FIRST INDUSTRIAL DEVELOPMENT SERVICES, INC.
STANDARD FORM
INDUSTRIAL BUILDING LEASE
(Multi-Tenant)
1. BASIC TERMS. This Section 1 contains the Basic Terms of this Lease between
Landlord and Tenant, named below. Other Sections of the Lease referred to in
this Section 1 explain and define the Basic Terms and are to be read in
conjunction with the Basic Terms.
1.1 Date of Lease: November 13, 2002
1.2 Landlord: First Industrial Development Services, Inc., a Maryland
corporation.
1.3 Tenant: Classica Microwave Technologies Inc., a Delaware corporation.
1.4 Premises: Suites 11 and 12, containing 10,400 rentable square feet
in the building commonly known as ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Extension, Sayreville, New Jersey (the "Building").
1.5 Property: See Exhibit A.
1.6 Lease Term: Five (5) years and three (3) months ("Term"), commencing
on or about January 1, 2003 ("Commencement Date") and ending March 31, 2008
("Expiration Date"), subject to the provisions of Section 2.3 hereof.
1.7 Permitted Uses: (See Section 4) Office, warehouse, and laboratory
purposes only.
1.8 Tenant's Guarantor: None.
1.9 Brokers: (See Section 23)
(A) Tenant's Broker: Binswanger/Klatskin Co.
(B) Landlord's Broker: None.
1.10 Security Deposit: (See Section 4) $100,000.00.
1.11 Initial Estimated Additional Rent Payable by Tenant:$1,300.00 per month
1.12 Tenant's Proportionate Share: 16.67%.
1.13 Riders to Lease: The following riders are attached to and made a part
of this Lease. None.
2. LEASE OF PREMISES; RENT.
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2.1 Lease of Premises for Lease Term. Landlord hereby leases the Premises to
Tenant, and Tenant hereby rents the Premises from Landlord, for the Term and
subject to the conditions of this Lease. Tenant agrees that it shall execute an
acceptance letter in the form annexed hereto as Exhibit "E".
2.2 Types of Rental Payments. Tenant shall not be responsible for the payment of
any installment of Base Rent which is applicable to the first (1st) three (3)
months of the Term. All of the other terms and conditions of the Lease,
including the obligation for the payment of Additional Rent and all other
charges set forth in this Lease shall be applicable to such three (3) month
period. Thereafter, Tenant shall pay net base rent to Landlord in monthly
installments, in advance, on the first day of each and every calendar month
during the Term of this Lease (the "Base Rent") in the amounts and for the
periods set forth below:
Lease Period Annual Base Rent Monthly Base Rent
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For the entire Term $114,400.00 $9,533.33
Option Period Annual Base Rent Monthly Base Rent
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For the entire Option Period $131,560.00 $10,963.33
Tenant shall also pay Tenant's Proportionate Share (as set forth in Section
1.12) of Operating Expenses (as hereinafter defined), Tenant's Proportionate
Share of any and all Reserve Expenses (as hereinafter defined) and any other
amounts owed by Tenant hereunder [collectively, "Additional Rent"]. In the event
any monthly installment of Base Rent or Additional Rent, or both, is not paid
within 7 days of the date when due, a late charge in an amount equal to 5% of
the then delinquent installment of Base Rent and/or Additional Rent may be
imposed by Landlord [the "Late Charge"; the Late Charge, Default Interest (as
defined in Section 22.3), Base Rent and Additional Rent shall collectively be
referred to as "Rent"]. The Rent shall be sent by Tenant to First Industrial,
L.P., c/o First Industrial, L.P., ▇.▇. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
or if sent by overnight courier, Bank One National Processing Corporation, 3rd
Floor, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: First
Industrial, L.P., Lockbox #33168, or pursuant to such other directions as
Landlord shall designate in this Lease or otherwise in writing. Simultaneously
with the execution hereof, the Tenant has delivered to the Landlord the first
monthly installment of Base Rent payable hereunder, the first month's Estimated
Additional Rent and the Security Deposit referred to in Section 1.10.
2.3 Covenants Concerning Rental Payments. Tenant shall pay the Rent promptly
when due, without notice or demand, and without any abatement, deduction or
setoff, except as may otherwise be expressly and specifically provided in this
Lease. No payment by Tenant, or receipt or acceptance by Landlord, of a lesser
amount than the correct Rent shall be deemed to be other than a payment on
account, nor shall any endorsement or statement on any check or letter
accompanying any payment be deemed an accord or satisfaction, and Landlord may
accept such payment without prejudice to its right to recover the balance due or
to pursue any other remedy available to Landlord. If the Commencement Date
occurs on a day other than the first day of a calendar month, the Rent due for
the first calendar month of the Term shall be prorated on a per diem basis and
paid to Landlord on the Commencement Date. The Term will be extended to
terminate on the last day of the sixty third (63rd) calendar month following the
Commencement Date, and the Expiration Date shall be adjusted accordingly.
3. OPERATING EXPENSES.
3.1 Definitional Terms Relating to Additional Rent. For purposes of this Section
and other relevant provisions of the Lease: 3.1.1 Operating Expenses. The term
"Operating Expenses" shall mean all costs and expenses paid or incurred with
respect to the ownership, repair, replacement, restoration, maintenance and
operation of the Property, including, without limitation, the following: (i)
services provided directly by employees of Landlord or Landlord's managing agent
(the "Agent") in connection with the operation, maintenance or rendition of
other services to or for the Property; (ii) to the extent not separately
metered, billed, or furnished, all charges for utilities and services furnished
to either or both of the Property and the Premises (including, without
limitation, the Common Areas [as hereinafter defined]), together with any taxes
on such utilities; (iii) all premiums for casualty, workers' compensation,
liability, boiler, flood and all other types of insurance provided by Landlord
and relating to the Property, all third party administrative costs incurred in
connection with the procurement and implementation of such insurance policies,
and all deductibles paid by Landlord pursuant to insurance policies required to
be maintained by Landlord under this Lease; (iv) the cost of all supplies,
tools, materials and equipment utilized in the ownership and operation of the
Property, and sales and other taxes thereon; (v) amounts charged (including,
without limitation, those costs and expenses set forth in Section 13.2(i) below)
by any or all of contractors, materialmen and suppliers for services, materials
and supplies furnished to Landlord in connection with any or all of the
operation, repair and maintenance of any part of the Property, including,
without limitation, the structural elements of the Property and the Common
Areas; (vi) reasonable and customary management fees to Landlord or Agent or
other persons or management entities actually involved in the management and
operation of the Property; (vii) any capital improvements made by, or on behalf
of, Landlord to the Property that are either or both (a) designed to reduce
Operating Expenses and (b) required to keep the Property in compliance with all
governmental laws, rules and regulations applicable thereto, from time to time,
the cost of which capital improvements shall be reasonably amortized by Landlord
over the useful life of the improvement, in accordance with generally accepted
accounting principles; (viii) all professional fees incurred in connection with
the operation, management and maintenance of the Property; and (ix) Taxes, as
hereinafter defined in Section 3.1.2.
3.1.2 Taxes. The term "Taxes," as referred to in Section 3.1.1(viii) above shall
mean (i) all governmental taxes, assessments, fees and charges of every kind or
nature (other than Landlord's income, franchise or other similar taxes), whether
general, special, ordinary or extraordinary, due at any time or from time to
time, during the Term and any extensions thereof, in connection with the
ownership, leasing, or operation of the Property, or of the personal property
and equipment located therein or used in connection therewith; and (ii) any
reasonable expenses incurred by Landlord in contesting such taxes or assessments
and/or the assessed value of the Property. Landlord shall pay all assessments
over the longest period of time permitted, being understood that only the
installments of said assessments which are applicable to the Term shall be
included within Taxes. For purposes hereof, Taxes for any year shall be Taxes
that are due for payment or paid in that year rather than Taxes that are
assessed, become a lien, or accrue during such year. Tenant shall have no right
to conduct a tax appeal affecting the Property. Tenant acknowledges that the
Property currently benefits from a tax abatement and that, consequently, Taxes
may increase significantly in the future. 3.1.3 Operating Year. The term
"Operating Year" shall mean the calendar year commencing January 1st of each
year (including the calendar year within which the Commencement Date occurs)
during the Term.
3.2 Payment of Operating Expenses. Tenant shall pay, as Additional Rent and in
accordance with the requirements of Section 3.3, its Proportionate Share of the
Operating Expenses as set forth in Section 3.3. Additional Rent commences to
accrue upon the Commencement Date. The Tenant's Proportionate Share of Operating
Expenses payable hereunder for the Operating Years in which the Term begins and
ends shall be prorated to correspond to that portion of said Operating Years
occurring within the Term. Tenant's Proportionate Share of Operating Expenses
and any other sums due and payable under this Lease shall be adjusted upon
receipt of the actual bills therefor, and the obligations of this Section 3
shall survive the termination or expiration of the Lease. 3.3 Payment of
Additional Rent. Landlord shall have the right to reasonably estimate the
Operating Expenses for each Operating Year. Tenant shall pay, on the first day
of each month during that Operating Year, an amount (the "Estimated Additional
Rent") equal to the estimate of the Tenant's Proportionate Share of Operating
Expenses divided by 12 (or the fractional portion of the Operating Year
remaining at the time Landlord delivers its notice of the estimated amounts due
from Tenant for that Operating Year). Landlord shall deliver a statement of
Operating Expenses to Tenant promptly following each Operating Year; Landlord
shall deliver backup documentation to Tenant regarding any such statement, upon
Tenant's written request. If the aggregate amount of Estimated Additional Rent
actually paid by Tenant during any Operating Year is less than Tenant's actual
ultimate liability for Operating Expenses for that particular Operating Year,
Tenant shall pay the deficiency within 30 days of Landlord's written demand. If
the aggregate amount of Estimated Additional Rent actually paid by Tenant during
a given Operating Year exceeds Tenant's actual liability for such Operating
Year, the excess shall be credited against the Estimated Additional Rent next
due from Tenant during the immediately subsequent Operating Year, except that in
the event that such excess is paid by Tenant during the final Lease Year, then
upon the expiration of the Term, Landlord shall pay Tenant the then-applicable
excess promptly after determination thereof, provided that there are no other
amounts due and owing by Tenant to Landlord. In the event that any item of
Operating Expenses has not been included in Tenant's Estimated Additional Rent
payments, Landlord shall have the right to ▇▇▇▇ Tenant for any such cost, which
incurred, and Tenant shall pay to the Landlord the invoiced amount within thirty
(30) days of Landlord's written demand therefor. 4. USE OF PREMISES AND COMMON
AREAS; SECURITY DEPOSIT.
4.1 Use of Premises and Property. The Premises shall be used by the Tenant for
the purpose(s) set forth in Section 1.7 above and for no other purpose
whatsoever. Tenant shall not, at any time, use or occupy, or suffer or permit
anyone to use or occupy, the Premises, or do or permit anything to be done in
the Premises or the Property, in any manner that may (a) violate any Certificate
of Occupancy for the Premises or the Property; (b) cause, or be liable to cause,
injury to, or in any way impair the value or proper utilization of, all or any
portion of the Property (including, but not limited to, the structural elements
of the Property) or any equipment, facilities or systems therein; (c) constitute
a violation of the laws and requirements of any public authority or the
requirements of insurance bodies or the rules and regulations of the Property,
including any covenant, condition or restriction affecting the Property; (d)
exceed the load bearing capacity of the floor of the Premises; (e) impair or
tend to impair the character, reputation or appearance of the Property; or (f)
unreasonably annoy, inconvenience or disrupt the operations or tenancies of
other tenants or users of the Property. On or prior to the date hereof, Tenant
has completed and delivered for the benefit of Landlord a "Tenant Operations
Inquiry Form" in the form attached hereto as Exhibit D describing the nature of
Tenant's proposed business operations at the Premises, which form is intended
to, and shall be, relied upon by Landlord. Except for the Certificate of
Occupancy, Tenant shall be responsible to obtain all other permits and approvals
necessary for the operation by Tenant of its business in the Premises. Tenant
may not utilize any portion of the Property outside of the Premises for outside
storage of any equipment, raw materials, pallet storage or staging, finished
products or any other personal property of Tenant. 4.2 Use of Common Areas. As
used herein, "Common Areas" shall mean all areas within the Property that are
available for the common use of tenants of the Property and that are not leased
or held for the exclusive use of Tenant or other tenants or licensees,
including, but not limited to, parking areas, driveways, sidewalks, loading
areas, access roads, corridors, landscaping and planted areas. Tenant shall have
the nonexclusive right to use the Common Areas for the purposes intended,
subject to such reasonable rules and regulations as Landlord may uniformly
establish from time to time. Landlord reserves the right to allocate designated
parking spaces, if Landlord so chooses. Tenant shall not interfere with the
rights of any or all of Landlord, other tenants or licensees, or any other
person entitled to use the Common Areas. Without limitation of the foregoing,
Tenant shall not park or store any vehicles or trailers on, or conduct truck
loading and unloading activities in, the Common Areas in a manner that
unreasonably disturbs, disrupts or prevents the use of the Common Areas by
Landlord, other tenants or licensees or other persons entitled to use the Common
Areas. Landlord, from time to time, may change any or all of the size, location,
nature and use of any of the Common Areas although such changes may result in
inconvenience to Tenant, so long as such changes do not materially and adversely
affect Tenant's use of the Premises. In addition to the foregoing, Landlord may,
at any time, close or suspend access to any Common Areas to perform any acts in
the Common Areas as, in Landlord's reasonable judgment, are desirable to improve
or maintain either or both of the Premises and the Property, or are required in
order to satisfy Landlord's obligations under either or both of Sections 13.2
and 18; provided, however, that Landlord shall use reasonable efforts not to
disrupt Tenant's use and operation of the Premises in connection therewith.
4.3 Signage. Tenant shall not affix any sign of any size or character to any
portion of the Property, without prior written approval of Landlord, which
approval shall not be unreasonably withheld or delayed. Tenant shall have the
right to place a sign on the front door of the Premises, at Tenant's sole cost
and expense, subject to Landlord's approval and to the applicable rules and
regulations of all governmental boards and bureaus having jurisdiction over the
Property. Any other signs placed on the Property by Tenant, after approval by
Landlord, shall be installed by Landlord's designated sign company in accordance
with Landlord's building standard signage. Tenant shall remove all signs of
Tenant upon the expiration or earlier termination of this Lease and immediately
repair any damage to either or both of the Property and the Premises caused by,
or resulting from, such removal. 4.4 Security Deposit. Simultaneously with the
execution and delivery of this Lease, Tenant shall deposit with Landlord the sum
set forth in Section 1.10 above, in cash (the "Security"), representing security
for the performance by Tenant of the covenants and obligations hereunder. The
Security shall be held by Landlord in a separate segregated account, with
interest in favor of Tenant (said interest to become part of the Security);
provided, however, that no trust relationship shall be deemed created thereby.
If Tenant defaults in the performance of any of its covenants hereunder,
Landlord may, without notice to Tenant, apply all or any part of the Security,
to the extent required for the payment of any Rent or other sums due from Tenant
hereunder, in addition to any other remedies available to Landlord. In the event
the Security is so applied, Tenant shall, upon demand, immediately deposit with
Landlord a sum equal to the amount so used, by certified or bank cashiers check.
If Tenant is not in default of its covenants and obligations hereunder at the
time of expiration of the Term, the Security (or any balance thereof) shall be
returned to Tenant within 30 days after the last to occur of (i) the date the
Term expires or terminates, (ii) delivery to Landlord of possession of the
Premises in accordance with the terms of this Lease, or (iii) delivery to
Landlord of evidence of compliance with ISRA, as hereinafter defined . Landlord
may deliver the Security to any purchaser of Landlord's interest in the Premises
[or any Successor Landlord (defined below), if applicable], and thereupon
Landlord shall be discharged from any further liability with respect to the
Security, provided that such successor assumes Landlord's obligations regarding
the Security in writing, and a true copy of such assumption is delivered to
Tenant.
5. CONDITION AND DELIVERY OF PREMISES.
5.1 Condition of Premises. (i) Tenant agrees that Tenant is familiar with the
condition of both the Premises and the Property, and Tenant hereby accepts the
foregoing on an "AS-IS," "WHERE-IS" basis. Tenant acknowledges that neither
Landlord, nor any representative of Landlord has made any representation as to
the condition of the foregoing or the suitability of the foregoing for Tenant's
intended use. Tenant represents and warrants that Tenant has made its own
inspection of the foregoing. Landlord shall not be obligated to make any
repairs, replacements or improvements (whether structural or otherwise) of any
kind or nature to the foregoing in connection with, or in consideration of, this
Lease, except (a) as set forth in Sections 13.2 and 18 and (b) with respect to
all (if any) repairs and improvements expressly and specifically described in
Exhibit B attached hereto ("Landlord Work Items"). Landlord agrees to make
reasonable efforts to enforce, upon Tenant's request, all manufacturer's or
contractor's warranties, if any, issued in connection with any of the Landlord
Work Items.
(ii) Anything hereinabove contained to the contrary, it is
expressly understood and agreed that the Landlord's construction obligation
shall be limited to the Landlord Work Items hereinabove set forth in Section
5.1(i). In the event that any changes or additions are required to the work to
be performed by Landlord (including any modification to the fire suppression
system serving the Premises) by any governmental or quasi-governmental entity
having jurisdiction over the Tenant or its use and occupancy of the Premises,
any such changes or additions shall be performed by the Landlord at the Tenant's
sole cost and expense. In addition, in the event that the performance of any
such changes or additions shall delay the Commencement Date hereunder, the
Commencement Date shall be established as of the date that the Premises would
otherwise have been substantially completed by the Landlord, but for such
additional requirements which are applicable to the Tenant.
5.2 Delay in Commencement. Landlord shall not be liable to Tenant if Landlord
does not deliver possession of the Premises to Tenant on the anticipated
Commencement Date. The obligations of Tenant under the Lease shall not be
affected thereby, except that the Commencement Date shall be delayed until
Landlord delivers possession of the Premises to Tenant, and the Lease Term shall
be extended by a period equal to the number of days of delay in delivery of
possession of the Premises to Tenant, plus the number of days necessary to end
the Lease Term on the last day of a month.
6. SUBORDINATION; NOTICES TO SUPERIOR LESSORS AND MORTGAGEES; ATTORNMENT.
6.1 Subordination. This Lease shall be subject and subordinate at all times to
(a) all ground leases or underlying leases that may now exist or hereafter be
executed affecting either or both of the Premises and the Property and (b) any
mortgage or deed of trust that may now exist or hereafter be placed upon, and
encumber, any or all of (x) the Property, (y) any ground leases or underlying
leases for the benefit of the Property, and (z) all or any portion of Landlord's
interest or estate in any of said items. Notwithstanding the foregoing, Landlord
shall have the right to subordinate or cause to be subordinated any such ground
leases or underlying leases that benefit the Property or any such mortgage or
deed of trust liens to this Lease. Tenant shall execute and deliver, upon demand
by Landlord and in the form reasonably requested by Landlord, any additional
documents evidencing the priority or subordination of this Lease with respect to
any such ground leases or underlying leases for the benefit of the Property or
any such mortgage or deed of trust. Landlord represents that there is currently
no mortgage affecting the Property. Landlord shall obtain, for the benefit of
Tenant, a Subordination, Non-Disturbance and Attornment Agreement from all
future mortgagees of the Property, provided that any such Subordination,
Non-Disturbance and Attornment Agreement shall be written on the applicable
mortgagee's customary form.
6.2 Estoppel Certificates. Tenant agrees, from time to time and within 10 days
after request by Landlord, to deliver to Landlord, or Landlord's designee, an
estoppel certificate stating such matters pertaining to this Lease as may be
reasonably requested by Landlord. Failure by Tenant to timely execute and
deliver such certificate shall constitute an acceptance of the Premises and
acknowledgment by Tenant that the statements included therein are true and
correct without exception. Landlord and Tenant intend that any statement
delivered pursuant to this section may be relied upon by any prospective
purchaser or mortgagee of the Property or of any interest therein or any other
Landlord designee.
6.3 Transfer by Landlord. In the event of a sale or conveyance by Landlord of
the Property, the same shall operate to release Landlord from any future
liability for any of the covenants or conditions, express or implied, herein
contained in favor of Tenant, and in such event Tenant agrees to look solely to
Landlord's successor in interest with respect thereto and agrees to attorn to
such successor.
7. QUIET ENJOYMENT. Subject to the provisions of this Lease, so long as Tenant
pays all of the Rent and performs all of its other obligations hereunder, Tenant
shall not be disturbed in its possession of the Premises by Landlord, Agent or
any other person lawfully claiming through or under Landlord; provided, however,
in addition to Landlord's rights under Section 16 and elsewhere in this Lease,
Landlord and Landlord's agents, employees, contractors and representatives shall
be provided reasonable access to the Premises such that Landlord and Landlord's
agents, employees, contractors and representatives may perform the General
Maintenance Services (as hereinafter defined) without undue interruption, delay
or hindrance. This covenant shall be construed as a covenant running with the
Property and is not a personal covenant of Landlord. Tenant shall not
unreasonably interrupt, delay, prevent or hinder the performance of the General
Maintenance Services by or on behalf of Landlord. Notwithstanding the foregoing,
however, Tenant acknowledges and agrees that Landlord shall have the unfettered
and unilateral right to use portions of the Common Areas (inclusive of the roof
of the Building) for such purposes and uses as Landlord may desire; provided,
however, that in all events and under all circumstances, Landlord's use of any
portion of the Common Areas shall not interfere, in any material respect, with
any or all of (a) Tenant's rights to occupy and use the Common Areas (in the
manner and for the purposes contemplated hereunder); (b) Tenant's right to
utilize the vehicular parking areas located on the Common Areas; and (c)
Tenant's right of access, ingress and egress to and from the Common Areas.
8. ASSIGNMENT, SUBLETTING AND MORTGAGING.
8.1 Prohibition. Tenant acknowledges that this Lease and the Rent due under this
Lease have been agreed to by Landlord in reliance upon Tenant's reputation and
creditworthiness and upon the continued operation of the Premises by Tenant for
the particular use described in Section 4.1 above; therefore, Tenant shall not,
whether voluntarily, or by operation of law, or otherwise: (a) assign or
otherwise transfer this Lease; (b) sublet the Premises or any part thereof, or
allow the same to be used or occupied by anyone other than Tenant; or (c)
mortgage, pledge, encumber, or otherwise hypothecate this Lease or the Premises,
or any part thereof, in any manner whatsoever, without in each instance
obtaining the prior written consent of Landlord, which consent shall not be
unreasonably withheld delayed or conditioned. Any purported assignment,
mortgage, transfer, pledge or sublease made without the prior written consent of
Landlord shall be absolutely null and void. No assignment of this Lease shall be
effective and valid unless and until the assignee executes and delivers to
Landlord any and all documentation reasonably required by Landlord in order to
evidence assignee's assumption of all obligations of Tenant hereunder. Any
consent by Landlord to a particular assignment, sublease or mortgage shall not
constitute consent or approval of any subsequent assignment, sublease or
mortgage, and Landlord's written approval shall be required in all such
instances. No consent by Landlord to any assignment or sublease shall be deemed
to release Tenant from its obligations hereunder and Tenant shall remain fully
liable for performance of all obligations under this Lease. 8.2 Rights of
Landlord. If this Lease is assigned, or if the Premises (or any part thereof)
are sublet or used or occupied by anyone other than Tenant, whether or not in
violation of this Lease, Landlord may (without prejudice to, or waiver of its
rights), collect Rent from the assignee, subtenant or occupant. Landlord may
apply the net amount collected to the Rent herein reserved, but no such
assignment, subletting, occupancy or collection shall be deemed a waiver of any
of the provisions of this Section 8. With respect to the allocable portion of
the Premises sublet, in the event that the total rent and any other
considerations received under any sublease by Tenant is greater than the total
Rent required to be paid, from time to time, under this Lease, Tenant shall pay
to Landlord one hundred percent (100%) of such excess as received from any
subtenant and such amount shall be deemed a component of the Additional Rent.
8.3 Permitted Transfers. The provisions of Section 8.1(a) shall apply to a
transfer of a majority (i.e. greater than 50% interest) of the voting stock of
Tenant or to any other change in voting control of Tenant (if Tenant is a
corporation), or to a transfer of a majority of the general partnership or
membership interests in Tenant (if Tenant is a partnership or a limited
liability company) or to a change in the managerial control of Tenant, or to any
comparable transaction involving any other form of business entity, whether
effectuated in one or more transactions, as if such transfer were an assignment
of this Lease; but said provisions shall not apply to such a transfer, provided,
in any of such events, the successor to Tenant (or any party remaining liable
for the obligations of Tenant hereunder): (i) has a net worth at least equal to
the net worth of Tenant as of the Commencement Date or (ii) is capable of
satisfying Tenant's obligations hereunder, in Landlord's reasonable judgment.
Any such permitted transferee shall execute and deliver to Landlord any and all
documentation reasonably required by Landlord in order to evidence assignee's
assumption of all obligations of Tenant hereunder. Notwithstanding anything to
the contrary contained in this Section 8.3, in no event may Tenant assign,
mortgage, transfer, pledge or sublease this Lease to any entity whatsoever if,
at the time of such assignment, mortgage, transfer, pledge or sublease, Tenant
is in default under this Lease. 8.4 Landlord's Right of Recapture.
Notwithstanding anything hereinabove set forth, any request by Tenant for
Landlord's consent to an assignment of the lease or a sublease of any portion of
the Premises shall clearly set forth the proposed terms of such proposed
assignment or sublease and shall constitute Tenant's offer to cancel this Lease.
Landlord may accept such offer by notice to Tenant within thirty (30) days after
Landlord's receipt thereof, in which event, this Lease shall terminate as of the
end of the month following the month in which such notice is sent (with the same
effect as if such date were the date fixed herein for the natural expiration of
the Term), Base Rent and Additional Rent shall be apportioned to such date,
Tenant shall surrender the Premises on such date as herein provided, and subject
to payment of required lease adjustments, the parties shall thereafter have no
further liability one to the other. If Landlord fails to send such notice,
Tenant, within twenty (20) days after the expiration of such thirty (30) day
period, may assign this Lease or sublet the applicable portion of the Premises
to the proposed assignee or subtenant and upon the terms specified in such
request. The terms of this Section 8.4 shall be inapplicable to the transactions
described in Section 8.3.
8.5 Option to Renew Personal. It is expressly understood and agreed that the
Tenant's Option to Renew, as hereinafter set forth in Section 26, shall be
personal to Tenant only, and may not be exercised by any permitted assignee or
subtenant hereunder. It is understood and agreed that Tenant's Option to Renew
shall be null and void in the event that fifty (50%) percent or more of the
Premises have been sublet by the Tenant prior to the date set for the exercise
by Tenant of the Option to Renew hereinafter set forth. 9. COMPLIANCE WITH LAWS.
9.1 Compliance with Laws. Tenant shall, at its sole expense (regardless of the
cost thereof), comply with all local, state and federal laws, rules, regulations
and requirements now or hereafter in force and all judicial and administrative
decisions in connection with the enforcement thereof (collectively, "Laws"),
pertaining to either or both of the Premises and Tenant's use and occupancy
thereof. Notwithstanding the foregoing, Tenant shall not be responsible for
making capital improvements to the Premises in order to comply with Laws, if the
requirement that is imposed is one of general applicability to the Building, and
not related to the Tenant's particular manner of use of the Premises. If any
license or permit is required for the conduct of Tenant's business in the
Premises, Tenant, at its expense, shall procure such license prior to the
Commencement Date, and shall maintain such license or permit in good standing
throughout the Term. Tenant shall give prompt notice to Landlord of any written
notice it receives of the alleged violation of any law or requirement of any
governmental or administrative authority with respect to either or both of the
Premises and the use or occupation thereof. The judgment of any court of
competent jurisdiction, or the admission of Tenant in any action or proceeding
against Tenant, whether Landlord is a party thereto or not, that any such Law
pertaining to the Premises has been violated, shall be conclusive of that fact
as between Landlord and Tenant.
9.2 (a) Hazardous Materials. If, at any time or from time to time during the
Term (or any extension thereof), any Hazardous Material (defined below) is
generated, transported, stored, used, treated or disposed of at, to, from, on or
in either or both of the Premises and the Property by, or as a result of any act
or omission of, any or all of Tenant and any or all of Tenant's Parties (defined
below): (i) Tenant shall, at its own cost, at all times comply (and cause all
others to comply) with all laws (federal, state or local) relating to Hazardous
Materials, including, but not limited to, all Environmental Laws (defined
below), and Tenant shall further, at its own cost, obtain and maintain in full
force and effect at all times all permits and other approvals required in
connection therewith; (ii) Tenant shall promptly provide Landlord with complete
copies of all communications, permits or agreements with, from or issued by any
governmental authority or agency (federal, state or local) or any private entity
relating in any way to the presence, release, threat of release, or placement of
Hazardous Materials on or in the Premises or any portion of the Property, or the
generation, transportation, storage, use, treatment, or disposal at, on, in or
from the Premises, of any Hazardous Materials; (iii) Landlord and Landlord's
agents and employees shall have the right to either or both (x) enter the
Premises and (y) conduct appropriate tests for the purposes of ascertaining
Tenant's compliance with all applicable laws (including Environmental Laws),
rules or permits relating in any way to the generation, transport, storage, use,
treatment, disposal or presence of Hazardous Materials on, at, in or from all or
any portion of either or both of the Premises and the Property; and (iv) upon
written request by Landlord, provided that Landlord has a reasonable basis to
believe that Tenant is not in compliance with all applicable Laws, Tenant shall
provide Landlord with the results of reasonably appropriate tests of air, water
or soil to demonstrate that Tenant complies with all applicable laws, rules or
permits relating in any way to the generation, transport, storage, use,
treatment, disposal or presence of Hazardous Materials on, at, in or from all or
any portion of either or both of the Premises and the Property. This Section 9.2
does not authorize the generation, transportation, storage, use, treatment or
disposal of any Hazardous Materials at, to, from, on or in the Premises, without
Landlord's prior written consent, which consent Landlord may withhold in its
sole discretion. Tenant covenants to investigate, clean up and otherwise
remediate, at Tenant's sole expense, any release of Hazardous Materials caused,
contributed to, or created by any or all of (A) Tenant and (B) any or all of
Tenant's officers, directors, members, managers, partners, invitees, agents,
employees, contractors or representatives ("Tenant Parties") during the Term.
Such investigation and remediation shall be performed only after Tenant has
obtained Landlord's prior written consent; provided, however, that Tenant shall
be entitled to respond immediately to an emergency without first obtaining such
consent. All remediation shall be performed in strict compliance with
Environmental Laws and to the reasonable satisfaction of Landlord. Tenant shall
be liable for any and all conditions covered hereby, and for all costs relating
thereto, that are caused or created by Tenant and any or all of Tenant's
Parties. Tenant shall not enter into any settlement agreement, consent decree or
other compromise with respect to any claims relating to any Hazardous Materials
in any way connected to the Premises without first obtaining Landlord's written
consent (which consent may be given or withheld in Landlord's sole, but
reasonable, discretion) and affording Landlord the reasonable opportunity to
participate in any such proceedings. As used herein, the term (x) "Environmental
Laws" shall mean any and all laws pertaining to Hazardous Materials or that
otherwise deal with, or relate to, air or water quality, air emissions, soil or
ground conditions or other environmental matters of any kind; and (y) "Hazardous
Materials" shall mean any waste, material or substance (whether in the form of
liquids, solids or gases, and whether or not airborne) that is or may be deemed
to be or include a pesticide, petroleum, asbestos, polychlorinated biphenyl,
radioactive material, urea formaldehyde or any other pollutant or contaminant
that is or may be deemed to be hazardous, toxic, ignitable, reactive, corrosive,
dangerous, harmful or injurious, or that presents a risk to public health or to
the environment, and that is or becomes regulated by any Environmental Law. The
undertakings, covenants and obligations imposed on Tenant under this Section 9.2
shall survive the termination or expiration of this Lease.
9.2 (b) ISRA. Without limiting anything hereinabove contained
in this Section 9.2, Tenant expressly covenants and agrees to fully comply with
the provisions of the New Jersey Industrial Site Recovery Act (N.J.S.A. 13:1K-6,
et seq.) hereinafter referred to as "ISRA", and all regulations promulgated
thereto (or under its predecessor statute, the New Jersey Environmental Cleanup
Responsibility Act) prior to the expiration or earlier termination of this Lease
or at any time that any action of Tenant triggers the applicability of ISRA. In
particular, Tenant agrees that it shall comply with the provisions of ISRA in
the event of any "closing, terminating or transferring" of Tenant's operations,
as defined by and in accordance with the regulations which have been promulgated
pursuant to ISRA. In the event evidence of such compliance is not delivered to
Landlord prior to surrender of the Premises by Tenant to Landlord, it is
understood and agreed that the Tenant shall be liable to pay to the Landlord an
amount equal to one and one-half times the annual Base Rent then in effect,
prorated on a monthly basis, together with all applicable Additional Rent from
the date of such surrender until such time as evidence of compliance with ISRA
has been delivered to Landlord, and together with any costs and expenses
incurred by Landlord in enforcing Tenant's obligations under this Section
9.2(b). Evidence of compliance, as used herein, shall mean a "letter of
non-applicability" issued by the New Jersey Department of Environmental
Protection, hereinafter referred to as "NJDEP", or an approved "no further
action letter" or a "remediation action workplan" which has been fully
implemented and approved by NJDEP. Evidence of compliance shall be delivered to
Landlord, together with copies of all submissions made to, and received from,
the NJDEP, including all environmental reports, test results and other
supporting documentation. In addition to the above, Tenant hereby agrees that it
shall cooperate with Landlord in the event of the termination or expiration of
any other lease affecting the Property, or a transfer of any portion of the
Property, or any interest therein, which triggers the provisions of ISRA. In
such case, Tenant agrees that it shall fully cooperate with Landlord in
connection with any information or documentation which may be requested by the
NJDEP. In the event that any remediation of the Property is required in
connection with the conduct by Tenant of its business in the Premises, Tenant
expressly covenants and agrees that it shall be responsible for that portion of
said remediation which is attributable to the Tenant's use and occupancy
thereof. Tenant hereby represents and warrants that its Standard Industrial
Classification No. is 12408, and that Tenant shall not generate, manufacture,
refine, transport, treat, store, handle or dispose of Hazardous Materials, as
above defined. Tenant hereby agrees that it shall promptly inform Landlord of
any change in its SIC number or the nature of the business to be conducted in
the Premises. The within covenants shall survive the expiration or earlier
termination of the Term.
10. INSURANCE.
10.1 Insurance to be Maintained by Landlord. Landlord shall maintain (a)
"all-risk" property insurance policy covering the Property (at its full
replacement cost), but excluding Tenant's Property (defined below), and (b)
commercial general public liability insurance covering Landlord for claims
arising out of liability for bodily injury, death, personal injury, advertising
injury and property damage occurring in and about the Property and otherwise
resulting from any acts and operations of Landlord, its agents and employees,
and (c) rent loss insurance, all of the above with limits that are required by
any lender(s) of Landlord, or as are otherwise reasonably determined by
Landlord.
10.2 Insurance to be Maintained by Tenant. Tenant shall purchase, at its own
expense, and keep in force at all times during this Lease the policies of
insurance set forth below in Sections 10.2.1 and 10.2.2 (collectively, "Tenant's
Policies"). All Tenant's Policies shall (a) be issued by an insurance company
with a Best rating of A-X or better and otherwise reasonably acceptable to
Landlord and shall be licensed to do business in the state of New Jersey; (b)
provide that said insurance shall not be canceled or materially modified unless
30 days' prior written notice shall have been given to Landlord; and (c)
otherwise be in such form, and include such coverages, as Landlord may
reasonably require. All Tenant's Policies (or, at Landlord's option,
Certificates of Insurance, in a form reasonably acceptable to Landlord,
evidencing said Tenant's Policies), shall be delivered to Landlord by Tenant
upon commencement of the Lease and renewals thereof shall be delivered at least
30 days prior to the expiration of each Tenant's Policy.
10.2.1 General Liability Insurance. Tenant shall purchase and maintain,
throughout the Term, a Tenant's Policy(ies) of (i) commercial general liability
insurance, including personal injury and property damage, in the amount of not
less than $2,000,000.00 per occurrence, and $5,000,000.00 annual general
aggregate, per location. The Tenant's Policies required by this Section 10.2.1
shall (a) name Landlord and any party holding an interest to which this Lease
may be subordinated as additional insureds; (b) provide coverage on an
occurrence basis; (c) provide coverage for the indemnity obligations of Tenant
under this Lease; (d) contain a severability of insured parties provision and/or
a cross liability endorsement; (e) be primary, not contributing with, and not in
excess of, coverage that Landlord may carry; and (f) provide coverage with no
exclusion for a pollution incident arising from a hostile fire.
10.2.2 Property and Workers' Compensation Insurance. Tenant shall purchase and
maintain, throughout the Term, a Tenant's Policy or Policies of (i) "all-risk"
property insurance covering Tenant's Property (at its full replacement cost),
and damage to other property resulting from any acts or operations of Tenant,
and (ii) workers' compensation insurance per the applicable state statutes
covering all employees of Tenant.
10.3 Waiver of Subrogation. To the extent permitted by law, and without
affecting the coverage provided by insurance required to be maintained
hereunder, Landlord and Tenant each waive any right to recover against the other
for (a) damages to property, (b) damages to all or any portion of either or both
of the Premises and the Property, (c) claims arising by reason of the foregoing,
to the extent such damages and claims are insured against, or required to be
insured against, by Landlord or Tenant under this Lease, or (d) claims paid by
Tenant's workers' compensation carrier. This provision is intended to waive,
fully and for the benefit of each party, any rights and/or claims which might
give rise to a right of subrogation by any insurance carrier. The coverage
obtained by each party pursuant to this Lease shall include, without limitation,
a waiver of subrogation by the carrier which conforms to the provisions of this
section.
11. ALTERATIONS. Procedural Requirements. Tenant may, from time to time, at its
expense, make alterations or improvements in and to the Premises (hereinafter
collectively referred to as "Alterations"), provided that Tenant first obtains
the written consent of Landlord in each instance. Landlord's consent to
Alterations shall not be unreasonably withheld, provided that: (a) the
Alterations are non-structural and the structural integrity of the Premises and
Property shall not be affected; (b) the Alterations are to the interior of the
Premises; (c) the proper functioning of the mechanical, electrical, heating,
ventilating, air-conditioning (HVAC), sanitary and other service systems of the
Premises and Property shall not be affected and the usage of or demand made upon
such systems by Tenant shall not be increased; (d) the Alterations have no
adverse effect on other leased premises in the Property; (e) Tenant shall have
appropriate insurance coverage, reasonably satisfactory to Landlord, regarding
the performance and installation of the Alterations; (f) the Alterations shall
conform with all other requirements of this Lease; (g) Tenant shall have
provided Landlord with reasonably detailed plans and specifications for such
Alterations in advance of requesting Landlord's consent; and (h) Landlord shall
have the right to require Tenant to remove such Alterations on or before the
Expiration Date, and to restore the Premises, at Tenant's sole cost and expense.
Landlord shall make such election at the time it gives its consent to such
Alterations or Improvements to Tenant. Additionally, before proceeding with any
Alterations, Tenant shall (i) at Tenant's expense, obtain all necessary
governmental permits and certificates for the commencement and prosecution of
Alterations; (ii) submit to Landlord, for Landlord's written approval, working
drawings, plans and specifications and all permits for the work to be done and
Tenant shall not proceed with such Alterations until it has received said
approval; and (iii) cause those contractors, materialmen and suppliers engaged
to perform the Alterations to deliver to Landlord certificates of insurance (in
a form reasonably acceptable to Landlord) evidencing policies of commercial
general liability insurance (providing the same coverages as required in Section
10.2(i) above) and workers' compensation insurance. Such insurance policies
shall satisfy the obligations imposed under Section 10.2. After obtaining
Landlord's approval to the Alterations, Tenant shall give Landlord at least five
days' prior written notice of the commencement of any Alterations at the
Premises, and Landlord may elect to record and post notices of
non-responsibility at the Premises. 11.1 Performance of Alterations. Tenant
shall cause the Alterations to be performed in compliance with all applicable
permits, laws and requirements of public authorities, and with Landlord's
reasonable rules and regulations or any other restrictions that Landlord may
impose on the Alterations. Tenant shall cause the Alterations to be diligently
performed in a good and workmanlike manner, using new materials and equipment at
least equal in quality and class to the standards for the Property established
by Landlord. Tenant shall obtain all necessary permits and certificates for
final governmental approval of the Alterations and shall provide Landlord with
as built plans, copies of all construction contracts, governmental permits,
approvals and certificates of occupancy and proof of payment for all labor and
materials, including, without limitation, copies of paid invoices and final lien
waivers. Anything herein contained to the contrary notwithstanding, it is
expressly understood and agreed that Landlord reserves the right to perform any
such Alterations, at Tenant's sole cost and expense.
11.2 Lien Prohibition. Tenant shall pay when due all claims for labor and
material furnished to the Premises in connection with the Alterations. Tenant
shall not permit any construction lien to attach to the Premises or the
Property. Tenant, at its expense, shall procure the satisfaction or discharge of
record of all such liens and encumbrances within (30) days after the filing
thereof; or, within such thirty (30) day period, Tenant shall provide Landlord,
at Tenant's sole expense, with endorsements (satisfactory, both in form and
substance, to Landlord and the holder of any mortgage or deed of trust) to the
existing title insurance policies of Landlord and the holder of any mortgage or
deed of trust, insuring against the existence of, and any attempted enforcement
of, such lien. In the event Tenant has not so performed, Landlord may, at its
option, pay and discharge such liens and Tenant shall be responsible to
reimburse Landlord, on demand and as Additional Rent under this Lease, for all
costs and expenses incurred in connection therewith, together with interest
thereon at the rate set forth in Section 22.3, which expenses shall include
reasonable fees of attorneys of Landlord's choosing, and any costs in posting
bond to effect discharge or release of the lien as an encumbrance against the
Premises or the Property.
12. LANDLORD'S AND TENANT'S PROPERTY.
12.1 Landlord's Property. Subject to Section 12.2, all fixtures, machinery,
equipment, improvements and appurtenances attached to, or built into, the
Premises at the commencement of, or during the Term, whether or not placed there
by or at the expense of Tenant, shall become and remain a part of the Premises;
shall at Landlord's option, be deemed the property of Landlord (the "Landlord's
Property"), without compensation or credit to Tenant; and shall not be removed
by Tenant at the Expiration Date unless Landlord requests their removal.
Further, any personal property in the Premises on the Commencement Date, movable
or otherwise, unless installed and paid for by Tenant, shall be and shall remain
the property of Landlord and shall not be removed by Tenant. In no event shall
Tenant remove any of the following materials or equipment without Landlord's
prior written consent (which consent may be given or withheld in Landlord's sole
discretion): any power wiring or power panels, lighting or lighting fixtures,
wall or window coverings, carpets or other floor coverings, heaters, air
conditioners or any other HVAC equipment, fencing or security gates, or other
similar building operating equipment and decorations.
12.2 Tenant's Property. All movable non-structural partitions, business and
trade fixtures, machinery and equipment, communications equipment and office
equipment that are installed in the Premises by, or for the account of, Tenant
and without expense to Landlord and that can be removed without structural
damage to the Premises or to the Property, and all furniture, furnishings and
other articles of movable personal property owned by Tenant and located in the
Premises (collectively, the "Tenant's Property") shall be and shall remain the
property of Tenant and may be removed by Tenant at any time during the Term,
provided Tenant repairs or pays the cost of repairing any damage to the Premises
or to the Property resulting from the installation and/or removal thereof. At or
before the Expiration Date, or the date of any earlier termination, Tenant, at
its expense, shall remove from the Premises all of Tenant's Property and any
Alterations (except such items thereof as constitute Landlord's Property; or as
Landlord shall have expressly permitted, in writing, to remain, which property
shall become the property of Landlord), and Tenant shall repair (to Landlord's
reasonable satisfaction) any damage to the Premises or the Property resulting
from any installation and/or removal of Tenant's Property. Any other items of
Tenant's Property that shall remain in the Premises after the Expiration Date,
or following an earlier termination date, may, at the option of Landlord, be
deemed to have been abandoned, and in such case, such items may be retained by
Landlord as its property or be disposed of by Landlord, in Landlord's sole and
absolute discretion and without accountability, at Tenant's expense, together
with an additional twenty one (21%) percent of such costs for Landlord's
overhead and profit. Notwithstanding the foregoing, if Tenant is in default
under the terms of this Lease, Tenant may remove Tenant's Property from the
Premises only upon the express written direction of Landlord.
13. REPAIRS AND MAINTENANCE.
13.1 Tenant Repairs and Maintenance. Tenant shall, at its expense, throughout
the Term, (i) maintain and preserve, in first-class condition (subject to normal
and customary wear and tear), the Premises and the fixtures and appurtenances
therein (including, but not limited to, the Premises' plumbing and HVAC systems,
all doors, overhead or otherwise, glass and levelers located in the Premises or
otherwise available in the Property for Tenant's sole use; and excluding,
however, those components of the Premises for which Landlord is expressly
responsible under Section 13.2); and (ii) except to the extent Landlord elects
to repair and maintain the HVAC systems as part of General Maintenance Services
(as hereinafter defined), maintain, in full force and effect, a preventative
maintenance and service contract with a reputable service provider for
maintenance of the HVAC systems of the Premises (a copy of which service
agreement shall be provided to Landlord within fifteen (15) days after the
Commencement Date), (which contract shall provide for a minimum of four (4)
inspections per year). Tenant shall also be responsible for all cost and
expenses incurred to perform any and all repairs and replacements (whether
structural or non-structural; interior or exterior; and ordinary or
extraordinary), in and to the Premises and the Property and the facilities and
systems thereof, if and to the extent that the need for such repairs or
replacements arises directly or indirectly from any or all of: (a) the
performance or existence of any Alterations, (b) the installation, use or
operation of Tenant's Property in the Premises, (c) the moving of Tenant's
Property in or out of the Property, and (d) any act, omission, misuse, or
neglect of Tenant, any of its subtenants, or others entering into the Premises
by act or omission of Tenant or any subtenant. Any repairs or replacements
required to be made by Tenant to any or all of the structural components of the
Property and the mechanical, electrical, sanitary, HVAC, or other systems of the
Property or Premises shall be performed by appropriately licensed contractors
approved by Landlord, which approval shall not be unreasonably withheld. All
such repairs or replacements shall be subject to the supervision and control of
Landlord, and all repairs and replacements shall be made with materials of equal
or better quality than the items being repaired or replaced. Notwithstanding any
of the foregoing, however, from time to time during the Term, Landlord may
elect, in its sole discretion and by delivery of written notice to Tenant, to
perform on behalf of Tenant, all or some portion of the repairs, maintenance,
restoration and replacement in and to the Premises required to be performed by
Tenant under this Lease (any such repairs, maintenance, restoration and/or
replacement activities that Landlord elects to perform on behalf of Tenant are
herein collectively referred to as "General Maintenance Services"). Tenant shall
reimburse Landlord for the cost or value of all General Maintenance Services
provided by Landlord as Additional Rent simultaneously with the payment of
Operating Expenses as part of Estimated Additional Rent (on a monthly estimated
basis subject to annual reconciliation as described in Section 3.3). Unless and
until Landlord affirmatively elects to provide General Maintenance Services,
nothing contained herein shall be construed to obligate Landlord to perform any
General Maintenance Services or, except as otherwise expressly provided in
Section 13.2, to repair, maintain, restore or replace any portion of the
Premises. Landlord may from time to time, in its sole discretion, (x) reduce or
expand the scope of the General Maintenance Services that Landlord has elected
to provide or (y) revoke its election to provide any or all of the General
Maintenance Services, in either event, upon delivery of not less than thirty
(30) days' prior written notice to Tenant. If Landlord does not elect to repair,
maintain and/or replace the HVAC systems as part of General Maintenance
Services, or revokes such election at any time after having made such election,
Tenant shall enter into a preventative maintenance and service contract, (which
contract shall provide for a minimum of four (4) inspections per year) with a
reputable service provider for maintenance of the HVAC systems of the Premises,
a copy of which agreement shall be provided to Landlord.
13.2 Landlord Repairs. Notwithstanding anything contrary herein, Landlord shall
repair, replace and restore the foundation, exterior and interior load-bearing
walls, roof structure and roof covering and tuckpointing of the Property;
provided, however, that (i) all costs and expenses so incurred by Landlord to
repair, replace and restore the above items shall constitute Operating Expenses;
and (ii) notwithstanding (i) above, in the event that any such repair,
replacement or restoration is necessitated by any or all of the matters set
forth in Sections 13.1(a) through (d) above (collectively, "Tenant Necessitated
Repairs"), then Tenant shall be required to reimburse Landlord for all costs and
expenses that Landlord incurs in order to perform such Tenant Necessitated
Repairs, and such reimbursement shall be paid, in full, within 10 days after
Landlord's delivery of demand therefor. Landlord agrees to commence the repairs,
replacements or restoration described in this Section 13.2 within a reasonable
period of time after receiving from Tenant written notice of the need for such
repairs.
14. UTILITIES. Tenant shall purchase all utility services from the utility or
municipality providing such service; shall provide for scavenger, cleaning and
extermination services; and shall pay for such services when payments are due.
Tenant shall be solely responsible for the repair and maintenance of any meters
necessary in connection with such services. Tenant's use of electrical energy in
the Premises shall not, at any time, exceed the capacity of either or both of
(i) any of the electrical conductors and equipment in or otherwise servicing the
Premises; and (ii) the HVAC systems of either or both of the Premises and the
Property. Notwithstanding the above, Landlord reserves the right to provide all
of the foregoing services to Tenant, and to charge Tenant for the cost of same.
15. INVOLUNTARY CESSATION OF SERVICES. Landlord reserves the right, without any
liability to Tenant and without affecting Tenant's covenants and obligations
hereunder, to stop service of any or all of the HVAC, electric, sanitary,
elevator (if any), and other systems serving the Premises, or to stop any other
services required by Landlord under this Lease, whenever and for so long as may
be necessary by reason of (i) accidents, emergencies, strikes, or the making of
repairs or changes which Landlord, in good faith, deems necessary or (ii) any
other cause beyond Landlord's reasonable control. Further, it is also understood
and agreed that Landlord shall have no liability or responsibility for a
cessation of services to the Premises or to the Property that occurs as a result
of causes beyond Landlord's reasonable control. No such interruption of service
shall be deemed an eviction or disturbance of Tenant's use and possession of the
Premises or any part thereof, or render Landlord liable to Tenant for damages,
or relieve Tenant from performance of Tenant's obligations under this Lease,
including, but not limited to, the obligation to pay Rent. 16. LANDLORD'S
RIGHTS. Landlord and its respective agents, employees and representatives shall
have the right to enter and/or pass through the Premises at any time or times
upon reasonable prior oral notice (except in the event of emergency): (a) to
examine and inspect the Premises and to show them to actual and prospective
lenders, prospective purchasers or mortgagees of the Property or providers of
capital to Landlord and its affiliates; and (b) to make such repairs,
alterations, additions and improvements in or to all or any portion of either or
both of the Premises and the Property, or the Property's facilities and
equipment as Landlord is required or desires to make. Landlord shall be allowed
to take all materials into and upon the Premises that may be required in
connection with any repairs, alterations, additions or improvements, without any
liability to Tenant and without any reduction or modification of Tenant's
covenants and obligations hereunder; provided, however, that Landlord shall use
reasonable efforts to limit interference with Tenant's business operations and
Tenant's occupancy and use of the Premises. During the period of twelve (12)
months prior to the Expiration Date (or at any time, if Tenant has vacated or
abandoned the Premises or is otherwise in default under this Lease), Landlord
and its agents may exhibit the Premises to prospective tenants. Additionally,
Landlord shall have the following rights with respect to the Premises,
exercisable without notice to Tenant, without liability to Tenant, and without
being deemed an eviction or disturbance of Tenant's use or possession of the
Premises or giving rise to any claim for setoff or abatement of Rent: (i) to
designate and approve, prior to installation, all types of signs; (ii) to have
pass keys, access cards, or both, to the Premises; and (iii) to decorate,
remodel, repair, alter or otherwise prepare the Premises for reoccupancy during
the last ninety (90) days of the Term, if, during or prior to that time, Tenant
vacates the Premises.
17. NON-LIABILITY AND INDEMNIFICATION.
17.1 Non-Liability. Except as provided in Section 17.2.2, none of Landlord, any
managing agent, or their respective affiliates, owners, partners, directors,
officers, agents and employees shall be liable to Tenant for any loss, injury,
or damage, to Tenant or to any other person, or to its or their property,
irrespective of the cause of such injury, damage or loss. Further, except as
provided in Section 17.2.2, none of Landlord, any managing agent, or their
respective affiliates, owners, partners, directors, officers, agents and
employees shall be liable to Tenant (a) for any damage caused by other tenants
or persons in, upon or about the Property, or caused by operations in
construction of any public or quasi-public work; (b) with respect to matters for
which Landlord is liable, for consequential or indirect damages; (c) any latent
defect in the Premises or the Property; (d) injury or damage to person or
property caused by fire, or theft, or resulting from the operation of heating or
air conditioning or lighting apparatus, or from falling plaster, or from steam,
gas, electricity, water, rain, snow, ice, or dampness, that may leak or flow
from any part of the Property, or from the pipes, appliances or plumbing work of
the same.
17.2 Indemnification.
17.2.1 Tenant Indemnification. Tenant hereby indemnifies, defends, and holds
Landlord and Landlord's affiliates, owners, partners, directors, officers,
agents and employees (collectively, "Landlord Indemnified Parties") harmless
from and against any and all Losses (defined below) arising from or in
connection with any or all of: (a) the conduct or management of either or both
the Property and the Premises or any business therein, or any work or
Alterations done, or any condition created by any or all of Tenant and Tenant's
Parties in or about the Premises during the Term or during the period of time,
if any, prior to the Commencement Date that Tenant is given access to the
Premises; (b) any act, omission or negligence of any or all of Tenant and
Tenant's Parties; (c) any accident, injury or damage whatsoever (unless caused
by Landlord's negligence) occurring in, at or upon either or both of the
Property and the Premises and caused by any or all of Tenant and Tenant's
Parties; (d) any breach by Tenant of any of its warranties and representations
under this Lease; (e) any actions necessary to protect Landlord's interest under
this Lease in a bankruptcy proceeding or other proceeding under the Bankruptcy
Code; (f) any violation or alleged violation by any or all of Tenant and
Tenant's Parties of any Law including, without limitation, any Environmental
Law; (g) any breach of the provisions of Section 9 by any or all of Tenant and
Tenant's Parties; (h) claims for work or labor performed or materials supplies
furnished to or at the request of any or all of Tenant and Tenant's Parties; (i)
claims arising from any breach or default on the part of Tenant in the
performance of any covenant contained in this Lease; (j) any Hazardous Materials
used, exposed, emitted, released, discharged, generated, manufactured, sold,
transported, handled, stored, treated, reused, presented, disposed of or
recycled in, at, near or under all or any portion of the Premises as a result of
the acts or omissions of any or all of Tenant and Tenant's Parties; and (k) the
violation of any Environmental Law or any permit, application or consent
required in connection with any Environmental Law by any or all of Tenant and
Tenant's Parties with respect to the Premises during the Term, excluding,
however, any violation of any Environmental Law resulting directly from the acts
or omissions of Landlord and Landlord's employees, agents and contractors
(collectively, "Tenant's Indemnified Matters"). In case any action or proceeding
is brought against any or all of Landlord and the Landlord Indemnified Parties
by reason of any of Tenant's Indemnified Matters, Tenant, upon notice from any
or all of Landlord or any Superior Party (defined below), shall resist and
defend such action or proceeding by counsel reasonably satisfactory to, or
selected by, Landlord. The term "Losses" shall mean all claims, demands,
expenses, actions, judgments, damages (actual, but not consequential),
penalties, fines, liabilities, losses of every kind and nature (including,
without limitation, property damage, diminution in value of Landlord's interest
in the Premises or the Property, damages for the loss or restriction on use of
any space or amenity within the Premises or the Property, damages arising from
any adverse impact on marketing space in the Property, sums paid in settlement
of claims and any costs and expenses associated with injury, illness or death to
or of any person), suits, administrative proceedings, costs and fees, including,
without limitation, attorneys' and consultants' reasonable fees and expenses,
and the costs of cleanup, remediation, removal and restoration, that are in any
way related to any matter covered by the foregoing indemnity. The provisions of
this Section 17.2.1 shall survive the expiration or termination of this Lease.
17.2.2 Landlord Indemnification. Landlord hereby indemnifies, defends and holds
Tenant harmless from and against any and all Losses actually suffered or
incurred by Tenant as the sole and direct result of any negligent, willful or
intentional acts or omissions of any or all of Landlord and any parties within
the direct and sole control of Landlord. In the event that any action or
proceeding is brought against Tenant, and the foregoing indemnity is applicable
to such action or proceeding, then Landlord, upon notice from Tenant, shall
resist and defend such action or proceeding by counsel reasonably satisfactory
to Tenant. Notwithstanding anything to the contrary set forth in this Lease,
however, in all events and under all circumstances, the liability of Landlord to
Tenant shall be limited to the interest of Landlord in the Property, and Tenant
agrees to look solely to Landlord's interest in the Property for the recovery of
any judgment or award against Landlord, it being intended that Landlord shall
not be personally liable for any judgment or deficiency. The provisions of this
Section 17.2.2 shall survive the expiration or termination of this Lease. 17.3
Force Majeure. The obligations of Tenant hereunder shall not be affected,
impaired or excused, and Landlord shall have no liability whatsoever to Tenant,
with respect to any act, event or circumstance arising out of (a) Landlord's
failure to fulfill, or delay in fulfilling any of its obligations under this
Lease by reason of labor dispute, governmental preemption of property in
connection with a public emergency or shortages of fuel, supplies, or labor, or
any other cause, whether similar or dissimilar, beyond Landlord's reasonable
control; or (b) any failure or defect in the supply, quantity or character of
utilities furnished to the Premises, or by reason of any requirement, act or
omission of any public utility or others serving the Property, beyond Landlord's
reasonable control.
18. DAMAGE OR DESTRUCTION.
18.1 Notification and Repair. Tenant shall give prompt notice to Landlord of (a)
any fire or other casualty to the Premises or the Property, and (b) any damage
to, any part or appurtenance of the Property's sanitary, electrical, HVAC,
elevator or other systems located in or passing through the Premises or any part
thereof. Subject to the provisions of Section 18.3 below, if either or both of
the Property and the Premises is damaged by fire or other insured casualty,
Landlord shall repair the damage and restore and rebuild the Property and/or the
Premises (except for Tenant's Property) with reasonable dispatch after (x)
notice to it of the damage or destruction and (y) the adjustment of the
insurance proceeds attributable to such damage. Subject to the provisions of
Section 18.3 below, Tenant shall not be entitled to terminate this Lease and no
damages, compensation or claim shall be payable by Landlord for purported
inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Premises or of the Property pursuant to this
Section. Landlord shall use its diligent, good faith efforts to make such repair
or restoration promptly and in such manner as not to unreasonably interfere with
Tenant's use and occupancy of the Premises, but Landlord shall not be required
to do such repair or restoration work except during normal business hours of
business days. 18.2 Rental Abatement. If (a) the Property is damaged by fire or
other casualty thereby causing the Premises to be inaccessible or (b) the
Premises are partially damaged by fire or other casualty, the Rent shall be
proportionally abated to the extent of any actual loss of use of the Premises by
Tenant.
18.2.1 Total Destruction. If the Property or the Premises shall be totally
destroyed by fire or other casualty, or if the Property shall be so damaged by
fire or other casualty that (in the reasonable opinion of a reputable contractor
or architect designated by Landlord, to be provided to Tenant within thirty (30)
days following such fire or casualty) its repair or restoration requires more
than 120 days, Landlord and Tenant shall each have the option to terminate this
Lease (by so advising the other, in writing) within 10 days after said
contractor or architect delivers written notice of its opinion to Landlord and
Tenant, but in all events prior to the commencement of any restoration of the
Premises or the Property by Landlord. In such event, the termination shall be
effective as of the date upon which either Landlord or Tenant, as the case may
be, receives timely written notice from the other terminating this Lease
pursuant to the preceding sentence. If neither Landlord nor Tenant timely
delivers a termination notice, this Lease shall remain in full force and effect.
Notwithstanding the foregoing, if (A) any holder of a mortgage or deed of trust
encumbering the Property or landlord pursuant to a ground lease encumbering the
Property (collectively, "Superior Parties") or other party entitled to the
insurance proceeds fails to make such proceeds available to Landlord in an
amount sufficient for restoration of the Premises or the Property, or (B) the
issuer of any casualty insurance policies on the Property fails to make
available to Landlord sufficient proceeds for restoration of the Premises or the
Property, then Landlord may, at Landlord's sole option, terminate this Lease by
giving Tenant written notice to such effect within 30 days after Landlord
receives notice from the Superior Party or insurance company, as the case may
be, that such proceeds shall not be made available, in which event the
termination of this Lease shall be effective as of the date Tenant receives
written notice from Landlord of Landlord's election to terminate this Lease.
Landlord shall have no liability to Tenant, and Tenant shall not be entitled to
terminate this Lease by virtue of any delays in completion of repairs and
restoration. Insurance Proceeds. Landlord shall not be obligated to expend in
repairs and restoration an amount in excess of the proceeds of insurance
recovered with respect to any casualty. Tenant acknowledges that Landlord shall
be entitled to the full proceeds of any insurance coverage, whether carried by
Landlord or Tenant, for damage to either or both of the Premises and the
Property (excluding any proceeds for damage to Tenant's Property). In the event
that either or both of the Premises and the Property are not repaired or
reconstructed, all proceeds of insurance (excluding any proceeds covering
Tenant's Property), whether carried by Landlord or Tenant, shall be payable to
Landlord. Landlord's duty to repair the Premises and the Property (excluding
Tenant's Property) is limited to repairing the Premises to the condition
existing immediately prior to such fire or other casualty. 19. EMINENT DOMAIN.
If the whole, or any substantial (as reasonably determined by Landlord) portion,
of the Property is taken or condemned for any public use under any Law or by
right of eminent domain, or by private purchase in lieu thereof, and such taking
would prevent or materially interfere with the Permitted Use of the Premises,
this Lease shall terminate effective when the physical taking of said Premises
occurs. If less than a substantial portion of the Property is so taken or
condemned, or if the taking or condemnation is temporary (regardless of the
portion of the Property affected), this Lease shall not terminate, but the Rent
payable hereunder shall be proportionally abated to the extent of any actual
loss of use of the Premises by Tenant. Landlord shall be entitled to any and all
payment, income, rent or award, or any interest therein whatsoever, which may be
paid or made in connection with such a taking or conveyance, and Tenant shall
have no claim against Landlord or the condemning authority for the value of any
unexpired portion of this Lease. Notwithstanding the foregoing, any compensation
specifically and independently awarded to Tenant for loss of business or
goodwill, or for its personal property, or for relocation expenses shall be the
property of Tenant. 20. SURRENDER AND HOLDOVER. On the last day of the Term, or
upon any earlier termination of this Lease, or upon any re-entry by Landlord
upon the Premises, (a) Tenant shall quit and surrender the Premises to Landlord
"broom-clean" and 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, (b) Tenant shall remove all of Tenant's Property
therefrom, except as otherwise expressly provided in this Lease, and (c) Tenant
shall surrender to Landlord any and all keys, access cards, computer codes or
any other items used to access the Premises. Landlord shall be permitted to
inspect the Premises in order to verify compliance with this Section 20 at any
time prior to (x) the Expiration Date, (y) the effective date of any earlier
termination of this Lease, or (z) the surrender date otherwise agreed to in
writing by Landlord and Tenant. Landlord and Tenant hereby agree that they shall
conduct a walk through inspection of the Premises at least ninety (90) days
prior to the expiration date, at which time Landlord shall determine (subject to
the provisions of Section 11) which alterations and improvements will need to be
removed by the Landlord at Tenant's sole cost and expense, and which shall
remain. The obligations imposed under the first sentence of this Section 20
shall survive the termination or expiration of this Lease. If any repairs are
required to be performed in, to or at the Premises (pursuant to the first
sentence of this Section 20 or any other applicable provision of this Lease)
upon the expiration or termination of the Term, Tenant shall cause such repairs
to be performed, to Landlord's reasonable satisfaction, by no later than the
date on which this Lease is terminated or expired. If Tenant fails to timely
comply with the preceding sentence, then Landlord shall have the right to cause
the repairs to be performed, at Tenant's expense, and all such expenses so
incurred by Landlord shall bear interest (at the rate specified in the second
sentence of Section 22.3) from the date the expense is incurred until the date
paid, in full, by Tenant (inclusive of interest). If Tenant remains in
possession after the Expiration Date hereof or after any earlier termination
date of this Lease or of Tenant's right to possession: (i) Tenant shall be
deemed a tenant-at-will; (ii) Tenant shall pay 150% of the aggregate of the Base
Rent and Additional Rent last prevailing hereunder, and also shall pay all
actual damages sustained by Landlord, directly by reason of Tenant's remaining
in possession after the expiration or termination of this Lease; (iii) there
shall be no renewal or extension of this Lease by operation of law; and (iv) the
tenancy-at-will may be terminated by either party hereto upon 30 days' prior
written notice given by the terminating party to the non-terminating party. The
provisions of this Section 20 shall not constitute a waiver by Landlord of any
re-entry rights of Landlord provided hereunder or by law.
21. EVENTS OF DEFAULT.
21.1 Bankruptcy of Tenant It shall be a default by Tenant under this Lease if
Tenant makes an assignment for the benefit of creditors, or files a voluntary
petition under any state or federal bankruptcy or insolvency law, or an
involuntary petition alleging an act of bankruptcy or insolvency is filed
against Tenant under any state or federal bankruptcy or insolvency law that is
not dismissed within 90 days, or whenever a petition is filed by or against (to
the extent not dismissed within 90 days) Tenant under the reorganization
provisions of the United States Bankruptcy Code or under the provisions of any
state or federal law of like import, or whenever a petition shall be filed by
Tenant under the arrangement provisions of the United States Bankruptcy Code or
similar state or federal law, or whenever a receiver of Tenant, or of, or for,
the property of Tenant shall be appointed, or Tenant admits it is insolvent or
is not able to pay its debts as they mature.
21.2 Default Provisions. Each of the following shall constitute a default by
Tenant under this Lease: (a) if Tenant fails to pay Rent or any other payment
within five (5) days of the date on which said payment is due; or (b) if Tenant
fails, whether by action or inaction, to timely comply with, or satisfy, any or
all of the obligations imposed on Tenant under this Lease (other than the
obligation to pay Rent) for a period of 30 days after Landlord's delivery to
Tenant of written notice of such default under this Section 21.2(b); provided,
however, that if the default cannot, by its nature, be cured within such 30 day
period, but Tenant commences and diligently pursues a cure of such default
promptly within the initial 30 day cure period, then Landlord shall not exercise
its remedies under Section 22 unless such default remains uncured for more than
90 days after the initial delivery of Landlord's original default notice.
22. RIGHTS AND REMEDIES.
22.1 Landlord's Cure Rights Upon Default of Tenant. If Tenant defaults in the
performance of any of its obligations under this Lease, and fails to cure such
default on a timely basis (pursuant to Section 21.2), 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. 22.2 Landlord's Remedies. In case of
any such default under Section 21.2, at any time following the expiration of the
respective grace periods above mentioned, Landlord may serve a notice upon
Tenant electing to terminate this Lease upon a specified date not less than
seven (7) days after the date of serving such notice and this Lease shall then
expire on the date so specified as if that date had been originally fixed as the
expiration date of the Term herein granted; however, a default under Section
21.2, hereof shall be deemed waived if such default is made good before the date
specified for termination in the notice of termination served on Tenant. All
Base Rent and Additional Rent payable by Tenant following Tenant's receipt of a
notice of monetary default shall be made by way of certified or bank cashier's
check. In case this Lease shall be terminated as hereinbefore provided, or by
summary proceedings or otherwise, Landlord or its agents may, immediately or any
time thereafter, re-enter and resume possession of the Premises or such part
thereof, and remove all persons and property therefrom, either by summary
proceedings or by a suitable action or proceeding at law, without being liable
for any damages therefor. No re-entry by Landlord shall be deemed an acceptance
of a surrender of this Lease. In case this Lease shall be terminated as
hereinabove provided, or by summary proceedings or otherwise, Landlord may, in
its own name and in its own behalf, relet the whole or any portion of the
Premises, for any period equal to or greater or less than the remainder of the
then current Term, for any sum which it may deem reasonable, to any tenant which
it may deem suitable and satisfactory, and for any use and purpose which it may
deem appropriate, and in connection with any such lease Landlord may make such
changes in the character of the improvements on the Premises as Landlord may
determine to be appropriate or helpful in effecting such lease and may grant
concessions or free rent. Landlord agrees that it shall use commercially
reasonable efforts to relet the Premises, so as to mitigate the damages
otherwise payable by Tenant hereunder. Landlord shall not in any event be
required to pay Tenant any surplus of any sums received by Landlord on a
reletting of the Premises in excess of the rent reserved in this Lease. Landlord
shall be entitled to recover from Tenant the sum equal to all expenses,
including reasonable counsel fees, incurred by Landlord in recovering possession
of the Premises, the costs of reletting the Premises, and the costs and charges
for the care of Premises while vacant, which damages shall be due and payable by
Tenant to Landlord at such time or times as such expenses shall have been
incurred by Landlord.
22.3 Additional Rights of Landlord. Any and all costs, expenses and
disbursements, of any kind or nature, incurred by Landlord in connection with
the enforcement of any and all of the terms and provisions of this Lease,
including attorneys' reasonable fees (through all appellate proceedings), shall
be due and payable (as Additional Rent) upon Landlord's submission of an invoice
therefor. All sums advanced by Landlord on account of Tenant under this Section,
or pursuant to any other provision of this Lease, and all Base Rent and
Additional Rent, if not paid by Tenant and received by Landlord within thirty
(30) days of the date when due hereunder, shall bear interest at the rate of one
and one half (1 1/2%) percent per month (the "Default Rate") from the date such
payment is due until the date of payment thereof, and such interest shall be and
constitute Additional Rent and be due and payable upon Landlord's or Agent's
submission of an invoice therefor. The various rights, remedies and elections of
Landlord reserved, expressed or contained herein are cumulative and no one of
them shall be deemed to be exclusive of the others or of such other rights,
remedies, options or elections as are now or may hereafter be conferred upon
Landlord by law. 22.4 Event of Bankruptcy. In addition to, and in no way
limiting the other remedies set forth herein, Landlord and Tenant agree that if
Tenant ever becomes the subject of a voluntary or involuntary bankruptcy,
reorganization, composition, or other similar type proceeding under the federal
bankruptcy laws, as now enacted or hereinafter amended, then: (a) "adequate
assurance of future performance" by Tenant and/or any assignee of Tenant
pursuant to Bankruptcy Code Section 365 will include (but not be limited to)
payment of an additional/new security deposit in the amount of three times the
then current Base Rent payable hereunder; (b) any person or entity to which this
Lease is assigned, pursuant to the provisions of the Bankruptcy Code, shall be
deemed, without further act or deed, to have assumed all of the obligations of
Tenant arising under this Lease on and after the effective date of such
assignment, and any such assignee shall, upon demand by Landlord, execute and
deliver to Landlord an instrument confirming such assumption of liability; (c)
notwithstanding anything in this Lease to the contrary, all amounts payable by
Tenant to or on behalf of Landlord under this Lease, whether or not expressly
denominated as "Rent", shall constitute "rent" for the purposes of Section
502(b)(6) of the Bankruptcy Code; and (d) if this Lease is assigned to any
person or entity pursuant to the provisions of the Bankruptcy Code, any and all
monies or other considerations payable or otherwise to be delivered to Landlord
(including Base Rent, Additional Rent and other amounts hereunder), shall be and
remain the exclusive property of Landlord and shall not constitute property of
Tenant or of the bankruptcy estate of Tenant. Any and all monies or other
considerations constituting Landlord's property under the preceding sentence not
paid or delivered to Landlord shall be held in trust by Tenant or Tenant's
bankruptcy estate for the benefit of Landlord and shall be promptly paid to or
turned over to Landlord.
23. BROKER. Tenant covenants, warrants and represents that the broker set forth
in Section 1.9(A) was the only broker to represent Tenant in the negotiation of
this Lease ("Tenant's Broker"). Landlord covenants, warrants and represents that
the broker set forth in Section 1.9(B) was the only broker to represent Landlord
in the negotiation of this Lease ("Landlord's Broker"). Landlord shall be solely
responsible for paying the commission of both Landlord's Broker and Tenant's
Broker. Each party agrees to and hereby does defend, indemnify and hold the
other harmless against and from any brokerage commissions or finder's fees or
claims therefor by a party claiming to have dealt with the indemnifying party
and all costs, expenses and liabilities in connection therewith, including,
without limitation, reasonable attorneys' fees and expenses, for any breach of
the foregoing. The foregoing indemnification shall survive the termination or
expiration of this Lease.
24. TENANT'S FINANCIAL INFORMATION. The Tenant agrees, at the request of the
Landlord, to be made not more than once during any lease year, to furnish its
latest current income and balance statements, certified to by an officer of the
corporation. 25. MISCELLANEOUS.
25.1 Merger. All prior understandings and agreements between the parties are
merged in this Lease, which alone fully and completely expresses the agreement
of the parties. No agreement shall be effective to modify this Lease, in whole
or in part, unless such agreement is in writing, and is signed by the party
against whom enforcement of said change or modification is sought. 25.2 Notices.
Any notice required to be given by either party pursuant to this Lease, shall be
in writing and shall be deemed to have been properly given, rendered or made
only if personally delivered, or if sent by Federal Express or other comparable
commercial overnight delivery service, addressed to the other party at the
addresses set forth below (or to such other address as Landlord or Tenant may
designate to each other from time to time by written notice), and shall be
deemed to have been given, rendered or made on the day so delivered or on the
first business day after having been deposited with the courier service:
If to Landlord: First Industrial Development Services, L.P.
▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ Tiger
With a copy to: First Industrial Realty Trust
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Draft, Executive Vice President of Operations
With a copy to: Epstein, Fitzsimmons, Brown, Gioia, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to Tenant: Classica Microwave Technologies, Inc.
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chairman & CEO
25.3 Non-Waiver. 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 Lease shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. The receipt and acceptance by Landlord of
Base Rent or Additional Rent with knowledge of breach by Tenant of any
obligation of this Lease shall not be deemed a waiver of such breach.
25.4 Legal Costs. Any party in breach or default under this Lease (the
"Defaulting Party") shall reimburse the other party (the "Nondefaulting Party")
upon demand for any legal fees and court (or other administrative proceeding)
costs or expenses that the Non-defaulting Party incurs in connection with the
breach or default, regardless whether suit is commenced or judgment entered.
Such costs shall include legal fees and costs incurred for the negotiation of a
settlement, enforcement of rights or otherwise. Furthermore, in the event of
litigation, the court in such action shall award to the party in whose favor a
judgment is entered a reasonable sum as attorneys' fees and costs, which sum
shall be paid by the losing party. Tenant shall pay Landlord's attorneys'
reasonable fees incurred in connection with Tenant's request for Landlord's
consent under provisions of this Lease governing assignment and subletting, or
in connection with any other act which Tenant proposes to do and which requires
Landlord's consent. 25.5 Parties Bound. Except as otherwise expressly provided
for in this Lease, this Lease shall be binding upon, and inure to the benefit
of, the successors and assignees of the parties hereto. Tenant hereby releases
Landlord named herein from any obligations of Landlord for any period subsequent
to the conveyance and transfer of Landlord's ownership interest in the Property.
In the event of such conveyance and transfer, Landlord's obligations shall
thereafter be binding upon each transferee (whether Successor Landlord or
otherwise). No obligation of Landlord shall arise under this Lease until the
instrument is signed by, and delivered to, both Landlord and Tenant.
25.6 Recordation of Lease. Tenant shall not record or file this Lease (or any
memorandum hereof) in the public records of any county or state. 25.7 Survival
of Obligations. Upon the expiration or other termination of this Lease, neither
party shall have any further obligation nor liability to the other except as
otherwise expressly provided in this Lease and except for such obligations as,
by their nature or under the circumstances, can only be, or by the provisions of
this Lease, may be performed after such expiration or other termination.
25.8 Governing Law; Construction. This Lease shall be governed by and construed
in accordance with the laws of the State of New Jersey. If any provision of this
Lease shall be invalid or unenforceable, the remainder of this Lease shall not
be affected but shall be enforced to the extent permitted by law. The captions,
headings and titles in this Lease are solely for convenience of reference and
shall not affect its interpretation. This Lease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Lease to be drafted. Each covenant, agreement, obligation, or other
provision of this Lease to be performed by Tenant, shall be construed as a
separate and independent covenant of Tenant, not dependent on any other
provision of this Lease. All terms and words used in this Lease, regardless of
the number or gender in which they are used, shall be deemed to include any
other number and any other gender as the context may require. This Lease may be
executed in counterpart and, when all counterpart documents are executed, the
counterparts shall constitute a single binding instrument. 25.9 Time. Time is of
the essence of this Lease. If the time for performance hereunder falls on a
Saturday, Sunday or a day that is recognized as a holiday in the state of New
Jersey, then such time shall be deemed extended to the next day that is not a
Saturday, Sunday or holiday in said state.
25.10 Authority of Tenant. If Tenant is a corporation, partnership, limited
liability company, association or any other entity, it shall deliver to
Landlord, concurrently with the delivery to Landlord of an executed Lease,
certified resolutions of Tenant's directors or other governing person or body
(i) authorizing execution and delivery of this Lease and the performance by
Tenant of its obligations hereunder and (ii) certifying the authority of the
party executing the Lease as having been duly authorized to do so. 25.11 WAIVER
OF TRIAL BY JURY. THE LANDLORD AND THE TENANT, TO THE FULLEST EXTENT THAT THEY
MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BROUGHT BY ANY PARTY TO THIS LEASE WITH RESPECT TO THIS LEASE, THE PREMISES THE
PROPERTY, OR ANY OTHER MATTER RELATED TO THIS LEASE OR THE PREMISES.
25.12 Intentionally Omitted.
25.13 Intentionally Omitted.
25.14 Submission of Lease. Submission of this Lease to Tenant for signature does
not constitute a reservation of space or an option to lease. This Lease is not
effective until execution by and delivery to both Landlord and Tenant. 25.15
Joint and Several Liability. All parties signing this Lease as Tenant shall be
jointly and severally liable for all obligations of Tenant hereunder.
25.16 Riders. All Riders and Exhibits attached hereto and executed (or
initialed) both by Landlord and Tenant shall be deemed to be a part hereof and
hereby incorporated herein. 25.17 Tenancy Approval. The within Lease is subject
to and conditioned upon the approval of Tenant's use and occupancy of the
Premises by the Township of Sayreville. Landlord and Tenant shall cooperate so
as to obtain such approval as soon as is reasonably practicable.
26. OPTION TO RENEW
26.1 Provided the Tenant is not in default pursuant to the terms and conditions
of this Lease, the Tenant is hereby given the right and privilege to renew this
Lease, for one (1) five (5) year period, to commence at the end of the initial
Term, which renewal shall be upon the same terms and conditions as in this Lease
contained, except that Tenant shall pay Base Rent during the option period in
the amounts set forth in Section 2.2 hereof.
26.2 The right, option and privilege of the Tenant to renew this Lease as
hereinabove set forth is expressly conditioned upon the tenant delivering to the
Landlord in writing by certified mail, return receipt request, twelve (12)
months prior notice of its intention to renew, which notice shall be given to
the Landlord by the Tenant no later than twelve (12) months prior to the date
fixed for the termination of the initial Lease Term.
26.3 The obligation to pay the Base Rent as hereinabove set forth shall be in
addition to the obligation to pay all Additional Rent and other charges required
by the terms and conditions of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
ANDLORD:
FIRST INDUSTRIAL DEVELOPMENT SERVICES, INC., a Maryland corporation
WITNESS:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Its: Regional Dir
---------------------------
TENANT:
CLASSICA MICROWAVE TECHNOLOGIES INC., a Delaware corporation
ATTEST:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. Its: CEO
---------------------------- -----------------------------------
CFO, Secretary & Treasurer
(Affix Corporate Seal)
{W:\docs\EPFITZ\16510\00347\RedlineClassica 11-4-02.doc; ? 11/4/2002 10:02 AM}
STATE OF NEW JERSEY )
) SS.:
COUNTY OF ▇▇▇▇▇▇ )
BE IT REMEMBERED, that on this 13th day of November, 2002, before me,
the subscriber, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, personally appeared ▇▇▇▇▇▇ ▇▇▇▇▇, who, I am
satisfied, is the person who signed the within Instrument as Reg Dir, of FIRST
INDUSTRIAL DEVELOPMENT SERVICES, INC., a Maryland corporation, the Landlord
named therein, and he thereupon acknowledged that the said instrument made by
the corporation and sealed with its corporate seal, was signed and sealed with
the corporate seal and delivered by him as such officer, and is the voluntary
act and deed of the corporation, made by virtue of authority from its Board of
Directors.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
STATE OF NEW JERSEY )
) SS.:
COUNTY OF OCEAN )
BE IT REMEMBERED, that on this 8th day of November2002, before me, the
subscriber, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, who, I am
satisfied, is the person who signed the within Instrument as Chief Executive
Officer (CEO) of CLASSICA MICROWAVE TECHNOLOGIES INC., a Delaware corporation,
the Tenant named therein, and he thereupon acknowledged that the said instrument
made by the corporation and sealed with its corporate seal, was signed and
sealed with the corporate seal and delivered by him as such officer, and is the
voluntary act and deed of the corporation, made by virtue of authority from its
Board of Directors.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
EXHIBIT A
Property
EXHIBIT B
Landlord Work Items
Anything herein contained to the contrary notwithstanding, it is expressly
understood and agreed that the Tenant shall take the Premises and improvements
as of the Commencement Date of the within Lease in an "as is" condition, except
that Landlord shall perform such work as shall be set forth on a plan to be
prepared by Landlord (the "Plan"), which Plan shall be mutually approved by
Landlord and Tenant hereunder and attached to the lease as Schedule "B". The
Plan shall reflect those improvements shown on the single line drawing annexed
hereto as Exhibit "C", shall provide for the construction of up to 7,500 square
feet of office space, and shall be based upon the workletter which is annexed
hereto as Exhibit "F" and the specifications which are annexed hereto as Exhibit
"G". The Plan shall be submitted to Landlord by Tenant within two (2) weeks
following the date of execution hereof; if the Plan is not submitted within two
(2) weeks following the date hereof, the Commencement Date shall be established
as of the date that the Premises would otherwise have been substantially
completed by the Landlord, but for such delay.
LEASE
EXHIBIT D
TENANT OPERATIONS INQUIRY FORM
Tenant Name:__________________________________
Te
L E A S E A G R E E M E N T
BY AND BETWEEN:
FIRST INDUSTRIAL DEVELOPMENT SERVICES, INC.,
a Maryland corporation,
"Landlord"
- and -
CLASSICA MICROWAVE TECHNOLOGIES INC.,
=
a Delaware corporation
"Tenant"
PREMISES: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Extension, Suites 11 and 12
Sayreville, New Jersey
DATED: November 13, 2002
PREPARED BY: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ESQ.
November 6, 2002
L E A S E A G R E E M E N T
BY AND BETWEEN:
FIRST INDUSTRIAL DEVELOPMENT SERVICES, INC.,
a Maryland corporation,
"Landlord"
- and -
CLASSICA MICROWAVE TECHNOLOGIES INC.,
a Delaware corporation
"Tenant"
-----------------------------------
DATED: November 13, 2002
---------------------------------------
LAW OFFICES
EPSTEIN, FITZSIMMONS, BROWN,
GIOIA, ▇▇▇▇▇▇ & SPROULS
a Professional Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (fax)
W:\docs\EPFITZ\16510\88888\00015435.DOC
TABLE OF CONTENTS
1. BASIC TERMS..........................................................1
2. LEASE OF PREMISES; RENT..............................................2
2.1 Lease of Premises for Lease Term............................2
2.2 Types of Rental Payments....................................2
2.3 Covenants Concerning Rental Payments........................3
3. OPERATING EXPENSES...................................................3
3.1 Definitional Terms Relating to Additional Rent..............3
3.1.1 Operating Expenses.................................3
3.1.2 Taxes..............................................4
3.1.3 Operating Year.....................................5
3.2 Payment of Operating Expenses...............................5
3.3 Payment of Additional Rent..................................5
4. USE OF PREMISES AND COMMON AREAS; SECURITY DEPOSIT...................6
4.1 Use of Premises and Property................................6
4.2 Use of Common Areas.........................................7
4.3 Signage......... ...........................................7
4.4 Security Deposit............................................8
5. CONDITION AND DELIVERY OF PREMISES...................................8
5.1 Condition of Premises.......................................8
Delay in Commencement................................................9
6. SUBORDINATION; NOTICES TO SUPERIOR LESSORS AND MORTGAGEES;
ATTORNMENT...........................................................9
6.1 Subordination..............................................10
6.2 Estoppel Certificates......................................10
6.3 Transfer by Landlord.......................................10
7. QUIET ENJOYMENT.....................................................11
8. ASSIGNMENT, SUBLETTING AND MORTGAGING...............................11
8.1 Prohibition................................................11
8.2 Rights of Landlord.........................................12
8.3 Permitted Transfers............. ..........................12
8.4 Landlord's Right of Recapture..............................13
8.5 Option to Renew Personal...................................13
9. COMPLIANCE WITH LAWS................................................13
9.1 Compliance with Laws.......................................14
9.2 (a) Hazardous Materials................... ................14
10. INSURANCE...........................................................17
10.1 Insurance to be Maintained by Landlord.....................17
10.2 Insurance to be Maintained by Tenant.......................17
10.2.1 General Liability and Auto Insuran................18
10.2.2 Property and Workers' Compensation insurance......18
10.3 Waiver of Subrogation......................................18
11. ALTERATIONS.........................................................19
12. LANDLORD'S AND TENANT'S PROPERTY....................................21
12.1 Landlord's Property........................................21
12.2 Tenant's Property..........................................21
13. REPAIRS AND MAINTENANCE.............................................22
13.1 Tenant Repairs and Maintenance.............................22
13.2 Landlord Repairs...................................... ....24
14. UTILITIES...........................................................24
15. INVOLUNTARY CESSATION OF SERVICES...................................25
16. LANDLORD'S RIGHTS...................................................25
17. NON-LIABILITY AND INDEMNIFICATION...................................26
17.1 Non-Liability..............................................26
17.2 Indemnification............................................26
17.2.1 Tenant Indemnification............................26
17.2.2 Landlord Indemnification..........................28
17.3 Force Majeure..............................................28
18. DAMAGE OR DESTRUCTION...............................................28
18.1 Notification and Repair....................................29
18.2 Rental Abatement...........................................29
18.3 Total Destruction..........................................29
18.4 Insurance Proceeds.........................................30
19. EMINENT DOMAIN......................................................30
20. SURRENDER AND HOLDOVER..............................................31
21. EVENTS OF DEFAULT...................................................32
21.1 Bankruptcy of Tenant.......................................32
21.2 Default Provisions.........................................32
22. RIGHTS AND REMEDIES.................................................33
22.1 Landlord's Cure Rights Upon Default of Tenant..............33
22.2 Landlord's Remedies........................................33
22.3 Additional Rights of Landlord..............................34
22.4 Event of Bankruptcy........................................35
23. BROKER..............................................................35
24. TENANT'S FINANCIAL INFORMATION......................................36
25. MISCELLANEOUS.......................................................36
25.1 Merger.....................................................36
25.2 Notices....................................................36
25.3 Non-Waiver.................................................37
25.4 Legal Costs................................................37
25.5 Parties Bound..............................................37
25.6 Recordation of Lease.......................................38
25.7 Survival of Obligations....................................38
25.8 Governing Law; Construction................................38
25.9 Time.......................................................38
25.10 Authority of Tenant........................................38
25.11 WAIVER OF TRIAL BY JURY....................................39
25.12 Intentionally Omitted......................................39
25.14 Intentionally Omitted......................................39
25.15 Joint and Several Liability................................39
25.16 Riders.....................................................39
25.17 Tenancy Approval...........................................39
26. OPTION TO RENEW.....................................................39
EXHIBITS
A. Property
B. Landlord Work Items
C. Plans Of Premises
D. Tenant Operations Inquiry Form
E. Tenant's Acceptance Letter
F. Tenant Workletter
G. Tenant Fitout Specifications