EXHIBIT 10.25
___________________________________________________________________________
___________________________________________________________________________
LEASE AGREEMENT
BETWEEN
ALFIERI-PARKWAY ASSOCIATES,
AS LANDLORD
-AND-
HOST AMERICA CORPORATION,
AS TENANT
PREMISES: 499 THORNALL STREET
EDISON, NEW JERSEY
PORTION 1ST FLOOR
DATED: SEPTEMBER 30, 1999
___________________________________________________________________________
___________________________________________________________________________
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INDEX
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ARTICLE CAPTION PAGE
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1 Demised Premises, Term, Rent . . . . . . . . . . . . . . . . .1
2 Use. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
3 Preparation of the Demised Premises. . . . . . . . . . . . . .4
4 When Demised Premises Ready for Occupancy. . . . . . . . . . .4
5 Additional Rent. . . . . . . . . . . . . . . . . . . . . . . .5
6 Subordination, Notice to Mortgagees. . . . . . . . . . . . . .5
7 Quiet Enjoyment. . . . . . . . . . . . . . . . . . . . . . . .6
8 Assignment, Mortgaging, Subletting . . . . . . . . . . . . . .6
9 Compliance with Laws and Requirements of
Public Authorities . . . . . . . . . . . . . . . . . . . . . .6
10 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . .7
11 Rules and Regulations. . . . . . . . . . . . . . . . . . . . .9
12 Tenant's Changes . . . . . . . . . . . . . . . . . . . . . . 10
13 Tenant's Property. . . . . . . . . . . . . . . . . . . . . . 12
14 Repairs and Maintenance. . . . . . . . . . . . . . . . . . . 13
15 Electricity. . . . . . . . . . . . . . . . . . . . . . . . . 14
16 Heating, Ventilation and Air-Conditioning. . . . . . . . . . 15
17 Landlord's Other Services. . . . . . . . . . . . . . . . . . 15
18 Access, Changes in Building Facilities, Name . . . . . . . . 16
19 Notices of Accidents . . . . . . . . . . . . . . . . . . . . 17
20 Non-Liability and Indemnification. . . . . . . . . . . . . . 17
(i)
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ARTICLE CAPTION PAGE
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21 Destruction or Damage. . . . . . . . . . . . . . . . . . . . 18
22 Eminent Domain . . . . . . . . . . . . . . . . . . . . . . . 20
23 Surrender. . . . . . . . . . . . . . . . . . . . . . . . . . 21
24 Conditions of Limitation . . . . . . . . . . . . . . . . . . 22
25 Re-Entry by Landlord . . . . . . . . . . . . . . . . . . . . 23
26 Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
27 Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
28 No Other Waivers or Modifications. . . . . . . . . . . . . . 26
29 Curing Tenant's Defaults . . . . . . . . . . . . . . . . . . 27
30 Broker . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
31 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
32 Estoppel Certificate . . . . . . . . . . . . . . . . . . . . 28
33 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . 29
34 No Other Representations, Construction, Governing Law. . . . 29
35 Security . . . . . . . . . . . . . . . . . . . . . . . . . . 29
36 Parties Bound. . . . . . . . . . . . . . . . . . . . . . . . 30
37 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . 31
38 Mortgage Financing - Tenant Cooperation. . . . . . . . . . . 31
39 Environmental Compliance . . . . . . . . . . . . . . . . . . 31
40 Holding Over . . . . . . . . . . . . . . . . . . . . . . . . 32
41 Certain Definitions & Constructions. . . . . . . . . . . . . 33
(ii)
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ARTICLE CAPTION PAGE
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42 Equipment & Machinery. . . . . . . . . . . . . . . . . . . . 33
43 Continuous Use . . . . . . . . . . . . . . . . . . . . . . . 34
EXHIBIT A - Description of Land
EXHIBIT B - Floor Plan
EXHIBIT C - Separate Workletter
EXHIBIT D - Intentionally Deleted
EXHIBIT E - Rules and Regulations
EXHIBIT F - Definitions
(iii)
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LEASE, dated September 30, 1999, between ALFIERI-PARKWAY ASSOCIATES,
a New Jersey General Partnership, c/o Alfieri Property Management, having
its principal office located at 399 Thornall Street, P.O. Box 2911, Edison,
New Jersey 08818-2911, ("Landlord"), and HOST AMERICA CORPORATION, a
Colorado corporation, having its principal office located at 2 Broadway,
Hamden, Connecticut 06518-2697 ("Tenant").
WITNESSETH:
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ARTICLE 1
DEMISED PREMISES, TERM, RENT
1.01. Landlord hereby leases to Tenant, and Tenant hereby
hires from Landlord, the premises hereinafter described, in the building
located at 499 Thornall Street, Edison, New Jersey ( the "Building") on the
parcel of land more particularly described in Exhibit A ("Land"), for the
term hereinafter stated, for the rents hereinafter reserved and upon and
subject to the conditions (including limitations, restrictions and
reservations) and covenants hereinafter provided. Each party hereby
expressly covenants and agrees to observe and perform all of the conditions
and covenants herein contained on its part to be observed and performed.
1.02. The premises hereby leased to Tenant is a portion of
the 1st floor of the Building, as shown on the floor plans annexed hereto
as Exhibit B. Landlord and Tenant have mutually agreed that the premises
leased has a rentable area of 456 square feet which includes Tenant's share
of the common area. Said premises, together with all fixtures and
equipment -which at the commencement, or during the term of this Lease are
thereto attached (except items not deemed to be included therein and
removable by Tenant as provided in Article 13) constitute the "Demised
Premises".
1.03. The term of this Lease, for which the Demised Premises
are hereby leased, shall commence on a date ("Commencement Date") which
shall be (i) the day on which the Demised Premises are ready for occupancy
(as defined in Article 4) or (ii) the day Tenant, or anyone claiming under
or through Tenant, first occupies the Demised Premises for business,
whichever occurs earlier, and shall end at noon on the last day of the
calendar month in which occurs the day preceding the fifth (5th)
anniversary of the Commencement Date, which ending date is hereinafter
called the "Expiration Date", or shall end on such earlier date upon which
said term may expire or be canceled or terminated pursuant to any of the
conditions or covenants of this Lease or pursuant to law. Promptly
following the Commencement Date, the Landlord shall notify Tenant in
writing of the Commencement Date and the Expiration Date as determined in
accordance with this Section.
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1.04. The rents reserved under this Lease, for the term
thereof, shall be and consist of:
(a) Fixed rent of $4,560.00 per year, (calculated on the
basis of $10.00/sq. ft. for 456 sq. ft. of rentable area) which shall be
payable in equal monthly installments of $380.00 in advance on the first
day of each and every calendar month during the term of this Lease, (except
Tenant shall pay, upon execution and delivery of this Lease by Tenant, the
sum of $380.00 to be applied against the first monthly installment or
installments of fixed rent becoming due under this Lease) and
(b) Additional rent consisting of all such other sums of
money as shall become due from and payable by Tenant to Landlord hereunder
(for default in payment of which Landlord shall have the same remedies as
for a default in payment of fixed rent),
all to be paid to Landlord at its office, or such other place, or to such
agent at such place, as Landlord may designate by notice to Tenant, in
lawful money of the United States of America.
1.05. Tenant shall pay the fixed rent and additional rent
herein reserved promptly as and when the same shall become due and payable,
without demand therefor and without any abatement, deduction or setoff
whatsoever.
1.06. If the Commencement Date occurs on a day other than the
first day of a calendar month, the fixed rent for such calendar month shall
be prorated and the balance of the first month's fixed rent theretofore
paid shall be credited against the next monthly installment of fixed rent.
1.07. Late payments of any payment of rent, including monthly
rent or any portion thereof, which is not received within five (5) days
after it is due, will be subject to a late charge equal to five percent
(5%) of the unpaid payment, or $100.00, whichever is greater. This amount
is in compensation of Landlord's additional cost of processing late
payments. In addition, any rent which is not paid when due, including
monthly rent, will accrue interest at a late rate charge of First Union
Prime Rate plus three percent (3%) per annum, as said rate is reasonably
determined by Landlord from published reports, (but in no event in an
amount in excess of the maximum rate allowed by applicable law) from the
date on which it was due until the date on which it is paid in full with
accrued interest. If Tenant is in default of the Lease for failure to pay
rent, in addition to the late charges and interest set forth above, Tenant
shall be charged with all attorney fees in connection with the collection
of all sums due Landlord.
ARTICLE 2
USE
2.01. Tenant shall use and occupy the Demised Premises for operation of
a upscale food establishment and convenience store including the sale of
non-alcoholic beverages and prepared foods and for no other purpose.
Tenant shall not be entitled to sell liquor at the food establishment and
convenience store.
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2.02. The use of the Demised Premises for the purposes
specified in Section 2.01 shall not include, and Tenant shall not use or
permit the use of the Demised Premises for the sale of:
Frame
Stationary Magazines
Photo Albums Books
Calendars Cigarettes
Date Books Cigars
Pens, pencils Pipes
Writing supplies Tobacco Items
Novelty Mugs Lighters
Key chains Candy, gum, boxed candy
Over the counter health aids Figurines
Greeting Cards Photographic equipment
Gift wrapping Photo-processing center
Novelty items Video cassette rentals
Notions Video cassette sales
Jewelry Premiums for businesses
Lottery Gifts Gifts
2.03. If any governmental license or permit, other than a
Certificate of Occupancy, shall be required for the proper and lawful
conduct of Tenant's business in the Demised Premises, or any part thereof,
and if failure to secure such license or permit would in any way affect
Landlord, Tenant, at its expense, shall submit the same to inspection by
Landlord. Tenant shall at all times comply with the terms and conditions
of each such license or permit.
2.04. Tenant shall not at any time use or occupy, or do or
permit anything to be done in the Demised Premises, in violation of the
Certificate of Occupancy (or other similar municipal ordinance) governing
the use and occupation of the Demised Premises or for the Building.
2.05. Nothing contained herein shall preclude Landlord from
permitting in other portions of the Building with respect to any office
tenant's occupancy an eating area or other area which would include: coffee
service, vending machines, microwave ovens, kitchen facilities or full
company cafeterias.
2.06. Tenant shall be entitled to utilize any name for the
food establishment and convenience store subject to applicable law and the
provisions of this Section. At Tenant's sole cost and expense, and subject
to Landlord's reasonable approval as to location, design, colors and
aesthetics, Tenant shall be entitled to install a sign at each door of the
food establishment and convenience store which sign shall be removed at the
Expiration Date. Any advertising (or name) for the food establishment and
convenience store shall be on behalf of and
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solely in the name of Tenant and Tenant shall not utilize the Landlord's
name or the name "Alfieri" or "Morning Glory" in any respects in connection
with the advertising.
2.07. Landlord has advised Tenant that from time to time the
food establishment and convenience store may have a opportunity to cater
functions in the Building lobby solely for tenants of the Building.
Tenant acknowledges that any such right shall be subject to the reasonable
rules and regulations of Alfieri Property Management, the management
company for the Building. Tenant shall not be entitled to arrange or
participate in any Building lobby function without express permission of
Alfieri Property Management. Landlord agrees that Alfieri Property
Management shall direct any inquiries to catering of Building lobby
functions to Tenant. Only in instances where Tenant is unable or unwilling
to cater a function in the atrium will Landlord allow outside caterers.
ARTICLE 3
PREPARATION OF THE DEMISED PREMISES
3.01. The Demised Premises shall be completed
and prepared for Tenant's occupancy in the manner, and subject to the
terms, conditions and covenants, set forth in Exhibit C. The facilities,
materials, and work so to be furnished, installed, and performed in the
Demised Premises by Landlord at its expense are hereinafter and in Exhibit
C referred to as "Landlord's Work". Such other installations, materials,
and work which may be undertaken by or for the account of Tenant to equip,
decorate, and furnish the Demised Premises for Tenant's occupancy, commonly
called finishing trades work, are hereinafter and in Exhibit C called
"Tenant's Finish Work." Landlord and Tenant agree that with respect to
Landlord's Work as set forth in Exhibit C, on or before the termination of
this Lease, in addition to any restoration Tenant may be required to
perform pursuant to any Tenant Change, Tenant shall perform the following
restoration: removal from the Demised Premises all equipment comprising
Tenant's Voice, Data and Security Systems, including associated outlets,
wires, wiring trays and other equipment, materials and facilities, whether
located in the ceiling, floor and/or walls which in any way relates,
pertains to, constitutes or is connected with Tenant's Voice, Data and/or
Security Systems and regardless of whether Landlord or Tenant installed
and/or paid for the installation of such systems. In the event there are
any changes to the Landlord's Work as set forth in Exhibit C, Landlord
reserves the right notify Tenant of any other restoration which may be
required as a result of this change.
ARTICLE 4
WHEN DEMISED PREMISES READY FOR OCCUPANCY
4.01. The Demised Premises shall be deemed ready for
occupancy on the earliest date on which all of the following conditions
have been met:
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(a) A Certificate of Occupancy (temporary or final) has
been issued by the applicable governmental authorities, permitting Tenant's
use of the Demised Premises for the purposes for which the same have been
leased.
(b) Landlord's Work, and so much of Tenant's Finish Work as
Landlord shall have undertaken in accordance with Exhibit C or by separate
letter agreement, in the Demised Premises have been substantially
completed, and same shall be so deemed notwithstanding the fact that minor
or insubstantial details of construction, mechanical adjustment, or
decoration or special Finish Work requested by Tenant, such as cabinetry
remain to be performed, the non-completion of which does not materially
interfere with Tenant's use of the Demised Premises.
(c) Reasonable means of access and facilities necessary to
Tenant's use and occupancy of the Demised Premises, including corridors,
elevators and stairways, and heating ventilating, air conditioning,
sanitary, water, and electrical facilities, have been installed and are in
reasonably good operating order and available to Tenant.
4.02. If making the Demised Premises ready for occupancy
shall be delayed by any act or omission of Tenant or any of its employees,
agents or contractors or any failure (not due to any act or omission of
Landlord or any of its employees, agents or contractors) to plan or execute
Tenant's Finish Work diligently or by reason of Tenant's failure to submit
Tenant's plans and specifications in the manner set forth in this Lease,
the Demised Premises shall be deemed ready for occupancy on the date when
they would have been ready but for such delay.
4.03. If and when Tenant shall take actual possession of the
Demised Premises, it shall be conclusively presumed that the same were in
satisfactory condition (except for latent defects) as of the date of such
taking of possession, unless within ninety (90) days after such date Tenant
shall give Landlord notice specifying the respects in which the Demised
Premises were not in satisfactory condition.
ARTICLE 5
ADDITIONAL RENT
INTENTIONALLY DELETED
ARTICLE 6
SUBORDINATION, NOTICE TO MORTGAGEES
6.01. This Lease, and all rights of Tenant hereunder are and
shall be subject and subordinate in all respects to all mortgages which
may now or hereafter affect the Land and/or the Building and/or any of such
leases, whether or not such mortgages shall also cover other lands and/or
buildings, to each and every advance made or hereafter to be made under
such
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mortgages, and to all renewals, modifications, replacements, and extensions
of such mortgages and spreaders and consolidations of such mortgages. This
Section shall be self-operative and no further instrument of subordination
shall be required. In confirmation of such subordination, Tenant shall
promptly execute and deliver an instrument that Landlord or the holder of
any such mortgage or any of their respective successors in interest may
reasonably request to evidence such subordination. The mortgages to which
this Lease is, at the time referred to, subject and subordinate are
hereinafter sometimes called "superior mortgages" and the holder of a
superior mortgage or its successor in interest at the time referred to is
sometimes hereinafter called a "superior mortgagee."
ARTICLE 7
QUIET ENJOYMENT
7.01. So long as Tenant pays all of the fixed rent and
additional rent due hereunder and performs all of Tenant's other
obligations hereunder, Tenant shall peaceably and quietly have, hold, and
enjoy the Demised Premises subject, nevertheless, to the obligations of
this Lease and, as provided in Article 6, to the superior mortgages.
ARTICLE 8
ASSIGNMENT, MORTGAGING, SUBLETTING
8.01. Tenant shall not be entitled to assign or sublet any of
the Equipment or any provision of this Lease without Landlord's express
written permission, which permission shall not be unreasonably withheld.
In any such attempt to assign or sublet whether by merger, acquisition,
replacement or reconstruction shall constitute an event of default hereunder.
ARTICLE 9
COMPLIANCE WITH LAWS AND REQUIREMENTS
OF PUBLIC AUTHORITIES
9.01. Tenant shall give prompt notice to Landlord of any
notice it receives of the violation of any law or requirement of public
authority, and at its expense shall comply with all laws and requirements
of public authorities which shall, with respect to the Demised Premises or
the use and occupation thereof, or the abatement of any nuisance, impose
any violation, order or duty on Landlord or Tenant, arising from (i)
Tenant's use of the Demised Premises; (ii) the manner of conduct of
Tenant's business or operation of its installation, equipment or other
property therein; (iii) any cause or condition created by or at the
instance of Tenant, other than by Landlord's performance of any work for or
on behalf of Tenant; or (iv) the breach of any of Tenant's obligations
hereunder. Furthermore, Tenant need not comply with any such law or
requirement of public authority so long as Tenant shall be contesting the
validity thereof, or the applicability thereof to the Demised Premises, in
accordance with Section 9.02.
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Nothing contained herein shall be construed to require
Tenant to make structural alterations to the Building except to the extent
that same are required by reason of Tenant's specific use (other than
general office).
9.02. Tenant may, at its expense (and if necessary, in the
name of but without expense to Landlord) contest, by appropriate
proceedings prosecuted diligently and in good faith, the validity, or
applicability to the Demised Premises, of any law or requirement of public
authority, and Landlord shall cooperate with Tenant in such proceedings
provided that:
(a) Tenant shall defend, indemnify, and hold harmless
Landlord against all liability, loss or damage which Landlord shall suffer
by reason of such non-compliance or contest, including reasonable
attorney's fees and other expenses reasonably incurred by Landlord;
(b) Such non-compliance or contest shall not constitute or
result in any violation of any superior mortgage, or, if such superior
mortgage shall permit such non-compliance or contest on condition of the
taking of action or furnishing of security by Landlord, such action shall
be taken and such security shall be furnished at the expense of Tenant; and
(c) Tenant shall keep Landlord advised as to the status of
such proceedings.
9.03. Tenant acknowledges that it shall comply with all
reasonable rules and regulations and reasonable changes thereto of the
Landlord with respect to security, cleanliness, operations and similar
concerns all of which are intended to relate to the safety, security, use
and enjoyment without interference of all tenants of the Buildings.
ARTICLE 10
INSURANCE
10.01. Tenant shall not violate, or permit the violation of,
any condition imposed by the all-risk casualty policy issued for the
Building and shall not do anything, or permit anything to be kept, in the
Demised Premises which would increase the fire or other casualty insurance
rate on the Building or the property therein over the rate which would
otherwise then be in effect, (unless Tenant pays the resulting increased
amount of premium as provided in Section 10.02) or which would result in
insurance companies of good standing refusing to insure the Building or any
of such property in amounts and at normal rates reasonably satisfactory to
Landlord. However, Tenant shall not be subject to any liability or
obligation under this Article by reason of the proper use of the Demised
Premises for the purposes permitted by Article 2.
10.02. If, by reason of any act or omission on the part of
Tenant, the rate of fire insurance with extended all-risk coverage on the
Building or equipment or other property of Landlord or other tenants shall
be higher than it otherwise would be, Tenant shall reimburse Landlord, on
demand, for that part of the premiums for fire insurance and extended all-risk
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coverage paid by Landlord because of such act or omission on the part of
Tenant, which sum shall be deemed to be additional rent and collectible as
such.
10.03. In the event that any dispute should arise between
Landlord and Tenant concerning insurance rates, a schedule or "make up" of
rates for the Building or the Demised Premises, as the case may be, issued
by the Fire Insurance Rating Organization of New Jersey or other similar
body making rates for fire insurance and extended coverage for the premises
concerned, shall be presumptive evidence of the facts therein stated and of
the several items and charges in the fire insurance rates with extended
coverage then applicable to such premises.
10.04. Tenant shall obtain and keep in full force and effect
during the term of this Lease, at its own cost and expense, Comprehensive
General Liability Insurance, such insurance to afford protection in an
amount of not less than $1,000,000 for injury or death to any one person,
$2,000,000 for injury or death arising out of any one occurrence, and
$1,000,000 for damage to property, protecting and naming the Landlord,
Alfieri Property Management and the Tenant as insured against any and all
claims for personal injury, death or property damage occurring in, upon,
adjacent, or connected with the Demised Premises and any part thereof. In
addition thereto, Tenant shall maintain such insurances as is applicable to
the operations of a food establishment and convenience store and shall
provide copies thereof to Landlord. Tenant shall name such other insureds
associated with the Building as Landlord reasonably requests. Tenant shall
pay all premiums and charges therefor and upon failure to do so Landlord
may, but shall not be obligated to, make payments, and in such latter event
the Tenant agrees to pay the amount thereof to Landlord on demand and said
sum shall be deemed to be additional rent, and in each instance collectible
on the first day of any month following the date of notice to Tenant in the
same manner as though it were rent originally reserved hereunder, together
with interest thereon at the rate of three points in excess of Prime Rate
of the First Union. Tenant will use its best efforts to include in such
Comprehensive General Liability Insurance policy a provision to the effect
that same will be non-cancelable, except upon reasonable advance written
notice to Landlord. The original insurance policies or appropriate
certificates shall be deposited with Landlord together with any renewals,
replacements or endorsements to the end that said insurance shall be in
full force and effect for the benefit of the Landlord during the term of
this Lease. In the event Tenant shall fail to procure and place such
insurance, the Landlord may, but shall not be obligated to, procure and
place same, in which event the amount of the premium paid shall be refunded
by Tenant to Landlord upon demand and shall in each instance be collectible
on the first day of the month or any subsequent month following the date of
payment by Landlord, in the same manner as though said sums were additional
rent reserved hereunder together with interest thereon at the rate of three
points in excess of the Prime Rate of the First Union.
10.05. Landlord and Tenant agree to use their best efforts to
include in each of its insurance policies a waiver of the insurer's right
of subrogation against the other party or if such waiver shall be
unobtainable or unenforceable (a) an express agreement that such policy
shall not be invalidated if the insured waives or has waived before the
casualty, the right of recovery against any party responsible for a
casualty covered by the policy or (b) any other form of permission for the
release of the other party. If such waiver, agreement, or permission shall
not be or shall cease to be obtainable without additional charge, or at
all, the insured party shall
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so notify the other party after learning thereof. In such a case, if the
other party shall agree in writing to pay the insurer's additional charge
therefor, such waiver agreement or permission shall, if obtainable, be
included in the policy.
10.06. Each party hereby releases the other party with respect
to any claim (including a claim for negligence) which it might otherwise
have against the other party for loss, damage, or destruction with respect
to its property (including rental value or business interruption) occurring
during the term of this Lease to the extent to which it is insured under a
policy or policies containing a waiver of subrogation or permission to
release liability or naming the other party as an additional insured, as
provided in Sections 10.04 and 10.05. If notwithstanding the recovery of
insurance proceeds by either party for loss, damage or destruction of its
property (or rental value or business interruption) the other party is
liable to the first party with respect thereto or is obligated under this
Lease to make replacement, repair, or restoration or payment, then provided
that the first party's right of full recovery under its insurance policies
is not thereby prejudiced or otherwise adversely affected, the amount of
the net proceeds of the first party's insurance against such loss, damage
or destruction shall be offset against the second party's liability to the
first party thereof, or shall be made available to the second party to pay
for replacement, repair, or restoration, as the case may be.
10.07 The waiver of subrogation or permission for release
referred to in Section 10.05 shall extend to the agents of each party and
their employees and, in the case of Tenant, shall also extend to all other
persons and entities occupying, using or visiting the Demised Premises in
accordance with the terms of this Lease, but only if and to the extent that
such waiver or permission can be obtained without additional charge (unless
such party shall pay such charge). The releases provided for in Section
10.06 shall likewise extend to such agents, employees and other persons and
entities, if and to the extent that such waiver or permission is effective
as to them. Nothing contained in Section 10.06 shall be deemed to relieve
either party of any duty imposed elsewhere in this Lease to repair, restore
or rebuild or to nullify any abatement of rents provided for elsewhere in
this Lease. Except as otherwise provided in Section 10.04, nothing
contained in Sections 10.05 and 10.06 shall be deemed to impose upon either
party any duty to procure or maintain any of the kinds of insurance
referred to therein or any particular amounts or limits of any such kinds
of insurance. However, each party shall advise the other, upon request,
from time to time (but not more often than once a year) of all of the
policies of insurance it is carrying of any of the kinds referred to in
Sections 10.01 and 10.04, and if it shall discontinue any such policy or
allow it to lapse, shall notify the other party thereof with reasonable
promptness. The insurance policies referred to in Sections 10.05 and 10.06
shall be deemed to include policies procured and maintained by a party for
the benefit of its mortgagee or pledgee.
ARTICLE 11
RULES AND REGULATIONS
11.01. Tenant and its employees and agent shall faithfully
observe and comply with the Rules and Regulations annexed hereto as Exhibit
E, and such reasonable changes therein (whether by modification,
elimination, or addition) as Landlord at any time or times hereafter
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may make and communicate in writing to Tenant, which do not unreasonably
affect the conduct of Tenant's business in the Demised Premises; provided,
however, that in case of any conflict or inconsistency between the
provisions of this Lease and any of the Rules and Regulations as originally
promulgated or as changed, the provisions of this Lease shall control.
11.02. Nothing contained in this Lease shall be construed to
impose upon Landlord any duty or obligation to Tenant to enforce the Rules
and Regulations or the terms, covenants, or conditions in any other lease,
as against any other tenant and Landlord shall not be liable to Tenant for
violation of the same by any other tenant or its employees, agents or
visitors. However, Landlord shall not enforce any of the Rules and
Regulations in such manner as to discriminate against Tenant or anyone
claiming under or through Tenant.
ARTICLE 12
TENANT'S CHANGES
12.01. Tenant shall make no changes, alterations, additions,
installations, substitutions, or improvements (hereinafter Collectively
called "changes", and, as applied to changes Provided for in this Article,
"Tenant's Changes") in and to the Demised Premises without the express
prior written consent of Landlord.
All proposed Tenant's Changes shall be submitted to Landlord for
written consent at least sixty (60) days prior to the date Tenant intends
to commence such changes, such submission to include all plans and
specifications for the work to be done, proposed scheduling, and the
estimated cost of completion of Tenant's Changes. If Landlord consents to
Tenant's Changes, Tenant may commence and diligently prosecute to
completion Tenant's Changes, under the direct supervision of Landlord.
Tenant shall pay to Landlord a supervision fee (which shall
include the cost of review of the proposed Tenant's Changes) equal to ten
percent (10%) of the certified cost of completion of Tenant's Changes.
Prior to the commencement of Tenant's Changes, Tenant shall pay to Landlord
ten percent (10%) of the estimated cost of completion (the "Estimated
Payment") as additional rent. Within fifteen (15) days after completion of
Tenant's Changes, Tenant shall furnish Landlord with a statement, certified
by an officer or a principal of Tenant to be accurate and true, of the
total cost of completion of Tenant's Changes (the "Total Cost"). If such
certified statement furnished by Tenant shall indicate that the Estimated
Payment exceeded ten percent (10%) of the Total Cost, Landlord shall
forthwith either (i) pay the amount of excess directly to Tenant
concurrently with the delivery of the certified statement or (ii) permit
Tenant to credit the amount of such excess against the subsequent payment
of rent due hereunder. If such certified statement furnished by Tenant
shall indicate that ten percent (10%) of the Total Cost exceeded Tenant's
Estimated Payment, Tenant shall, simultaneously with the delivery to
Landlord of the certified statement, pay the amount of such excess to
Landlord as additional rent.
12.02. Notwithstanding the provisions of Section 12.01, all
proposed Tenant's Changes which shall affect or alter:
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(a) The outside appearance or the strength of the Building
or of any of its structural parts; or
(b) Any part of the Building outside of the Demised
Premises; or
(c) The mechanical, electrical, sanitary and other service
systems of the Building, or increase the usage of such systems;
shall be performed only by the Landlord, at a cost to be mutually agreed
upon between Landlord and Tenant.
12.03. Tenant, at its expense, shall obtain all necessary
governmental permits and certificates for the commencement and prosecution
of Tenant's Changes and for final approval thereof upon completion, and
shall cause Tenant's Changes to be performed in compliance therewith and
with all applicable laws and requirements of public authorities, and with
all applicable requirements of insurance bodies, and in good and
workmanlike manner, using new materials and equipment at least equal in
quality and class to the original installations in the Building. Tenant's
Changes shall be performed in such manner as not to unreasonably interfere
with or delay and (unless Tenant shall indemnify Landlord therefor to the
latter's reasonable satisfaction) as not to impose any additional expense
upon Landlord in the construction, maintenance or operation of the
Building. Throughout the performance of Tenant's Changes, Tenant, at its
expense, shall carry, or cause to be carried, workmen's compensation
insurance in statutory limits and general liability insurance for any
occurrence in or about the Building, in which Landlord and its agents shall
be named as parties insured in such limits as Landlord may reasonably
prescribe, with insurers reasonably satisfactory to Landlord. Tenant shall
furnish Landlord with reasonably satisfactory evidence that such insurance
is in effect at or before the commencement of Tenant's Changes and, on
request, at reasonable intervals thereafter during the continuance of
Tenant's Changes. If any of Tenant's Changes shall involve the removal of
any fixtures, equipment or other property in the Demised Premises which are
not Tenant's Property (as defined in Article 13), such fixtures, equipment
or other property shall be promptly replaced, at Tenant's expense, with new
fixtures, equipment or other property (as the case may be) of like utility
and at least equal value. In addition, unless Landlord shall otherwise
expressly consent in writing, the Tenant shall deliver such removed
fixtures to Landlord.
12.04. Tenant, at its expense, and with diligence and
dispatch, shall procure the cancellation or discharge of all notices of
violation arising from or otherwise connected with Tenant's Changes which
shall be issued by any public authority having or asserting jurisdiction.
Tenant shall defend, indemnify and save harmless Landlord against any and
all mechanic's and other liens filed in connection with Tenant's Changes,
including the liens of any security interest in, conditional sales of, or
chattel mortgages upon, any material, fixtures or articles so installed in
and constituting part of the Demised Premises and, against all costs,
expenses and liabilities incurred in connection with any such lien,
security interest, conditional sale or chattel mortgage or any action or
proceeding brought thereon. Tenant, at its expense, shall procure the
satisfaction or discharge of all such liens within fifteen (15) days after
Landlord makes written demand therefor. However, nothing herein contained
shall prevent Tenant from contesting, in good faith
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and at its own expense, any such notice of violation, provided that Tenant
shall comply with the provisions of Section 9.02.
12.05. Tenant agrees that the exercise of its rights pursuant
to the provisions of this Article l2 shall not be done in a manner which
would create any work stoppage, picketing, labor disruption or dispute or
violate Landlord's union contracts affecting the Land and Building, nor
interference with the business of Landlord or any tenant or occupant of the
Building.
ARTICLE 13
TENANT'S PROPERTY
13.01. All fixtures, equipment, improvements, and
appurtenances attached to or built into the Demised Premises at the
commencement of or during the term of this Lease, whether or not by or at
the expense of Tenant, shall be and remain a part of the Demised Premises,
shall be deemed the property of Landlord and shall not be removed by
Tenant, except as hereinafter in this Article expressly provided. Landlord
and Tenant acknowledge that the equipment and machines set forth in Exhibit
C-2 are the property of Landlord.
13.02. All business and trade fixtures, machinery and
equipment, communications equipment and office equipment, whether or not
attached to or built into the Demised Premises, which are installed in the
Demised Premises by or for the account of Tenant, without expense to
Landlord, and can be removed without permanent structural damage to the
Building, and all furniture, furnishings and other articles of movable
personal property owned by Tenant and located in the Demised Premises (all
of which are sometimes called "Tenant's Property"), shall be and shall
remain the property of Tenant and may be removed by it at any time during
the term of this Lease; provided that if any of Tenant's Property is
removed, Tenant shall repair or pay the cost of repairing any damage to the
Demised Premises or to the Building resulting from such removal. Any
equipment or other property for which Landlord shall have granted any
allowance or credit to Tenant shall not be deemed to have been installed by
or for the account of Tenant, without expense to Landlord, and shall not be
considered Tenant's Property.
13.03. At or before the Expiration Date, or the date of an
earlier termination of this Lease, or as promptly as practicable after such
an earlier termination date, Tenant at its expense, shall remove from the
Demised Premises all of Tenant's Property except such items thereof as
Tenant shall have expressly agreed in writing with Landlord were to remain
and to become the property of Landlord, and, if requested by Landlord, all
items of work done by or on behalf of Tenant after the Commencement Date
shall be removed by Tenant and Tenant shall repair any damage to the
Demised Premises or the Building resulting from such removal. If Tenant
fails to remove its Property and/or otherwise fails to perform any
restoration required of it under this Lease, then Tenant shall be deemed a
hold-over Tenant as contemplated in Article 40.
13.04. Any other items of Tenant's Property (except money,
securities, and other like valuables) which shall remain in the Demised
Premises after the Expiration Date or after a period of fifteen (15) days
following an earlier termination date, may, at the option of the Landlord,
be deemed to have been abandoned, and in such case either may be retained by
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Landlord as its property or may be disposed of, without accountability, in
such manner as Landlord may see fit, at Tenant's expense.
ARTICLE 14
REPAIRS AND MAINTENANCE
14.01. Tenant shall take good care of the Demised Premises.
Tenant, at its expense, shall promptly make all repairs, ordinary or
extraordinary, interior or exterior, structural or otherwise in and about
the Demised Premises and the Building, as shall be required by reason of
(i) the performance of Tenant's Finish Work or Tenant's Changes; (ii) the
installation, use or operation of Tenant's Property in the Demised Premises
by Tenant, its agents or employees; (iii) the moving of Tenant's Property
in or out of the Building; or (iv) the misuse or neglect of Tenant or any
of its employees, agents, contractors or invitees; but Tenant shall not be
responsible, and Landlord shall be responsible, for any of such repairs as
are required by reason of Landlord's neglect or other fault in the manner
of performing any of Tenant's Finish Work or Tenant's Changes which may be
undertaken by Landlord for Tenant's account or are otherwise required by
reason of neglect or other fault of Landlord or its employees, agents, or
contractors. Except if required by the neglect or other fault of Landlord
or its employees, agents, or contractors, Tenant, at its expense, shall
replace all scratched, damaged or broken doors or other glass in or about
the Demised Premises and shall be responsible for all repairs, maintenance,
and replacement of wall and floor coverings in the Demised Premises and,
for the repair and maintenance of all lighting fixtures therein.
14.02. Landlord shall keep and maintain the Building and its
fixtures, appurtenances, systems and facilities serving the Demised
Premises, in good working order, condition, and repair and shall make with
all due diligence all repairs, structural and otherwise, interior and
exterior, as and when needed in or about the Demised Premises, except for
those repairs for which Tenant is responsible pursuant to any other
provisions of this Lease.
14.03. Landlord shall have no liability to Tenant by reason of
any inconvenience, annoyance, interruption, or injury to Tenant's business
arising from Landlord's making any repairs or changes which Landlord is
required or permitted by this Lease or required by law, to make in or to
any portion of the Building or the Demised Premises, or in or to the
fixtures, equipment of appurtenances of the Building or the Demised
Premises, provided that Landlord shall use due diligence with respect
thereto and shall perform such work, except in case of emergency, at a time
reasonably convenient to Tenant and otherwise in such a manner as will not
materially interfere with Tenant's use of the Demised Premises.
14.04. Tenant shall be fully and solely responsible for
cleaning the food establishment and convenience store. Tenant shall
provide Landlord with a copy of a maintenance or janitorial contract which
shall be reasonably satisfactory to Landlord to insure that such janitorial
contract shall maintain the food establishment and convenience store in a
clean condition. With regard to the bathrooms in the lobby of the
Building, if Tenant operates the food establishment and convenience store
from and after 6:00 p.m. on weekdays and on Saturdays, the cost and
obligation to maintain and clean such bathrooms shall be the
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responsibility of Tenant. Tenant shall provide Landlord with a bathroom
cleaning contract to confirm that such bathrooms shall be cleaned.
14.05. Tenant shall maintain the Demised Premises and any
portion of the lobby used by Tenant's customers in a clean and orderly
condition and use its best efforts to prevent (a) waste from accumulating
in the lobby and (b) odors from penetrating into the lobby or other
portions of the Building. Tenant agrees that no deliveries shall be made
through the lobby and that all deliveries made to Tenant shall be made
through the service corridors only. All refuse accumulated in the
operation of the Demised Premise shall be placed in sealed plastic bags and
deposited in sealed refuse containers. Landlord reserves the right to
designate the area in which the refuse containers shall be located. At
Landlord's election, Tenant shall supply its own refuse container and
arrange for the emptying thereof. In the event the Landlord arranges for
Tenant's refuse removal, Tenant shall reimburse Landlord as additional rent
for the cost thereof.
ARTICLE 15
ELECTRICITY
15.01. Landlord shall furnish the electric energy that Tenant
shall require in the Demised Premises. All charges for water, sewer,
electricity and HVAC (exclusive of after hours HVAC) and all other utility
charges, other than telephones, are included in Tenant's fixed rent.
15.02. Landlord shall not be liable in any way to Tenant for
any failure or defect in the supply or character of electric energy
furnished to the Demised Premises by reason of any requirement, act, or
omission of the public utility serving the Building with electricity or for
any other reason. Landlord shall furnish and install all replacement
lighting tubes, lamps, bulbs, and ballasts required in the Demised Premises
at Tenant's expense.
15.03. Tenant's use of electric energy in the Demised Premises
shall not at any time exceed the capacity of any of the electrical
conductors and equipment in or otherwise serving the Demised Premises. In
order to insure that such capacity is not exceeded and to avert possible
adverse effect upon the Building electric service, Tenant shall not,
without Landlord's prior written consent in each instance (which shall not
be unreasonably withheld), connect any additional fixtures, appliances, or
equipment to the Building electrical distribution system or make any
alteration or addition to the electric system of the Demised Premises
existing on the Commencement Date. Should Landlord grant such consent, all
additional risers , HVAC equipment or other electrical equipment required
therefor shall be provided by Landlord and the cost of installation and
maintenance thereof shall be paid by Tenant upon Landlord's demand. As a
condition to granting such consent, Landlord, at Tenant's sole expense, may
cause a new survey to be made of the use of electric energy (other than for
Building standard heating and air-conditioning as described in Exhibit C)
in order to calculate the potential additional electric energy to be made
available to Tenant based upon the estimated additional capacity of such
additional risers or other equipment and Tenant shall pay the estimated
cost thereof as monthly additional rent payable pursuant to Section 1.04 hereof.
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ARTICLE l6
HEATING, VENTILATION AND AIR-CONDITIONING
16.01. Landlord shall maintain and operate the heating,
ventilating, and air-conditioning systems (hereinafter called "the
systems") and shall furnish heat, ventilating, and air conditioning
(hereinafter collectively called "air conditioning service") in the Demised
Premises through the systems, in compliance with the performance
specifications set forth in Exhibit C, as may be required for comfortable
occupancy of the Demised Premises from 8:00 A.M. to 6:00 P.M. Monday
through Friday except days observed by the Federal or the state government
as legal holidays ("Regular Hours") throughout the year. If Tenant shall
require air-conditioning service at any other time (hereinafter called
"after hours"), Landlord shall furnish such after hours air-conditioning
service upon reasonable advance notice from Tenant, and Tenant shall pay
Landlord's then established charges therefor on Landlord's demand.
ARTICLE l7
LANDLORD'S OTHER SERVICES
17.01. Landlord shall provide public elevator service,
passenger and service, by elevators serving the floor on which the Demised
Premises are situated during Regular Hours, and shall have at least one
passenger elevator subject to call at all other times.
17.02. Landlord shall furnish adequate hot and cold water to
the Demised Premises and to each floor of the Building for cooking,
drinking, lavatory, and cleaning purposes, together with soap, towels, and
toilet tissue for each lavatory. If Tenant uses water for any other
purpose, Landlord, at Tenant's expense, shall install meters to measure
Tenant's consumption of cold water and/or hot water for such other purposes
and/or steam, as the case may be. Tenant shall pay for the quantities of
cold water and hot water shown on such meters, at Landlord's cost thereof,
on the rendition of Landlord's bills therefor.
17.03. Landlord, at its expense, and at Tenant's request,
shall insert initial listings on the Building directory of the names of
Tenant, and the names of any of their officers and employees, provided that
the names so listed shall not take up more than Tenant's proportionate
share of the space on the Building directory. All Building directory
changes made at Tenant's request after the Tenant's initial listings have
been placed on the Building directory shall be made by Landlord at the
expense of Tenant, and Tenant agrees to promptly pay to Landlord as
additional rent the cost of such changes within ten (10) days after
Landlord has submitted an invoice therefor.
17.04. Landlord reserves the right, without any liability to
Tenant, to stop service of any of the heating, ventilating, air
conditioning, electric, sanitary, elevator, or other Building systems
serving the Demised Premises, or the rendition of any of the other services
required of Landlord under this Lease, whenever and for so long as may be
necessary, by reason of accidents, emergencies, strikes, or the making of
repairs or changes which Landlord is
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required by this Lease or by law to make or in good faith deems necessary,
by reason of difficulty in securing proper supplies of fuel, steam, water,
electricity, labor or supplies, or by reason of any other cause beyond
Landlord's reasonable control.
17.05. Landlord shall make available for Tenant's use Tenant's
Proportionate Share of parking spaces in common with other tenants of the
Building in the parking area adjacent to the Building.
17.06. Tenant acknowledges that as part of the consideration
for this Lease, and in order not to interfere with the rights of other
tenants or other tenants' quiet enjoyment of the common areas of the
Building and otherwise prevent Landlord from performing its services
without causing increases to the cost of such services, Tenant agrees that
it shall not permit its employees to congregate in hallways or elevators,
shall not permit its employees to create an unsightly condition in or about
any passageway from the Building or the common areas or to the parking
lot/deck, with regard to smoking, including the disposal of cigarettes, in
the courtyard and/or outer areas adjacent to the Building and will
otherwise require its employees to act and conduct themselves in the common
areas in such a manner as will not disturb other tenants or the use and
enjoyment by other tenants of the Building.
ARTICLE 18
ACCESS, CHANGES IN BUILDING FACILITIES, NAME
18.01. All walls, windows, and doors bounding the Demised
Premises (including exterior Building walls, core corridor walls and doors,
and any core corridor entrance), except the inside surfaces thereof, any
terraces or roofs adjacent to the Demised Premises, and any space in or
adjacent to the Demised Premises used for shafts, stacks, pipes, conduits,
fan room, ducts, electric or other utilities, sinks or other Building
facilities, and the use thereof, as well as access thereto through the
Demised Premises for the purposes of operation, maintenance, decoration,
and repair are reserved to Landlord.
18.02. Tenant shall permit Landlord to install, use, and
maintain pipes, ducts, and conduits within the demising walls, bearing
columns, and ceilings of the Demised Premises.
18.03. Landlord or Landlord's agent shall have the right upon
request (except in emergency under clause (ii) hereof) to enter and/or pass
through the Demised Premises or any part thereof, at reasonable times
during reasonable hours, (i) to examine the Demised Premises and to show
them to the fee owners, holders of superior mortgages, prospective
purchasers or mortgagees of the Building as an entirety; and (ii) for the
purpose of making such repairs or changes or doing such repainting in or to
the Demised Premises or its facilities, as may be provided for by this
Lease or as may be mutually agreed upon by the parties or as Landlord may
be required to make by law or in order to repair and maintain said
structure or its fixtures or facilities. Landlord shall be allowed to take
all materials into and upon the Demised Premises that may be required for
such repairs, changes, repainting, or maintenance, without liability to
Tenant but Landlord shall not unreasonably interfere with Tenant's use of
the Demised Premises.
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Landlord shall also have the right to enter on and/or pass through the
Demised Premises, or any part thereof, at such times as such entry shall be
required by circumstances of emergency affecting the Demised Premises or
the Building.
18.04. During the period of six (6) months prior to the
Expiration Date, Landlord may exhibit the Demised Premises to prospective
tenants.
18.05. Landlord reserves the right, at any time after
completion of the Building, without incurring any liability to Tenant
therefor, to make such changes in or to the Building and the fixtures and
equipment thereof, as well as in or to the street entrances, halls,
passages, elevators, escalators, and stairways thereof, as it may deem
necessary or desirable, provided, however, that such changes shall not
reduce the size of the Demised Premises.
18.06. Landlord may adopt any name for the Building. Landlord
reserves the right to change the name or address of the Building at any time.
18.07. Tenant shall be entitled to open the food establishment
and convenience store from 6:00 a.m. in the morning through 11:00 p.m. at
night, Monday through Friday, subject to applicable law. Tenant shall also
be entitled upon not less than two (2) days notice to Landlord to open the
food establishment and convenience store and/or utilize the facilities for
preparation on Saturday. Tenant shall be responsible for the cost of after
hours HVAC as set forth in Article 16. With regard to the bathrooms in the
lobby of the Building, if Tenant operates the food establishment and
convenience store from and after 6:00 p.m. on weekdays and on Saturdays,
the cost and obligation to maintain and clean such bathrooms shall be the
responsibility of Tenant. Tenant shall provide Landlord with a bathroom
cleaning contract to confirm that such bathrooms shall be cleaned.
ARTICLE 19
NOTICE OF ACCIDENTS
19.01. Tenant shall give notice to Landlord, promptly after
Tenant learns thereof, of (i) any accident in or about the Demised Premises
for which Landlord might be liable; (ii) all fires in the Demised Premises;
(iii) all damage to or defects in the Demised Premises, including the
fixtures, equipment, and appurtenances thereof, for the repair of which
Landlord might be responsible; and (iv) all damage to or defects in any
parts or appurtenances of the Building's sanitary, electrical, heating,
ventilating, air-conditioning, elevator, and other systems located in or
passing through the Demised Premises or any part thereof.
ARTICLE 20
NON-LIABILITY AND INDEMNIFICATION
20.01. Neither Landlord nor any agent or employee of Landlord
shall be liable to Tenant for any injury or damage to Tenant or to any
other person or for any damage to, or loss
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(by theft or otherwise) of, any property of Tenant or of any other person,
irrespective of the cause of such injury, damage, or loss, unless caused by
or due to the negligence of Landlord, its agents, or employees without
contributory negligence on the part of Tenant.
20.02. Tenant shall indemnify and save harmless Landlord and
its agents against and from (a) any and all claims (i) arising from (x) the
conduct or management of the Demised Premises or of any business therein,
or (y) any work or thing whatsoever done, or any condition created (other
than by Landlord for Landlord's or Tenant's account) in or about the
Demised Premises during the term of this Lease or during the period of
time, if any, prior to the Commencement Date that Tenant may have been
given access to the Demised Premises, or (ii) arising from any negligent or
otherwise wrongful act or omission of Tenant or any of its subtenants,
invitees or licensees or its or their employees, agents, or contractors,
and (b) all costs, expenses, and liabilities incurred in or in connection
with each such claim or action or proceeding brought thereon. In case any
action or proceeding be brought against Landlord by reason of any such
claim, Tenant, upon notice from Landlord, shall resist and defend such
action or proceeding.
20.03. Except as otherwise expressly provided in this Lease,
this Lease and the obligations of Tenant hereunder shall be in no way
affected, impaired or excused because Landlord is unable to fulfill, or is
delayed in fulfilling, any of its obligations under this Lease by reason of
strike, other labor trouble, governmental pre-emption or priorities or
other controls in connection with a national or other public emergency or
shortages of fuel supplies or labor resulting therefrom, or other like
cause beyond Landlord's reasonable control.
ARTICLE 21
DESTRUCTION OR DAMAGE
21.01. If the Building or the Demised Premises shall be
partially or totally damaged or destroyed by fire or other cause, then
whether or not the damage or destruction shall have resulted from the fault
or neglect of Tenant, or its employees, agents or visitors (and if this
Lease shall not have been terminated as in this Article hereinafter
provided), Landlord shall repair the damage and restore and rebuild the
Building and/or the Demised Premises, at its expense, with reasonable
dispatch after notice to it of the damage or destruction; provided,
however, that Landlord shall not be required to repair or replace any of
the Tenant's Property.
21.02. If the Building or the Demised Premises shall be
partially damaged or partially destroyed by fire or other cause not
attributable to the fault or negligence of Tenant, its agents, or
employees, the rents payable hereunder shall be abated to the extent that
the Demised Premises shall have been rendered untenantable and for the
period from the date of such damage or destruction to the date the damage
shall be repaired or restored; provided, however, if the damage shall be
attributable to the fault or negligence of Tenant, its agents or employees,
then rent shall continue but shall be reduced by any amounts received by
Landlord pursuant to Landlord's coverage for business interruption and/or
rent insurance attributable to the Demised Premises. If the Demised
Premises or a major part thereof shall be totally (which shall be deemed to
include substantially totally) damaged or destroyed or rendered completely
(which
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shall be deemed to include substantially completely) untenantable on
account of fire or other cause, the rents shall abate as of the date of the
damage or destruction and until Landlord shall repair, restore, and rebuild
the Building and the Demised Premises, provided, however, that should
Tenant reoccupy a portion of the Demised Premises during the period of
restoration work is taking place and prior to the date that the same are
made completely tenantable, rents allocable to such portion shall be
payable by Tenant from the date of such occupancy.
21.03. If the Building or the Demised Premises shall be
totally damaged or destroyed by fire or other cause, or if the Building
shall be so damaged or destroyed by fire or other cause (whether or not the
Demised Premises are damaged or destroyed) as to require a reasonably
estimated expenditure of more than twenty-five percent (25%) of the full
insurable value of the Building immediately prior to the casualty then in
either such case Landlord may terminate this Lease by giving Tenant notice
to such effect within one hundred eighty (180) days after the date of the
casualty. In case of any damage or destruction mentioned in this Article,
Tenant may terminate the Lease by notice to Landlord, if Landlord has not
completed the making of the required repairs and restored and rebuilt the
Building and the Demised Premises within twelve (12) months from the date
of such damage or destruction, or within such period after such date (not
exceeding six (6) months) as shall equal the aggregate period Landlord may
have been delayed in doing so by adjustment of insurance, labor trouble,
governmental controls, act of God, or any other cause beyond Landlord's
reasonable control.
21.04. No damages, compensation, or claim shall be payable by
Landlord for inconvenience, loss of business, or annoyance arising from any
repair or restoration of any portion of the Demised Premises or of the
Building pursuant to this Article. Landlord shall use its best efforts to
effect such repair or restoration promptly and in such manner as not
unreasonably to interfere with Tenant's use and occupancy during such time
that Tenant is able to use the Demised Premises during Landlord's restoration.
21.05. Notwithstanding any of the foregoing provisions of this
Article, if Landlord or the holder of any superior mortgage shall be unable
to collect all of the insurance proceeds (including rent insurance
proceeds) applicable to damage or destruction of the Demised Premises or
the Building by fire or other cause, by reason of some action or inaction
on the part of Tenant or any of its employees, agents or contractors in
connection with the processing of any claim, then, without prejudice to any
other remedies which may be available against Tenant, there shall be no
abatement of Tenant's rents.
21.06. Landlord will not carry insurance of any kind on
Tenant's Property, and, except as provided by law or by reason of its fault
or its breach of any of its obligations hereunder, shall not be obligated
to repair any damage thereto or replace the same; to the extent that Tenant
shall maintain insurance on Tenant's Property, Landlord shall not be
obligated to repair any damage thereto or replace the same.
21.07. The provisions of this Article shall be considered an
express agreement governing any case of damage or destruction of the
Demised Premises by fire or other casualty, and any law of the State of New
Jersey providing for such a contingency in the absence of an
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express agreement, and any other law of like import, now of hereafter in
force, shall have no application in such case.
21.08. If the Demised Premises and/or access thereto become
partially or totally damaged or destroyed by any casualty not insured
against, then Landlord shall have the right to terminate this Lease upon
giving the Tenant thirty (30) days notice and upon the expiration of said
thirty (30) day notice period this Lease shall terminate as if such
termination date were the Expiration Date.
ARTICLE 22
EMINENT DOMAIN
22.01. If the whole of the Building shall be lawfully taken by
condemnation or in any other manner for any public or quasi-public use of
purpose, this Lease and the term and estate hereby granted shall forthwith
terminate as of the date of vesting of title on such taking (which date is
herein after also referred to as the "date of the taking"), and the rents
shall be prorated and adjusted as of such date.
22.02. If any part of the Building shall be so taken, this
Lease shall be unaffected by such taking, except that Tenant may elect to
terminate this Lease in the event of a partial taking, if the area of the
Demised Premises shall not be reasonably sufficient for Tenant to continue
feasible operation of its business. Tenant shall give notice of such
election to Landlord not later than thirty (30) days after the date of such
taking. Upon the giving of such notice to Landlord, this Lease shall
terminate on the date of service of notice and the rents apportioned to the
part of the Demised Premises so taken shall be prorated and adjusted as of
the date of the taking and the rents apportioned to the remainder of the
Demised Premises shall be prorated and adjusted as of such termination
date. Upon such partial taking and this Lease continuing in force as to
any part of the Demised Premises, the rents apportioned to the part taken
shall be prorated and adjusted as of the date of taking and from such date
the fixed rent shall be reduced to the amount apportioned to the remainder
of the Demised Premises.
22.03. Except as specifically set forth in Section 22.04.
hereof, Landlord shall be entitled to receive the entire award in any
proceeding with respect to any taking provided for in this Article without
deduction therefrom for any estate vested in Tenant by this Lease, and
Tenant shall receive no part of such award. Tenant hereby expressly
assigns to Landlord all of its right, title, and interest in or to every
such award.
22.04. If the temporary use or occupancy of all or any part of
the Demised Premises shall be lawfully taken by condemnation or in any
other manner for any public or quasi-public use or purpose during the term
of this Lease, Tenant shall be entitled, except as hereinafter set forth,
to receive any award which does not serve to diminish Landlord's award in
any respect and, if so awarded, for the taking of Tenant's Property and for
moving expenses, and Landlord shall be entitled to receive that portion
which represents reimbursement for the cost of restoration of the Demised
Premises. This Lease shall be and remain unaffected by such taking and
Tenant shall remain responsible for all of its obligations hereunder
insofar as such
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obligations are not affected by such taking and shall continue to pay in
full the fixed rent and additional rent when due. If the period of
temporary use or occupancy of the Demised Premises (or a part thereof)
shall be divided between Landlord and Tenant so that Tenant shall receive
so much thereof as represents the period prior to the Expiration Date and
Landlord shall receive so much thereof as represents the period subsequent
to the Expiration Date. All moneys received by Tenant as, or as part of,
an award for temporary use and occupancy for a period beyond the date to
which the rents hereunder have been paid by Tenant shall be received, held,
and applied by Tenant as a trust fund for payment of the rents falling due
hereunder.
22.05. In the event of any taking of less than the whole of
the Building which does not result in a termination of this Lease, or in
the event of a taking for a temporary use or occupancy of all or any part
of the Demised Premises which does not extend beyond the Expiration Date,
Landlord, at its expense, shall proceed with reasonable diligence to
repair, alter, and restore the remaining parts of the Building and the
Demised Premises to substantially their former condition to the extent that
the same may be feasible and so as to constitute a complete and tenantable
Building and Demised Premises provided that Landlord's liability under this
Section 22.05 shall be limited to the net amount (after deducting all costs
and expenses, including, but not limited to, legal expenses incurred in
connection with the eminent domain proceeding) received by Landlord as an
award arising out of such taking. If such taking occurs within the last
three (3) years of the term of this Lease, Landlord shall have the right to
terminate this Lease by giving the Tenant written notice to such effect
within ninety (90) days after such taking, and this Lease shall then expire
on that effective date stated in the notice as if that were the Expiration
Date, but the fixed rent and the additional rent shall be prorated and
adjusted as of the date of such taking.
22.06. Should any part of the Demised Premises be taken to
effect compliance with any law or requirement of public authority other
than in the manner hereinabove provided in this Article then, (i) if such
compliance is the obligation of Tenant under this Lease, Tenant shall not
be entitled to any diminution or abatement of rent or other compensation
from Landlord therefor, but (ii) if such compliance is the obligation of
Landlord under this Lease, the fixed rent hereunder shall be reduced and
adjusted in the same manner as is provided in Section 22.02 according to
the reduction in rentable area of the Demised Premises resulting from such
taking.
22.07. Any dispute which may arise between the parties with
respect to the meaning or application of any of the provisions of this
Article shall be determined by judicial proceeding.
ARTICLE 23
SURRENDER
23.01. On the last day of the term of this Lease, or upon any
earlier termination of this Lease, or upon any re-entry by Landlord upon
the Demised Premises, Tenant shall quit and surrender the Demised Premises
to Landlord in good order, condition, and repair, except for ordinary wear
and tear and such damage or destruction as Landlord is required to repair
or restore under this Lease, and Tenant shall remove all of Tenant's
Property therefrom except as otherwise
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expressly provided in this Lease. At the time of surrender, or earlier
termination of this Lease, the Demised Premises shall be in the same state
as existed as of the completion of Landlord's Work and the completion of
Tenant's Finish Work except Tenant shall be required to perform the
restoration identified in Article 3.01 hereof. Tenant shall be required to
perform If Tenant fails to perform any restoration required of it under
this Lease on or before the last day of the term of this Lease or upon any
earlier termination, Tenant shall be deemed a hold-over Tenant under
Article 40 of this Lease until such time as Tenant has completed such
restoration.
ARTICLE 24
CONDITIONS OF LIMITATION
24.01. This Lease and the term and estate hereby granted are
subject to the limitation that whenever Tenant shall make an assignment of
the property of Tenant for the benefit of creditors, or shall file a
voluntary petition under any bankruptcy or insolvency law, or an
involuntary petition alleging an act of bankruptcy or insolvency shall be
filed against Tenant under any bankruptcy or insolvency law, or whenever a
petition shall be filed by or against Tenant under the reorganization
provisions of the United States Bankruptcy Act or under the provisions of
any law of like imports or whenever a petition shall be filed by Tenant
under the arrangement provisions of any law of like import, whenever a
permanent receiver of Tenant or of or for the property of Tenant shall be
appointed, then Landlord, (a) at any time of receipt of notice of the
occurrence of any such event, or (b) if such event occurs without the
acquiescence of Tenant, at any time after the event continues for thirty
(30) days, Landlord may give Tenant a notice of intention to end the term
of this Lease at the expiration of five (5) days from the date of service
of such notice of intention, and upon the expiration of said five (5) day
period this Lease and the term and estate hereby granted, whether or not
the term shall theretofore have commenced, shall terminate with the same
effect as if that day were the Expiration Date, but Tenant shall remain
liable for damages as provided in Article 26.
24.02. This Lease and the term and estate hereby granted are
subject to the further limitation that:
(a) Whenever Tenant shall default in the payment of
installment of fixed rent, or in the payment of any additional rent or any
other charge payable by Tenant to Landlord, or any day upon which the same
ought to be paid, and such default shall continue for five (5) days after
written notice thereof; or
(b) Whenever Tenant shall do or permit anything to be done,
whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied
by Tenant within thirty (30) days after Landlord shall have given to Tenant
a written notice specifying the same, or, in the case of a happening or
default which cannot with due diligence be cured within a period of thirty
(30) days and the continuance of which for the period required for cure
will not subject Landlord to risk of criminal liability or foreclosure of
any superior mortgage if Tenant shall not, (i) within said thirty (30) day
period advise Landlord of Tenant's intention to duly institute all steps
necessary to remedy such situation; (ii) duly institute within said thirty
(30) day period, and thereafter diligently prosecute
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to completion all steps necessary to remedy the same; (iii) complete such
remedy within such time after the date of giving of said notice to Landlord
as shall reasonably be necessary; or
(c) Whenever any event shall occur or any contingency shall
arise whereby this Lease or the estate hereby granted or the unexpired
balance of the term hereof would, by operation of law or otherwise, devolve
upon or pass to any person, firm, or corporation other than Tenant, except
as expressly permitted by Article 8; or
(d) Whenever Tenant shall abandon the Demised Premises
(unless as a result of a casualty), or
(e) If Tenant shall default in the timely payment of rent
or additional rent and any such default shall continue to be repeated for
two (2) consecutive months or for a total of four (4) months in any period
of twelve (12) months, or more than three (3) times in any six (6) month
period, then, notwithstanding that such defaults shall have each been cured
within the applicable period, any similar default shall be deemed to be
deliberate and Landlord may thereafter serve a notice of termination upon
Tenant without affording to Tenant opportunity to cure such default;
then, and in any of the foregoing cases, this Lease and the term and estate
hereby granted, whether or not the term shall theretofore have commenced,
shall, if the Landlord so elects, terminate upon ten (10) days written
notice by Landlord to Tenant of Landlord's election to terminate the Lease
and the term hereof shall expire and come end on the date fixed in such
notice, with the same effect as if that day were the Expiration Date, but
Tenant shall remain liable for the rent and additional rent which
subsequently accrues and for damages as provided in Article 26.
ARTICLE 25
RE-ENTRY BY LANDLORD
25.01. If Tenant shall default in the payment of any
installment of fixed rent, or of any installment of additional rent, on any
date upon which the same ought to be paid and if such default shall
continue for five (5) days after written notice thereof, or if this Lease
shall expire as provided in Article 24, Landlord or Landlord's agents and
employees may immediately or at any time thereafter re-enter the Demised
Premises, or any part thereof, in the name of the whole, either by summary
dispossess proceedings or by any suitable action or proceeding at law, or
by force or otherwise, without being liable to indictment, prosecution or
damages therefor, and may repossess the same, and may remove any persons
therefrom, to the end that Landlord may have, hold, and enjoy the Demised
Premises again as and of its first estate and interest therein. The word
"re-enter", as herein used, is not restricted to its technical legal
meaning. In the event of any termination of this Lease under the
provisions of Article 24 or if Landlord shall re-enter the Demised Premises
under the provisions of this Article or in the event of the termination of
this Lease, or of re-entry, by or under any summary dispossess or other
proceeding or action or any provision of law by reason of default hereunder
on the part of Tenant, Tenant shall thereupon pay to Landlord the fixed
rent and additional rent payable by Tenant to Landlord up to the time
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of such termination of this Lease, or of such recovery of possession or the
Demised Premises by Landlord, as the case may be, and shall also pay to
Landlord damages as provided in Article 26.
25.02. In the event of a breach or threatened breach by
Landlord or Tenant of any of their respective obligations under this Lease,
either Landlord or Tenant, as the case may be, shall also have the right of
injunction. The special remedies hereunder are cumulative and are not
intended to be exclusive of any other remedies or means of redress to which
the parties may lawfully be entitled at any time.
25.03. If this Lease shall terminate under the provisions of
Article 24, or if Landlord shall re-enter the Demised Premises under the
provisions of this Article, or in the event of any termination of this
Lease, or of re-entry, by or under any summary dispossess or other
proceeding or action or any provision of law by reason of default hereunder
on the part of Tenant, Landlord shall be entitled to retain all moneys, if
any, paid by Tenant to Landlord, whether as advance rent, security, or
otherwise, but such moneys shall be credited by Landlord against any fixed
rent or additional rent due from Tenant at the time of such termination or
re-entry or, at Landlord's option, against any damages payable by Tenant
under Article 26 or pursuant to law.
ARTICLE 26
DAMAGES
26.01. If this Lease is terminated under the provisions of
Article 24, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 25, or in the event of the termination of this Lease,
or of re-entry, by or under any summary dispossess or other proceeding or
action of any provision of law by reason of default hereunder on the part
of Tenant, Tenant shall pay to Landlord as damages, at the election of
Landlord, either
(a) A sum which at the time of such termination of this
Lease or at the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of (i) the aggregate of
the fixed rent and the additional rent payable hereunder which would have
been payable by Tenant (conclusively presuming the additional rent to be
the same as was payable for the year immediately preceding such
termination) for the period commencing with such earlier termination of
this Lease or the date of any such re-entry, as the case may be, and ending
with the Expiration Date, had this Lease not so terminated or had Landlord
not so re-entered the Demised Premises, over (ii) the aggregate rental
value of the Demised Premises for the same period, or
(b) Sums equal to the fixed rent and the additional rent
(as above presumed) payable hereunder which would have been payable by
Tenant had this Lease not so terminated, or had Landlord not so re-entered
the Demised Premises, payable upon the due dates therefor specified herein
following such termination or such re-entry and until the Expiration Date,
provided, however, that if Landlord shall relet the Demised Premises during
said period, Landlord shall credit Tenant with the net rents received by
Landlord from such reletting, such net rents to be determined by first
deducting from the gross rents as and when received by Landlord
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from such reletting, the expenses incurred or paid by Landlord in
terminating this Lease or in re-entering the Demised Premises and in
securing possession thereof, as well as the expenses of reletting,
including altering and preparing the Demised Premises for new tenants,
brokers' commissions, and all other expenses properly chargeable against
the Demised Premises and the rental therefrom; it being understood that any
such reletting may be for a period shorter or longer than the remaining
term of this Lease; but in no event shall Tenant be entitled to receive any
excess of such net rents over the sums payable by Tenant to Landlord
hereunder, nor shall Tenant be entitled in any suit for the collection of
damages pursuant to this Subsection to a credit in respect of any net rents
from a reletting, except to the extent that such net rents are actually
received by Landlord. Damages shall also include the unamortized portion
of the cost of Landlord's Work and any brokerage fees or commissions paid
by Landlord. If the Demised Premises or any part thereof should be relet
in combination with other space, then proper apportionment on a square foot
basis shall be made of the rent received from such reletting and of the
expenses of reletting.
If the Demised Premises or any part thereof to be relet by
Landlord for the unexpired portion of the term of this Lease, or any part
thereof, before presentation of proof of such damages to any court,
commission or tribunal, the amount of rent reserved upon such reletting
shall, prima facie, be the fair and reasonable rental value for the Demised
Premises, or part thereof, so relet during the term of the reletting.
26.02. Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord
to postpone suit until the date when the term of this Lease would have
expired if it had not been so terminated under the provisions of Article
24, or under any provision of law, or had Landlord not re-entered the
Demised Premises. Nothing herein contained shall be construed to limit or
preclude recovery by Landlord against Tenant of any sums or damages to
which, in addition to the damages particularly provided above, Landlord may
lawfully be entitled by reason of any default hereunder on the part of
Tenant. Nothing herein contained shall be construed to limit or prejudice
the right of Landlord to seek and obtain as liquidated damages by reason of
the termination of this Lease or re-entry on the Demised Premises for the
default of Tenant under this Lease, an amount equal to the maximum allowed
by any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved whether or not such
amount be greater, equal to, or less than any of the sums referred to in
Section 26.01.
26.03. In addition to the foregoing and without regard to
whether this Lease is terminated, Tenant shall pay to Landlord upon demand,
all costs and expenses incurred by Landlord, including reasonable
attorney's fees, with respect to any lawsuit instituted or defended or any
action taken by Landlord to enforce all or any of the provisions of this Lease.
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ARTICLE 27
WAIVERS
27.01. Tenant, for Tenant, and on behalf of any and all
persons claiming through or under Tenant, including creditors of all kinds,
does hereby waive and surrender all right and privilege which they or any
of them might have under or by reason of any present or future law, to
redeem the Demised Premises or to have a continuance of this Lease for the
term hereby demised after being dispossessed or ejected therefrom by
process of law or under the terms of this Lease or after the termination of
this Lease as herein provided.
27.02. In the event that Tenant is in arrears in payment of
fixed rent or additional rent hereunder, Tenant waives Tenant's right, if
any, to designate the items against which any payments made by Tenant are
to be credited, and Tenant agrees that Landlord may apply any payments made
by Tenant to any items it sees fit, irrespective of and notwithstanding any
designation or request by Tenant as to the items against which any such
payments shall be credited.
27.03. Landlord and Tenant hereby waive trial by jury in any
action, proceeding or counterclaim brought by either against the other on
any matter whatsoever arising out of or in any way connected with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy
of the Demised Premises, including any claim of injury or damage, or any
emergency or other statutory remedy with respect thereto.
27.04. The provisions in Articles 16 and l7 shall be
considered express agreements governing the services to be furnished by
Landlord, and Tenant agrees that any laws and/or requirements of public
authorities, now or hereafter in force, shall have no application in
connection with any enlargement of Landlord's obligations with respect to
such services.
ARTICLE 28
NO OTHER WAIVERS OR MODIFICATIONS
28.01. The failure of either party to insist in any one or
more instances upon the strict performance of any one or more of the
obligations of this Lease, or to exercise any election herein contained,
shall not be construed as a waiver or relinquishment for the future of the
performance of such one or more obligations of this Lease or of the right
to exercise such election, but the same shall continue and remain in full
force and effect with respect to any subsequent breach, act, or omission.
No executory agreement hereafter made between Landlord and Tenant shall be
effective to change, modify, waive, release, discharge, terminate or effect
an abandonment of this Lease, in whole or in part, unless such executory
agreement is in writing, refers expressly to this Lease and is signed by
the party against whom enforcement of the change, modification, waiver,
release, discharge, or termination of effectuation of the abandonment is sought.
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28.02. Without limiting Section 28.01, the following
provisions shall also apply:
(a) No agreement to accept a surrender of all or any part
of the Demised Premises shall be valid unless in writing and signed by
Landlord. The delivery of keys to an employee of Landlord or of its agent
shall not operate as a termination of this Lease or a surrender of the
Demised Premises. If Tenant shall at any time request Landlord to sublet
the Demised Premises for Tenant's account, Landlord or its agent is
authorized to receive said keys for such purposes without releasing Tenant
from any of its obligations under this Lease, and Tenant hereby releases
Landlord from any liability for loss or damage to any of Tenant's property
in connection with such subletting.
(b) The receipt by Landlord of rent with knowledge of
breach of any obligation of this Lease shall not be deemed a waiver of such
breach.
(c) No payment by Tenant or receipt by Landlord of a lesser
amount than the correct fixed rent or additional rent due hereunder shall
be deemed to be other than a payment on account, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment
be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance or
pursue any other remedy in this Lease or at law provided.
ARTICLE 29
CURING TENANT'S DEFAULTS
29.01. If Tenant shall default in the performance of any of
Tenant's obligations under this Lease, Landlord, without thereby waiving
such default, may (but shall not be obligated to) perform the same for the
account and at the expense of Tenant, without notice, in a case of
emergency, and in any other case, only if such default continues after the
expiration of (i) ten (10) days from the date Landlord gives Tenant notice
of intention so to do, or (ii) the applicable grace period provided in
Section 24.02 or elsewhere in this Lease for cure of such default,
whichever occurs later.
29.02. Bills, invoices and purchase orders for any and all
costs, charges, and expenses incurred by Landlord in connection with any
such performance by it for the account of Tenant, including reasonable
counsel fees, involved in collecting or endeavoring to collect the fixed
rent or additional rent or any part thereof, or enforcing or endeavoring to
enforce any rights against Tenant, under or in connection with this Lease,
or pursuant to law, including any such cost, expense, and disbursement
involved in instituting and prosecuting summary proceedings, may be sent by
Landlord to Tenant monthly, or immediately, at Landlord's option, and,
shall be due and payable in accordance with the terms of such bills.
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ARTICLE 30
BROKER
30.01. Tenant covenants, warrants, and represents that there
was no broker instrumental in consummating this Lease and that no
conversations or negotiations were had with any broker concerning the
renting of the Demised Premises. Tenant agrees to hold Landlord harmless
against any claims for a brokerage commission arising out of any
conversations or negotiations had by Tenant with any broker except Broker.
Landlord agrees to pay Broker pursuant to a separate agreement.
ARTICLE 31
NOTICES
31.01. Any notice, statement, demand, or other communications
required or permitted to be given, rendered, or made by either party to the
other, pursuant to this Lease or pursuant to any applicable law or
requirement of public authority, shall be in writing (whether or not so
stated elsewhere in this Lease) and shall be deemed to have been properly
given, rendered or made, if sent by registered or certified mail, return
receipt requested, addressed to the other party at the address hereinabove
set forth (except that after the Commencement Date, Tenant's address,
unless Tenant shall give notice to the contrary, shall be the Building) and
shall be deemed to have been given, rendered, or made on the date following
the date of mailing. Notice may also be given by facsimile transmittal or
overnight mail. If such notice is given by facsimile transmittal, it shall
be deemed received the day it was sent and overnight mail shall be deemed
received the day after it was sent. Either party may, by notice as
aforesaid, designate a different address or addresses for notices,
statements, demands, or other communications intended for it. In the event
of the cessation of any mail delivery for any reason, personal delivery
shall be substituted for the aforedescribed method of serving notices.
ARTICLE 32
ESTOPPEL CERTIFICATE
32.01. Tenant agrees, when requested by Landlord, to execute
and deliver to Landlord a statement certifying that this Lease is
unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as modified and
stating the modifications), certifying the dates to which the fixed rent
and additional rent have been paid, whether any dispute exists with respect
thereto and stating whether or not, to Tenant's best knowledge, Landlord is
in default in performance of any of its obligations under this Lease, and,
if so, specifying each such default of which Tenant may have knowledge, it
being intended that any such statement delivered pursuant hereto may be
relied upon by others. Such statement shall be served upon Landlord by
Tenant within ten (10) days of Landlord's request. If Tenant fails to
deliver such notice, Landlord shall be deemed appointed as Tenant's
attorney-in-fact to prepare and deliver such-notice on behalf of Tenant,
and Tenant shall be deemed bound thereby upon Landlord's furnishing a copy
of the notice to Tenant.
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ARTICLE 33
ARBITRATION
INTENTIONALLY DELETED
ARTICLE
NO OTHER REPRESENTATIONS, CONSTRUCTION, GOVERNING LAW
34.01. Tenant expressly acknowledges and agrees that Landlord
has not made and is not making, and Tenant, in executing and delivering
this Lease, is not relying upon, any warranties, representations, promises
or statements, except to the extent that the same are expressly set forth
in this Lease. It is understood and agreed that all understandings and
agreements heretofore had between the parties are merged in the Lease,
which alone fully and completely express their agreements and that the same
are entered into after full investigation, neither party relying upon any
statement or representation not embodied in the Lease made by the other.
34.02. If any of the provisions of this Lease, or the
application thereof to any person or circumstances, shall, to any extent,
be invalid or unenforceable, the remainder of this Lease, or the
application of such provision or provisions to persons or circumstances
other than those as to whom or which it is held invalid or unenforceable,
shall not be affected thereby, and every provision of this Lease shall be
valid and enforceable to the fullest extent permitted by law.
34.03. This Lease shall be governed in all respects by the
laws of the State of New Jersey.
ARTICLE 35
SECURITY
35.01. Landlord acknowledges that Tenant has deposited with
Landlord the sum of $760.00. Said deposit (sometimes referred to as the
"Security Deposit") shall be held by Landlord as security for the faithful
performance by Tenant of all the terms of the Lease by said Tenant to be
observed and performed. The Security Deposit shall not and may not be
mortgaged, assigned, transferred, or encumbered by Tenant, without the
written consent of Landlord, and any such act on the part of Tenant shall
be without force and effect and shall not be binding upon Landlord. If any
of the fixed or additional rent herein reserved or any other sum payable by
Tenant to Landlord shall be overdue and unpaid, or if Landlord makes
payment on behalf of Tenant, or if Tenant shall fail to perform any of the
terms, covenants, and conditions of the Lease, then Landlord may, at its
option and without prejudice to any other remedy which Landlord may have on
account thereof, appropriate and apply the entire Security Deposit or so
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much thereof as may be necessary to compensate Landlord toward the payment
of fixed or additional rent and any loss or damage sustained by Landlord
due to such breach on the part of Tenant, plus expenses; and Tenant shall
forthwith upon demand restore the Security Deposit to the original sum
deposited. The issuance of a warrant and/or the re-entering of the Demised
Premises by Landlord for any default on the part of Tenant or for any other
reason prior to the expiration of the term shall not be deemed such a
termination of the Lease as to entitle Tenant to the recovery of the
Security Deposit. If Tenant complies with all of the terms, covenants, and
conditions of the Lease and pays all of the fixed and additional rent and
all other sums payable by Tenant to Landlord as they fall due, the Security
Deposit shall be promptly returned in full to Tenant after the expiration
of the term of the Lease and Tenant's satisfaction of all its obligations
accruing prior to the Lease expiration date. In the event of bankruptcy or
other creditor-debtor proceedings against Tenant, the Security Deposit and
all other securities shall be deemed to be applied first to the payment of
fixed and additional rent and other charges due Landlord for all periods
prior to the filing of such proceedings. In the event of sale by Landlord
of the Building, Landlord may deliver the then balance of the Security
Deposit to the transferee of Landlord's interest in the Demised Premises
and Landlord shall thereupon be discharged from any further liability with
respect to the Security Deposit and this provision shall also apply to any
subsequent transferees. No holder of a superior mortgage to which the
Lease is subordinate shall be responsible in connection with the Security
Deposit, by way of credit or payment of any fixed or additional rent, or
otherwise, unless such mortgagee actually shall have received the entire
Security Deposit.
ARTICLE 36
PARTIES BOUND
36.01. The obligation of this Lease shall bind and benefit the
successors and assigns of the parties with the same effect as if mentioned
in each instance where a party is named or referred to, except that no
violation of the provisions of Article 8 shall operate to vest any rights
in any successor or assignee of Tenant and that the provisions of this
Article shall not be construed as modifying the conditions of limitation
contained in Article 24. However, the obligations of Landlord under this
Lease shall not be binding upon Landlord herein named with respect to any
period subsequent to the transfer of its interest in the Building as owner
or lessee thereof and in event of such transfer said obligations shall
thereafter be binding upon each transferee of the interest of Landlord
herein named as such owner or lessee of the Building, but only with respect
to the period ending with a subsequent transfer within the meaning of this
Article.
36.02. If Landlord shall be an individual, joint venture,
tenancy in common, partnership, unincorporated association, or other
unincorporated aggregate of individuals and/or entities or a corporation,
Tenant shall look only to such Landlord's estate and property in the
Building (or the proceeds thereof) and, where expressly so provided in this
Lease, to offset against the rents payable under this Lease for the
collection of a judgment (or other judicial process) which requires the
payment of money by Landlord in the event of any default by Landlord
hereunder. No other property or assets of such Landlord shall be subject
to levy, execution or other enforcement procedure for the satisfaction of
Tenant's remedies under or with
30
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respect to this Lease, the relationship of Landlord and Tenant hereunder or
Tenant's use or occupancy of the Demised Premises. Further, Tenant agrees
that Landlord shall not be liable to Tenant for any special, indirect, or
consequential damages arising out of Landlord's breach of this Lease.
ARTICLE 37
CONSENTS
37.01. Wherever it is specifically provided in this Lease that
a party's consent is not to be unreasonably withheld, a response to a
request for such consent shall also not be unreasonably delayed. If either
Landlord or Tenant considers that the other had unreasonably withheld or
delayed a consent, it shall so notify the other party within ten (10) days
after receipt of notice of denial of the requested consent or, in case
notice of denial is not received, within twenty (20) days after making its
request for the consent.
37.02. Tenant hereby waives any claim against Landlord which
it may have based upon any assertion that Landlord has unreasonably
withheld or unreasonably delayed any such consent, and Tenant agrees that
its sole remedy shall be an action or proceeding to enforce any such
provision or for specific performance, injunction or declaratory judgment.
In the event of such determination, the requested consent shall be deemed
to have been granted, however, Landlord shall have no liability to Tenant
for its refusal or failure to give such consent. The sole remedy for
Landlord's unreasonably withholding or delaying of consent shall be as
provided in this Article.
ARTICLE 38
MORTGAGE FINANCING - TENANT COOPERATION
38.01. In the event that Landlord desires to seek mortgage
financing secured by the Demised Premises, Tenant agrees to cooperate with
Landlord in the making of any application(s) by Landlord for such financing
including the delivery to Landlord's mortgage broker or mortgagee, of such
information as they shall require with respect to Tenant's occupancy of the
Demised Premises, including, but not limited to the current financial
statement of Tenant, but Tenant shall not be required to deliver such
information directly to Landlord, all of the above to be at no cost and
expense of Tenant. In the event that Landlord's mortgagee shall request
changes to the within Lease in order to make same acceptable to Landlord's
mortgagee, Tenant agrees to consent to such changes, provided such changes
shall not affect the term of this Lease nor the financial obligations of
Tenant hereunder.
ARTICLE 39
ENVIRONMENTAL COMPLIANCE
39.01. Tenant shall, at Tenant's sole cost and expense, comply
with the New Jersey Industrial Site Recovery Act and the regulations
promulgated thereunder (referred to as
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"ISRA") as same relate to Tenant's occupancy of the Demised Premises, as
well as all other state, federal or local environmental law, ordinance,
rule, or regulation either in existence as of the date hereof or enacted or
promulgated after the date of this Lease, that concern the management,
control, discharge, treatment and/or removal of hazardous discharges or
otherwise affecting or affected by Tenant's use and occupancy of the
Demised Premises. Tenant represents that Tenant's SIC number does not
subject it to ISRA. Tenant shall, at Tenant's own expense, make all
submissions to, provide all information to, and comply with all
requirements of the Bureau of Industrial Site Evaluation (the "Bureau") of
the New Jersey Department of Environmental Protection ("NJDEP"). Should
the Bureau or any other division of NJDEP, pursuant to any other
environmental law, rule, or regulation, determine that a cleanup plan be
prepared and that a cleanup be undertaken because of any spills or
discharge of hazardous substances or wastes at the Demised Premises which
occur during the term of this Lease and were caused by Tenant or its agents
or contractors, then Tenant shall, at Tenant's own expense prepare and
submit the required plans and financial assurances, and carry out the
approved plans. In the event that Landlord shall have to comply with ISRA
by reason of Landlord's actions, Tenant shall promptly provide all
information requested by Landlord for preparation of non-applicability
affidavits or a Negative Declaration and shall promptly sign such
affidavits when requested by Landlord. Tenant shall indemnify, defend, and
save harmless Landlord from all fines, suits, procedures, claims, and
actions of any kind arising out of or in any way connected with any spills
or discharges of hazardous substances or wastes at the Demised Premises
which occur during the term of this Lease and were caused by Tenant or its
agents or contractors, and from all fines, suits, procedures, claims, and
actions of any kind arising out of Tenant's failure to provide all
information, make all submissions and take all actions required by the
Bureau or any other division of NJDEP. Tenant's obligations and liabilities
under this Paragraph shall continue so long as Landlord remains responsible
for any spills or discharges of hazardous substances or wastes at the
Demised Premises which occur during the term of this Lease and were caused
by Tenant or its agents or contractors. Tenant's failure to abide by the
terms of this paragraph shall be restrainable by injunction. Tenant shall
have no responsibility to obtain a "Negative Declaration" or "Letter of
Non-Applicability" from the NJDEP if the sole reason for obtaining same is
in connection with a sale or other disposition of the real estate by
Landlord but Tenant agrees to cooperate with Landlord in Landlord's effort
to obtain same and shall perform at Tenant's expense any clean up required
by reason of Tenant's use and occupancy of the Demised Premises.
ARTICLE 40
HOLDING OVER
40.01. Tenant will have no right to remain in possession of
all or part of the Demised Premises after the expiration of the term. If
Tenant remains in possession of all or any part of the Demised Premises
after the expiration of the Lease, without the express consent of Landlord:
(a) such tenancy will be deemed to be a periodic tenancy from month-to-month
only; (b) such tenancy will not constitute a renewal or extension of
this Lease for any further term; and (c) such tenancy may be terminated by
Landlord upon the earlier of (i) thirty (30) days prior written notice, or
(ii) the earliest date permitted by law. In such event, monthly rent will
be increased to an amount equal to two hundred percent (200%) of the
monthly rent payable during
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<PAGE>
the last month of the term, and any other sums due under this Lease will be
payable in the amount and at the times specified in this Lease. Such
month-to-month tenancy will be subject to every other term, condition, and
covenant contained in this Lease. The provisions of this Section shall not
be construed to relieve Tenant from liability to Landlord for damages
resulting from any such holding over, or preclude Landlord from
implementing summary dispossess proceedings. Tenant further acknowledges
that its failure to perform any restoration required of it under this Lease
shall be deemed the same as its remaining in possession of the Demised
Premises after the expiration of the term, subjecting it to hold-over rent
in accordance with this Article 40.
ARTICLE 41
CERTAIN DEFINITIONS AND CONSTRUCTIONS
41.01. For the purpose of this Lease and all agreements
supplemental to this Lease, unless the context otherwise requires, the
definitions set forth in Exhibit F annexed hereto shall be utilized.
41.02. The various terms which are italicized and defined in
other Articles of this Lease or are defined in Exhibits annexed hereto,
shall have the meanings specified in such other Articles and such Exhibits
for all purposes of this Lease and all agreements supplemental thereto,
unless the context shall otherwise require.
41.03. The submission of this Lease for examination does not
constitute a reservation of, or option for, the Demised Premises, and this
Lease becomes effective as a Lease only upon execution and delivery thereof
by Landlord and Tenant.
41.04. The Article headings in this Lease and the Index
prefixed to this Lease are inserted only as a matter of convenience in
reference and are not to be given any effect whatsoever in construing this
Lease.
ARTICLE 42
EQUIPMENT AND MACHINERY
42.01. Tenant acknowledges that the equipment set forth in
Exhibit C-1 (the "Equipment") is the property of Landlord. Landlord and
Tenant agree that the following terms and conditions shall apply to the
Equipment.
(a) GOOD CONDITION: Tenant at all times shall keep and
maintain the Equipment in good and efficient working order and condition
and shall obtain and maintain appropriate repair and maintenance contracts
for the equipment. Tenant agrees to return the Equipment in the same
condition upon the Expiration Date hereof as at its inception, wear and
tear excepted.
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(b) LOSS BY FIRE OR OTHER CASUALTY: The Equipment all times
until redelivered to Landlord shall be held at the sole risk of Tenant free
from injury, loss or damage. If the Equipment or any par thereof shall be
destroyed by fire or otherwise, Tenant shall apply such insurance so as to
replace such Equipment.
(c) NO ALTERATIONS: Except with the express permission of
Landlord, Tenant shall not make any alterations or additions or
improvements to the Equipment. If Landlord approves any such additions or
alterations to the Equipment, all such additions or alterations shall
become the property of the Landlord at the expiration of this Lease. In
the event Landlord rescinds the notice as aforesaid, this Lease shall
continue in full force and effect.
ARTICLE 43
CONTINUOUS OPERATION
43.01. Tenant agrees to continuously operate the Demised
Premises five (5) days a week during the hours of approximately 7:00 a.m.
through approximately 4:30 p.m., Monday through Friday, except that Tenant
shall not be required to operate on days designated as Building Holidays by
Landlord. In the event the Tenant shall fail to operate the Demised
Premises on a continuous basis other than by reason of force majeure,
Landlord shall have the right upon ten (10) days prior written notice to
elect to terminate this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Lease as of the day and year first above written.
WITNESS: LANDLORD:
ALFIERI-PARKWAY ASSOCIATES
a New Jersey General Partnership
/s/ CHRISTINE A. JOSEPH /s/ MICHAEL ALFIERI
----------------------- --------------------
By: Michael Alfieri
Title: Partner
ATTEST: TENANT:
HOST AMERICA CORPORATION
a Colorado Corporation
/s/ LAWRENCE ROSENTHAL /s/ GEOFFREY RAMSEY
---------------------- -------------------
By: GEOFFREY RAMSEY
Title: President
34
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EXHIBIT A
DESCRIPTION OF LAND
--------------------
499 THORNALL STREET
BEGINNING at a point in the New South Easterly line of Thornall Street,
said point being 36.00 feet at right angles from the center line of said
road. Said beginning point being formed by the intersection of the New
South Easterly line of Thornall Street with the common line of Lot 2-B-1,
Block 676 and Lot 1-A, Block 676; as shown on the Edison Township Tax Map
and running thence;
1. South 14 -15' - 14" East 1112.09 feet running along the Westerly line
of Lots 1-A, 1-B, 1-C; Block 676 as shown on the Edison Township Tax
Map to a point and corner of Lot 5, Block 676 and running thence;
2. South 55 -02' - 33" West 380.00 feet along the Northerly line of Lot
5, Block 676 to a point in said line and running thence;
3. North 43 -27' - 01" West 919.28 feet along the Easterly line of
Lot 2-B-2, Block 676 to a point in the New South Easterly line of Thornall
Street and running thence;
4. North 46 -50' - 10" East 918.33 feet along the New South Easterly line
of Thornall Street to a point, said point being the point and place of
BEGINNING.
Said tract contains 14.23 Acres and is subjected to a Sanitary Sewer
Easement and a 30.00 foot wide Buckeye pipeline Right of Way. Recorded May
8, 1952 in Book 1618, Page 499.
Property known and designated as Lot 2-B-1, Block 676 as shown on the
current Township of Edison Tax Map.
Property also known and designated as Lot 2-B-1, Block 676 as shown on plan
entitled, "Final Plat Prepared for M. Alfieri Co., Inc.", dated April 3,
1979 by Goodman, Allgair & Scott.
Subject to easements, restrictions and covenants of record and such state
of facts as an accurate survey may reveal.
1A
<PAGE>
EXHIBIT B
FLOOR PLAN
----------
1B
<PAGE>
EXHIBIT C
SEPARATE WORKLETTER
-------------------
1C
<PAGE>
EXHIBIT D
INTENTIONALLY DELETED
---------------------
1D
<PAGE>
EXHIBIT E
RULES AND REGULATIONS
---------------------
1. The rights of tenants in the entrances, corridors,
elevators, and escalators of the Building are limited to ingress to and
egress from the tenants' demised premises for the tenants and their
employees, licensees, and invitees, and no tenant shall use or permit the
use of the entrances, corridors, escalators, or elevators for any other
purpose. No tenant shall invite to the tenant's demised premises, or
permit the visit of, persons in such numbers or under such conditions as to
interfere with the use and enjoyment of any of the plazas, entrances,
corridors, escalators, elevators, and other facilities of the Building by
other tenants. Fire exits and stairways are for emergency use only, and
they shall not be used for any other purpose by the tenants, their
employees, licensees, or invitees. No tenant shall encumber or obstruct,
or permit the encumbrance or obstruction of any of the sidewalks, plazas,
entrances, corridors, escalators, elevators, fire exits, or stairways of
the Building. The Landlord reserves the right to control and operate the
public portions of the Building and the public facilities, as well as
facilities furnished for the common use of the tenants, in such manner as
it deems best for the benefit of the tenants generally.
2. The Landlord may refuse admission to the Building outside of
ordinary business hours to any person not having a pass issued by the
Landlord or the tenant whose demised premises are to be entered or not
otherwise properly identified, and may require all persons admitted to or
leaving the Building outside of ordinary business hours to register. Any
person whose presence in the Building at any time shall, in the judgment of
the Landlord, be prejudicial to the safety, character, reputation, and
interests of the Building or of its tenants may be denied access to the
Building or may be ejected therefrom. In case of invasion, riot, public
excitement, or other commotion, the Landlord may prevent all access to the
Building during the continuance of the same, by closing the doors or
otherwise, for the safety of the tenants and protection of property of the
Building. The Landlord may require any person leaving the Building with
any package or other object to exhibit a pass from the tenant from whose
premises the packaging or object is being removed, but the establishment
and enforcement of such requirement shall not impose any responsibilities
on the Landlord for the protection of any tenant against the removal of
property from the premises of the tenant. The Landlord shall in no way be
liable to any tenant for damages or loss arising from the admission,
exclusion, or ejection of any person to or from the tenant's premises or
the Building under the provisions of this rule. Canvassing, soliciting, or
peddling in the Building is prohibited, and every tenant shall cooperate to
prevent the same.
3. No tenant shall obtain or accept for use in its demised
premises ice, food for on premises preparation other than warming, beverage
towel, barbering, boot blackening, floor polishing, lighting maintenance,
cleaning, or other similar services from any persons not authorized by the
Landlord in writing to furnish such services, provided that the charges for
such services by persons authorized by the Landlord are not excessive and
where appropriate and
1E
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consonant with the security and proper operation of the Building sufficient
persons are so authorized for the same service to provide tenants with a
reasonably competitive selection. Such services shall be furnished only at
such hours, in such places within the Tenant's Demised Premises and under
such reasonable regulations as may be fixed by the Landlord. Tenant may
have a coffee service, subject to Landlord's approval, and a kitchen for
the use of its employees commensurate with normal office use.
4. The cost of repairing any damage to the public portions of
the Building or the public facilities or to any facilities used in common
with other tenants, caused by a tenant or the employees, licensees, or
invitees of the tenant shall be paid by such tenant.
5. No lettering, sign, advertisement, notice or object shall be
displayed in or on the windows or doors, or on the outside of any tenant's
demised premises, or at any point inside any tenant's premises where the
same might be visible outside of such demised premises, except that the
name of the tenant may be displayed on the entrance door of the tenant's
demised premises, and in the elevator lobbies of the floors which are
occupied entirely by any tenant, subject to the approval of the Landlord as
to the size, color, and style of such display. The inscription of the name
of the tenant on the door of the tenant's demised premises shall be done by
the Landlord at the expense of the tenant.
6. No awnings or other projections over or around the windows
shall be installed by any tenant, and only such window blinds as are
supplied or permitted by the Landlord shall be used in a tenant's demised
premises. Linoleum, tile, or other floor covering shall be laid in a
tenant's demised premises only in a manner approved by the Landlord.
7. The Landlord shall have the right to prescribe the weight
and position of safes and other objects of excessive weight, and no safe or
other object whose weight exceeds the lawful load for the area upon which
it would stand shall be brought into or kept upon a tenant's demised
premises. If, in the judgment of the Landlord, it is necessary to
distribute the concentrated weight of any heavy object, the work involved
in such distribution shall be done at the expense of the tenant and in such
manner as the Landlord shall determine. The moving of safes and other
heavy objects shall take place only outside of ordinary business hours upon
the same upon previous notice to the Landlord, and the persons employed to
move the same in and out of the Building shall be reasonably acceptable to
the Landlord and if so required by law, shall hold a Master Rigger's
license. Freight, furniture, business equipment, merchandise, and bulky
matter of any description shall be delivered to and removed from the
demised premises only in the freight elevators and through the service
entrances and corridors, and only during hours and in a manner approved by
the Landlord. Arrangements will be made by the Landlord with any tenant for
moving large quantities of furniture and equipment into or out of the
Building.
8. No machines or mechanical equipment of any kind other than
typewriters and other ordinary portable business machines, may be installed
or operated in any tenant's demised premises without Landlord's prior
written consent, and in no case (even where the same are of a type so
accepted or as so consented to by Landlord) shall any machines or
mechanical equipment be so placed or operated as to disturb other tenants;
but machines and mechanical
2E
<PAGE>
equipment which may be permitted to be installed and used in a tenant's
demised premises shall be so equipped, installed and maintained by such
tenant as to prevent any disturbing noise, vibration, or electrical or
other interference from being transmitted from such premises to any other
area of the Building.
9. No noise, including the playing of any musical instruments,
radio or television, which, in the judgment of the Landlord might disturb
other tenants in the building, shall be made or permitted by any tenant,
and no cooking shall be done in the tenant's demised premises, except as
expressly approved by the Landlord. Nothing shall be done or permitted in
any tenants' demised premises, and nothing shall be brought into or kept in
any tenants' demised premises, which would impair or interfere with any of
the Building services or the proper and economic heating, cleaning, or
other servicing of the Building or the demised premises, or the use of
enjoyment by any other tenant of any other demised premises, nor shall
there be installed by any tenant any ventilating, air conditioning,
electrical or other equipment of any kind which, in the judgment of the
Landlord, might cause any such impairment or interference. No dangerous,
inflammable, combustible, or explosive object or material shall be brought
into the building by any tenant or with the permission of any tenant. Any
cuspidors or similar containers or receptacles used in any tenants' demised
premises shall be cared for and cleaned by and at the expense of the tenant.
10. No acids, vapors, or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the
Building which may damage them. The water and wash closets and other
plumbing fixtures in or serving any tenant's premises shall not be used for
any purpose other than the purposes for which they were designed or
constructed, and no sweepings, rubbish, rags, acids or other foreign
substances shall be deposited therein.
11. No additional locks or bolts of any kind shall be placed
upon any of the doors or windows in any tenants' demised premises and no
lock on any door therein shall be changed or altered in any respect.
Additional keys for a tenant's demised premises and toilet rooms shall be
procured only from the Landlord, which may make a reasonable charge
therefor. Upon the termination of a tenant's lease, all keys of the
tenant's demised premises and toilet rooms shall be delivered to the Landlord.
12. All entrance doors in each tenants' demised premises shall
be left locked, and all windows shall be left closed by the tenant when the
tenant's demised premises are not in use. Entrance doors shall not be left
open at any time.
13. Hand trucks not equipped with rubber tires and side guards
shall not be used within the Building.
14. All windows in each tenant's demised premises shall be kept
closed and all blinds therein above the ground floor shall be lowered when
and as reasonably required because of the position of the sun, during the
operation of the Building air conditioning system to cool or ventilate the
tenant's demised premises.
3E
<PAGE>
15. The Landlord reserves the right to rescind, alter, or waive
any rule or regulation at any time prescribed for the Building when, in its
judgment, it deems it necessary, desirable, or proper for its best interest
and for the best interests of the tenants, and no alteration or waiver of
any rule or regulation in favor of one tenant shall operate as an
alteration or waiver in favor of any other tenant. The Landlord shall not
be responsible to any tenant for the non-observance or violation by any
other tenant of any of the rules and regulations at any time prescribed by
the Building.
4E
<PAGE>
EXHIBIT F
DEFINITIONS
-----------
(a) The term "mortgage" shall mean an indenture of mortgage and
deed of trust to a trustee to secure an issue of bonds, and the term
"mortgagee" shall mean such a trustee.
(b) The terms "include," "including," and "such as" shall each
be construed as if followed by the phrase "without being limited to."
(c) References to Landlord as having no liability to Tenant or
being without liability to Tenant, shall mean the Tenant is not entitled to
terminate this Lease, or to claim actual or constructive eviction, partial
or total, or to receive any abatement or diminution of rent, or to be
relieved in any manner of any of its other obligations hereunder, or to be
compensated
(d) The term laws and/or requirements of public authorities and
words of like import shall mean laws and ordinances of any or all of the
Federal, state, city, county, and borough governments and rules,
regulations, orders and/or directives of any or all departments,
subdivisions, bureaus, agencies, or office thereof, or of any other
governmental, public, or quasipublic authorities, having jurisdiction in
the premises, and/or the direction of any public officer pursuant to law.
(e) The term requirements of insurance bodies and words of like
import shall mean rules, regulations, orders, and other requirements of the
New Jersey Board of Fire Underwriters and/or similar body performing the
same or similar functions and having jurisdiction or cognizance of the
Building and/or the Demised Premises.
(f) The term repair shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good working
order and condition.
(g) Reference to termination of this Lease includes expiration
or earlier termination of the term of this Lease or cancellation of this
Lease pursuant to any of the provisions of this Lease or to law. Upon a
termination of this Lease, the term and estate granted by this Lease shall
end at noon of the date of termination as if such date were the date of
expiration of the term of this Lease and neither party shall have any
further obligation or liability to the other after such termination (i)
except as shall be expressly provided for in this Lease, or (ii) except for
such obligation as by its nature or under the circumstances can only be, or
by the provisions of this Lease, may be performed after such termination
and, in any event, unless expressly otherwise provided in this Lease, any
liability for a payment which shall have accrued to or with respect to any
period ending at the time of termination shall survive the termination of
this Lease.
1F
<PAGE>
FIRST AMENDMENT TO LEASE
BETWEEN METRO FOUR ASSOCIATES
LIMITED PARTNERSHIP,
AS LANDLORD, AND
HOST AMERICA CORPORATION,
AS TENANT
THIS FIRST AMENDMENT TO LEASE made this 30th day of September 1999
between METRO FOUR ASSOCIATES LIMITED PARTNERSHIP, a New Jersey Limited
Partnership, ("Landlord"), c/o Alfieri Property Management, having an
office at 399 Thornall Street, P.O. Box 2911, Edison, New Jersey 08818-2911
and HOST AMERICA CORPORATION, a Delaware Corporation, having its principal
office at 2 Broadway, Hamden, Connecticut 06581-2697, ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into a Lease dated November 18,
1998, (the "Lease") wherein Landlord let unto Tenant and Tenant hired from
Landlord 5,433 rentable square feet on a portion of the 1st floor of a
certain office building commonly known and designated as 379 Thornall
Street, Edison, New Jersey; and
WHEREAS, Landlord and Tenant have agreed to extend the term of the
Lease and to modify certain provisions of the Lease.
NOW THEREFORE, in consideration of the mutual covenants and
undertakings hereinafter set forth by and between the parties hereto, it is
agreed as follows:
1. The initial term of the Lease is hereby extended for a period
commencing January 1, 2004 and expiring on the same day as the expiration
date ("Expiration Date") set forth in the lease between Alfieri Parkway
Associates, as landlord and Tenant for premises located at 499 Thornall
Street, Edison, New Jersey (the "499 Lease"). Promptly following the
commencement date of the 499 Thornall Street lease, Landlord shall notify
Tenant in writing of the Expiration Date.
2. Tenant acknowledges that it currently owes Landlord $1,080.00
(calculated based upon $120.00 per month for 9 months commencing January 1,
1999) for the storage space provided for in Article 44 of the Lease.
Tenant agrees to pay Landlord upon the commencement date of the 499 Lease
the then current outstanding sum for the storage space which shall be
<PAGE>
calculated based upon $120.00 per month for the number of months from
January 1, 1999 until the commencement date of the 499 Lease.
3. Except as modified herein, all of the terms, covenants and
conditions set forth in the Lease remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals the day and year first above written.
LANDLORD:
WITNESS: METRO FOUR ASSOCIATES
LIMITED PARTNERSHIP,
a New Jersey Limited Partnership
s/ M
/s/ CHRISTINE A. JOSEPH /s/ MICHAEL ALFIERI
------------------------------ -------------------------------
BY: MICHAEL ALFIERI
TITLE: Partner
TENANT:
ATTEST: HOST AMERICA CORPORATION,
a Colorado Corporation
/s/ LAWRENCE ROSENTHAL /s/ GEOFFREY RAMSEY
------------------------------ --------------------
BY: GEOFFREY RAMSEY
TITLE: President
2
