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EXHIBIT 10.1
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made as of the 26th day of _____________,
1996 by and between ADVENT REALTY LIMITED PARTNERSHIP II, a Delaware Limited
Partnership ("Landlord"), and Brighton Industries Corporation (a Delaware
Corporation) ("Tenant") (the words "Landlord" and "Tenant" to include their
respective legal representatives, successors and permitted assigns where the
context requires or permits).
BASIC LEASE PROVISIONS
The following constitutes the basic provisions of this Lease. These basic
provisions are more fully described under the applicable provisions of this
Lease:
(1) Demised Premises Address: 0 Xxxxx Xxxxx, Xxxxxxxxx, XX
(2) Demised Premises Square Footage: 5,000 sf
(3) Building Square Footage: 100,000 sf
(4) Annual Base Rent:
Lease Year 1: $41,250.00 $8.25 psf
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Lease Year 2: $42,500.00 $8.50 psf
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Lease Year 3: $43,750.00 $8.75 psf
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Lease Year 4: $45,000,00 $9.00 psf
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Lease Year 5: $46,250.00 $9.25 psf
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(5) Monthly Base Rent Installments:
Lease Year 1: $3,437.50
Lease Year 2: $3,541.67
Lease Year 3: $3,645.83
Lease Year 4: $3,750.00
Lease Year 5: $3,854.17
(6) Lease Commencement Date: August 1, 1996
(7) Base Rent Commencement Date: October 1, 1996
(8) Expiration Date: July 31, 2001
(9) Term: Five (5) years
(9) Tenant's Operating Expense
Percentage of Building: 5%
(10) Security Deposit: Two months rent $6,875.00
(11) Permitted Use: General/Administrative offices, light assembly
and non-hazardous storage
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W I T N E S S E T H
That Landlord, for and in consideration of the rents and all other charges and
payments hereinafter reserved and payable by Tenant, and of the covenants,
agreements, terms, provisions and conditions to be kept and performed hereunder
by Tenant, does hereby demise and lease to Tenant, and Tenant does hereby hire
and take from Landlord, the Premises described below ("Premises"), subject to
all matters hereinafter set forth and upon the subject to the covenants,
agreements, terms, provisions and conditions of this Lease for the term
hereinafter stated.
1. PREMISES. The Premises demised by this lease are approximately 5,000
square feet located at 0 Xxxxx Xxxxx, Xxxxxxxxx, New Jersey
("Building") , together with a nonexclusive right to use parking and
other common areas. The location and dimensions of the Premises are
shown on Exhibit "A", which is attached hereto and incorporated
herein by reference. No easement for light or air is incorporated in
the Premises.
2. TERM. The term of this Lease shall begin on the 1st day of August,
1996 and ends on the 31st day of July, 2001 at midnight, unless
sooner terminated as hereinafter provided.
3. RENT. Tenant agrees to pay Landlord by payment to office as
Landlord may designate, promptly on the first day of each month, in
advance, during the term of this Lease, a monthly rental ("Rent") in
U.S. currency as follows:
Year Monthly
---- -------
Year 1 $3,437.50
Year 2 3,541.67
Year 3 3,645.83
Year 4 3,750.00
Year 5 3,854.17
It is intended that the Rental provided for in this lease shall be an absolutely
net return to Landlord throughout the Term hereof, free of any expense, charge
or other deduction whatsoever, with respect to the Premises, the Building
management, maintenance, repair, rebuilding, use or occupation of any interest
of Landlord therein, except only as otherwise expressly provided in this lease.
4. RENT INCREASE. Intentionally Omitted.
5. ADDITIONAL RENT.
a. In addition to the Rent, Tenant shall pay to Landlord that
percent of the total cost of the following items
("Adjustments") as the total floor area of the Premises bears
to the total floor area of the Building as of the first day of
each calendar month.
(i) All real estate taxes and insurance premiums. Said real
estate taxes shall include all real estate taxes and
assessments that are levied upon or assessed against the
Premises, including any taxes which may be levied on
rents. Said insurance premiums shall include all
insurance premiums for fire, extended coverage, public
liability, and other insurance which Landlord deems
necessary. If any tenant(s) in the Building pay taxes
directly to any taxing authority or carry their own
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insurance, as may be provided in their leases, the
square footage of their leased Premises shall not be
included as part of the floor area of the Building for
purposes of calculating Tenant's share of Adjustments:
(ii) All costs to maintain, repair, replace, supervise,
insure (including provision of public liability
insurance) and administer common areas, parking lots,
landscaping, sidewalks, driveways, roof covering,
downspouts and gutters, the structural portions of the
roof, foundations and exterior walls of the Building,
and other areas used in common by the tenants or
occupants of the Building. Said costs may include a
reasonable administrative fee payable to Landlord.
Nothing in the foregoing sentence shall be construed to
make Tenant liable for capital improvement.
(iii) Any parking charges or other costs levied, assessed or
imposed by, or at the direction of, or resulting from
statutes or regulations, or interpretations thereof,
promulgated by any governmental authority or insurer in
connection with the use or occupancy of the Premises or
the common areas of the Building.
(iv) Management fees for the operation of the Building not to
exceed, however, any annual sum equal to four (4%)
percent of the total annual fixed rent for the Building.
b. Upon commencement of this Lease, Landlord shall submit to
Tenant an estimate of monthly Adjustments for the period
between such commencement date and the following July 1 and
Tenant shall pay these estimated Adjustments on a monthly
basis concurrently with the payment of the Rent. Tenant shall
continue to make such monthly payments until notified by
Landlord of a change therein. Once annually, Landlord shall
provide to Tenant a statement showing the total Adjustments
for the prior year and Tenant's allocable share thereof,
prorated from the commencement date of this Lease during the
first year. If the total monthly payments which Tenant has
made for the prior year (or portion thereof during which the
Lease was in effect) is less than the Tenant's actual share of
such Adjustments, then Tenant shall pay the difference in a
lump sum and ten (10) days after receipt of such statement
from Landlord. Any overpayment by Tenant shall be credited
towards the Adjustments next due. The actual Adjustments for
the prior year shall be used for purposes of calculating the
estimated monthly Adjustments for the current year with actual
determination of such Adjustments occurring after the end of
each calendar year, except that in any year in which
resurfacing of the common parking area or major roof repairs
are planned, Landlord may include the estimated cost of such
work in the estimated monthly Adjustments. Even though the
term of this Lease has expired and Tenant has vacated the
Premises, when the final determination is made of Adjustments
for the year in which this Lease terminates, Tenant shall
immediately pay any increase over the estimated Adjustment
previously paid and, conversely, any overpayment shall be
credited to the Tenant's account.
6. PERSONAL PROPERTY TAXES. Tenant shall pay, or cause to be paid,
before delinquency any and all taxes levied or assessed and which
become payable during the term hereof upon all Tenant's leasehold
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improvements, equipment, furniture, fixtures, and any other personal
property located on the Premises. In the event any or all of the
Tenant's leasehold improvements, equipment, furniture, fixtures and
other personal property shall be assessed and taxed with the real
property, Tenant shall pay to Landlord its share of such taxes
within ten (10) days after delivery to Tenant by Landlord of a
statement in writing setting forth the amount such tax is applicable
to Tenant's property.
7. UTILITY BILLS. Tenant shall promptly pay all water, sewer, gas,
electricity, fuel, phone, light, heat, electric power and other
utility bills from the Premises. If Tenant does not pay these bills,
Landlord may pay them and such payment shall be added to the Rent.
8. LATE CHARGES. Tenant hereby acknowledges that late payment to
Landlord of Rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. If any Rent or
other sums due from Tenant is not received by Landlord or Landlord's
designated agent within ten (10) days after its due date, then
Tenant shall pay to Landlord a late charge equal to the maximum
amount permitted by law (and in the absence of any governing law,
two percent (2%) of such overdue amount), plus reasonable
attorneys' fees incurred by Landlord due hereunder. The parties
hereby agree that such late charges represent a fair and reasonable
estimate of the cost that Landlord will incur by reason of Tenant's
late payment. Landlord's acceptance of such late charges shall not
constitute a waiver of Tenant's default with respect to such overdue
amount or estop Landlord from exercising any of the other rights and
remedies granted hereunder.
9. SECURITY DEPOSIT. Concurrently with Tenant's execution of this
Lease, Tenant has deposited with Landlord $6,875.00. Said sum shall
be held by Landlord as security for the faithful performance by
Tenant of all the terms, covenants, and conditions of this Lease to
be kept and performed by Tenant during the term hereof. If Tenant
defaults with respect to any provisions of this Lease, including,
but not limited to, the provisions relating to the payment of Rent,
Landlord may (but shall not be required to) use, apply or retain all
or any part of this security deposit for the payment of any Rent or
any other sum in default, or for the payment of any amount which
Landlord may spend or become obligated to spend by reason of
Tenant's default, or to compensate Landlord for any other loss or
damage which Landlord may suffer by reason of Tenant's default. If
any portion of said security deposit is so used or applied, Tenant
shall, within ten (10) days after written demand therefor, deposit
cash with Landlord in any amount sufficient to restore the security
deposit to its original amount and Tenant's failure to do so shall
be a default under this Lease. Landlord shall not be required to
keep this security deposit separate from its other funds, and
(unless otherwise required by law) Tenant shall not be entitled to
interest of such deposit. If Tenant shall fully and faithfully
perform every provision of this Lease to be performed by it, the
security deposit or any balance thereof shall be returned to Tenant
(or, at Landlord's option, to the last assignee of Tenant's interest
hereunder) within ten (10) days following expiration of this Lease
term. In the event of termination of Landlord's interest in this
Lease, Landlord shall transfer said deposit to Landlord's successor
in interest,
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10. USE OF PREMISES.
a. The Premises shall be used for general/Administrative offices,
light assembly and non-hazardous storage. Tenant shall not
create any nuisance or trespass or vitiate the insurance or
increase the rate of insurance on the Premises or the
Building. Tenant agrees not to overload the floor(s) of the
Premises or the Building. Tenant agrees not to use the
Premises for any purpose or business which is illegal,
noxious, offensive because of emission of noise, creates
smoke, dust, or odors or which could damage the Building or
the Lands environmentally or otherwise or be a nuisance or
menace to or interfere with any other tenant or the public.
b. Simultaneously herewith, Tenant shall furnish Landlord with
all Standard Industrial Classification numbers as issued by
the United States, the State of New Jersey or any other
governmental authority ("SIC"), which relates to the business
of the Tenant and the uses and purposes for which the Premises
shall be utilized, together with all additions and/or
amendments thereto, prior to creating any such addition or
amendment. Landlord, within thirty (30) days following
receipt of notice of any addition or amendment thereto, shall
have the right to refuse to permit such change or addition in
use and/or in SIC and upon notification to tenant of such
refusal, Tenant shall not have the right to effect such
changes or addition. Tenant's SIC number is _______.
11. ABANDONMENT OF PREMISES. Tenant agrees not to abandon the Premises
during the term of this Lease and agrees to use said Premises for
the purposes stated above and only for such purpose.
12. DESTRUCTION AND DAMAGE.
a. If the Building is damaged by fire or other perils covered by
extended coverage insurance Landlord shall, at Landlord's
option:
(i) In the event of total destruction of the Building, elect
either to promptly commence repair and restoration of
the Building and prosecute the same diligently to
completion, in which event this Lease shall remain in
full force and effect; or not to repair or restore said
Building, in which event this Lease shall terminate. In
either case, Landlord shall give Tenant written notice
of its intention within sixty (60) days after the
occurrence of such destruction. If Landlord elects not
to restore the building, this Lease shall be deemed to
have terminated as of the date of such total
destruction.
(ii) In the event of a partial destruction of the Building to
an extent not exceeding twenty-five percent (25%) of the
full insurable value thereof and if the damage thereto
is such that the Building may be repaired or restored
within ninety (90) days from the date of such
destruction and Landlord will receive insurance proceeds
sufficient to cover the cost of such repairs, commence
and proceed diligently with the work or repair and
restoration, in which event the Lease shall continue in
full force and effect; or if such repair and restoration
requires longer than ninety (90) days or the cost
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thereof exceeds twenty-five percent (25%) of the full
insurable value thereof or if said insurance proceeds
will not be sufficient to cover such costs, Landlord may
elect either to so repair and restore, in which event
the Lease shall continue in full force and effect, or
not repair, reconstruct or restore, in which event the
Lease shall terminate. In either case, Landlord shall
give written notice to Tenant of its intention within
ninety (90) days after the destruction occurs. If
Landlord elects not to restore the Building, this Lease
shall be deemed to have terminated as of the date of
such partial destruction.
b. Upon termination of this Lease under any of the provisions of
this Article, the parties shall be released thereby without
further obligation to the other from the date of the damage or
destruction, except for items which have theretofore accrued
and are then unpaid.
c. In the event of repair and restoration as herein provided, the
Rent shall be abated proportionately in the ratio which the
Tenant's use of the Premises is impaired during the period of
such repair, reconstruction or restoration. Tenant shall not
be entitled to any compensation or damages from loss of use of
the whole or any part of said Premises and/or any
inconvenience or annoyance occasioned by such damage, repair,
reconstruction or restoration.
d. Tenant shall not be released from any of its obligations under
this Lease except to the extent and upon the conditions
expressly stated in this Article. Notwithstanding anything to
the contrary contained in this Article, if Landlord has
elected to repair and restore the Premises and is thereafter
delayed or prevented from repairing and restoring said
Premises within one (1) year after the occurrence of such
damage or destruction by reason of acts of God, war,
governmental restrictions, inability to procure the necessary
labor or materials, or other cause beyond the control of
Landlord, Landlord shall be relieved of its obligation to make
such repairs or restoration and, at Landlord's option, Tenant
shall be released from its obligations under this Lease as of
the end of said one (1) year period.
e. If damage to the Building or the Premises is due to any cause
other than fire or other peril covered by extended coverage,
insurance, Landlord or Tenant may elect to terminate this
Lease.
f. If Landlord is obligated to or elects to repair or restore as
herein provided, Landlord shall repair or restore only those
portions of said Building and Premises which were originally
provided at Landlord's expense, and the repair and restoration
of areas or items not provided at Landlord's expense shall be
the obligation of Tenant.
g. Notwithstanding anything to the contrary contained in this
article, Landlord shall not have any obligation to repair or
restore the Premises or the Building during the last twelve
(12) months of this Lease or any extension thereof. If
Landlord elects not to restore the Building, this Lease shall
be deemed to have terminated as of the date of such partial
destruction.
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13. CONDEMNATION. If twenty-five percent (25%) or more of the Premises
is taken for any public or quasi-public purpose by any lawful
governmental power or authority, by exercise or the right of
appropriation, reverse condemnation, condemnation or eminent domain
or sold to prevent such taking, the Tenant or the Landlord may at
its option terminate this Lease as of the effective date thereof,
Tenant shall not because of such taking assert any claim against the
Landlord or the taking authority for any compensation because of
such taking, and Landlord shall be entitled to receive the entire
amount of any award without deduction for any estate or interest of
Tenant. If less than twenty-five percent (25%) of the Premises is
taken, Landlord at its option may terminate this Lease. If Landlord
does not so elect, Landlord shall promptly proceed to restore the
Premises to substantially their same condition prior to such partial
taking, allowing for the reasonable effects of such taking, and a
proportionate allowance shall be made to Tenant for the Rent and
Additional Rent corresponding to the time during which, and to the
part of the Premises of which, Tenant is deprived on account of such
taking and restoration.
14. INDEMNIFICATION BY TENANT. Tenant agrees, as its sole cost and
expense, to indemnify and save Landlord harmless from and against
any and all claims, actions, demands and suits, for, in connection
with, or resulting from, any accident, injury or damage whatsoever
caused to any person or property arising, directly or indirectly, in
whole or in part, out of the business conducted in or the use of the
Premises, or occurring in, on or about the Premises or any part
thereof, or arising, directly or indirectly, in whole or in part,
from any act or omission of Tenant or any concessionaire or
subtenant or their respective licensees, servants, agents, employees
or contractors, or arising out of the breach or default by Tenant or
any term, provisions, covenant or condition herein contained, and
from and against any and all losses, costs, expenses, judgments and
liabilities incurred in connection with any claim, action, demand,
suit or other proceeding brought thereof, except for any loss or
damage caused by negligence of the Landlord, its employees and
agents. Said indemnity shall include defending or resisting and
proceeding by attorneys reasonably satisfactory to Landlord.
15. LIABILITY INSURANCE. Tenant shall, at Tenant's expense, obtain and
keep in force during the term of this Lease a policy of
comprehensive public liability insurance insuring Landlord and
Tenant against any liability arising out of the ownership, use,
occupancy, or maintenance of the Premises and all areas appurtenant
thereto. Such insurance shall be in the amount of not less than
Three Million Dollars ($3,000,000) for injury or death of one person
in any one accident or occurrence and in the amount of not less than
Three Million Dollars ($3,000,000) for injury or death of more than
one person in any one accident or occurrence. Such insurance shall
further insure Landlord and Tenant against liability for property
damage of at least Three Million Dollars ($3,000,000). The limit of
any such insurance shall not limit the liability of the Tenant
hereunder. Tenant may provide this insurance under a blanket
policy, provided that said insurance shall have a Landlord's Agent
protective liability endorsement attached thereto. If Tenant fails
to procure and maintain said insurance, Landlord may, but shall not
be required to, procure and maintain same, but at the expense of
Tenant. Insurance required hereunder shall be in companies rated
A:XIII or better in "Best Key Rating Guide". Tenant shall deliver
to Landlord copies of certificates of insurance evidencing the
liability insurance required herein with loss payable clauses
reasonably Satisfactory to Landlord. No policy shall be cancelable
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or subject to reduction of coverage. All such policies shall name
Landlord and Xxxxxxxx Associates, Inc. as additional insured, shall
be written primary policies not contributing with and not in excess
of coverage which Landlord may carry and shall be written with an
insurance carrier satisfactory to Landlord.
16. FIRE INSURANCE - FIXTURES AND EQUIPMENT. Tenant shall maintain in
full force and effect on all of its fixtures and equipment on the
Premises a policy or policies of fire and extended coverage
insurance with standard coverage endorsement in amount or amounts
equal to the full replacement cost of such fixtures and equipment.
During the term of this Lease the proceeds from any such policy or
policies of insurance shall be used for the repair or replacement of
the fixtures and equipment so insured. Landlord shall have no
interest in the insurance upon Tenant's equipment and fixtures and
will sign all documents reasonably necessary or proper in connection
with the settlement of any claim or loss by Tenant. Landlord will
not carry insurance on Tenant's possessions. Tenant shall furnish
Landlord with a certificate evidencing such policy and whenever
required shall satisfy Landlord that such policy is in full force
and effect.
17. REPAIRS BY LANDLORD. Landlord agrees to keep in good repair the
structural portions of the roof, foundations, and exterior walls of
the Premises (exclusive of all glass and all exterior doors) and
underground utility and sewer pipes outside the exterior walls of
the Building, if any, except repairs rendered necessary by the
negligence of Tenant, its agents, customers, employees or invitees.
Landlord gives to Tenant exclusive control of the Premises and shall
be under no obligation to inspect said Premises. Tenant shall
promptly report in writing to Landlord any defective condition known
to it which Landlord is required to repair.
18. REPAIRS BY TENANT. Except for renovations to be provided by Landlord
prior to occupancy, as set forth on Exhibit B and Exhibit C attached
hereto, Tenant represents that it accepts the Premises in their
present condition and as suited for the uses intended by Tenant.
Tenant shall, throughout the initial term of this Lease and all
renewals thereof, at its expense, take good care of the Premises and
shall keep repair, replace and maintain the Premises in good order,
condition and repair, reasonable wear and tear excepted, and each
and every part thereof (including, without limitation, painting and
decorating, and the repair, maintenance and replacement of any
heating, ventilating and air conditioning. units or system) , except
only such matters that are expressly stated herein to be within the
Landlord's obligation to maintain, and shall not cause nor permit
any dirt, debris or rubbish to be put, placed or maintained on the
sidewalks, driveways, parking lots, yards, entrances and curbs, in,
on or adjacent to the Building. Tenant further agrees not to use the
Premises or permit the Premises to be used in any manner as to cause
excessive depreciation of or to the Building and improvements, and
agrees not to cause nor permit waste of or damage or nuisance to,
in, or about the Premises of the Building.
19. NO ACCESS TO ROOF. Tenant shall have no right to access to the roof
of the Premises or the Building and shall not install, repair, place
or replace any aerial, fan, air conditioner or other device on the
roof of the Premises or the Building without the prior written
consent of Landlord. Any aerial, fan, air conditioner or device
installed without such written consent shall be subject to removal
at Tenant's expense, without notice, at any time. Landlord shall
repair at Tenant's expense, any damage to the Building or roof
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resulting from the installation, repair, use, or replacement or any
such air conditioner or other device.
20. ASSIGNMENT AND SUBLETTING. Tenant shall not either voluntarily, or
by operation of law, assign, transfer, mortgage, pledge, hypothecate
or encumber this Lease or any interest therein, and shall not sublet
the Premises or any part thereof, or any right or privilege
appurtenant thereto, or allow any other person (the employees,
agents, servants and invitees of Tenant excepted) to occupy or use
their Premises, or any portion thereof, without first obtaining the
written consent of Landlord, which consent shall not be unreasonably
withheld, Tenant can transfer its rights to this Lease to a related
entity provided Tenant owns in excess of 51% of the entity. when
Tenant requests Landlord's consent to such assignment or subletting,
it shall notify Landlord in writing of the name and address of the
proposed assignee or subtenant and the nature and character of the
business of the proposed assignee or subtenant and shall provide
financial statements for the proposed assignee or subtenant.
Landlord shall have the option (to be exercised within fifteen (15)
business days from the submission of Tenant's request) to cancel
this Lease as of the commencement date stated in the proposed
sublease or assignment. If Landlord shall not exercise its option
within the time set forth above, its consent to any proposed
assignment or subletting shall not be unreasonably withheld. if
Landlord approves an assignment or subletting as herein provided,
Tenant shall pay to Landlord, as Additional Rent, the difference, if
any, between Rent plus Additional Rent allocable to that part of the
Premises affected by such assignment or sublease pursuant to the
provisions of this Lease, and the Rent and Additional Rent payable
by the assignee or sublessee to Tenant, less reasonable expenses
actually incurred by Tenant related to the sublease or assignment to
include attorney fees, brokerage commission and construction costs
as evidenced by receipted bills. A consent to one assignment,
subletting, occupation or use shall not be deemed to be a consent to
any other or subsequent assignment, subletting, occupation or use
and consent to any assignment or subletting shall in no way relieve
Tenant of any liability under this Lease. Any assignment or
subletting without Landlord's consent shall be void, and shall, at
the option of the Landlord, constitute a default under this Lease.
In the event that Landlord shall consent to a sublease or assignment
hereunder, Tenant shall pay Landlord's reasonable fees, not to
exceed one hundred dollars per transaction, incurred in connection
with processing of documents necessary to the giving of such
consent.
21. TENANT DEFAULT. The occurrence of any one of the following events
shall constitute an event of default ("Default") on the part of
Tenant:
a. The abandonment of the Premises by Tenant;
b. Failure to pay any installment of Rent or any other monies due
and payable hereunder;
c. Default in the performance of any of Tenant's covenants,
agreements or obligations hereunder, said Default (except
Default in the payment of any installment of Rent, or other
monies) continuing for ten (10) days after written notice
thereof from Landlord to Tenant. If effort is made to cure
default but such effort is not completed within the ten (10)
days provided for above, then Tenant shall have an additional
fifteen (15) days to cure same.
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d. The filing of a voluntary petition in bankruptcy by Tenant,
the filing of a voluntary petition for any arrangement, the
filing of a petition, voluntary or involuntary, for
reorganization, or the filing of an involuntary petition by
Tenant's creditors, said involuntary petition remaining
undischarged for a period of sixty (60) days; unless tenant
continues to pay rent.
e. Receivership, attachment, or other judicial seizure of
substantially all of Tenant's assets on the Premises, such
attachment or other seizure remaining undismissed or
undischarged for a period of sixty (60) days after the levy
thereof.
22. LANDLORD'S REMEDIES.
a. Damages. In the event of any such Default by Tenant, then in
addition to any other remedies available to Landlord at law or
in equity, Landlord shall have the immediate option to
terminate this Lease and all rights of Tenant hereunder by
giving written notice to such intention to terminate. In the
event that Landlord shall elect to so terminate this Lease
then Landlord may recover from Tenant:
i. the worth at the time of award of any unpaid Rent which
has been earned at the time of such termination; plus
ii. the worth at the time of award of the amount by which
the unpaid Rent which would have been earned after
termination until the time or award exceeds the amount
of such rental loss Tenant proves could have been
reasonably avoided; plus
iii. the worth at the time of award of the amount by which
the unpaid Rent for the balance of the Term after the
time of award exceeds the amount of such rental loss
that Tenant proves could be reasonably avoided; plus
iv. any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure
to perform his obligation under this Lease of which in
the ordinary course of things would be likely to result
therefrom; plus
v. such reasonable attorney's fees incurred by Landlord as
a result of such Default, and costs in the event suit is
filed by Landlord to enforce such remedy; and
vi. at Landlord's election, such other amounts in addition
to or in lieu of the foregoing as may be permitted from
time to time by applicable law, The term "Rent", as used
in this Article 22, shall be deemed to be and to mean
the monthly Rent, Additional Rent and all other sums
required to be paid by Tenant pursuant to the terms of
this Lease.
As used in Subparagraphs i and ii above, the "worth at the
time of award" is computed by allowing interest at the rate of
the Federal Reserve Bank of New York at the time of award plus
one percent (1%).
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b. Re-entry. In the event of any such default by Tenant, Landlord
shall also have the right, with or without terminating this
Lease, to reenter the Premises and remove all persons and
property from the Premises; such property may be removed and
stored in a public warehouse or elsewhere at the cost of and
for the account of Tenant.
c. Election. In the event of the vacation or abandonment of the
Premises by Tenant or in the event that Landlord shall elect
to re-enter as provided in Paragraph b. above or shall take
possession of the Premises pursuant to legal proceeding or
pursuant to any notice provided by law, then if Landlord does
not elect to terminate this Lease as provided in Paragraph (a)
above, Landlord may from time to time, without terminating
this Lease, either recover all Rent as it becomes due or relet
the Premises or any part thereof for such term or terms and at
such rental or rentals and upon such other terms and
conditions as Landlord in its sole discretion may deem
advisable with the right to make alterations and repairs of
the Premises.
In the event that Landlord shall elect to so relet, then
rentals received by Landlord from such reletting shall be
applied, first, to reasonable attorney's fees incurred by
Landlord as a result of such Default and costs in the event
suit is filed by Landlord to enforce such remedies; second, to
the payment of any indebtedness other than Rent due hereunder
from Tenant to Landlord; third, to the payment of any cost of
such reletting; fourth, to the payment of cost of any
alterations and repairs to the Premises; fifth, to the payment
of Rent due and unpaid hereunder; and the residue, if any,
shall be held by Landlord and applied in payment of future
rent as the same may become due and payable hereunder. Should
that portion of such rentals received from such reletting
during any month, which is applied by the payment of Rent
hereunder, be less than the Rent payable during the month by
Tenant hereunder, then Tenant shall pay such deficiency to
Landlord. Such deficiency shall be calculated and paid
monthly. Tenant shall also pay to Landlord, as soon as
ascertained, any costs and expenses incurred by Landlord in
such reletting or in making such alterations and repairs not
covered by the rentals received from such reletting.
d. Termination. No re-entry or taking of possession of the
Premises by Landlord pursuant to this Article shall be
construed as an election to terminate this Lease unless a
written notice of such intention is given to Tenant or unless
the termination thereof is decreed by a court of competent
jurisdiction. Notwithstanding any reletting without
termination of Landlord because of any Default by Tenant,
Landlord may at any time after such reletting elect to
terminate this Lease for any such Default.
23. SUBORDINATION - ATTORNMENT. Upon request of Landlord, Tenant will in
writing subordinate its rights hereunder to the lien of any mortgage or
deed of trust now or hereafter in force against the Premises, provided the
holder of such mortgage or deed of trust grants tenant a non-disturbance
agreement, and to all advances made or hereafter to be made upon the
security thereof.
In the event any proceedings are brought for foreclosure, or in the
event of the exercise of the power of sale under any mortgage or
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deed of trust made by the Landlord covering the Premises, the Tenant shall
attorn to the purchaser upon any such foreclosure or sale and recognize
such purchaser as the Landlord under this Lease.
The provisions of this Article to the contrary notwithstanding, and so
long as Tenant is not in default hereunder, this Lease shall remain in
full force and effect for the full term hereof.
24. ALTERATIONS AND ADDITIONS REMOVAL OF FIXTURES.
a. Tenant shall not make or allow to be made any alterations,
additions or improvements to or on the Premises or any part
thereof without first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld and
any alterations, additions or improvements to or on said
Premises, including, but not limited to, wall covering,
paneling and built-in cabinet work, but excepting movable
furniture and trade fixtures, shall at once become a part of
the realty and belong to the Landlord and shall be surrendered
with the Premises. In the event any such work shall cost in
excess of Ten Thousand ($10,000) Dollars, such work shall not
be commenced until Tenant shall submit to the Landlord plans
and specifications relating to any such repairs, alterations,
additions or improvements, and all such work shall be
performed in accordance with the provisions of this lease.
Landlord shall not unreasonably withhold its consent to any
such alterations, addition or improvement, but shall have the
right to determine if such work would reduce the value, size
or general utility of the Building or any portion thereof, or
whether such work maintains the architectural harmony of the
Building. Any approval by Landlord as aforesaid may be upon
condition thereof and payment therefor, as Landlord may
reasonably require, including the furnishing of adequate
security. In the event Landlord consents to the making of any
alterations, additions or improvements to the Premises by
Tenant, the same shall be made by Tenant at Tenant's sole cost
and expense and subject to the provisions of Section 42
herein. Upon the expiration or sooner termination of the term
hereof, Tenant shall, upon written demand by Landlord, given
at least thirty (30) days prior to the end of the term, at
Tenant's sole cost and expense, forthwith and with all due
diligence, remove any alterations, additions, or improvements
made by Tenant, designated by Landlord to be removed, and
Tenant shall, forthwith and with all due diligence, at its
sole cost and expense, repair any damage to the Premises
caused by such removal.
b. Any work performed by Tenant, irrespective of cost, shall be
subject to the Landlord's inspection and approval after
completion to determine whether it complies with the
requirements of this lease. The approval or consent of the
Landlord shall not relieve Tenant of its obligation that all
such repairs, alterations, improvements and/or additions be
constructed and performed in a first-class good and
workmanlike manner and in accordance with all applicable
governmental and fire underwriting requirements, nor
constitute a waiver of any rights of Landlord if Tenant fails
to perform its obligations. Tenant, at its sole cost and
expense, shall procure all necessary governmental approvals,
permits or certificates in connection with all work performed
by Tenant in, on or at the Premises and shall deliver the
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original of all such approvals, permits or certificates to the
Landlord, to be retained by Landlord.
c. During the course of any and all repairs, alterations,
additions or improvements which the Tenant shall either be
required to perform or which the Tenant shall elect to
perform, Tenant at its sole cost and expense, shall at all
times obtain and maintain or cause to be obtained and
maintained, workmen's compensation insurance and any other
insurance which shall then be required by law, together with
public liability insurance as set forth in Section 15 hereof,
to insure against any additional hazards created in connection
with the performance of any of the aforesaid work. Prior to
the commencement of any such work, Tenant shall deliver to
Landlord copies of all policies or certificates of insurance
with respect to all policies required pursuant to this Section
24(c).
25. EXTERIOR SIGNS. Tenant may not provide, install or maintain any
exterior signs on the roof or in the windows; nor shall the Tenant,
provide, install or maintain any exterior signs on the facade or
walls of the Building or on any grounds adjacent thereto, unless:
(1) such installation be made in such manner as will not affect any
roofing bond and/or other guarantee which shall then be in force and
effect; (ii) all such signs shall have been approved by Landlord in
writing before installation; and (iii) all such signs must at all
times conform to all applicable rules and regulations, codes and
ordinances of any governmental agencies having jurisdiction there-
over. Any and all signs placed on the Premises by Tenant shall
comply with Landlord's rules and regulations governing such signs
and Tenant shall be responsible to Landlord for any damage caused by
installation, use, or maintenance of such signs. Tenant agrees upon
removal of said signs to repair all damage incident to such removal.
26. ENTRY FOR CARTING AND REPAIRS.
a. Landlord and its designees shall have the right to place and
maintain all utility equipment of any kind in and on the
Premises as may be necessary or desirable to serve the
Building or any portion thereof. If the space should be
reduced, the Rent and Adjustments will be reduced in an amount
equal to the percentage that the lost space bears in relation
to the entire building. Landlord and its designees shall have
the right to enter upon the Premises at all reasonable hours
(and in emergencies at all times): (i) to inspect the same;
(ii) to make repairs, additions or alterations to and/or to
complete initial construction of, the Premises and/or to the
Building or to prevent waste or depreciation thereof; (iii) to
post "For Sale" signs on the Premises and to exhibit the
Premises to any prospective purchaser or mortgagee; or (iv)
for any other lawful purpose. This paragraph shall not be
deemed to be a covenant by Landlord nor be construed to create
an obligation or duty on the part of the Landlord to make such
inspection, repairs, additions or alterations except as
otherwise herein provided. Any performance by Landlord
hereunder shall not be deemed a waiver of Tenant's default in
failing to perform same, nor shall Landlord be liable for any
inconvenience disturbance, loss of business, loss of use of
the Premises or any other damage suffered by Tenant, due to
said performance by Landlord and the obligations of Tenant
pursuant to this lease shall not thereby be affected in any
manner whatsoever. Landlord agrees to exercise due care to
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cause the least possible interference with Tenant's business,
but Landlord shall not be required to employ labor on weekends
or on any overtime basis to avoid or reduce any such
interference.
b. For a period commencing one hundred eighty (180) days prior to
the end of the Term, Landlord and its designees shall have
reasonable access to the Premises for the purpose of
exhibiting the same to prospective tenants.
c. Landlord shall have the right to carry material in and on the
Premises and to perform work in or on the Premises pursuant to
the provisions of this lease, without the same constituting an
actual or constructive eviction to Tenant, in whole or in
part, without the same permitting any rent reduction or
abatement and without the Tenant having the right to assert
any claim for damages to the Tenant's tangible property or
injury or death to persons. In no event shall the Landlord be
liable for any inconvenience, disturbance, loss of business,
loss of use of the Premises or any consequential damages which
Tenant may suffer.
27. MORTGAGEE'S RIGHTS. Tenant's rights shall be subject to any mortgage
or deed of trust to secure debt which is now, or may hereafter be,
placed upon the Premises by Landlord. Tenant agrees to give any
mortgagee and/or trust deed holder, by registered mail, a copy of
any notice of default served upon the Landlord, provided that prior
to such notice Tenant has been notified, in writing (by way of
notice of assignment of rents and leases, or otherwise), of the
address of such mortgagee(s) and/or trust deed holder(s). Tenant
further agrees that if Landlord shall have failed to cure such
default within the time provided for in this Lease, then the
mortgagee and/or trust deed holder shall have an additional thirty
(30) days within which to cure such default or if such default
cannot be cured within that time, then such additional time as may
be necessary if within such thirty (30) days, any mortgagee and/or
trust deed holder has commenced and is diligently pursuing the
remedies necessary to cure such default (including but not limited
to commencement of foreclosure proceedings, if necessary to effect
such cure), in which event this Lease shall not be terminated while
such remedies are being so diligently pursued.
28. END OF TERM. Tenant agrees to promptly vacate the Premises at the
conclusion of the term of the Lease and to leave such Premises broom
clean, free of all debris, waste(s) and by-products, and in an
environmentally safe (in Landlord's reasonable opinion) condition,
in compliance with all governmental laws, rules, orders, and
regulations. Landlord may, at its option, retain an environmental or
engineering consultant or consulting firm to verify Tenant's
compliance with this provision, and Tenant agrees to (1) provide
access and reasonable assistance to such consultant or consulting
firm at the Premises, (2) implement the recommendation of such
consultant or consulting firm, promptly upon Landlord's request
therefor. Except for Tenant's initial build-out as per Exhibit B
attached hereto, should Landlord desire to have the Premises or any
part thereof restored to the condition in which they were originally
delivered to Tenant, Landlord shall so notify Tenant in writing no
less than thirty (30) days prior to the end of the Term. In the
event Landlord shall so desire, then Tenant, prior to the end of the
Term at its sole cost and expense shall so restore the Premises,
additions and improvements as may be requested by Landlord, and fix
and repair any and all damage or defacement to the Building and/or
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lands caused by the installation and/or removal of alterations,
additions, improvements, furniture, equipment, trade fixtures or any
other property. Any and all of such property, alterations, additions
or improvements not so removed, at Landlord's option, shall become
the exclusive property of Landlord and be disposed of by Landlord,
at Tenant's cost and expense, without further notice or demand. If
the Premises be not surrendered as and when aforesaid, Tenant shall
indemnify Landlord against any damages, loss or liability resulting
therefrom, including, without limitations, any claims made by any
succeeding occupant founded on such delay. Tenant's obligation under
this paragraph shall survive the expiration or sooner termination of
the Term.
29. NO ESTATE IN LAWS. This Lease shall create the relationship of
Landlord and Tenant between the parties hereto; no estate shall pass
out of Landlord. Tenant has only a usufruct, not subject to levy and
sale, and not assignable by Tenant except with Landlord's prior
written consent.
30. HOLDING OVER. If Tenant remains in possession of the Premises after
expiration of the term hereof, without the express written consent
of Landlord, Tenant's occupancy shall be a tenancy from month to
month at 150% of the Rent in effect for the last month of the term
of this Lease, plus all other charges payable hereunder, and upon
the same terms and conditions herein contained. In no event,
however, shall Tenant be relieved of any liability to Landlord for
damages resulting from such holding over.
31. HOMESTEAD RIGHTS. Tenant waives all homestead rights and exemptions
which it may have under any law as against any obligation owing
under this Lease. Tenant hereby assigns to Landlord its homestead
and exemption.
32. SALE OF PREMISES BY LANDLORD. In the event of any sale of the
Premises by Landlord, Landlord shall be and is hereby entirely freed
and relieved of all liability under any and all of its covenants and
obligations contained in or derived from this Lease arising out of
any act, occurrence or omission occurring after the consummation of
such sale; and the purchaser, at such sale or any subsequent sale of
the Premises shall be deemed, without any further agreement between
the parties of their successors in interest or between the parties
and any such purchaser, to have assumed and agreed to carry out any
and all of the covenants and obligations of the Landlord under this
Lease.
33. RULES AND REGULATIONS.
a. Tenant agrees to comply with such reasonable rules and
regulations as Landlord may adopt from time to time for the
orderly and proper operation of the Building and parking and
other common areas. Such rules may include but shall not be
limited to the following: (1) the restriction of employee
parking to a limited, designated area or areas; and (2)
regulation of the removal, storage and disposal of Tenant's
refuse and other rubbish at the sole cost and expense of
Tenant. The rules and regulations shall be binding upon Tenant
upon delivery of a copy of them to Tenant. Landlord shall not
be responsible to Tenant for the nonperformance of any of said
rules and regulations by any other tenants or occupants of the
Building. Landlord agrees to enforce the rules and regulations
in a nondiscriminatory manner.
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b. Tenant agrees at all times during the Term hereof, and at its
sole cost and expense:
i. not to take or permit any action which would violate
Landlord's union contracts, if any, affecting the
Building or the Premises, or which would create any work
stoppage, picketing, labor disruption or any work
performed or to be performed by Landlord or any other
persons in or about the Building, or which would hinder
the activities or operations of the Landlord in bringing
about the cessation of any work stoppage, picketing or
other labor disruption or dispute affecting the Building
or any work being performed or to be performed in or
about the Building;
ii. to pay promptly and when due, all taxes, licenses, fees,
assessments or other charges levied or imposed upon the
business of Tenant or upon any fixtures, furnishings or
equipment in, on or at the Premises;
iii. not to commit any waste or nuisance, nor use the
plumbing facilities for any purpose injurious to same or
dispose of any garbage or any foreign substance therein,
nor place a load on any floor in the Premises exceeding
the floor load per square foot which such floor was
designed to carry, nor install, operate and/or maintain
in the Premises any heavy equipment except in a location
approved by Landlord, not install, operate and/or
maintain in the Premises any electrical equipment which
will overload the electrical system therein, or any part
thereof, beyond its capacity for proper and safe
operation as determined by Landlord or which does not
have Underwriter's approval; or which would require any
plan and/or bond to be furnished or which would require
any work to be performed in order to cure and/or correct
any condition created by Tenant, pursuant to any
applicable governmental law or requirement;
iv. to keep the Premises in a neat, clean, orderly and
sanitary condition, free of any insects, rodents, vermin
and pests of every type and kind;
v. not to use the Premises for any purpose or business
which is illegal, noxious, offensive because of the
emission of noise, smoke, dust or odors or which could
damage the Building or be a nuisance or menace to or
interfere with, any other tenants or the public;
vi. to comply with all requirements of all suppliers of
public utility services to the Building and not to
suffer or permit any act or omission the consequence of
which could be to cause the interruption, curtailment,
limitation or cessation of any utility service to the
Building;
vii. Simultaneously herewith, and thereafter upon the request
of Landlord, Tenant agrees to deliver to Landlord a
written statement detailing all processes, functions,
procedures and other methods of operation used at the
Premises, a description of all materials stored at the
Premises, and any changes, modifications or amendments
thereto;
viii. Tenant further agrees to properly and accurately label
and segregate all materials stored at the Premises. At
all times during the Term hereof, and upon the
termination of the Term hereof , Tenant shall comply
with all applicable environmental protection laws, rules
or requirements, and shall promptly cure all violations
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thereof arising from its non-compliance including but
not limited to, the preparation, delivery and/or filing
with the applicable governmental authorities and with
the Landlord, or all forms, certificates, notices,
documents, plans and other writings, and the furnishing
of such other information as may be required or
requested by the Landlord, its mortgagee or any
applicable governmental authority in connection with
compliance or curing of any applicable requirement or in
connection with the sale, lease, transfer, mortgaging or
other disposition of the Building and/or Lands. It is
specifically acknowledged and agreed that the provisions
of this sub-paragraph shall survive the termination of
the lease, regardless of the reason or cause thereof.
c. No abatement, diminution or reduction of the Rental or other
charges required to be paid by Tenant pursuant to the terms of
this lease, shall be claimed by or allowed to, the Tenant for
the inconvenience, interruption, cessation or loss of business
or otherwise cause directly or indirectly by any present or
future laws, rules, requirements, orders, directions,
ordinances or regulations of the federal, state, county or
municipal government, or of any other governmental or lawful
authority whatsoever, or as a result of any diminution of the
amount of space used by Tenant caused by legally required
changes in the construction, equipment operation or use of the
Premises.
d. Tenant, following notice to Landlord, shall have the right to
contest by appropriate legal proceedings, at its sole cost and
expense, the validity of any law, ordinance, order, rule,
regulation or requirement of the nature herein referred to,
provided, however, that: (i) any noncompliance shall not
constitute a crime on the part of the Landlord or otherwise
adversely affect, jeopardize or threaten the interest of
Landlord; (ii) Tenant shall diligently prosecute any such
contest to a final determination by a court, department or
governmental authority having final jurisdiction and keep
Landlord advised in writing as to all changes in status and
determinations in connection with any such proceedings; and
(iii) Tenant shall indemnify and save harmless Landlord
against any and all losses, costs, expenses, claims,
penalties, actions, demands, liabilities, judgments or other
damages which Landlord may sustain by reason of such contest
or as a result of Tenant's failure or delay in compliance. It
is agreed however that Landlord has the right to demand that
the Tenant furnish adequate security to ensure its ability to
perform its indemnity obligations hereunder, which security if
so requested, shall be furnished to Landlord prior to the
Tenant commencing or continuing which such contest, as the
case may be. In no event, however shall Tenant defer
compliance if such deferment would constitute a violation of
any of the provisions of any mortgage or ground lease to which
this lease is or shall be subordinate. Landlord agrees to
cooperate as reasonably required for the purpose of any such
contest, provided that the same shall be without cost or
expense to Landlord. Landlord shall have the right, but not
the obligation to contest by appropriate legal proceedings, at
Landlord's expense, any such law, ordinance, rule, regulation
or requirement.
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34. RIGHTS CUMULATIVE. All rights, power and privileges conferred
hereunder upon parties hereto shall be cumulative but not
restrictive to those given by law.
35. WAIVER OF RIGHTS. No failure of Landlord to exercise any power given
Landlord hereunder, or to insist upon strict compliance by Tenant
with his obligation hereunder, and no custom or practice of the
parties at variance with the terms hereof shall constitute a waiver
of Landlord's right to demand exact compliance with the terms
hereof.
36. TIME OF ESSENCE. Time is of the essence of this agreement.
37. DEFINITIONS. "Landlord" as used in this Lease shall include
Landlord's heirs, representatives, assigns and successors in title
to Premises. "Tenant" shall include Tenant's heirs and representa-
tives, and if this Lease shall be validly assigned or the Premises
sublet, shall include Tenant's assignees or sublessees, as to
Premises covered by such assignment or sublease. "Landlord" and
"Tenant" include male and female, singular and plural, corporation,
partnership or individual, as may fit the particular parties.
38. NOTICES. All notices and demands which may or are to be required or
permitted to be given to either party by the other hereunder shall
be in writing. All notices and demands by the Landlord to the Tenant
shall be sent by United States mail, postage prepaid, addressed to
the Tenant at the Premises, and to the address hereinbelow, or to
such other place as Tenant may from time to time designate in a
notice to the Landlord. All notices and demands by the Tenant to the
Landlord shall be sent by United States mail, postage prepaid,
addressed to the Landlord at the address set forth herein, and to
such other person or place as the Landlord may from time to time
designate in a notice to the Tenant.
To Landlord at: c/o Kwartler Associates, Inc.
0 Xxxxx Xxxxxx, Xxxxxxxx, XX 00000
To Tenant at: 0 Xxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
39. ESTOPPEL CERTIFICATES. Tenant shall, from time to time, upon written
request of Landlord, execute, acknowledge and deliver to Landlord or
its designee a written statement stating: the date this Lease was
executed and the date it expires, the date Tenant entered into
occupancy of the Premises; the amount of minimum monthly rent and
the date to which such rent has been paid; that this Lease is in
full force and effect and has not been assigned, modified,
supplemented or amended in any way (or specifying the date and terms
of any agreement so affecting this Lease); that this Lease
represents the entire agreement between the parties as to this
leasing; that all conditions under this Lease to be performed by the
Landlord have been satisfied; that all required contributions by
Landlord to Tenant on account of Tenant's improvements have been
received; that on this date there are no existing defenses or
offsets which the Tenant has against the enforcement of this Lease
by the Landlord; that no rent has been paid more than one (1) month
in advance; and that no security has been deposited with Landlord
(or, if so, the amount thereof). It is intended that any such
statement delivered pursuant to this paragraph may be relied upon by
a prospective purchaser of Landlord's interest or a mortgage of
Landlord's interest or assignee of any mortgage upon Landlord's
interest in the Building. If Tenant shall fail to respond within
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fifteen (15) days of receipt by Tenant of a written request by
Landlord as herein provided, Tenant shall be deemed to have given
such certificate as above provided without modification and shall be
deemed to have admitted the accuracy of any information supplied by
Landlord to a prospective purchaser or mortgagee.
40. SUBROGATION. As long as their respective insurers so permit,
Landlord and Tenant hereby mutually waive their respective rights of
recovery against each other, for any loss insured by fire, extended
coverage and other property insurance policies existing for the
benefit of the respective parties. Each party shall apply to their
insurers for such waivers and shall obtain any special endorsements
required by their insurer to evidence compliance with the
aforementioned waiver.
41. GOVERNMENTAL ORDERS. Tenant agrees, at its own expense, to promptly
comply with all requirements of any legally constituted public
authority made necessary by reason of Tenant"s occupancy of said
Premises. Landlord agrees to promptly comply with any such
requirements if not made necessary by reason of Tenant's occupancy.
42. LIENS. Tenant shall keep the Premises and the property on which the
Premises are situated free from any liens arising out of any work
performed, materials furnished or obligations incurred by or on
behalf of Tenant. Landlord may require, at Landlord's sole option,
that Tenant provide to Landlord, at Tenant's sole cost and expense,
a lien and completion bond in an amount equal to one and one-half
(1-1/2) times the estimated cost of any improvements, additions, or
alterations which the Tenant desires to make.
43. DISPLAYS. Tenant may not display or sell merchandise or allow
grocery carts or other similar devices within the control of Tenant
to be stored or to remain outside the exterior walls and doorways of
the Premises. Tenant further agrees not to install any exterior
lighting, amplifiers or similar devices or use in or about the
Premises an advertising medium which may be heard or seen outside
the Premises, such as flashing lights, searchlights, loudspeaker,
phonographs or radio broadcasts.
44. AUCTIONS. Tenant shall not conduct or permit to be conducted any
sale by auction in, upon or from the Premises whether said auction
be voluntary, involuntary, pursuant to any assignment for the
payment of creditors or pursuant to any bankruptcy or other
insolvency proceeding.
45. AUTHORITY OF TENANT. If Tenant is a corporation or partnership, each
individual executing this Lease on behalf of said corporation or
partnership represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said corporation or
partnership, and that this Lease is binding upon said corporation or
partnership.
46. NO ACCORD OR SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly rent and other sums due
hereunder shall be deemed to be other than on account of the
earliest rent or other sums due, nor shall any endorsement or
statement on any check or accompanying any check or payment be
deemed an accord and satisfaction; and Landlord may accept such
check or payment without prejudice to Landlord's right to recover
the balance of such rent or other sum or pursue any other remedy
provided in this Lease.
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47. BROKERS. Tenant represents and warrants to Landlord that neither it
nor its officers or agents nor anyone acting on its behalf has dealt
with any real estate broker other than Xxxxxxxx Associates, Inc. and
The Xxxxxxxxx Company in negotiating or making of this Lease, and
Tenant agrees to indemnify and hold Landlord harmless from any claim
or claims, as well as costs and expenses including attorneys' fees
incurred by Landlord in conjunction with any claim or claims, of any
other broker or brokers claiming to have interested Tenant in the
Building or Premises or claiming to have caused Tenant to enter into
this Lease.
48. NON-LIABILITY OF LANDLORD.
a. Landlord shall not be liable for any damage or injury which
may be sustained by Tenant or by any other person, as a
consequence of the failure, breakage, leakage or obstruction
of the street or sub-surface; or of the water, plumbing,
steam, sewer waste or soil pipes; or of the roof, walls,
drains, leaders, gutters, valleys, downspouts or the like; or
of the electrical, gas, power conveyor, refrigeration,
sprinkler, air conditioning or heating systems; or of the
elevators or hoisting equipment; or of any other structural
failure; or by reason of the elements; or resulting from theft
or pilferage; or resulting from fire, explosion, or other
casualty; or resulting from the carelessness, negligence, or
improper conduct on the part of the Tenant, any other tenant,
or of Landlord, except willful misconduct of Landlord, its
agents, employees, guests, licensees, invitees, subtenants,
assignees or successors; or attributable to any interference
with, interruption of or failure, beyond the control of
Landlord, of any services to be furnished or supplied by
Landlord. All property kept, maintained or stored at the sole
risk of the Tenant.
b. Landlord shall not be liable to Tenant or any person or entity
claiming through the Tenant, nor shall Tenant be excused from
the performance of any obligation hereunder, due to any breach
or violation by Landlord, by any other tenant or by any other
person or entity, of:
(i) any rule or regulation established by Landlord; or
(ii) any provision, covenant, term or condition of any other
agreement affecting the Building and lands or any
portion thereof. Further, Landlord shall not be liable,
nor shall Tenant be excused from the performance of any
obligation hereunder, due to the Landlord enforcing any
right or remedy against the Tenant and/or against other
tenants of the Building, but not against all tenants of
the Building.
49. UNAVOIDABLE DELAYS.
a. If, as a result of strikes, lockouts, labor disputes,
inability to obtain labor, materials or reasonable substitutes
therefore, acts of God, governmental restrictions, regulations
or controls, enemy or hostile governmental action, civil
commotion, insurrection, revolution, sabotage, fire or other
casualty, acts or failure to act by Tenant or any other tenant
or other conditions beyond the control of Landlord, whether
prior to or during the Term, Landlord shall fail punctually to
perform any lease obligation, then and in any of such events,
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such obligation shall be punctually performed as soon as
practicable after such condition shall xxxxx. In the event
that Landlord, as a result of any such condition, shall be
unable to exercise any right or option within any time limit
provided in this lease, such time limit shall be deemed
extended for a period equal to the duration of such condition.
The failure of Landlord to perform any lease obligation for
the reasons set forth herein shall not affect, curtail, impair
or excuse this lease or the obligations of Tenant hereunder.
b. No diminution or abatement of rent, or other compensation,
shall be claimed or allowed for inconvenience or discomfort
arising from the making of repairs or improvements to the
Building or to its appliances, or arising from the
construction of or repairs or improvements to, other
buildings, structures, land or appliances, to the various
"services", if any, to be furnished by the Landlord to the
Tenant, it is agreed that there shall be no diminution or
abatement of the rent, or any other compensation, for
interruption or curtailment shall be due to accident,
alterations or repairs necessary to be made or to inability or
difficulty in securing supplies or labor for the maintenance
of such service or to some other cause, not gross negligence
on the part of the Landlord. No such interruption or
curtailment of such "service" nor any nonperformance by
Landlord pursuant to subparagraph (a) of this Paragraph, shall
be deemed a constructive eviction, nor shall there be any
abatement or diminution of rent because of making of repairs,
improvements or decorations to the Premises after the date
above fixed for the commencement of the Term, it being
understood that the Rental shall in any event, commence to run
at such date as above fixed.
50. ENVIRONMENTAL PROVISIONS.
a. For purposes of this lease, the following additional definitions
shall apply:
i. "Hazardous Substances" shall include any pollutants,
petroleum products, dangerous substances, toxic
substances, hazardous wastes, hazardous materials, or
hazardous substances as defined in or pursuant to the
Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq.
and all rules, regulations, orders, directives and
opinions promulgated thereunder ("ISRA"); the Spill
Compensation and Control Act, N.J.S.A. 58:10-23.11 et
seq. and all rules, regulations orders, directives and
opinions promulgated thereunder ("Spill Act"); the Solid
Waste Management Act, N.J.S.A. 13:1E-1 et seq.; and all
rules and regulations promulgated thereunder; the
Resource Conservation and Recovery Act, 42 U.S.C.
Sections 6901 et seq.; the Comprehensive Environmental
Response Compensation and Liability Act, 42 U.S.C.
Sections 9601 et seq. and all rules and regulations
promulgated thereunder ("CERCLA"); or any other Federal,
State or Local environmental law or ordinance and all
rules and regulations promulgated under the foregoing,
(collectively "Environmental Laws").
ii. "Release" means releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting,
escaping, leaching, disposing or dumping.
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iii. "Notice" means any summons, citation, directive, order,
claim, litigation, investigation, proceeding, judgment,
letter or other communication, written or oral, actual
or threatened, from the New Jersey Department of
Environmental Protection and Energy ("DEP"), the United
States Environmental Protection Agency ("EPA"), any
other Federal, State or Local agency or authority or any
other entity or any individual, concerning any act or
omission resulting or which may result in the Release of
Hazardous Substances into the waters or onto the lands
of the State of New Jersey or into waters outside the
jurisdiction of the State of New Jersey or into the
"environment" as such terms are defined in CERCLA.
"Notice" shall include the imposition of any liens of
any real or personal property or revenues of Tenant
including, but not limited to, Tenant's interest in the
premises or any of Tenant's property located thereon
pursuant to or resulting from the violation of, any
Environmental Law, or any other governmental actions,
orders or permits or any knowledge after due inquiry and
investigation of any facts which could give rise to any
of the above.
b. To the extent that Tenant uses the Premises, whether as
permitted by law or otherwise, for the generating,
manufacturing, refining, transporting, treating, storing,
handling, disposing, transferring or processing of Hazardous
Substances, Tenant shall ensure that said use shall be
conducted at all times strictly in accordance with applicable
Environmental Laws. Tenant shall not cause nor permit as a
result of any intentional or unintentional act or omission, a
Release of Hazardous Substances, except in accordance with a
valid permit or as otherwise permitted by law. If any
intentional or unintentional act or omission results in any
actual or alleged Release of Hazardous Substances, Tenant
promptly shall conduct necessary sampling and cleanup and
remediate such Release in accordance with applicable
Environmental Laws.
c. Within ten (10) days from date hereof, and thereafter within
ten (10) days after written request by Landlord, but not more
frequently than once per Lease Year and on each anniversary of
the Commencement Date hereof, Tenant shall deliver to Landlord
a duly executed and acknowledged affidavit of Tenant's chief
executive officer certifying:
i. The proper SIC Industry Group Number relating to
Tenant's then current business and use(s) of the
Premises; and
ii. That Tenant's then current use(s) of the Premises does
not involve the generation, manufacture, refining,
transportation, treatment, storage, handling or disposal
of Hazardous Substances on site, above ground or below
ground (all herein referred to as the "Presence of
Hazardous Substances"); or
iii. That Tenant's then current use(s) of the Premises does
involve the Presence of Hazardous Substances, in which
event, said affidavit shall describe in detail that
portion of Tenant's operations which involve the
Presence of Hazardous Substances. Said description,
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inter alia, shall identify each Hazardous Substance and
describe the manner in which it is generated, handled,
manufactured, refined, transported, treated, disposed
of, and/or stored. Tenant shall supply Landlord with
such additional information relating to said Presence of
Hazardous Substances as Landlord may request.
d. Tenant, at its sole cost and expense, promptly shall apply for
ISRA approval prior to the occurrence of any event caused by
Tenant that would trigger ISRA applicability, and pursue the
matter to obtain an approved negative declaration or an
approved remedial action workplan completion. Tenant shall
have the right to utilize streamlined procedures for
compliance with ISRA, as set forth in Sections 17 and 18 of
ISRA, provided that if required by DEP, Tenant shall post a
remediation funding source in an amount at least equal to 125%
of the amount requested by DEP in a form satisfactory to DEP,
and shall remain as a holdover tenant for such portion of the
Premises as shall not be usable or rentable as a result of
Tenant remediation until all obligations extending beyond the
expiration of the Term shall have been performed pursuant
hereto. In the event that the occurrence is the transfer of
title or other action by Landlord, Landlord at its cost and
expense shall be responsible for ISRA compliance. Tenant shall
furnish such information and otherwise cooperate reasonably
with Landlord in connection with Landlord's compliance with
ISRA.
e. In connection with the performance of its obligations pursuant
to this Paragraph 50, Tenant shall properly and accurately
label and segregate all Hazardous Substances stored at the
Premises and promptly shall furnish to Landlord true and
complete copies of all documents, submissions and
correspondence provided by Tenant to DEP and all documents,
reports, directives and correspondence provided by DEP to
Tenant, together with true and complete copies of all sampling
and test results obtained from samples and tests taken at and
around the Premises.
f. Should DEP determine that pursuant to ISRA, a remedial action
workplan be prepared and a cleanup be undertaken because of a
Release of a Hazardous Substance at the Premises which
occurred during the period in which Tenant shall have leased
the Premises, whether or not pursuant to this Lease, for which
Tenant is responsible hereunder, Tenant, at its sole cost and
expense, promptly shall prepare and submit the required plan
and remediation funding source and promptly shall carry out
the approved plan. Should Tenant's operations at the Premises
be outside of those industrial operations covered by ISRA,
Tenant, at its own cost and expense, shall obtain a Letter of
Nonapplicability or de minimis quantity exemption from DEP
prior to termination of the Term and Tenant, at Landlord's
option, shall hire a consultant satisfactory to Landlord to
undertake sampling at the Premises sufficient to determine
whether or not Tenant's operations have resulted in a Release
of a Hazardous Substance at or around the Premises. Tenant's
sampling, at a minimum, shall establish the integrity of all
underground storage tanks at the Premises. Should the sampling
reveal any Release of a Hazardous Substance, then Tenant, at
its sole cost and expense, promptly shall cleanup the Premises
in accordance with Environmental Laws and to the satisfaction
of DEP.
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g. Should the submission of a remedial action workplan be
required pursuant to ISRA for which Tenant is responsible
hereunder, then Tenant, at is sole cost and expense, shall
furnish to DEP, if required, a remediation funding source
satisfactory to DEP, in the amount of at least 125% of the
amount requested by DEP, in a form satisfactory to DEP,
guaranteeing the performance and completion of Tenant's
obligations pursuant to ISRA. The security furnished by Tenant
shall be renewed and kept in force by Tenant, at Tenant's sole
cost and expense, until such time as Tenant shall have
received final approval of the cleanup and a release of the
remediation funding source from DEP, it being acknowledged
that said remediation funding source may be utilized by Tenant
to pay for its remediation costs, to the extent and in the
manner permitted by DEP.
h. Regardless of which party may trigger the applicability of
ISRA, or pursuant to any other Environmental Law, Tenant shall
be responsible only for the remediation and obtaining of DEP
approval for any Release of Hazardous Substances from, on, to
or within the Premises which shall have occurred during the
period in which Tenant shall have leased the Premises, whether
or not pursuant to this Lease, unless such Release shall not
have been caused by the intentional or unintentional act(s)
and/or omissions of Tenant, and Landlord shall be responsible
for the remediation and obtaining of DEP approval for any such
Release which shall have occurred prior to the commencement of
the Tenant"s leasing of the Premises, or which was not caused
by the intentional or unintentional act(s) and/or omissions of
Tenant.
i. In the event Tenant is or would be responsible for triggering
ISRA and is unable to obtain either (a) a non-applicability
letter; (b) an approval of a negative declaration; (c) a de
minimis quantity exemption; or (d) an approval of a remedial
action workplan, prior to the occurrence of the event
triggering applicability of ISRA, then Tenant, at its sole
cost and expense, shall do everything necessary in order to
obtain agreement with DEP, authorizing the occurrence of the
event triggering ISRA and obligating Tenant to comply, at its
sole cost and expense, with all requirements of ISRA and
without imposing any restrictions or prohibitions against the
Premises.
j. Notwithstanding anything in this lease to the contrary, and
without limiting any other provisions of this Xxxxxxxxx 00,
Xxxxxx, at its sole cost and expense, shall observe, comply
and fulfill all of the terms and provisions of all applicable
Environmental Laws, as the same may be amended from time to
time, as they relate to Tenant's use and occupancy of the
Premises, whether or not pursuant to this Lease, unless caused
by Landlord.
Without limiting the foregoing, Tenant agrees:
i. That it shall not do or omit to do nor suffer the
commission or omission of any act, the commission or
omission of which is prohibited by or may result in
liability pursuant to any Environmental Law, including
without limitation, the Release of Hazardous Substances;
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ii. Except as otherwise herein provided, whenever the
provisions of any Environmental Law requires the "owner
or operator" to do any act, Tenant, on behalf of Tenant
and/or Landlord, as the case may be, shall do such act
at its sole cost and expense, including the making of
all submissions and the providing of all information, it
being the intention of the parties hereto that Landlord
shall be free of all expenses and obligations arising
from or in connection with compliance with Environmental
Laws and that Tenant shall fulfill all such obligations
and pay all such expenses.
k. In the event there shall be filed a lien against the Building,
Land and/or Premises arising out of a claim(s) by DEP pursuant
to the provisions of the Spill Act or by EPA pursuant to the
provisions of CERCLA, resulting from any act of commission or
omission of Tenant or relating to a condition or circumstance
which Tenant is obligated to cure, then and in such event,
Tenant immediately either shall: 1) pay the claim and remove
the lien from the premises; or, 2) furnish a bond, cash
receipt or other security satisfactory to Landlord sufficient
to discharge the claim out of which the lien arises.
l. Each party hereby covenants and agrees to indemnify and hold
the other harmless from and against any and all losses of
whatever nature, including lost rentals, claims, costs, fines,
penalties, losses and expenses, including but not limited to,
reasonable attorney, consultant and expert fees that the other
party may sustain as a result of such party's non-compliance
or failure to comply in a timely fashion with the provisions
of this Paragraph 50 or any Environmental Law or by Tenant's
Release of Hazardous Substances at the Premises.
m. i. Tenant promptly shall provide Landlord with all
reports and notices made by Tenant pursuant to the
Hazardous Substance Discharge Reports and Notices Act,
N.J.S.A. 13:1K-15, et seq. and all rules, regulations,
orders, directives and opinions promulgated thereunder.
ii. Tenant promptly shall provide Landlord with a copy of
all permits relating to the Premises obtained pursuant
to any Environmental Law.
n. Tenant acknowledges that for Landlord to comply with the
requirements of Environmental Laws, Landlord from time to
time, may have to enter the Premises. Landlord and/or its
agents shall have an irrevocable license and right to enter
the Premises for such purposes, as well as for removing soil,
installing test and/or monitoring xxxxx, such other equipment
and undertaking such other work as may be required by DEP. All
such entry by Landlord and/or its agents shall be upon
reasonable notice to Tenant.
o. Tenant shall cooperate fully in allowing, from time to time,
Such examinations, tests, inspections, and reviews of the
Premises as Landlord, in its sole and absolute discretion,
shall determine to be advisable in order to evaluate any
potential environmental problems. Landlord expressly reserves
the right, but without any obligation, to conduct
examinations, tests, (including but not limited to a
geohydrological survey of soil and subsurface conditions),
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inspections and reviews of the Premises as Landlord, in its
sole and absolute discretion, may determine to be necessary.
p. Landlord and Tenant agree to cooperate with each other to
provide any information necessary to the other in order to
effect compliance with any Environmental Law.
q. Notwithstanding anything to the contrary contained in this
lease, Tenant shall not be responsible for complying with any
Environmental Law in connection with any spill or Release of
Hazardous Substances which occurred prior to the commencement
of its leasing of the Premises, whether or not pursuant to
this Lease or which was caused by Landlord.
r. Tenant shall commence the performance of its obligations
within the time period specified herein or within ten (10)
days after obtaining knowledge or receiving notice requiring
its performance hereunder, if no other time period is
specified herein, and shall proceed diligently and in good
faith to complete the performance of its obligations within a
reasonable time. In the event Tenant shall fail to comply in
full with this Paragraph, Landlord, at its option, may perform
any and all of Tenant's obligations as aforesaid, and all
costs and expenses incurred by Landlord, in the exercise of
its rights shall be deemed a claim against Tenant as
Additional Rent payable on demand.
s. The provisions of this Paragraph 50 shall survive the
expiration or earlier termination of this lease, regardless of
the reason for such termination and compliance with the
provisions of this Paragraph 50 may require Landlord or Tenant
to expend funds or perform acts after the expiration or
termination of this lease. Landlord and Tenant agree to expend
such funds and/or perform such acts and shall not be excused
therefrom notwithstanding any expiration or termination of
this lease, it being agreed and acknowledged that the parties
would not have entered into this Lease but for the provisions
of this Paragraph 50 and the survival thereof.
t. During, at the end of, or after the Term of this Lease,
Tenant, at no cost to Tenant, agrees to execute any or all
documents required and/or prepared by Landlord in connection
with compliance with any Environmental Law.
51. GENERAL PROVISIONS
a. Joint Obligation. If there be more than one Tenant, the
obligations hereunder imposed shall be joint and several.
b. Marginal Headings, etc. The marginal headings index, lease
summary sheet and titles to the articles of this Lease are not
a part of the Lease and shall have no effect upon the
construction or interpretation of any part hereof.
c. Choice of Law. This Lease shall be governed by and construed
in accordance with the laws of the State in which the Premises
are located.
d. Successors and Assigns. The covenants and conditions herein
contained, subject to the provisions as to assignment, inure
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to and bind the heirs, successors, executors, administrators
and assigns of the parties hereto.
e. Recordation. Neither Landlord nor Tenant shall record this
Lease, but a short-form memorandum hereof may be recorded at
the request of Landlord.
f. Quiet Possession. Upon Tenant's paying the rent reserved
hereunder and observing and performing all of the covenants,
conditions and provisions on Tenant's part to be observed and
performed hereunder, Tenant shall have quiet possession of the
Premises for the entire term hereof, subject to all the
provisions of this Lease.
g. Inability to Perform. This Lease and the obligations of the
Tenant hereunder shall not be affected or impaired because the
Landlord is unable to fulfill any of its obligations hereunder
or is delayed in doing so, if such inability or delay is
caused by reason of strike, labor troubles, acts of God, or
any other cause beyond the reasonable control of the Landlord.
h. Partial Invalidity. Any provision of this Lease which shall
prove to be invalid, void, or illegal shall in no way affect,
impair or invalidate any other provision hereof and such other
provisions shall remain in full force and effect.
i. Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, whenever possible, be cumulative
with all other remedies at law or in equity.
j. Entire Agreement. This lease contains the entire agreement and
no representations, inducements, promises or agreements, oral
or otherwise, between the parties, not embodied herein, shall
be of any force or effect.
k. No Option. The submission of this Lease for examination does
not constitute a reservation of or option for the Premises,
and this Lease becomes effective only upon execution and
delivery thereof by Landlord.
52. OPTION TO RENEW: Tenant shall have the option to renew this lease
for an additional term of five (5) years under the following terms
and conditions:
a. Commencement. The next day following the termination date of
the initial term.
b. Notice. Tenant shall notify Landlord, or its agents or
assigns, in writing, by Certified mail, no later than twelve
(12) months prior to the expiration of the initial term of
this lease.
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c. Rent. Rent as described in Article 3 of this lease shall be
replaced with the following rental rates during the renewal
period.
Period Monthly Rent Annual Rent
------ ------------ -----------
8/1/2001 - 7/31/2002 $4,062.50 $48,750.00
8/1/2002 - 7/31/2003 $4,166.67 $50,000.00
8/1/2003 - 7/31/2004 $4,270.83 $51,250.00
8/1/2004 - 7/31/2005 $4,375.00 $52,500,00
8/1/2005 - 7/31/2006 $4,479.17 $53,750.00
d. Other Terms. In each and every respect and matter, all of the
terms, conditions, provisions and covenants of the original
lease shall be binding upon and inure to the benefit of the
parties hereto, their successors and assigns, in the same
manner and to the same extent as if each of the parties hereto
had been the initial parties to the original lease.
53. DELIVERY OF PREMISES.
a. Landlord agrees to deliver the Premises, substantially
completed and ready for occupancy by Tenant on or before
August 26, 1996, provided the following conditions are met:
i. Tenant executes Lease and this Addendum on or before
June 26, 1996 along with required payment of first
monthly payment of Rent ($3,437.50). Additional Rent
($1,108.33) and Security Deposit ($6,875.00); plus
ii. Tenant provides whatever approvals are required relating
to the renovation and construction of the Premises
within one (1) business day of any such requested
approval by Landlord or its agents.
b. If the Tenant's conditions outlined in this article 53 (a)
hereinabove are met and this Landlord does not deliver the
Premises substantially completed and ready for occupancy by
Tenant on or before August 26, 1996, then in that event, the
Landlord shall credit the Tenant $111.00 per day for each day
following August 26, 1996 until such day that Landlord does
deliver the Premises. Anything to the contrary
notwithstanding, any delay caused by the specification of
special items (i.e. equipment, fixtures and/or finishes that
are non-standard) or change orders by Tenant, shall in effect
postpone the deadline for delivery of Premises by that period
of time required to install such special items and/or make
such change orders.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands and seals
in triplicate, the date and year first above written.
LANDLORD: ADVANT REALTY LIMITED PARTNERSHIP, II
BY: ADVANT REALTY XX XX LIMITED PARTNERSHIP (Its General Partner)
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Xxxxxxx X. Xxxxx, Chairman
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TENANT: BRIGHTON INDUSTRIES CORPORATION
BY: /s/ Kit Kung
--------------------------------------
Kit Kung, Chairman
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