Exhibit 10.1
THIS LEASE SHALL BE OF NO FORCE AND EFFECT WHATSOEVER UNLESS AND
UNTIL IT SHALL HAVE BEEN EXECUTED BY LANDLORD AND AN EXECUTED
COPY THEREOF DELIVERED TO TENANT. THE DELIVERY OF THIS LEASE TO
TENANT UNSIGNED BY LANDLORD SHALL NOT CONSTITUTE AN OFFER, BUT
RATHER THE SOLICITATION OF AN OFFER FROM TENANT, WHICH LANDLORD
MAY ACCEPT OR REJECT.
THIS AGREEMENT, entered into this 9th day of October,
2003, by and between:
AMB PARTNERS II, L.P., a Delaware limited partnership,
By: AMB Property, L.P. , a Delaware limited
partnership, its General Partner
By: AMB Property Corporation, a Maryland Corporation,
its General Partner
having offices at 00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000, hereinafter known as
LANDLORD
And
MICROWAVE CONCEPTS, INC., a Delaware Corporation,
having an office at 00 Xxxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx, 00000, hereinafter known as
TENANT
WITNESSETH:
ARTICLE 1 PREMISES - TERM OF LEASE
Landlord has demised and leased, and by these presents does
demise and lease unto Tenant, and Tenant does hereby take and
hire, upon and subject to the conditions hereinafter expressed, a
portion of the building and improvements thereon (hereinafter
sometimes referred to collectively as the Demised Premises),
situated at 00 Xxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx and more
particularly described in Exhibit A attached hereto and made a
part hereof.
TOGETHER also with all fixtures, machinery and equipment on
the Demised Premises, as hereinafter further defined as "building
equipment" in ARTICLE 24 DEFINITONS OF CERTAIN TERMS (the same is
included within the definition of "Demised Premises").
TO HAVE AND HOLD the Demised Premises unto Tenant, its
successors and assigns, for a Basic Term of sixty (60) months
commencing ("Commencement Date") upon the issuance of a local
Certificate of Occupancy and substantial completion of Landlord's
Work. Landlord will make best efforts for occupancy to commence
by 12/31/03.
ARTICLE 2 TENANT'S PROPORTIONATE SHARE OF THE BUILDING
Wherever in this Lease reference is made to Tenant's
proportionate share of expenses including, but not limited to,
insurance, repairs, taxes, assessments, charges as set forth in
Section 4.1 hereof, roof maintenance as set forth in Section 8.3
hereof, common area repair, replacements, operating and/or
maintenance fees to cover wages and salaries as set forth in
Section 32.11 hereof, sprinklers, snow removal, HVAC repairs over
and above routine maintenance as set forth in Section 8.1,
impositions, any reference herein to additional rent or
otherwise, said percentage shall be deemed to be eight and 09/100
(8.9%) percent. Notwithstanding the foregoing, Tenant's
proportionate monthly share of expenses shall be fixed at Two
Dollars and Fifty Cents per square foot ($2.50) for the Basic
Term.
ARTICLE 3 NET BASIC RENT
Section 3.1 The Tenant covenants and agrees to pay to the
Landlord during the term, without any setoff or deduction
whatsoever, at the office of the Landlord, 00 Xxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx, 00000, or such other place as Landlord
may from time to time designate in writing, a Net Basic Rent in
the aggregate sum of Two Hundred Seventy Four Thousand, Five
Hundred and 00/100 Dollars ($274,500.00). The parties have
agreed that the Demised Premises consist of 6,100 square feet of
floor space, and any actual variation therefrom shall not affect
Net Basic Rent or "proportionate share" or anything else herein.
The Tenant further agrees and covenants to pay the said Net Basic
Rent in monthly installments, in advance on the first day of each
month during the term of this Lease, commencing at the
Commencement Date, calculated as follows:
Four Thousand, Five Hundred Seventy Five and 00/100 Dollars
($4,575.00) per month[add language that first six months rent
shall be paid upon the Commencement Date]
In the event that the Commencement Date shall be other than the
first day of a month, then the Tenant shall pay on the
Commencement Date, the Net Basic Rent for the fractional portion
of the month on a per diem basis until the first day of the next
succeeding month, and the aggregate sum of Net Basic Rent to be
paid hereunder shall be adjusted accordingly.
Tenant further covenants and agrees to pay all other sums
that may become due under this Lease, or be payable by Tenant
hereunder, at the time, and in the manner herein provided; and
all other sums may, at Landlord's option, be deemed to be and
treated as additional rent payable hereunder and added to any
monthly installment of Net Basic Rent then due or thereafter
falling due; and in the event of nonpayment, Landlord shall have
all the rights and remedies herein provided for in the case of
nonpayment of Net Basic Rent or of a breach of a condition.
Anything above to the contrary notwithstanding, first months rent
is due herewith.
Section 3.2 Landlord shall receive, except as herein
otherwise specifically provided, all Net Basic Rent and all
additional rent hereunder to be made by Tenant to Landlord free
from any charges, taxes, assessments, fees, impositions, expenses
or deductions of any and every kind or nature whatsoever. This
is intended to be a "triple net Lease" with all payments to
Landlord to be net of any expenses to it.
ARTICLE 4 PAYMENT OF TAXES, ASSESSMENTS, ETC.
Section 4.1 Tenant shall pay to Landlord as an additional
rent promptly upon receipt of invoices from Landlord (except as
hereinafter in Section 4.2 hereof provided), before any fine,
penalty, interest or cost may be added thereto, or become due or
be imposed by operation of law for the non-payment thereof its
proportionate share (ARTICLE 2 TENANT'S PROPORTIONATE SHARE OF
THE BUILDING) of all taxes, assessments, and charges, of any kind
and nature whatsoever which at any time prior to or during the
term of this Lease may be assessed, levied, confirmed, imposed
upon or grow or become due and payable out of or in respect of,
or become a lien on, the land and buildings and improvements of
which the Demised Premises are a part, or any part thereof, (all
of same being hereinafter referred to as "Impositions"). Tenant
shall pay its proportionate share as above in advance in monthly
installments estimated by Landlord together with Net Basic Rent.
Landlord shall periodically adjust Tenant's account as and when
such final tax billing is received, whereupon Tenant to pay to
Landlord adjusted amount. Tenant to be responsible for all taxes
allocable to Tenant's work or alterations or improvements.
Tenant responsible for all personal property taxes. Tenant shall
make timely payment of all ad valorem or other taxes and
assessments levied upon Tenant's stock of merchandise, fixtures,
furnishings, furniture, equipment, supplies and other property
located on or used in connection with the Demised Premises and of
all privilege and business licenses, fees, taxes and similar
charges.
Section 4.2 Nothing herein contained shall require Tenant
to pay municipal, state or federal income taxes assessed against
Landlord, municipal, state or federal franchise taxes imposed
upon any corporate owner of the fee of the Demised Premises;
provided however, that if at any time during the term of this
Lease the methods of taxation prevailing at the commencement of
the term hereof shall be altered so as to cause the whole or any
part of the taxes, assessments, levies, impositions or charges
now levied, assessed or imposed on real estate and the
improvements thereon to be levied, assessed or imposed, wholly or
partially as a capital levy, or otherwise, on the rents received
therefrom, or as any other tax, corporation franchise tax,
assessments, levy (including but not limited to any municipal,
state or federal levy), imposition or charge, or any part hereof,
then all such taxes, assessments, levies, Impositions or charges,
shall be deemed to be included within the term "Impositions" for
the purpose hereof, to the extent that such Impositions would be
payable if the Demised Premises were the only property of the
Landlord subject to such Impositions, and the Tenant shall pay
and discharge the same as herein provided in respect of the
payment of Impositions.
Section 4.3 Landlord will have the right, but not the
obligation, to institute an action or actions seeking a reduction
in the valuation of the land and building of which the Demised
Premises are a part as it is asessed for tax purposes, or to
undertake to settle formally or informally issues relating to the
same. In the event that the Landlord institutes such an action
or actions or undertakes such settlement discussions, the Tenant
will be responsible to pay to Landlord, as additional rent, its
proportionate share (ARTICLE 2 TENANT'S PROPORTIONATE SHARE OF
THE BUILDING) of attorneys fees and disbursements and related
costs (e.q. appraisal fees, filing fees) incurred on account of
the same but in an amount not to exceed the cumulative amount of
tax savings (Tenant's proportionate share) effected by the action
or actions, or discussions regardless of the number of years of
savings effected by the action (as by application of the "freeze
act"), and regardless of whether the tax savings are in the form
of a refund or credit against future taxes or otherwise.
Anything above to the contrary notwithstanding, Tenant shall not
effect settlement of any issues relating to taxation without
Landlord's prior written approval.
ARTICLE 5 SECURITY DEPOSIT BY TENANT
Section 5.1 The Landlord herewith acknowledges the receipt
of Four Thousand, Five Hundred Seventy Five and 00/100 Dollars
($4,575.00) which it is to retain as security for the faithful
performance of all of the covenants, conditions, and agreements
of this Lease, but in no event shall the Landlord be obligated to
apply the same on Net Basic Rent or additional rents in arrears
or on damages for the Tenant's failure to perform the said
covenants, conditions, and agreements; the Landlord may so apply
the security at his option in which event Tenant shall deposit
with Landlord the amount so applied so that Landlord shall have
the full deposit on hand at all times, and the Landlord's right
to the possession of the premises for nonpayment of Net Basic
Rent or for any other reason shall not in any event be affected
by reason of the fact that the Landlord holds this security. The
said sum if not applied toward the payment of Net Basic Rent in
arrears or toward the payment of damages suffered by the Landlord
by reason of the Tenant's breach of the covenants, conditions,
and agreements of this Lease is to be returned to the Tenant when
this Lease is terminated, according to these terms, and in no
event is the said security to be returned until the tenant has
vacated the premises and delivered possession to the Landlord in
accordance with the terms of this Lease.
In the event that the Landlord repossesses himself of the
said premises because of the Tenant's default or because of the
Tenant's failure to carry out the covenants, conditions and
agreements of this Lease, the Landlord may apply the said
security on all damages suffered to the date of said repossession
and may retain the said security to apply on such damages as may
be suffered or shall accrue thereafter by reason of the Tenant's
default or breach. The security, however, shall not limit
Landlord's remedies for Tenant default or breach or limit
Tenant's liability on account of same. The Landlord shall not be
obligated to keep the said security as a separate fund, but may
mix the said security with his own funds. Tenant shall not be
entitled to interest on the security.
In the event Landlord invades the security deposit during
the term, Tenant shall restore the same upon demand.
Section 5.2 The security deposited under this Lease shall
not be mortgaged, assigned or encumbered by Tenant without the
written consent of Landlord.
In the event of the termination of this Lease by reason of
the filing by or against the Tenant of a petition in bankruptcy
or assignment for the benefit of creditors, or upon the
insolvency of the Tenant, title to the monies paid over to the
Landlord as security deposit shall vest in the Landlord as
liquidated damages and not as a penalty, free and clear of any
claims of the Trustee in Bankruptcy, Assignee for benefit of
creditors, or Receiver that may be appointed for the insolvent
Tenant.
In the event of a bona fide sale, subject to this Lease, the
Landlord shall have the right to transfer the security to the
vendee for the benefit of the Tenant and the Landlord shall be
considered released by the Tenant from all liability for the
return of such security; and if so transferred, the Tenant agrees
to look to the new Landlord solely for the return of the said
security, and it is agreed that this shall apply to every
transfer or assignment made of the security to a new Landlord.
ARTICLE 6 INSURANCE
Section 6.1 Landlord shall (Tenant shall pay its
proportionate share as additional rent) keep insured for the
benefit of Landlord and the buildings of which the Demised
Premises are a part and the building equipment against loss or
damage by fire (and against such other risks as would be covered
by an extended coverage endorsement to a fire insurance policy
together with rent insurance endorsement in maximum available
amount), in an amount not less than one hundred percent (100%) of
the then full insurable value of said buildings and building
equipment. The term "full insurable value" shall mean the actual
replacement value (excluding foundation and excavation costs) and
said "full insurable value" shall be determined by Landlord's
engineers, or if Landlord so desires by one of the insurers
acceptable to Landlord, at three year intervals or at such other
times as Landlord may reasonably request. Payment by Tenant of
its proportionate share as above shall be made upon demand by
Landlord, and, at Landlord's option, Tenant shall pay the same in
advance in monthly installments together with Net Basic Rent in
an amount estimated by Landlord and to be adjusted when the
premium(s) are fixed. Landlord reserves the right from time to
time to modify the amount of coverage to less than full insurable
value, and to modify deductible covered risks, and co-insurance.
Landlord may carry such insurance in blanket form covering other
properties of Landlord as well.
Section 6.1.1 In any event, Tenant shall also be
responsible for one hundred percent (100%) of all premium
increases due to alterations or improvements made by Tenant to
the Demised Premises and/or the nature of Tenant's use. Tenant
must give advanced notice of alterations and improvements to the
insurance companies writing policy under Sections 6.1 and 6.2.
Section 6.2 Landlord shall (Tenant shall pay its
proportionate share of the cost thereof) for the benefit and
protection of Landlord, maintain:
(a) General public liability insurance against claims for bodily
injury or death or
property damage occurring upon common areas of the building of
which the Demised Premises are a part and all lands outside the
building and all elevators or any escalators therein and the
adjoining streets, sidewalks and passageways, such insurance to
afford protection to combined limits of not less than One Million
and 00/100 Dollars ($1,000,000.00) in respect to bodily injury,
death, or property damage. Landlord may carry such insurance in
blanket form covering other properties of Landlord as well.
(aa) Umbrella/excess liability insurance in a sum to be
determined by Landlord and with a retained limit to be determined
by Landlord.
(b) Boiler explosion insurance on any steam boilers, pressure
vessels and pressure piping in reasonable amount; broad form with repair and
replacement clause.
(c) War risk insurance upon the building(s) of the Demised
Premises and the building equipment, as and when and to the extent that such
insurance is obtainable from the United States of America or any
agency thereof; in an amount not less than one hundred (100%) per
cent of their then full insurable value;
(d) Sprinkler leakage insurance upon the building (both common
and demised areas) and building equipment, but not contents, in an amount not
less than ninety percent (90%) of their then full insurable
value;
(e) Flood insurance in maximum available limits if required by
Landlord's mortgagee.
(f) Such other insurance, including other features and assureds,
as Landlord determines is usual and customary for the protection of the
building and building equipment (both common and demised areas)
of this character or as may be deemed by Landlord from time to
time prudent and reasonable in view of new risks or changed
conditions.
In the event, at any future time, per this Section 6.2,
policies with higher limitations shall be reasonably necessary to
protect Landlord and/or mortgagee, Landlord shall provide
insurance as above with such higher limitations.
Section 6.3 With respect to losses on other than liability
coverage, the loss shall be adjusted with the insurance companies
by Landlord and shall be paid to Landlord or as directed by
Landlord.
Section 6.4 During the course of any construction, repairs,
alterations and additions to the Demised Premises by Tenant,
Tenant shall maintain insurance as per this Article and/or
ARTICLE 10 CHANGES, ALTERATIONS AN NEW
CONSTRUCTION BY TENANT.
Section 6.5 Tenant shall provide at Tenant's sole cost and
expense for the mutual benefit of Landlord and Tenant, and with
Landlord named as an insured, comprehensive, broad form, general
public liability insurance on an "occurrence" and not "claims
made" basis affording protection in the combined limits of not
less than Three Million and 00/100 Dollars ($3,000,000.00) and
insuring against claims for bodily injury or death or property
damage occurring upon the Demised Premises. The policy referred
to herein must be issued by a Best's "A+" rated company admitted
in the State of New Jersey.
All insurance provided for in this section by Tenant shall
be effected under valid and enforceable policies issued by
insurers of recognized responsibility, provided that if such
policies are with underwriters outside of the United States, such
underwriters must maintain trusteed funds within the United
States. Upon execution of this lease, and thereafter not less
than thirty (30) days prior to the expiration dates of the
expiring policies theretofore furnished pursuant to this Article,
originals of the policies (or duplicates thereof issued by the
respective insurers) shall be delivered promptly by Tenant to
Landlord, or if Landlord so requires to the holder of any
mortgage. Insurance shall not be in blanket form.
Section 6.6 Tenant shall maintain all-risk contents and
business interruption insurance in maximum insurable amounts.
Landlord shall have no remedy against Tenant for Tenant's failure
to maintain the same, but notwithstanding Tenant's failure to
maintain the same the Landlord shall be released from Tenant's
claims on account of content damage and business interruption in
accordance with ARTICLE 39 RELEASE AND WAIVER OF SUBROGATION.
Section 6.7 In the event cost of any insurances to Landlord
or tenants of Landlord is increased by reason of any act or
omission of Tenant, its agents, servants or employees, visitors
or invitees, same (increase) shall be at the sole cost and
expense of Tenant (Tenant shall also pay its proportionate share
of cost before the increase as above). Tenant agrees not to
bring or permit to be brought or kept in the Demised Premises,
any flammable, combustible, or explosive fluids, material or
other substances, or permit cooking, or permit unusual or
objectionable odors to emanate from the Demised Premises or do
anything or permit to be done anything which would increase
insurance premiums as above.
Section 6.8 The policies to be provided by Tenant hereunder
shall show Landlord as named insured and shall provide that
insurer to give Landlord thirty (30) days advance written notice
of cancellation or modification.
ARTICLE 7 OMITTED
ARTICLE 8 REPAIRS AND MAINTENANCE OF PREMISES, WASTE, COVENANTS
Section 8.1 Tenant takes the Demised Premises and building
equipment "as is", (but is not absolved from the responsibility
to bring the same to and maintain the same in good order and
repair as set forth below notwithstanding Tenant takes the
Demised Premises "as is") without warranty or representation by
Landlord, or by anyone else, as and with all implied warranties
waived. Tenant assumes risk of and responsibility for all latent
and patent conditions at the Demised Premises. Tenant, at its
cost and expense, shall bring the Demised Premises into good
repair and condition and shall maintain and repair the Demised
Premises (and all building equipment located in or upon or at or
attached to the Demised Premises)-exterior or interior, foreseen
or unforeseen, ordinary and extraordinary, structural and non-
structural-as required to keep them in good condition including,
but not limited to interior electrical, plumbing and HVAC
systems, gas, bulbs, lamps, fixtures and equipment, painting,
redecorating, plumbing, sprinkler, heating, ventilating and air
conditioning and roof. Where appropriate, "maintain and repair"
shall include replacement. (Tenant will be required to have in
full force and effect at its expense an HVAC maintenance
agreement approved by Landlord for the entire term of the Lease).
Tenant shall keep and maintain all portions of the Demised
Premises in a clean and orderly condition, free of accumulation
of dirt, rubbish, snow and ice. All improvements, and
alterations and all building equipment, made or installed by
Tenant (other than movable trade fixtures, furniture and
furnishings) shall immediately upon completion or installation
thereof be and become property of Landlord without payment
therefor by Landlord and, except as hereinafter provided, shall
be surrendered to Landlord upon the expiration or sooner
termination of the term of this Lease in good order and
condition, or at Landlord's option shall be removed by Tenant
without damage to the Demised Premises, in which latter event,
Tenant shall be deemed a holdover tenant (See ARTICLE 44 HOLDING
OVER) if it fails to remove same prior to the expiration date or
sooner termination date of the term of this Lease. The movable
trade fixtures, furniture and furnishings shall at Landlord's
option become the property of the Landlord in the same manner as
indicated above, if Tenant defaults in its Lease obligations.
Section 8.2 Tenant covenants not to do or suffer any waste
or damage, disfigurement or injury to the Demised Premises, the
buildings and land of which the Demised Premises are a part, or
the building equipment thereof.
Section 8.3 Tenant will in additional to its Section 8.1
obligations with respect thereto, pay for its proportionate share
of a full service-full coverage roof maintenance contract for the
roof of the building of which the Demised Premises is a part from
a roofing contractor providing without additional cost for
regular periodic inspections (minimum of two (2) per year) and
maintenance and a written report of same describing, among other
things, the condition of the roof. The said contract will, among
other things, provide without additional cost for, but not be
limited to, the maintenance of flashing, caps, pitch pockets,
coping, gravel stops, roof drains and strainers, expansion
joints, leaders and gutters, and flashing of roof protrusions
including mechanical equipment, fan housings, skylights, vent
pipes, heating stacks and electrical conduit. Contractor will
provide a written report of its inspection results to Landlord.
ARTICLE 9 USE OF PREMISES-COMPLIANCE WITH ORDERS, ORDINANCES,
ETC.
Section 9.1 Tenant covenants that the premises shall not be
used for any unlawful purpose and shall be used solely for
Section 9.2 Tenant agrees that its obligation to make
payment of the Net Basic Rent and additional rent on its part to
be paid and to perform all the covenants and agreements on its
part to be performed shall not be affected by any present or
future law, ordinance, rule, regulation or order regulating or
affecting the use which may be made of the Demised Premises.
Notwithstanding the foregoing, Tenant shall not be responsible to
make payment of the Net Basic Rent and additional rent if any
such present or future law, ordinance, rule, regulation or order
prevents the use of the Demised Premises by Tenant which cannot
be cured by Tenant without unreasonable expense or undue hardship
by Tenant. Landlord makes no representation concerning the
consistency of Tenant's proposed and permitted use with zoning
laws and other laws.
Section 9.3 Tenant covenants that, throughout the term of
this Lease, Tenant will comply, at Tenant's sole cost and
expense, irrespective of cost, whether or not foreseeable, and
whether or not it involves any change in governmental policy,
with all present and future laws, ordinances, recommendations,
orders, rules, regulations and requirements of all federal, state
and municipal governments and appropriate departments,
commissions, boards and officers thereof, and the orders, rules,
recommendations and regulations of the National Board of Fire
Underwriters, insurance services office and/or mutual service
office and/or any insurance companies or any other body hereafter
constituted exercising similar functions, whether or not the same
require structural repairs or alterations, which may be
applicable to the Demised Premises, the fixtures and equipment
thereof and/or the use or manner of use of the Demised Premises,
provided however that if any change in the Demised Premises is
required by reason of Tenant's operations, Landlord reserves the
option on thirty (30) days notice to terminate this Lease.
Tenant shall likewise observe and comply with the requirements
and recommendations of all insurers of public liability, fire and
all other types of insurance at any time outstanding with respect
to the Demised Premises and the fixtures and equipment thereon.
Section 9.4 Additionally, Tenant shall be responsible to
pay its proportionate share (see ARTICLE 2 TENANT'S PROPORTIONATE
SHARE) of the cost of compliance with such laws, etc. applicable
to the land and/or buildings of which the Demised Premises are a
part, and/or applicable to the Demised Premises and any other
area of the building (for this latter purpose, "proportionate
share" shall mean a fraction the numerator of which is the square
feet of the Demised Premises and the denominator of which is the
square feet of the Demised Premises and the other area) provided
however that if the need for compliance arises from the use of
the Demised Premises by Tenant, then Tenant shall pay the entire
cost of compliance and not a proportionate share.
ARTICLE 10 CHANGES, ALTERATIONS AND NEW CONSTRUCTION BY TENANT
Tenant shall have the right at any time and from time to
time during the term of this Lease to make at its sole cost and
expense, changes and alterations in or of the Demised Premises,
subject, however, in all cases to the following:
(a) No structural change or alteration and no non-
structural change or alteration shall be undertaken except after
ten (10) days prior written notice to Landlord.
(b) No structural change or alteration, and no non-
structural change or alteration involving an estimated cost of
more than Five Thousand and 00/100 Dollars ($5,000.00), including
but not limited to any restoration required by Article 8 hereof,
shall be made without the prior written consent of Landlord.
(c) No change or alteration shall be undertaken until
Tenant shall have procured and paid for, so far as the same may
be required from time to time, any permits and authorizations of
all municipal departments and governmental subdivisions having
jurisdiction. Landlord shall join in the application for such
permits or authorizations whenever such action is necessary and
without cost or liability to it.
(d) Any change or alteration shall be conducted under the
supervision of an architect and/or engineer selected by Tenant
and approved in writing by Landlord, and no such change or
alteration shall be made except in accordance with detailed plans
and specifications and cost estimates prepared and approved in
writing by such architect and/or engineer and approved in writing
by Landlord.
(e) Any change or alteration shall, when completed, be of
such character as not to reduce the value of the Demised
Premises, and/or the building of which it is a part, below its
value immediately before such change or alterations.
(f) Any change or alteration shall be made promptly and in
good and workmanlike manner and in compliance with all applicable
permits and authorizations and buildings and zoning laws and with
all other laws, ordinances, orders, rules, regulations and
requirements of all federal, state and municipal governments,
departments, commissions, boards and officers, any national or
local Board of Fire Underwriters and fire rating organization and
any other body hereafter exercising functions similar to those of
any of the foregoing.
(g) The cost of any such change or alteration shall be paid
in cash or its equivalent so that the Demised Premises shall at
all times be free of liens for labor and materials supplied or
claimed to have been supplied to the Demised Premises.
(h) Worker's compensation insurance covering all persons
employed in connection with the work and with respect to whom
death and bodily injury claims could be asserted against Landlord
or Tenant, and comprehensive broad form general public liability
insurance for the mutual benefit of Tenant and Landlord, with
combined limits of not less than Three Million and 00/100 Dollars
($3,000,000.00) in respect to bodily injury, death or property
damage, shall be maintained by Tenant at Tenant's sole cost and
expense at all times when any work is in process in connection
with any change or alteration. All such insurance shall be in a
company or companies acceptable to Landlord and shall include the
Landlord's interest, and all policies or certificates therefore
issued by the respective insurers shall bear notations evidencing
the payment of premiums or be accompanied by other evidence
satisfactory to Landlord of such payment and shall be delivered
to Landlord before the work begins and shall include a thirty
(30) day cancellation notice to Landlord.
(i) If the change or alteration is structural or the
estimated cost of any such change or alteration shall be in
excess of Ten Thousand and 00/100 Dollars ($10,000.00) Tenant,
before commencement of work, at Tenant's sole cost and expense,
shall furnish to Landlord a surety company performance bond
issued by a surety company acceptable to Landlord, or other
security satisfactory to Landlord in an amount at least equal to
the estimated cost of such change or alteration, guaranteeing the
completion thereof within a reasonable time, free and clear of
all liens, encumbrances, chattel mortgages, conditional bills of
sale, and other charges, and in accordance with the plans and
specifications approved by Landlord.
(j) No change or alteration shall, when completed, tie in
or connect the Demised Premises with any other building on
adjoining property.
(k) All alterations and improvements and building equipment
provided by Tenant shall, at Landlord's option, either become the
property of Landlord at Lease expiration or sooner termination at
no cost to Landlord or shall be removed by Tenant without damage
to the Demised Premises and the Demised Premises restored to its
original condition.
ARTICLE 11 CONSTRUCTION LIENS
Tenant shall not suffer or permit any construction liens or
notices of unpaid balance to be filed against the fee of the
Demised Premises, nor against the Tenant's leasehold interest
therein by reason of work, labor services or materials supplied
or claimed to have been supplied to Tenant or anyone holding the
Demised Premises or any part thereof through or under Tenant and
agrees to indemnify Landlord against such liens and notices. If
any such construction lien or notice shall at any time be filed
against the Demised Premises, Tenant shall within ten (10) days
after notice of the filing thereof, cause the same to be
discharged of record; provided, however, that Tenant shall have
the right to contest the amount of validity, in whole or in part,
of any such liens by appropriate proceedings but in such event,
Tenant shall notify Landlord in writing and if requested by
Landlord shall promptly bond such lien with a surety company
acceptable to Landlord. Tenant shall prosecute such proceedings
with all due diligence and dispatch.
Nothing herein contained shall be construed as a consent on
the part of Landlord to subject the estate of the Landlord to
liability under the Construction Lien Law of the State of New
Jersey, it being expressly understood that the Landlord's estate
shall not be subject to such liability.
ARTICLE 12 INSPECTION OF PREMISES BY LANDLORD, ETC.
Section 12.1 Tenant agrees to permit Landlord and the
authorized representative of Landlord and of the holder of any
mortgage or any prospective mortgagee or insurance
inspectors/adjusters or prospective purchasers or prospective
tenants to enter the Demised Premises at all reasonable times
during usual business hours for the purpose of
inspecting/exhibiting same. Nothing herein shall imply any duty
upon the part of Landlord so to inspect or to do any work, which
under any provision of this Lease Tenant may be required to
perform.
Section 12.2 During the last twelve (12) months of the term
of this Lease, or at anytime after Tenant default, Landlord and
authorized representatives shall have the right to post signs on
exterior regarding the leasing of the premises, and said signs to
remain thereon without molestation. Landlord may place for sale
signs on the exterior at any time and from time to time.
ARTICLE 13 INDEMNIFICATION OF LANDLORD
Tenant agrees during the Lease term and all renewals and
extensions if any, to protect, defend, indemnify and save
harmless Landlord against and from any and all losses, liability,
costs and claims by or on behalf of any person or thing arising
in whole or part from the conduct or management of Tenant's
business or from any work or thing whatsoever done in and on the
Demised Premises and common areas by Tenant, or any of its
agents, contractors, servants, employees or licensees, visitors
or invitees, and/or condition of Demised Premises, and/or arising
from any breach or default on the part of Tenant in the
performance of any covenant or agreement on the part of Tenant to
be performed pursuant to the terms of this Lease, and/or arising
from any act or omissions of Tenant, and/or any of its agents,
contractors, servants, employees or licensees, visitors, or
invitees and/or arising from any accident, injury or damage
whatsoever caused to any person or thing in or about the Demised
Premises and the common areas (defined in Section 32.7), and from
and against all costs, expenses and liabilities incurred on
account of or in connection with or arising out of any such claim
or act or proceeding brought thereon; and in case any action or
proceeding be brought against Landlord by reason of any such
claim or act, Tenant upon notice from Landlord covenants to
resist or defend such action or proceeding by counsel
satisfactory to Landlord at Tenant's sole cost and expense.
ARTICLE 14 DAMAGE OR DESTRUCTION
Section 14.1 In case of damage to or destruction of the
Demised Premises and/or the buildings of which the Demised
Premises are a part, by fire or other insured casualty, Landlord
will promptly restore, repair, replace, rebuild or alter the same
as nearly as possible to the condition they were in immediately
prior to such damage or destruction. Such obligation of Landlord
to restore, repair, or rebuild and the timing thereof is
conditioned upon the receipt and limited to the amount of any
insurance proceeds payable to Landlord (as opposed to mortgagees)
on account of such damage or destruction. Such restoration,
repairs, replacements, rebuilding or alterations shall be
commenced promptly and prosecuted with diligence (unavoidable
delays excepted) and shall not include any alterations or
improvements made by Tenant or fixtures and equipment belonging
to Tenant or leased by Tenant from third parties.
Section 14.2 In the event that such damage or destruction
amounts to fifty (50%) percent or more of the Demised Premises or
the building of which it is a part or in the event Landlord
determines that said damage or destruction cannot be repaired or
replaced within ninety (90) days of such damage or destruction,
or in the event the same occurs in the last year of the Lease
term, Landlord may, at its option, declare this Lease to be at an
end by serving a written notice to that effect upon Tenant
establishing a termination date not later than thirty (30) days
from the date of such notice whereupon this Lease shall cease and
come to an end at the end of said thirty (30) day period in the
same manner as if it were the scheduled expiration of the term
hereof. In such event Net Basic Rent and additional rent
hereunder shall be adjusted as of the date of termination
aforesaid and Landlord shall be entitled to the receipt of all
insurance proceeds received for such damage or destruction.
Section 14.3 In the event of such damage or destruction and
in the event Landlord does not terminate the Lease as above, rent
shall xxxxx in proportion to the inutility of the Demised
Premises from the date of the damage to the date the premises is
restored and Tenant has full use and occupancy.
ARTICLE 15 TAKING BY EMINENT DOMAIN
Section 15.1 If the whole of the Demised Premises shall be
taken under the power of eminent domain or the like, this Lease
shall thereupon be terminated as if such termination were the
scheduled expiration of this Lease, and Net Basic Rent and
additional rent shall be adjusted as of the date of the
termination aforesaid.
Section 15.2 If any part of the Demised Premises or any
part of the lands and buildings of which the Demised Premises are
a part shall be taken under the power of eminent domain or the
like, Landlord, at its option, may terminate this Lease as if
such termination were the scheduled expiration of this Lease, and
Net Basic Rent and additional rent and charges shall be adjusted
as of the date of termination aforesaid. If Landlord chooses in
such event not to terminate the Lease, and if the taking be of a
portion of the building on the Demised Premises itself, rent
shall be adjusted equitably in proportion to the percentage
taken, unless the taken portion shall exceed fifty (50%) percent
and the remaining portion of the demised building shall be
insufficient for the conduct of Tenant's business, in which event
Tenant may by notice to Landlord within fifteen (15) days of the
taking terminate this Lease. Tenant to notify Landlord within
fifteen (15) days of the taking.
In all events, whether the taking be of all or a portion of
the Demised Premises and/or building and land, and whether or not
this Lease survives, the entire award including that for
consequential damages, shall be the property of and shall be paid
to Landlord, and Tenant hereby assigns all of its right, title
and interest thereto and therein to Landlord. Tenant shall not
be entitled to share in any award or awards made in condemnation
proceedings for consequential damages or for the taking of the
Demised Premises or any portion thereof or improvements or
alterations or any appurtenances to the premises, vaults, areas
or projections outside of the boundaries of the lands owned by
Landlord, or rights in, under or above the streets adjoining said
lands, or the rights and benefits of light, air, or access to
said streets, or for the taking of space, or rights therein,
below the surface of, or above, the Demised Premises all of which
shall belong to Landlord.
Section 15.3 If the temporary use of the whole or any part
of the Demised Premises shall be taken by any lawful power or
authority, by the exercise of the right of condemnation or
eminent domain or the like, or by agreement between Landlord and
those authorized to exercise such right, Landlord shall give
prompt notice thereof to Tenant, the term of this lease shall not
be reduced or affected in any way. If at any time Tenant is
prevented from the use of all or part of the Demised Premises,
Tenant's responsibility to make payment of the Net Basic Rent,
expenses or additional rent shall xxxxx in proportion to Tenant's
inutility and for so long as the same shall continue. If the
temporary taking continues for one hundred twenty (120)
consecutive days, Landlord or Tenant may terminate this Lease.
Section 15.4 If applicable New Jersey Law permits, Tenant
is hereby given the right to bring its own proceeding against the
condemning authority for the value of its fixtures, moving
expenses, business interruption, it being expressly understood
and agreed, however, that nothing herein shall be deemed to
affect in any way the rights of Landlord as hereinabove set
forth, and Tenant may pursue the same only to the extent that the
same shall not reduce the award otherwise available to Landlord.
The entire award for a partial taking shall be paid to
Landlord which, subject to its mortgagee's paramount right
thereto, at its own expense, after receipt of award, shall
(unless the Lease be terminated as above) restore the untaken
part of the Demised Premises to substantially the similar
condition and tenantability as existed prior to the taking. If
Landlord's mortgagee shall take all or part of the award,
Landlord, at its option, may terminate this Lease, or may
restore, anything above to the contrary notwithstanding.
ARTICLE 16 CONDITIONAL LIMITATIONS - DEFAULT PROVISIONS
Section 16.1 In the event that Tenant shall default in the
performance of any of the agreements, conditions, covenants, or
terms herein contained on its part to be performed, (other than
Net Basic Rent and additional rent herein), Landlord may, (but
need not) after five (5) days upon prior written notice to
Tenant, except in the case of an emergency where notice is
required, perform the same for the Tenant without waiving or
releasing Tenant from any obligations of Tenant in this Lease
contained or if Tenant defaults in the provision of insurance or
suffers a default which creates an emergency condition and fails
to correct the same within twenty four (24) hours after written
notice from Landlord or its agent of the same, then Landlord may
(but need not) after such notice without waiving or releasing
Tenant from any obligations of Tenant in this Lease contained
perform the same for Tenant, and Landlord shall have the right to
enter the Demised Premises for the purpose of correcting or
remedying such default and to remain therein until the same shall
have been corrected or remedied. Any amount paid, or any expense
or liability incurred, by Landlord, in the performance of same,
shall be deemed to be additional rent payable by Tenant
hereunder, and may, at Landlord's option, be added to any Net
Basic Rent then due, or thereafter falling due hereunder or shall
be payable on demand, together with interest thereon at the
annual rate equal to five (5%) percent above the then current
prime interest rate as published in the Wall Street Journal,
which interest shall commence to rent as of the date of payment
and which sums, including the said interest, shall be deemed to
constitute additional rent. This section shall not be operative
with respect to non-monetary defaults which are impossible to
correct within five (5) days so long as Tenant has commenced to
correct such default before the expiration of said five (5) day
period (where five (5) day period is applicable, as above) and
continued diligently to correct same and has corrected the same
within thirty (30) days after expiration of the thirty (30) day
grace period above. This exception does not apply to emergency
conditions. All sums so paid by Landlord and all incidental
costs and expenses in connection with the performance of any such
act by Landlord, together with interest thereon at the annual
rate equal to five (5%) percent above the then current prime
interest rate as published in the Wall Street Journal, commencing
from the date of making of such expenditure by Landlord, shall be
payable to Landlord on demand or at the option of Landlord may be
added to any installment of Net Basic Rent then due or thereafter
becoming due under this Lease, and Tenant covenants to pay any
such sum or sums with interest as aforesaid. All sums which may
become payable to Landlord by Tenant as in this Article provided
shall be deemed additional rent hereunder, and Landlord shall (in
addition to any other right or remedy of Landlord) have the same
rights and remedies in the event of the nonpayment of any such
sums by Tenant as in the case of default by tenant in the payment
of the Net Basic Rent.
Section 16.2 Upon the continuance of any non-monetary
breach or violation by Tenant of any of the terms, covenants,
agreements or conditions of this Lease for a period of five (5)
days after any written notice, and regardless of whether Landlord
has acted under Section 16.1, the Landlord may at its election
terminate this Lease, and all of the estate of the Tenant in the
Demised Premises shall come to an end and the Landlord may
thereupon reenter the Demised Premises as of his former estate.
Any waiver by the Landlord of any breach shall not be deemed a
waiver of any similar or other further breach. All waivers by
Landlord to be in writing. No waivers by operation of law. The
termination as above shall be unaffected by virtue of Landlord's
performance on behalf of Tenant per Section 16.1 above, and
Tenant shall be responsible for the same notwithstanding
termination.
Section 16.3 If the Tenant shall be dispossessed or removed
from the Demised Premises or if Tenant shall substantially vacate
the Demised Premises or abandon same, or if the term hereof shall
end prior to the expiration date of this Lease pursuant to
Section 16.2 above, the Tenant does hereby authorize and empower
Landlord, at its option, (Landlord has no duty to mitigate) to
reenter the Demised Premises as agent of the Tenant, or for its
own act, or otherwise, and to relet the same or any portion
thereof, for any term expiring either prior to the expiration
date of this Lease or simultaneously with or beyond such date, or
from time to time as opportunity may offer, and to repair and
remodel the same, if necessary, or desirable, for reletting
purposes, and to receive and apply the Net Basic Rent and
additional rent so received to the cost of reletting, repairing,
reentering and remodeling, and payment of all fees and
commissions to brokers or finders, and the balance to the payment
of the Net Basic Rent and additional rent due hereunder. The
Tenant shall remain liable for any deficiency between the Net
Basic Rent and additional rent due hereunder and the amounts
applied to Net Basic Rent, if any, which may result from such
reletting, if any, which deficiency shall, at the Landlord's
option, be payable monthly as the amount thereof shall be
ascertained, or the Landlord may elect to have Tenant in such
event pay upon demand-and then the Tenant shall be responsible to
pay upon demand-the accelerated aggregate Net Basic Rent and
additional rent due hereunder to the scheduled expiration date of
Lease; and in such event as and when Net Basic Rents are
collected from substitute Tenant, if any, during the balance of
term hereby demised (net of all Landlord expenses in reletting)
the same shall be remitted by Landlord to Tenant up to the
accelerated amount paid as above. The right of Landlord to
collect any such deficiency shall be limited to the unexpired
portion of the Lease. Tenant shall not be entitled to surplus,
if any.
The Tenant further agrees that notwithstanding any entry or
reentry by Landlord, whether by summary proceedings, termination
or otherwise, it will pay and be liable for, on the day
originally fixed herein for the payment thereof, amounts equal to
the several installments of New Basic Rent and additional rent
reserved herein, and shall remain responsible for additional rent
reserved herein, and shall remain responsible for the performance
of all other terms, conditions and covenants herein, in the same
manner as if the Landlord had not entered or reentered therein.
No entry by the Landlord, whether had or taken under summary
proceedings or by Lease termination or otherwise, shall be deemed
to absolve or discharge the Tenant from liability hereunder nor
to constitute the acceptance of a surrender.
Section 16.4 If, at any time during the term hereof, any
proceedings shall be instituted by or against the Tenant,
resulting in the exercise of jurisdiction by any court over the
estate or property of the Tenant, or if proceedings shall be
instituted by or against the Tenant pursuant to any provisions of
any Act of Congress relating to bankruptcy, or pursuant to any
other proceedings at law or in equity, in any court, as a
bankrupt or as a debtor under such Act of Congress or as an
insolvent corporation or insolvent person; or if a receiver,
sequestrator, custodian, conservator, trustee or other officer
shall be appointed of the Tenant, or any of its property; or if
the Tenant shall compound its debts or assign its estate or
effects for payment thereof, or if any execution, attachment,
distraint or other legal proceedings shall issue against the
Tenant or its property on the Demised Premises, and a sale be had
thereof, of if this Lease shall, by operation of law, devolve
upon or pass to any one other than the Tenant then, and in any
such events or contingencies, this Lease shall, at the option of
the Landlord, cease and come to an end, and the Landlord shall
thereupon become entitled to reposses the Demised Premises and
reenter the same as of its former estate by giving notice, in
writing, specifying the date upon which the Landlord will
reenter, reposses or recover possession of the Demised Premises
which date shall not be less than five (5) days after the giving
of such notice.
Section 16.5 In the event of the termination of this Lease
as the result of any election exercised by the Landlord pursuant
to the terms of this Article, the Landlord shall be entitled to
the rights, remedies and damages set forth in this Article and
elsewhere in this Lease and at law and equity. Tenant waives the
service of notice of intention to reenter as provided for in any
statute and also waives any and all right of redemption in case
Landlord obtains possession by reason of Tenant's default. The
terms "enter", "reenter", "entry" or "reentry", as used in this
Lease are not restricted to their technical legal meaning.
Section 16.6 Nothing in this Article shall be construed to
permit an assignment of the Lease or a reletting or underletting
by the Tenant except in the manner permitted by this Lease.
Section 16.7 Tenant agrees to pay as additional rent all
attorney's fees and other expenses incurred by Landlord in
enforcing any of the obligations under this Lease.
Section 16.8 If any of the events mentioned in this Article
shall occur before the commencement of this Lease, this Lease and
term hereby granted, as well as all of the right, title and
interest of the Tenant hereunder shall thereby, at the option of
the Landlord, be cancelled and terminated, and, in such case,
neither the Tenant nor any one claiming under the Tenant shall be
entitled to take, or enter into, possession of the Demised
Premises.
ARTICLE 17 INVALIDITY OF PARTICULAR PROVISIONS
If any term or provision of this Lease or the application
thereof to any person or circumstance shall to any extent, be
invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances
other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent
permitted by law. The laws of the State of New Jersey shall
govern the validity, performance and enforcement of this Lease.
ARTICLE 18 NOTICES
All notices by either party to the other provided for in
this Lease shall be in writing and shall be sent by Certified or
Registered mail, return receipt requested, or by overnight
delivery service such as Federal Express, addressed to Tenant at
Tenant's address set forth above, and addressed to Landlord at
Landlord's address set forth above, or to such other address as
may be designated by either party to the other by like notice, or
may be personally delivered at the address set forth above and
the date on which such notice is received shall be the date of
the giving of such notice, unless the same is refused or
unclaimed, in which event the notice will be deemed given the
date the same was deposited in the United States mail, postage
prepaid. Any xxxx, statement or communication, other than
notices provided for in this Lease, which Landlord may give to
Tenant shall be sufficiently given if delivered to Tenant
personally or left at the Demised Premises with a person in
Tenant's employ or sent by mail addressed to Tenant at the
Demised Premises or the last known address of Tenant, and the
date of such service or deposit in the mail shall be deemed the
date of the rendition of any such xxxx, statement or
communication. A contemporaneous copy of all notices to Landlord
shall be sent certified, return, receipt, requested, to such
counsel or address as Landlord may from time to time designate in
a written notice to Tenant and to Tenant at Xxxxx & Associates,
P.C., 000 0xx Xxxxxx, Xxxxx 000, Xxx Xxxx, X.X., 00000 or to such
other counsel or address as Tenant may from time to time
designate in a written notice to Landlord.
ARTICLE 19 SURRENDER OF PREMISES
Tenant shall, upon expiration or earlier termination of this
Lease, surrender to Landlord the Demised Premises and building
equipment together with all replacements thereof (except its
movable trade fixtures, machinery and equipment, furniture and
furnishings) in good order, condition and repair, and broom
clean, except as provided under ARTICLE 8 REPAIRS AND MAINTENANCE
OF PREMISES, WASTE, COVENANTS.
ARTICLE 20 QUIET ENJOYMENT
Landlord covenants and agrees that Tenant, upon paying the
Net Basic Rent and additional rent herein provided for and
observing and keeping the covenants, agreements and conditions of
this Lease on its part to be kept, shall lawfully and quietly
hold, occupy and enjoy the Demised Premises during the term of
this Lease free from intentional molestation or hindrance by act
of Landlord. This covenant is not intended to imply any
covenants or warranties, including covenant against latent
defect.
ARTICLE 21 TERMINATION OF LANDLORD'S LIABILITY
The term "Landlord" as used in this Lease (so far as
covenants or obligations on the part of Landlord are concerned),
shall be limited to mean and include only the owner or owners at
the time in question of the fee of the Demised Premises, and in
the event of any transfer or transfers of the title to such fee,
the Landlord herein named (and in case of any subsequent
transfers or conveyances, the then grantor) shall be
automatically freed and relieved from and after the date of such
transfer and conveyance of all liability as respects the
performance of any covenants or obligations on the part of
Landlord contained in this Lease thereafter to be performed,
provided that, any funds in the hands of Landlord or the then
grantor at the time of such transfer, in which Tenant has an
interest, shall be turned over to the grantee and any amount then
due and payable to Tenant by Landlord or the then grantor under
any provision of this Lease shall be paid to Tenant. Anything
above to the contrary notwithstanding, Tenant will be noticed
upon any transfer by Landlord.
ARTICLE 22 CERTIFICATES BY TENANT AND LANDLORD
Tenant and Landlord agree at any time and from time to time
upon not less than fifteen (15) days notice by either to the
other to execute, acknowledge and deliver to either a statement
in writing certifying (a) that this Lease is unmodified and in
full force and effect (or if there have been modifications, that
the same is in full force and effect as modified and stating the
modifications), (b) whether or not there are then existing any
offsets or defenses against the enforcement of any of the terms,
covenants, or conditions hereof upon the part of Tenant to be
performed (and if so specifying the same), (c) that Landlord has
completed its work obligations, if any, and (d) the dates to
which the Net Basic Rent and additional rent have been paid in
advance, if any, it being intended that any such statement
delivered pursuant to this article may be relied upon by any
prospective purchaser or mortgagee of the fee of the Demised
Premises or any assignee of any such mortgagee.
ARTICLE 23 AGENCY
In the event that, within fifteen (15) days following
receipt of written request from Landlord, Tenant fails to
execute, acknowledge and deliver any instrument or instruments as
required under this Lease, Landlord is hereby appointed Tenant's
attorney-in-fact, coupled with an interest, for the purpose of
executing, acknowledging and delivering any such instruments for
and on behalf of Tenant. Tenant's failure to respond within said
fifteen (15) day period shall be deemed an automatic
acknowledgment and execution of any such instrument in the form
submitted to Tenant. If any person who may request such
instrument or be a party to any such instrument refuses to
recognize Landlord as the true and lawful attorney-in-fact of
Tenant or to accept said automatic acknowledgment and execution
by Tenant, Landlord, in addition to all other remedies for Tenant
breach set forth elsewhere herein and at law and equity, shall
not be required to perform any of Landlord's covenants hereunder
until such time as Tenant has executed, acknowledged and
delivered the requested instruments.
ARTICLE 24 DEFINITIONS OF CERTAIN TERMS
For all purposes of this Lease, unless the context otherwise
requires,
(a) "Term of this Lease" or words of similar import shall
be construed to mean the Basic Term and any renewal term which
has become effective.
(b) "Unavoidable delays" or words of similar import shall
be construed to mean delays due to strikes, lock-outs, acts of
God, inability to obtain labor or material, governmental
restrictions, enemy action, civil commotion, fire, unavoidable
casualty or similar causes beyond reasonable control of Landlord
or Tenant, as the case may be.
(c) "Movable trade fixtures, furniture and furnishings"
shall be construed to mean trade fixtures, machinery, furniture,
furnishings and equipment used or procured for use in connection
with the operation of any business conducted on the Demised
Premises, installed at the cost and expense of Tenant and not
purchased from Tenant by Landlord, during the term of this Lease
and not permanently affixed to the realty.
(d) "Building equipment" shall be construed to mean and
include and not limited to, the equipment, fixtures, motors and
machinery used or procured for use in the operation and
maintenance of the buildings of which the Demised Premises are a
part, including but without limiting the generality of the
foregoing, all heating, lighting, air conditioning, ventilating,
gas and electric, plumbing, and passenger and freight elevator
systems, craneways, transformers, automatic doors, electric
appurtenances, and equipment, whether installed by Tenant or
Landlord prior to the commencement of the term of this Lease or
by Landlord or Tenant at any time during the term. In addition,
any fixtures, machinery or equipment (whether or not used in the
operations of the buildings as such) and all replacements
thereof, shall for the purpose hereof be construed to be building
equipment and shall be the property of Landlord.
ARTICLE 25 CUMULATIVE REMEDIES - NO WAIVER - NO ORAL CHANGE
The specific remedies to which Landlord may resort under the
terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies or means of redress to which it
may be lawfully entitled in case any breach or threatened breach
by Tenant of any provision of this lease. The failure of
Landlord to seek redress for violation of, or to insist in any
one or more cases upon the strict performance of any of the
covenants of this Lease, or to exercise any option herein
contained, shall not be construed as a waiver or relinquishment
for the future of such covenant or option. A receipt by Landlord
of Net Basic Rent or additional rent with knowledge of the breach
of any covenant of this Lease shall not be deemed a waiver of
such breach, and no waiver, change, modification or discharge by
Landlord of any provision in this Lease shall be deemed to have
been made or shall be effective unless expressed in writing and
signed by Landlord.
In the event of a breach or threatened breach by Tenant of
any of the covenants or provisions of this Lease, Landlord shall
have the right of injunction and the right to invoke any remedy
allowed at law or in equity as if re-entry, summary proceedings
and other remedies were not herein provided for. Mention in this
Lease of any particular remedy shall not preclude Landlord from
any other remedy, in law or in equity. Tenant hereby expressly
waives any and all rights of redemption granted by or under any
present or future laws in the event of obtaining possession of
the Demised Premises by reason of Tenant's violation of the
provisions of this Lease.
ARTICLE 26 COVENANTS TO BIND AND BENEFIT RESPECTIVE PARTIES
It is further covenanted and agreed by and between the
parties hereto that the covenants and agreements herein contained
shall bind and inure to the benefit of Landlord, its successors
and assigns, and Tenant, its successors and assigns, subject to
the provisions of this Lease.
ARTICLE 27 SUBORDINATION
This Lease shall be subject and subordinate to all ground or
underlying leases and to all mortgages or deeds of trust now or
hereafter affecting such leases, and to all mortgages or deeds of
trust which may now or hereafter affect the Demised Premises
and/or the lands and buildings of which the Demised Premises form
a part, whether such mortgages or deeds of trust cover only the
same or a blanket mortgage or deed of trust covering other
premises in addition to the same and to any renewals,
modifications, consolidations, replacements or extension thereof.
The recording of such mortgages or deeds of trust shall have
preference and precedence and be superior and prior in lien to
this Lease, regardless of the date of recording. This clause
shall be self-operative and no further instrument of
subordination shall be required by any mortgagee or trustee.
Tenant shall execute promptly any instrument which Landlord may
request in confirmation or furtherance of such subordination and
hereby constitutes and appoints Landlord as Tenant's attorney-in-
fact to execute any such instrument for and on behalf of Tenant.
If Tenant shall fail to execute such instrument on demand,
Landlord shall be entitled to the remedies of Lease termination
and/or damages and/or injunction.
Tenant agrees that it may not assert against mortgagee or
anyone else holding through mortgagee, including purchaser at a
foreclosure sale, any breaches or remedies for breaches of the
Lease by Landlord, which breach or breaches occur prior to
mortgagee's or anyone holding under it (including purchaser at a
foreclosure sale) succeeding to the interest of the Landlord
under the Lease by reason of default.
The mortgagee or anyone holding through the mortgagee shall
not be: (a) liable for any act or omission of the Landlord,
except as otherwise provided by law; and (b) subject to any
offsets or defenses which the Tenant might have against the
Landlord, except as otherwise provided by law; or (c) bound by
any Net Basic Rent or additional rent which the Tenant might have
paid to the Landlord for more than the current month; or (d)
bound by any amendment or modification of the Lease made without
its consent; or (e) liable for the return of security deposited
under this Lease, unless the same shall have been actually
received by mortgagee or anyone holding through the mortgagee.
Tenant will make any and all changes to the form of this
Lease required to secure the consent of Landlord's mortgagees,
present or future, so long as same do not affect monies payable
hereunder by Tenant or materially affect Tenant's other rights
and obligations hereunder.
In the event the Landlord seeks to procure mortgage loans or
desires to recast existing mortgage loans on the premises, or to
sell the building, then at the request of the Landlord, the
Tenant will furnish to the Landlord copies of its most recent
publicly available financial statement prepared by a certified
public account in aid of the application by the Landlord for such
a loan or its sale contract.
ARTICLE 28 ASSIGNMENT, SUBLETTING
Tenant shall not assign, mortgage or encumber this Lease, or
sublet, underlet, license or permit the Demised Premises or any
part thereof to be used by others, whether voluntarily or by
operation of law or otherwise, without the prior written consent
of Landlord in each instance which consent shall not be
unreasonably withheld. If this lease be assigned or if the
Demised Premises or any part thereof be underlet or occupied by
anyone other than Tenant, without Landlord consent, Landlord may
collect rent from the assignee, undertenant or occupant and apply
the net amount collected to all rent herein reserved, but no such
collection on account of such assignment, underletting, or
occupancy shall be deemed a waiver of this covenant or the
acceptance of the assignee, undertenant or occupant as tenant, or
a release of the performance of the covenants on Tenant's part
herein contained. A consent by Landlord to an assignment or
subletting shall not in any manner be construed to relieve Tenant
or any assignee or undertenant from obtaining the consent in
writing of Landlord to any further assignment or underletting nor
shall it be construed as relieving Tenant or its assignor of its
obligations hereunder.
For the purpose of this ARTICLE 28 it shall be "reasonable"
for Landlord to withhold consent to sublease or assignment for,
among other things, (a) failure of subtenant/assignee to
demonstrate that it has an SIC number (See ARTICLE 46) which does
not invoke I.S.R.A., or (b) failure of subtenant/assignee to
deliver a certificate that it has never been cited for any
environmental violation, or (c) failure of subtenant/assignee to
deliver the affidavit required by ARTICLE 46 and which shows
subtenant/assignee's operations do not include the use of
hazardous or toxic substances as defined by I.S.R.A., or (d)
failure of subtenant/assignee to certify that its use of the
demised premises will conform with all applicable zoning
ordinances and other statutes, ordinances, rules and regulations
applicable to the demised premises, or (e) the
subtenant's/assignee's use being hazardous, unsafe, or
inconsistent with existing Casualty Insurance Company's
requirements or recommendations or those of applicable Fire
Rating Organization, or (f) a prospective increase in building
insurance on account of the nature of subtenant's/assignee's use,
or (g) anything else which is inimical to Landlord's interests
and/or the building of which the demised premises is a part.
In the event of either subletting or assignment, Tenant
shall remain responsible hereunder jointly and severally with
subtenant or assignee. If landlord consents to an assignment,
there shall be payable to Landlord by assignee and Tenant jointly
and severally the consideration paid for the assignment. If the
assignment is made in the context of a sale of other assets from
Tenant to assignee, and the allocation of sale price to the
assignment is less than market value, assignee and Tenant jointly
and severally shall be responsible to pay Landlord the market
value of the assignment. The aforesaid shall be payable to
landlord in additional to all rentals and other monies due
hereunder to Landlord.
If Landlord consents to a subletting, there shall be payable
to Landlord by subtenant and Tenant, jointly and severally, the
difference between the reserved rent and additional rent herein
on the one hand and the rent and additional rent paid pursuant to
the sublease on the other hand if the latter is greater than the
former. The aforesaid shall be payable to the Landlord at the
time rental under the sublease is payable to the Tenant and is in
addition to all rentals and additional rentals and other monies
due hereunder to Landlord.
Tenant shall in all events provide Landlord with a certified
true copy of the proposed assignment or sublease with its
application for consent, and shall provide Landlord with a
certified true copy of the fully executed copy of the assignment
or sublease, if consented to, within five (5) days after
execution.
Anything above to the contrary notwithstanding, in the event
Tenant desires to assign this lease or to sublet all or part of
the Demised Premises, Landlord shall have the right, within
thirty (30) days after receipt of application from Tenant for
consent to such assignment or subletting, together with a
certified copy of the proposed assignment or sublease to
terminate this Lease by giving Tenant notice of its election to
do so, and such termination shall become effective (as if it were
the originally scheduled expiration date of the term of the
Lease) on the commencement date of the proposed sublease or the
effective date of the proposed assignment, as the case may be,
but in no event later than thirty (30) days after giving such
notice, and the basic annual rent and all other charges payable
by Tenant shall be adjusted and apportioned as of the date of
termination. If Landlord consents, as above to any assignment or
sublease, the same shall not construed in anywise to void
Landlord's option as herein contained in the event of any further
assignment or subletting. Once the application for the consent
is made as above, it may not be withdrawn by Tenant until thirty
(30) day period has expired.
"Assignment" shall be deemed to include all voluntary and
involuntary transfers and those effected by operation of law,
including but not limited to merger or consolidation of Tenant
with or it acquisition by another entity, insolvency, bankruptcy,
a mortgage of Tenant's leasehold estate, sale of the leasehold or
an execution levied against Tenant's leasehold estate, and
Tenant's assignment for the benefit of creditors. Assignment
shall also include a sale, pledge or other disposition of all or
any of Tenant's capital stock or partnership interests, whether
voluntary, involuntary or by operation of law.
ARTICLE 29 TENANT'S FAILURE TO COMPLY WITH GOVERNMENTAL
REGULATION
In the event that Tenant fails to comply with Governmental
regulations, rules, statutes, ordinances, orders and the like,
pertaining to the Demised Premises and/or the use of the premises
(see ARTICLE 9 USE OF PREMISES - COMPLIANCE WITH ORDER,
ORDINANCES, ETC. above) or in the event of any breach or non-
performance of any other covenant or condition of this Lease by
the Tenant, the Tenant agrees to hold the Landlord harmless from
any fines, costs, fees, expenses, losses or liability that may
arise in connection therewith.
ARTICLE 30 TENANT'S PERSONAL PROPERTY
In the event of a monetary default for nonpayment of Net
Basic Rent and expenses by Tenant of any terms, covenants,
agreements, or conditions of this Lease, then Landlord at its
option, without notice or other act, shall become the owner of
any or all of Tenant's equipment, fixtures, chattels, and
inventory and other personal property at Demised Premises to
secure sums due Landlord hereunder, and Landlord may thereupon
take possession of any or all of the above, and Tenant shall not
remove same from the Demised Premises without Landlord consent,
and the same may be sold by Landlord and surplus proceeds after
payment of arrears and costs of sale to Landlord shall be
returned to Tenant. Sale may be public or private and with or
without advertisement as Landlord may deem appropriate. Landlord
may bid at sale.
Tenant agrees not to create or suffer to be created, a lien
on any alterations, improvements, or repairs to the Demised
Premises.
Landlord may, without notice, at its option, appropriate,
sell, store or otherwise dispose of any personal property,
inventory, fixtures, equipment and chattels left on or about the
Demised Premises by Tenant after Tenant has vacated and/or after
the Lease has been terminated or expired. Tenant to be
responsible for costs of storage and disposition and shall have
no rights to share in any of the net proceeds. At the Landlord's
option, Tenant shall, at its expense, remove from the Demised
Premises the aforesaid items. This clause is intended to be
supplementary to and not in limitation of any of the other
clauses of this Lease and in the event of a conflict between the
rights of Landlord in Tenant's inventory, fixture, chattels, and
personal property created by this clause or any other clause in
this Lease, that clause which creates the greatest rights of the
Landlord shall control.
ARTICLE 31 SIGNS
Tenant is hereby given the right subject to Landlord's
written consent, to erect a sign on the Demised Premises (but in
no event to be located on the roof) subject to all governmental
regulations pertaining thereto, it being understood, however,
that Landlord does not represent the structure or any part of the
Demised Premises as to capability of holding any such sign.
Tenant shall be responsible for repair and maintenance of the
sign and for its removal when so demanded by Landlord. The size
of the Tenant's sign will be limited to Tenant's proportionate
share of total square feet of signage for the building permitted
by applicable law.
ARTICLE 32 MISCELLANEOUS
Section 32.1 No receipt of monies by the Landlord from the
Tenant or payment into court by the Tenant, after default by
Tenant of any covenant or condition of this Lease shall
reinstate, continue, or extend the term of this Lease, or affect
any notice theretofore given to the Tenant, or operate as a
waiver of the right of the Landlord to recover possession of the
Demised Premises by proper suit, action, proceeding, or remedy;
it being agreed that after the existence of such default, the
Landlord may demand, receive and collect any monies due or
thereafter falling due, without in any manner affecting such
default or notice thereof, proceedings or suit or action, order
or judgment taken on account thereof; and any and all such monies
collected shall be deemed to be payments on account of the use
and occupancy of the said premises or, at the election of the
Landlord, on account of the Tenant's liability hereunder.
Section 32.2 Landlord shall have the right to assign all of
Landlord's right, title and interest in and to this Lease to an
individual, partnership, joint venture or corporation, in
existence or to be organized, in which event Landlord shall not
thereafter be liable for the covenants and agreements to be
observed and performed by the Landlord hereunder.
Section 32.3 The rights and remedies given to Landlord or
Tenant in this Lease are distinct, separate and cumulative,
rights and remedies and no one of them shall be deemed to be in
exclusion of any of the others or of any rights and remedies
available at law or equity.
Section 32.4 Tenant represents and covenants by the
execution hereof, that it has not contacted or dealt with any
real estate broker, agent or salesman regarding the within Lease
other than Evergreen Commercial Real Estate, Notchview Office
Park, 0000 Xxxxx 00 Xxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxxxx, 00000
and Tenant agrees to indemnify, defend and save Landlord harmless
from any and all brokers' commission or finder's fee or similar
claims asserted by others.
Section 32.5 Landlord reserves the right to refuse
admission to the lands and buildings and the Demised Premises,
outside of ordinary business hours, to any person not known to
any watchman in charge or properly identified; to eject any
person from the lands and buildings whose conduct may tend to be
harmful to the safety and interests of the tenants and the
property therein; to close any part of the land and buildings
during any riot or other commotion where persons or property may
be imperiled.
Section 32.6 Whenever "floor area" is used in this Lease,
it shall be deemed to mean the number of square feet of floor
space within the exterior faces of the exterior walls, without
deduction for any space occupied by or used for columns, stairs,
or other interior construction or equipment. The center of the
wall shall be used in case of party walls and walls between
spaces occupied by two or more separate tenants.
Section 32.7 Landlord grants to Tenant, in common with the
other tenants and their agents and employees and customers and
persons doing work for or business with tenants on the lands and
buildings, the right to use the "common areas" consisting of the
parking areas, roadways, driveways, pathways, sidewalks,
entrances and exits designated by Landlord for common use, and
other common (undemised) areas of the building subject to the
terms and conditions of this Lease.
Section 32.8 The Landlord or its managing agent may
maintain the common areas and undemised areas of land and
buildings and common utilities and common building equipment and
fixtures, fire fighting equipment, curbs, culverts, drainage
facilities, landscaping, retaining walls, parking areas, fences,
signs, common electric lines, pipes and installation of every
kind serving the lands and buildings, lawn and fire sprinkler
equipment, and roof, (referred to collectively in this Article as
"common areas") and, in connection therewith, shall have the
right to incur, in its sole discretion, such reasonable expenses
as may be required (a) to maintain and keep in good repair and
redecorate (including the making of any necessary replacements)
all portions of the common areas including but not limited to
paving, grading and marking of the parking area and roadways and
driveways and; (b) to keep the common areas reasonable free from
accumulated snow, ice and refuse, and open for use and fully
lighted during all business hours; (c) to keep the curb cuts,
sidewalks, and curbs, if any, adjacent to and immediately in
front of the building in good condition and repair, and
reasonably free from accumulated snow, ice and refuse, and to
comply with all governmental requirements respecting same; (d) to
establish reasonable reserves for the replacement of the paving;
and (e) to supply the common areas with utilities. Landlord may
also incur such other reasonable expenses as may be required to
maintain and operate the common areas as a first class building.
All of the costs and expenses herein shall be referred to as
common areas repair, replacement, operating and/or maintenance
costs.
Section 32.9 Anything herein to the contrary contained
notwithstanding, Tenant agrees that any repairs, replacements or
maintenance required to be made to the common areas of the lands
and buildings of which the Demised Premises are a part and all
building equipment and facilities appurtenant thereto (and not
located in or upon or at or attached to the Demised Premises)
caused in whole or in part, by the negligence of Tenant, its
agents, servants or employees, visitors or invitees, shall be the
sole responsibility of Tenant and will not be pro rated among all
tenants of the buildings of which the Demised Premises forms a
part.
Section 32.10 The common areas of the lands and building
shall be subject to the exclusive control and management of
Landlord, and Landlord shall have the right to establish, modify,
change and enforce reasonable rules and regulations, Exhibit B,
with respect to the common areas and Tenant agrees to abide by
and conform with such rules and regulations. Tenant agrees that
it and its employees will park their trucks, delivery vehicles
and automobiles only in such of the parking areas as Landlord
from time to time designates for that purpose. Landlord shall
have the right to close any part of the common areas for such
time as may, in the opinion of Landlord's counsel, be necessary
to prevent a dedication thereof, or the accrual of any rights in
any person, or to clean and repair the same, or for any other
purpose, and to close any part of the parking area for such time
as Landlord deems necessary for any purpose, and to do other
things in the parking areas as Landlord in its discretion deems
reasonable and necessary for the benefit of the lands and
building. Landlord's discretion shall not be reviewable.
Section 32.11 In each Lease year Tenant will pay to
Landlord, as additional rent, subject to the limitation
hereinafter set forth, its proportion (determined in the manner
set forth in ARTICLE 2 TENANT'S PROPORTIONATE SHARE OF THE
BUILDING) of the common areas repair, replacement, operating,
and/or maintenance costs referred to above. Tenant will pay as
Additional Rent a management fee of five (5%) percent of Net
Basic Rent to cover wages and salaries of all persons engaged in
the maintenance, leasing and operation of the building, land and
common areas. For the first year of the Lease term and the last
year of the Lease term (to the extent that either or both of said
years are portions of a full calendar year), the Tenant's
proportionate share shall be multiplied against the product of
all of the common areas repair, replacement and operating and/or
maintenance costs for the subject first (or last) calendar year
multiplied by a fraction, the numerator of which is the number of
days in the subject calendar year which fall within this Lease
term, and the denominator of which is three hundred sixty (360).
Tenant shall pay its "proportionate share" of above upon demand
and, as the Landlord shall determine, in periodic installments,
including estimated advance installments. If the Tenant shall
fail within ninety (90) days after the assessment against it of
common areas, repairs or replacement, operating and/or
maintenance costs or charges to object thereto, then Tenant shall
be foreclosed thereafter from objecting to or challenging the
same.
Section 32.12 Landlord shall have the right but not the
obligation to enter upon the Demised Premises at all reasonable
hours for the following purposes (as well as those set forth
elsewhere herein): to inspect or protect the same; to effect
compliance with any law, order or regulation of any governmental
authority having jurisdiction; to make or supervise repairs,
additions or alterations to the same or the building of which the
Demised Premises are a part, and to take all materials thereon
that may be required therefore; to erect, use and maintain pipes
and conduits in and through the Demised Premises; and to alter,
decorate or otherwise prepare the Demised Premises for re-
occupancy at any time after Tenant has vacated the same or shall
have removed substantially all of its property therefrom. None
of the foregoing shall constitute an actual or constructive
eviction of Tenant or a deprivation of its rights, nor subject
Landlord to any liability or impose upon Landlord any obligation,
responsibility or liability whatsoever, for the care, supervision
or repair of the building of which the Demised Premises are a
part, or any part thereof, other than as herein specifically
provided, or entitle Tenant to any compensation or diminution or
abatement of the Net Basic Rent reserved.
Section 32.13 It is agreed between the parties that this
Lease shall be of no force and effect whatsoever unless it shall
have been executed by the Landlord and an executed copy thereof
delivered to the Tenant.
Section 32.14 Tenant covenants not to place this Lease on
record.
Section 32.15 Attached hereto is resolution of the Tenant's
Board of Directors, unmodified since then, authorizing the
signatory hereto to enter into this Lease on behalf of Tenant.
The signatory hereto for Tenant represents and warrants that he
has been authorized by resolution of the Board of Directors to
execute this Lease on behalf of Tenant. The signatory hereto for
Landlord represents that he is authorized to bind the partnership
by his signature.
Section 32.16 All negotiations, considerations,
representations and understandings between the parties are
incorporated in this Lease, and Tenant acknowledges and agrees
that Landlord, its agents and representatives, have made no
representations, warranties or promises with respect to the land
and buildings or the Demised Premises except as may be expressly
set forth herein.
Section 32.17 Landlord reserves the right to require Tenant
to pay as an Additional Rent hereunder a late charge in the sum
of five (5%) percent of the subject installment of Net Basic Rent
and/or Additional Rent accepted by the Landlord after the due
date. Tenant has agreed to pay the aforesaid late charge to
Landlord in recognition of Landlord's administrative expenses
attenant upon late payment. Additionally, Tenant is responsible
for interest on unpaid Net Basic Rent and/or Additional Rent at
the rate of eighteen (18%) percent per annum or the usury rate,
if less, measured from the due date.
Section 32.18 In the event Landlord institutes suit on
account of Tenant default or threatened default under this Lease,
Tenant agrees to reimburse Landlord for all reasonable expenses
incurred by Landlord in connection therewith including but not
limited to reasonable attorneys' fees. Tenant also agrees to
reimburse Landlord its said reasonable expenses in connection
with any and all other remedies pursued by Landlord hereunder,
including but not limited to eviction.
Section 32.19 Omitted
Section 32.20 TENANT WAIVES ABSOLUTELY IN ANY AND ALL
EVICTION/DISPOSSESS LITIGATIONS INITIATED BY LANDLORD THE RIGHT
TO TRIAL BY JURY AND REMOVAL (BY STATUTE OR RULE OF COURT) FROM
SUPERIOR COURT-SPECIAL CIVIL PART (FORMERLY KNOWN AS DISTRICT
COURT) TO SUPERIOR COURT LAW DIVISION OR CHANCERY DIVISION.
TENANT ALSO WAIVES TRIAL BY JURY IN ALL OTHER ACTIONS ARISING OUT
OF OR IN CONNECTION WITH THIS LEASE.
Section 32.21 Tenant's covenants to pay Net Basic Rent and
additional rent hereunder and Landlord's covenants of every
description shall be deemed independent covenants.
Section 32.22 In the event of any conflicts herein as
respects Landlord's rights and/or duties/liabilities, that which
expends Landlord's rights and reduces Landlord's
duties/liabilities shall prevail and control. And if any of the
terms or conditions herein are deemed unenforceable, the parties'
intent is that the same to be reformed by the Court in such
manner as, to the extent permitted by law, to maximize Landlord's
rights and minimize Landlord's duties/liabilities.
Section 32.23 Tenant will supply and maintain at its own
expense any fire extinguishers, or other fire prevention
equipment required by law, rules, ordinances and regulations of
any governmental authority having jurisdiction in the premises,
and shall at its own expense comply with recommendations of
insurance services office and/or mutual service office and/or any
insurance companies or fire insurance rating organizations or any
other body duly constituted and exercising similar functions by
Landlord and/or the insurer. If the same may be removed without
damage to the Demised Premises, Tenant may remove at the end of
the term any and all upgrades made by it to the fire suppression
system at the Demised Premises.
Section 32.24 At any time the withholding or setting off of
Net Basic Rent is extended to Tenant, as a remedy herein, if any
(Tenant shall not be entitled to the same unless set forth with
specificity herein), and if and to the extent it shall be
ultimately decided that Tenant's withholding or setting off was
improper, Tenant shall, in addition to the repayment of the
improper withholding or set off, pay to Landlord interest thereon
at the annual rate equal to five (5%) percent above the then
current prime interest rate as published by the Wall Street
Journal, which interest shall commence to run as of the date of
payment where setting off or improper withholding was made and
which sums, including the said interest, shall be deemed to
constitute additional rent.
Section 32.25 Except as otherwise specifically provided in
this Lease, as to operative time periods, if Tenant has the right
to terminate this Lease, it shall be deemed to have waived such
right of termination, if it fails to give Landlord written notice
thereof within thirty (30) days after receipt of a written notice
from Landlord requesting Tenant to advise Landlord as to whether
Tenant elects to exercise its right of termination.
Section 32.26 Service of process, summons, complaint and
all other suit papers on Tenant is valid and effective and shall
confer personal jurisdiction over Tenant in the State Courts of
New Jersey if the same is made pursuant to Rules of Court or by
certified mail upon Xxxxx and Associates, P.C., 000- 0xx Xxxxxx,
Xxxxx 000, Xxx Xxxx, X.X., 00000.
Section 32.27 The parties agree that the rule of
construction of a Lease ambiguity against the Landlord and/or
against the draftsman shall have no application in the event of a
dispute between the Landlord and Tenant.
ARTICLE 33 METHOD OF PAYMENT
Except as herein otherwise expressly provided, all amounts
payable under this Lease shall be payable by check drawn to the
order of the Landlord or its designees. In addition to
Landlord's rights under Article 15, Landlord may also terminate
this Lease if Tenant is habitually late with Net Basic Rent and
Additional Rent payments. Habitually late payment is defined as
paying Net Basic Rent fifteen (15) days after the due date on
three (3) or more occasions during any twelve (12) month period
of the Lease term. Landlord reserves the right to not terminate
the Lease as above but may require Tenant to pay all future Net
Basic Rent and Additional Rent payments by certified or bank
check upon written notice to Tenant.
ARTICLE 34 OMITTED
ARTICLE 35 ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser
amount than the monthly Net Basic Rent herein stipulated shall be
deemed to be other than on account of the earliest stipulated net
Basic Rent, nor shall any endorsement or statement on any check
or any letter accompanying any check or payment as Net Basic Rent
be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to
recover the balance of such Net Basic Rent or pursue any other
remedy in this Lease provided.
ARTICLE 36 LANDLORD'S NON-LIABILITY FOR DAMAGES
It is expressly agreed and understood by and between the
parties to this Lease that the Landlord, its agents, servants and
employees shall not be liable for any damage or injury to Tenant
and/or business property caused by or resulting from steam,
electricity, gas, water, rain, ice or snow, or any leak or flow
from or into any part of premises, including the Demised Premises
or from any damage or injury resulting or arising from any other
cause or happening whatsoever unless such damage arises out of
the grossnegligence of Landlord, its agents, servants and
employees.
Landlord, its agents, servants and employees shall not be
liable for any damages or losses to property entrusted to them
nor for loss by theft, nor for any and all manner of
consequential damages (including, but not limited to, business
interruption)-regardless of whether their negligence or breach of
Lease covenants may create or contribute to the same. Tenant and
all those claiming through Tenant shall in all events of Landlord
liability to Tenant for damages or losses and the like, if any,
look solely to the equity of Landlord in the land and building
for the satisfaction of Tenant's rights and remedies and this
provision shall not terminate in the event of assignment of this
Lease by Landlord. It is expressly understood and agreed that
Landlord's liability under the terms, covenants, conditions
warranties and obligation of this Lease and those implied and
created by law, if any, shall in no event exceed the loss of its
equity in the land and building and Tenant shall look solely to
the same for satisfaction of any judgment against Landlord.
Stated otherwise, notwithstanding anything to the contrary set
forth in this Lease, it is specifically understood and agreed by
Tenant that there shall be absolutely no personal liability on
the part of Landlord or on the part of the partners of Landlord
with respect to any of the terms, covenants and conditions of
this Lease, and liability created or implied by law, and Tenant
shall look solely to the equity, if any, of Landlord in the land
and building for the satisfaction of each and every remedy of
Tenant in the event of any breach by Landlord of any of the
terms, covenants and conditions of this Lease to be performed by
Landlord or liability of Landlord created or implied by law; such
exculpation of personal liability to be absolute and without any
exception whatsoever.
All limitations of Landlord liability contained in this
Lease are intended to be supplementary to one another; if there
be a conflict, that which affords the Landlord the most expansive
limitation of liability shall control. If any of the clauses
limiting Landlord's liability in this Lease shall be
unenforceable, it is the parties intention that the court shall
construe or reform the same to afford Landlord the most expansive
limitation of liability the court will permit.
ARTICLE 37 NON-ABATEMENT OF NET BASIC RENT
Except as expressly set forth herein, no abatement of
diminution or reduction of the Net Basic Rent or additional rent
payable by Tenant under this Lease shall be claimed by or allowed
to Tenant for any inconvenience, interruption, cessation or loss
of business or otherwise, caused directly or indirectly by any
present or future laws, rules, requirements, orders, directions,
ordinances or regulations of the United States of America, or of
the state, county or city governments, or of any other municipal,
governmental or lawful authority whatsoever, or by priorities,
rationing or curtailment of labor or materials, or by war or any
matter or thing resulting therefrom, or, except as provided in
this Lease, by any other cause or causes beyond the control of
Landlord, nor shall this Lease be affected by any such causes.
ARTICLE 38 ATTORNMENT
Tenant shall, if requested by a mortgagee of the premises at
any time, or in the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale
under any mortgage made by the Landlord covering the Demised
Premises, attorn to the mortgagee or purchaser upon any such
foreclosure or sale and if requested, recognize such purchaser as
the Landlord under this Lease.
ARTICAL 39 RELEASE AND WAIVER OF SUBROGATION
Landlord and Tenant hereby release the other and their
agents, contractors, servants, employees and licensees from any
and all liability or responsibility (to the releasor or anyone
claiming through or under them by way of subrogation or otherwise
under fire and extended coverage and other casualty insurance
policies) with regard to fire and other insured casualty losses
required to be insured against hereunder and notwithstanding such
fire or other covered casualty shall have been caused by the
fault or negligence of the other party, or anyone for whom such
party may be responsible and notwithstanding the insurance may
not have been obtained; provided, however, that this release
shall be applicable and in force and effect only with respect to
loss or damage occurring during such time as the releasor's
policies shall contain a clause or endorsement to the effect that
any such release shall not adversely affect or impair said
policies or prejudice the right of the releasor to recover
thereunder and this release shall operate only to the extent of
the loss payable thereunder. Each of Landlord and Tenant agrees
that its policies will include such a clause or endorsement so
long as they shall not be charged extra therefor, or so long as
the other party pays such extra cost. If extra cost shall be
chargeable therefor, each party shall notify the other party
thereof and of the amount of the extra cost, and the other party
shall be obligated to pay the extra cost if it wishes this
paragraph to apply with respect to such insurance. If such
clause or endorsement is not available, at any cost, then the
provisions of this paragraph shall not apply to the policy or
policies in questions and casualties against which they insure.
Anything above to the contrary notwithstanding, Tenant
waives all claims against Landlord on account of which Tenant is
required hereunder to maintain insurance, and agrees to look
solely to the insurance proceeds on account of the claim, any
negligence act or omission of Landlord, its agents, servants,
employees or representatives, successors and assigns
notwithstanding. Tenant agrees that, in no event shall any right
of subrogation be asserted by any insurer or otherwise against
Landlord for any injury, damage or loss suffered by Tenant or
others, whether due to negligence or otherwise, and all insurance
policies to be secured by Tenant as hereinabove set forth shall
contain an unqualified waiver of subrogation clause with respect
to Landlord, its agents, servants, employees and representatives,
successors and assigns, and the certificates to be produced by
Tenant contemporaneously herewith shall so recite. Tenant shall
give immediate notice to Landlord in case of fire or accidents to
or any defects in any fixtures or equipment of the building and
premises referred to within this Lease
ARTICLE 40 LANDLORD'S WORK
Landlord agrees to complete not later than 12/31/03, in a
workmanlike manner, the certain work as more particularly set
forth on Exhibit C annexed hereto and made a part hereof. Any
other work performed by Landlord on the Demised Premises shall be
at the cost and expense of Tenant.
Landlord shall not be in default under this Article or
liable to Tenant in any manner or for any damages by reason of
delays in the performance of any covenant or condition in this
article.
ARTICLE 41 OMITTED
ARTICLE 42 PAYMENT OF UTILITIES
Payment of all utilities shall be at the sole cost and
expense of Tenant, and Landlord reserves the right to install
separate meters for same at Tenant's cost (including required
deposits). In the event utility services including, but not
limited to, electric, gas, and water, are provided by Landlord to
Tenant and other tenants occupying a portion of the building of
which the Demised Premises form a part, Tenant agrees to pay its
proportionate share thereof upon submission of invoice from
Landlord to Tenant. Proportionate share for these purposes shall
be a fraction, the numerator of which is the square footage of
the Demised Premises and the denominator of which is the total
square footage of all tenants to whom Landlord supplies the
utility (i.e. not separately metered to the Tenant). In the
event, however, Tenant's business operation in the Demised
Premises, in the sole judgment of Landlord, uses a
disproportionate amount of utility services in relation to
Tenant's proportionate share, Landlord reserves the right from
time to time to employ an engineer at Tenant's expense to analyze
and apportion said utility charges among the various tenants
utilizing same or to submeter Tenant's consumption (cost of
submeter to Tenant including required deposits). Landlord
reserves the right to interrupt the provision of utilities when
required by reason of accident or of repairs, alterations or
improvements. Landlord shall not be liable in damages or
otherwise for any failure to furnish or interruption of
utilities, and Tenant Net Basic Rent and other covenants shall be
unaffected thereby (no abatement). Tenant shall be responsible
for the payment of any utility assessment, charge, deposit or
connection fee required as a result of a change in or alteration
of the utility after the commencement date oft the Lease.
ARTICLE 43 CONDITION OF PREMISES AT COMMENCEMENT
Landlord agrees that it shall deliver the Demised Premises
to Tenant at commencement hereunder "as is" subject to ARTICLE 40
LANDLORD'S WORK. Tenant acknowledges that it has inspected the
Demised Premises as outlined in red on Exhibit A.
ARTICLE 44 HOLDING OVER
In the event that the Tenant shall remain in the Demised
Premises after the expiration of the term of this Lease or
earlier termination of this Lease without having executed a new
written Lease with the Landlord, or in the event there shall then
remain at the Demised Premises any of Tenant's personal property
or disrepair which it is Tenant's obligation hereunder to correct
(any and all of which are hereinafter referred to as "holding
over"), such holding over shall not constitute a renewal or
extension of this Lease. The Landlord may, at its option, in the
event of such holding over, elect to treat the Tenant as one who
has not removed at the end of its term, and thereupon be entitled
to all the remedies against the Tenant provided by law in that
situation, or the Landlord may elect, at its option, to construe
such holding over as a tenancy from month to month, subject to
all the terms and conditions of this Lease, except as to duration
thereof, and monthly Net Basic Rent and additional rent shall be
due in either of such events (Landlord treats as hold over or
month to month tenant) at the rate of four (4) times that called
for herein for the last month of the Lease term ("holdover rent")
and shall be payable during the period of Tenant's holding over
after the expiration of the Lease term or earlier Lease
termination as the case may be. Tenant shall be responsible for
hold over rent for the entire month of any month during which it
holds over as above for any portion thereof. Landlord shall have
no responsibility to give Tenant any notice in connection with
assessments made herein.
Notwithstanding payment of hold over rent, Tenant shall also
remain responsible to Landlord for all consequential damages
resulting from Tenant's holding over, since the parties agree
that in the event of a holdover by Tenant, the Landlord's actual
damages (including consequential damages) will be no less than,
and may exceed, that compensated for by holdover rent.
ARTICLE 45 GOVERNMENTAL PERMITS
Except for a local Certificate of Occupancy, all
governmental permits or licenses for Tenant to occupy the Demised
Premises shall be obtained by Tenant at its sole cost and
expense.
ARTICLE 46 ENVIRONMENTAL MATTERS
Section 46.1 Tenant warrants and represents that its
intended occupancy of the Demised Premises is as set forth in
ARTICLE 9 USE OF PREMISES-COMPLIANCE WITH ORDERS, ORDINANCES,
ETC. The Standard Industrial Classification (SIC) of Tenant is
3679 as defined in the Standard Classification Manual published
by the Executive Office, of the President, Office of the
Management and Budget (1987 ed.). Tenant's occupancy of the
premises during the entire term of this Lease is restricted to
such classification unless prior consent, in writing, from the
Landlord, is obtained by the Tenant to modify the same. Tenant's
change of such classification without Landlord's prior written
consent shall, at the option of the Landlord, constitute a
default hereunder. Prior to the commencement date of the term
and each twelve (12) months thereafter, Tenant shall supply to
Landlord an Affidavit of an officer of Tenant ("Officer's
Affidavit") setting forth Tenant's S.I.C. number as above and a
detailed description of the operation and processes Tenant will
undertake and substances it will store or handle at the premises,
organized in the form of a narrative report, including a
description and quantification of toxic and hazardous and
flammable and explosive substances and wastes generated,
manufactured, refined, transported, treated, stored, handled or
disposed of at the premises (this is not intended to constitute
approval thereof). Notwithstanding the foregoing, the following
commencement of the Lease term, Tenant shall notify Landlord by
way of Officer's Affidavit as to any changes in Tenant's
operation, S.I.C. number or use and generation of toxic or
hazardous substances and wastes (this is not intended to
constitute approval thereof).
Section 46.2 Tenant shall comply with the New Jersey
Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq. (ISRA)
(formerly known as New Jersey Environmental Cleanup
Responsibility Act (ECRA)) in connection with its use and
occupancy of he Demised Premises. In furtherance of this
obligation, Tenant, at least six (6) months prior to its closing,
terminating or transferring the operations at or from the Demised
Premises, shall notify the New Jersey Department of Environmental
Protection (NJDEP) of such intention and shall thereafter
prosecute its application for NJDEP approval of such closing,
terminating or transferring operations, which approval shall be
received by the Tenant (with a copy to Landlord) on or before the
date of such closing, terminating or transferring operations.
Tenant shall supply Landlord with copies of all filings and
communications between or among the Tenant, its representatives
and consultants, and the NJDEP so that at all times the Landlord
is kept currently apprised of the status of the application for
NJDEP approval. If, for any reason, NJDEP approval has not been
received by the Tenant prior to the intended date of closing,
terminating or transferring operations, Tenant shall obtain
consent of NJDEP to the immediate reletting of the Demised
Premises by the Landlord on such terms and conditions as NJDEP
may impose. Tenant shall comply therewith, and if determined by
Landlord to be necessary will bond the same through a reputable
surety, whereupon Tenant may terminate, close or transfer
operations. If ISRA does not apply to Tenant's use and occupancy
of the Demised Premises, Tenant shall provide Landlord at the
event of the termination of the term of each portion of the
Demised Premises with a letter of non-applicability from NJDEP.
Section 46.3 Tenant further warrants and represents that
from the commencement date of this Lease and during the term
thereof, it will promptly give Landlord notice of any lien of
which Tenant is aware that is about to be attached or attached to
any revenues or any real or personal property owned or leased by
the Tenant or any tenant or subtenant or operator of any property
owned or leased by it and located in the State of New Jersey,
including, but not limited to, the Demised Premises, as a result
of the chief executive of the New Jersey Spill Compensation Fund
expending monies from said fund to pay for "Damages", as such
term is defined in N.J.S.A. 58:10-23.11 (g) and/or "Cleanup and
Removal Costs", as such term is defined in N.J.S.A.58:10-
23.11b(d), arising from any intentional or unintentional act or
omission of the Tenant, or any subtenant of the Demised Premises
resulting in the releasing, spilling, pumping, pouring, emitting,
emptying or dumping of "Hazardous Substances" into the waters of
the State of New Jersey or onto lands of the State of New Jersey
where damage may have resulted to the lands, waters, fish,
shellfish, wildlife, biota, air and other resources owned,
managed, held in trust or otherwise controlled by the State of
New Jersey. Tenant shall comply with and not violate the New
Jersey Spill Compensation Act.
Tenant represents that it has never been cited for a
violation of any environmental statutes, federal, state, county
or local.
The Tenant has not received a summons, citation, directive,
letter or other communication, written or oral, from the State of
New Jersey Department of Environmental Protection concerning any
intentional or unintentional act or omission on its part
resulting in the releasing, spilling, leaking, pumping, pouring,
emitting, emptying or dumping of "Hazardous Substances", into the
waters or onto the lands of the State of New Jersey, resulting in
damage to the lands, water, fish, shellfish, wildlife, biota, air
or other resources owned, managed, held in trust or otherwise
controlled by the State of New Jersey.
Section 46.4 In the event that there shall be filed a lien
against the Demised Premises or building of which the Demised
Premises is a part by the New Jersey Department of Environmental
Protection, pursuant to and in accordance with the provisions of
N.J.S.A.58:10-23.11(f), as amended by L.1985, c. 11 (1984 Senate
1423), as a result of the chief executive of the New Jersey Spill
Compensation Fund having expended monies from said fund to pay
for "Damages", as such term is defined in N.J.S.A.58:10-23.11g,
and/or "Cleanup and Removal Acts", as such term is defined in
N.J.S.A.58:10-23.11b(d), arising from an intentional or
unintentional act or omission of Tenant, its subtenants, agents,
servants, employees, visitors, invitees or independent
contractors, or third parties over whom no control is exercised
(Proportionate Share per Article 2 TENANT'S PROPORTIONATE SHARE
for third parties), resulting in the releasing, spilling,
pumping, pouring, emitting, emptying or dumping of "Hazardous
Substances", as such term is defined in N.J.S.A.58:10-11b(k) into
the waters of the State of New Jersey or onto lands located in
the State of New Jersey then Tenant shall, within thirty (30)
days from the date that the lien was placed against the Demised
Premises or within such shorter period of time in the event that
the State of New Jersey has commenced steps to cause the Demised
Premises to be sold pursuant to the lien, either (i) pay the
claim and remove the lien from the Demised Premises, or (ii)
furnish (1) a bond satisfactory to the Landlord in the amount of
the claim out of which the lien arises, (2) post a cash deposit
in the amount of the claim out of which the lien arises, or (3)
post other security reasonably satisfactory to the Landlord in
the amount sufficient to discharge the claim out of which the
lien arises.
Section 46.5 In the event Tenant shall violate this Article
or ARTICLE 9 USE OF PREMISES-COMPLIANCE WITH ORDERS, ORDINANCES,
ETC. or in any way conduct its operations at the Demised Premises
or permit the Demised Premises or common areas if any to be used
or maintained so as to subject the Landlord, the Tenant, or the
premises to a claimed violation, Tenant shall immediately remedy
and fully cure such condition at its own cost and expense and
shall indemnify and save the Landlord harmless from any and all
damages, remedial orders, judgments or decrees and all costs and
expenses related thereto or arising therefrom, including, but not
limited to attorneys' and consultants' fees, cleanup, removal and
restoration costs and lost rentals. It is expressly understood
and agreed that in the event there are any obligations of Tenant
with respect to payment or performance as required under the
terms and conditions of this Article or elsewhere herein that
shall not have been performed or paid prior to the expiration or
termination of this Lease, such obligations, including, but not
limited to, the obligation to remedy and cure any such condition
at its sole cost and expenses and to indemnify Landlord as
aforesaid, shall survive the expiration or termination of this
Lease and surrender of the Demised Premises by the Tenant to the
Landlord.
Section 46.6 Additionally, Tenant covenants, warrants and
represents that:
1. Tenant shall promptly provide Landlord with all
documentation and correspondence provided to NJDEP pursuant to
the Worker and Community right to Know Act, N.J.S.A.34:5A-1 et
seq and the regulations promulgated thereunder ("Right to Know
Act").
2. Tenant shall promptly supply to Landlord all reports and
notices made by Tenant pursuant to the Hazardous Substances
discharge-Reports and Notices Act, N.J.S.A.13:K-15 et seq and the
regulations promulgated thereunder ("Report and Notices Act").
3. Tenant shall promptly supply Landlord with any notices,
correspondence and submissions made by Tenant to NJDEP, the
United States Environmental Protection Agency (EPA), the United
States Occupational Safety and Health Administration (OSHA), or
any other local, state or federal authority which requires
submission of any information concerning environmental matters or
hazardous wastes or substances, Tenant shall also supply
Landlord with any notices or correspondence made to tenant by any
of the above agencies.
Section 46.7 Anything above to the contrary
notwithstanding, Tenant shall be responsible for all
environmental violations on or within the Demised Premises, or
common areas if any, but the Tenant will have no responsibility
for violations of environmental statutes, ordinances, rules and
regulations to the extent that the same (a) existed before
commencement of the Lease term, or, (b) if, the Demised Premises
be located in a multi-tenant building, were created by another
tenant of Landlord at the building (as contrasted to a subtenant
of Tenant), and Tenant shall have the burden of proving the same
((a) or (b)) by clear and convincing evidence. Tenant shall also
be responsible for violations created by third parties over whom
Tenant does not exercise control and for whom it has no legal
responsibility (Proportionate Share per Article 2 TENANT'S
PROPORTIONATE SHARE) (for these purposes, each party is deemed to
"control" and have legal responsibility for its agents, servants,
employees, representatives, independent contractors, visitors or
invitees). Anything above to the contrary notwithstanding,
Landlord does not have any presently outstanding notices of
environmental law at the Demised Premises.
ARTICLE 47 ENVIRONMENTAL INSPECTION
Anything hereinabove to the contrary notwithstanding,
between one hundred eighty (180) and sixty (60) days, before the
end of the Lease term, at Landlord's option, an engineer and/or
testing company selected by the Landlord will conduct an
inspection of the Demised Premises for compliance with all
applicable environmental statutes, ordinances, rules and
regulations. The expense of the inspection and testing is to be
borne by the Tenant if the report reveals violation by Tenant of
its Article 46 covenants. To the extent that the inspection
report of the engineer reveals violations by tenant of its
Article 46 covenants, the Tenant will remove the same at its
expense not later than the termination of the Lease term subject,
however, to the limitations on Tenant's responsibility set forth
elsewhere herein, to wit: Landlord is responsible for
environmental violations pre-existing the original date of
Tenant's occupancy.
The obligations of Tenant set forth in this paragraph shall
obtain notwithstanding the Tenant may receive or may have
received from the New Jersey Department of Environmental
Protection an Industrial Site Recovery Act letter of non-
liability and/or a no further action letter. Furthermore, the
obligations of Tenant set forth in this paragraph are not
intended to limit Tenant's responsibility for compliance with
applicable environmental laws relating to the Demised Premises,
but are in addition thereto.
ARTICLE 48 LANDLORD CONSENT
At any time hereunder that Landlord consent is required and
it is stated that the same shall not be unreasonably withheld,
Tenant's sole remedy, should it demonstrate the withholding of
consent was unreasonable (which demonstration shall be by clear
and convincing evidence), shall be specific performance to compel
the consent. It shall not be unreasonable for Landlord to
condition its review of Tenant's request for consent upon
Tenant's payment in advance of Landlord's reasonable attorneys'
fees.
ARTICLE 49 OCCUPANCY PRIOR TO COMMENCEMENT
Tenant is hereby given the right, prior to the Commencement
Date hereunder, if Demised Premises is vacant (prior Tenant's
Lease has terminated) to enter in the Demised Premises for
purposes of moving its machinery, fixtures, and/or equipment, it
being expressly understood, however, that Tenant shall in no way
interfere with Landlord's work. Landlord shall not be
responsible for any of Tenant's property on the Demised Premises
and Tenant further agrees that, if required, its work shall be
performed by union labor, provided however Landlord's men are on
said premises. Tenant's use of the premises pursuant to this
paragraph shall be conditioned upon receipt of insurance
coverages as set forth in ARTICLE 6 INSURANCE hereof. Tenant
shall also pay all operating expenses and taxes associated with
the Demised Premises and will be responsible for all other lease
covenants except Net Basic Rent until commencement.
ARTICLE 50 RIGHT OF FIRST REFUSAL
The rentable area of the building of which the Demised
Premises is a part and which is outlined in green upon Exhibit D
is currently vacant ("Unoccupied Space"). Landlord does hereby
grant Tenant a first right of refusal to lease that available
space, or any portion thereof, comprising approximately 3,806 (+
or -) square feet, on the following terms and conditions.
Landlord shall provide Tenant with a copy of a bona fide
offer to lease all or any portion of the aforesaid 3,806 (+ or -)
square feet of Unoccupied Space. Within five (5) business days
thereafter Tenant, if it so elects, may choose by written notice
to Landlord to lease the same portion of the Unoccupied Space on
the same terms and conditions as said offer, except as set forth
below. If Tenant timely exercises its right of first refusal,
("exercise date") and if the conditions referred to elsewhere
herein are satisfied, the Demised Premises as defined in ARTICLE
1 PREMISES-TERM OF LEASE shall thereupon be expanded to include
the subject portion of the aforesaid 3,806 (+ or -) square feet
of Unoccupied Space and Tenant's ARTICLE 2 TENANT'S PRO RATA
PORTION OF THE BUILDING shall thereupon be expanded to that
percentage which is equivalent to a fraction, the numerator of
which is the total square feet of floor space of the Demised
Premises expanded to include the said additional Demised Premises
and the denominator of which is the total square feet of rentable
floor space of the building of which the Demised Premises is a
part, and ARTICLE 5 SECURITY DEPOSIT BY TENANT shall thereupon be
supplemented to constitute an amount equal to one (1) months rent
for the Demised Premises as so expanded, and Net Basic Rent shall
thereupon be increased in accordance with the terms and
conditions of said offer for the additional Demised Premises.
Should Tenant not provide written notice to Landlord as above
within the aforesaid five (5) day period, this right of first
refusal and any and all other claims of the Tenant to rights in
all or any portion of the aforesaid 3,806 (+ or -) square feet of
Unoccupied Space shall be deemed irrevocably waived by Tenant.
Time is of the essence.
If the "exercise date" is on other than the first day of the
month, rent (Net Basic Rent and Additional Rent) for the month
during which exercise takes place shall be apportioned.
If the first right of refusal is timely exercised as above,
then except as set forth above, all other terms, covenants and
conditions of this Lease shall apply to the additional Demised
Premises.
Tenant shall not have any right of first refusal except as
hereinabove set forth, and Tenant shall be deemed to have waived
irrevocably this right of first refusal should it be in default
after applicable cure period of any Lease covenant at the time
its exercise is due hereunder or shall fail to cure the same
after applicable cure period if at the time of exercise the cure
period has not expired and/or should it not be in occupancy of
the Demised premises at the "exercise date" other than during the
period prior to Tenant's initial occupancy of the Demised
Premises. This right of first refusal is not assignable by
Tenant.
IN WITNESS WHEREOF, the said parties have caused these
presents to be signed by their proper authorized corporate
officers and general partners and have caused their proper
corporate seal to be hereto affixed, the day and year first above
written.
AMB PARTNERS II, L.P., a
Delaware limited partnership,
By: AMB Property, L.P. , a Delaware
limited partnership, its
General Partner
By: AMB Property Corporation, a
Maryland Corporation, its General Partner
MICROWAVE CONCEPTS, INC.
A Delaware Corporation
