Exhibit 10.7
LEASE
LEASE, dated October , 2003, between 2340 TOWNLINE ROAD CORPORATION, a New York
corporation, having a principal address at 2340 Brighton-Henrietta Town Line
Road, Rochester, New York 14623, ("Lessor"), and TOTAL IDENTITY SYSTEMS CORP., a
New York corporation, having a principal address at 2340 Brighton-Henrietta Town
Line Road, Rochester, New York 14623 (the "Lessee"),
1. The Demised Premises; Lease Term; Renewal Term
In consideration of the Rent hereinafter reserved and the terms,
covenants and conditions set forth in this Lease to be observed and performed by
Lessee, Lessor hereby demises and leases to Lessee, and Lessee hereby rents and
takes from Lessor, the following property (collectively hereinafter referred to
as the "Demised Premises"): 2340 Brighton-Henrietta Town Line Road, Rochester,
New York 14623; (a) all the land (the "Land") described in Exhibit A hereto; (b)
all buildings, structures and other improvements (the "Improvements") now or
hereafter located on the Land, other than Lessee's Equipment as hereinafter
defined; and (c) all rights of way or of use, servitudes, licenses, tenements,
appurtenances and easements now or hereafter belonging or pertaining unto
Lessee, and the permitted successors and assigns of Lessee, upon and subject to
all of the terms, covenants and conditions herein contained, for a ten (10) year
term commencing on October , 2003, and terminating on October , 2013.
If the Lessee is then in compliance with all of the terms and
conditions of this Lease, the Lessee shall have one (1) option to renew this
Lease for one (1) five (5) year term, which shall commence on the expiration
date of the initial term of this Lease. All terms and conditions of this Lease
shall remain in full force and effect during the renewal term, except that the
Lessee shall have no other renewal option, and the annual rent shall be adjusted
to reflect the increase in the Consumer Price Index applicable to the Rochester,
New York, metropolitan area in the period between the commencement date of the
initial term of the Lease and the commencement date of the renewal term of the
Lease. This option shall be exercised by the Lessee no later than one hundred
twenty (120) days prior to the expiration date of the initial term of this
Lease.
2. Rent
Lessee covenants to pay to Lessor as a net minimum rent (the "Fixed
Rent") during the Lease Term the sum of TWO HUNDRED SEVENTY THOUSAND DOLLARS
($270,000.00) per annum for the principal of the Lease Term, or the sum of
TWENTY TWO THOUSAND FIVE HUNDRED DOLLARS ($22,500.00) per month.
The Fixed Rent shall be payable in advance in equal monthly
installments on the first day of each calendar month. If the Lease Term does not
commence on the first day of a month, the Fixed Rent for the month in which the
Lease Term commences shall be appropriately apportioned. The first installment
of Fixed Rent shall be paid simultaneously with the execution of this Lease.
Each date on which Fixed Rent is payable hereunder is hereinafter referred to as
a "Rent Payment Date".
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Lessee also covenants to pay, from time to time as provided in this
Lease, as Additional Rent: all other amounts and obligations which Lessee
assumes or agrees to pay under this Lease; interest at the rate of ten percent
per annum on such of the foregoing amounts and obligations as are payable to the
Lessor and are not paid within ten days after the due date (or, if a demand
therefore is required by the terms of this Lease, within ten days after such
demand), from the due date or such demand, as the case may be, until the payment
thereof; and interest at the rate of ten percent per annum on all installments
of Fixed Rent not paid on the due date, from the due date until paid. If Lessee
fails to pay any such Additional Rent, Lessor shall have all the rights, powers
and remedies provided for in this Lease or at law or in equity or otherwise in
the case of nonpayment of rent.
All Fixed Rent and Additional Rent (collectively hereinafter referred
to as "Rent") shall be paid in such coin or currency (or, subject to collection,
by good check payable in such coin or currency) of the United States of America
as at the time shall be legal tender for the payment of public and private
debts, at the office of Lessor as set forth above, or at such place and to such
person as Lessor from time to time may designate.
3. No Counterclaim or Abatement
All Rent shall be absolutely net to Lessor so that this Lease shall
yield to Lessor the full amount of the installments thereof throughout the Lease
t without deduction. All Rent shall be paid to Lessor without notice, demand,
counterclaim, setoff, deduction or defense, and nothing shall suspend, defer,
diminish, abate or reduce an Rent, except as otherwise specifically provided in
this Lease.
4. Use of Demised Premises
Lessee covenants that the Demised premises shall be used solely for the
design and manufacture of electrical and neon signage, and commercial awnings,
and related uses and for no other purpose, unless approved in writing by Lessor.
Lessee shall not do or permit any act or thing which is contrary to any
legal Requirements or Insurance Requirements, or which might impair the value or
usefulness of the Demised Premises or any part thereof.
Lessee shall no do or suffer any waste, damage, disfigurement or injury
to the Demised Premises.
5. Condition of Demised Premises
Lessee represents that Lessee has examined and is fully familiar with
the physical condition of the Demised Premises, the Improvements thereon, the
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sidewalks and strictures adjoining the same, subsurface conditions, and the
present tenancies, and uses thereof. Lessee accepts the same, without recourse
to Lessor, in the condition and state in which they now are, and agrees that the
Demised Premises complies in all respects with all requirements of this Lease.
Lessor makes no representation or warranty, express or implied in fact or by
law, as to the nature or condition of the Demised Premises, or its fitness or
availability for any particular use, or the income from or expenses of operation
of the Demised Premises, EXCEPT THAT Lessor represents that, during its
ownership of the Demised Premises, the Lessor: (i) has been in compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), (ii) has received all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct its
business and (iii) has been in compliance with all terms and conditions of any
such permit, license or approval where such noncompliance or failure to receive
permits, licenses or approvals referred to in clauses (i), (ii) or (iii) above
could have, individually or in the aggregate, a material adverse effect.
6. Maintenance and Repair
Lessee, at all times during the Lease Term and at Lessee's expense,
shall keep the Demised Premises, and all Improvements now or hereafter located
thereon, and all facilities and equipment thereon, and the adjoining sidewalks,
parking lots, curbs, vaults and vault space, if any, streets and ways, and all
appurtenances to the Demised Premises, in a good and clean order and condition
and in such condition as may be required by all Legal Requirements and Insurance
Requirements, and promptly shall make all necessary or appropriate repairs,
replacements and renewals thereof, whether extraordinary, or foreseen or
unforeseen. All repairs, replacements and renewals shall be equal in quality and
class to the original work. Lessee waives any right created by any law now or
hereafter in force to make repairs to the Demised Premises at Lessors' expense.
All property and equipment shall re returned to Lessor at the end of the Lease
Term in good working order. Lessee shall be responsible for all structural
repairs, and for the maintenance, repair and replacement of all electrical,
mechanical, plumbing, heating, ventilation and air conditioning systems. Lessee
shall be responsible for waste disposal and snow plowing.
7. Alterations and Additions
Lessee shall not be entitled to make any alterations of or additions to
the Demises Premises without the prior written consent of Lessor in each
instance.
The title to all additions, repairs and replacements to any
Improvements made during the Lease Term and any renewal thereof, forthwith shall
vest in Lessor, and said Improvements, additions, repairs and replacements shall
be and become the sole and absolute property of Lessor, without an obligation of
payment by lessor therefor.
8. Impositions
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Subject to Article 11 relating to contests, Lessee, at Lessee's expense, shall
bear, pay and discharge all Impositions at least twenty days prior to the last
day upon which the same may be paid without any interest, penalty, fine or cost
being added for the late payment thereof, and shall furnish to Lessor for
inspection within thirty days after request, official receipts of the
appropriate taxing authority or other proof satisfactory to Lessor evidencing
such payment. If by law any Imposition may be paid in installments, Lessee shall
be obligated to pay only those installments as they become due from time to time
before any interest, penalty, fine or cost may be added thereto. Any Imposition
relating to the fiscal period of the taxing authority, part of which is included
within the Lease Term and a part of which precedes or extends beyond the Lease
Term, shall, if Lessee shall not be in default hereunder, be apportioned between
Lessor and Lessee as of the commencement of expiration, as the case may be, of
the Lease Term.
At the option of Lessor, which may be exercised by written notice to
Lessee, Lessee shall pay to Lessor, on each Rent Payment Date during the Lease
Term, an amount equal to one twelfth (1/12) of all Impositions becoming due
within the ensuing twelve months, as reasonably estimated by Lessor. Such
estimate, and consequently the monthly installments, may be adjusted at any time
by Lessor. Each year Lessor shall provide to Lessee an accounting, and if such
accounting shows that the total of the monies received hereunder exceeds the
amounts paid by Lessor for all Imposition, Lessee shall be credited for the
difference against the next installments becoming due hereunder. If Immediately
prior to any Rent Payment Date any Imposition is due, in whole or in part, or if
on the rendering of an accounting as aforesaid a deficiency exists or may
reasonably be expected, Lessee shall pay the same to Lessor on demand. The
obligations of the parties hereunder shall survive the expiration or termination
of the Lease Term.
9. Compliance With Requirements
Subject to Article 11 relating to contests, Lessee, at all time during
the Lease Term and at Lessee's expense, promptly and diligently shall: comply
with all Legal Requirements and Insurance Requirements, whether or not
compliance therewith shall require structural changes in the Improvements or
interfere with the use and enjoyment of the Demised Premises or any part
thereof; comply with any instruments of record at the time affecting the Demised
premises or any part thereof including the instruments listed in Exhibit B
hereto; and procure, maintain and comply with all permits, licenses, franchises
and other authorizations required for any use of the Demised Premises or any
part thereof then being made, including without limitation, all permits,
licenses, and franchises which Lessee is required to obtain for the proper
erection, installation, operation or maintenance of the Improvements or Lessee's
Equipment or any part thereof.
10. Liens
Lessee shall not directly or indirectly create or permit to be created
or to remain, and shall discharge, any mortgage, lien, security interest,
encumbrance or charge on, pledge of or conditional sale or other retention
agreement with respect to the Demised Premises or any part thereof, Lessee's
interest therein, or any Fixed Rent or other Rent payable under this Lease,
other than: the Occupancy Leases; liens for impositions not yet payable, or
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payable without the addition of any fine, penalty, interest or cost for
nonpayment, or being contested as permitted in Article 11 hereof; and the liens
of mechanics, materialmen, suppliers or vendors, or right thereto, incurred in
the ordinary course of business for sums which under the terms of the related
contract are not at the time due, provided that adequate provisions of the
following paragraph are complied with.
If, in connection with any work being performed by or for Lessee or any
subtenant or in connection with any materials being furnished to Lessee or any
subtenant, and mechanic' lien or other lien or charge shall be filed or made
against the Demised Premises or any part thereof, or if any such lien or charge
shall be filed or made against Lessor, the Lessee, at Lessee's expense, within
thirty days after such lien or charge shall have been filed or made, shall cause
the same to be canceled and discharged or record by payment thereof or filing a
bond or otherwise. Lessee promptly and diligently shall defend any suit, action
or proceeding which may be brought for the enforcement of such lien or charge;
shall satisfy and discharge any judgment entered therein within thirty days from
the entering of such judgment by payment thereof or filing a bond or otherwise;
and on demand shall pay all damages, costs and expenses, including reasonable
attorneys' fees, suffered or incurred by Lessor in connection therewith.
Nothing contained in this Lease shall constitute any consent or request
by Lessor, express or implied, for the performance of any labor or services or
the furnishing of any materials or other property in respect of the Demised
Premises or any part thereof, or as giving Lessee any right, power or authority
to contract for or permit the performance of any labor or services or furnishing
of any materials or other property in any fashion that would permit the filing
or making of any lien or claim against Lessor or the Demised Premises.
11. Permitted Contests
Lessee, at Lessee's expense, after prior written notice to Lessor, may
contest, by appropriate legal proceedings conducted in good faith and with due
diligence, the amount or validity or application, in whole or in part, of any
Imposition or any Legal Requirement, or the application of the instruments
referred to in Exhibit B hereto, provided that: Lessee shall first make all
contested payments, under protest if Lessee desires, unless such proceedings
shall suspend the collection thereof from Lessor, from any Rent and from the
Demised Premises; neither the Demised Premises, nor any part thereof or interest
therein, nor any Rent would be in any danger of being sold, forfeited, lost or
interfered with; in the case of a Legal Requirement, Lessor would not be in any
danger of any additional civil or criminal liability for failure to comply
therewith and the Demised Premises would not be subject to the imposition of any
Lien a result of such failure; and Lessee shall have furnished such security, if
any, as may be reasonably requested by Lessor.
12. Utility Service
Lessee shall pay all charges for all public or private utility services
and all sprinkler systems and protection services at any time rendered to or in
connection with the Demised Premises or any part thereof; shall comply with all
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contracts relating to any such services; and shall do all other things required
for the maintenance and continuance of all such services.
13. Insurance
Lessee, at all times during the Lease Term and at Lessee's expense,
shall provide and maintain in full force and effect with insurers approved by
Lessor; (a) insurance with respect to the Improvements against loss or damage by
fire, lightning, windstorm, hail, explosion, riot, riot attending strike, civil
commotion, aircraft, vehicles, smoke and other risks from time to time included
under "extended coverage" policies, in an amount equal to at least 100% of the
full replacement value of the Improvements, and in any event in an amount
sufficient to prevent Lessor or Less from becoming coinsurer of any loss under
applicable policies, which shall be written on a replacement cost basis; (b)
public liability and property damage insurance protecting Lessor against any and
all liability occasioned by negligence, occurrence, accident or disaster in or
about the Demised Premises or any part thereof, or the Improvements now or
hereafter erected thereon, or adjoining sidewalks, curbs, vaults and vault
space, if any, streets or ways, or any appurtenances thereto, in amounts
approved from time to time by Lessor, which amounts at the date hereof shall be,
in the case of public liability, $1,000,000.00 per person and $3,000,000.00 per
accident, and in the case of property damage, $500,000.00; (c) explosion
insurance in respect of any steam and pressure boilers and similar apparatus
located on the Demised Premises in amounts approved by Lessor, which amount at
the date hereof shall be $500,000.00 (d) war risk insurance when and to the
extent obtainable from the Federal Government or any agency thereof; (e)
appropriate workers' compensation or other insurance against liability arising
from claims of workers in respect of and during the period of any work on or
about the Demised Premises; (f) if the Demised Premises are located in an area
which has been identified by the Secretary of Housing and Urban Development as a
flood hazard area, flood insurance in and amount at least equal to the maximum
limit of coverage available for the Demised Premises under the National Flood
Insurance Act of 1968; and (g) insurance against such other hazards and in such
amounts as is customarily carried by prudent owners and operators of similar
properties, and as Lessor reasonably may request. In addition, Lessee, at
Lessee's expense, shall keep the rental value of the Improvements insured
against loss or damage by all risks from time to time included under "extended
coverage" policies, in an amount designated by Lessor from time to time , which
amount shall not exceed the aggregate of: the annual Fixed Rent and all other
Rent to be paid by Lessee in the succeeding twelve month period, as estimated by
Lessor; all Impositions payable by Lessee hereunder of the ensuing twelve month
period, as estimated by Lessor if not then fixed; plus the cost of obtaining,
for a one year period, all insurance the required to be maintained by Lessee
under this Article 13. Lessee shall comply with such other requirements as
Lessor from time to time reasonably may request for the protection by insurance
of Lessor's interests.
All insurance maintained by Lessee pursuant to this Article 13: (a)
shall, except for workers' compensation insurance, name Lessor and Lessee as
insureds, as their respective interests may appear, and shall include an
effective waiver by the issuer o all rights of subrogation against any named
insured or such insured's interest in the Demised Premises or any income derived
therefrom; (b) shall provide that all insurance claims for losses of less than
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$10,000.00 shall be adjusted by Lessee, and all insurance claims for losses of
such amount or more, except for workers' compensation insurance which shall be
adjusted by Lessee, shall be adjusted by Lessor; (c) shall provide, except in
the case of public liability and workers' compensation insurance, that insurance
proceeds shall be payable to Lessor for the benefit of Lessor and Lessee, as
their respective interests may appear; (d) shall provide that any losses shall
be payable notwithstanding any act or failure to act or negligence of Lessor or
Lessee or any other person; (e) shall provide that no cancellation , reduction
in amount or material change in coverage thereof shall be effective until at
least ten days after receipt by Lessor and Lessee of written notice thereof; and
(f) shall be satisfactory in all other respects to Lessor acting reasonably.
Upon the execution of this Lease and thereafter not less than fifteen
days prior to the expiration date of ay policy delivered pursuant to this
Article 13, Lessee shall deliver to Lessor the originals of all policies or
renewal policies, as the case may be, required by this Lease, bearing notations
evidencing the payment of the premiums therefor.
If at any time Lessee shall neglect or fail to provide or maintain
insurance or to deliver insurance policies in accordance with this Article 13,
Lessor may effect such insurance as agent for Lessee, by taking out policies in
companies selected by Lessor, and the amount of the premiums paid for such
insurance shall be paid by Lessee to Lessor on demand.
14. Indemnification By Lessee
Lessee shall indemnify and hold Lessor harmless from and against all
liabilities, obligations, claims, damages, fines, penalties, interest, causes of
action, costs and expenses, including attorneys' fees (but excluding any income
or excess profits or franchise taxes of Lessor determined on the basis of
general income or revenue or any interest or penalties in respect thereof),
imposed upon or incurred by or asserted against Lessor or the Demised Premises
by reason of the occurrence or existence of any of the following, whether or not
resulting from any negligent act or omission of the Lessor: Ownership of the
Demised Premises or any interest therein, or receipt of any rent or other sum
therefrom; any accident, injury to or death of persons (including workers) or
loss of or damage to property occurring, or claimed to have occurred, on or
about the Demised Premises or any part thereof, or any Improvements now or
hereafter erected thereon, or the adjoining sidewalks, curbs, vaults or vault
space, if any, streets or ways, or appurtenances thereto; any use or condition
of the Demised Premises or any part thereof, or any Improvements now or
hereafter erected thereon, or the adjoining sidewalks, curbs, vaults or vault
space, if any, streets or ways, or appurtenances thereto; any failure on the
part of Lessee promptly and fully to comply with or perform any of the terms,
covenants or conditions of this Lease; or performance of any labor or services
or the furnishing of any materials or other property in respect of the Demised
Premises or any part thereof. In the case any suit, action or proceeding is
brought against Lessor or filed against the Demised Premises or any part thereof
by reason of any such occurrence, Lessee, upon Lessor's request and at Lessee's
expense, shall resist and defend such suit, action or proceeding, or cause the
same to be resisted and defended by counsel designated by Lessee and approved by
Lessor. The obligations of Lessee under this Article 14 shall survive the
expiration or termination of the Lease Term.
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15. Damage to or Destruction of the Demised Premises
If there is any material damage to or destruction of the Demised
Premises or any part thereof, Lessee promptly shall give written notice thereof
to Lessor, generally describing the nature and extent of such damage or
destruction.
If there is damage to or destruction of the Demised Premises or any
part thereof, Lessee, at Lessee's expense whether or not the insurance premises,
if any, on account of such damage or destruction shall be sufficient for the
purpose, promptly shall commence and complete, subject to Unavoidable Delays,
the restoration, replacement or rebuilding of the Demised Premisses as nearly as
possible to its value, condition and character immediately prior to such damage
or destruction, with such alterations and additions as may be made at Lessee's
election pursuant to and subject to the terms, covenants and conditions of
Article 7. Pending the completion of such Restoration, Lessee shall perform all
temporary work and take all such actions as may be necessary or desirable to
protect and preserve the Demised Premises.
Insurance proceeds received by Lessor on account of any damage to or
destruction of the Demised Premises or any part thereof, less the costs and
expenses incurred by Lessor or Lessee in the collection thereof, including
without limitation fees and expenses of adjustors and attorneys, shall be
applied as hereinafter provided.
Net insurance proceeds received on account of any damage to or
destruction of the Demised Premises or any pat thereof, unless Lessee is in
default under this Lease, shall be paid to Lessee or as Lessee may direct, from
time to time as Restoration progresses, to pay or to reimburse Lessee for the
cost or Restoration, upon written request of Lessee accompanied by evidence,
satisfactory to Lessor, that the amount requested has been paid or is then due
and payable and is properly a part of such cost, that there are no mechanics' or
similar liens for labor or materials theretofore supplied in connection with the
Restoration, and that the balance of said proceeds after making the payment
requested will be sufficient to pay the balance of the cost of Restoration. Upon
receipt by Lessor of evidence satisfactory to Lessor that the Restoration has
been completed and the cost thereof has been paid in full, and that there are no
mechanics' or similar liens for labor or materials supplied in connection
therewith, the balance, if any, of such proceeds shall be paid to Lessor.
Any insurance proceeds held by Lessor on any termination of this Lease
and not required to be paid to Lessee pursuant to this Article 15, shall be paid
to and retained by Lessor.
16. Taking of the Demised Premises
If there is a Taking of the fee of the entire Demised Premises, other
than for a temporary use, this Lease shall terminated as of the date of such
Taking. In case of a Taking, other than for temporary use, of such perpetual
easement on the entire Demised Premises, or of such a substantial part of the
Demised Premises, as shall result, in the good faith judgment of Lessor, in the
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Demised Premises remaining after such Taking (even after Restoration where made)
being unsuitable for the use contemplated in this Lease, Lessee may terminate
this Lease by written notice e to Lessor given within sixty days after such
Taking, as of a date specified in such notice within ninety days after such
Taking . Any Taking of the Demised Premises of the character referred to in this
Article 16, which results in the termination of this Lease, is referred to
herein as a "Total Taking".
If there is a taking of the Demised Premises other than a Total Taking,
this Lease shall remain in full force and effect as to the principal of the
Demised Premises remaining immediately after such Taking, without any abatement
or reduction of Rent, except as may be expressly provided in this Article 16,
and Lessee, at lessee's expense whether or not the awards or payments, if any,
on account of such Taking will be sufficient for the purpose, promptly shall
commence and complete, subject to Unavoidable Delays, restoration of the Demised
Premises as nearly as possible to its value, condition and character immediately
prior to such Taking, except to any reduction in area caused thereby, provided
that in the case of a Taking for temporary use Lessee shall not be required to
effect Restoration (other that temporary work and actions necessary or desirable
for the protection of the Demised Premises) until such Taking for a temporary
use is terminated.
Awards and other payments on account of a Taking, less fees, costs and
expenses incurred in connection therewith, shall be applied as follows:
(a) Net awards and payments received on account of a Taking, other than
a Taking for temporary use or a Total Taking, shall be held and applied from
time to time as Restoration progresses, to pay or to reimburse Lessee for the
cost of Restoration, upon written request of Lessee accompanied by evidence,
satisfactory to lessor, that the amount requested has been properly paid or is
then due and payable and is properly a par to such cost, that there are no
mechanics' or similar liens for labor or materials theretofore supplied in
connection with the Restoration, and that the balance of said proceeds after
making the payment requested will be sufficient to pay the balance of the cost
of Restoration. Upon completion of the Restoration, the balance, if any, of such
awards and payments shall be paid to and retained by Lessor.
(b) Net awards and payments received on account of a Taking for
temporary use shall be held and applied to the payment of Rent until such Taking
for temporary use is terminated and Restoration , if any, has been completed,
provided that, if any portion of such award or payment is made by reason of any
damage to or destruction of the Demised Premises, such portion shall be held and
applied as provided in the first sentence of clause (a) of this Article 16. The
balance, if any, of such awards and payments, unless Lessee is in default
hereunder, shall be paid to Lessee.
(c) All Awards and payments received on account of a Total Taking shall
be paid to Lessor.
Notwithstanding the foregoing, if at the time of any Taking or at any
time thereafter, Lessee shall be in default under this Lease and such default
shall be continuing, Lessor is hereby authorized and empowered, in the name and
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on behalf of Lessee and otherwise, to file and prosecute Lessee's claim, if any,
for an award on account of any Taking and to collect such award and apply the
same, after deducting all fees, costs and expenses incident to the collection
thereof, to the during of any then existing default under this Lease.
If any portion of an award or other payment received on account of a
Taking shall be paid to Lessor pursuant to the second sentence of clause (a) of
this Article 16, each installment of Fixed Rent hereunder shall be reduced,
commencing with the first Rent Payment Date following the date of such payment,
by an amount to be computed by multiplying such installment in effect prior to
such date by a fraction, the numerator of which is the amount of the award or
payment make to lessor in connection with such Taking after deduction of
Lessor's expenses in collection of such awards and payments, including without
limitation fees and expenses of appraisers and attorneys, and the denominator of
which is the fair market value of the Demised Premises prior to such Taking as
determined by Lessor, acting reasonably, as reduced by the amount of any other
such award or payment previously made to Lessor pursuant to the second sentence
of clause (a) of this Article 16.
Revocation by any public authority of any license or permit to maintain
or use any vault or other area within the streets adjoining the Demised
Premises, shall not affect this Lease, or diminish any Rent payable by Lessee
hereunder, or diminish any of Lessee's other obligations hereunder.
17. Quiet Enjoyment.
Lessor covenants that so long as Lessee is not in default hereunder in
the payment of any Rent or compliance with or the performance of any of the
terms, covenants or conditions of this Lease on Lessee's part to be complied
with or performed, Lessee shall not be hindered or molested by Lessor in
Lessee's enjoyment of the Demised Premises.
18. Right to Cure Lessee's Default
If Lessee fails to make any payment or to comply with or perform any
term, covenant or condition of this Lease to be complied with or performed by
Lessee, Lessor may, but shall be under no obligation to, after thirty days'
notice to lessee (or upon shorter notice, or without notice, if necessary to
meet an emergency situation or lime limitation of a Legal Requirement), make
such payment or perform or cause to be performed such work, labor, services,
acts or things, and take such other steps as Lessor may deem advisable to comply
with any such term, covenant or condition which is in default. Entry by Lessor
upon the Demised Premises for such purpose shall not waive or release Lessee
from any obligation or default hereunder. Lessee shall reimburse Lessor (with
interest at a rate of ten percent per annum) for all sums so paid by Lessor and
all costs and expenses incurred by Lessor in connection with the making of any
payments, the performance of any act or other steps taken by Lessor pursuant to
this Article 18.
19. Events of Default and Termination
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If any one or more of the following events ("Events of Default") shall
occur:
(a) if Lessee shall fail to pay any Fixed Rent when as the same becomes
due and payable; or
(b) if Lessee shall fail to pay any Rent, other than Fixed Rent, when
and as the same becomes due and payable and such failure shall continue for more
than ten days; or
(c) if Lessee shall fail to comply with or perform any term, covenant
or condition of Articles 8, 9, 10, or 13, and such failure shall continue for
more than thirty days after the Lessee receives notice of such failure,
regardless of the source of such notice; or
(d) if Lessee shall fail to comply with or perform any other term,
condition or covenant hereof, and such failure shall continue for more than
thirty days after notice thereof from Lessor, and Lessee within said period,
subject to Unavoidable Delays, shall not commence with due diligence and
dispatch the curing of such default, or , having so commenced, thereafter shall
or neglect to prosecute or complete with due diligence and dispatch the curing
of such default for reasons other than Unavoidable Delays; or
(e) If Lessee shall make a general assignment for the benefit of
creditors, or shall admit in writing Lessee's inability to pay Lessee's debts as
thy become due, or shall file a petition in bankruptcy, or shall be adjudicated
a bankrupt or insolvent, or shall file a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under ay present or future statue, law or regulation, or shall file any
answer admitting, or shall fail to contest, the material allegations of a
petition filed against Lessee in any such proceeding, or shall seek or consent
to or acquiesce in the appointment of any trustee, receiver or liquidator of
Lessee or any material part of Lessee's properties; or
(f) If, within ninety days after the commencement of any proceeding
against Lessee seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future statute, law or regulation, such proceeding shall not have been
dismissed, or if , within ninety days after the appointment without the consent
or acquiescence of Lessee, of any trustee, receiver or liquidator of Lessee or
of any part of Lessee's properties, such appointment shall not have been
discharged;
(g) if a final judgment for the payment of money shall be rendered
against Lessee and, within sixty days after the entry thereof, such judgment
shall not have been discharged or execution thereof stayed pending appeal, or
if, within sixty days after the expiration of any such stay, such judgment shall
not have been discharged;
then, and in any such Event of Default, regardless of the pendency of ay
proceeding which has or might have the effect of preventing Lessee from
complying with the terms, covenants or conditions of this Lease, Lessor, at any
time thereafter may give a written termination notice to Lessee, and on the date
11
specified in such notice this Lease shall terminate and, subject to Article 24,
the Lease term shall expire and terminate by limitation, and all rights of
Lessee under this Lease shall cease, unless before such date (i) all arrears of
Rent (with interest at the rate of ten percent per annum) and all costs and
expenses, including reasonable attorneys' fees, incurred by or on behalf of
Lessor hereunder, shall have been paid by Lessee, and (ii) all other defaults at
the time existing under this lease shall have been fully remedied to the
satisfaction of Lessor. Lessee shall reimburse Lessor for all costs and
expenses, including reasonable attorneys' fees, incurred by or on behalf of
Lessor occasioned by or in connection with any default by Lessee under this
Lease.
20. Repossession
If an Event of Default shall have occurred and be continuing, Lessor,
whether or not the Lease Term shall have been terminated pursuant to Article 19,
may enter upon and repossess the Demised Premises or any part thereof by force,
summary proceedings, ejectment or otherwise, and may remove Lessee and all other
persons and any and all property therefrom.
21. Reletting
At any time or from time to time after the repossession of the Demised
Premises or any part thereof pursuant to Article 20, whether or not the Lease
Term shall have been terminated pursuant to Article 19, Lessor may (but shall be
under no obligation to) relet the Demised Premises or any part thereof for the
account of Lessee, for such term or terms (which may be greater than or less
than the period which would have otherwise have constituted the balance of the
Lease Term) and on such conditions ( which may include concessions of free rent)
and for such uses as Lessor, in Lessor's absolute discretion, may determine, and
may collect and receive the rents therefrom. Lessor shall not be responsible or
liable for nay failure to relet the Demised Premises or any part thereof or for
any failure to collect any rent due upon such reletting.
22. Assignments of Subrents
Lessee hereby irrevocably assigns to Lessor all rents due or to become
due from any assignee of Lessee's interest hereunder and any sublease or any
tenant or occupant of the Demised Premises or any part thereof, together with
the right to collect and receive such rents, provided that, so long as Lessee is
not in default under this Lease, Lessee shall have the right to collect such
rents for Lessee's own use and purposes. Upon any default by Lessee under this
Lease, Lessor shall have absolute title to such rents and the absolute right to
collect the same. Lessor shall apply to the Rent due under this Lease the net
amount (after deducting all costs and expenses incident to the collection
thereof and the operation and maintenance, including repairs, of the Demised
Premises) of any rents so collected and received by Lessor.
23. Survival of Lessee's Obligations and Damages
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No expiration or termination of the Lease Term pursuant to this Lease,
by operation of Law or otherwise (except as expressly provided herein), and no
repossession of the Demised Premises or any part thereof pursuant to this Lease
or otherwise, shall relieve Lessee of Lessee's obligations or liabilities
hereunder, all of which shall survive such expiration, termination or
repossession.
In the event of any such expiration, termination or repossession,
Lessee shall pay to Lessor all Rent up to the time of such expiration,
termination or repossession, together with all costs and expenses incurred by
Lessor in connection with such termination or repossession including attorneys'
fees, and thereafter Lessee, until the end of what would have been the Lease
Term in the absence of such expiration, termination or repossession, and whether
or not the Demised Premises or any part thereof shall have been relet, shall be
liable to Lessor fork and shall pay to Lessor, as liquidated and agreed and
current damages for Lessee's default, (a) all Rent which would be payable under
this Lease by Lessee in the absence of such expiration, termination or
repossession, less (b) all net rents collected by Lessor from the tenants or
subtenants of the Demised Premises, if any, and the net proceeds, if any, of any
reletting affected for the account of Lessee pursuant to Article 21 after
deducting from such proceeds all lessor's expenses in connection with such
reletting and other sums owed Lessor, including without limitation all
repossession costs, brokerage commissions, legal and accounting expenses,
attorneys' fees, employees' expenses, reasonable alteration costs, and expenses
of preparation for such reletting. Lessee shall pay such current damages monthly
on the Rent Payment Dates applicable in the absence of such expiration ,
termination or repossession, and Lessor shall be entitled to recover the same
from Lessee on each such date.
At any time after such expiration, termination or repossession, whether
or not Lessor shall have collected any current damages as aforesaid, Lessor
shall be entitled to recover from Lessee, and Lessee shall pay to Lessor on
demand, as and for liquidated and agreed final damages for Lessee's default and
in lieu of all current damages beyond the date of such demand, an amount equal
to the excess, if any, of (a) all Rent which would be payable under this Lease
from the date of such demand (or, if it be earlier, the date to which Lessee
shall have satisfied in full Lessee's obligation under the proceeding paragraph
of this Article 24 to pay current damages) until what would be the then
unexpired Lease Term in the absence of such expiration, termination or
repossession over (b) the then fair net rental value of the Demised Premises for
the same period. Upon the payment of such final damages, this Lease, if not
already terminated, shall be deemed terminated. If any statute or rule of law
shall validly limit the amount of such liquidated final damages to less than the
amount above agreed upon, Lessor shall be entitled to the maximum amount
allowable under such statute or rule of law.
24. Injunction
Lessor, in addition to all other rights, powers and remedies, and
notwithstanding the concurrent pendency of summary or other dispossess
proceedings, at Lessor's option, shall have the right at all times during the
Lease Term to restrain by injunction any violation or attempted violation by
Lessee of any of the terms, covenants or conditions of this Lease, and to
enforce by injunction any of such terms, covenants or conditions.
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25. Waivers
To the extent permitted by law, Lessee waives: any notice of reentry or
of the institution of legal proceedings to that end; any right of redemption,
reentry or repossession; any right to trial by jury in any action or proceeding
or in any matter in any way connected with this Lease or the Demised premises;
and the benefit of any laws now or hereafter in force exempting property for
rent or for debt.
No failure by the Lessor or Lessee to insist upon the strict
performance of and compliance with any term, covenant or condition hereof or to
exercise or enforce any right, power or remedy consequent upon a breach thereof,
and no submission by Lessee or acceptance by Lessor of full or partial Rent
during the continuance of any such breach, shall constitute a waiver of any such
breach or of any such term, covenant or condition. No waiver of any breach of
any term, covenant or condition of this Lease shall affect or alter this Lease,
which shall continue in full force and effect, or the respective rights, powers
or remedies of Lessor or Lessee with respect to any other then existing or
subsequent breach.
26. Lessor's Remedies Cumulative
All of the rights, powers and remedies of Lessor provided for in this
Lease or now or hereafter existing at law or in equity, or by statute or
otherwise, shall be deemed to be separate, distinct, cumulative and concurrent.
No one or more of such rights, powers or remedies, nor any mention of reference
to any one or more of them in this Lease, shall be deemed to be in the exclusion
of, or a waiver of, any other rights, powers or remedies provided for in this
Lease, or now or hereafter existing at law or in equity, or by statute or
otherwise. The exercise or enforcement by Lessor of any one or more of such
rights, powers or remedies shall not preclude the simultaneous or later exercise
or enforcement by Lessor of any or all of such other rights, powers or remedies.
27. Assignment, Subletting and Mortgages
Lessee expressly covenants that Lessee shall not voluntarily or
involuntarily assign, encumber, mortgage or otherwise transfer this Lease, or
sublet the Demised Premises or any part thereof, or suffer or permit the Demised
Premises or any part thereof to be used or occupied by others, by operation of
law or otherwise, without the prior written consent of Lessor in each instance.
Absent such consent, any act or instrument purporting to do any of the foregoing
shall be null and void.
If this Lease is assigned, whether or not in violation of the terms of
this Article 27, Lessor may collect Rent from the assignee. If the Demised
Premises or any part thereof are sublet or occupied by anybody other than
Lessee, Lessor, after any default by Lessee, may collect rent from the subtenant
or occupant, and apply the net amount collected tot he Rent due hereunder. Such
collection of rent by Lessor shall not be deemed a waiver of the provisions
14
hereof, the acceptance of the assignee, subtenant or occupant as a tenant, or a
release of Lessee from the further observance and performance by Lessee of the
terms, covenants and conditions of this Lease.
The consent by Lessor to an assignment, encumbrance, transfer or
subletting shall not in any way be deemed consent to any further assignment,
encumbrance, transfer or subletting. In no event shall any permitted sublessee
assign or encumber its sublease or further sublet all or any portion of its
sublet space, or otherwise suffer or permit the sublet space or any part thereof
to be used or occupied by others, without the prior written consent of Lessor in
each instance, and each permitted sublease shall so provide in its terms.
If lessee requests Lessor's consent to a specific assignment or
subletting, Lessee shall first submit to Lessor in writing: the name and address
of the proposed assignee or sublessee; a counterpart of the proposed agreement
of assignment or sublease and all other instruments or agreements pertaining
thereto; such information as to the nature and character of the business of the
proposed assignee or sublessee and as to the nature of its proposed use of the
space, as Lessor reasonably may request; banking, financial or other credit
information relating to the proposed assignee or sublessee sufficient to enable
Lessor to determine the financial responsibility and character of the proposed
assignee or sublessee; and a statement of all sums or other consideration paid
or to be paid to Lessee by or for the account of the assignee or sublessee for
or in connection with such assignment or sublease, including without limitation
sums paid or to be paid for the sale or rental of Lessee's fixtures, leasehold
improvements, equipment, furniture or other personal property.
Any such consent of Lessor shall be subject to the terms of this Lease
and conditional upon there being no default by Lessee, beyond any grace period,
under any term, covenant or condition of this Lease at the time that Lessor's
consent is requested and on the date of the commencement of the term of any such
proposed sublease or the effective date of any such proposed assignment.
Upon receiving lessor's written consent, a duly executed copy of the
sublease or assignment shall be delivered to Lessor within thirty days after
execution thereof. Any such sublease shall provide that the sublessee shall
comply with all applicable terms, covenants and conditions of this Lease to be
observed or performed by Lessee hereunder. Any such assignment shall contain an
assumption by the assignee of all of the terms, covenants and conditions of this
Lease to be observed or performed by Lessee.
The transfer of a majority of the issued and outstanding capital stock
of any corporate tenant or subtenant of this Lease or of a majority of the total
interest in any partnership tenant or subtenant, however accomplished, and
whether in a single transaction or in a series of related or unrelated
transactions, shall be deemed an assignment of this Lease or of such sublease.
The transfer of outstanding capital stock of any corporate tenant or subtenant,
for purpose of this Article 27, shall not include a sale of such stock by
persons other than those deemed "insiders" within the meaning of the Securities
Exchange Act of 1934 as amended, effected through any "over the counter" market
or recognized exchange.
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28. Subordination and Attornment
This Lease, and all rights of Lessee hereunder, are and shall be
subject to and subordinated in all respects to all mortgages which may now or
hereafter affect the Demised Premises, whether or not such mortgages shall also
cover other lands or buildings, to each and every advance make or hereafter to
be made under such mortgages and to all renewals, modifications, replacements,
spreaders, consolidations and extensions of such mortgages. In the event of any
sale of the Demised Premises in a foreclosure of any such mortgage or the
exercise by the holder of any such mortgages of any other remedies provided for
by law or in such mortgage, Lessee, upon written request of the holder of the
mortgage or the purchaser at such foreclosure or any person succeeding to the
interest of the holder of the mortgage, shall attorn to such holder, purchaser
or successor in interest, as the case may be, without change in the terms,
covenants or conditions of this Lease. If such a request is made, this Lease
shall not be deemed to be terminated by any foreclosure proceedings or other
remedies for the enforcement of the mortgage by such holder, purchaser or
successor in interest. The provisions of this Article 28 shall be self-operative
and no further instrument of subordination and/or attornment shall be required..
In confirmation of such subordination and/or attornment, Lessee promptly shall
execute and deliver at Lessee's expense any instrument that Lessor or the holder
of any such mortgage may reasonably request to evidence such subordination and/
attornment; and Lessee hereby irrevocably constitutes and appoints Lessor as
Lessee's attorney-in-fact, coupled with an interest, to execute, acknowledge and
deliver any such instruments for and on behalf of Lessee.
29. Entry by Lessor
Lessor and the authorized representatives of Lessor shall have the
right to enter the Demised Premises at all reasonable times for the purpose of
inspecting the same or for the purpose of doing any work permitted to be done by
Lessor under this Lease, and to take all such actions thereon as may be
necessary or appropriate for any other purpose. Nothing contained in this Lease
shall create or imply any duty on the part of Lessor to make any such inspection
or do any such act. Lessor and representatives of Lessor shall have the right to
enter the Demised Premises at all reasonable times for the purpose of showing
the Demised Premises to prospective purchasers or mortgagees, and at any time
during the twelve month period preceding the expiration or termination of this
Lease for the purpose of showing the same to prospective tenants, and within
said period to display on the Demised Premises advertisements for sale or
letting if such advertisements do not interfere unreasonably with the business
then conducted on the Demised Premises. No such entry shall constitute an
eviction of Lessee.
30. Conveyance by Lessor
If the original or any successor Lessor shall convey or otherwise
dispose of the Land and Improvements, Lessor shall thereupon be released from
all obligations and liabilities of Lessor under this Lease (except those
accruing prior to such conveyance or other disposition), and such obligations
and liabilities shall be binding solely on the then owner of the Land and
Improvements.
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31. No Merger of Title
There shall be no merger of the leasehold estate created by this Lease
with the fee estate in the Demised Premises by reason of the fact that the same
person may own or hold (a) the leasehold estate created by this Lease or any
interest therein, and (b) the fee estate in the Demised Premises or any interest
in such fee estate. No such merger shall occur unless and until all persons
having any interest in the leasehold estate created by this Lease, an in the fee
estate in the Demised Premises, shall join in a written instrument effecting
such merger and shall duly record the same.
32. Acceptance of Surrender
No modification, termination or surrender of this Lease or surrender of
the Demised Premises or any part thereof or of any interest therein by Lessee
shall be valid or effective unless agreed to and accepted in writing by Lessor,
and no act by any representative or agent of lessor, other than such a written
agreement and acceptance, shall constitute an acceptance thereof.
33. End of Lease Term
Upon the expiration or termination of the Lease Term, Lessee shall
quit, surrender and deliver to Lessor the Demised Premises with the Improvements
thereon in good order and condition, ordinary wear and tear excepted, and shall
remove all Lessee's equipment therefrom.
34. Brokerage
Lessor and Lessee each represents and warrants to the other that such
party has not dealt with any broker or finder in connection with the Demised
Premises or this Lease. Lessor and Lessee each agrees to indemnify and hold the
other harmless from and against any and all commission, liability, claim, loss,
damage or expense, including reasonable attorneys' fees, arising from any claims
for brokerage or any other fee or commission by any person with whom such party
has dealt.
35. Definitions
As used in this Lease, the following terms have the following
respective meanings:
"default" -- any condition or event which constitutes, or which after notice or
lapse of time or both would constitute, and Event of Default.
"Demised Premises" -- as defined in Article 1.
"Event of Default" -- as defined in Article 19.
" Fixed Rent" -- as defined in Article 2.
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"Impositions" -- all taxes, assessments (including without limitation, all
assessments for public improvements or benefits, whether or not commenced or
completed prior to the date hereof and whether or not completed within the Lease
Term), water and sewer rents and charges, charges for public utilities, excises,
levies, license fees, permit fees, inspection fees and other authorization fees
ant other charges of every nature and kind whatsoever (including all interest
and penalties thereon), in each case, whether general or special, ordinary or
extraordinary, foreseen or unforeseen, of every character, which at any time
during or in respect of the Lease Term may be assessed, levied, charged,
confirmed or imposed on or in respect of or be a lien upon (a) the Demised
Premises or any part thereof or any rent therefrom or any estate, right or
interest therein, or (b) any occupancy, use or possession of or activity
conducted on the Demised Premises or any bar thereof. The term "Impositions"
shall exclude, however, any income taxes assessed against Lessor, franchise,
estate inheritance or transfer taxes of Lessor, or any tax or charge in
replacement or substitution of the foregoing or of a similar character;
provided, however, that if at any time during the Lease Term the ten prevailing
method of taxation or assessment shall be changed so that the whole or any part
of the Impositions theretofore payable by Lessee as above provided, shall
instead be levied, charged, assessed or imposed whole or partially on the rents
received by Lessor from the Demised Premises, or shall otherwise be imposed
against Lessor in the form of a franchise tax or otherwise, then Lessee shall
pay the same (and the same shall be deemed Impositions) at least twenty days
prior to the last day upon which the same may be paid without interest or
penalty for the late payment thereof.
"improvements" -- as defined in Article 1.
"Insurance Requirements" -- all terms of any insurance policy covering or
applicable to the Demised Premises or any part thereof, all requirements of the
issuer of any such policy, and all orders, rules, regulations and other
requirements of the National Board of Fire Underwriters, or its successors or
any other body exercising similar functions, applicable to or affecting the
Demised Premises or any part thereof or any use or condition of the Demised
Premises or any part thereof.
"Land" -- as defined in Article 1.
"Lease" -- this Lease, as at the time amended, modified or supplemented.
"Lease Term" -- as Defined in Article 1, as the same any be extended or renewed.
"Legal Requirements" -- all laws, statutes, codes, acts, ordinances, orders,
judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorization, directions and requirements of all governments, departments,
commissions, boards, courts, authorities, agencies, officials and officers,
foreseen or unforeseen, ordinary or extraordinary, which now or at any time
hereafter may be applicable to the Demised Premises or any part thereof, or the
Improvements now or hereafter located thereon, or the facilities or equipment
therein, or any of the adjoining sidewalks, curbs, vaults or vault space, if
any, streets or ways, or the appurtenances to the Demised Premises or the
franchises or privileges connected therewith, or any use or condition of the
18
Demised Premises or any part thereof. Legal Requirements shall include all
requirements to be complied with pursuant to any certificate of occupancy
affecting the Demised Premises.
"Lessee's Equipment" -- all fixtures, machinery, apparatus, furniture,
furnishings and other equipment and all temporary or auxilary structures
installed by or at the request of Lessee or any Occupancy Tenant, if any, in or
about the Demised Premises or any part thereof, which (a) are not used and are
not procured for use, in whole or in part, in connection with the operation,
maintenance and protection of the Demised Premises, and (b) are removable
without damage to the Demised Premises.
"Occupancy Lease" -- any lease of any space constituting part of the Demised
Premises.
"Occupancy Tenant" -- any tenant or occupant under any Occupancy Lease.
"Occupancy Tenants' Equipment" -- all Lessee's Equipment which under the terms
of any Occupancy Lease of otherwise is the property of an Occupancy Tenant.
"person" -- an individual, a corporation, an association, a partnership, a joint
venture, an organization, or other business entity, or governmental or political
unity or agency.
"Rent Payment Date" -- as defined in Article 2.
"Restoration" -- all restorations, replacements, rebuildings, alterations,
additions, temporary repairs and property protection to be performed in
connection with a Taking of the Demised Premises or the damage or destruction of
the Demised Premises.
"Taking" -- a taking during the Lease Term of all or any part of the Demised
Premises, or any leasehold or other interest therein or right accruing thereto,
as the result of the exercise of the right of condemnation or eminent domain or
a sale in lieu or in anticipation of such exercise or a change or grade
affecting the Demise Premises or any part thereof.
" Total Taking" -- as defined in Article 16.
"Unavoidable Delays" -- delays due to strikes, acts of God, governmental
restrictions, enemy action, riot, civil commotion, fire, unavoidable casualty or
other causes beyond the control of Lessee, provided that no delay shall be
deemed an Unavoidable Delay if the Demised Premises or any part thereof or
interest therein or any Rent would be in danger of being sold, forfeited, lost
or interfered with, or if any Occupancy Tenant, Lessor or Lessee should be in
danger of incurring any civil or criminal liability for failure to perform the
required act. Lack of funds shall not be deemed a cause beyond the control of
Lessee.
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36. Notices
All notices, demands elections and other communications desired or
required to be delivered or given under this Lease shall be in writing , and
shall be deemed to have been delivered and given when delivered by hand, or on
the third business day after the same have been mailed by first class registered
or certified mail, postage prepaid, enclosed in a securely sealed envelop
addressed to the party to which the same is to be delivered or given at such
party's address as set forth in this Lease or at such other address as said
party shall have designated in writing in accordance with this Article 37.
38. Miscellaneous
All rights, powers and remedies provided herein may be exercised only
to the extent that the exercise thereof does not violated any applicable law,
and are intended to be limited to the extent necessary so that they will not
render this Lease invalid, unenforceable or not entitled to be recorded under
any applicable law. If any term, covenant or condition of this Lease shall be
held to be invalid, illegal or unenforceable, the validity of the other terms,
covenants and conditions of this Lease shall in no way be affected thereby. If
any interest provided for herein shall be deemed to be in excess of the maximum
amount permitted under applicable law, Lessor shall be deemed to be entitled to
the maximum amount permitted under applicable law.
The headings in this Lease are for purposes of reference only and shall
not limit or limit or define the meaning hereof.
This Lease may be changed or modified only by an instrument in writing
signed by the party against which enforcement of such change or modification is
sought.
Subject to Articles 27 and 31, this Lease shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto.
39. Right if First Refusal
If Lessor desires to sell the Demised Premises, and receives from some
third party a purchase offer for the Demised Premises, Lessor agrees to disclose
the terms of the offer to Lessee, in writing, within fifteen (15) days following
receipt of the offer. Lessee shall have ten (10) days after receiving notice of
the terms of the offer within which to elect to purchase the entire Demised
Premises on terms identical to those offered by the third party. The election
shall be made by written notice to Lessor at the address for notice designated
in this Lease, and in the manner designated in this Lease, accompanied by a
check for $10,000.00 to the order of Lessor to be applied to the purchase price.
Within fifteen (15) days thereafter, the parties shall enter into a formal
contract of sale expressly including all terms of the original bona fide offer
made to Lessor, except as the parties may mutually agree. If Lessee fails to
give the notice and to tender the payment as provided herein, or if Lessee fails
to enter into a formal contract of sale as provided herein, Lessor shall be
relieved of all liability to Lessee, and may dispose of the Demised Property as
it sees fit.
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40. Option to Purchase.
After the first five (5) years of the initial lease term, any
improvement in excess of $100,000.00 will automatically trigger the Lessee's
right to purchase the Demised Premises at fair market value to be determined by
three independent surveys to be paid for by the Lessee.
IN WITNESS HEREOF, Lessor and Lessee have executed this Lease on the
date first above written.
LESSOR
2340 TOWNLINE ROAD CORPORATION
By: /S/ ROBERT DAVID
----------------------------
Robert David, President
LESSEE
TOTAL IDENTITY SYSTEMS CORP.
By: /S/ RICHARD R. DWYER
-------------------------------
Richard R. Dwyer, President
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LEASE GUARANTY
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged,
the undersigned Guarantor, a Florida corporation, irrespective of the
genuineness, validity, regularity or enforceability of this Lease, hereby
unconditionally guarantees to Robert David the full and prompt payment of all
rent and other payments due under this Lease when due, whether by acceleration
or otherwise, including interest, late charges and expenses of collection
(including reasonable attorneys' fees), and the full and prompt performance of
all of the Lessee's obligations under this Lease. The undersigned Guarantor
waives presentment for payment, demand, protest and notice of protest and of
non-payment.
Dated: October 13, 2003 TOTAL IDENTITY CORP.
By: /S/ RICHARD R. DWYER
-------------------------
Richard R. Dwyer
State of New York:
County of Monroe: SS.
On the 13 day of October, 2003, before me the subscriber, personally
appeared Robert David, to me personally known to be the same person described in
and who executed the foregoing instrument, and he acknowledged to me that she
executed the same.
/S/ DANIEL C. CASS
------------------
Notary Public
22
State of New York:
County of Monroe: SS.
On the 13 day of October, 2003, before me the subscriber, personally
appeared Richard Dwyer, to me personally known to be the same person described
in and who executed the foregoing instrument, and he acknowledged to me that she
executed the same.
/S/ DANIEL C. CASS
------------------
Notary Public
State of New York:
County of Monroe: SS.
On the 13 day of October, 2003, before me the subscriber, personally
appeared Richard Dwyer, to me personally known to be the same person described
in and who executed the foregoing instrument, and he acknowledged to me that she
executed the same.
/S/ DANIEL C. CASS
------------------
Notary Public
23