursuant to this Paragraph 8.2 may be relied upon by a
prospective purchaser of Landlord's interest or a mortgagee of Landlord's
interest or assignee of any mortgage upon Landlord's interest in the Real
Property.
ARTICLE IX
Destruction - Fire or Other Casualty
9.1 If the Premises or the Building shall be damaged by fire or other
casualty not arising from the fault or negligence of Tenant or its servants,
agents, employees, invitees or licensees: (i) except as otherwise provided in
subsection (ii) hereof, the damage shall be repaired by and at the expense of
Landlord and until such repairs shall be made the Basic Rent and Additional Rent
shall be equitably abated according to the part of the Premises which is usable
by Tenant. Landlord agrees, at its expense, to repair promptly any damage to the
Premises, except that Tenant agrees to repair or replace its own furniture,
furnishings and equipment. No penalty shall accrue due to a delay caused by
strike, lockout, act of God, inability to obtain labor or materials,
governmental restrictions, enemy actions, civil commotion, fire, unawardable
casualty or any other cause similar or dissimilar beyond the reasonable control
of either Landlord or Tenant or due to the passing of time while waiting for an
adjustment of insurance proceeds (hereinafter referred to as an "Excusable
Delay"); (ii) if the Premises are totally damaged or are rendered wholly
untenantable by fire or other casualty, or if Landlord's architect certifies
that it cannot be repaired within
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ninety (90) days of the casualty or if Landlord shall decide not to resolve or
repair the same or shall decide to demolish the Building or the Premises, or not
to rebuild the Building or the Premises, then Landlord shall, within ninety (90)
days after such fire or other casualty, give Tenant notice of such decision, and
thereupon the Term shall expire ten (10) days after such notice is given, and
Tenant shall vacate the Premises and surrender the same to Landlord; (iii) If
Landlord fails to complete the repair and restoration of the Premises within six
(6) months from the date of the casualty (subject to Excusable Delays) then
Tenant shall have the right to cancel and terminate this Lease upon the delivery
of a notice to Landlord delivered within fifteen (15) days after the expiration
of the aforesaid six (6) month period; (iv) Landlord agrees that it shall
diligently pursue all repair and restoration work required on its part to be
completed hereunder.
ARTICLE X
Mutual Waiver of Subrogation
10.1 Landlord hereby waives any and all rights of recovery against the
Tenant for or arising out of damage to or destruction of the Premises, the
Building or the Real Property and any other property of the Landlord from causes
then insured under standard fire and extended coverage insurance policies or
endorsements to the extent that its insurance policies then in effect permit
such waiver, and Tenant hereby waives any and all rights of recovery against
Landlord for or arising out of damage to or destruction of the Premises, the
Building or the Real Property and any property of Tenant from causes then
insured under standard fire and extended coverage insurance policies to the
extended coverage insurance policies to the extent that its insurance policies
then in effect permit such a waiver. If at any time during the Term any
insurance carrier which shall have issued a policy to either of the parties
covering the Real Property, the Premises, the Building or any of the property of
Tenant, shall have issued a policy to either of the parties covering the Real
Property, the Premises, the Building or any of the Property of the Tenant, shall
refuse to consent to the waiver of the right of recovery with respect to any
loss payable under such a policy, or if such a carrier shall consent to such
waiver only upon the payment of an additional premium (unless such additional
premium is voluntarily paid by one of the parties hereto) or shall cancel a
consent previously given, or shall cancel or threaten to cancel any policy
previously issued and then in full force and effect, then in any such event, the
waiver in this Paragraph 10.1 shall thereupon be of no further force and effect
as to the loss, damage or destruction covered by such policy except as
hereinafter provided. If, however, at any time thereafter such consent shall be
obtained therefor from any existing or any substitute insurance carrier, the
waiver hereinabove provided for shall again become effective.
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ARTICLE XI
Condemnation and Other Proceedings
11.1 If the Premises shall be acquired or condemned by eminent domain
proceedings, or by giving of a deed in lieu thereof, or shall be ordered
demolished or unfit for present use by any governmental body, then and in that
event, the Term shall cease and terminate from the date of title-vesting or
final order pursuant to such proceeding or agreement. If a non-substantial
portion of the Premises or the Building shall be so ordered, acquired or
condemned, this Lease shall cease and terminate at Landlord's option, and if
such option is not exercised by Landlord, an equitable adjustment of the Basic
Rent and Additional Rent payable by Tenant for the remaining useable portion of
the Premises shall be made. In the event of a termination under this Article XI,
Tenant shall have no claim against the Landlord for the value of any unexpired
Term and Tenant should have no claim against Landlord, other than for the
adjustment of the Basic Rent and Additional Rent as hereinbefore mentioned, or
be entitled to any portion of any amount that may be awarded as damages or paid
as a result of such proceedings or as the result of any agreement made by any
governmental authority with Landlord.
11.2 Tenant may, if allowed by statue, seek such awards or damages for
moving expenses, loss of profits and fixtures and other equipment installed by
it (if any) which do not, under the terms of this Lease, become the property of
Landlord at the termination hereof. Such awards or damages must be made by a
condemnation court or other authority and must be separate and distinct from any
award to Landlord for the Real Property and Building and shall not diminish any
award of Landlord. For purposes of this Paragraph 11.2, a substantial part of
the Premises shall be considered to have been taken if more than fifty percent
(50%) of the Premises are unusable by Tenant as a direct result of such taking.
ARTICLE XII
Assignment and Subletting
12.1 Tenant, for itself, its heirs, distributees, successors and
assigns, expressly covenants that it shall not, by operation of law or
otherwise, assign, mortgage or encumber this Lease, or any part thereof, or
permit the Premises to be used by others without the prior written consent of
Landlord in each instance. Any attempt to do so by Tenant shall be void. The
consent by Landlord to any assignment, mortgage, encumbrance, subletting or use
of the Premises by others shall not constitute a waiver of Landlord's right to
withhold its consent to any other assignment, mortgage, encumbrance or use of
the Premises by others. Without the prior written consent of Landlord, this
Lease and the interest of Tenant therein or any assignee of Tenant therein,
shall not pass by operation of law, and shall not be subject to garnishment or
sale under execution in any suit or proceeding which may be brought against or
by Tenant or any assignee of Tenant.
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12.2 Landlord covenants and agrees that it will not unreasonably
withhold its consent to Tenant's assigning or subletting all or a part of the
Premises; provided, however, that Tenant shall not be in default under any of
the terms, covenants, conditions, provisions and agreements of this Lease at the
time of any notice or request for consent under the terms of this Article XII or
at the effective date of such subletting or assigning.
12.3 (a) If Tenant requests Landlord's consent to an assignment of this
Lease or a subletting of all or any part of the Premises, Tenant shall submit to
Landlord:
(1) the sum of three hundred dollars ($300.00) as
a non-refundable fee to process each such
request;
(2) the name of the proposed assignee or
subtenant;
(3) the terms of the proposed assignment or
subletting;
(4) the nature of the proposed subtenant's or
assignee's business; and
(5) such information as to the proposed
subtenant's or assignee's financial
responsibility and general reputation as
Landlord may reasonably require.
(b) Upon the receipt of such request and information from
Tenant, Landlord shall have the option, to be exercised in writing within thirty
(30) days after such receipt, to either (1) cancel and terminate this Lease if
the request is to assign this Lease or to sublet all of the Premises or, if the
request is to sublet a portion of the Premises only, to cancel and terminate
this Lease with respect to such portion, in each case as of the date set forth
in Landlord's notice of exercise of such option; or (2) to grant said request.
(c) In the event Landlord shall cancel this Lease, Tenant
shall surrender possession of the Premises, or the portion of the Premises which
is the subject of the request, as the case may be, on the date set forth in such
notice in accordance with the provisions of this Lease relating to surrender of
the Premises. If the Lease shall be cancelled as to a portion of the Premises
only, the Basic Rent and Additional Rent payable by the Tenant hereunder shall
be reduced proportionately according to the ratio that the number of rentable
square feet in the portion of the space surrendered bears to the rentable square
feet in the Premises.
(d) In the event that Landlord shall consent to a sublease or
assignment pursuant to the request from Tenant, Tenant shall cause to be
executed by its assignee or subtenant an agreement to perform faithfully and to
assume and be bound by all of the terms, covenants, conditions, provisions and
agreements of
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this Lease for the period covered by the assignment or sublease and to the
extent of the space sublet or assigned. An executed copy of each sublease or
assignment and assumption of performance by the sublessee or assignee, on
Landlord's standard form, shall be delivered to Landlord within five (5) days
prior to the commencement of occupancy set forth in such assignment or sublease.
No such assignment or sublease shall be binding on Landlord until Landlord has
received such copies as required herein.
(e) In the event that Landlord shall consent to a sublease or
assignment pursuant to the request from Tenant, and such agreement shall be
executed and go into effect, and Tenant realizes a profit from such agreement,
Tenant agrees to pay to Landlord 100% of said profit. Profit is defined as any
amount in excess of the amount that Tenant pays to Landlord and defined in
Article III and Article XXVIII of this Lease.
12.4 In no event shall any assignment or subletting to which Landlord
may consent release or relieve Tenant from its obligations to fully perform all
of the terms, covenants and conditions of the Lease on its part to be performed.
ARTICLE XIII
Surrender
13.1 Upon the Expiration Date or sooner termination of the Term, Tenant
shall peaceably and quietly quit and surrender to Landlord the Premises, broom
clean, in as good condition as they were on the Commencement Date, ordinary wear
and tear, repairs and replacements by Landlord, loss by fire, casualty and other
causes beyond Tenant's control, and alterations, additions and improvements
permitted hereunder, excepted. Tenant's obligation to observe or perform this
covenant shall survive the Expiration Date or prior expiration of the Term. If
the Expiration Date falls on a Sunday or a legal holiday, this Lease shall
expire at 12 noon on the business day first preceding said date.
ARTICLE XIV
Holding Over
14.1 If Tenant holds possession of the Premises beyond the Expiration
Date or prior expiration of the Term, Tenant shall become a tenant from
month-to-month at DOUBLE the Basic Rent and Additional Rent payable hereunder
and upon all other terms and conditions to this Lease, and shall continue to be
such month-to-month tenant until such tenancy shall be terminated by Landlord or
Tenant and such possession shall cease. Nothing contained in this Lease shall be
construed as a consent by Landlord to the occupancy or possession by Tenant of
the Premises beyond the Expiration Date or prior expiration of the Term, and
Landlord, upon said Expiration Date or prior expiration of the Term, Landlord
shall be entitled to the benefit of all legal remedies that now may be in force
or may
13
be hereafter enacted relating to the speedy repossession of the Premises and to
all damages to which Landlord is entitled.
ARTICLE XV
Landlord's Right of Entry
15.1 Landlord and Landlord's agents and representatives shall have the
right to enter into or upon the Premises, or any part thereof, at all reasonable
hours for the following purposes:
(1) examining the Premises;
(2) making such repairs or alterations therein as may be
necessary in Landlord's sole judgment for the safety
and preservation thereof;
(3) erecting, maintaining, repairing or replacing wires,
cables, conduits, vents or plumbing equipment running
in, to or through the Premises; or
(4) showing the Premises to prospective new tenants,
purchasers or mortgagees.
15.2 Landlord may enter upon the Premises at any time in case of
emergency without prior notice to Tenant.
15.3 Landlord, in exercising any of its rights under this Article XV,
shall not be deemed guilty of eviction, partial eviction or disturbance of
Tenant's use or possession of the Premises and shall not be liable to Tenant for
same.
15.4 All work performed by or on behalf of Landlord in or on the
Premises pursuant to this Article XV shall be performed with as little
inconvenience to the Tenant's business as possible, and in such a manner as not
unreasonably to interfere therewith.
ARTICLE XVI
Default
16.1 Each of the following, whether occurring before or after the
Commencement Date, shall be deemed a Default by Tenant and a breach of this
Lease:
(a) the filing of a petition by or against Tenant for
adjudication as a bankrupt, or for reorganization, or for arrangement under any
bankruptcy act;
(b) the commencement of any action or proceeding for the
dissolution or liquidation of Tenant, whether instituted by or against Tenant,
or for the appointment of a receiver or trustee of the property of Tenant under
any state or federal statute for relief of debtors;
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(c) the making by Tenant of an assignment for the benefit
of creditors;
(d) the suspension of business by Tenant or any act by
Tenant amounting to a business failure;
(e) the filing of a tax lien or a mechanics' lien against
any property of Tenant;
(f) Tenant's causing or permitting the Premises to be vacant,
or abandonment of the Premises by Tenant for a period in excess of ten (10)
days;
(g) failure by Tenant to pay Landlord when due Basic Rent,
Additional Rent herein reserved, or any other sum by the time required by the
terms of this Lease;
(h) a failure by Tenant in the performance of any other term,
covenant, agreement or condition of this Lease on the part of Tenant to be
performed;
(i) a default by Tenant under any other lease or sublease with
Landlord.
ARTICLE XVII
Landlord's Rights Upon Tenant's Default
17.1 (a) Upon a Default by Tenant or any subtenant or assignee,
Landlord, upon failure of Tenant to cure a default in the payment of Basic Rent,
Additional Rent or any other sum of money due to Landlord hereunder within five
(5) days after the same was due (without notice thereof from Landlord) or to
cure or diligently commence to cure any other Default within fifteen (15) days
after notice thereof from Landlord (provided same is cured with a reasonable
time thereafter, and without any delay), may immediately or at anytime
thereafter, without further notice to Tenant (i) enter upon the Premises as
agent for Tenant, by legal entry, without terminating this Lease and do any and
all acts as Landlord may deem necessary, proper or convenient to cure such
Default, for the account of and at the expense of Tenant, and Tenant agrees to
pay Landlord, upon demand, all damages and/or expenses incurred by Landlord in
so doing; or (ii) terminate this Lease and Tenant's right to possession of the
Premises and, with or without legal process, take possession of the Premises and
remove Tenant, any occupant and any property therefrom, using such legal means,
without being guilty of trespass and without relinquishing any rights of
Landlord against Tenant.
(b) Landlord shall be entitled to recover damages from Tenant
in an amount equal to the amount herein covenanted to be paid as Basic Rent and
Additional Rent, together with: (i) all expenses of any proceedings (including
but not limited to, legal
15
expenses and attorneys' fees) which may be necessary in order for Landlord to
recover possession of the Premises; and (ii) the expenses of re-renting the
Premises, including but not limited to, any commissions paid to any real estate
broker, advertising expenses and the costs of such alterations, repairs,
replacements and decoration or re-decoration as Landlord in its sole judgment
considers advisable or necessary for the purpose of re-renting the Premises;
provided, however, there shall be credited against the amount of such damages
all amounts received by Landlord from such re-renting of the Premises. Landlord
shall in no event be liable in any way whatsoever from failure to collect rent
under such re- renting; and further provided, however, Landlord shall be under
no obligation to re-rent the Premises.
17.2 No act or thing done by Landlord shall be deemed to be an
acceptance of Tenant's surrender of the Premises, unless Landlord should execute
a written agreement of surrender with Tenant. Tenant's liability hereunder shall
not be terminated by the execution of a new lease of the Premises by Landlord.
Tenant agrees to pay to Landlord, upon demand, the amount of damages herein
provided after the amount of such damages for any month shall have been
ascertained; provided however, any expenses incurred by Landlord shall be deemed
to be a part of the damages for the month in which they were incurred. Separate
actions may be maintained each month by Landlord against Tenant to recover the
damages when due, without waiting until the end of the Term to determine the
aggregate amount of such damages or Landlord, at its option, if the Premises
have been re-let for a term extending at least as long as the remainder of the
Term thereof, may hold Tenant in advance for the entire deficiency to be
realized during the term of re-letting. Tenant hereby expressly waives any and
all rights of redemption granted by or under any present or future laws in the
event of the eviction of Tenant or Tenant being dispossessed for any cause, or
in the event of Landlord obtaining possession of the Premises by reason of the
violation by Tenant of any of the covenants or conditions of this Lease.
17.3 Landlord may retain, as partial liquidated damages, any Basic
Rent, Additional Rent, Security Deposit or monies received
from Tenant or others on behalf of the Tenant.
17.4 Landlord shall have the right, as agent for Tenant, to take
possession of any furniture or fixtures of Tenant found upon the Premises after
taking possession of same pursuant to this Article XVII and sell the same at any
private or public sale and apply the proceeds to any amount due Landlord. Tenant
waives any notice of execution or levy in connection therewith.
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ARTICLE XVIII
Landlord's Remedies Cumulative; Expenses
18.1 All rights and remedies of Landlord herein enumerated shall be
cumulative, and none shall exclude any other right or remedy allowed by law. For
the purpose of any suit brought or based hereon, this Lease shall be construed
to be a divisible contract, to the end that successive actions may be maintained
on this Lease as successive periodic sums mature hereunder.
18.2 Tenant shall pay, upon demand, all of Landlord's costs, charges
and expenses, including the fees of counsel, agents and others retained by
Landlord, incurred in enforcing Tenant's obligations hereunder.
18.3 If Tenant fails to pay an installment of Basic Rent, Additional
Rent or any other sum due and payable to Landlord on or before the first day of
the calendar month when such installment becomes due and payable, Tenant shall
pay to Landlord a late charge (to cover Landlord's administrative and overhead
expenses of processing late payments) equal to the greater of one hundred
dollars ($100) or five percent (5%) of the amount of such installment and, in
addition, such unpaid installment shall bear interest at the rate per annum
which is two percent (2%) greater than the "prime rate" then in effect (or if
such prime rate is not available, a replacement rate designated by Landlord)
from the date such installment became due and payable to the date of payment
thereof by Tenant; provided, however, nothing herein contained shall be
construed or implemented in such a manner as to allow Landlord to charge or
receive interest in excess of the maximum legal rate then allowed by law. Such
late charge and interest shall constitute Additional Rent hereunder due and
payable with the next monthly installment of Basic Rent.
ARTICLE XIX
No Waiver
19.1 No waiver by Landlord of any breach by Tenant of any of the terms,
covenants, agreements or conditions of this Lease shall be deemed to constitute
a waiver of any succeeding breach thereof, or a waiver of any breach of any of
the terms, covenants, agreements and conditions herein contained.
19.2 No employee of Landlord or of Landlord's representatives or agents
shall have the authority to accept the keys of the Premises prior to the
Expiration Date and the delivery of keys to any employees of Landlord or
Landlord's representatives or agents shall not operate as an acceptance of a
termination of this Lease or an acceptance of a surrender of the Premises.
19.3 The receipt by Landlord of the Basic Rent and Additional Rent with
knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such a breach. No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Basic Rent or a lesser amount of the Additional Rent
then due shall
17
be deemed to be other than on account of the earliest stipulated amount then
due, nor shall any endorsement or any statement on any check or any letter or
other instrument accompanying any check or payment as Basic Rent or Additional
Rent 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
Basic Rent or Additional Rent or pursue any other remedy provided in this Lease.
19.4 The failure of Landlord to enforce any of the Rules or Regulations
as may be set by Landlord form time to time against Tenant or against any other
tenant in the Building shall not be deemed a waiver of any such Rule or
Regulation.
ARTICLE XX
Landlord's Reserved Rights
20.1 (a) Landlord reserves the following rights: (i) If during or prior
to the last ninety (90) days of the Term Tenant vacates the Premises, to
decorate, remodel, repair, alter to otherwise prepare the Premises for
reoccupancy and, (ii) to have pass keys to the Premises.
(b) Landlord may enter upon the Premises and may exercise
either of the foregoing rights hereby reserved without being deemed to have
caused an eviction or disturbance of Tenant's use and possession of the Premises
and without being liable in any manner to Tenant.
ARTICLE XXI
Landlord's Liability
21.1 Landlord or its agents or representatives shall not be liable for
any injury or damage to persons or property resulting from fire, explosion,
falling plaster, steam, gas, electricity, water, rain, snow or leaks from any
part of the Building or from the pipes, appliances, plumbing, on the roof,
street, subsurface or from any other place or by dampness or by any other cause
of nature whatsoever, or resulting from carelessness, negligence or improper
conduct on the part of any other tenant or of Landlord's contractors or its or
any other tenant's agents, employees, guests, licensees, invitees, subtenants,
assignees or successors.
21.2 Anything contained in this Lease to the contrary notwithstanding,
Tenant agrees that it shall look solely to the estate and property of Landlord
in the Real Property and the Building of which the Premises form a part for the
collection of any judgment (or other judicial process) requiring the payment of
money by Landlord for any default or breach by Landlord of any of its
obligations under this Lease, subject, however, to the prior rights of any
ground or underlying landlord or the holder of any mortgage covering the Real
Property or the Building or of
18
Landlord's interest therein. No other assets of Landlord shall be subject to
levy, execution or other judicial process for the satisfaction of Tenant's
claim. This provision shall not be deemed, construed or interpreted to be or
constitute an agreement, express or implied, between Landlord and Tenant that
Landlord's interest hereunder and in the Real Property or the Building shall be
subject to impressment of an equitable lien otherwise. Nothing herein contained
shall be construed to limit any right of injunction against Landlord, where
appropriate.
21.3 Landlord shall not be deemed in default with respect to the
failure to perform any of the terms, covenants and conditions of this Lease on
Landlord's part to be performed, if such failure is due in whole or in part to
any strike, lockout, labor dispute (whether legal or illegal), civil disorder,
inability to procure materials, failure of power, restrictive governmental laws
and regulations, riots, insurrections, war, fuel shortages, accidents,
casualties, Acts of God, acts caused directly or indirectly by Tenant (or
Tenant's agents, employees, guests or invitees), acts of other tenants or
occupants of the Building or any other cause beyond reasonable control of
Landlord. In such event, the time for performance by Landlord shall be extended
by an amount of time equal to the period of delay so caused.
ARTICLE XXII
Tenant's Liability
22.1 Tenant shall reimburse Landlord for all expenses, damages or fines
incurred or suffered by Landlord by reason of any breach, violation or
non-performance by Tenant, its agents, servants, employees, invitees or
licensees of any covenant or provision of this Lease, or by reason of damage to
persons or property caused by moving property of or for Tenant in or out of the
Building, or by the installation or removal of furniture or other property of or
for Tenant or by reason of or arising out of the carelessness, negligence or
improper conduct of Tenant, or its agents, servants, employees, invitees and
licensees in the use or occupancy of the Premises. Any such expense shall be
deemed Additional Rent, due in the next calendar month after it is incurred.
ARTICLE XXIII
Tenant's Insurance
23.1 (a) Notwithstanding Article XXII, Tenant covenants to provide, on
or before the Commencement Date for the benefit of Landlord, Landlord's
mortgagee, Landlord's Managing Agent, if any, and Tenant a comprehensive policy
of liability insurance and/or Certificate of Insurance protecting Landlord,
Landlord's mortgagee, Landlord's Managing Agent and Tenant against any liability
whatsoever occasioned by accident on or about the Real Property, the Building or
the Premises or any appurtenances thereto. Such policy is to be written by
insurance companies qualified to do
19
business in the State of New Jersey which shall be rated grade A or better in
Best's with a rating therein of 12 or better and the limits of liability
thereunder shall be in minimum amounts approved by Landlord from time to time
(as set forth in the Rules and Regulations) in respect of any one person, in
respect of any one accident, and in respect of any property damage. Such
insurance may be carried under a blanket of policy covering the Premises and
other locations of Tenant, if any.
(b) Fire and Extended Coverage, Vandalism, Malicious Mischief
and Special Extended Coverage Insurance in an amount adequate to cover the costs
of replacement of all personal property, decoration, trade fixtures, furnishings
and equipment in the Premises and all contents therein. Landlord shall not be
liable for any damage to such property of Tenant by fire or other peril
includable in the coverage afforded by the standard form of fire insurance
policy with extended coverage endorsement attached (whether or not such coverage
is in effect), no matter how caused, it being understood that Tenant will look
solely to its insurer for reimbursement.
23.2 Prior to the time such insurance is first required by this Article
XXIII to be carried by Tenant, and thereafter, at least thirty (30) days prior
to the expiration of any such policy, Tenant agrees to deliver to Landlord
either a duplicate original or the aforesaid policy or a certificate evidencing
such insurance, provided said certificate contains an endorsement that such
insurance may not be cancelled except upon thirty (30) days' notice to Landlord,
together with evidence of payment for the policy.
23.3 Upon failure at any time on the part of Tenant to procure and
deliver to Landlord the policy or certificate of insurance, as hereinabove
provided, stamped "Premium Paid" by the issuing company at least thirty (30)
days before the expiration of the prior insurance policy or certificate, if any,
or to pay the premiums therefor, Landlord shall be at liberty, from time to
time, as often as such failure shall occur, to procure such insurance and to pay
the premium therefor, and any sums paid for insurance by Landlord shall be and
become, and are hereby declared, to be Additional Rent hereunder due
immediately, for the collection of which Landlord shall have all remedies
provided for in this Lease or by law for the collection of rent. Payment by
Landlord of such premium or the carrying by Landlord or any such policy shall
not be deemed to waive or release the default of Tenant with respect thereto.
Tenant's failure to provide and keep in force the aforementioned insurance shall
be regarded as a Default hereunder entitling Landlord to exercise any or all of
the remedies as provided in this Lease in the event of a Default.
20
ARTICLE XXIV
Mechanics' Liens
24.1 Any mechanic's lien filed against the Real Property for work
claimed to have been done for, or materials claimed to have been furnished to,
Tenant shall be bonded by Tenant within five (5) days after notice of filing at
Tenant's expense.
ARTICLE XXV
Quiet Enjoyment
25.1 Landlord covenants and agrees that, upon the performance by Tenant
of all of the covenants, agreements and provisions hereof on Tenant's part to be
kept and performed, Tenant shall have, hold and enjoy the Premises, subject and
subordinate to the rights set forth in Article VIII, free from any interference
whatsoever by, from or through Landlord, provided, however, that no diminution
or abatement of Basic Rent, Additional Rent or other payment to Landlord shall
be claimed by or allowed to Tenant for inconvenience or discomfort arising from
the making of any repairs or improvements to the Premises or the Real Property,
or for any space taken to comply with any law, ordinance or order of any
Governmental Authority, except as provided herein.
ARTICLE XXVI
Air and Light
26.1 This Lease does not grant any rights to air and light.
ARTICLE XXVII
Landlord's Services
27.1 Landlord shall furnish to Tenant the services set forth in this
Lease and the Rules and Regulations as services which are covered by the Basic
Rent.
27.2 (a) Air heating and air cooling shall be furnished only between
the hours of 8:00 a.m. and 6:00 p. m., Mondays through Fridays, Saturdays,
Sundays and Building Holidays, excluded (hereinafter referred to as the
"Business Hours"), and then only when weather conditions, in the opinion of
Landlord, require. As used herein, the term "Building Holidays" shall mean all
holidays including, but not limited to: Washington's Birthday, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, and
the day after Christmas Day and New Year's Day, as each of the said holidays are
celebrated in the State of New Jersey.
(b) If Tenant shall request the use of air cooling (during the
periods when such is available), ventilating and/or heat at any time other than
the Business Hours in this Lease provided for such service, Landlord shall
furnish such to Tenant provided (i) that Tenant pays to Landlord, as Additional
Rent, a special overtime charge therefor which shall be $40.00 per hour
initially (which Landlord may adjust from time to time) and (ii)
21
that Tenant's request shall be received in writing by Landlord's property
manager by 12:00 noon at least one day before after-hours service is required
(and by 12:00 noon of the day preceding any requested before-hours service).
27.3 (a) Throughout the Term, Landlord agrees to redistribute
electrical energy to the Premises (not exceeding the present electrical capacity
at the Premises), upon the following terms and conditions: (i) Tenant shall pay
for such electrical energy as provided by this Paragraph 27.3; (ii) Landlord
shall not be liable in any way to Tenant for any loss, damage or expense which
Tenant may sustain or incur as a result of any failure, defect or change in the
quantity or character of electricity furnished to the Premises or if such
quantity or character of electricity furnished to the Premises is no longer
available or suitable for Tenant's requirements or due to any cessation,
diminution or interruption of supply thereof.
The parties agree that Tenant will pay for the electric during the term
of this Lease in such amounts as may be determined under one of the provisions
following, to wit, (a), (b), and (c). The parties agree that Landlord will be
entitled to elect which measurement method will be used, and further agree that
Landlord will be entitled to change the method during the Term of this Lease on
notice to the Tenant: (a) by determining a fixed amount at the outset, which is
$1.25 per square foot, or $15,493.75 per annum or $1,291.15 per month, and
agreeing to adjustments to same; (b) by submetering the demised premises at
Landlord's expense, in which case Landlord will be entitled to charge a pro rata
share of its utility charges, together with a charge incurred by Landlord for
the submetering service under this method, Landlord will charge Tenant at the
same rate as the utility is charging; therefore, Tenant will be liable for any
utility rate increases; or (c) by having an independent electrical engineering
consultant selected by Landlord and reasonably acceptable to Tenant make a
survey of the electrical power demand of the electric lighting fixtures and the
electrical equipment of Tenant used in the Premises to determine the average
monthly electric consumption thereof. Landlord shall have the right to resurvey
the electrical power demand at any time during the Term of this Lease or on a
regular basis, but not more often than quarterly. The findings of said
consultant as to the average monthly electric consumption of Tenant shall be
conclusive and binding on the parties hereto. After said consultant has
submitted its report, Tenant shall pay to Landlord within ten (10) days after
demand therefor by Landlord, the amount determined by said consultant as owing
from the Commencement Date and during the months in which said survey was being
conducted and, thereafter, on the first day of every month, in advance, the
amount set forth as the monthly consumption in said report. Said amounts shall
be treated as Additional Rent due hereunder. In the event that there shall be an
increase or decrease in the rate schedule of the public utility for the supply
of electric energy to the Building or the
22
imposition of any tax or surcharge with respect to such electric energy or
increase in such tax or surcharge with respect to such electric energy or
increase in such tax or surcharge following the Commencement Date, the
Additional Rent payable hereunder shall be equitable adjusted to reflect the
resulting increase, decrease, tax or surcharge.
(b) Tenant covenants that its use of electricity in the
Premises shall be limited to and for the operation of (1) the Building standard
lighting, and (2) personal computers, electric typewriters, calculators, copying
machines and other small office machines.
(c) Tenant shall make no alteration to the existing electrical
equipment or connect any fixtures, appliances or equipment in addition to the
equipment permitted in Article 27.3(b) above without prior written consent of
Landlord in each instance. Should Landlord grant such consent, all additional
risers or other equipment required therefor shall be provided by Landlord and
the cost thereof shall be paid by Tenant upon Landlord's demand. As a condition
to granting such consent, Landlord shall require an increase in the monthly
electrical charge (as Additional Rent) by an amount which will reflect the cost
of electricity to operate the additional equipment and service to be furnished
by Landlord. This increase shall be determined by an independent electrical
engineer, to be selected by Landlord and whose service shall be paid for by
Tenant.
(d) Landlord reserves the right to discontinue furnishing
electrical energy to Tenant at any time upon to less than one hundred twenty
(120) days' written notice to Tenant. If Landlord exercises such right of
termination, this Lease shall continue in full force and effect and shall be
unaffected thereby, except only that, from and after the effective date of such
termination, Landlord shall not be obligated to furnish electric energy to
Tenant and the Additional Rent shall be reduced by a sum per month equal to that
amount previously agreed as Additional Rent for Tenant's use of electricity in
the Premises. If Landlord so discontinues furnishing electrical energy to
Tenant, Tenant shall arrange to obtain electrical energy directly from the
public utility company furnishing electric energy to the Building. Tenant may
obtain such electrical energy by means of the then-existing Building system
feeders, risers and wiring to the extent that the same are available, suitable
and safe for such purposes. All meters and additional panel boards, feeders,
risers, wiring and other conductors and equipment which may be required to
obtain electrical energy from the public utility company shall be installed and
maintained by Tenant in accordance with Article V hereof at its sole expense.
(e) Landlord shall not be liable in the event of any
interruption in the supply of electricity, and Tenant agrees that
23
such supply may be interrupted for inspection, repairs, replacement and in
emergencies.
27.4 The failure of Landlord to furnish any service hereunder shall not
be construed as a constructive eviction of Tenant and shall not excuse Tenant
from performing any of its obligations hereunder and shall not give Tenant any
claim against Landlord for damages for failure to furnish such services.
ARTICLE XXVIII
Additional Rent
28.1 Tenant hereby covenants and agrees to pay as Additional Rent the
amounts as set forth below.
28.2 (a) For each year or part of a year occurring within the Term in
which the total annual real estate taxes, assessments (including special
assessments), personal property tax, sewer rents, rates and charges (hereinafter
referred to as the "Real Estate Taxes") which shall be levied, imposed or
assessed upon the Real Property shall exceed the Real Estate Taxes levied,
imposed or assessed for the Base Tax Year as is specified in Item I of the Basic
Lease Provisions, for each calendar year Landlord shall notify Tenant of
Landlord's best estimate of Tenant's Proportionate Share of Real Estate Taxes
for each calendar year above Base Tax Year Real Estate Taxes and Tenant shall be
obligated to pay Landlord, as Additional Rent along with each monthly
installment of Base Rent due during such calendar year, one twelfth (1/12th) of
such estimated amount. Tenant's payments of such estimated amount shall be
treated by Landlord as a credit against the actual amount of Tenant's
Proportionate Share required to be paid by Tenant pursuant to this Paragraph.
(b) Landlord covenants and agrees that for each year or part
of a year occurring within the Term in which the Real Estate Taxes shall be
decreased from the Real Estate Taxes levied, imposed or assessed for the Base
Tax Year, Landlord shall credit against any Additional Rent due from Tenant
hereunder within ninety (90) days after the end of such year, a sum equal to
Tenant's Proportionate Share of such decrease of Real Estate Taxes. Tenant's
Proportionate Share of said decrease of Real Estate Taxes for less than one year
shall be prorated and apportioned.
(c) Landlord may take the benefit of the provisions of any
statute or ordinance permitting any Real Estate Tax to be paid over a period of
time.
(d) Tenant's Proportionate Share of Real Estate Taxes in
excess of the Real Estate Taxes for the Base Tax Year shall be determined from
the amount finally determined to be legally due as a result of legal proceedings
or otherwise. In the event the Real Estate Taxes have not been finally
determined by legal proceedings
24
or otherwise at the time of payment of Real Estate Taxes for any subsequent
year, the actual amount of Real Estate Taxes paid or accrued by Landlord or
billed by the taxing jurisdiction for the Base Tax Year shall be used to
calculate any excess thereof. Upon a final determination of the Real Estate
Taxes for the Base Year Tax by legal proceedings or otherwise, Landlord shall
deliver to Tenant a statement setting forth the amount of Real Estate Taxes for
the Base Tax Year as finally determined and showing the computation of any
adjustment due to Landlord or to Tenant by reason thereof. Any payment due to
Landlord or any credit due to Tenant by reason of such adjustment shall be made
as provided herein.
(e) If Landlord shall receive any tax refund in respect of any
tax year following the Base Tax Year, Landlord shall deduct from such tax refund
any expenses incurred in obtaining such tax refund, and out of the remaining
balance of such tax refund, Landlord shall credit to Tenant Tenant's
Proportionate Share of such refund. Any expenses incurred by Landlord in
contesting the validity or the amount of the assessed valuation of the Real
Property or of any Real Estate Taxes for any year after the Base Tax Year, to
the extent not offset by a tax refund, shall be included as an item of Real
Estate Taxes for the tax year in which such contest shall be finally determined
for the purposes of computing the Additional Rent due Landlord hereunder.
(f) If the tax year for Real Estate Taxes shall be changed,
then an appropriate adjustment shall be made in the computation of the
Additional Rent due to Landlord or any credit due to Tenant, in accordance with
sound accounting principles, to the changeover to any new tax year adopted by
any taxing authority. "Real Estate Taxes" as set forth in this Article XXVIII
shall mean those taxes attributable to the Real Property and/or the Building,
and/or contents, provided that, if because of any change in the method of
taxation of real estate any other tax or assessment is imposed upon Landlord or
the owner of the Real Property and/or the Building or upon or with respect to
the Real Property and/or the Building or the rents or income therefrom in
substitution for or in lieu of any tax or assessment which would otherwise be a
Real Estate Tax, such other tax or assessment shall be deemed Real Estate Taxes
for the purposes hereof.
(g) If the last year of the Term ends on any day other then
the last day of the tax year, any payment due to Landlord or credit due to
Tenant by reason of any increase in Real Estate Taxes shall be prorated, and
tenant covenants to pay any amount due to Landlord within thirty (30) days after
being billed therefor and Landlord covenants to credit any amount due to Tenant,
as the case may be. These covenants shall survive the Expiration Date or earlier
termination of this Lease.
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28.3 (a) As used herein, the term "Landlord's Operating Expenses" shall
mean those costs or expenses paid or incurred by Landlord for operating,
maintaining and repairing the Real Property, including, but not limited to, the
cost of electricity, water, fuel, window cleaning, janitorial service, insurance
of all kinds carried in good faith by Landlord and applicable to the Real
Property, snow removal, maintenance and cleaning of the parking lot, landscape
maintenance repairs of any kind for which Landlord is not reimbursed, painting,
replacement of worn out mechanical or damaged equipment, uniforms, management
fees, building supplies, sundries, sales or use tax on supplies or services,
wages and salaries of all persons engaged by Landlord for the operation,
maintenance and repair of the Real Property, legal and accounting expenses, and
any other expense for cost, which, in accordance with generally accepted
accounting principles and the standard management practices for the office
buildings comparable to the Building would be considered as an expense of
operating, maintaining or repairing the Real Property. Excluded from Landlord's
Operating Expenses are mortgage debt service, capital improvement costs, costs
reimbursed by insurance, the cost of work performed specifically for a tenant in
the Building for which such tenant reimburses Landlord, costs in connection with
preparing space for a new tenant and real estate broker's commissions.
(b) Tenant shall pay to Landlord as Additional Rent Tenant's
Proportionate Share of the amount by which Landlord's Operating Expenses for any
calendar year during the Term after the Base Operating Year as a specified in
Item J of the Basic Lease Provisions exceeds Landlord's Operating Expenses
during the Base Operating Year.
(c) Approximately during the second month of each calendar
year of the Term, or within a reasonable period of time thereafter, Landlord
shall submit to Tenant a statement (hereinafter referred to as "Landlord's
Statement") showing in reasonable detail Landlord's Operating Expenses during
the preceding calendar year. Within thirty (30) days next following the
submission of a Landlord's Statement, which also shows Landlord's Operating
Expenses for the Base Operating Year, Tenant shall pay to Landlord Tenant's
Proportionate Share of the amount by which Landlord's Operating Expenses for the
Base Operating Year were exceeded. Tenant or its representative shall have the
right to examine Landlord's books relating to the expenses of the Real Property
only, with respect to the items in the foregoing Landlord's Statement, during
normal business hours at any time within ten (10) days following the delivery by
Landlord to Tenant of such Landlord's Statement. Unless Tenant shall take
written exception to any item contained therein within twenty (20) days after
the delivery of same, Landlord's Statement shall be considered as final and
accepted by Tenant. Any controversy with respect to any written exception shall
be made by an independent certified public accountant mutually acceptable to
Landlord and
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Tenant, and if such accountant cannot be agreed upon, then by arbitration. Such
arbitration shall be conducted upon the request of Tenant provided that Tenant
shall be current in payments to be made pursuant to said Landlord's Statement.
Arbitration shall be before three arbitrators designated by the American
Arbitration Association and in accordance with the rules and regulations of such
Association. The expenses of arbitration proceedings shall be borne by the party
who shall not have prevailed in said proceedings. The fees of respective counsel
engaged by the parties and fees of experts and other witnesses called for by the
parties shall be paid by the respective parties engaging such counsel or calling
or engaging such witnesses.
(d) For each calendar year, Landlord shall notify Tenant of
Landlord's best estimate of Tenant's Proportionate Share of Operating Expenses
for such calendar year above Base Operating Year Operating Expenses and Tenant
shall be obligated to pay Landlord, as Additional Rent along with each monthly
installment of Basic Rent due during such calendar year, one twelfth (1/12th) of
such estimated amount. Tenant's payments of such estimated amount shall be
treated by Landlord as a credit against the actual amount of Tenant's
Proportionate Share required to be paid by Tenant pursuant to Paragraph 28.3(b)
hereof.
(e) Included in each Landlord's Statement, a reconciliation
thereof shall be made as follows: Tenant shall be debited with an increase in
the Additional Rent shown on such Landlord's Statement and credited with (1) the
aggregate amount, if any, paid by Tenant in accordance with the provisions of
Article XXVIII hereof on account of its potential obligation to pay such
decrease in the Additional Rent for the calendar year in question, and (2) and
decrease in the Additional Rent shown on such Landlord's Statement. Tenant shall
pay any net debit balance to Landlord within thirty (30) days as set forth in
Paragraph 28.3(c) above; any net credit balance shall be applied by Landlord
against the next accruing monthly installment of Additional Rent.
28.4 Any increase in Additional Rent under this Article XXVIII shall be
prorated for the final year of the Term if such year covers a period of less
that twelve (12) months. In no event shall any adjustment in Tenant's obligation
to pay Additional Rent under this Article XXVIII result in a decrease in the
Basic Rent payable hereunder. Tenant's obligation to pay Additional Rent and
Landlord's obligation to credit Tenant any amount referred to in this Article
XXVIII for the final year of the Term shall survive the Expiration Date.
28.5 With respect to Tenant's Proportionate Share of Operating Expenses
in excess of the Base Operating Year, if the Building is not at least ninety
percent (90%) occupied during the Base Operating Year or any calendar year
during the Term, then those items included within the Operating Expenses which
are affected by
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variations in occupancy of the Building shall be increased by Landlord for such
calendar year (or partial calendar year) to the amount that would have been
reasonably incurred had Landlord provided such item of work or service to ninety
percent (90%) of the rentable area of the Building.
ARTICLE XXIX
Personal Property Taxes
29.1 Tenant agrees to pay all taxes imposed on the personal property of
Tenant, the conduct of its business and its use and occupancy of the Premises.
ARTICLE XXX
Security Deposit
30.1 No security deposit is required to be deposited by Tenant.
ARTICLE XXXII
Definition of Landlord
31.1 The Term "Landlord" as used in this Lease means only the owner for
the time being of the Real Property and/or the Building or owner of a lease of
the Real Property. In the event of any transfer of title to or lease of the Real
Property, Landlord shall be and hereby is entirely freed and relieved of all
covenants and obligations of Landlord hereunder and this Lease shall be deemed
and construed as a covenant running with the land without further agreement
between the parties or their successors in interest.
31.2 Landlord shall be under no personal liability with respect to any
of the provisions of this Lease, and if Landlord is in breach or default with
respect to its obligations or otherwise, Tenant shall look solely to the equity
of Landlord in the Real Property for the satisfaction of Tenant's remedies. It
is expressly understood and agreed that Landlord's liability under the terms,
covenants, conditions and obligations of this Lease shall in no event exceed the
amount of Landlord's equity in the Real Property.
ARTICLE XXXII
Notices
32.1 Notices by either party to the other shall be in writing, sent via
registered or certified mail, return receipt requested, postage prepaid and
addressed to Landlord or Tenant at their respective addresses as specified in
Items H(1) and H(2) of the Basic Lease Provisions, or to such other addresses as
either party shall hereafter designate by notice as aforesaid. All notices
properly addressed shall be deemed served three (3) business days after the date
of mailing.
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ARTICLE XXXIII
Signs
33.1 No sign, advertisement or notice shall be affixed to or placed
upon any part of the Premises, the Building or the Real property by the Tenant,
except in such manner and of such size, design and color as shall be approved in
advance in writing by Landlord, in its sole discretion.
ARTICLE XXXIV
Notice of Defects and Accidents
34.1 Tenant shall give Landlord immediate notice in case of any
accident on the Premises involving Tenant, its servants, agents, employees,
invitees or licensees in the Building or on the Real Property or of any defects
in the Building.
ARTICLE XXXV
Rules and Regulations
35.1 Tenant, on behalf of itself and its employees, agents, servants,
invitees and licensees, agrees to comply with the Rules and Regulations with
respect to the Real Property attached hereto as Exhibit C and incorporated
herein by reference. Landlord shall have the right to make reasonable amendments
thereto from time to time for safety, care and cleanliness of the Real Property
and the Building, the preservation of good order therein and the general
convenience of all the tenants, and Tenant agrees to comply with such amended
Rules and Regulations after twenty (20) days' written notice thereof from
Landlord.
ARTICLE XXXVI
Directory
36.1 Landlord shall furnish and service in the lobby of the Building a
tenant directory. Tenant, at its expense, may request from Landlord and pay for
such reasonable and customary number of names that Tenant may from time to time
request to be listed in such directory.
ARTICLE XXXVII
Hazardous Materials and Compliance with Environmental Law.
37.1 Tenant shall not cause or permit any hazardous or toxic substance,
material or waste which is or becomes regulated by any local governmental
authority of the United States Government ("Hazardous Materials") to be brought
upon, kept or used in or about the Premises by Tenant, its agents, employees,
contractors or invitees, without the prior written consent of Landlord (which
shall not be granted unless Tenant demonstrates to Landlord's reasonable
satisfaction that such Hazardous Material is necessary or useful to Tenant's
business and will be used, kept and stored in
29
a manner that complies with all laws regulating any such Hazardous Material so
brought upon or used or kept in or about the Premises). If Tenant breaches the
obligations stated in the preceding sentence, or if the presence of Hazardous
Materials on the Premises, the Building or the Real Property caused or permitted
by Tenant results in contamination of the Premises, the Building, or the Real
Property by Hazardous Material or otherwise occurs for which Tenant is legally
liable to Landlord for damage resulting therefrom, Tenant shall indemnify,
defend and hold Landlord harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities or losses (including, without limitation,
diminution in value of the Premises, the Building, or the Real Property, damages
for the loss of restriction on use of rentable or usable space or of any amenity
of the Premises, the Building or the Real Property, damages arising from any
adverse impact on marketing of space, and sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees) which arise during or after
the Term as a result of such contamination. This indemnification of Landlord by
Tenant includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state or local governmental agency or
political subdivision because of Hazardous Material present, including in the
soil or ground water on or under the Building. Without limiting the foregoing,
if the presence of any Hazardous Material present on the Premises, the Building,
or the Real Property caused or permitted by Tenant results in any contamination
of the Premises, the Building or the Real Property, Tenant shall promptly take
all actions at its sole expense as are necessary to return the Premises, and/or
the Building, and/or the Real Property to the condition existing prior to the
introduction of any such Hazardous Material to the Premises and/or the Building,
and/or the Real Property; provided that Landlord's approval of such actions
shall first be obtained, which approval shall not be unreasonably withheld so
long as such action would not potentially have any material adverse long-term or
short-term effect on the Premises, the Building or the Real Property.
37.2 Tenant shall, at Tenant's sole cost and expense, comply with the
requirements of any federal, state, county, municipal or other governmental law,
ordinance, rule, regulation, requirement and/or directive pertaining to the
environment (an "Environmental Law" or "Environmental Laws") including, but not
limited to, the New Jersey Spill Compensation and Control Act (N.J.S.A.
58:10-23.11 et seq.); the New Jersey Water Pollution Control Act (N.J.S.A.
58:10A-1 et seq.); the Worker and Community Right to Know Act (N.J.S.A. 34:5A-1
et seq.); the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section
6901 et seq.); the Comprehensive Environmental Response Compensation and
Liability Act of 1980 (42 U.S.C. Section 9601 et seq.); and the Environmental
Cleanup Responsibility Act (N.J.S.A. 13:1K-6 et seq.) and the regulations
promulgated thereunder ("ECRA"). In this regard, Tenant shall, at
30
Tenant's sole cost and expense, make all submissions to, provide all information
to and comply with all requirements of any governmental authority. Should said
governmental authority determine that action is necessary to clean up, remove
and/or eliminate any spills or discharges by Tenant or dangerous or hazardous
substances or wastes in and upon the Premises, the Building and/or the Real
Property and/or that a cleanup plan must be prepared and submitted, then and
that event, Tenant shall, at Tenant's sole cost and expense, take any and all
action required and carry out any and all approved plans. Tenant's obligations
pursuant to this Paragraph 38.2 shall arise whenever required by any appropriate
governmental agency, including, but not limited to, any closing, terminating or
transferring of operations at the Premises.
37.3 Tenant shall, at Tenant's sole cost and expense, comply with ECRA.
Tenant shall, at Tenant's sole cost and expense. make all submissions to,
provide all information to, and comply with all requirements of, the Bureau of
Industrial Site Evaluation (the "Bureau") of the New Jersey Department of
Industrial Site Evaluation (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 occur during the Term or any renewal thereof, as the case may be,
then Tenant shall, at Tenant's sole cost and expense, prepare and submit the
required plans and financial assurances, and carry out the approved plans.
Tenant's obligations under this Article XXXVIII shall arise if there is any
closing, terminating or transferring of operations by any person or entity of an
industrial establishment at the Premises pursuant to ECRA, including, without
limitation, a sale, transfer or conveyance of the Premises by Landlord, an
assignment or subletting by Tenant, or the vacation of the Premises by Tenant
for any reason whatsoever. At no expense to Landlord, Tenant shall promptly
provide all information within its personal knowledge requested by Landlord for
preparation of non-applicability affidavits and shall promptly sign such
affidavits when requested by Landlord. Tenant shall indemnify, defend and hold
harmless Landlord from all fines, suits, procedures, claims and actions of any
kind arising out of or in any way connected with any spills or discharges of
hazardous substances or wastes to the Premises which occur during the Term or
any renewal thereof, as the case may be, and from all fines, suits, proceedings,
claims and actions of any kind arising out of Tenant's failure to provide all
information, make all submissions and take all actions required by the ECRA
Bureau or any other division of NJDEP. Tenant's failure to abide by the terms of
this Article XXXVIII shall be enforceable in a court of law and subject to all
equitable remedies. Tenant's obligations hereunder shall survive the Expiration
Date of this Lease.
31
37.4 Any references in this Lease to ECRA shall also include the
current New Jersey law commonly known as ISRA.
ARTICLE XXXVIII
Miscellaneous
38.1 This Lease contains the entire agreement between the parties, and
any attempt hereafter made to change, modify, discharge or effect an abandonment
of it in whole or in part shall be void and ineffective unless in writing and
signed by the party against whom the enforcement of the change, modification,
discharge or abandonment is sought.
38.2 Landlord and Tenant do hereby waive trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other in any matter arising out of or in any connection with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
and/or any claim, injury or damage, or any emergency or statutory remedy.
38.3 If, by reason of strike, labor troubles or other cause beyond
Landlord's control, including, but not limited to, governmental preemption in
connection with a national emergency or any rule, order or regulation of any
Governmental Authority, or conditions of supply and demand which are affected by
war or other emergency, Landlord shall be unable to supply any service which
Landlord is obligated to supply, this Lease and Tenant's obligation to pay Basic
Rent and Additional Rent hereunder shall in no way be affected, impaired or
excused.
38.4 Tenant represents that it has not dealt with any real estate
broker in connection with this Lease, other than as specified in Item G of the
Basic Lease Provisions. Tenant indemnifies and holds Landlord harmless from and
against any and all claims, liabilities, costs or damages Landlord may incur as
a result of a breach of this representation.
38.5 If any term or provision of this Lease or the application thereof
to any person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those to which it is held invalid or
unenforceable, shall not be affected thereby and all other terms and provisions
of this Lease shall be valid and enforced to the fullest extent permitted by
law.
38.6 (a) Whenever in this Lease any words of obligation or duty are
used, such words or expressions shall have the same force and effect as though
made in the form of covenants.
32
(b) Words of a 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 tense requires.
(c) All pronouns and any variations thereof shall be deemed to
refer to the neuter, masculine, feminine, singular or plural as the identity of
Tenant requires.
(d) This Lease shall be strictly construed neither against
Landlord nor Tenant. No remedy or elections given by any provision in this Lease
shall be deemed exclusive unless so indicated, but each shall, wherever
possible, be cumulative with all other remedies in law or equity as otherwise
specifically provided. Each provision hereof shall be deemed both a covenant and
a condition and shall run with the land.
(e) If, and to the extent that, any of the provisions of any
rider, addendum or amendment to this Lease conflict or are otherwise
inconsistent with any of the preceding provisions of this Lease, or of the Rules
and Regulations appended to this Lease, whether or not such inconsistency is
expressly noted in the rider, addendum or amendment, the provision of the rider,
addendum or amendment shall prevail, and in case of inconsistency with said
Rules and Regulations, shall be deemed a waiver of such rules and regulations
with respect to Tenant to the extent of such inconsistency.
(f) Tenant agrees that all of Tenant's covenants and
agreements herein contained providing for the payment of money and Tenant's
covenant to remove mechanics' liens shall be deemed conditions as well as
covenants, and that if default be made in any such covenants, Landlord shall
have all of the rights provided for herein.
(g) The parties mutually agree that the headings and captions
contained in this Lease are inserted for the convenience of reference only, and
are not to be deemed part of or to be used in construing this Lease.
(h) The covenants and agreements herein contained shall,
subject to the provisions of this Lease, bind and inure to the benefit of
Landlord, its successors and assigns, and Tenant, its successors and assigns
except as otherwise provided herein.
(i) This Lease shall be construed in accordance with the laws
of the State of New Jersey, and Landlord and Tenant acknowledge that all
applicable statutes of the State of New Jersey are superimposed on the rights,
duties and obligations of Landlord and Tenant hereunder and this Lease shall not
otherwise provide that which said statutes prohibit.
33
(j) Landlord has made no representations or promises with
respect to the Premises or the Real Property except as expressly contained
herein. Tenant has inspected the Premises and agrees to take the same in an "as
is" condition, except as otherwise expressly set forth in Exhibit B attached
hereto and incorporated by reference herein. Landlord shall have no obligation,
except as set forth in Exhibit B, to do any work in and to the Premises to
render the Premises ready for occupancy and use by Tenant.
38.7 Tenant shall not record this Lease or a memorandum hereof.
38.8 Landlord shall have the right, upon giving to Tenant thirty (30)
days' prior written notice, to relocate Tenant by substituting for the Premises
described herein other space in the Building containing approximately as much
area as that contained in the Premises and by paying Tenant's reasonable moving
and relocation expenses. Such substituted space shall be improved by Landlord,
at its expense, with Tenant finished improvements comparable in quantity and
quality to those made in the Premises. Landlord shall pay all reasonable
expenses incurred by Tenant in connection with such relocation, including the
moving, door lettering and telephone relocation. In connection with such
relocation, Landlord and Tenant shall amend this Lease to change the description
of the Premises and any other matter which may pertain thereto.
38.9 Nothing contained in this Lease shall be deemed or construed to
create a partnership or joint venture of or between Landlord and Tenant, or to
create any other relationship between the parties hereto other than that of
landlord and tenant.
38.10 Landlord and Tenant hereby covenant each for itself, that each has
the full right, power and authority to enter into this Lease upon the terms and
conditions set forth. If Tenant signs as a corporation, each of the persons
executing this Lease on behalf of Tenant does hereby covenant and warrant that
Tenant is a duly authorized and existing corporation, qualified to do business
in the jurisdiction in which the Building is located, that the corporation has
full right and authority to enter to this Lease, and that each of the persons
signing on behalf of the corporation was authorized to do so.
34
38.11 Submission of this Lease to Tenant for examination or signature
by Tenant shall not constitute reservation of or an option to lease, and the
same shall not be effective as a lease or otherwise until execution and delivery
by both Landlord and Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have executed this
Lease under seal on the day and year first hereinabove written.
WITNESS OR ATTEST: LANDLORD: SUMMIT PLAZA, INC.
s/Linda Lerner By: s/Mark Shefts
- -------------- -----------------
Name: Mark Shefts
Title: President
WITNESS OR ATTEST: TENANT: ALL-TECH INVESTMENT GROUP,
INC.
s/Linda Lerner By: s/Mark Shefts
- -------------- -----------------
Name: Mark Shefts
Title: President
35
(Corporate Seal)
CORPORATE TENANT ACKNOWLEDGEMENT
STATE OF NEW YORK
ss.
COUNTY OF ROCKLAND
On this 30th day of April, 1998, before me personally came Mark Shefts,
to me known, who, being by me duly sworn, did depose and say that he resides in
the Village of Tuxedo Park, State of New York, that he is the President of the
corporation described in and which executed the foregoing Lease as Tenant; that
s/he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and that she/he signed her/his name thereto by
like order.
S/Christine Ciiulla
-------------------
Notary Public
36
EXHIBIT B
Landlord's Work in the Premises
37
EXHIBIT C
Rules and Regulations
1. Tenant shall not (a) obstruct or permit its employees, agents,
servants, invitees or licensees to obstruct, in any way, the sidewalks, entry
passages, corridors, exit doorways, halls, stairways, or elevators of the
Building, or use the same in any way other than by means of passage to and from
the offices of Tenant; (b) bring in, store, test or use any materials in the
Building which could cause a fire or an explosion or produce any fumes or vapor;
(c) make or permit any improper noises in the Building; (d) smoke in any
elevator, throw substances of any kind out of windows or doors, or down the
passages of the Building, or in the halls or passageways, sit on or place
anything upon the window sills; or (e) clean the windows.
2. Waterclosets and urinals shall not be used for any purpose other
than those for which they were constructed, and no sweepings, rubbish, ashes,
newspaper or any other substances of any kind shall be thrown into them. Waste
and excessive or unusual use of electricity or water is prohibited.
3. The windows, doors, partitions and lights that reflect or admit
light into the halls or other places of the Building shall not be obstructed. NO
SIGNS, ADVERTISEMENTS OR NOTICES SHALL BE INSCRIBED, PAINTED, AFFIXED OR
DISPLAYED IN, ON OR BEHIND ANY WINDOWS.
4. No contract of any kind with any supplier of towels, water, ice,
toilet articles, waxing, rug shampooing, venetian blind washing, furniture
polishing, lamp servicing, cleaning or repair of electrical fixtures, removal of
waste paper, rubbish or garbage, or other like service shall be entered into by
Tenant, nor shall any vending machine of any kind be installed in the Building
without the prior written consent of Landlord.
5. Tenant shall not employ any person or persons for the purpose of
cleaning the Premises without the prior written consent of Landlord, which
consent shall not be unreasonably withheld or delayed. Landlord shall not be
responsible to Tenant for any loss of property from the Premises however
occurring, or for any damage done to the effects of Tenant by janitors or any of
its employees, or by any other person or any other cause.
6. When electrical wiring of any kind is introduced, it must be
connected as directed by Landlord, and no stringing or cutting of wires will be
allowed, except with the prior written consent of Landlord, and shall be done
only be contractors approved by Landlord. The number and location of telephones,
telegraph instruments, electric appliances, call boxes, etc. shall be
38
approved by Landlord. No tenant shall lay floor covering so that the same shall
be in direct contact with the floor of the Premises; and if the floor covering
is desired to be used, an interlining of builder's deadening felt shall be first
affixed to the floor by a paste or other material, the use of cement or other
similar adhesive material being expressly prohibited.
7. Tenant must submit to Landlord in writing a description of the
weight, size and positions of all safes and other bulky or heavy equipment and
all freight which Tenant proposes to bring into the Building; and including the
time of moving the same in and out of the Building. Tenant shall not bring such
items into the Building until receiving Landlord's written consent. Once such
Landlord consent is received, all such moving shall be done under the strict
supervision of Landlord or Landlord's property manager. Landlord will not be
responsible for loss or damage to any such equipment or freight from any cause;
but all damage done to the Building by moving or maintaining such equipment or
freight shall be repaired at the expense of the Tenant. All safes shall stand on
a base of such size as shall be designated by Landlord. Landlord reserves the
right to inspect all freight to be brought into the Building and to exclude from
the Building all freight which violates any of these Rules and Regulations or
the Lease of which these Rules and Regulation are a part.
8. No machinery of any kind or articles of unusual weight or size will
be allowed in the Building without the prior written consent of Landlord.
Business machines and mechanical equipment shall be placed and maintained by
Tenant at Tenant's expense, in settings sufficient (including proper floor
load), in Landlord's judgment, to absorb and prevent vibration, noise and
annoyance to other tenants.
9. No additional lock or locks shall be placed by Tenant on any door in
the Building without the prior written consent of Landlord. Two keys shall be
initially be furnished to Tenant by Landlord; two addition keys shall be
supplied to Tenant by Landlord upon request without charge; any additional keys
requested by Tenant shall be paid for by Tenant. Tenant, its agents and
employees shall not have any duplicate key made and shall not change any lock.
All keys to doors and washrooms shall be returned to Landlord on or before the
Expiration Date or earlier termination of this Lease, and, in the event of a
loss of any keys furnished, Tenant shall pay Landlord the cost thereof.
10. No bicycles, vehicles (except wheelchairs) or animals of any kind
shall be brought into or kept in or about the Premises.
11. The requirements of Tenant will be attended to only upon
application at the office of Landlord or Landlord's property manager. Employees
of Landlord or Landlord's property manager shall not perform any work for Tenant
or do anything outside of
39
their regular duties unless under special instructions from Landlord.
12. The Premises shall not be used for lodging or sleeping purposes,
and cooking therein is prohibited.
13. Tenant shall not conduct, or permit any other person to conduct,
any auction upon the Premises; manufacture or store goods, wares or merchandise
upon the Premises without the prior written approval of Landlord, except the
storage of usual supplies and inventory to be used by Tenant in the conduct of
its business; permit the Premises to be used for gambling; make any unusual
noises in the Building; permit to be played any musical instrument in the
Premises; permit to be played any radio, television, recorded or wired music in
such a loud manner as to disturb or annoy other tenants; or permit any unusual
odors to be produced upon the Premises.
14. Tenant shall be entitled to access to the Building by master key
during non-business or overtime hours; it shall be Tenant's responsibility to
secure the Premises at the nonbusiness hours when Tenant enters or leaves the
Building.
15. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, shades or screens shall be attached to or
hung in, or used in connection with, any window or door of the Premises without
the prior consent of Landlord. All blinds must be of a quality, type, design and
color, and attached in a manner, approved by Landlord.
16. Canvassing, soliciting and peddling on the Real Property or in the
Building are prohibited, and Tenant shall cooperate to prevent the same.
17. There shall not be used in the Premises or in the Building either
by Tenant or by others in the delivery or receipt of merchandise, supplies or
equipment, any handtrucks except those equipped with rubber tires and side
guards. If delivery or pickup is being made which requires the use of a
handtruck on the elevator, Tenant shall ensure that proper padding shall be
utilized in the elevator.
19. Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's opinion tends to impair the reputation of the Building or
its desirability for offices, and upon written notice from Landlord, Tenant
shall refrain from or discontinue such advertising.
20. Each tenant, before closing and leaving the Premises, shall ensure
that all windows are closed and all entrance doors are closed and locked.
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21. No animals of any kind shall be allowed in the Building except for
working dogs.
22. Landlord hereby reserves to itself any and all rights not granted
to Tenant hereunder, including, but not limited to, the following rights, which
are reserved for Landlord's purposes in operating the Building: (a) the
exclusive right to the use of the name of the Building for all purposes, for
Landlord or anyone Landlord might designate, except that Tenant may use the name
as its business address and for no other purpose; (b) the right to change the
name or address of the Building, without incurring any liability to Tenant for
so doing; (c) the right to install and maintain a sign or signs on the exterior
of the Building; (d) the exclusive right to use or dispose of the use of the
roof of the Building; (e) the right to limit the space on the directory of the
Building allotted to Tenant; (f) the right to grant to anyone the right to
conduct any particular business or undertaking in the Building.
23. Tenant shall list all articles to be taken from the Building (other
than those taken out in the usual course of business of Tenant) on Tenant's
letterhead, or a blank which will be furnished by Landlord. Such list shall be
presented at the office of the Building's property manager for approval before
such articles are taken from the Building.
24. Tenant shall have the non-exclusive right to use in common with
Landlord and other tenants of the Building and their employees and invitees the
unassigned parking area provided by Landlord for the parking of passenger
automobiles. Landlord may issue parking permits, install a gate system, and
impose any other system as Landlord deems necessary for the use of the parking
area. Tenant agrees that it and its employees and invitees shall not park their
automobiles in parking spaces allocated to others by Landlord and shall comply
with such rules and regulations for the use of the parking area as Landlord may
from time to time prescribe. Landlord shall not be responsible for any damage to
or theft of any vehicle in the parking area and shall not be required to keep
parking spaces clear of unauthorized vehicles or to otherwise supervise the use
of parking area. Landlord reserves the right to change any existing or future
parking area, roads, or driveways, and may make any repairs or alterations it
deems necessary to the parking area, roads and driveways and to temporarily
revoke or modify the parking rights granted to Tenant hereunder. The persistent
or frequent violation of this right by Tenant, its employees and invitees which
continues after written notice from Landlord shall be deemed a default by Tenant
under the terms of this Lease and shall also subject Tenant to a revocation by
Landlord of Tenant's right to use any parking spaces.
25. Tenant shall not use the Premises or permit the Premises to be used
for the sale of food and beverages.
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26. For the protection of Tenant and Landlord, as their interests may
appear, Tenant hereby agrees at its own expense to maintain in full force and
effect at all times during the Term of this Lease policies of insurance, issued
by a responsible carrier or carriers acceptable to Landlord, which afford the
following coverage:
A. Workmen's Compensation Statutory
B. Employers Liability Not less than $100,000
C. Broad Form Comprehensive Not less than $1,000,000
General Liability Insurance combined single limit for
including Contractual both bodily injury and
Liability, Broad Form property damage
Property Damage, Personal
Injury, Completed Operations,
Products Liability, Fire Damage
27. Tenant, its employees and agents hereby agree to abide by
reasonable rules and regulations of which Tenant shall be notified in writing
pertaining to the use of the Building as may be hereafter promulgated from time
to time by Landlord.
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