FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment is made as of October 10, 2000 among FIRETECTOR INC.,
a Delaware corporation (the "Company"); GENERAL SOUND (TEXAS) COMPANY, a
Delaware corporation ("General"); XXXXX SYSTEMS INC., a New York corporation
("Xxxxx"); and PYROTECH SERVICE INC., a New York corporation ("Pyrotech" and
collectively with the Company, General and Xxxxx, the "Borrowers") as
co-borrowers and CITIZENS BUSINESS CREDIT COMPANY, a division of Citizens
Leasing Corporation, a Rhode Island corporation (hereinafter referred to as
"Citizens") as lender.
WHEREAS, the Borrowers and Citizens are parties to a Credit Agreement dated as
June 28, 1998 (as amended, the "Credit Agreement").
WHEREAS, Borrowers and Citizens have agreed to certain amendments;
NOW, THEREFORE, the parties agree as follows:
1. Section 1.02 (a) Revolving Credit is amended by substituting "December 31,
2004" for "June 23, 2001" as the Maturity Date.
2. Section 1.02(b) Borrowing Base. The definition of "Qualified Inventory" is
amended in its entirety to read as follows:
"Qualified Inventory" means inventory (a) owned by the Company, Xxxxx or
Pyrotech (b) located at facilities of the Borrower which owns the inventory
(c) subject to a first priority perfected security interest in favor of
Citizens (d) valued at the lower of cost or market on a first in, first out
basis, (e) consisting of finished goods saleable in the ordinary course of
such Borrower's business (excluding samples) or purchased raw materia1s or
parts which are to processed into finished goods (excluding any raw
materials or purchased parts in the process of conversion to finished
goods).
3. Section 1.08 Audit Expenses is amended in its entirety to read as follows:
"The Borrowers shall pay Citizens on demand Citizen's customary fee for
audit reviews by employees of Citizens (currently $600/per man-day plus
out-of-pocket expenses). Prior to the occurrence of an Event of Default,
Citizens will not seek reimbursement of audit expenses in excess of $12,000
during any 365 day period."
4. The First Amendment shall be effective upon signature by the parties and
payment to Citizens of an amendment fee of $l5,000.
5. Except as set forth in this First Amendment, the Credit Agreement remains
in full force and effect.
IN W1TNESS WHEREOF, the parties hereto have executed this First Amendment
under seal as of the date first above written.
BORROWERS:
FIRETECTOR INC.
By: ...................................
Name:
Title:
GENERAL SOUND (TEXAS) COMPANY
By: ...................................
Name:
Title:
XXXXX SYSTEMS INC.
By: ...................................
Name:
Title:
PYROTECH SERVICE INC.
By: ...................................
Name:
Title:
LENDER:
CITIZENS BUSINESS CREDIT COMPANY
By: ...................................
Name:
Title:
RIDER TO LOFT LEASE BETWEEN
FIRST INDUSTRIAL., L. P. , AS LANDLORD
AND
XXXXX SYSTEMS, INC., AS TENANT
41st RIDER CONTROLS:
In case of a conflict between the provisions of this rider, and the printed
provisions of this lease, the provisions of this rider shall prevail.
42nd ADDITIONAL RENT / OPERATING EXPENSES:
Any sums of money required to be paid under this lease by Tenant in addition to
the rent herein provided, shall be deemed "additional rent due and payable." It
shall be paid after demand therefore with the rent next due or as may be
otherwise provided herein. Such additional rent shall be collectible in the same
manner and with the same remedies as if they had been rents originally reserved
herein. Tenant's obligation to pay additional rent shall survive the earlier
termination and/or expiration of the term of the lease. If Landlord receives
from Tenant any payment less than the sum of the annual rental rate, additional
rent, and other charges then due and owing, Landlord, in its sole discretion,
may allocate such payment in whole or in part to any annual rental rate, any
additional rent, and/or other charge to any combination thereof. Landlord's
failure to deliver to Tenant a statement showing Tenant liability for additional
rent for any portion of the term of this lease during the term of this lease
shall neither prejudice or waive Landlord's right to deliver any such statement
for a subsequent period or to include in such subsequent period a previous
period.
43rd LATE CHARGE/RETURNED CHECK CHARGE:
(a) Tenant shall pay a late charge of 4% of any payment of rent or additional
rent or any other sum of money or payment not received by Landlord within 10
days after the same shall become due. Such late charge shall be in addition to
all of Landlord's other rights and remedies hereunder in the event of Tenant's
default and shall be payable as additional rent.
(b) If any check tendered by Tenant to Landlord is returned by the bank for
non-payment for any reason whatsoever, there will be an administrative charge of
$50.00 per check, each time it is returned which amount shall be deemed
additional rent.
44th TAXES:
(a) In the event that the Real Estate Taxes payable with respect to the building
and the land on which it is located for any tax year in which this lease shall
be in effect, shall be greater than the Real Estate Taxes for the base year, the
Tenant shall pay to Landlord on the first day of the month after billing by
Landlord to Tenant, as additional rent, an amount equal to seven and fifteen
one-hundredths (7.15%) percent of the difference between the amount of such tax
or installment for the current year and the corresponding tax or installment
paid for the base year. Any increase in Real Estate Taxes due to an increase in
the assessed valuation of the land or building of which the demised premises
forms a part by reason of improvements made by a tenant shall be borne entirely
by such tenant. Any increase in Real Estate Taxes due to an increase in the
assessed valuation of the land or building by reason of improvements made by
Tenant shall be borne by Tenant and paid by Tenant upon demand by Landlord. The
base year for this tax increase computation shall be the Fiscal Year 1999/2000
for School Taxes and the Fiscal Year 2000 for General/Town Taxes.
(b) Real Estate Taxes shall mean any and all taxes, assessments, sewer and water
rents, rates and charges, license fees, impositions, liens, fines, penalties and
all other municipal and governmental charges of any nature whatsoever (except
only inheritance and estate taxes and income taxes not herein expressly agreed
to be paid by Tenant), whether general or special; ordinary or extraordinary
foreseen or unforeseen which may presently or in the future become due or
payable or which may be levied, assessed or imposed by any taxing authority on
or with respect to all or any part of the land and building of which the demised
premises forms a part, or upon the estate or interest of Landlord in the land or
building of which the demised premises forms a part, or any part thereof,
including without limitation, all taxes and assessments for improving any
streets, alleys, sidewalks, sidewalk vaults and alley vaults, if any.
45th INSURANCE:
(a) Tenant shall, at its sole cost and expense, at all times during the term of
this lease (and any extensions thereof) obtain and pay for and maintain in full
force and effect the insurance policy or policies described in Schedule D
attached hereto. Certified copies of all insurance policies required pursuant to
this lease (or certificates thereof, in form and substance acceptable to
Landlord), shall be delivered to Landlord not less than ten (10) days prior to
the commencement of the term of this lease. If Tenant fails to submit such
policies or certificates to Landlord within the specified time, or otherwise
fails to obtain and maintain insurance coverages in accordance with this
paragraph, then Landlord, at Landlord's sole option, may, but shall not be
obligated to, procure such insurance on behalf of, and at the expense of,
Tenant. Tenant shall reimburse Landlord for such amounts upon demand, it being
understood that any such sums for which Tenant is required to reimburse Landlord
shall constitute additional rent.
(b) Tenant is hereby notified that until further notice from Landlord, the name
and address of the holder of the required insurance certificate and all
additional insureds/loss payees are set forth in Schedule "E".
46th TENANT TO PROVIDE FINANCIAL STATEMENT:
Tenant agrees that upon request by Landlord or Agent it will furnish to Landlord
and to prospective or current mortgagees of the building, and/or land of which
it forms a part, such latest available financial statement as such current or
prospective mortgagees may request.
47th BROKER:
Each party to this lease represents and warrants that no broker other than
XXXXXX & XXXXXXX, INC. was involved in this leasing. Each party to this lease
agrees to indemnify, defend, and hold harmless the other party for any and all
costs, expenses, and liability including legal fees incurred by the other party
as a result of a breach of the aforementioned warranty or any inaccuracy or
alleged inaccuracy of the above representation. Landlord agrees to pay the
broker the brokerage commission earned pursuant to a separate agreement with
said broker.
48th TENANT'S REPAIRS/MAINTENANCE:
(a) TENANT REPAIRS:
(i) Tenant agrees that, from and after the commencement date of the term of this
lease and until the end of the term, it will, at its expense, keep and maintain
in good order, condition and repair (whether extraordinary, foreseen or
unforeseen), the interior of the demised premises and every part thereof,
including but not limited to, all heating, ventilation and air conditioning
equipment located in or servicing the demised premises (including the air
conditioner compressor, lines and ducts which may be located elsewhere in the
building or on the land), interior plumbing up to the exterior walls of the
demised premises, including changes or additions to the sprinkler system and
interior electrical repairs, and plate glass, excluding those repairs and
replacements for which Landlord is responsible, as herein expressly provided in
paragraph 49th below. In addition, Tenant shall make all repairs and
replacements of any kind and nature necessitated by any act or neglect of
Tenant, its contractors, its servants, agents or employees. Tenant shall
maintain service contracts with contractors approved by Landlord for the
maintenance of the heating and air condition systems throughout the term of this
lease and shall provide Landlord with copies of all such contracts.
(ii) If Tenant does not maintain or repair such elements as provided in this
Article, the Landlord may, but shall not be obligated to, after not less than
five (5) days additional notice (except in the case of emergency) make the
necessary repair or cure the defective condition at the expense of the Tenant
and the Tenant shall reimburse Landlord promptly upon request therefor. The
amount of such reimbursement shall be considered additional rent upon the
failure of the Tenant to reimburse Landlord within five (5) days of demand
thereof.
(b) VANDALISM:
Notwithstanding any contrary provision of this lease, Tenant, at its expense (to
the extent covered by its insurance), shall make any and all repairs including
structural repairs to the demised premises which may be necessitated by any
break-in, forcible entry or other trespass into or upon the demised premises,
regardless of whether or not such entry and damage is caused by the negligence
or fault of Tenant or occurs during or after business hours.
(c) WINDOWS:
Tenant shall, at its own cost and expense, clean and maintain, including repair
or replacement when necessary, all windows in the demised premises.
(d) RUBBISH REMOVAL AND REFUSE PICK-UP:
Tenant shall independently contract for and provide for the removal at least
biweekly of all garbage, refuse and rubbish, at its cost and expense. Garbage
and refuse shall be kept in containers or dumpsters to be placed in an area
designated by Landlord for such purpose. Garbage storage and removal shall be
subject to such rules and regulations as, in the reasonable judgment of
Landlord, are necessary for the proper operation of the Property.
(e) BUILDING CLEANING:
Tenant shall, at its cost and expense, take good care of and keep clean and free
from debris both the interior and exterior area in front of the demised premises
including exterior sidewalks adjacent the demised premises in a manner
reasonably satisfactory to Landlord.
49th LANDLORD'S REPAIRS, MAINTENANCE AND CLEANING:
(a) During the term of this lease, the Landlord shall make all structural
repairs to the demised premises except those which shall have been occasioned by
the acts of omission or commission of the Tenant, its agents, employees or
invitees. Tenant shall promptly give written notice to Landlord with respect to
any damages to the interior or exterior of the demised premises. Structural
repairs are hereby defined to be and limited to repairs to the roof deck, to the
bearing walls and foundation and major repairs and replacement to the heating,
air conditioning, ventilation, plumbing and electrical systems.
(b) Landlord shall, at its expense, maintain insurance for said building in such
amounts as Landlord deems appropriate, perform landscaping, snow removal and
parking lot maintenance and maintain public hallways and public portions of
building.
(c) STANDARD OF SERVICE:
The quality and level of service to be provided by Landlord shall be in
accordance with Landlord's standard for the Property.
50th LANDLORD'S WORK:
Landlord shall, if required hereunder, alter the demised' premises for the
Tenant in accordance with and subject to the terms of Landlord's Work Criteria
annexed hereto as Schedule B. Tenant shall submit a written list of incomplete
and incorrect items which Landlord is obligated to complete or correct within
ten (10) days after substantial completion of such work except for seasonable
items which shall be submitted to Landlord within thirty (30) days after same
are reasonably discoverable by Tenant. Failure to submit such list within the
time stated shall be deemed acceptance by Tenant of such incorrect or incomplete
items "as is". In all other respects, Tenant accepts the demised premises in "as
is" condition and Tenant acknowledges that Landlord makes no representation as
to the condition thereof, except as herein set forth.
5lst TENANT RESTRICTIONS:
(a) STORAGE/PARKING:
Tenant will not, at any time, use or occupy the area outside the demised
premises for storage of materials or for the overnight parking of vehicles of
any kind without the landlord's prior written consent which may be arbitrarily
withheld. Furthermore, Tenant will not at any time park vehicles in any manner
which will obstruct or interfere with the ingress or egress of other vehicles or
with the use by other tenants of their respective parking and loading facilities
or areas or cause any other parking problems.
(b) Tenant shall have the right to use in common with the other tenants in the
building parking spaces as provided by Landlord in the parking lot for the
parking of Tenant's automobiles and those of its employees and invitees subject
to the reasonable rules and regulations now or hereafter adopted by the
Landlord.
(c) NOISE/ODORS:
Tenant covenants and agrees that throughout the demised term it shall not
suffer, allow or permit any offensive or obnoxious vibration, noises, odor, or
other undesirable effect to emanate from the demised premises, to constitute a
nuisance or otherwise unreasonably interfere with the safety, comfort or
convenience of Landlord or of any other occupants of the building of which the
demised premises forms a part, and upon Landlord's notice thereof to Tenant,
Tenant shall, within five (5) days thereof, eliminate or control same. If any
such condition is not so remedied then Landlord may at its discretion either:
(a) remedy such condition and any cost and expense incurred by Landlord
therefore shall be deemed additional rent and paid by Tenant to Landlord
together with the next installment of rent due hereunder, or (b) treat such
failure on the part of the Tenant to remedy such condition as a material default
under the provisions of this lease on the part of the Tenant hereunder,
entitling Landlord to any of its remedies, pursuant to the terms of this lease.
In no event, however, shall the Tenant make any alteration, addition or
structural installation in or to the premises or any parts thereof to remedy or
cure such default without the prior written consent of the Landlord.
(d) TOXIC/HAZARDOUS WASTES:
(i) Tenant shall not cause or permit any Hazardous Material (as hereinafter
defined) to be brought upon, kept or used in or about the demised premises by
Tenant, its agents, employees, contractors or invitees. Tenant further covenants
and agrees that it shall not discharge any Hazardous Material in the ground or
sewer disposal system. If Tenant breaches the obligations stated in the
preceding sentences, or if the presence of Hazardous Material on the demised
premises permitted, caused or brought upon or kept by Tenant, its agents,
employees, contractors or invitees, results in contamination of the demised
premises or any other part of the building or land of which it forms a part or
if there is such a discharge, then Tenant shall (A) immediately give Landlord
written notice thereof, and (B) indemnify, defend and hold harmless Landlord
from any and all claims, judgments, damages, penalties, fines, costs,
liabilities or losses (including, without limitation, diminution in value of the
demised premises or the building or land of which it forms a part, loss or
restriction on use of space in the building of land of which it forms a part,
adverse impact on marketing, sums paid in settlement of claims, attorneys',
consultants' and other expert fees) which arise during or after the term as a
result of such breach, contamination, or discharge. The foregoing
indemnification includes, without limitation, costs incurred in connection with
any investigation of site conditions or any clean-up, remedial, removal or
restoration work requited by any federal, state or local governmental agency or
political subdivision. Without limiting the foregoing, if the presence of any
Hazardous Material within the demised premises caused or permitted by Tenant
results in any contamination of the demised premises or any other part of the
building or land of which it forms a part, Tenant shall promptly take all
actions at its sole expense as are necessary to return the demised premises or
any other part of the building or land of which it forms a part to the condition
existing prior to the introduction of any such Hazardous Material.
(ii) As used herein, the term "Hazardous Material" mean: (A) asbestos, petroleum
products, and polychlorinated biphenyls, and (B) hazardous or toxic materials,
wastes and substances which are defined, determined or identified as such
pursuant to all present and future federal, state or local laws, rules or
regulations and judicial or administrative interpretations thereof (collectively
"Governmental Laws").
(iii) Landlord and its agents shall have the right, but not the duty, to inspect
the demised premises at any time to determine whether Tenant is complying with
the terms of this Article. If Tenant is not in compliance with the provisions of
this Article, Landlord shall have the right to immediately enter upon the
demised premises to remedy said noncompliance at Tenant's expense and any
expense incurred by Landlord shall be paid by Tenant upon demand and shall be
deemed additional rent. Landlord shall use its best efforts to minimize
interference with Tenant's business, but shall not be liable for any
interference caused thereby.
52nd LIMITATION OF LANDLORD'S LIABILITY:
(a) Tenant shall look solely to the then interest of Landlord in the building
and land of which it forms a part or to the then interest of the owner therein
(if Landlord is the agent of such owner) for the satisfaction of any remedy of
Tenant for Landlord's or such owner's failure to perform any of the obligations
of the Landlord hereunder. Neither Landlord nor any disclosed or undisclosed
principal of Landlord (or officer, director, stockholder, partner or agent of
Landlord or of any such principal) shall have any personal liability for any
such failure under this lease or otherwise.
(b) There shall be no merger of Landlord's estate in the demised premises with
Tenant's estate therein by reason of the fact that the same individual,
partnership, firm or corporation or their entity may acquire or own such estates
directly or indirectly. No such merger shall occur until all individuals,
partnerships, firms, corporations and other entities having any interest in such
estates, including any mortgagee, join in a written instrument effecting such
merger and duly record it.
53rd UTILITIES:
(a) Upon the execution hereof, Tenant must make immediate application to the
appropriate utility company for electric and/or gas service and Tenant shall
forthwith deliver to Landlord a true copy of such application with proof of
payment of any deposit required by such utility company for electric service and
gas service.
(b) Notwithstanding anything previously written anywhere in this lease, Tenant
shall bear the cost and expense of:
(i) all electricity in their demised premises.
(ii) fuel for heating purposes in their demised premises.
54th TENANT'S FAILURE TO VACATE:
In the event the Tenant does not vacate the demised premises upon the expiration
date of this lease, or upon the expiration of any extension or renewal thereof,
then and in that event the Tenant shall remain as a month to month Tenant at a
monthly rental double the monthly rent plus l/12 of the previous year's charges
for all additional rent due under this lease paid in the last month of the term
payable as aforesaid. The acceptance by the Landlord of such rental after the
expiration date of this lease shall not be construed as consent to such
continued occupancy.
55th ASSIGNMENT/SUBLET:
Tenant covenants that it shall not assign this lease nor sublet the demised
premises or any part thereof without the prior written consent of Landlord in
each instance, which consent shall not be unreasonably withheld to an assignment
or subletting provided:
(a) Such assignment or sublease shall be for a use which is in compliance with
the then existing zoning regulation's and the Certificate of Occupancy for the
demised premises or the building, and consistent with the use hereinabove set
forth;
(b) At the time of such assignment or subletting, Tenant shall not be in default
under the terms, covenants, agreements and conditions of this lease;
(c) In the event of an assignment, the assignee must assume in writing the
performance of all of the terms, covenants, conditions, agreements and
obligations of the within lease;
(d) A duly executed duplicate original of said assignment or sublease must be
delivered by Certified Mail, Return Receipt Requested to the Landlord at the
address herein set forth not less than ten (10) days before the date of said
assignment or sublease;
(e) Such assignment or subletting shall not, however, release the within Tenant
from its liability for the full and faithful performance of all of the terms
covenants, agreements, and conditions of this lease, including the payment of
rent and additional rent;
(f) If this lease shall be assigned, or if the demised, premises or any part
thereof be sublet, underlet or occupied by anyone other than Tenant, Landlord
may after default by Tenant, collect rent from the assignee, subtenant,
undertenant or occupant, and apply the net amount collected to the rent herein
reserved or additional rent due hereunder.
(g) Notwithstanding anything contained in this paragraph to the contrary, no
assignment, subletting, or underletting shall be made by the Tenant in any event
to an existing tenant of Landlord.
(h) Such notice of proposed assignment or proposed sublet shall be deemed
Tenant's offer to terminate this lease as of the last day of the calendar month
during the term hereof immediately preceding the commencement of such sublease
or the effective date of such assignment and to vacate and surrender the demised
premises to Landlord on the date fixed in the notice. If Landlord within thirty
(30) days after the receipt thereof has not accepted in writing the offer by
Tenant to cancel and terminate said lease and to vacate and surrender the
demised premises, the lease shall remain in full force and effect and Landlord
shall not unreasonably withhold its consent to the proposed assignment or
sublet.
(i) As additional security for the prompt payment of the rent herein reserved to
Landlord, and for the faithful performance and punctual observance of all the
other terms, covenants, agreements, and conditions herein contained, Tenant
hereby assigns to Landlord all of Tenant's rights, title, and interest in and to
any sublease which may be made by Tenant affecting the demised premises, or any
part thereof, and in and to the rents due or to become due under the terms of
any such sublease. The aforesaid assignment shall take effect, however, only in
the event of any default hereunder made or suffered by Tenant and after written
notice given by Landlord to the subtenant or subtenants, as the case may be, and
shall take effect as to such of said subleases as Landlord shall elect to
continue in full force and effect.
(j) If Tenant assigns this lease or sublets the demised premises in violation of
the provisions of this Article 55, Landlord may, without waiving any other
rights or remedies, elect to double the annual rental rate payable under the
terms of this lease for the period of such unlawful occupancy commencing with
the date of such assignment or subletting.
56th COMMENCEMENT DATE:
In the event that the term of this lease commences on a date other than the
first of the month, the rent for the second month shall be prorated, and the
rent for the third month shall commence on the first day of the month.
57th TERMINATION:
At the expiration of the term of this lease or upon the early termination of
this lease, Tenant shall deliver to Landlord any and all equipment belonging to
Landlord in working condition, ordinary wear and tear excepted, including
equipment installed or replaced by the Tenant. The Tenant further agrees to
deliver to Landlord any and all guarantees on new and replaced equipment.
58th DEFAULT:
Notwithstanding any provisions in the lease permitting Tenant to cure any
default within a specified period of time, if Tenant shall default (i) in the
timely payment of rent or additional rent, and such default shall continue or be
repeated for two consecutive months or for a total of four months in any period
of twelve months or (ii) in the performance of any material term, condition or
covenant of this lease more than two times in any period of six months then,
notwithstanding that such defaults shall have, each been cured within the period
after notice, if any, as provided in this lease, any further similar default
shall be deemed to be deliberate and Landlord thereafter may cancel or terminate
this lease as provided in Article 17 hereof without affording to Tenant an
opportunity to cure such further default.
59th MISCELLANEOUS:
(a) This lease is transmitted for examination only and does not constitute an
offer to lease. This lease shall become effective only upon execution hereof by
the parties hereto and delivery of the executed lease to Landlord by Tenant.
(b) This instrument contains the entire and only agreement between the parties.
No oral statements or representations or prior written matter not contained
herein shall have any force or effect.
(c) This lease shall not be modified, changed, or amended in any way or
canceled, terminated or abridged except by a writing subscribed by both parties.
(d) Any reference in the printed portion of this lease to the City of New York
and the Administrative Code of the City of New York shall, where applicable, be
deemed to refer to the ordinances, rules and regulations of the county, town,
village and other governmental authorities with jurisdiction over the demised
premises.
(e) If any term or provision of this lease or the application thereof to any
person or circumstances shall, to any extent, be invalid or unenforceable, the
remainder of this lease, or the application of such 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 enforced to the fullest extent permitted by law.
(f) This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(g) Neither this lease nor any memorandum hereof shall be recorded without
Landlord's prior written consent.
(h) Each provision of this Lease which requires the consent or approval of
Landlord shall be deemed to require the same in each instance in which such
provision may be applicable. Any consent or approval by Landlord to or of any
act or omission by Tenant requiring Landlord's consent or approval shall not be
deemed to waive any future requirement for such consent or approval to or of any
subsequent similar act or omission.
60th Not used.
61st Not used.
62nd LIEN PROHIBITION:
Nothing contained in this lease shall be deemed to be, or construed in any way
as constituting, the consent of Landlord to any person for the performance of
any labor or the furnishing of any materials at or to the demised premises or
the building and land of which the demised premises are a part, nor as giving
Tenant any right, power or authority to contract or permit the performance of
any labor or the furnishing of any material which might give rise to the right
to record or file a lien against the demised premises or the real property of
which the demised premises are a part or against the interests therein of
Landlord or Tenant, it being intended that all persons who may perform any labor
or furnish any materials to Tenant at the demised premises shall look only to
the credit of Tenant and such security as Tenant may furnish to such persons for
the payment of all such labor and materials. Landlord does not consent to the
recording or filing of any mechanics' or other liens against the leased premises
or the real property of which the demised premises are a part or the interest of
Landlord or Tenant therein.
63rd NOTICES:
Any notice required to be given by either party pursuant to this lease, shall be
in writing and shall be deemed to have been properly given, rendered or made
only if personally delivered, or if sent by Federal Express or other comparable
commercial overnight delivery service, addressed to the other party at the
addresses set forth below (or to such other address as Landlord or Tenant may
designate to each other from time to time by written notice), and shall be
deemed to have been given, rendered or made on the day so delivered or on the
first business day after having been deposited with the courier service:
If to Landlord: First Industrial, L.P.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx Xxxxxxxx 00000
Attn: Vice President -Portfolio Management
With a copy to: First Industrial Realty Trust, Inc.
000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attn: Regional Director
With a copy to: Barack, Xxxxxxxxxx, Xxxxxxxxxx & Xxxxxxx
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx and Xxxxxxx Xxxxxxxx-Xxxxx
If to Tenant: At the demised premises or as set forth below.
64th RENT PAYMENTS:
All rent and additional rent and all other sums and charges due under this
lease, shall be paid to Landlord in accordance with the payment directions
attached hereto as Schedule C or pursuant to such other directions as Landlord
shall designate in this lease or otherwise.
65th SUBORDINATION AND ATTORNMENT:
(a) Subject to the provisions of paragraph 65th(d) below, this lease, and all
rights of Tenant hereunder, are subject and subordinate to all ground leases of
the land and building of which the demised premises forms a part (the
"Property") now or hereafter existing and to all mortgages or trust deeds or
deeds of trust and all renewals, modifications, replacements and extensions
thereof; and to all "Spreaders" and consolidations thereof (all of which are
hereafter referred to collectively as "Mortgages"), that may now or hereafter
affect or encumber all or any portion of Landlord's interest in the Property.
This subordination shall apply to each and every advance made, or to be made,
under such Mortgages. This paragraph shall be self-operative and no further
instrument of subordination shall be required, however, in confirmation of such
subordination, Tenant shall, from time to time, execute acknowledge and deliver
any instrument that Landlord may, from time to time, reasonably require in order
to evidence or confirm such subordination. If Tenant fails to execute,
acknowledge or deliver any such instrument within twenty (20) days after request
therefor, Tenant hereby irrevocably constitutes and appoints Landlord as
Tenant's attorney-in-fact, which appointment is coupled with an interest, to
execute and deliver any such instruments for and on behalf of Tenant. Tenant
acknowledges that this lease and the rents due under this lease have been (and,
in the future, may be) assigned by Landlord to a Superior Mortgagee (defined
below) as additional collateral security for the loans secured by the Superior
Mortgage (defined below) held by such Superior Mortgagee. Any ground lease to
which this Lease is subject and subordinate is hereafter referred to as a
"Superior Lease", the Lessor under a Superior Lease is hereinafter referred to
as a "Superior Lessor," and the lessee thereunder, a "Superior Lessee" and any
Mortgage to which this Lease is subject and subordinate is hereinafter referred
to as a "Superior Mortgage" and the holder of a Superior Mortgage is hereinafter
referred to as a Superior Mortgagee.
(b) In the event that Landlord breaches or otherwise fails to timely perform any
of its obligations under this lease, Tenant shall give, by registered or
certified mail, return receipt requested, written notice of such alleged breach
or default to Landlord and to each Superior Mortgagee and Superior Lessor whose
name and address shall previously have been furnished, in writing, to Tenant.
Any or all of Landlord, a Superior Mortgagee or Superior Lessor may remedy or
cure such breach or default within thirty (30) days following the giving of such
notice; provided, however, that said thirty (30) day cure period shall be
automatically extended in the event that the breach or default cannot, by its
nature, be cured within thirty (30) days and one or more of Landlord, the
Superior Mortgagee or the Superior Lessor is diligently proceeding to cure said
default.
(c) If any Superior Lessor or Superior Mortgagee (whether by receiver or
otherwise) shall succeed to the rights of Landlord hereunder or comes into
possession of the Property or any part thereof, then, at the request of such
party (hereinafter referred to as a "Successor Landlord"), Tenant shall attorn
to and recognize each Successor Landlord as Tenant's landlord under this lease
and shall promptly execute and deliver any instrument such Successor Landlord
may reasonably request to further evidence such attornment. Tenant hereby
acknowledges that in the event of such succession, then from and after the date
on which the Successor Landlord acquires Landlord's rights and interest under
this lease (the "Succession Date"), the rights and remedies available to Tenant
under this Lease with respect to any obligations of any Successor Landlord shall
be limited to the equity interest of the Successor Landlord in the Property; and
the Successor Landlord shall not (i) be liable for any act, omission or default
of Landlord or other prior lessor under this lease if and to the extent that
such act, omission or default occurs prior to the Succession Date; (ii) except
as required under Paragraphs 49 and Paragraph 9 of this lease, be required to
make or complete any tenant improvements or capital improvements or to repair,
restore, rebuild or replace the demised premises or any part thereof in the
event of damage casualty or condemnation; or (c) be required to pay any amounts
to Tenant that are due and payable, under the express terms of this lease prior
to the Succession Date. Additionally, from and after the Succession Date.
Tenant's obligation to pay the annual rental, rate or additional rent or any
other sum due the Landlord under this lease, shall not be subject to any
abatement, deduction, set-off or counterclaim against the Successor Landlord
that arises as a result of, or due to, a default of Landlord or any other lessor
that occurs prior to the Succession Date. Moreover, no Successor Landlord shall
be bound by any advance payments of the annual rental rate or additional rent or
any other sum due the Landlord under this lease made prior to the calendar month
in which the Succession Date occurs nor by any Security that is not actually
delivered to, and received by, the Successor Landlord. The provisions of this
Paragraph 65th(c) shall be self operative upon demand of such Superior Lessor or
Superior Mortgage and no further instrument shall be required to give effect to
such provisions.
(d) It is agreed that as to any Superior Mortgage hereafter placed on the
demised premises, the subordination provided for above shall extend only to and
advances made thereunder under which the Superior Mortgagee by agreement in the
Superior Mortgage or in a separate instrument in form and substance reasonably
acceptable to such mortgagee and in such mortgagee's standard form (a "Non-
Disturbance Agreement") contracts to the effect that, if there shall be a
foreclosure of its mortgage, such mortgagee will not make Tenant a party
defendant to such foreclosure, evict Tenant, disturb Tenant's possession under
this lease or terminate or disturb Tenant's leasehold estate or rights provided
under this lease, provided no default beyond any applicable notice and grace has
occurred hereunder which remains uncured. Landlord shall use its reasonable
efforts to obtain such a Non-Disturbance Agreement from its present mortgagee.
Tenant shall bear the cost of such mortgagee in obtaining such agreement.
66th. The security referred to in paragraph 32 hereof shall bear interest at the
then money market account rate of Citibank, N.A. for commercial accounts less
Landlord's administrative fee of one (1%) percent and Landlord shall remit the
interest to Tenant annually.
67th The heating, ventilating, air-conditioning, electrical, plumbing, sprinkler
systems and overhead doors shall be in working order upon the commencement of
the term of this lease.
68th Landlord represents that the rated rentable area of the demised premises,
as calculated in the method approved by the Real Estate Board of New York, Inc.,
is approximately 15,722 square feet and the rated rentable area of the building
is approximately 220,000 square feet.
69th Supplementing Article 4 of this lease, if a vermin infestation arises from
outside of the demised premises, Landlord, not Tenant, shall exterminate same at
Landlord's expense.
70th In the exercise of any of its rights under paragraph 19, Landlord shall use
reasonable efforts to avoid interference with Tenant's use of the demised
premises and except in an emergency provide reasonable advance telephonic notice
before exercising such rights. Landlord agrees that if such repairs, other than
for repairs Landlord is making as a result of Tenant's failure to make such
repairs, damage any part of the demised premises, then Landlord shall repair and
restore the damaged portion of the demised premises.
71st Supplementing Article 10 hereof, Tenant may seek a separate award for
moving expenses, fixtures and movable equipment provided such claim shall not in
any way delay or diminish Landlord's award.
72nd Landlord, not Tenant, shall cure any violations that affect the demised
premises on the date of delivery of possession to Tenant of the demised
premises.
73rd If Landlord shall receive a refund of any portion of the Real Estate Taxes
payable during any lease year after the base year for the Real Estate Taxes as a
result of a reduction of said Real Estate Taxes by final determination of legal
proceedings, settlement or otherwise (for which Tenant shall have paid
additional rent, as provided in this lease), after receiving the refund,
Landlord shall pay to Tenant its proportionate share of the refund less all of
the expenses (including, but not limited to, attorneys' and appraisers' fees)
incurred in connection with obtaining the refund, provided Tenant is not in
default after notice and applicable grace period under this lease at the time of
receipt of such refund.
74th Anything to the contrary herein notwithstanding, the Tenant is given
permission to erect a sign over the entrance door of the demised premises
provided:
(a) Said sign shall comply with all rules and regulations of any governing
authorities having jurisdiction thereof.
(b) Said sign shall not interfere with the signs of any other tenants.
(c) Said sign shall be installed without damage to the building.
(d) Said sign shall be subject to the prior written approval of the Landlord
which approval shall not be unreasonable withheld or delayed, it being the
intention of the Landlord that the signs to be erected by the tenants of the
building shall conform to a uniform format and plan.
(e) Said sign may include Tenant's logo.
75th Tenant may make non-structural alterations in a good and workmanlike manner
using new materials and in the manner permitted by this lease without the
consent of Landlord (however, Tenant shall notify Landlord of such changes prior
to the commencement of any work), provided the cost of such alterations shall
aggregate in any instance or in any twelve month period is less than $15,000.00
and provided such alterations do not affect the systems of the building. In all
other instances, the Landlord shall not unreasonably withhold or delay its
consent to such non-structural alterations which do not increase the square
footage of the demised premises, will not endanger or impair the building or the
demised premises and do not diminish the value of the building. All plans
prepared by Tenant (where Landlord's consent is required) in connection with
such alterations shall be delivered to Landlord prior to commencement of any
work by Tenant. Tenant shall also obtain, when appropriate, final "as built"
plans for all such work and provide copies thereof to Landlord. Landlord shall
cooperate with Tenant (but without being obligated to incur any expense thereby)
in connection with any application for permits, approvals and certificates and
shall execute the same upon request by Tenant. Tenant shall pay the reasonable
costs incurred by Landlord to review its plans and proposed alterations,
including, without limitation, Landlord's reasonable legal and architectural
expenses.
76th Tenant shall have the right, subject to the terms and conditions
hereinafter set forth without the consent of Landlord, to assign its interest in
this lease to (i) a corporation or other entity which shall (A) control Tenant;
(B) be under the control of or be under common control with Tenant and/or Xxxxx
Systems Inc.; or (C) any corporation or entity with which Tenant consolidates or
merges (any such entities or any corporation with which Tenant consolidates or
merges being a "Related Entity"). Tenant may also sublease all or any portion of
the demised premises to a Related Entity without the consent of Landlord. Any
assignment or subletting described above may only be made upon the condition
that (i) any such assignee or subtenant shall continue to use the demised
premises for uses permitted by Article 2; (ii) the principal purpose of such
assignment or sublease is not the acquisition of Tenant's interest in this lease
(except if such assignment or sublease is made to a Related Entity and is made
for a valid intracorporate business purpose and is not made to circumvent the
provisions of Article 2 or Article 55th).Tenant shall within ten (10) days after
execution thereof deliver to Landlord (i) a duplicate original instrument of
assignment in form and substance reasonably satisfactory to Landlord, duly
executed by Tenant; (ii) a duplicate original instrument of assignment in form
and substance reasonably satisfactory to Landlord, duly executed by the
assignee, in which such assignee shall assume observance and performance of, and
agree to be personally bound by, all of the terms, covenants and conditions of
this lease, on Tenant's part to be observed and performed from and after the
date of such assignment; or (iii) a duplicate original sublease in substance
reasonably satisfactory to Landlord, duly executed by Tenant and the subtenant.
77th In making repairs, alterations, additions or improvements under Article
0xx, Xxxxxxxx shall use commercially reasonable efforts to minimize disruption
of Tenant's business operations. If Landlord shall fail to comply with the
provisions of Article 4th other than for reasons beyond the control of Landlord
and solely by reason thereof, the conduct of Tenant's normal business operations
in all or part of the demised premises shall be materially impaired and such
impairment shall continue for more than ten successive days, then Tenant, if
Tenant shall vacate the affected portion of the demised premises, shall be
entitled to an abatement of all the annual rental rate and additional rent for
each day thereafter of such actual impairment, allocable, in the case of a
partial impairment, to the portion of the demised premises so affected, if and
only if, insurance cannot be obtained by Tenant to compensate Tenant for the
loss of the use of the demised premises during such period.
78th In the exercise of its rights under paragraph 13th, Landlord shall promptly
repair at Landlord's cost and expense, any damage caused by Landlord during the
course of such work and/or entry onto the demised premises and shall restore the
demised premises as nearly as practicable to the condition existing prior to
such installation, in keeping with the decor of the demised premises. In the
event that after the completion of any such work the usable square footage of
the demised premises shall be thereby reduced, then the annual rental rate shall
be proportionately reduced from and after the completion of such work according
to the part of the demised premises which remains usable. Landlord will use
commercially reasonable efforts in the performance of such work in the demised
premises to not unreasonably interfere with or disrupt Tenant's conduct of its
business in the demised premises.
79th Notwithstanding anything to the contrary in paragraph 35 hereof, if any
excavation materially obstructs the business of Tenant, then Tenant shall be
entitled to an abatement of the annual rental rate prorated for the portion of
the demised premises, which Tenant is unable to use during such period of
obstruction and which Tenant actually vacates during such period of obstruction.
80th The period stated in paragraph 36 as 15 days, is changed to 30 days.
81st In no event shall Landlord act as Tenant's attorney-in-fact in any case
referred to in this lease.
82nd Landlord represents that the use of the demised premises for warehousing,
light manufacture, assembly, and incidental offices complies with the
certificate of occupancy for the building. Landlord further represents that to
its knowledge such use will not cause an increase in the rate of insurance for
the demised premises. Any violation of the provisions hereof shall not entitle
Tenant to a claim of money damages (other than moving expenses) or consequential
damages against Landlord and shall not be enforceable against Landlord after the
first year of this lease. Tenant's sole remedy shall be the termination of this
lease after failure by Landlord to remedy such violation within thirty (30) days
after notice thereof or to commence to cure such violation within said thirty
(30) days and diligently pursue same to completion at Landlord's sole option.
83rd Notwithstanding anything to the contrary contained in this lease, no
modification, addition or improvement to the building or the common areas shall
permanently change the location, size, or configuration of the demised premises
or materially deny access to any portion of the demised premises to Tenant.
84th (a) Landlord agrees to indemnify and hold Tenant harmless from and against
any and all claims, demands, costs and expenses, including reasonable attorney's
fees and disbursements for the defense thereof, other than consequential
damages, arising from any breach or default on the part of Landlord in the
performance of any covenants or agreements to be performed by Landlord pursuant
to the terms of this lease, or from any negligent acts or omissions of Landlord,
its agents, contractors, employees, invitees or assigns. In case any such action
or proceeding is brought against Tenant by reason of such claim, promptly after
notice from Tenant of such claim, Tenant covenants to defend such action or
proceeding by legal counsel reasonably satisfactory to Landlord. Landlord shall
not be held harmless for its negligence or contributory negligence or willful
misconduct or that of its agents, contractors, employees, invitees or assigns.
(b) Tenant agrees to indemnify and hold Landlord harmless from and against any
and all claims, demands, costs and expenses, including reasonable attorney's
fees and disbursements for the defense thereof, other than consequential
damages, arising from any breach or default on the part of Tenant in the
performance of any covenants or agreements to be performed by Tenant pursuant to
the terms of this lease, or from any negligent acts or omissions of Tenant, its
agents, contractors, employees, invitees or assigns. In case any such action or
proceeding is brought against tenant by reason of such claim upon notice from
Landlord of such claim, Tenant covenants to defend such action or proceeding by
legal counsel reasonably satisfactory to Landlord. Landlord shall not be held
harmless for its negligence or contributory negligence or willful misconduct or
that of its agents, contractors, employees, invitees or assigns.
85th In the event the parties hereto become involved in a proceeding to enforce
this lease, or the rights, duties or obligations hereunder, then the prevailing
party in such proceeding shall be entitled to receive as part of any award,
reasonable attorney fees and disbursements.
86th Where Landlord's consent is required, in the event Landlord fails to
respond to a request for consent within thirty (30) days after written demand,
such request shall be deemed granted.
87th Wherever Landlord has reserved the right in this lease to enact rules and
regulations, such rules and regulations shall be reasonable and applied
uniformly and equally to all tenants.
88th All trade fixtures, machinery, equipment signs, inventory and personal
property of Tenant shall remain the sole property of Tenant throughout the term
of thus lease and shall not be subject to any liens by Landlord during the term
of this lease, unless this lease shall be terminated by Landlord and Tenant
shall not have removed same prior to such termination.
89th TRANSFER SECURITY FROM A PREVIOUS LEASE:
Tenant shall be credited with security in the amount of $20,350.00 heretofore
deposited with the Landlord pursuant to its lease dated January 19, 1995 for
premises at 000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxx. No amount shall be deposited
at the time of execution of this lease.
90th Within a reasonable time after the Commencement Date, Landlord and Tenant
shall execute and exchange duplicate original instruments which shall fix for
all purposes the Commencement Date and Expiration Date, however, failure to
execute such instruments shall not affect, delay or impair the performance by
Landlord or Tenant of their obligations hereunder including the payment of all
rent.
91st TENANT'S PARKING:
Landlord shall provide Tenant with ten (10) reserved parking spaces in the
parking lot of the Property. Additionally, the use of these parking spaces by
Tenant is subject to compliance with all applicable provisions of this lease
including paragraph 51st(a) and (b).
92nd. Landlord states that the Property: to its knowledge, is free from
Hazardous Materials, including, without limitations, asbestos, which would
interfere with the use of the demised premises by Tenant as permitted by this
lease or which would affect the health or well being of its employees or
invitees. Landlord shall indemnify, defend and hold harmless Tenant from any and
all claims, judgments, damages, penalties, fines, costs, liabilities or losses
(other than consequential damages) Tenant may incur or suffer resulting from or
arising from any Hazardous Condition or Hazardous Materials presently in
existence at the Property or any Hazardous Condition or Hazardous Material
brought to the Property by Landlord, its employees, agents or invitees
hereafter.
FIRST INDUSTRIAL, L.P., a Delaware Limited Partnership
BY: FIRST INDUSTRIAL REALTY TRUST, INC., a Maryland
Corporation, General Partner
BY: __________________________________
XXXXX SYSTEMS, INC.
BY: __________________________________
