LEASE
BETWEEN
UNUM LIFE INSURANCE COMPANY OF AMERICA
LANDLORD
-AND-
DEZINE ASSOCIATES, INC.
TENANT
HERON MANAGEMENT LTD. 850 Third Avenue New York, N. Y. 10022 212-753-3210
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ARTICLE NO. DESCRIPTION PAGE NO.
I Demise 2
II Term 2
III Rent 3
IV Use and Occupancy 4
V Alterations or Improvements by Tenant 4
VI Maintenance 5
VII Compliance with Laws, Indemnity and Insurance 6
VIII Hazardous Materials 6
IX Subordination and Estoppel 7
X Destruction - Fire or Other Casualty 7
XI Mutual Waiver of Subrogation 8
XII Condemnation and Other Proceedings 9
XIII Assignment and Subletting 9
XIV Surrender 10
XV Holding Over 10
XVI Landlord's Right of Entry 11
XVII Default 11
XVIII Landlord's Rights Upon Tenant's Default 12
XIX Landlord's Remedies Cumulative: Expenses 13
XX No Waiver 14
XXI Landlord's Reserved Rights 14
XXII Landlord's Liability 15
XXIII Tenant's Liability 15
XXIV Tenant's Insurance 15
XXV Mechanic's Liens 16
XXVI Quiet Enjoyment 16
XXVII Air and Light 16
XXVIII Landlord's Services 17
XXIX Personal Property Taxes 18
XXX Security Deposit 18
XXXI Use of Security Deposit 18
XXXII Definition of Landlord 19
XXXIII Notices 19
XXXIV Signs 19
XXXV Notice of Defects and Accidents 20
XXXVI Rules and Regulations 20
XXXVII Directory 20
XXXVIII Americans With Disability Act 20
XXXIX Miscellaneous 21
XXXX Definitions 25
Corporate Tenant Acknowledgement 26
Partnership Tenant Acknowledgement 26
Exhibit A -- Floor Plan 2
Exhibit B -- Cleaning
Schedule 3
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LEASE, dated as of the 13th day of August, 1992 between UNUM LIFE INSURANCE COMPANY OF AMERICA having its principal office at 2211 Congress Street, Portland, ME 04121 (hereinafter referred to as "Landlord") and DEZINE ASSOCIATES, INC. having their principal offices at 74 BRUNSWICK WOODS DRIVE, EAST BRUNSWICK, N.J. 08816
(hereinafter referred to as "Tenant").
W I T N E S S E T H:
Landlord and Tenant hereby covenant and agree as follows:
ARTICLE I
Demise
1.1 Landlord hereby leases to Tenant and Tenant hereby hires from Landlord approximately Seven Thousand One Hundred (7,100 Sq. Ft.) substantially as shown on the floor plan which has been initialed by the parties and annexed hereto and made a part hereof and marked Exhibit A, in the building known as THE WOODS OF EAST BRUNSWICK, 758 ROUTE 18, EAST BRUNSWICK,
New Jersey at the annual rental rate set forth in Article III and upon and subject to all of the terms, covenants and conditions contained in this Lease. The premises shall be deemed to and hereby are agreed to have a Rentable Area as above of approximately 7,100 sq. ft. of floor area constituting a portion of the ground floor of the building subject however to and reserving unto Landlord, its successors and assigns, its agents, employees and invitees, the use in common with Tenant of common areas and facilities located upon said first floor which common areas and facilities include but are not limited to corridors and rest rooms. The premises leased to Tenant, together with all appurtenances, fixtures, improvements, additions and other property attached thereto or installed therein at the commencement of, or at any time during, the term of this Lease, other than Tenant's personal property are referred to collectively as the "Premises."
ARTICLE II
Term
2.1 The Premises are leased for a term to commence at 12:01 A.M. on September 1, 1992 and to end at 11:59 P.M. on September 30, 1997 unless the term shall sooner terminate pursuant to any of the terms, covenants or conditions of this Lease or pursuant to law, or unless the term shall be extended pursuant to the terms of this lease.
2.2 When Tenant takes possession of the Premises, Tenant shall be deemed to have accepted the Premises as being in satisfactory condition as of the date of such possession.
Notwithstanding anything contained herein to the contrary, Tenant shall have access to the demised premises during the month of August for the purposes of completing Tenant's work. However, in no event shall Tenant's work interfere with Landlord's work and/or
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schedule and Tenant shall be required to give Landlord at least 48 hours notice of its intent to have contractors working in the space. Tenant's contractors shall supply Landlord with appropriate Certificate of Insurance and shall comply in all respects with Article 5, sections 5.1 and 5.2 of this lease.
2.3 Notwithstanding anything contained herein to the contrary, Tenant acknowledges that the demised premises will be constructed pursuant to the plans annexed hereto. Landlord shall in no way be responsible for any delay in possession due to the construction to Tenant's space. However if Landlord cannot deliver possession to Tenant by September 1, 1992, then the commencement date of this lease shall be postponed until five days after substantial completion of Landlord's work to the demised premises. Substantial completion shall be defined as the issuance of a Certificate of Occupancy for the demised premises by the appropriate authority. Landlord shall be responsible for obtaining the Certificate of Occupancy.
ARTICLE III
Rent
3.1 The Tenant covenants and agrees to pay to the Landlord as rent for and during the term hereof the sums pursuant to the following schedule:
LEASE YEAR ANNUAL RENT
---------- ----------- September 1, 1992 through September 30, 1993 $76,916.67* (SEE 3.5) October 1, 1993 through September 30, 1994 $71,000.00 October 1, 1994 through September 30, 1995 $71,000.00 October 1, 1995 through September 30, 1996 $71,000.00 October 1, 1996 through September 30, 1997 $71,000.00
*13 Months
3.2 The Basic Rent and Additional Rent payable pursuant to the provisions of this Lease shall be payable by Tenant to Landlord at its office (or at such other place as Landlord may designate in a notice to Tenant) in lawful money of the United States without prior demand thereof and without any offset or deduction whatsoever except as otherwise specifically provided in this Lease for the convenience of the Landlord. The Basic Rent shall be payable in equal monthly installments pursuant to the following schedule, in advance, on the first (1st) day of each month during the term. Notwithstanding anything contained herein to the contrary, the term "Base Rent" shall include real property taxes, cleaning tenants space, recycle bins, water and sewer charges, Landlord's Insurance, garbage collection (unless Tenant shall require additional services due to its business or the use of the premises, i.e. dumpster), maintenance of common areas (including hallways and common area lavatories, and the exterior of the premises, including the parking lot).
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LEASE YEAR MONTHLY RENT
---------- ------------ September 1, 1992 through September 30, 1993 $5,916.67 October 1, 1993 through September 30, 1994 $5,916.67 October 1, 1994 through September 30, 1995 $5,916.67 October 1, 1995 through September 30, 1996 $5,916.67 October 1, 1996 through September 30, 1997 $5,916.67
3.3 Tenant covenants to pay the Basic Rent and any Additional Rent payable pursuant to the provisions of this Lease and to observe and perform and to permit no violation of the terms, covenants and conditions of this Lease on Tenant's part.
3.4 Notwithstanding anything contained herein to the contrary, simultaneous with the execution of this lease, Tenant shall pay to Landlord the first months rent due hereunder.
3.5 Notwithstanding anything contained herein to the contrary, Tenant shall pay no base rent for the months of September, October, November and December 1992 and January, February and March 1993, said rent being abated.
ARTICLE IV
Use and Occupancy
4.1 Tenant shall use or occupy the Premises only for the following purpose: Corporate Offices and Storage of Computer Hardware and Supplies.
4.2 Tenant shall not use or occupy, or permit the use or occupancy of the Premises or any part thereof for any purpose other than the purpose specifically set forth herein. Any violations of this Article shall be deemed a material breach of this Agreement.
4.3 Provided Tenant shall not then be in default under any of the terms or conditions of this lease, Landlord shall not Lease space in the building known as 758 Route 18, East Brunswick, N.J. to any Tenant for the purpose of manufacturing goods.
ARTICLE V
Alterations or Improvements by Tenant
5.1 Tenant shall make no changes in or to the Premises of any nature without Landlord's prior written consent. Subject to the prior written consent of Landlord, Tenant, at Tenant's sole expense, may hire contractors approved by Landlord to make alterations, installations, additions or improvements in or to the Premises (collectively "Alterations") which are non-structural and which do not affect utility services, plumbing or electrical lines in or to the Premises or the Building. All alterations shall, upon installation, become the property of Landlord and shall remain upon and be surrendered with the Premises unless Tenant by notice to Landlord no later than thirty (30) days prior to the Termination Date requests Landlord so
4 6 consents the same shall be removed from the Premises by Tenant prior to the Termination Date at Tenant's sole expense. Nothing in this Article V shall be construed to give Landlord title to or to prevent Tenant's removal of trade fixtures, moveable office furniture and equipment but upon removal of any such item from the Premises or upon removal of any other installation as may be permitted by Landlord, Tenant shall immediately and at its expense, repair and restore the Premises to the condition existing prior to such Alteration. Tenant shall repair any damage to the Premises, the building, or the real property on which the building is located (hereinafter referred to as the "Real Property") incurred during such removal. All property permitted or required to be removed by Tenant at the end of the Term remaining on the Premises after the Termination Date shall be deemed abandoned and may, at the election of Landlord, either be retained as Landlord's property or may be removed from the Premises by Landlord at Tenant's expense.
5.2 Prior to the commencement of any Alteration, Tenant shall at its sole expense, obtain all required permits, approvals and certificates required by all Governmental Authorities as determined by Landlord and upon completion of the Alteration certificates of final approval thereof, Tenant shall deliver to Landlord promptly upon its receipt, duplicates of same. Tenant shall carry and will cause Tenant's contractors and subcontractors to carry such worker's compensation, general liability, personal and property damage insurance as required by law and in amounts no less than the amounts set forth in Article XXIII hereof.
ARTICLE VI
Maintenance
6.1 Tenant shall take good care of the Premises throughout the Term and preserve same in the condition delivered to Tenant on the Commencement Date, normal wear and tear excepted. Tenant further agrees not to injure, overload, deface or commit waste of the Premises. Tenant shall be responsible for all injury or damage of any kind or character to the Real Property, including the windows, floors, walls, ceilings, lights, electrical equipment and HVAC equipment, caused by Tenant or by anyone using or occupying the Premises by, through or under the Tenant. Landlord shall repair the same and Tenant shall pay the costs incurred thereof to Landlord immediately upon demand. This shall be deemed to be additional rent.
6.2 Landlord shall be responsible for all Structural Repairs and shall maintain, and replace all plumbing, heating, air conditioning, roof, electrical and mechanical fixtures supplied by Landlord (exclusive of (a) starters, ballasts, incandescent and fluorescent lamps and (b) electrical and mechanical fixtures installed by Tenant) which shall be standard for the Building, when required, and maintain and make repairs to the parking area and the exterior of the building, except those repairs or replacements arising from the negligence of Tenant, its agents, servants, employees licensees, or invitees, which shall be the sole responsibility of Tenant.
6.3 Notwithstanding anything contained herein to the contrary, and provided Tenant is not in default under any of the terms and conditions of this lease, Landlord and Tenant agree that should the roof leak into the demised premises, Tenant shall notify Landlord of such
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condition. If landlord shall fail to commence curing the problem within a reasonable period of time, and Tenants furniture and fixtures are damaged, Landlord agrees to repair and/or replace same as soon as reasonable, in an amount not to exceed $10,000.00 per incident.
ARTICLE VII
Compliance with Laws, Indemnity and Insurance
7.1 Tenant shall not do, or permit anything to be done in or to the Premises, or bring or keep anything therein which will, in any way, increase the cost of fire or public liability insurance on the Real Property, or invalidate or conflict with the fire insurance or public liability insurance policies covering the Real Property, any Building, fixtures or any personal property kept therein, obstruct or interfere with the rights of Landlord or other tenants, or in any other way injure or annoy Landlord or other tenants, or subject Landlord to any liability for injury to persons or damage to property, or interfere with the good order of the Building, or conflict with the present or future laws, rules or regulations of any Governmental Authority. Tenant hereby indemnities and shall hold Landlord harmless of and from all liability for injury to persons or damage occurring on the Premises or in the Building whether occasioned by any act or omission of Tenant, or Tenant's agents, servants, employees, invitees, or licensees. Tenant agrees that any increase in fire and casualty insurance premiums on the Building or contents caused by the occupancy of Tenant and any expense or cost incurred in consequence of negligence, carelessness or willful action of Tenant, Tenant's agents, servants, employees, invitees or licensees, shall be reimbursed to Landlord within ten (10) days of demand thereof and shall be considered additional rental.
ARTICLE VIII
Hazardous Materials
8.1 Tenant shall not, without Landlord's prior written consent, use, generate, release, spill, store, deposit, transport or dispose of (collectively "Release") any hazardous substances, sewage, petroleum products, hazardous materials, toxic substances or any pollutants, contaminants or substances, defined as hazardous or toxic under and applicable federal, state, and local laws and regulations ("Hazardous Substances") in, on or about the Premises. In the event, and only in the event, Landlord approves such Release of Hazardous Substances on the Premises, Tenant agrees that such Release shall occur safely and in compliance with all applicable federal, state and local laws and regulations. Tenant shall indemnify, hold harmless and defend Landlord, its officers, directors, employees and agents from any and all claims, liabilities, losses, damages, cleanup costs and expenses (including reasonable attorney's fees) arising directly or indirectly out of or attributable to failure of Tenant, its agents, servants, employees or invitees to comply with this Article. The provisions of this Article shall survive the expiration or termination of the Lease for any reason.
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ARTICLE IX
Subordination and Estoppel
9.1 Tenant agrees that this Lease is subject and subordinate to all ground or underlying leases and to the lien of any mortgages or deeds of trust now on or which at any time in the future that may be made a lien upon the Real Property, and to all advances made or hereafter to be made upon the security thereof. This subordination provision shall be self-operative and no further instrument of subordination shall be required. Tenant agrees to execute and deliver within two (2) business days, upon request, such further instrument or instruments confirming this subordination as shall be desired by Landlord or by any mortgagee or proposed mortgagee of the Real Property; and Tenant hereby constitutes and appoints Landlord as Tenant's attorney-in-fact to execute any such instrument or instruments. Tenant further agrees that at the option of the holder of any mortgage or of the trustee under any deed of trust securing the Real Property, this Lease may be made superior to said mortgage or deed of trust by the insertion therein of a declaration that this Lease is superior.
9.2 Tenant agrees at any time and from time to time upon not less than five (5) days' prior written request by Landlord, to execute, acknowledge and deliver to Landlord a statement in writing certifying that this Lease is unmodified and in full force and effect (or, if there have been modifications, that the same are in full force and effect as modified) and stating the modifications, that there are no offsets, defenses, defaults or counterclaims under this Lease or against the Landlord, the dates to which the Basic Rent and Additional Rent have been paid in advance, if any, it being intended that any such statement delivered pursuant to this paragraph 8.2 may be relied upon by a prospective purchaser of Landlord's interest or mortgagee of Landlord's interest or assignee of any mortgage upon Landlord's interest in the Real Property.
ARTICLE X
Destruction - Fire or Other Casualty
10.1 (a) If Landlord's building is totally damaged or is rendered wholly untenantable by fire or other cause, and cannot reasonably be repaired by Landlord within one hundred twenty (120) days, or if the Building shall be so damage that Landlord cannot reasonably restore the same but must demolish it or rebuild it, which Landlord may in its sole discretion determine, then either party may, within sixty (60) days after such casualty, give to the other party a notice in writing of intention to terminate this Lease, and thereupon the term of this Lease shall expire by lapse of time upon the thirtieth (30th) day, after such notice is given, and Tenant shall vacate the demised Premises and surrender the same to Landlord. Upon termination of this Lease under this Paragraph IX(a), Tenant's liability for rent shall cease as of the day following the casualty or when tenant ceases to do business in the demised Premises, whichever date is later. In the event this Lease is not terminated under the provisions of this Paragraph IX(a), Landlord shall repair and rebuild the Demised Premises with reasonable diligence.
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(b) If the Demised Premises shall be totally or partially damaged by fire or other casualty, the damages to the Landlord's Building and to the Demised Premises shall, to the extent that they were originally constructed and furnished by the Landlord, be promptly repaired by and at Landlord's expense and the damage to all of tenant's fixtures and other improvements installed by Tenant shall be promptly repaired by and at the expense of Tenant and the rent until such repair shall be made shall be apportioned according to the part of the Demised Premises which is tenantable by Tenant until the Landlord has made the repairs required of Landlord.
(c) Landlord shall provide and maintain, at its expense, during the term hereof, fire insurance. Anything contained in this Lease to the contrary notwithstanding, in the event the Landlord's Building shall be totally or partially damaged by fire or other casualty, the Landlord shall not be obligated to expend for such repair or restoration an amount in excess of the net proceeds of insurance recovered as a result of such damage to expend any sums for Tenants own. Notwithstanding anything to the contrary, this lease becomes immediately null and void if the tenant cannot reasonably occupy the premises as a result of fire or other causes, provided not caused by negligence of Tenant.
ARTICLE XI
Mutual Waiver of Subrogation
11.1 Landlord hereby waives any and all rights of recovery against Tenant for or arising out of damage to or destruction of the Premises, Building, or the Real Property and any other property of Landlord from causes then insured under standard fire and extended coverage insurance policies or endorsements to the extent that its insurance policies then in effect permit such waiver, and Tenant hereby waives any and all rights of recovery against Landlord for or arising out of damage to or destruction of the Premises or the Real Property and any property of Tenant from causes then insured under standard fire and extended coverage insurance policies to the extent that its insurance policies then in effect permit such waiver. If at any time during the Term any insurance carrier which shall have issued a policy to either of the parties covering the Real Property, the Premises or any of the property of Tenant, shall refuse to consent to the waiver of the right of recovery with respect to any loss payable under such policy, or if such carrier shall consent to such waiver only upon the payment of an additional premium (unless such additional premium is voluntarily paid by one of the parties hereto) or shall cancel a consent previously given, or shall cancel or threaten to cancel any policy previously issued and then in full force and effect, then in any such sent, the waiver of this paragraph 10.1 shall thereupon be of no further force and effect as to the loss, damage or destruction covered by such policy except as hereinafter provided. If however, at any time thereafter such consent shall be obtained thereof from any existing or any substitute insurance carrier, the waiver hereinabove provided for shall again become effective.
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ARTICLE XII
Condemnation and Other Proceedings
12.1 In the event the whole of the Demised Premises shall be acquired or condemned by eminent domain for any public or quasi-public use or purpose, then and in that event, the term of this Lease shall cease and terminate from the date of title vesting in such proceeding or the termination of her right to possession, whichever is earlier. In the event any substantial part thereof or of Landlord's Building or of the structure of which Landlord's Building is a part is so acquired or condemned as to render the Demised Premises untenantable or in the event that a part of Landlord's Building, other than the Demised Premises, shall be so condemned or taken and if in the opinion of the Landlord, the Building should be restored in such ways to alter the Demised Premises materially, the Landlord may terminate this Lease and the term and the estate hereby granted by notifying the tenant in writing of such termination and this Lease and the term and estate hereby granted shall expire on the date specified in the notice of termination, not less than thirty (30) days after the giving of such notice, as fully and completely as if such date were the date hereinbefore set forth for the expiration of the term of this Lease, and the rent hereund ...