1
EXHIBIT 10.2
FLEX/OFFICE
LEASE
AGREEMENT
TEN THIRTY-FIVE ASSOCIATES, LIMITED PARTNERSHIP
LESSOR
MILLENIUM CELL, LLC
LESSEE
HOVPARK EATONTOWN
ONE INDUSTRIAL WAY WEST
EATONTOWN, NEW JERSEY
June 9, 1999
DATE PREPARED: 5/18/99
2
SUMMARY OF BASIC LEASE PROVISIONS
LESSOR: TEN THIRTY-FIVE ASSOCIATES, LIMITED PARTNERSHIP
ADDRESS OF LESSOR: 000 Xxxxxxx 00, X.X. Xxx 000, Xxx Xxxx, Xxx Xxxxxx
00000.
LESSEE: Millenium Cell, LLC
ADDRESS OF LESSEE: 0 Xxxxx Xxxx, Xxx Xxxxxxxxx, XX 00000
DEMISED PREMISES: Unit K in Building E located at HovPark Eatontown,
One Industrial Way West, Eatontown, New Jersey, as
set forth on the Site Plan attached hereto as
Exhibit "A", the Building Plan attached hereto as
Exhibit "B" and the Floor Plan attached hereto as
Exhibit "C".
LEASE TERM: Five (5) years
RENT COMMENCEMENT
DATE: The date established in accordance with Article
2(a) estimate to be August 1, 1999.
LEASE EXPIRATION DATE
ESTIMATED TO BE: July 31, 2004
BASE RENT: Year 1 - $9.35 per square foot, triple net, $7,581.34 monthly,
$90,976.00 annually
Year 2 - $9.85 per square foot, triple net, $7,986.75 monthly,
$95,841.00 annually
Year 3 - $10.35 per square foot, triple net, $8392.16 monthly,
$100,706.00 annually
Year 4 - $10.85 per square foot, triple net, $8,797.58 monthly,
$105,571.00 annually
Year 5 - $11.35 per square foot, triple net, $9,203.00 monthly,
$110,436.00 annually
PERMITTED USES: Research and Development
LESSEE'S S.I.C. NO.: 8731
TOTAL AREA WITHIN
THE BUILDING: 79,323 (flex) SQUARE FEET
TOTAL LEASED AREA OF
DEMISED PREMISES: 9,730 SQUARE FEET
LESSEE'S PROPORTIONATE
PERCENTAGE SHARE OF
COMMON AREA MAINTENANCE
CHARGES: 8.15%
SECURITY DEPOSIT: Three (3) months base rent -
$22,744.02.
RENEWAL OPTION: One (1) Five (5) year option period.
1
3
GUARANTOR: In the event of a default, G.P. Strategies
Corporation will be responsible for the payment of
up to one (1) year of the then current rent and
any and all additional charges.
2
4
LEASE
TABLE OF CONTENTS
ARTICLE
1 Demised Premises ...................................................5
2 Lease Term and Option to Renew .....................................5
3 Use ................................................................5
4 Security Deposit ...................................................5
5 Base Rent ..........................................................6
6 Adjustment to Base Rent ............................................6
7 Tax Rent ...........................................................7
8 Common Areas and Common Area Maintenance ...........................8
9 Additional Rent ....................................................9
10 Lessor's Standard Work .............................................9
11 Additional Work to be Performed for Lessee .........................9
12 Peaceful Enjoyment .................................................9
13 Lessee's Representations
A. Payment .................................................10
B. Repairs and Re-Entry ....................................10
C. Assignment and Subletting ...............................10
D. Alterations, Additions, Damage & Improvements ...........11
E. Legal Use, Insurance Violations and Costs ...............12
F. Laws and Regulations ....................................12
G. Indemnity and Insurance
1. Indemnity .........................................12
2. Insurance .........................................12
H. Building Rules and Regulations ..........................13
I. Entry for Repairs, Inspection, Showing ..................13
J. Nuisance ................................................13
K. Utility Charges .........................................13
L. Janitorial ..............................................13
M. Net-Net-Net Lease .......................................14
14 Mutual Representations and Covenants
A. Condemnation ............................................13
B. Loss or Damage ..........................................14
X. Xxxx for Rent ...........................................14
D. Abandonment .............................................14
E. Holding Over ............................................14
F. Fire or Casualty ........................................15
G. Attorneys Fees and Costs ................................15
H. Amendment or Modification ...............................15
I. Transfer of Lessor's Rights .............................15
J. Default by Lessee
1. Right to Re-Enter .................................15
2. Right to Relet ....................................15
3. Notice of Default, Right to Cure ..................16
4. Remedies Cumulative ...............................16
K. Waiver ..................................................16
L. Possession ..............................................16
M. Bankruptcy ..............................................16
N. Assignment by Lessor ....................................16
0. Pronouns and Genders ....................................16
P. Subordination ...........................................16
Q. Force Majeure ...........................................17
R. Time of Essence .........................................17
3
5
S. Transmittal .............................................17
15 Mechanic's Liens ..................................................17
16 Estoppel Certificates .............................................17
17 Waiver of Jury Trial ..............................................17
18 Limits of Lessor's Liability ......................................17
19 Severability ......................................................18
20 Notices ...........................................................18
21 Relationship of Parties ...........................................18
22 Memorandum of Lease ...............................................18
23 Construction ......................................................18
24 Parking ...........................................................18
25 Signs .............................................................18
26 Brokerage .........................................................18
27 Late Payments .....................................................18
28 Headings ..........................................................19
29 Integration .......................................................19
30 Governing Law .....................................................19
31 No Third Party Rights .............................................19
32 Shift Premises ....................................................19
33 Environmental Law Compliance ......................................19
34 Confidentiality ...................................................21
EXHIBITS
"A" Site Plan .........................................................25
"B" Building Plan .....................................................26
"C" Floor Plan ........................................................27
"D" Lessor's Standard Work ............................................28
"E" Additional Work to be Performed by Lessor
for Lessee at Lessee's Expense ....................................29
"E-1" Lessee Interior Construction Requirements .........................31
"F" Rules and Regulations .............................................36
"G" Guaranty (if applicable) ..........................................39
4
6
FLEX/OFFICE
LEASE AGREEMENT
THIS AGREEMENT entered into this _____ day of June ___ 1999, between Ten Thirty
Five Associates, a Limited Partnership of the State of New Jersey, having its
principal place of business at 000 Xxxxxxx 00, Xxx Xxxx, Xxx Xxxxxx, 00000,
referred to as "Lessor"; and Millenium Cell, LLC, a Corporation of the State of
New Jersey, with offices at 0 Xxxxx Xxxx, Xxx Xxxxxxxxx, referred to as
"Lessee".
W I T N E S S E T H:
1. Demised Premises. Lessor has leased to Lessee the area located in the
property known as Unit K in Building E located at HovPark Eatontown, One
Industrial Way West, in the municipality of Eatontown, New Jersey, as designated
and highlighted: (a) on the Site Plan attached hereto as Exhibit "A"
("Project"); (b) on Exhibit "B" hereto which is the plan of the building in
which the demised premises is a part ("Building"); and (c) on the Floor Plan of
the first floor of the Building attached hereto as Exhibit "C", ("Demised
Premises").
2. Lease Term and Option to Renew. (A) The Lease Term shall be five (5) years
and shall commence on Lessor's delivery of the demised premises to Lessee in
accordance with the delivery specification set forth in Exhibit "E" attached
hereto, estimated at August 1, 1999 and expire on July 31, 2004 ("Lease Term").
The Lease Term is subject to adjustment based upon the actual Rent Commencement
Date and unless sooner terminated as herein provided.
The "Rent Commencement Date" shall mean: (1) the date Lessor, or Lessor's Agent,
notifies Lessee in writing that the Demised premises are ready for occupancy; or
(2) the date on which Lessee shall first take possession of any portion of the
Demised Premises; or (3) the day following the issuance of any Certificate of
Occupancy for the Demised premises, whichever of said dates shall occur first.
(B) Provided Lessee is not in default hereunder, Lessee shall have the right and
option to renew this lease ("Option to Renew") for one (1) additional option
period of five (5) years ("Option Term") upon the same terms and conditions
herein set forth except that the Base Rent shall be adjusted in accordance with
Paragraph 6 below. To exercise its Option to Renew, Lessee must give Lessor
notice in writing sent so as to be received at least nine (9) months prior to
the expiration of the initial Lease Term or the Option Term; as applicable.
Lessee's exercise of its Option shall be void and of no effect if Lessee is in
default of this Lease on the date it exercises its Option to renew or on the
expiration of the Lease Term or Option Term, as applicable. Not withstanding
anything above to the contrary, in no event shall Lessee be allowed to renew
when a subLessee is in possession of the Demised Premises.
3. Use. Lessee shall continuously use and occupy the Demised Premises during the
full term of this Lease for no other purpose than research and development,
which is the Permitted Use. Any changes in same must be approved in writing by
Lessor in advance, which approval may be refused by Lessor for any reason.
Lessee represents and warrants to Lessor that the Permitted Uses have the
Standard Industrial Classification ("S.I.C.") Numbers set forth in the Summary
of Basic Lease Provisions hereof.
4. Security Deposit. Lessee, concurrently with the execution of this Lease, has
deposited $22,743.88 with Lessor (the "Security Deposit"), the receipt of which
is hereby acknowledged. Said sum shall be retained by Lessor as security for the
payment by Lessee of the monies herein agreed to be paid by Lessee, and for the
faithful performance by Lessee of the terms and covenants of the Lease. In the
event of any default by Lessee, Lessor, at its option, may at any time apply
said sum, or any part thereof, (a) toward the payment of any or all rent or
other monies payable under this Lease which are in default, or (b) so as to cure
any default of Lessee; but Lessee's liability under this Lease shall thereby be
discharged but only to the extent that Security Deposit covers the amount in
default and Lessee shall remain liable for any amounts that such sum shall be
insufficient to pay. Lessor is not required to exhaust any or all rights and
remedies available at law or equity against Lessee before resorting to the
Security Deposit.
5
7
Lessee's failure to restore any of the Security Deposit used by Lessor within
(10) days of Lessor's request for same shall be an act of default hereunder. In
the event this deposit shall not be utilized for any purposes herein permitted
and provided Lessee is not in default at the expiration of the Lease Term or any
Option Term as applicable, then such deposit shall be returned by Lessor to
Lessee within thirty (30) days after the expiration of the Lease Term or Option
Term, as applicable. Lessor shall not be required to pay Lessee any interest on
said Security Deposit.
5. Base Rent. Lessee shall pay to the Lessor as Base Rent for the Demised
Premises the following:
A. For the first year of the Lease Term, Lessee shall pay Ninety Thousand Nine
Hundred Seventy-Five and 50/100 Dollars per annum, ($90,975.50), $9.35 a square
foot, payable in equal monthly installments of Seven Thousand Five Hundred
Eighty-One and 29/100 ($7,581.29) and;
B. For the second year of the Lease Term, Lessee shall pay Ninety Five Thousand
Eight Hundred Forty One 00/00 Dollars per annum, ($95,841.00), $9.85 per square
foot, payable in equal monthly installments of Seven Thousand Ninety Hundred
Eighty-Six and 75/100 ($7,986.75) and;
C. For the third year of the Lease Term, Lessee shall pay One Hundred Thousand
Seven hundred Six and 50/100 Dollars per annum, ($100,706.00), $10.35 per square
foot, payable in equal monthly installments of Eight Thousand Three Hundred
Ninety-Two and 16/100 ($8,392.16) and;
D. For the fourth year of the Lease Term, Lessee shall pay One Hundred Five
Thousand Five Hundred Seventy-One and 00/100 Dollars per annum, ($105,571.00),
$10.85 per square foot, payable in equal monthly installments of Eight Thousand
Seven hundred Ninety-Seven and 58/100 ($8,797.58) and;
E. For the fifth year of the Lease Term, Lessee shall pay One Hundred Ten
Thousand Four Hundred Thirty-Six and 00/100 Dollars per annum, ($110,436.00),
$11.35 per square foot, payable in monthly installments of Nine Thousand Two
Hundred Three and 00/100 ($9,203.00).
Each payment shall be paid in advance, without demand, on the first day of each
and every calendar month during the Lease Term without deduction or setoffs. If
the Lease Term shall begin on other than the first day of a calendar month, then
the Base Rent for such portion of the particular calendar month at the beginning
of the Lease Term shall be apportioned and paid on the basis of a month of
thirty days. The Base Rent shall be paid to Lessor in legal tender of the United
States of America at the address of Lessor, specified above, or at such place as
Lessor may from time to time designate by notice in writing.
6. Adjustment of Base Rent. If the Option to Renew as set forth above in 2 (b)
is exercised, the annual base rent for each year of the Option Term will be
adjusted as follows:
A. For the first year of the Option Term, Lessee shall pay One hundred Fifteen
Thousand Three Hundred and 50/100 Dollars per annum ($115,300.50), $11.85 per
square foot, payable in equal monthly installments of Nine Thousand Six Hundred
and Eight and 37/100 ($9,608.37) and;
B. For the second year of the Option Term, Lessee shall pay One Hundred Twenty
Thousand and One Hundred and Sixty-Five and 50/100 Dollars per annum
($120,165.50), $12.35 per square foot, payable in equal monthly installments of
Ten Thousand Thirteen and 79/100 ($10,013.79) and;
C. For the third year of the Option Term, Lessee shall pay One Hundred
Twenty-Five Thousand Thirty and 50/100 Dollars per annum ($125,030.50), $12.85
per square foot, payable in equal monthly installments of Ten Thousand Four
Hundred and Nineteen and 20/100 ($10,419.20) and;
D. For the fourth year of the Option Term, Lessee shall pay One hundred
Twenty-Nine Thousand Eight Hundred Ninety-Five and 50/100 Dollars per annum
($129,895.50), $13.35 per square fool, payable in equal monthly installments of
Ten Thousand Eight Hundred Twenty-Four and 62/100 (10,824.62) and;
E. For the fifth year of the Option Term, Lessee shall pay One Hundred
Thirty-Four Thousand Seven Hundred Sixty and 50/100 Dollars per annum
($134,760.50), $13.85 per square foot, payable in equal monthly installments of
Eleven Thousand Two Hundred Thirty and 04/100 ($11,230.04).
6
8
7. Tax Rent. The term "Taxes" shall mean the aggregate of the real-estate taxes,
assessments and other governmental charges and levies, general and special,
ordinary and extraordinary, foreseen and unforeseen, of any kind or nature
whatsoever (including without limitation assessments for public improvements or
benefits and interest on unpaid installments thereof) which may be levied,
assessed or imposed or become liens upon or arise out of the use, occupancy or
possession of the land, buildings, leasehold improvements, betterment's, and
other permanent improvements within or to the Lessor's property from time to
time. The term "Taxes" shall not, however, include inheritance, estate,
succession, transfer, gift, franchise, corporation income or profit tax imposed
upon Lessor. However, if at any time during the Lease Term the methods of
taxation prevailing at the commencement of the Lease Term shall be altered so
that in addition to or in lieu of or as a substitute for the whole or any part
of the Taxes now levied, assessed or imposed on real-estate as such there shall
be levied, assessed or imposed: (i) a tax on the rents received; or (ii) a
license fee measured by the rents receivable by Lessor; or (iii) a tax or
license imposed upon Lessor which is otherwise measured by or based in whole or
in part upon the real-estate, then the same shall also be within the definition
of the term "Taxes" above.
Lessor covenants that it will pay, when due, all Taxes, imposed on the tax lot
wherein the Demised Premises are situated. Lessee shall pay to Lessor an amount
equal to Lessee's proportionate share of such Taxes ("Tax Rent") which shall be
determined by a fraction, the numerator of which shall be the Total Leased Area
of the Demised Premises, and the denominator of which shall be the Total Area
with the Building or Project wherein the Demised Premises are situated, subject
to the method by which taxes are calculated. Such amount shall be fairly and
equitably prorated for any partial lease year during the Lease Term.
The term "Tax Year" shall mean the twelve (12) month period established as the
real estate tax year by the taxing authorities having jurisdiction over the
Demised Premises. Lessee's Tax Rent (as the same may be subsequently increased
or decreased) shall be paid to Lessor in equal monthly installments in advance
on the first day of any calendar month during such Tax Year. If, on the first
day of any calendar month the amount of Taxes payable during the then current
Tax Year shall have not been determined by the taxing authorities, then the Fax
Rent then payable by Lessee shall be estimated by Lessor and be subject to
immediate (i) adjustment when the amount of such Taxes shall be determined; and
(ii) payment upon submission of a statement therefore by Lessor.
Within 60 days after the end of each Tax Year, Lessor shall deliver a copy to
Lessee of all bills for Taxes for such Tax Year and certify to Lessee the amount
of Lessee's Tax Rent. If the amount of such monthly Tax Rent payments paid by
Lessee exceeds the actual amount due, the overpayment shall be credited on
Lessee's next succeeding payment or during the last year of the Lease Term.
Lessor will refund such excess to Lessee within thirty (30) days following the
expiration of the Lease Term, if Lessee is not in default hereunder. If the
amount of such monthly Tax Rent payments paid by Lessee were less than the
actual amount due, Lessee shall pay to Lessor the difference between the amount
paid and the actual amount due, within ten (10) days after receipt of Lessor's
certification of amount due.
Lessee shall pay (or reimburse Lessor upon demand if the same are levied against
Lessor or the Demised Premises), before delinquency, any and all taxes,
assessment, license fees and public charges, of whatever kind or nature, levied
or assessed during the Lease Term by any governmental authority against Lessee's
business in the Demised Premises and the fixtures, furniture, appliances and any
other personal property therein.
Lessor shall have the right but not the obligation, if permitted by law, to make
installment payments of any assessments levied against the Demised Premises and
in such event, Lessee's share of the Taxes shall be computed upon the
installments and interest thereon paid by Lessor in each Tax Year.
Lessor shall have the sole, absolute right, but not the obligation, to contest
the validity or amount of any Taxes by appropriate proceedings, and the sole,
absolute and unrestricted right to negotiate and settle any contest, proceeding
or action upon whatever terms Lessor may, in its sole discretion, determine. In
the event Lessor receives any refund of such Taxes (and provided Lessee is not
then in default under this Lease) Lessor shall credit such proportion of the
refund
7
9
(less pro rata costs, expenses and attorney's fees) as shall be allocable to the
Lessee's Tax Rent against the next succeeding payments due of Lessee's Tax Rent.
In the event of any dispute under this Article, Lessee shall pay its Tax Rent in
accordance with the applicable xxxx or statement, and such payment shall be
without prejudice to Lessee's position. If the dispute shall be determined in
Lessee's favor by agreement or otherwise, Lessor shall pay to Lessee the amount
of Lessee's overpayment resulting from compliance with such xxxx or statement.
Any such xxxx or statement shall be deemed binding and conclusive if Lessee
fails to object to it in a detailed writing within thirty (30) days after it is
mailed by Lessor.
Failure of Lessor to provide any statement called for hereunder within the
period of time prescribed, will not relieve Lessee from its obligations
hereunder.
8. Common Areas and Common Area Maintenance.
A. The term "Common Areas" means the portions of the lot or Building or Project
as herein described which have been designated and improved for common use by or
for the benefit of more than one occupant of same including, without limitation
(if and to the extent facilities therefore are provided by the Lessor at the
time in question): the land and facilities utilized for or as parking lots;
access and perimeter roads; truck passageways and loading platforms (which
includes any platform that may be used by only one occupant); service corridors;
landscaped and grass areas; exterior lawn sprinklers, walks, stairways, ramps;
interior corridors and stairs; directory equipment; storm and sanitary sewers;
utility lines and the like installed at the cost of the Lessor; and the
structure of the Building and any buildings or other structures in the Project
and all component and structural parts and systems of same including but not
limited to the roof, mechanical systems, load bearing walls, floors and all
other structural components but excluding all portions of the Building which are
used or intended for use by one occupant, except as provided above.
B. The term "Common Area Maintenance" charges (sometimes referred to by Lessor
as "CAM" charges) shall mean an amount equal to the sum of: (i) the actual cost
of operating, managing, lawn sprinklers and lawn maintenance, equipping,
landscaping, cleaning, lighting, snow and ice removal from, repairing,
replacing, and otherwise maintaining the Common Areas, including, but not
limited to; all costs of insurance relating to the Common Areas, all taxes
allocable thereto, all sewer and water costs, costs of maintaining and operating
any private sewerage disposal or septic facilities and meter equipment rooms,
and the cost of all utilities servicing the Common Areas; and (ii) 1 0% of the
costs referred to in (i) above as a reserve fund for making capital repairs and
replacements to the Common Areas; and (iii) 5% of Base Rent as a management fee.
The term "Common Area Maintenance" shall also include Lessor's actual annual
cost of procuring and maintaining insurance covering fire and such other risks
as are from time to time included in standard extended coverage endorsements and
special broad form coverage's, insuring not less than ninety percent (90%) of
the full insurable value (based on completed construction but excluding
foundation and excavation costs and underground floor pipes and drains) of the
Project, the Demised Premises and Buildings, and improvements and betterment's
installed by Lessor or others within same, in addition to rent loss insurance.
Lessee hereby acknowledges that Lessor will not insure Lessee's personal
property, fixtures, equipment, furniture, machinery, decorations, stock-in-trade
or other property or the contents within the Demised Premises belonging to the
Lessee or others and Lessee shall be solely responsible for maintaining
liability coverage and insurance on any and all of its personal property and all
of the items herein set fourth in this sentence.
Lessor shall notify the Lessee of Lessee's pro rata share of the Common Area
Maintenance charges estimated and computed in the same manners as set forth
above for Tax Rent computation by Lessor in advance and for each annual lease
period during the Lease Term and any portion thereof. Lessee shall pay its pro
rata share of such estimated Common Area Maintenance charges in equal monthly
installments coincident with payment of Base Rent. Lessor shall make available
to the Lessee after each annual period during the Lease Term, a statement
showing the Lessor's actual costs of maintaining and operating the Common Areas.
If
8
10
the pro rata share of the actual Common Area Maintenance charges for such annual
lease period exceeds the estimated amount paid by Lessee, Lessee shall pay to
the Lessor the balance of its pro rata share of such excess within thirty (30)
days after receipt of a statement of Lessor therefore. If the estimated amount
so paid by Lessee exceeded the Lessee's pro-rata share of the actual Common Area
Maintenance charges, then, the Lessee's share of such excess shall be credited
against the next succeeding payment(s) due of Lessee's pro-rata estimated share
of Common Area Maintenance charges for the next annual lease period.
Failure of Lessor to provide any statement called for hereunder within the
period of time prescribed, will not relieve Lessee from its obligations
hereunder.
Not withstanding anything above, if an expenditure is incurred for the benefit
of less than all Lessees, Building or Project, said expenditures shall be
allocated proportionately to the benefiting parties.
9. Additional Rent. Wherever the phrase "Additional Rent" is used in this Lease,
it shall mean not only the additional monies to be paid to Lessor as provided
for in Article 7 and 8 hereof, but also all other charges or sums due by Lessee
to Lessor hereunder, including, without limitation, attorney's fees and court
costs; reimbursement for sums advanced by Lessor, if any, on Lessee's behalf;
costs of performing Lessee's Work and interest on all monies due at the then
applicable maximum legal rate.
10. Lessor's Standard Work. All work to be performed within and needed in order
to ready the Demised Premises for Lessee's use and occupancy is described and
set forth on Exhibit "D" (other than decorations and installation of movable
trade fixtures, office and other equipment) ("Lessor's Standard Work"). Lessor
shall, at its sole cost and expense, perform "Lessor's Standard Work" on the
Demised Premises and the Building. The shape, height and location of the Demised
Premises within the Building, Lessor's Standard Work and the design criteria
therefore set forth in Exhibit "D" or otherwise, and the nature and identity of
the occupants of the other leased premises in the project are each subject to
such changes as Lessor shall, at any time and from time to time, deem to be
desirable for the benefit of the Lessor and the overall Project. However, such
changes shall not materially adversely affect Lessee and provided further that
the resulting Demised Premises shall be substantially equivalent in usefulness
for Lessee's purposes as prior to such changes. No changes shall invalidate or
affect this Lease, and Lessor and Lessee shall, on request by either, modify
Exhibits "A", "B", "C" and/or "D" to such extent as the architects or engineers
selected by Lessor certify to be proper to be in accord with the changes
referred to in this Article. Lessee shall be responsible for obtaining a
Certificate of Occupancy.
It shall be conclusively established that the Demised Premises and all work to
be done by Lessor under Article 10 and 11 were in satisfactory condition in all
respects by and as of Lessee taking possession of the Demised Premises, except
for items on Exhibit "D" and Exhibit "E" as to which Lessee shall give written
notice to Lessor within ten (10) days after the commencement of the Lease Term.
Any disagreement which may arise between Lessor and Lessee with respect to
either Lessor's Standard Work (Article 10) or Additional Work To Be Performed On
Behalf of Lessee (Article 11) shall be resolved by the decision of Lessor's
architects or engineers, the cost of whose services in respect of such
disagreement shall be borne equally by Lessor and Lessee. The decision of said
architects or engineers shall be final and binding on the parties.
11. Additional Work To Be Performed. If Lessee has requested any work to be
performed within the Demised Premises which is different in scope or amount of
Lessor's Standard Work (Exhibit D), said additional work is set forth and
defined in Exhibit "E" ("Additional Work To Be Performed On Behalf Of Lessee").
Lessee shall pay Lessor for all of said work as set forth on a schedule within
Exhibit E.
12. Peaceful Enjoyment. Lessee shall and may peaceably have, hold and enjoy
possession of the Demised Premises subject to the other terms hereof, provided
Lessee pays the monies herein required and performs all covenants and agreements
herein contained.
9
11
13. Lessee's Representations. The Lessee hereby represents, warrants and
covenants to Lessor as follows:
A. Payments. To pay to Lessor all rents and sums provided to be paid hereunder
at the times and in the manner herein provided.
B. Repairs and Re-Entry. Lessee will, at Lessee's own cost and expense, make all
repairs with respect to the Demised Premises during and at the expiration or
termination of the Lease Term and shall be solely responsible for the condition,
repairs to and replacement of, compliance with all codes and regulations and
maintenance of the Demised Premises. Lessor shall, at Lessee's expense, maintain
throughout the term of this Lease, including any extension term hereof, the
H.V.A.C. system serving the Demised Premises, including without limitation
periodic changing of any and all filters, changing of belts, lubricating of
equipment and maintenance of operating levels of freon in accordance with
manufacturers specifications. Lessor is not obligated to but may, at its sole
option, make such repairs and perform such maintenance to the Demised Premises
as Lessor determines to be necessary, in which event the Lessee shall repay the
full cost thereof to Lessor on demand. Lessee will not commit or allow any waste
or damage to be committed on any portion of the Demised Premises, and shall, at
the termination of this Lease, by lapse of time or otherwise, deliver up the
Demised Premises to Lessor in as good condition as at date of possession of
Lessee, ordinary wear and tear excepted. Upon such expiration or termination of
the Lease Term or abandonment of possession by Lessee, Lessor shall have the
right to re-enter and resume possession of the Demised Premises without any
further notice or liability to Lessee.
C. Assignment & Subletting.
1. Subletting Prohibited. Lessee shall not (i) sublet the Demised Premises
in whole or in part, (ii) sell or encumber this Lease or any interest therein,
and (iii) except in the case of an assignment permitted pursuant to Section
13C(2) of this Article, permit the use or occupancy of the Demised Premises or
any part thereof by anyone other than the Lessee named in this Lease who has
executed same.
2. Assignment.
a. Lessee shall not assign this Lease without the prior written
consent of the Lessor which consent shall not be unreasonably withheld. Consent
withheld for any of the following reasons shall be deemed conclusively to be
consent reasonably withheld: (i) the proposed assignee is not financially
qualified or is an otherwise unsatisfactory credit risk, or is not sufficiently
experienced, (ii) the proposed assignment would result in the creation of more
than one office, or in a change of the Permitted Use or Trade Name, or (iii) the
proposed assignment would adversely affect the overall character or quality of
the Building in which the Demised Premises are located, (iv) the proposed
assignee or use of the Demised Premises by the proposed assignee would come
within the provisions of ISRA or the Spill Compensation and Control Act, or (v)
the proposed assignee is an existing Lessee in the Complex. Not withstanding
anything above to the contrary, the length of any assignment shall be limited to
the expiration of the then current term at date of execution of said assignment.
The assignor and assignee shall not have any further right to exercise any
option periods.
b. In the event Lessee proposes to assign this Lease, Lessee shall
request Lessor's consent by notice given not less than ninety (90) days prior to
the intended effective date of the proposed assignment. Lessee's notice shall
include the proposed assignee's name and address, current financial statement
and business resume, including other business locations, other lessors, trade
and bank references and other information as reasonably requested by Lessor. If
Lessee claims that Lessor has been unreasonable in withholding or delaying
consent or unreasonable in its request for information as to a proposal to
assign, Lessee's remedy shall be restricted to a declaratory judgment and an
injunction for the relief sought, and shall exclude money damages.
10
12
c. In addition to requiring Lessor's consent as aforesaid, any
assignment of this Lease shall be subject to the following:
(1) each assignee shall assume the obligations of this Lease
by executing, acknowledging and delivering to Lessor, prior to the effective
date of the assignment, an agreement in form and substance satisfactory to
Lessor wherein the assignee assumes the obligations of Lessee under this Lease
and wherein the assignor remains jointly and severally liable therefore; and
(2) There has been no Default hereunder on Lessee's part still
existing and uncured as of the effective date of the assignment.
(3) The Minimum Rent shall be increased by such amount to
reflect the current market rent in the area, but in no event shall the Minimum
Rent be less than provided in this Lease.
d. In furtherance of the provisions of Paragraph a of this Section
13C(2), if Lessee is a corporation (except a corporation whose outstanding
voting shares are listed on a recognized security exchange) and if the person or
persons who own a majority of its voting shares as of the date of this Lease
cease to own a majority of such shares at any time hereafter, except as a result
of transfers by gift, bequest, or inheritance by or among immediate family
members, such change of ownership shall constitute an assignment of this Lease.
e. All costs and expenses, including attorney's fees (which shall
include the cost of time expended by in-house counsel) incurred by Lessor and
Lessor's agent in connection with any proposed assignment, shall be paid by
Lessee as Additional Rent.
f. Neither Lessee nor any successor in interest nor a trustee in
bankruptcy shall have the right to assign this Lease, nor to sublet the whole or
any part of the Demised Premises after the adjudication of Lessee as a bankrupt
or in any liquidation proceedings as distinguished from an arrangement or
reorganization proceeding pursuant to federal or state statutes. Notice of this
provision shall be contained in any "short form" of Lease prepared pursuant to
this Lease.
g. Notwithstanding the other provisions of Section 13C (1) and
13C(2) hereof, Lessor shall have the right to recapture and terminate this Lease
if it receives a notice pursuant to Section 13C(2)(b) hereof.
Lessee will not assign this Lease, or allow the same to be assigned by operation
of law or otherwise; nor shall Lessee sublet the Demised Premises, or any part
thereof, or use or permit the same to be used for any other purpose than the
Permitted Use herein set forth without the prior written permission of Lessor
which may be refused for any reason. The selling or other transfer of the
corporate stock of any corporate Lessee or partnership interest in Lessee, as
applicable, shall be a prohibited assignment for purposes of this Lease
Agreement. Any assignment or subletting permitted by Lessor will not relieve the
Lessee of any obligation herein.
D. Alterations, Additions, Damage and Improvements. Lessee will not make or
allow to be made any alterations, additions or improvements in or to the Demised
Premises without the prior written consent of Lessor. Any and all such
alterations, additions or improvements when made to the Demised Premises by the
Lessee shall be at the Lessee's cost and expense. Lessor reserves the right to
undertake the construction of same but at Lessee's expense. Any and all such
alterations, additions or improvements, except removable fixtures and furniture
of the Lessee, shall at once become property of the Lessor and shall be
surrendered to the Lessor upon the termination in any manner of this Lease.
Notwithstanding the foregoing, Lessee shall not perform any repairs,
alterations, modification or maintenance of any type to the Common Areas or any
structural components of the Building, the Demised Premises or the Project. If
any of the Common Areas or any of said structural components are damaged by acts
or due to the negligence of the Lessee, its officers, employees, invitees or
guests, Lessor shall repair same and charge Lessee for the reasonable costs of
repair as Additional Rent.
11
13
E. Legal Use, Insurance Violations and Costs. Lessee will not occupy or use, or
permit any portion of the Demised Premises to be occupied or used for any
business or purpose which is unlawful in part or in whole or deemed by Lessor to
be disreputable in any manner, or extra hazardous, or permit anything to be done
which will in any way increase the rate of insurance on the Project or the
Building and/or its contents. Upon demand Lessee agrees to pay any increase to
Lessor in insurance premiums on the Project or Building caused by Lessee's acts
or conduct of business at the Demised Premises and Project.
F. Laws and Regulations. Lessee will keep and maintain the Demised Premises in a
clean and healthful condition and comply with all laws, ordinances, orders,
rules and regulations (State, Federal, Municipal, and other agencies or bodies
having any jurisdiction thereof) which apply to the Project and rules, orders,
and regulations of the Underwriters Association for the prevention of fires,
with reference to use, conditions or occupancy of the Premised Premises.
G. Indemnity and Insurance.
1. Indemnity. The term "Claims" means all claims, suits, proceeding,
actions, causes of action, responsibility, liability, demands, fines, judgments
and executions of any kind and reasonable legal fees and all costs related
thereto. Lessee hereby indemnifies and agrees to save harmless Lessor and any
Mortgagee of Lessor regarding the Demised Premises from and against any and all
Claims, which either: (i) arise from the possession, use, occupation,
management, or control of and accidents occurring on the Demised Premises, or
any portion thereof; (ii) arise from any act or omission of Lessee or Lessee's
agents, contractors, employees, officers, invitees, or visitors; (iii) result
from any Default, breach, violation or non-performance of this Lease or any
provision hereof to be performed in whole or in part by Lessee; or (iv) result
in injury to person or property or loss of life sustained in or about the
Demised Premises. Lessee shall notify Lessor upon receiving any knowledge or
notice of any Claim and shall defend, with counsel satisfactory to Lessor and
its mortgagee, any Claim proceeding which may be brought against Lessor or any
mortgagee of Lessor with respect to the foregoing or in which they may be
impleaded. Lessee shall pay, satisfy and discharge any judgments, orders and
decrees which may be recovered against Lessor or any mortgagee of Lessor. Lessor
shall not be liable to Lessee or Lessee's agents, employees, officers, invitees
or visitors for any damage to persons or property due to condition, design, or
defect in the Demised Premises, Building or Project or its mechanical systems or
elsewhere in the Demised Premises, Building or Project which may now exist or
hereafter occur, including acts of negligence of co-Lessees or others. Lessee
assumes all risks of damage to persons or property.
2. Insurance.
(A) Comprehensive General Liability Insurance. Lessee shall maintain
and supply certificates of comprehensive general liability insurance coverage in
a combined single limit policy for bodily injury, death and property damage in
the amount of one million ($1,000,000) dollars with an umbrella or excess
liability policy with additional coverage of two million ($2,000,000) dollars.
(B) Fire Insurance. Lessee shall maintain and supply certificates of
Fire Insurance, with the usual extended coverage endorsement and endorsement for
vandalism, malicious mischief, rent continuation insurance and such other
extended coverage endorsements covering all of Lessee's property in the Demised
Premises including but not limited to stock, trade fixtures, furniture,
furnishings, floor covering and equipment and signs and all other property,
installations, betterment's, alterations, additions and improvements made by
Lessee in, on or about the Demised Premises. Said insurance shall be in an
amount of not less than one hundred percent (100%) of the full insurable value
of the items set forth above.
(C) Other Insurance. Lessee shall provide and keep in force other
insurance in amounts that may from time to time be required by Lessor against
other insurable hazards as are commonly insured against for the type of business
activity that Lessee will conduct.
All insurance required of Lessee hereunder shall be in form and from carriers
licensed by in the State of New Jersey satisfactory to Lessor. Each policy shall
contain an express waiver of
12
14
subrogation by the insurance carrier in favor of Lessor, Lessor's agents and
employees, mortgagees and ground lessors, if any; and shall provide that it
shall not be subject to cancellation, termination or material change except
after at least thirty (30) day prior written notice to Lessor from the insurance
carrier. All insurance required of Lessee shall name Lessor and the Lessee as
the insureds as their interests may appear and shall include the holder of any
mortgage on the fee or any underlying or overriding leasehold under a standard
mortgagee clause. Lessee shall furnish Lessor with a manually countersigned
certificate or original signed policy for each type of insurance required
hereunder no less than ten (10) days before Lessee takes possession of the
Demised Premises and annually thereafter. If by any reason of changed economic
conditions or otherwise, the insurance amounts required or referred to in this
Lease become inadequate in Lessor's sole determination, Lessee shall promptly
increase the amounts of such insurance upon Lessor's written request.
H. Building Rules and Regulations. Lessee and Lessee's agents, employees,
invitees and visitors will comply fully with all Rules and Regulations of the
Building which are attached hereto as Exhibit "F". They are made a part hereof
as though fully set out herein. Lessor shall at all times have the right to
reasonably change such Rules and Regulations or to amend them in any reasonable
manner as may be deemed advisable by Lessor for the safety, welfare, order, care
and cleanliness of the Project, Building and the Demised Premises. All changes
and amendments will be sent in writing by Lessor to Lessee and be effective upon
being deposited in the U.S. mail or hand delivered to the Demised Premises by
Lessor. They will thereafter carried out and observed by Lessee.
I. Entry for Repairs, Inspection and Showing. Lessee will permit Lessor, its
employees, officers, agents, contractors or representatives the right to enter
into and upon any and all parts of the Demised Premises, at any time to inspect,
clean, repair, alter or make additions as Lessor may deem necessary or
desirable, and Lessee shall not be entitled to any abatement or reduction of
rent by reason thereof or disruption to Lessee's business caused thereby. Lessor
shall have the right beginning one hundred twenty (120) days prior to the
expiration date of the Lease Term or any Option Term, as applicable, to enter
the Demised Premises for the purpose of showing the Demised Premises to
prospective Lessees. Lessor shall, at all times, have the right to enter the
Demised Premises for the purpose of showing same to any prospective purchaser of
the Project or any part thereof.
J. Nuisance. Lessee will conduct its business, and control its agents,
employees, invitees and visitors at the Project in such a manner as not to
create any nuisance, or interfere with, annoy, or disturb any other Lessee or
Lessor in its management of the Project and Building.
K. Utility Charges. Lessee shall pay all charges incurred for the installation
and the use of utility services at the Demised Premises whether separately
metered to the Demised Premises or not, including, without limitation; the cost
of gas, electricity, water, sewer, telephone and waste disposal. No electric
current or gas lines shall be used except those which are approved by Lessor,
nor shall electric or other wires be brought to additional outlets or electrical
fixtures installed within the Demised Premises except upon the written consent
and approval of the Lessor. Lessee will not overload any of the circuits within
the Demised Premises and shall have no right to use any electric current outside
the Demised Premises. Lessee shall be responsible for complying with any
applicable governmental or Lessor's regulations pertaining to recycling of
garbage or waste from the Demised Premises.
L. Janitorial. The Lessee will not obstruct the hallways or other Common Areas
and will not place refuse outside the Demised Premises except in areas and
receptacles designated by the Lessor for same. Lessee, at its expense, will keep
the interior of the Demised Premises clean and orderly and, if necessary, hire
janitorial services to this end. However, Lessor shall have the right (in order
to insure uniform cleaning, preservation of the Building and systematic and
orderly refuse disposal) at its option to provide janitorial service to the
Lessee for a reasonable fee to be paid by Lessee as Additional Rent and the
alternative right to hire janitorial services for the Project and include same
in the Common Area Maintenance charge calculation. If Lessee does not agree with
the reasonableness of the Lessor's janitorial service fees, Lessee shall so
notify Lessor and thereafter Lessee shall hire its own janitorial services for
the Demised Premises. Thereafter, if Lessor determines in its sole discretion
that the condition of the
13
15
Demised Premises are not up to Lessor's and the Project's reasonable standards,
Lessor shall so notify Lessee and thereafter Lessor shall supply janitorial
services either directly to Lessee at the Demised Premises for which Lessee
shall pay directly Lessor's reasonable fee, or to the project in which event,
Lessor shall include the charges for same in the Common Area Maintenance charge
calculation.
M. Net-Net-Net Lease. Lessee agrees that this Lease Agreement and the Base Rent
hereunder shall be absolutely net to Lessor and that the Lessor shall receive
the rentals herein reserved free from all charges and expenses imposed upon or
by reason of the Demised Premises and the ownership of Lessor, its successors
and assigns and without deduction by way of any claim or set off alleged by
Lessee.
14. Mutual Representations and Covenants. The Lessor and Lessee hereby mutually
represent, warrant and covenant as follows:
A. Condemnation. In the event the whole or any part of the Building other than a
part which does not interfere with the maintenance or operation thereof is taken
or condemned for any public or quasi-public use or purpose, or a conveyance is
made in lieu of such a taking, the Lessor may at its option terminate this Lease
from the time title to or right of possession shall vest in or be taken for such
public or quasi-public use or purpose. Lessor shall be entitled to any and all
income, rent, awards or any interest thereon and compensation for any taking or
conveyance, whether for the whole or a part of the Building, the Demised
Premises or otherwise. Lessee hereby assigns to Lessor all of Lessee's right,
title and interest in and to any and all such claims, awards and compensation,
excluding any award Lessee shall be entitled to claim, prove and receive in the
condemnation proceeding for its relocation or trade fixtures but only if such
award or compensation shall be made by the condemning authority in addition to,
and shall not result in a reduction of, the award and compensation paid by it to
Lessor.
B. Loss or Damage. Lessor shall not be liable or responsible for any loss or
damage to any property or person occasioned by: (i) theft, fire, water, act of
God, public enemy, injunction, riot, strike, insurrection, war, court order,
requisition or order of governmental body or authority, lack of services to
Lessee hereunder; or (ii) any other matter beyond the control of Lessor; or
(iii) for any damage or inconvenience to Lessee which may arise through repair,
modification or alteration of or to any part of the Project, Building, or the
Demised Premises, or their equipment or mechanical systems; or (iv) failure to
make any such repairs; or (v) from any cause whatever unless caused solely by
Lessor's gross negligence.
X. Xxxx for Rent. In consideration of the mutual benefits arising under this
Lease, Lessee does hereby pledge and assign unto Lessor all property of Lessee
now or hereafter placed in or upon the Demised Premises (except such part of any
property or merchandise as maybe exchanged, replaced or sold from time to time
in Lessee's ordinary course of operations or trade). Such property is hereby
subjected to alien in favor of Lessor and shall be and remain subject to such
lien of Lessor for payment of all Base Rent, Tax Rent, Common Area Maintenance
charges. Additional Rent and all other sums agreed to be paid by Lessee herein.
Said lien shall be in addition to and shall supplement any of the Lessor's liens
provided by law. At the time of execution of this Lease or thereafter upon
request, Lessee will execute a UCC-Financing Statement in recordable form and
Lessor may record same.
D. Abandonment. If the Lessee shall abandon or vacate the Demised Premises
before the expiration of the term of this Lease, or shall suffer the Base Rent
or other monies to be paid Lessor to be in arrears, the Lessor may, at its
option, forthwith but upon written notification to Lessee, cancel this Lease. In
which event Lessor may enter the Demised Premises as the agent of the Lessee, by
force or otherwise, without being liable in any way therefore, and relet all or
any part of the Demised Premises with or without any of Lessee's fixtures,
furniture, or other personality that may be therein, all as the agent of the
Lessee and all pursuant to Paragraph 14J hereof.
E. Holding Over. In case of holding over by Lessee after expiration of the Lease
Term or termination of this Lease, Lessee will pay as liquidated damages double
the Base Rent, Additional Rent and other sums due hereunder for the entire
holdover period. Lessee agrees that
14
16
said liquidated damages are a fair and reasonable compensation to Lessor, as
Lessor's actual damages would be difficult to measure with mathematic certainty.
Holding over by Lessee, either with or without consent or acquiescence of
Lessor, shall not operate to extend the Lease for a period longer than one
month; and any holding over with the consent of Lessor in writing shall
thereafter constitute a Lease from month to month only.
F. Fire or Casualty. Lessee shall, in case of fire or other damage, give
immediate notice thereof to Lessor. In the event of damage to the Demised
Premises or Building by fire or other causes resulting from the act, fault or
negligence of Lessee or Lessee's agents, officers, employees, invitees, or
visitors, the same shall be repaired by Lessor but at the expense of Lessee or,
at Lessor's election, by the Lessee but under the direction and supervision of
Lessor. If the Demised Premises shall be partially destroyed by fire or other
casualty so as not to render the Demised Premises unLesseeable in Lessor's sole
discretion, all payments to be made to the Lessor herein recited shall not
cease. In case of the total destruction of the Demised Premises without act,
fault or negligence of Lessee, its agents, officers, employees, invitees, or
visitors, or if from such cause the same shall be so damaged that Lessor shall
decide in its sole discretion not to rebuild, then Lessor shall so notify Lessee
of same and all Base Rent and other payments due up to the time of such
destruction or termination shall be paid by Lessee, and Lessee agrees to quit
and surrender the Demised Premises and thereafter this Lease shall cease and
come to an end.
G. Attorney Fees and Costs. In the event of any litigation between the parties,
or if the Lessor in its sole discretion determines to utilize the services of
any of its attorneys (including in-house counsel) for any purpose related to an
actual or alleged default of Lessee under this Lease, the Lessee upon demand
shall pay the Lessor's reasonable attorney's fees and court and other collection
and litigation costs.
H. Amendment or Modification to this Lease. This Agreement may not be altered,
changed, or amended, except by an instrument in writing, signed by both parties
hereto.
I. Transfer of Lessor's Rights. Lessor shall have the right to transfer and
assign in whole or in part, its rights and obligations hereunder. Such transfers
or assignments may be made by Lessor in anyway, and howsoever made, are to be
recognized by Lessee. Lessee agrees to execute such documents required by Lessor
or any transferee or assignee of Lessor's rights, including documents evidencing
attornment of this Lease to such transferee or assignee. Upon transferring
Lessee's security deposit to Lessor's transferee or assignee, Lessor shall have
no further liability to Lessee thereafter and Lessee shall look only to Lessor's
transferee or assignee for the return of Lessee's security deposit and
performance of all of the Lessor's obligations and duties herein set forth.
J. Default by Lessee. Default on the part of Lessee in paying the Base Rent or
other monies due Lessor or any installment thereof, or default on Lessee's part
in keeping or performing any other term, covenant or condition of this Lease,
shall constitute authorization to the Lessor, at its option at any time after
such default to declare this Lease terminated, and upon the occurrence of any
one or more of such acts of default, Lessor immediately, or at any time
thereafter, may at Lessor's option:
1. Right to Re-Enter. Re-enter the Demised Premises and remove all persons
and property therefrom by appropriate legal process or otherwise, and without
prejudice to any of its other legal rights. All claims for damages by Lessee or
others claiming under Lessee by reason of such re-entry are expressly waived, as
also are all claims for damages by reason of any distress warrants or
proceedings by way of sequestration which Lessor may employ to recover monies
due it, or possession of said premises.
2. Right to Relet. Relet the Demised Premises or any part or parts
thereof, either as agent for Lessee or otherwise, and receive the rents
therefore and apply same, (i) to the payment of such expenses, reasonable
attorney fees and costs, as Lessor may have incurred in re-entering and making
such repairs and alterations as may be necessary in order to relet the Demised
Premises, and (ii) to the payment of monies due from Lessee hereunder. The
Lessee shall remain liable for such monies as may be in arrears and any
additional monies as may accrue subsequent
15
17
to the re-entry by Lessor, to the extent of the difference between the monies
reserved hereunder to Lessor, and the monies, if any, received by Lessor during
the remainder of the unexpired term of this Lease, after deducting the
aforementioned expenses, fees and costs. If payment of the full monies herein
provided shall not be realized by Lessor over and above the expenses to Lessor
in such reletting, including but not limited to, the cost of renovating,
altering and decorating for the new occupant, the Lessee shall pay any
deficiency to Lessor and Lessor may xxx Lessee for monies due as provided
herein.
3. Notice of Default, Right to Cure. Lessor shall not have the right to
declare this Lease terminated by reason of Lessee's default unless it gives
Lessee 10 day written notice of any default not pertaining to a payment
provision, if Lessee fully cures all defaults in said 10 day period. However, no
notice shall be necessary in the case of a default in payment of any Base Rent
or Additional Rent or other payment required hereunder for more than ten (10)
days after the due date. In the event of a default hereunder entitling the
Lessor to terminate this Lease, the Lessor may declare all Base Rent and other
monies reserved and due for the entire Lease Term provided for herein
immediately due and payable.
4. Remedies Cumulative. All the rights and remedies given Lessor in
this Lease and all other rights and remedies allowed at law or equity are
reserved and conferred upon the Lessor as distinct, separate, and cumulative
remedies, and no one of them, whether exercised by the Lessor or not, shall be
deemed to be in exclusion of any of the others.
K. Waiver. Failure of Lessor to declare any default immediately upon occurrence
thereof or delay in taking any action in connection therewith shall not
constitute any waiver of such default, but Lessor shall have the right to
declare any such default at any time and take such action as authorized
hereunder or as might be lawful either in law or in equity. Acceptance by Lessor
of any full or partial payment of monies due, or any check in tender of payment
due shall not be deemed an accord and satisfaction regarding any dispute between
the parties.
L. Possession. If for any reason, the Demised Premises shall not be ready for
occupancy by Lessee at the time of commencement of the Lease Term (which for
purposes hereof is defined as Lessor's failure to substantially complete the
work required of Lessor as per Articles 10 and 11 hereof), this Lease shall not
be affected thereby, nor shall Lessee have any claim against Lessor by reason
thereof, however, no monies shall be payable by Lessee to Lessor under this
Lease for the period of time during which the Demised Premises are not ready for
occupancy (as defined above) and all claims against Lessor for damages arising
out of such delay are waived and released by Lessee.
M. Bankruptcy. If Chapter 11 or any other voluntary bankruptcy proceedings are
instituted by Lessee, or if involuntary proceedings are instituted by anyone
else to adjudge Lessee a bankrupt or to have a fiduciary appointed over the
assets of Lessee, or if Lessee makes an assignment for the benefit of Lessee's
creditors, or if execution is issued against it, or if the interest of Lessee in
this Lease passes by operation of law to any person other than Lessee; this
Lease may, at the option of Lessor, be terminated by notice to Lessee.
N. Assignment by Lessor. This Lease shall also inure to the benefit of the
successors and assigns of Lessor; and with the prior written consent of Lessor
(which may be refused for any reason), but not otherwise, to the benefit of the
heirs, executors, and or administrators, successors and assigns of Lessee as
applicable.
O. Pronouns and Genders. When this Lease is executed by more than one person it
shall be construed as though Lessee were written "Lessees" and the words in
their number were changed to correspond; and pronouns of the masculine gender,
whenever used herein shall include persons of female sex, and corporations and
associations of every kind and character.
P. Subordination. This Lease is hereby made expressly subject and subordinate at
all times to any and all mortgages, deeds of trust and ground or underlying
leases affecting the Demised Premises which have been executed and delivered, or
which may at any time hereafter be executed and delivered, and any and all
advances made or to be made under said mortgages, deeds of trust, ground or
underlying leases. Within five (5) days of request by Lessor, Lessee
16
18
agrees to execute any instrument or instruments which the Lessor may deem
necessary or desirable to evidence or to give effect to the subordination of
this Lease to any or all such mortgages, deeds of trust, ground or underlying
leases. In the event the Lessee shall refuse after reasonable notice to execute
such instrument or instruments, Lessor, in addition to any other remedies
available to it, may execute and acknowledge and deliver such instrument, as
attorney-in-fact of the Lessee and in the Lessee's name and place, and for such
purpose the Lessee does hereby irrevocably appoint the Lessor, its successors or
assigns as its attorney-in-fact. Said appointment shall further remain
unaffected by any incompetency or disability of any individual Lessee.
Q. Force Majeure. Except as to monies to be paid to Lessor pursuant hereto, the
time for performance by Lessor or Lessee of any term, provision or covenant of
this Lease Agreement shall be deemed extended by the amount of any time lost due
to delays resulting from acts of God, strikes, unavailability of building
materials, civil riots, floods, material or labor restrictions or shortages, by
governmental authority, moratoria of any type and any other cause not within the
control of Lessor which affects construction of the Project, Demised Premises or
the Commencement of the Lease Term.
R. Time of Essence. It is understood and agreed between the parties hereto that
time is of the essence of this Lease and this applies to all terms and
conditions contained herein except that the Rent Commencement Date may vary due
to circumstances involving approvals, etc. and except as set forth in Article
14Q hereof.
S. Transmittal. This Lease is transmitted for examination only and does not
constitute an offer to Lease. This Lease shall become effective only upon
execution and unconditional delivery of same by Lessor and Lessee.
15. Mechanic's Liens. It is expressly understood that in no event shall
mechanic's liens attach to the Demised Premises by virtue of any alterations,
improvements, repairs or other activities performed by, at the direction of
Lessee or its agents, employees, officers or contractors. Lessee shall post with
Lessor evidence of surety, or discharge any such lien within ten (10) days of
the filing of any such lien. If Lessee does not do so, Lessor shall have the
option of paying or discharging any lien which is so filed and the costs of same
together with reasonable legal fees shall be charged to Lessee as Additional
Rent.
16. Estoppel Certificates. Lessee shall, at any time and from time to time,
within ten (10) days following notice by Lessor, execute, acknowledge and
deliver to the Lessor a statement in writing certifying that this Lease is
unmodified and in full force and effect, or if' there shall have been any
modification(s) that the same is in full force and effect as modified and
stating the modification(s) and the date to which Base Rent and Additional Rent
have been paid in advance, and stating whether or not to the best knowledge of
the signer of such certificate that the Lessee is in default and, if so,
specifying each such default.
17. Waiver of Jury Trial. Lessor and Lessee shall and they hereby do waive trial
by jury in any action, proceeding or counterclaim brought by either of them
against the other on any matters arising out of or in anyway connected with this
Lease, the relationship of Lessor and Lessee, Lessee's use or occupancy of the
Demised Premises and any emergency, common law or statutory remedy. Lessee
further agrees that it shall not interpose any counterclaim(s) in a summary
manner or in any action based upon hold over or non-payment of Base Rent or
Additional Rent due Lessor hereunder.
18. Limits of Lessor's Liability. Notwithstanding any provision to the contrary
herein, Lessee shall look solely to the equity of Lessor in and to the Building
within which the Demised Premises are located in the event of an actual or
alleged breach or default by Lessor of the provisions of this Lease, and Lessee
agrees that the liability of Lessor under this Lease shall not exceed the value
of such equity of Lessor in the Building within which the Demised Premises forms
a part. No other property or assets of Lessor shall be subject to levy,
execution or enforcement procedures for the satisfaction of any judgment or
process arising out of, or in connection with this Lease or its breach; and if
Lessee shall acquire a lien on any such other
17
19
property or assets of Lessor by judgment or otherwise, Lessee shall promptly
release such lien on such other property or assets by executing, acknowledging
and delivering to the Lessor an instrument to that effect prepared by Lessor's
attorneys.
19. Severability. In the event of the invalidity of any provision hereof, same
shall be deemed stricken from this Lease which shall continue in full force and
effect as if the offending provisions wherever part hereof.
20. Notices. Any notice, demand, waiver, approval or consent hereunder shall be
in writing, signed by all parties hereto and shall be deemed duly served if
mailed by registered or certified mail, return receipt requested, addressed, if
to Lessee, at the address of the Demised Premises or at such other address as
Lessee shall have last designated by written notice to Lessor, and if addressed
to Lessor, to it at the address of Lessor set forth herein or such other address
as Lessor shall have last designated by written notice to Lessee. Any such
notice, demand, waiver, approval or consent may also be hand delivered and be
deemed served the earlier of actual receipt thereof or two days after mailing.
21. Relationship of Parties. This Lease creates only a Lessor and Lessee
relationship between the parties and under no circumstances shall any
partnership, joint venture or agency or any other relationship be created by
virtue of this Lease.
22. Memorandum of Lease. Lessee shall not record this Lease. However, Lessor
shall have the right to require Lessee to execute, acknowledge and deliver at
any time after the date of this Lease a Memorandum of this Lease and Lessor
shall have the right to record same. The Memorandum of Lease shall contain a
clause to the effect that the Lessor may at any time there is a default
hereunder and Lessor has terminated this Lease, file in the public records, an
Affidavit to that effect so as to evidence that the Lessee's interest in the
Demised Premises was terminated.
23. [Intentionally left blank]
24. Parking. Lessee, its employees and agents shall park their motor vehicles
only in those portions of the parking area designated for that purpose by
Lessor. Lessee shall, upon written notice from Lessor, within ten (10) days,
furnish Lessor, or its authorized agent, the state automobile license plate
numbers assigned to all motor vehicles used by its employees or others who will
be regularly present at the Demised Premises. Lessee shall not at any time park
any trucks or any delivery vehicles except in those areas specifically
designated as truck areas.
25. Sign. Lessor shall provide a suitable identification sign or signs of such
size, design and character as shall fit in the sign which Lessor erects for the
Project or Building at Lessee's sole cost and expense which will be due and
payable within ten (10) days after installation of the sign as an item of
Additional Rent.
26. Brokerage. Lessee represents that it has had no dealings with any real
estate broker, salesperson or agent or others in connection with this Lease
other than The Xxxxxxx Organization, and Lessee covenants to pay, hold harmless
and indemnify Lessor from and against any and all claims for costs, expenses,
for any fees, compensation or commissions to any broker, salesperson, agent or
others in respect of this Lease or the negotiation hereof with whom Lessee is
alleged to have had dealings.
27. Late Payments. In the event Lessee fails to pay its rent or additional rent
within five (5) calendar days following the due date, Lessee shall pay a late
charge equal to the greater of (i) five (5%) percent of such overdue payment or
(ii) $50.00. Lessee agrees that said charge is reasonable and said amount shall
compensate Lessor for its administrative cost. In addition, at the option of
Lessor, and in addition to any and all other remedies reserved to Lessor herein
or
18
20
by law, the Lessor may collect interest on any payments due hereunder from
Lessee hereunder, whether in the form of Base Rent or Additional Rent, at the
legal maximum rate of interest per annum, due and payable after the due date of
any such payment due from Lessee to Lessor. Interest and late charges due may be
billed by Lessor to Lessee after acceptance of payment of the principal amount
due without Lessor waiving its right to collect interest.
28. Headings. Paragraph headings are used herein for identification only and
shall not in any way affect the interpretation of the Lease.
29. Integration. This Agreement states the entire agreement between the parties
and incorporates all prior and contemporaneous agreements and representations
with respect to the subject matter hereof. No alteration, modification,
termination, waiver or release, in whole or in part of this lease, shall be
effective unless in writing, signed by a duly authorized representative of each
of the parties hereto or their successors or assigns.
30. Governing Law. This Lease Agreement shall be construed under the laws of the
State of New Jersey.
31. No Third Party Rights. Nothing in this Agreement shall be interpreted as
conferring any rights on any party other than the parties hereto.
32. Shift Premises. Lessor hereby reserves the right (and Lessee hereby
acknowledges and consents thereto) to shift the location of the Demised Premises
to an alternate location within the Complex.
33. Environmental Law Compliance.
(A) During the term of this Lease, Lessee shall, at Lessee's own expense,
comply with all Federal or State laws, rules and regulations pertaining to the
environment, hazardous substances or hazardous wastes as defined by law and the
Industrial site recovery act, N.J.S.A. 13:1K-6 et seq. and the regulations
promulgated thereunder and any successor legislation and regulations ("ISRA").
If required hereunder, Lessee shall, at Lessee's own expense, make all
submissions to, provide all information to, and comply with all requirements of
the various governmental agencies or bodies having jurisdiction, including but
not limited to, the Bureau of Industrial Site Evaluation or its
successor("Bureau") of the New Jersey Department of Environmental Protection("NJ
DEP"). Lessee's obligation under ISRA shall arise only if there is a closing,
termination or transferring of operations of any industrial establishment during
or by reason of the termination or cancellation of this Lease pursuant to ISRA,
or if the actions or in action's of Lessee or its agents at the Demised Premises
either directly or indirectly results in an event which, by the occurrence of
same, requires compliance with ISRA or the regulations thereunder.
(B) Provided this Lease is not previously canceled or terminated by either
party or by operation of law, Lessee shall commence its submission to the Bureau
in anticipation of the end of the Lease Term or Option Term, as applicable, no
later than six (6) months prior to the expiration of the Lease Term or Option
Term. Lessee shall promptly furnish to Lessor true and complete copies of all
documents, submissions, correspondence and oral or written communications by the
Bureau to Lessee or its agents or visa versa. Lessee shall also promptly furnish
to Lessor true and complete copies of all test results and reports, if any,
obtained and prepared at and around the Demised Premises. Lessee shall notify
Lessor in advance of any meetings scheduled between Lessee or its agents and the
NJ DEP, and Lessor may attend all such meetings.
(C) Should Lessee's operations at the Demised Premises be outside of those
industrial operations covered by ISRA, Lessee shall, at Lessee's own expense,
obtain a letter of non-applicability or de minimus quantity exemption from the
Bureau prior to the expiration of the Lease Term or its earlier cancellation and
shall promptly provide a copy of Lessee's submission and the original of the
Bureau's exemption letter to Lessor.
19
21
(D) Should NJ DEP determine that a cleanup plan be prepared and undertaken
because of a spill or discharge of a hazardous substance or waste at the Demised
Premises which occurred during the Lease Term or any Option Term, Lessee shall,
at Lessee's own expense, promptly take any necessary samples and prepare and
submit the required cleanup plan and financial assurance, and shall promptly
carry out the approved plan.
(E) If Lessee fails to comply with any environmental law, rule or
regulation; or fails to obtain either: (i) a non-applicability letter; (ii) a de
minimus quantity exemption; (iii) a negative declaration; or (iv) final approval
of cleanup; (collectively referred to as "ISRA Clearance") from NJ DEP; or fails
to clean up the Demised Premises pursuant to the above prior to the expiration
of the Lease Term, then Lessor shall have the option either to consider the
Lease as having ended or to treat Lessee as a holdover Lessee. If Lessor
considers the lease as having ended, then Lessee shall nevertheless be obligated
to promptly obtain ISRA Clearance and to fulfill the obligation set forth above
regarding compliance with applicable environmental laws, rules and regulations..
If Lessor treats Lessee as a holdover Lessee, then Lessee shall pay monthly to
Lessor double the Base Rent and Additional Rent which Lessee would otherwise
have paid, until such time as Lessee obtains ISRA Clearance and fulfills its
obligations above, and during the holdover period all of the terms of this Lease
shall remain in full force and effect.
(F) For any ISRA or other submittals to environmental authorities
undertaken by Lessor or its agents, at no expense to Lessor, Lessee shall
promptly provide all information required or requested by Lessor for Lessor's
preparation of any ISRA or other environmental submission and shall promptly
sign such affidavits and submissions when requested or required by Lessor, if
they are correct.
(G) Lessee represents and warrants to Lessor that Lessee intends to use
the premises only for the uses permitted in this Lease, which operations have
the Standard Industrial Classification ("S.I.C.") numbers as defined in the most
recent edition of the SIC manual published by the Federal Executive Office of
the President, Office of Management and Budget as set forth in the Summary of
Basic Lease Provisions hereof. Lessee's use of the Demised Premises shall be
restricted to said uses only unless Lessee obtains Lessor's prior written
consent to any change in use. Lessee shall notify Lessor as to any changes in
Lessee's overall operation, S.I.C. number or use during the Lease Term.
(H) Lessee shall permit Lessor and Lessor's agents and employees access to
the Demised Premises for the purposes of environmental inspections and sampling
during regular business hours, or during other hours in the event of any
emergency. Lessee shall not restrict access to any part of the Demised Premises,
and Lessee shall not impose any conditions to access.
(I) Lessee shall indemnify, defend and hold Lessor harmless from and
against all claims, fines, suits, procedures, actions, proceedings, liabilities,
losses, damages, penalties and costs, foreseen and unforeseen, including
counsel, engineering and other professional or expert fees which Lessor may
incur by reason of Lessee's action or non-action with regard to Lessee's
obligations under this Article and spills or discharges of hazardous substances
or wastes at the Demised Premises during Lessee's occupancy of same and Lessee's
failure to provide all information required by any environmental law or NJ DEP.
This Article shall survive the expiration or earlier termination of this Lease.
Lessee's failure to abide by the terms of this Article shall be restrainable by
injunction.
(J) Lessee shall promptly: (i) supply Lessor with copies of all notices,
reports, correspondence and submissions made by Lessee to any local, state or
federal authority which requires submission of any information concerning
environmental matters or hazardous wastes or substances; and (ii) notify Lessor
as to any liens threatened or attached against property of Lessee or the Demised
Premises pursuant to any environmental law, rule or regulation. The event that
such a lien in field against the Demised Premises, then Lessee shall, within
thirty days from the date that the lien is placed against the Demised Premises
either pay the claim and remove the lien, or furnish either a bond of cash
deposit in the amount of the claim out of which the lien arises, or other
security satisfactory to the Lessor in an amount sufficient to discharge the
claim out of which the lien arises.
20
22
(K) Condition Precedent to Assignment and Sublease Rights, if any. If
Lessee is permitted to assign or sublease the Demised Premises pursuant to this
Lease Agreement, then as a condition precedent to Lessee's right to sublease the
Demised Premises or to assign this Lease, if any, Lessee shall, at Lessee's own
expense, first comply with ISRA and fulfill all of Lessee's environmental
obligations under this Lease pursuant to Article 32 which also arise upon
termination of Lessee's Lease Term.
34. Confidentiality. Lessee shall not discuss, divulge, reveal or
otherwise disclose the terms of this Lease to any entity or individual,
including but not limited to information relating to Rent, except in the
following contexts: (i) in compliance with Lessor's request; (ii) to Lessee's
accountant and/or attorney (who shall be bound by the confidentiality provisions
of this Lease); (iii) on Lessee's tax return; or (iv) in Lessee's financial
statements. Aside from the foregoing exceptions, neither Lessee nor Lessee's
employees, agents or contractors shall discuss, divulge, reveal or otherwise
disclose any terms of this Lease without the prior written consent of Lessor in
each instance.
21
23
IN WITNESS thereof the parties have set their hands and seals hereto the day
first written above.
ATTEST/WITNESS: LESSOR: TEN THIRTY-FIVE ASSOCIATES,
LIMITED PARTNERSHIP, BY X. XXXXXXXXX
INVESTMENT PROPERTIES, INC., ITS AGENT
BY:
------------------------ ---------------------------
DATE SIGNED:
------------------------
(Corp. Seal)
ATTEST/WITNESS LESSEE: MILLENIUM CELL, LLC
/s/ illegible BY: /s/ illegible
------------------------ ---------------------------
DATE SIGNED:
6/9/99
------------------------
(Corp. Seal)
22
24
(ACKNOWLEDGMENT FOR CORPORATION)
STATE OF NEW YORK
SS.:
COUNTY OF NEW YORK
BE IT REMEMBERED, that on this 10 day of June, 1999, before me, the subscriber,
a Notary Public of the State of New York, personally appeared Xxxxxxx X Xxxxxxx,
who being by me duly sworn on his oath, doth depose and make proof to my
satisfaction that he is the _____________________________ Secretary of Millenium
Cell LLC, the Lessee named in the within instrument; that Xxxxxx X. Xxxxxxxx is
Vice President of said corporation; that the execution of this Lease was
approved by the resolution of the board of directors of said corporation; that
deponent well knows the corporate seal of said corporation; and the seal affixed
to this Lease is the corporate seal and was thereto affixed and said instrument
signed and delivered by said Xxxxxx X. Xxxxxxxx, Vice President, as and for his
voluntary act and deed and as for the voluntary act and deed of said
corporation, in presence of deponent, who thereupon subscribed his name thereto
as witness.
/s/ Xxxxxxx X. Xxxxxxx
----------------------------
Secretary
Subscribed and sworn to before me, at New York City, on the date aforesaid.
/s/ Xxxxx X. XxXxxxxx
---------------------------
Notary Public
XXXXX X. XxXXXXXX
NOTARY PUBLIC, State of New York
No. 00-0000000
Qualified in New York County
Term Expires December 31, 2000
(Notarial Seal)
23
25
(ACKNOWLEDGMENT FOR INDIVIDUAL)
STATE OF ________________
SS.:
COUNTY OF ______________
BE IT REMEMBERED, that on this ________ day of __________, 199_, before me, the
subscriber, ___________________________________, personally appeared
_____________________________________________________, the person named in and
who executed the within instrument; and thereupon _____________________________
acknowledged that ___________________________ signed, sealed and delivered the
same as _______________________ act and deed, for the uses and purposes there in
expressed.
------------------------------------
24
