LEASE AGREEMENT
BY AND BETWEEN:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ AND
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
"Landlord"
-and-
ARC SLIDE TECHNOLOGIES, INC.
A NEW JERSEY CORPORATION
"Tenant"
PREMISES:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
DATED: As of September 24, 1996
THIS LEASE AGREEMENT, made as of the 24 day of September, 1996, between
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, having an office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ , ▇▇▇▇▇, hereinafter called the "Landlord"; and
Arc Slide Technologies, Inc., having its principal office at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ hereinafter called the "Tenant".
WITNESSETH
WHEREAS, the Landlord is the owner of certain lands and premises located at
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,, in the Town of Tinton Falls, County of Monmouth and
State of New Jersey, hereinafter referred to as the "Property" ; and
WHEREAS, the Landlord has agreed to lease and the Tenant has agreed to rent
7,209 square feet of office space (hereinafter the "leased premises") located on
the first floor of the Property as more particularly set forth herein.
NOW, THEREFORE, in consideration of the covenants and conditions
hereinafter set forth and for other good and valuable considerations, the
Landlord does demise, lease and let unto the Tenant, and the Tenant does rent
and take from the Landlord the leased premises, and the Landlord and Tenant
mutually covenant and agree as follows:
1. LEASED PREMISES
1.1 The leased premises shall consist of 7,209 square feet of office space,
outside dimensions (inclusive of a proportionate share of core and common
areas), hereinafter referred to as the "leased premises" located on the first
floor of the Property. The leased premises shall be as delineated on a sketch,
approved by both Landlord and Tenant and attached to and made a part of this
lease as Exhibit A and shall be accepted by Tenant in its existing condition.
1.2 Parking shall be available to Tenant in the parking area of the
Property in non-designated areas on an as available basis. In the event that
Tenant leases from Landlord all of the additional space presently occupied by
Columbia Research, then at such time Tenant shall be entitled to the use of the
reserved parking spaces presently used by Columbia Research.
1.3 Subject to the terms and conditions hereinafter set forth, the leased
premises hereunder are demised to Tenant expressly subject to such title
exceptions as may be shown by a title search of the lands and premises which are
the subject of the within lease, and subject to such state of facts as an
accurate survey and inspection of the premises might disclose, providing any of
the foregoing shall not interfere with or prohibit the use by Tenant of the
leased premises, including the use of and access to the common areas, parking
areas, and access driveways for Tenant's business use as intended by the within
lease.
2. TERM OF LEASE
2.1 The Landlord leases unto the Tenant and the Tenant hires the leased
premises for
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the term of five years, to commence on the first day of the first month
following issuance of a Certificate of Occupancy for the leased premises upon
completion of the Tenant fit up as contemplated hereby, or on December 1, 1996,
whichever date first occurs (hereinafter called the "Commencement Date"). If the
issuance of a Certificate of Occupancy occurs in October, 1996, then the
Commencement Date and ending dates shall be adjusted accordingly, and the
parties will execute a letter specifying the adjusted dates, and setting forth
the revised total rental due for each of the periods set forth in paragraph 3.1
following. The obligation of the Tenant hereunder shall be subject to the
following provisos:
(a) That on or before the Commencement Date, the Landlord shall have
substantially completed the leased premises as required by the terms and
conditions of Article 6 of this lease. Upon the delivery by the Landlord to the
Tenant of the leased premises, the lease term shall commence in accordance with
this Article 2 and the Tenant's obligation to pay rent shall begin.
2.2 It is expressly understood and agreed that for the purpose of this
lease wherever and whenever the term "substantial completion" is used, the term
"substantial completion" shall not include items of maintenance, service or
guarantee, which may be required pursuant to the terms and conditions of this
lease, nor items of work to be completed by Tenant.
2.2 Anything herein contained to the contrary notwithstanding, Tenant shall
not be obligated to accept delivery of the leased premises, unless all building
systems attributable to the leased premises and ancillary support systems
applicable to the leased premises, including HVAC, plumbing and electric, are
hooked up and in operable condition for Tenant to use the premises for Tenant's
leased purposes.
3. RENT
3.1 The Tenant covenants and agrees to pay during the term of this lease,
total rent in the amount of $526,257.00. Upon execution hereof, Tenant shall pay
$8,410.50 representing the first months rent due hereunder plus the additional
security deposit required under Article 38. The rent due hereunder shall be
payable as follows:
a. During the period from December 1, 1996 through November 30, 1998
rent of $201,852.00 payable at the rate of $8,4 10.50 monthly.
b. During the period commencing December 1, 1998 though November 30,
2001 rent of $324,405.00 payable at the rate of $9,011.25 monthly.
All Monthly rent payments shall be made promptly in advance on the
first day of each and every month during the term of the lease without
demand and without off-set, deduction or abatement, together with such
additional rent and other charges required to be paid by Tenant as are
hereinafter set forth.
3.2 Tenant acknowledges that late payment by Tenant to Landlord of rent and
other sums due hereunder will cause Landlord to incur costs not contemplated by
this Lease, the amount of which will be extremely difficult to ascertain.
Accordingly, if any payment due Landlord from Tenant shall not be received by
Landlord, or Landlord's designee, within ten (10) days after such amount shall
be due, Tenant shall pay to Landlord a late charge equal to five (5%) percent of
such overdue amount.
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The parties agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of late payment by Tenant
Acceptance of the late charge by Landlord shall in no event constitute a waiver
of Tenant's default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted hereunder. Payment
of the late fee by Tenant shall be made to Landlord on the first day of the
first month following the date on which the late charge accrues.
4. UTILITIES
4.1 Landlord shall pay all utility charges for water, electricity, and gas
used in and about the leased premises during the term of the lease.
5. USE
5.1 The Tenant covenants and agrees to use and occupy the demised premises
(i) as an electronic design studio (SIC # 7333, commercial photo, art and
graphics) and (ii) for all lawful purposes incident to its business, and for no
other purpose. Landlord represents and warrants that (i) upon the Commencement
Date Tenant may lawfully use and occupy the demised premises for the purposes
specified in this Article 5; and (ii) prior to the Commencement Date an
appropriate Certificate of Occupancy will have been obtained, by Landlord, if
required. Except as otherwise in this lease provided and upon and after issuance
of the Certificate of Occupancy, and any other permits or consents which may be
required in order that Tenant have legal occupancy of the leased premises, the
Tenant shall comply with the terms and conditions of the lease on the part of
the Tenant to be performed, and the Tenant, in connection with its use of the
leased premises, shall thereafter comply with all applicable laws and ordinances
of governmental boards, bureaus or instrumentalities having jurisdiction thereof
5.2 The Tenant covenants and agrees that it will not use the leased
premises for any use which creates an extra hazard of fire or other danger or
casualty, or which will increase the rate which Landlord must pay to secure fire
or liability insurance, or which will render the building or its improvements
uninsurable, or which will bring the leased premises or the property of which it
is a part within the provisions of the Industrial Site Recovery Act of the State
of New Jersey.
6. CONSTRUCTION AND APPROVALS
6.1 Tenant agrees to construct the repairs, modifications, and improvements
to that portion of the leased premises not presently occupied by Slide Effects,
Inc. (the "Affililated Tenant") (the "New Space") in accordance with the sketch
plat attached hereto as Exhibit A (or referred to therein). Except as otherwise
provided herein, all costs connected with the improvement of the New Space,
including but not limited to construction, labor, materials, and clean up costs,
are to be borne by the Tenant
6.2 It is expressly understood and agreed that any work performed by Tenant
to the extent reimbursed by Landlord, shall be deemed to be institutional and
part of the realty owned by the Landlord so that the same shall remain the
property of and in possession of the Landlord at the expiration of the lease
term.
6.3 Landlord hereby agrees to reimburse Tenant for the cost of tenant
improvements
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installed in the leased premises by Tenant prior to the Commencement Date, up to
a maximum reimbursement by Landlord to Tenant in the amount of $50,000.00.
Landlord shall pay to Tenant the reimbursement required hereunder, from time to
time, upon delivery to Landlord by Tenant of invoices for work installed,
including materials purchased by Tenant at the direction of the contractor or
subcontractor, in the leased premises, along with an appropriate waiver of right
to file lien from the contractor or subcontractor submitting the said invoices.
Payment shall be made by Landlord upon confirmation by Landlord that the work
for which reimbursement is being requested has been completed in a good and
workmanlike manner, but in any event within three business days of receipt by
Landlord of said request for reimbursement from Tenant.
6.4 If necessary, Landlord agrees, at no cost to Landlord, to sign any
applications submitted to Landlord by Tenant for building permits as required by
Tinton Falls.
7. REPAIRS AND MAINTENANCE
7.1 During the term of this lease, the Landlord, at its cost and expense
shall keep in good order, safe condition and repair, the exterior walls,
structural steel, roof, roof membrane, foundation, floors, load bearing members,
plate glass (except as provided in Article 11), elevators, HVAC and plumbing, as
well as all sanitary sewer, storm sewer and utility lines and facilities serving
the leased premises, except for repairs or maintenance occasioned by the
negligence or deliberate act of Tenant, or its agents, servants, employees and
invitees which shall be then repaired at the cost and expense of the Tenant,
limited, however, to the extent of Tenant's said negligence. Landlord agrees to
maintain the Building of which the leased premises are a part as a Class B
office building. In addition, the Landlord shall: (i) take care of and maintain
and repair the lawns, shrubbery, driveways, sidewalks, curbs, exterior and
common area lighting, walkways and parking area on the property, and the
Landlord shall keep the parking area free of snow and ice and provide dumpster
service; and (ii) with respect to general building maintenance, shall undertake
general maintenance of the building core and common areas, except as otherwise
hereinafter set forth in Article 7.2.
7.2 Tenant, at its sole cost and expense, shall take good care of the
leased premises and shall keep and maintain the interior of the leased premises
so as to maintain the same as a Class B office facility; provided, however,
Tenant shall only be required to maintain these items in the same condition as
exists as of the Commencement Date, reasonable wear and tear excepted. The
obligations of the Tenant in connection with the foregoing shall include the
following obligations for maintenance, service and repair applicable to Tenant's
leased premises (but not the replacement of items which might otherwise be
required to be replaced at the termination of this Lease if due to ordinary wear
and tear)
(a) Janitorial services;
(b) Cleaning service as to floors, carpeting and interior windows;
(c) Maintenance and repair of all interior doors, including entrance door
to the leased premises;
(d) Maintenance and repair of any and all fixtures and equipment, including
water coolers, if any;
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(e) Maintenance and repair of venetian blinds, floor coverings and drapes,
if any;
(f) Maintenance and repair or replacement of any and all interior building
locks and/or security devices;
(g) Replacement of all bulbs, ballasts and fluorescent tubes, including
labor.
7.3 If after the Commencement Date and by reason of strike, labor disputes
or other cause outside Landlord's control, including, but not limited to,
governmental preemption in connection with a national emergency or any rule,
order regulation of any governmental agency, or conditions of supply and demand
which are affected by war or other emergency or acts of God, Landlord shall be
unable to fulfill its obligations under this Lease, or to supply any service
which Landlord is obligated to supply, this Lease and Tenant's obligations to
pay rent hereunder shall in no way be affected, impaired or excused, except that
Tenant shall receive an equitable pro rata reduction in that portion of the Base
Rent provided for in Article 3, which reduction shall be based upon the
Landlord's cost savings resulting from such inability to perform or supply
services, which sum shall be credited to Tenant by Landlord on the next monthly
rent obligation. Landlord agrees, however, that it will use reasonable efforts
to obtain restoration of services based on the then existing circumstances.
Tenant may terminate this lease if services required to be provided by Landlord
remain unavailable for more than ten (10) days, and as a result thereof, the
premises are untenantable.
8. INSURANCE
8.1 It is expressly understood and agreed that the Landlord, at its sole
cost and expense shall carry fire insurance with full extended coverage in broad
form in an amount equivalent to the full replacement cost of the insurable
improvements to the Buildings, exclusive of foundation, (without depreciation),
inclusive of broad form boiler and machinery coverage, including
air-conditioning system, together with coverage for sprinkler damage to the
building or its improvements (if applicable). In addition, the Landlord shall
obtain commercial public liability insurance in the minimum amount of FIVE
HUNDRED THOUSAND AND 00/100 ($500,000.00) DOLLARS per accident, together with
excess coverage limits of not less than TWO MILLION FIVE HUNDRED THOUSAND AND
00/100 ($2,500,000.00) DOLLARS per accident.
8.2 The Tenant covenants and agrees that it will carry liability insurance
in the minimum amount of ONE MILLION AND 00/100 ($1,000,000.00) DOLLARS per
accident and ONE HUNDRED THOUSAND AND 00/100 ($100,000.00) DOLLARS for property
damage. The Tenant further covenants and agrees that it will indemnify, defend
and save Landlord and Landlord's mortgagee harmless from any claim,
responsibility or liability which may be occasioned by reason of damage or
injury for which Tenant is required to provide insurance coverage as
hereinbefore referred to. Landlord agrees to give Tenant timely notice in
writing of any claim it may receive for which it seeks indemnity, as hereinabove
provided, in order that Tenant may undertake defense of such claim. The Tenant
agrees that such insurance coverage will be maintained in full force and effect
during the term of the lease pursuant to policies issued by solvent companies
authorized to do business in the State of New Jersey.
8.3 Landlord and Tenant hereby release the other from any and all
liabilities.
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responsibility (to the other or anyone claiming through or under them by way of
subrogation or otherwise) under fire and extended coverage and supplementary
contract casualties, if such fire, casualty or damage shall have been caused by
default or negligence of the other party, or anyone for whom such party may be
responsible; provided, however, that this release shall be applicable and in
force and effect only with respect to loss or damage occurring during such time
as the releasor's policies shall contain a clause or endorsement to the effect
that any such release shall not adversely affect or impair said policies or
prejudice the right of the releasor to recover thereunder. Each of Landlord and
Tenant agree that its policies will include such a clause or endorsement so long
as the same shall be obtainable without extra cost, or if such cost shall be
charged therefor, so long as the other party pays such extra cost. If extra cost
shall be chargeable therefor, each party shall notify the other party of the
amount of the extra cost, and the other party shall be obligated to pay the
extra cost unless, within ten (10) days after such notice, it elects not to be
obligated so to do by written notice to the original party. If such clause or
endorsement is not available, or if either party should not desire the coverage
at extra cost to it, then the provisions of this paragraph shall not apply to
the policy or policies in question.
8.4 Anything in this lease to the contrary notwithstanding, the Tenant
covenants and agrees that it will indemnify, defend and save harmless the
Landlord against and from all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses, including, without limitation, reasonable
attorneys' fees, which may be imposed upon or incurred by Landlord by reason of
any of the following occurring during the term of this lease:
(i) Any matter, cause or thing arising out of the use and occupancy of the
leased premises or any part thereof caused by the negligence or willful acts of
the Tenant, or any of its agents, contractors, servants, employees, licensees or
invitees;
(ii) Any failure on the part of Tenant to perform or comply with any of the
covenants, agreements, terms or conditions contained in this lease on its part
to be performed or complied with. Landlord shall promptly notify Tenant in a
timely manner in writing of any such claim asserted against it and shall
promptly send to Tenant copies of all papers or legal process served upon it in
connection with any action or proceeding brought against Landlord by reason of
any such claim in order that Tenant shall interpose a timely defense to such
action.
8.5 Anything in this lease to the contrary notwithstanding, the Landlord,
subject to the provisions of Article 28, covenants and agrees that it will
indemnify, defend and save harmless the Tenant against and from all liabilities,
obligations, damages, penalties, claims, costs, charges and expenses, including,
without limitation, reasonable attorneys' fees, which may be imposed upon or
incurred by Tenant by reason of any of the following occurring during the term
of this lease:
(i) Any matter, cause or thing arising out of the use and occupancy of the
leased premises or any part thereof caused by the negligence or willful acts of
the Landlord, or any of its agents, contractors, servants, employees, licensees
or invitees;
(ii) Any failure on the part of Landlord to perform or comply with any of
the covenants, agreements, terms or conditions contained in this lease on its
part to be performed or complied
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with, Tenant shall promptly notify Landlord in a timely manner in writing of any
such claim asserted against it and shall promptly send to Landlord copies of all
papers or legal process served upon it in connection with any action or
proceeding brought against Tenant by reason of any such claim in order that
Landlord shall interpose a timely defense to such action.
8.6 Anything in this Article 8 to the contrary notwithstanding, it is
expressly understood and agreed that after the initial rating by the applicable
rating insurance organization applicable to the building for any insurance which
Landlord shall carry as in this Article provided, in the event the insurance
rates shall be increased due to the use, activities or operation of any tenant
of the building of which the leased premises are a part, including the Tenant
hereunder, any increase in premiums occasioned or caused by such activities of
any applicable tenant, including the Tenant, shall be paid for at the sole cost
and expense of the Landlord or such tenant, but shall not be an obligation of
the Tenant hereunder unless the Tenant hereunder shall be the effective cause of
such premium increase. The foregoing shall not apply to general rate increases
as shall be applicable and customary throughout the industry or applicable to
the community with respect to any such applicable insurance coverage.
9. LANDLORD'S ACCESS FOR FUTURE CONSTRUCTION.
ALTERATIONS AND REPAIRS
The Landlord reserves the right, upon reasonable notice to Tenant, to enter
the leased premises in connection with the construction and erection of
additions or improvements or to make necessary repairs, alterations or
improvements, and may temporarily close entrances, doors, corridors, elevators,
and other facilities, all without liability to Tenant, provided that in the
exercise of such rights the Landlord shall not unreasonably interfere with (i)
the business operations of Tenant; (ii) the utility to Tenant of the leased
premises; or (iii) the appearance of the leased premises.
10. TRADE FIXTURES
10.1 It is agreed that the trade fixtures, machinery, equipment and office
furnishings installed by Tenant in the leased premises shall be and remain
personal property even though they may be attached to the leased premises, and
may be removed by Tenant. Tenant shall repair or cause to be repaired any damage
to the leased premises caused by the aforesaid removals.
10.2 Except as otherwise expressly provided in this lease, any trade
fixtures, machinery, equipment, office furnishings or other property of the
Tenant, including property remaining within the leased premises which Tenant is
entitled to remove upon the termination of this Lease Agreement or upon any
quitting, vacating or abandonment of the premises by the Tenant, shall be
removed from the leased premises prior to the expiration or termination of the
leased term. If Tenant shall fail to remove the same prior to the expiration or
termination of the lease, Landlord, at Tenant's sole cost and expense, shall be
permitted to remove and store the said trade fixtures, machinery, equipment,
office furnishings or other property of the Tenant, and, after thirty days
written notice advising Tenant where the same have been stored and requesting
the removal of all such property by Tenant, and the failure of Tenant to so
remove all of such property, the same shall be considered abandoned and the
Landlord shall have the right thereafter, without any further notice to Tenant,
to retain, sell or otherwise dispose of the same, and
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Landlord shall not be accountable to Tenant for any part of the proceeds of any
sale which may be made by the landlord nor shall the Landlord be accountable to
the Tenant for any such equipment and/or property that shall be retained by the
Landlord. Tenant shall be liable for and shall reimburse Landlord for any
reasonable expenses or damages incurred by Landlord in removing and/or storing
any abandoned equipment or other property to the extent that said expenses are
not recovered through the sale or disposition of said equipment or property.
10.3 All installation and removal of Tenant's fixtures, property and
equipment shall be done in accordance with all applicable laws and ordinances
and the rules and regulations of all governmental boards and bodies having
jurisdiction.
11. GLASS
The Landlord agrees to replace, at its expense, any broken glass in the
windows or other apertures of the leased premises, except where such damage or
casualty is caused by the negligence or act of the Tenant, its agents, servants
or employees, or where broken from the inside (unless caused by Landlord, or its
agents, contractors, servants, employees, licensees or invitees), in which
event, Landlord shall replace or repair the same at the cost and expense of the
Tenant.
12. ASSIGNMENT AND SUBLETTING
12.1 The Tenant may not assign this lease agreement or sublease the whole
or any part of the leased premises without first advising the Landlord in
writing of its intention to assign or sublease the leased premises as
aforementioned, which notice shall be in writing, by certified mail, return
receipt requested, by Tenant to Landlord. The notice shall specify (i) the date
on or after which Tenant desires to assign this lease agreement or to sublease
the whole or any part of the leased premises provided that such date shall not
be less than forty-five days after the date of such notice, and (ii) in the
event of a partial sublease, the location of the portion of the Premises to be
sublet. Landlord shall then have fourteen (14) days after receipt of such notice
by Tenant within which (i) in the case of an assignment to elect to recapture
the leased premises and terminate the lease agreement and to release Tenant from
its obligations hereunder, effective on the date specified in Tenant's notice to
Landlord as the date on or after which Tenant desires to assign the Lease
Agreement; or (ii) in the case of a sublease of all or part of the leased
premises, to accept a release pro tanto of said subleased space from the scope
of the lease and to adjust the rent proportionately and other lease obligations
with respect to any subleased space, effective on the date specified in Tenant's
notice to Landlord as the date on or after which Tenant desires to sublease the
whole or any part of the leased premises. If the Landlord shall so elect (i) to
recapture the leased premises, or (ii) to accept a release pro tanto and thereby
recapture said subleased space, the Landlord shall give written notice thereof
to Tenant as provided in Article 17 below, prior to the expiration of forty-five
(45) days from the date of receipt of Tenant's notice. In either of such events,
rent and all other charges due shall be paid by Tenant to Landlord effective up
to and including the date of the applicable lease termination. Tenant agrees
that it will surrender possession of the space recaptured by the Landlord on the
effective date of termination. Tenant also agrees to execute a release of space,
or a lease termination statement in recordable form in the event the lease is
terminated as hereinabove provided.
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Tenant may assign or sublease the leased premises, or a portion thereof, to an
affiliate of Tenant, without Landlord's consent, and without being subject to
recapture, provided that Tenant remains primarily liable for all tenant's
obligations hereunder.
12.2 In the event Landlord does not elect to recapture the premises and
terminate the lease as hereinabove provided, then, in that event, the Tenant may
assign this lease, or sublease all or any portion or part of the leased
premises, without the consent of Landlord, provided the Tenant gives the
Landlord notice of any such assignment and any assignees (but not sublessees)
undertake in writing to assume the terms and conditions of this lease,
providing, in any event, that the Tenant shall remain directly and primarily
liable for the payment and performance of the terms and conditions of this
lease. The Landlord reserves the right, at all times, to require and demand that
the primary Tenant hereunder pay and perform the terms and conditions of this
lease after prior demand by Landlord of such assignee. No such assignment or
subletting shall be made to any tenant who shall occupy the premises for any
use, other than the use permitted herein, or which would in any way violate the
applicable ordinances, rules and regulations of applicable governmental boards
and bureaus having jurisdiction thereof, or of the carrier of the fire insurance
or other insurance to be provided under this lease.
12.3 In the event the Tenant or its assignee shall undertake any further
and subsequent assignment or subletting, Tenant's or Tenant's assignee's right
to assign or sublet shall be subject to the same required prior consent of
Landlord in accordance with the same terms and conditions as provided in Article
12.1.
12.4 Notwithstanding anything herein to the contrary, Tenant shall be
allowed to assign or sublet the leased premises to an affiliated entity of
Tenant without the Landlord's prior written consent, provided, however, that the
provisions of Articles 12.2 and 12.3 shall continue to be applicable to such
assignment.
13. FIRE AND CASUALTY
13.1 In case of any damage to or destruction to the leased premises by fire
or other casualty, tantamount to substantial destruction, so that Tenant cannot
use its leased premises for its intended business purposes, occurring during the
term of this lease which is not covered by the insurance required to be carried
by Article 8, or which cannot be repaired within ninety (90) days from the
happening of such casualty, then, in such event, the term hereby created shall,
at the option of either party, upon written notice to the other by certified
mail, return receipt requested, within thirty (30) days of such fire or
casualty, cease and become null and void from the date of such destruction or
damage. The party terminating shall certify to the other in connection with its
notice such facts upon which it has determined that reconstruction of the
building cannot be accomplished within the ninety (90) day period hereinabove
provided. In such event, the Tenant shall immediately surrender the leased
premises and the Tenant's interest in said lease to the Landlord, and the Tenant
shall only pay rent to the time of such destruction or damage in which event,
the Landlord may re-enter and repossess the leased premises thus discharged from
this lease and may remove all parties therefrom. However, if neither party shall
elect to cancel this lease within the thirty (30) day period hereinabove
provided, the Landlord shall thereupon repair and
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restore the leased premises to its condition existing prior to such casualty
with reasonable speed and dispatch, and the rent shall not be accrued after said
damage from the date on which Tenant is unable to use its Leased Premises for
its intended business purposes, and while the repairs and restorations are being
made, but shall recommence immediately after said premises are restored and a
certificate of occupancy issued.
13.2 In the event of any other insured casualty, which shall be repairable
within ninety (90) days from the happening of such damage or casualty, the
Landlord shall repair and restore the leased premises with reasonable speed and
dispatch, and the rent shall ▇▇▇▇▇ and be equitably apportioned as the case may
be as to any portion of the leased premises which shall be unfit for occupancy
by the Tenant, or which cannot be used by the Tenant so as to conduct its
business substantially in the same manner as conducted by Tenant prior to such
fire or casualty as shall be determined by the reasonable judgment of the
Tenant. The rent, however, shall accrue and recommence immediately upon
restoration of the leased premises and delivery of the Certificate of Occupancy
by Landlord to Tenant.
13.3 Nothing hereinabove contained with respect to the Tenant's right to
▇▇▇▇▇ rent as in this Article 13 provided shall be construed to limit or affect
the Landlord's right to payment under any claim for damages covered by the rent
insurance policy pursuant to the contract therefor required to be provided
pursuant to Paragraph 8 of this lease.
13.4 For the purposes of this Paragraph 13, in determining what constitutes
reasonable speed and dispatch, consideration shall be given for delays which
would be excuses for non-performance as in Paragraph 23 hereinafter provided
(Force Majeure).
13.5 In the event of such fire or casualty as above provided, wherein the
Landlord shall rebuild, the Tenant agrees, at its cost and expense, to forthwith
remove any and all of its equipment, fixtures, stock and personal property as
the same may be required to permit Landlord to expedite rebuilding and/or
repair. In any event, the Tenant shall assume at its sole risk the
responsibility for damage or security with respect to such fixtures and
equipment in the event the Building area where the same may be located has been
damaged, until the Building shall be restored and made secure. The Landlord
agrees, however, that it will cooperate with Tenant in order to take all
reasonable steps to protect and/or make secure Tenant's fixtures, goods or
equipment during such period of reconstruction.
13.6 Anything in this Article 13 to the contrary notwithstanding, it is
expressly understood and agreed that wherever reconstruction shall be
undertaken, in the event of damage or casualty as in this Article 13 provided,
the Landlord shall prosecute such reconstruction with reasonable speed and
dispatch. In the event, however, such reconstruction or repair shall not be
completed within ninety (90) days from the date of casualty (such time period of
ninety (90) days shall be extended for such reasonable period of time as is
required by reasons of Force Majeure or if occasioned by default on the part of
the Tenant) then, in that event, the Tenant shall have the option at the
expiration of the ninety (90) day period (as the same may be extended as
hereinabove provided) to terminate the lease. In the event of such termination,
neither party shall have any further liability, one to the other, in accordance
with the terms and conditions of the lease. The Landlord during such period of
reconstruction shall give the Tenant reasonable notice
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at least thirty (30) days in advance of the date on which the Building shall be
ready for re-occupancy. Rent shall recommence upon restoration of the leased
premises and delivery of the Certificate of Occupancy by Landlord to Tenant.
14.COMPLIANCE WITH LOCAL RULES AND REGULATIONS
14.1 Landlord covenants and agrees with Tenant that upon acceptance and
occupancy of the leased premises, the leased premises will comply with all
statutes, ordinances, rules, orders, regulations and requirements of the
Federal, State and Municipal Government and of any and all their departments and
bureaus, and to the requirements of the Board of Fire Underwriters or their
equivalent in the State of New Jersey, which are applicable to the use and
construction of the same.
14.2 The Tenant covenants and agrees that upon and after acceptance and
occupancy of the leased premises, except to the extent due to Landlord's failure
to comply with Section 14.1, it will promptly execute and comply with all
statutes, ordinances, rules, orders, regulations and requirements of the
Federal, State and Municipal Government and any and all their departments and
bureaus or to the reasonable rules promulgated by the Landlord in writing, for
the correction, prevention and abatement of nuisances, violations or other
grievances, in, upon or connected with said premises during said term, at the
Tenant's cost and expense, subject to the right of the Tenant to contest the
decision by any such governmental decision, and Tenant shall indemnify, defend
and save the Landlord harmless from any fine, penalty, costs and liability
imposed upon the Landlord as a result of Tenant's failure so to comply. Except
for compliance with governmental requirements due solely to the special use and
occupancy of the Tenant in the conduct of its business which shall be the sole
responsibility of the Tenant, with respect to any other required governmental
compliance by reason of general requirements throughout the community not
attributable to Tenant's special use, the cost of compliance shall be Landlord's
sole responsibility and expense.
14.3 The Tenant covenants and agrees, at its own cost and expense, to
comply with such regulations or request as may be required by the fire or
liability insurance carriers providing insurance for the leased premises, and
will further comply with such other requirements that may be promulgated by the
Board of Fire Underwriters or their equivalent in connection with the use and
occupancy of the leased premises by the Tenant in the conduct of its business,
provided that such regulations, request and/or requirements apply to Tenant's
activities within the leased premises.
14.4 Subject to the provision or limitations contained in Sections 14.2 and
14.3, if the Tenant shall fail or neglect to comply with the aforesaid statutes,
ordinances, rules, orders, regulations and requirements or any of them, failure
of the Tenant to comply with the requirements of subparagraph 14.1 above shall
be deemed an item of default for which the Landlord shall have recourse by
termination of this lease or exercise of any other rights reserved to the
Landlord hereunder, in accordance with the terms and conditions of this lease.
15.DEFAULT
15.1 Subject to the provisions of Section 15.3 and Section 15.4, if there
should occur any default on the part of the Tenant in the performance of any
conditions and covenants herein contained,
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or should the Tenant be evicted by summary proceedings or otherwise, the
Landlord, in addition to any other remedies herein contained or as may be
permitted by law, may without being liable for damages, re-enter the said
premises and take possession thereof as may be permitted by law. The Landlord
may, at its option, relet the premises and receive the rents therefor and apply
the same, first to the payment of such expenses, including real estate
brokerage, reasonable attorney fees and costs, as the Landlord may have been put
to in re-entering and repossessing the same and in making such repairs and
alterations as may be necessary for any new tenancy; and second to the payment
of rents, additional rents and other lease charges due hereunder. The Tenant
shall remain liable for such rents, additional rents and other lease charges as
may be in arrears and also the rents, additional rents and other lease charges
as may accrue subsequent to the re-entry by the Landlord, to the extent of the
difference between the rents, additional rents and other lease charges reserved
hereunder and the rents, additional rents and other lease charges, if any,
received by the Landlord during the remainder of the unexpired term hereof,
after deducting the aforementioned expenses, fees and costs; the same to be paid
as such deficiencies arise and are ascertained. Landlord shall take reasonable
steps to mitigate any such damages.
15.2 If the Tenant be adjudicated bankrupt or insolvent, or be placed in
receivership, or should proceedings be instituted by or against the Tenant for
bankruptcy, insolvency, receivership, agreement of compositions or assignment of
the benefit of creditors, or if this lease, or the estate of the Tenant
hereunder shall pass to another by virtue of any court proceedings, writ of
execution, levy, sale or by operation of law, then in either of such events,
unless they shall be cured within sixty (60) days, the Landlord may, at any time
thereafter, terminate this lease and the term hereof upon giving to the Tenant
or to any trustee, receiver, assignee or other person in charge of or acting as
custodian of the assets or property of the Tenant, thirty (30) days' notice of
such termination in writing and sent in the manner provided in Article 17. This
lease and the term hereof shall end on the date fixed in such notice as if the
said date was the date originally fixed in this lease for the expiration hereof
Notwithstanding the termination, the Landlord may still enforce its rights
reserved pursuant to sub-paragraph 15.1.
15.3 Any default by Tenant in the payment of rent or any other monetary
obligation shall be cause for termination if the same is not cured within five
(5) days after written notice of default.
15.4 Any other default by Tenant in the lease shall be cause for
termination if the same is not cured within thirty (30) days after written
notice of default, provided that if Tenant in good faith attempts to cure any of
such non-monetary defaults which cannot otherwise be cured within the thirty
(30) day period, the time to cure shall be extended to such reasonable time as
may be required to effectuate the curing of any such default otherwise required
to be performed within said thirty (30) day period.
15.5 As expressly required pursuant to the terms and conditions of this
lease, in case the Tenant shall fail or neglect to comply with any statutes,
ordinances, laws, rules, orders, regulations and requirements or any of them
(unless Tenant is in the process of contesting the applicability or legality of
the same in a court of competent jurisdiction, and has posted a bond for the
benefit of Landlord, protecting Landlord from any loss resulting from Tenant's
non-compliance), or in case the Tenant shall neglect or fail to make any
necessary or required repairs, then the Landlord or the Landlord's agents may
after thirty
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(30) days' notice (except for emergency repairs, which may be made immediately)
enter said premises and make said repairs and comply with any and all of the
said statutes, ordinances, laws, rules, orders, regulations or requirements, at
the cost and expense of the Tenant and in case of the Tenant's failure to pay
therefor, the said cost and expense shall be added to the next month's rent and
be due and payable as additional rent.
16. INSPECTION BY LANDLORD
The Tenant agrees that the said Landlord's agents, and other
representatives, shall have the right to enter into and upon the leased
premises, or any part thereof, during business hours, upon prior reasonable oral
or written notice to Tenant at the leased premises without unduly disturbing the
operations of the Tenant for the purpose of examining the same for making such
repairs or alterations therein as may be necessary for the safety and
preservation thereof.
17. NOTICES
All notices required or permitted to be given to the Landlord shall be
given by certified mail, return receipt requested, addressed to the Landlord at
the address set forth at the head of this agreement or such other place as the
Landlord shall designate in writing. All notices required or permitted to be
given to the Tenant shall be given by certified mail, return receipt requested,
addressed to the Tenant at the address set forth at the head of this agreement
or such other place as the Tenant shall designate in writing. Notice shall be
deemed given upon receipt of the same by the person to whom such notice is
given, or the first refusal to accept the same. In addition, notice may be given
via facsimile transmission, provided that the person giving such notice shall
retain electronic proof that the transmission was successfully sent. Notice
given by facsimile shall be deemed given upon sending the same.
18. NON-WAIVER
The failure of the Landlord or Tenant to insist upon strict performance of
any of the covenants or conditions of this lease, or to exercise any remedy or
election as in this Lease Agreement provided, shall not be construed as a waiver
or relinquishment of any such covenants, conditions, elections or remedies, but
the same shall be and remain in full force and effect. If the Landlord or Tenant
pursues any remedy granted by the terms of applicable law, it shall not be
construed as a waiver or relinquishment of any other remedy afforded thereby.
19. ALTERATIONS AND IMPROVEMENTS BY TENANT
19.1 The Tenant shall not without the Landlord's prior written consent,
which consent Landlord shall not be obligated to give, make any alterations,
additions or improvements to the demised premises, of a structural nature,
structural intended to mean any modification to the exterior walls, structural
steel framing, floors, ceilings or any construction or installations which will
affect the building structural systems, including plumbing, heating,
ventilating, air-conditioning, elevators or stairwells, electrical circuitry,
excluding relocation of light fixtures or outlets, or materially change or alter
the Tenant's Plan as set forth on Schedule A.
19.2 Tenant shall have the right to make non-structural alterations,
installations, changes replacements, additions and/or improvements which do not
materially change or alter the Tenant [illegible]
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ATTACHMENT TO EXHIBIT A
OUTLINE OF SCOPE OF WORK TO BE PERFORMED FOR EXIST1NG SPACE AND NEW
SPACE
I. NEW SPACE:
1) Dismantling area
2) Rewire for telephones and electronics and new darkroom
3) New light fixtures
4) Replace ceiling tiles
5) Carpet
6) Exhaust Fan for New Dark Room/Graphic Area including three (3)
220 volt outlets
7) Plumbing for new dark room of graphic area
8) Tile Floor for graphic area
9) New doors
10) Paint
11) New walls
12) Other items related to fit-up of new space, including
architectural and planning fees
II. EXISTING LEASE PREMISES (already occupied by Slide Effects,Inc.) : to
be completed in two stages
A. Promptly after lease execution
1) Dismantle area/Take out walls
2) Replace front door or do second phase
3) Paint
B. Subsequent to December 31, 1996 (to be modified based on whether or
not the Columbia Research space is to be occupied by tenant):
1) Dismantle as needed
2) Replace walls as needed
3) Carpet
4) Paint
5) Other items related to fit-up of Columbia Research space
[INITIALED]
9/24/96
9/26/96
9/25/96
as set forth on Exhibit B (hereinafter sometimes individually and sometimes
collectively referred to as "alterations") to the demised premises during the
term of the lease, provided the same shall not exceed $10,000.00 per annum
(non-cumulative); provided, in any event, that any such permitted installation
shall not affect the basic building structure or basic Building systems. Any
installation in excess of $10,000.00 shall require Landlord's prior written
consent, which consent shall not be unreasonably withheld or delayed, providing
such changes are non-structural and providing the same do not affect the
building structural or operating systems as above defined; which consent may,
however, contain provisions relating to the procedures to be followed for the
removal of such alterations at the termination of the lease. Landlord agrees
that it will not unreasonably withhold its consent to any such non-structural
alterations. Each such alteration shall be of the same quality as the original
construction and finishing of the office space, and shall be done in a good
workmanlike manner. Tenant shall have no obligation to remove the alterations or
to restore the demised premises to their original condition at the termination
of the Lease, unless the same may be required by Landlord, at its option, in
connection with its required consent as set forth under this Article 19, to be
obtained by Tenant. Any alterations or improvements done by Tenant as permitted
hereunder shall be in compliance with all applicable governmental laws, rules,
or regulations pertaining thereto, and Tenant shall indemnify, defend and save
harmless Landlord from damage or liability occasioned by Tenant's alterations or
improvements. Any consent required by Landlord under this Article 19 shall be
deemed to have been given if Landlord shall fail to respond to Tenant's request
within ten (10) days after receipt of Tenant's written request.
19.3 Nothing herein contained shall be construed as a consent on the part
of the Landlord to subject the estate of the Landlord to liability under the
Mechanic's Lien Law of the State of New Jersey, it being expressly understood
that the Landlord's estate shall not be subject to such liability.
20. NON-LIABILITY OF LANDLORD
20.1 The Landlord shall not be liable for any damage or injury to property
or person caused by or resulting from steam, electricity, gas, water, rain, ice
or snow, or any leak or flow from or into any part of said building, or from any
damage or injury resulting or arising from any other cause or happening
whatsoever, excepting the negligence of the Landlord (subject to Landlord's
limitation of liability as set forth in paragraph 28), its agents, servants,
employees, contractors or invitees, for which Landlord shall be responsible.
21. CONDEMNATION
21.1 If due to condemnation or taking or seizure by any authority having
the right of eminent domain, (1) more than twenty (20) percent in aggregate of
the total leased premises is taken, or (ii) if access to the leased premises be
denied, then, in the event of any such takings as hereinabove provided, the
lease term created shall, at the option of the Tenant, terminate, cease and
become null and void from the date when the authority exercising the power of
eminent domain takes or interferes with the use of the leased premises, or area
of access to the leased premises, or substantially and [illegible] interferes
with the Tenant's ability to conduct its business in the same manner as
conducted by tenant to [illegible] condemnation.
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The Tenant shall only be responsible for the payment of rent until the time
of surrender. In any event, no part of the Landlord's condemnation award shall
belong to or be claimed by the Tenant. Without diminishing Landlord's award, the
Tenant shall have the right to make a claim against the condemning authority for
such independent claim (not including any claim for loss of leasehold value)
which it may have and as may be allowed by law, for costs and damages due to
relocating moving, loss of trade fixtures and other similar costs and charges
directly incurred by the Tenant and resulting from such condemnation.
21.2 In the event of any partial taking which would not be cause for
termination of the within lease or in the event of any partial taking in excess
of the percentages provided in subparagraph 19.1, and in which event the Tenant
shall elect to retain the balance of the leased premises remaining after such
taking, then and in either event, the rent shall ▇▇▇▇▇ in an amount mutually to
be agreed upon between the Landlord and Tenant based (i) on the relationship
that the character and quantum of the property taken bears to the property which
shall remain after such condemnation, and (ii) the cost to the Landlord of
restoration of the property, if applicable, as hereinafter provided, in excess
of the net condemnation award received by Landlord. In any event, no part of the
Landlord's condemnation award shall belong to or be claimed by the Tenant.
However, the Landlord shall, to the extent permitted by applicable law and as
the same be practicable on the site of the leased premises, at the Landlord's
sole cost and expense, promptly and with due diligence make such repairs and
alterations in order to restore the Building and/or improvements to the
condition substantially to that prior to such condemnation so as to make the
same tenantable and secure. If Landlord shall not complete such restoration
within sixty (60) days from such taking by condemnation as above provided,
Tenant shall have the right to terminate the within lease in accordance with and
in the same manner provided in Article 13.6.
22. TENANT'S FIRE AND CASUALTY INSURANCE
The Tenant, at its own cost and expense, shall insure its own fixtures,
equipment and contents for fire and other casualty damage, including any of
Tenant's leasehold improvements, it being expressly understood and agreed that
the obligation to provide such insurance is not the responsibility of the
Landlord nor shall it be liable therefor.
23. FORCE MAJEURE
Except for the obligation of the Tenant to pay rent and other charges as in
this lease provided, the period of time during which the Landlord or Tenant is
prevented from performing any act required to be performed under this lease by
reason of fire, catastrophe, strikes, lockouts, civil commotion, acts of God or
the public enemy, governmental prohibitions, the act or default of the other
party, or other events beyond the reasonable control of Landlord or Tenant, as
the case may be, shall be added to the time for performance of such act.
24. SUBORDINATION
24.1 This lease shall be subject and subordinate at all times to the lien
of any mortgages or other encumbrances now or hereafter placed on the land and
building and leased premises without necessity of any further instrument or act
on the part of Tenant to effectuate such subordination if said
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mortgage shall provide in its mortgage the terms and conditions hereinafter
provided in Article 24.2, or if the mortgagee agrees with the Tenant in writing
to the terms and conditions hereinafter referred to in Article 24.2.
24.2 The foregoing provisions of this Article shall be effective only in
the event that any such mortgage by its terms, or the mortgage or holder of
other encumbrances provides, or the holder thereof agrees with Tenant, as
follows:
(a) That this lease is and shall be subject and subordinate to the Mortgage
insofar as it affects the real property of which the demised premises form a
part, and to all renewals, modifications, consolidations, replacements and
extensions thereof, to the full extent of the principal sum secured thereby and
interest thereon.
(b) That in the event it should become necessary to foreclose the mortgage,
the mortgagee thereunder will not join the Tenant under any lease in summary or
foreclosure proceedings so long as the Tenant is not in default under any of the
terms, covenants, or conditions of this lease.
(c) That in the event the mortgagee shall, in accordance with the
foregoing, succeed to the interest of the Landlord under this lease, the
mortgagee agrees to be bound to the Tenant under all of the terms, covenants and
conditions of this lease, and the Tenant agrees, from and after such event, to
attorn to the mortgagee and/or purchaser at any foreclosure sale of the
premises, all rights and obligations under this lease to continue as though the
interest of Landlord had not terminated or such foreclosure proceedings had not
been brought, and the Tenant shall have the same remedies against the mortgagee
for the breach of an agreement contained in this lease that the Tenant might
have had under this lease against the Landlord if the mortgagee had not
succeeded to the interest of the Landlord; provided, however, that the mortgagee
shall not be
(i) liable for any act or omission of the Landlord, except as otherwise
provided by law; or
(ii) subject to any offsets or defenses which Tenant might have against the
Landlord, except as otherwise provided by law; or
(iii) bound by any rent or additional rent which the Tenant might have paid
to the Landlord for more than the current month and one additional month.
25. QUIET ENJOYMENT
The Landlord covenants and represents that the Landlord is the owner of the
premises herein leased and has the right and authority to enter into, execute
and deliver this lease, and does further covenant that the Tenant on paying the
rent and performing the conditions and covenants herein contained, shall and may
peaceably and quietly have, hold and enjoy the leased premises for the term
aforementioned.
26. SIGNS
The Tenant shall secure the prior written approval of the Landlord for any
identifying sign as may be located in front of or on the exterior of the
Buildings, which consent shall not be unreasonably withheld or delayed. Failure
of Landlord to respond to Tenant's request for approval within thirty (30)
-16-
days after written demand shall be deemed an approval. The Tenant shall not have
the right to put any identifying sign on the roof of the building or above the
first floor level of the building. Any signs to be approved shall comply with
all governmental laws of applicable instrumentalities, boards or bureaus having
jurisdiction thereof, and shall be compatible with the general design and decor
of the building. At the expiration of the lease term, Tenant shall remove its
signs and repair any damage to the building or Property occasioned by such
removal. In the event that Tenant leases from Landlord all of the additional
space presently occupied by Columbia Research, then at such time Tenant, at
Tenant's sole cost and expense, shall be entitled to combine its space with the
space previously used by Columbia Research on the identifying sign located in
front of the exterior of the Buildings in order to create one larger sign.
27. STATEMENT OF ACCEPTANCE
Upon the Tenant's accepting the leased premises and entering possession,
pursuant to the terms and conditions hereof, effective as of the Commencement
Date, the Tenant covenants and agrees that it accepts the leased premises and
agrees to pay rent from the date of acceptance, subject to the terms and
conditions of the lease as herein contained, and upon the request of Landlord,
it will furnish to the Landlord a statement of acceptance in recordable form, if
required by the Landlord. Tenant further agrees that it will execute, as a
condition of the within lease, subsequent to the Commencement Date, an estoppel
letter as may be required from Landlord's mortgagee from time to time,
certifying among other things the Commencement Date and Expiration Date of the
lease, status of current rent payments by Tenant, and any other pertinent
information as may be reasonably required by such mortgagee as it affects the
status of the within lease.
28. LIMIT OF LANDLORD'S LIABILITY
In case the Landlord shall be a joint venture, partnership, tenancy in
common, association or other form of joint ownership, the individual members
shall have absolutely no personal liability or obligation with respect to any
provision of this lease, or any obligation or liability arising therefrom or in
connection therewith, except to the extent of any individual member's equity in
the Property, which covenant hereinabove referred to, shall be deemed effective
as of the date Landlord completes and delivers the leased premises in accordance
with the terms and conditions of the lease and the specifications herein
provided.
29. LANDLORD'S REMEDIES AND EXPENSES
29.1 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 purposes 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 on successive periodic sums which mature hereunder.
Notwithstanding the foregoing, Landlord agrees that all cognizable claims shall
be filed in one action.
29.2 Except as otherwise provided herein, Tenant shall pay, upon demand,
all of the Landlord's costs, charges and expenses, including the reasonable fees
of counsel, agents and others retained by Landlord, incurred in enforcing
Tenant's obligation hereunder.
30. LEASE CONSTRUCTION
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The lease shall be construed pursuant to the laws of the State of New
Jersey.
31. BINDING EFFECT
The terms, covenants and conditions of the within lease shall be binding
upon and inure to the benefit of each of the parties hereto, and their
respective heirs, successors, executors, administrators and assigns.
32. DEFINITIONS
The neuter gender, when used herein and in the acknowledgment hereafter set
forth, shall include all persons, firms and corporations, and words used in the
singular shall include words in the plural where the text of the instrument so
requires.
33. PARAGRAPH HEADING
The paragraph headings herein are inserted only as a matter of convenience
and for reference, and in no way define, limit or describe the scope of this
lease nor the intent of any provision hereof.
34. ENTIRE AGREEMENT
This lease contains the entire agreement between the parties and no
modifications shall be effective unless set forth in an instrument in writing
executed by both parties hereto.
35. BROKERAGE
Tenant represents that no real estate broker or agent negotiated or
introduced Tenant to Landlord, except ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc., and that no real
estate commission, finders fee, or other payment is due upon consummation of the
within lease by reason of Tenant's acts other than to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc. Any
commission due ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc. as a result of the within Lease shall be
adjusted for that portion of commissions previously paid to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Inc. for the prior lease agreement, to the extent said prior lease agreement has
been superseded by this lease agreement. Each party further agrees to indemnify
and hold the other party harmless for any and all claims for brokerage fees
arising out of this agreement caused by the acts or arising out of the acts of
such other party.
36. SHORT FORM LEASE
It is understood between the parties hereto that this lease will not be
recorded, but that a short form lease, describing the leased premises, giving
the term of this lease, and making particular mention of any special clauses as
herein contained, may be recorded in accordance with the laws governing and
regulating the recording of such documents in the State of New Jersey.
37. SURRENDER OF PREMISES
On the last day, or earlier permitted termination of the lease term, Tenant
shall quit and surrender the premises in good and orderly condition and repair
(reasonable wear and tear, and damage by fire or other casualty excepted) and
shall deliver and surrender the leased premises to the Landlord peaceably,
together with all alterations, additions and improvements in, to or on the
premises [illegible] Tenant as permitted under the lease. Prior to the
expiration of the lease term the Tenant shall remove all of its property,
fixtures, equipment and trade fixtures from the premises. If the premises
[illegible] surrendered to the end of the lease term, Tenant shall indemnify
Landlord against loss or liability resulting from delay by Tenant in
surrendering the premises, including, without limitation any claims made
[illegible]
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succeeding Tenant founded on the delay.
38. SECURITY DEPOSIT
The Affiliated Tenant has previously deposited $3,454.50 as security
hereunder. The Affiliated Tenant has agreed to allow the security deposit
previously deposited to be applied to the security deposit due from Tenant.
Therefore, upon execution hereof Tenant will deposit an additional $4,956.00 as
additional security hereunder, making the total security deposit $8,410.50.
Landlord may use as much of the deposit as necessary to pay for damages
resulting from Tenant's occupancy. If this occurs prior to the end of the lease
term, Landlord may demand that Tenant replace the amount of the deposit used by
Landlord. If Landlord sells the leased premises. Landlord may transfer the
deposit to the new owners for Tenant's benefit. Landlord will notify Tenant of
any sale and transfer of the deposit. Landlord will then be released of all
liability to return the security deposit.
39. OPTION TO RENEW
Provided the Tenant is not in default uncured pursuant to the terms and
conditions of this lease, the Tenant is hereby given the right and privilege to
renew the within lease, including any additional space leased by Tenant in
accordance with the terms hereof, for one (1) additional period of five (5)
years, to commence at the end of the initial term of this lease. The renewal
term shall be upon the same terms and conditions as in this lease contained,
except that the rent shall be determined in the following manner:
I. DETERMINATION OF RENT DURING EXTENDED TERM.
If Tenant elects to extend the Lease Term pursuant to this Section, Rent
for each Extended Term shall be an amount equal to one hundred percent (100%) of
the Renewal Base Rent (as defined in par.(c) of this Section) for the Premises
in relation to market conditions at the time of the extension. The Renewal Base
Rent for the Premises shall be determined as follows:
(a) Mutual Agreement. After timely receipt by Landlord of Tenant's notice
of exercise of an option to extend the Lease Term, Landlord and Tenant shall
have a period of thirty (30) days in which to agree on the Renewal Base Rent for
the Premises. If Landlord and Tenant agree on the Renewal Base Rent for the
Premises, then they shall immediately execute an amendment to this Lease stating
and incorporating such agreed upon Renewal Base Rent as the Rent for the
applicable Extended Term.
(b) Arbitration.
(1) If Landlord and Tenant are unable to agree upon the Renewal Base Rent
within thirty (30) days following Tenant's exercise of the option, then the
dispute shall proceed to arbitration. The arbitration procedure shall commence
when either party submits the matter to arbitration. Not later than ten (10)
days after the arbitration procedure has commenced, each party shall appoint an
arbitrator and notify the other party of such appointment by identifying the
appointee. Each party hereto agrees to select as its respective appointee a
licensed real estate broker, who is an individual of substantia1 experience with
respect to office building ownership, management and marketing in the Tinton
Falls area of Monmouth County, New Jersey, which person shall not be regularly
employed or have been retained during the last two (2) years by the party
selecting such person. Neither party may consult directly or indirectly with any
arbitrator regarding the Renewal Base Rent prior to appointment, or after
appointment
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outside the presence of the other party. The arbitration shall be conducted in
Red Bank, New Jersey, under the provisions of the commercial arbitration rules
of the American Arbitration Association and Title 2A, Chapter 24 of the Laws of
the State of New Jersey.
(2) Not later than (10) days after both arbitrators are appointed, each
party shall separately, but simultaneously, submit in a sealed envelope to each
arbitrator their separate suggested Renewal Base Rent and shall provide a copy
of such submission to the other party. The two (2) selected arbitrators, after
reviewing such submissions, shall determine whether Landlord's or Tenant's
estimate of the Renewal Base Rent is closer to the actual Renewal Base Rent for
the Premises. If both arbitrators agree that one of said declared estimates is
closer to the actual Renewal Base Rent, they shall declare that estimate to be
the Renewal Base Rent, and their decision shall be final and binding upon the
parties.
(3) If the two selected arbitrators are unable to agree on the Renewal Base
Rent within thirty (30) days after receipt of Landlord's and Tenant's submitted
estimates, then the arbitrators shall inform the parties. Unless the parties
shall both otherwise then direct, said arbitrators shall select a third
arbitrator, not later than ten (10) days after the expiration of said thirty
(30) day period. If no arbitrator is selected within such ten (10) day period,
either party may immediately petition a court with appropriate jurisdiction to
appoint such third arbitrator. The third arbitrator shall have the
qualifications and restrictions set forth in paragraph (b)(l) above, and shall
conduct an arbitration pursuant to the commercial arbitration rules of the
American Arbitration Association. The third arbitrator's decision shall be final
and binding as to which estimate (as between Landlord's and Tenant's) of the
Renewal Base Rent is closer to the actual Renewal Base Rent. Such third
arbitrator shall make a decision not later than thirty (30) days after
appointment.
(4) Each party shall be responsible for the costs, charges and/or fees to
its respective appointee, and the parties shall share equally in the costs,
charges and/or fees of the third arbitrator. The decision of the arbitrator(s)
may be entered in any court having jurisdiction thereof.
(e) Renewal Base Rent. The term "Renewal Base Rent" shall mean the Base
Rent for that space which would be paid by a willing Tenant to a willing
Landlord, neither of whom is compelled to rent, for a term of five (5) years,
disregarding "tenant concessions," if any, then being offered on comparable
vacant space only to prospective new tenants in the Building. The term "tenant
concessions" shall include, without limitation, such inducements as free rent,
free parking, standard tenant improvement allowances or work letter and
Landlord's assumption of existing leases. The Renewal Base Rent shall not
reflect the value of any improvements to the Premises made by Tenant which
Tenant has the right to remove at the end of the Term.
II. NOTICE REQUIREMENT.
The right, option, and privilege of the Tenant to renew this lease as
hereinabove set forth is expressly conditioned upon the Tenant delivering to the
Landlord, in writing, by certified mail, return receipt requested, nine (9)
months' prior notice of its intention to renew, which notice shall be given to
the Landlord by the Tenant no later than nine (9) months prior to the date fixed
for termination of the original term hereinbefore provided. Tenant shall
exercise the options granted hereunder by notifying Landlord
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as hereinafter provided of its intention to renew.
III. LEASE AMENDMENT AS TO RENT.
Upon determination of the Renewal Base Rent, the parties shall execute a
letter amendment establishing in writing the applicable annual rent for the
renewal term. It is expressly understood and agreed that the annual rent as
determined for any renewal term shall not be less than the prior annual rent for
the immediate prior lease term. As the determination of the applicable renewal
rent may not be made at the inception of any renewal term, any excess
differential in adjusted rent not paid by Tenant for months elapsed shall be
paid together with the next monthly rent succeeding determination of the new
revised Original Base Rent.
40. ENVIRONMENTAL LAWS
A. Tenant shall, at Tenant's own expense, comply with the Industrial Site
Recovery Act, N.J.S.A. 13: lK-6 et seq. and the regulations promulgated
thereunder ("ISRA") in line with the closing, termination or transfer of
Tenant's operation at the premises. Tenant shall also provide all information
within Tenant's control requested by Landlord or the Bureau of Industrial Site
Evaluation (the "Bureau") of the New Jersey Department of Environmental
Protection and Energy (the "NJDEP") for preparation of non-applicability
affidavits should Landlord or NJDEP so request, and Tenant shall promptly
execute such affidavits should the information contained therein be found by
Tenant to be complete and accurate. In the event that ISRA compliance becomes
necessary at the premises due to any action or non-action on the part of the
Tenant, including but not limited to Tenant's execution of a sale agreement for
Tenant's business, any change in use of the leased premises, initiation of
bankruptcy proceedings, Tenant's financial reorganization or sale of the
controlling share of Tenant's assets, then Tenant shall comply with ISRA and all
requirements of the ISRA Bureau at Tenant's own expense. 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 leased premises which occur during the term of this
lease, then Tenant shall, at Tenant's own expense, prepare and submit the
required plans and financial assurances, and carry out the approved plans.
B. Tenant shall not (either with or without negligence) cause or permit the
escape, disposal or release of any biologically or chemically active or other
hazardous substances, or materials. Tenant shall not allow the storage or use of
such substances or materials in any manner not sanctioned by law or by the
highest standards prevailing in the industry for the storage and use of such
substances or materials, nor allow to be brought into the Project any such
materials or substances except to use in the ordinary course of Tenant's
business, and then only after written notice is given to Landlord of the
identity of such substances or materials. Without limitation, hazardous
substances and materials shall include those described in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et seq., the resource Conservation and Recovery Act, as
amended, 42 U.S.C. Section 6901 et seq., any applicable state or local laws and
the regulations adopted under these acts. If any lender or governmental agency
shall ever require testing to ascertain whether or not there has been release of
hazardous materials, then the reasonable costs thereof shall be reimbursed by
Tenant to
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Landlord upon demand as additional charges if such requirement applies to the
Premises. In addition, Tenant shall execute affidavits, representations and the
like from time to time as Landlord's request concerning Tenant's best knowledge
and belief regarding the presence of hazardous substances or materials on the
Premises. In all events, Tenant shall indemnify any release of hazardous
materials on the Premises occurring while Tenant is in possession, or elsewhere
if caused by Tenant or persons acting under Tenant. The within covenants shall
survive the expiration or earlier termination of the lease term.
41. RIGHT OF FIRST REFUSAL
A. Tenant shall have the right to rent the space in the Property presently
occupied by Columbia Research consisting of 3,000 square feet (the "Columbia
Space") provided that Tenant notifies Landlord not later than December 31, 1996
in writing of Tenant's election to rent such space. In the event that Tenant
makes a timely election to rent the Columbia Space as provided herein, then the
following provisions shall apply:
i) Tenant will have sixty days from December 31, 1996 to cause
Columbia Research to vacate the Columbia Space, but in any event, Landlord
shall not be liable to Tenant in the event, due to causes beyond Landlord's
control, Columbia Research has failed to vacate by such date.
ii) Upon The Columbia Space being vacated, the Columbia Space will
thereafter be considered a part of the leased premises.
iii) Landlord will reimburse Tenant for the cost of tenant
improvements installed in the Columbia Space, up to a maximum amount of
$25,000.00, under the same terms and procedures as provided in Article 6.3
above.
iv) Upon delivery of the Columbia Space to Tenant, additional rent
will be paid by Tenant to Landlord in the amount of $3,500.00 per month
through November 30, 1998, and in the amount of $3,750.00 per month from
December 1, 1998 through November 30, 2001. Rent for any partial month
shall be prorated for that month.
B. If Tenant fails to make a timely election to rent the Columbia Space as
provided above, Landlord shall be free to extend Columbia Research's lease of
the Columbia Space under such terms and conditions as Landlord may choose. At
such time as Columbia Research has vacated the Columbia Space, if thereafter
Landlord shall receive from any third party, other than one controlled by
Landlord or any principal of Landlord, an acceptable bona fide offer to lease
the Columbia Space, Landlord shall notify Tenant in writing, and Tenant shall
thereafter have ten (10) days within which to elect to lease such space under
the same terms, as to rent and lease term, as provided under the terms of this
Lease Agreement. If Tenant elects to rent such space, Tenant shall give Landlord
written notice of such decision within ten (10) days from receipt of Landlord's
notice advising Tenant of such offer, and the rent on such additional space
shall commence upon delivery of possession of said space by Landlord to Tenant.
42. PRIOR LEASE BY AFFILIATED TENANT
The parties hereby agree that upon occupancy of the leased premises by
Tenant and pays rent in accordance with the terms hereof, the Affiliated Tenant
shall be released from the terms
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provisions of that lease agreement between Landlord and Affiliated Tenant for
the portion of the leased premises presently being rented by Affiliated Tenant,
it being the intent hereby that rent for that portion of the leased premises
rented by Affiliated Tenant shall continue without interruption until the
Commencement Date hereunder. Tenant hereby represents to Landlord that by
executing this Lease Agreement, Tenant covenants that Tenant has obtained the
consent of Affiliated Tenant to take over the area of the leased premises
presently being rented by Affiliated Tenant.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals or
caused these presents to be signed by its proper corporate officers and cause
its proper corporate seal to be hereunto affixed, the day and year first above
written.
WITNESS LANDLORD
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
ATTEST: TENANT:
Arc Slide Technologies, Inc.
BY: /s/ [illegible] president
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/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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,Secretary
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