EXHIBIT 10.23
ADDITION TO A LEASE DATED THE 16th OF AUGUST, 1995;
WHICH WILL EXPIRE ON JUNE 30, 2002, BETWEEN BHBMC THE LANDLORD AND
INTERNATIONAL TECHNIDYNE CORPORATION,
THE TENANT WHICH OCCUPIES PREMISES AT
0 XXXXX XXXXXX, XXXXXX, XXX XXXXXX
_______________________________________________________________________________
EFFECTIVE AS OF THIS 24 DAY OF JULY, 2001 (THE EFFECTIVE DATE), IN
CONSIDERATION OF THE MUTUAL AGREEMENTS BELOW AND OTHER VALUABLE CONSIDERATION,
THE LANDLORD GRANTS TO THE TENANT, INTERNATIONAL TECHNIDYNE CORPORATION (ITC),
A FURTHER 15 YEAR LEASE EXTENSION FROM JULY 1, 2002 THROUGH JUNE 30, 2017,
UNDER THE SAME TERMS AND CONDITIONS EXCEPT FOR THE FOLLOWING CHANGES:
1. AS OF JULY 1, 2002, THE SQUARE FOOTAGE OF OCCUPANCY AND THE PREMISES
(AS DEFINED IN THE LEASE) SHALL BE REDUCED TO 22,240 SQUARE FEET WHICH
SHALL CONSIST OF THE ENTIRE BUILDING MINUS THE 7,260 SQUARE FEET WHICH
SHALL BE OCCUPIED BY ISA AS OUTLINED IN EXHIBIT A.
2. FROM THE EFFECTIVE DATE, ITC MAY PERMIT ISA TO OCCUPY A PORTION OF THE
PREMISES. FROM THE EFFECTIVE DATE, ISA SHALL BE RESPONSIBLE FOR
OBTAINING ALL APPROVALS, PERFORMING AND PAYING FOR ANY MODIFICATIONS
TO THE AREA OF THE BUILDING OCCUPIED BY ISA, INCLUDING WITHOUT
LIMITATION, ANY MODIFICATIONS FOR THE SEPARATION OF THE 2,000 SQUARE
FEET FROM ITC'S PREMISES. ISA SHALL ASSUME ALL OBLIGATIONS FOR THE
AREA OF THE PREMISES UPON THE DATE OF ISA'S OCCUPANCY AND ITC SHALL
HAVE NO OBLIGATIONS FOR THE AREA OF THE PREMISES OCCUPIED BY ISA OTHER
THAN TO PAY THE MONTHLY BASE RENT AND AMOUNTS SET FORTH IN SECTION 37
OF THE LEASE UNTIL JULY 1, 2002. AS OF JULY 1, 2002, ITC SHALL HAVE NO
OBLIGATIONS FOR THE AREA OF THE BUILDING OCCUPIED BY ISA AND ISA SHALL
ASSUME ALL SUCH OBLIGATIONS.
3. AS OF JULY 1, 2002, THE BASE RENT SHALL BE $333,600.00 PER YEAR,
PAYABLE IN MONTHLY AMOUNTS OF $27,800.00 PER MONTH. ON JULY 1st OF THE
2nd THROUGH THE 15th YEAR OF THIS EXTENSION THE BASE RENT SHALL
INCREASE BY 4% OVER THE PREVIOUS YEARS BASE MONTHLY RENT. IT IS THE
INTENT OF THE LANDLORD AND THE TENANT THAT THE RENT SHALL INCREASE
EACH AND EVERY YEAR OF THIS LEASE EXTENSION.
4. THE LANDLORD IS HOLDING, AS SECURITY DEPOSIT, $32,252.00 AS OF JULY 1,
2002, THE TENANT SHALL PAY TO THE LANDLORD AS FURTHER SECURITY
$23,348.00, WHICH SHALL BE A TOTAL OF $55,600.00.
5. THE TENANT'S SHARE OF 83.169% AS OUTLINED IN PARAGRAPH #37 OF ADDENDUM
B, OF THE ORIGINAL LEASE, SHALL BE REDUCED TO 75.38% OF THE CHARGES.
/s/ XXXXXX XXXXX Xxxxxx Xxxxx
__________________________________________________________________________
BHBMC, LANDLORD
/s/ D. XXXXX XXXXXXXX
__________________________________________________________________________
INTERNATIONAL TECHNIDYNE CORPORATION, TENANT
D. Xxxxx Xxxxxxxx
CEO
Thoratec
Landlord
THIS LEASE AGREEMENT, made the 16 day of Aug. 1995, BETWEEN X. Xxxxx
residing or located at X.X. Xxx #000 in the township of Xxxxxxxx in the County
of _____________ and the State of New Jersey 07933, herein designated as the
Landlord, AND INTERNATIONAL TECHNIDYNE CORPORATION
Tenant
residing or located at 0 XXXXX XXXXXX in the TOWNSHIP of EDISON in the
County of MIDDLESEX and State of NEW JERSEY, herein designated as the Tenant;
WITNESSETH THAT, the Landlord does hereby lease to the Tenant and the Tenant
does hereby rent from the Landlord, the following described premises:
Premises
A PORTION OF THE OFFICE BUILDING AND WAREHOUSE HAVING A TOTAL AREA OF
29,500 SQUARE FEET, LOCATED AT 0 XXXXX XXXXXX, XXXXXX, XXX XXXXXX. THE PORTION
TO BE COVERED UNDER THIS LEASE (THE "PREMISES") SHALL CONSIST OF APPROXIMATELY
5,476 SQUARE FEET OF WAREHOUSE AREA AND 18,764 SQUARE FEET OF OFFICE AREA FOR A
TOTAL OF 24,240 SQUARE FEET, WHICH IS 82.169% OF THE ENTIRE BUILDING.
Term
for a term of 3-1/2 years commencing on JANUARY 1, 1996* and ending on June
30, 1999
Use
to be used and occupied only and for no other purpose than OFFICE AND
WAREHOUSE AND ANY OTHER PERMITTED USE.
* (THE "COMMENCEMENT DATE")
upon the following conditions and covenants:
Payment of Rent
1st: The tenant covenants and agrees to pay to the Landlord, as rent for
and during the term hereof, the sum of $ in the following manner:
The yearly base rental charges for the period January 1, 1996 through
December 31, 1996, shall be $150,000.00 per year; January 1, 1997 through
December 31, 1997, shall be $193,518.00 per year; January 1, 1998 through
December 31, 1998, shall be $199,324.00 per year; January 1, 1999 through June
30, 1999, shall be $205,303.00 per year. Base rental shall be due on the first
day of the month in advance. [See Addendum A-1]
Repairs and Care
2nd: The Tenant has examined the premises and has entered into this lease
without any representation on the part of the Landlord as to the condition
thereof. The Tenant shall [See Addendum A-2] the premises and shall at the
Tenant's own cost and expense, make all repairs, [See Addendum A-3], including
[See Addendum A-4] painting and decorating, and at the end or other expiration
of the term hereof, shall deliver up the rented premises in good order and
condition, wear and tear from a reasonable use thereof, and damage by the
elements not resulting from the neglect or fault of the Tenant, excepted [See
Addendum 4A] The Tenant shall neither encumber nor obstruct the sidewalks,
driveways, yards, entrances, hallways and stairs, but shall keep and maintain
the same in a clean condition, free from debris, trash, refuse, snow and
ice.[See Addendum A-5]
Glass, etc. Damage Repairs
3rd: In case of the destruction of or any damage to the glass in the leased
premises, or the destruction of or damage of any kind whatsoever to the said
premises, [See Addendum A-6] caused by the negligence or [See Addendum A-7] on
the part of the Tenant or the Tenant's agents, employees, guests, licensees,
invitees, subtenants, assignees or successors, the Tenant shall repair the said
damage or replace or restore any destroyed parts of the premises, [See Addendum
A-8] at the Tenant's own cost and expense.
Alterations Improvements
4th: No alterations, additions or improvements shall be made, and no
climate regulating, air conditioning, cooling, heating or sprinkler systems,
television or radio antennas, heavy equipment, apparatus and fixtures, shall be
installed in or attached to the leased premises, without the written consent of
the Landlord. [See Addendum A-9] Unless otherwise provided herein, all such
alterations, additions or improvements and systems, when made, installed in or
attached to the said premises, shall belong to and become the property of the
Landlord and shall be surrendered with the premises and as part thereof upon the
expiration or sooner termination of this lease, without hindrance, molestation
or injury.
Signs
5th: The Tenant shall not place nor allow to be placed any signs of any
kind whatsoever, upon, in or about the said premises or any part thereof, except
of a design and structure and in or at such places as may be indicated and
consented to by the Landlord in writing. In case the Landlord or the Landlords's
agents, employees or representatives shall deem it necessary to remove any such
signs in order to paint or make any repairs, alterations or improvements in or
upon said premises or any part thereof, they may be so removed, but shall be
replaced at the Landlord's expense when the said repairs, alterations or
improvements shall have been completed. Any signs permitted by the Landlord
shall at all times conform with all municipal ordinances or other laws and
regulations applicable thereto.
Utilities
6th: The Tenant shall pay when due all the rents or charges [See Addendum
A-10] other utilities used by the Tenant, which are or may be assessed or
imposed upon the leased premises or which are or may be charged to the Landlord
by the suppliers thereof during the term hereof, and if not paid, such rents or
charges shall be added to and become payable as additional rent with the
installment of rent next due or within 30 days of demand therefor, whichever
occurs sooner. [See Addendum A-11]
Compliance with Laws etc.
7th: The Tenant shall promptly comply with all laws, ordinances, rules,
regulations, requirements and directives of the Federal, State and Municipal
Governments or Public Authorities and of all their departments, bureaus and
subdivisions, [See Addendum A-12] applicable to and affecting [See Addendum
A-13] during the term hereof; and shall promptly comply with all orders,
regulations, requirements and directives of the Board of Fire Underwriters or
similar authority and of any insurance companies which have issued or are about
to issue policies of insurance covering the said premises and its contents, for
the prevention of fire or other casualty, damage or injury, at the Tenant's own
cost and expense. [See Addendum A-14]
Liability Insurance
8th: The Tenant, at Tenant's own cost and expense, shall obtain or provide
and keep in full force during the term hereof, general public liability
insurance, insuring the Landlord against any and all liability or claims of
liability arising out of, occasioned by or resulting from any accident or
otherwise in or about the leased premises, for injuries to any person or
persons, for limits of not less than $1,000,000** in any one accident or
occurrence, and for loss or damage to the property of any person or persons.
Indemnification
The policy or policies of insurance shall [See Addendum A-15] be of a company or
companies authorized to do business in this State and [See Addendum A-16] shall
be delivered to the Landlord, together with evidence of the payment of the
premiums therefor, not less than fifteen days prior to the commencement of the
term hereof or of the date when the Tenant shall enter into possession,
whichever occurs sooner. At least fifteen days prior to the expiration or
termination date of any policy, the Tenant shall deliver [See Addendum A-17] a
renewal or replacement policy with proof of the payment of the premium therefor.
The Tenant also agrees to and shall save, hold and keep harmless and indemnify
the Landlord from and for any and all payments, expenses, costs, [See Addendum
A-18] attorney fees and from and for any and all claims and liability for losses
or damage to property or injuries to persons [See Addendum A-19] occasioned [See
Addendum A-20]
**COMBINED SINGLE LIMITS
ASSIGNMENT
9th: The Tenant shall not, without the written consent of the
Landlord, assign, mortgage or hypothecate this lease, nor sublet or sublease
the premises or any part thereof.[SEE ADDENDUM A-21]
RESTRICTION OF USE
10th: The Tenant shall not occupy or use the leased premises or any
part thereof, nor permit or suffer the same to be occupied or used for purpose
other than as herein limited, nor any purpose deemed unlawful, disreputable, or
extra hazardous, on account of fire or other casualty.
MORTGAGE PRIORITY
11th: This lease shall not be a lien against the said premises in
respect to any mortgage that may hereafter be placed upon said premises [SEE
ADDENDUM A-22]. The recording of such mortgage or mortgages shall have
preference and precedence and be superior and prior in lien to this lease,
irrespective of the date of recording and the Tenant agrees to execute any
instruments, without cost, which may be deemed necessary or desirable, to
further effect the subordination of this lease to any such mortgage or
mortgages.[SEE ADDENDUM A-23]
CONDEMNATION EMINENT DOMAIN
12TH: If the land and premises leased herein, or of which the leased
premises are a part, or any portion thereof, shall be taken under eminent domain
or condemnation proceedings, or if suit or other action shall be instituted for
taking or condemnation thereof, or if in lieu of any formal condemnation
proceedings or actions, the Landlord shall grant an option to purchase and or
shall sell and convey the said premises or any portion thereof, to the
governmental or other public authority, agency, body or public utility, seeking
to take said land and premises or any portion thereof, then this lease, at the
option of the Landlord, shall terminate, and the term hereof shall end as of
such date as the Landlord shall fix by notice in writing; and the Tenant shall
have no claim or right to claim or be entitled to any portion of any amount
which may be awarded as damages or paid as the result of such condemnation
proceedings or paid as the purchase price for such option, sale or conveyance in
lieu of formal condemnation proceedings; and all rights of the Tenant to
damages, if any, are hereby assigned to the Landlord [SEE ADDENDUM A-24]. The
Tenant agrees to execute and deliver any instruments, at the expense of the
Landlord, as may be deemed necessary or required to expedite any condemnation
proceedings or to effectuate a proper transfer of title to such governmental or
other public authority, agency, body or public utility seeking to take or
acquire the said lands and premises or any portion thereof. The Tenant
covenants and agrees to vacate the said premises, remove all the Tenant's
personal property therefrom and deliver up peaceable possessions thereof to the
Landlord or to such other party designated by the Landlord in the aforementioned
notice. Failure by the Tenant to comply with any provisions in this clause
shall subject the Tenant to such cost, expenses, damages and losses as the
Landlord may incur by reason of the Tenant's breach hereof.[SEE ADDENDUM A-25]
FIRE AND OTHER CASUALTY
13TH: In case of fire of other casualty, the Tenant shall give
immediate notice to the Landlord. If the premises shall be partially damaged by
fire, the elements or other casualty, the Landlord shall repair the same as
speedily as practicable, [SEE ADDENDUM A-26] However, if, in the opinion of the
Landlord, the premises be totally destroyed or so extensively and substantially
damaged as to require practically a rebuilding thereof, then the rent shall be
paid up to the time of such destruction and then and from thenceforth this lease
shall come to an end.[SEE ADDENDUM A-27]
REIMBURSEMENT OF LANDLORD
14th: If the Tenant shall fail or refuse to comply with and perform any
conditions and covenants of the within lease, the Landlord may, if the Landlord
so elects, [SEE ADDENDUM A-28] carry out and perform such conditions and
covenants, at the cost and expense of the Tenant, and the said cost and expense
shall be payable on demand, or at the option of the Landlord shall be added to
the installment of rent due immediately thereafter but in no case later than one
month after such demand, whichever occurs sooner, and shall be due and payable
as such. This remedy shall be in addition to such other remedies as the
Landlord may have hereunder by reason of the breach by the Tenant of any of the
covenants and conditions in this lease contained.
INSPECTION AND REPAIR
15th: The Tenant agrees that the Landlord and the Landlord's agents,
employees or other representatives, shall have the right to enter into and upon
the said premises or any part thereof, at all reasonable hours [SEE ADDENDUM
A-29], for the purpose of examining the same or making such repairs or
alterations therein as may be necessary for the safety and preservation thereof.
This clause shall not be deemed to be a covenant by the Landlord nor be
construed to create an obligation on the part of the landlord to make such
inspection or repairs. [SEE ADDENDUM A-30]
RIGHT TO EXHIBIT
16th: The Tenant agrees to permit the Landlord and the Landlord's
agents, employees or other representatives to show the premises [SEE ADDENDUM
A-31] to persons wishing to rent or purchase the same, and Tenant agrees that on
and after December 31 next preceding the expiration of the term hereof, the
Landlord or the Landlord's agents, employees or other representatives shall have
the right to place notices on the front of said premises or any part thereof,
offering the premises for rent or for sale; and the Tenant hereby agrees to
permit the same to remain thereon without hinderance or molestation.
INCREASE OF INSURANCE RATES
17th: If for any reason it shall be impossible to obtain fire and other
hazard insurance on the buildings and improvements on the leased premises, in an
amount and in the form and in insurance companies [SEE ADDENDUM A-32] acceptable
to the Landlord, the Landlord may, if the Landlord so elects at any time
thereafter, terminate this lease and the term hereof, upon giving to the Tenant
fifteen days notice in writing of the Landlord's intention so to do, and upon
the [SEE ADDENDUM A-33] this lease and the term thereof shall terminate. [SEE
ADDENDUM A-34] If by reason of the use to which the premises are put by the
Tenant or character of or the manner in which the Tenant's business is carried
on, the insurance rates for fire and other hazards shall be increased, the
Tenants shall upon demand, pay to the Landlord, as rent, the amounts by which
the premiums for such insurance are increased. Such payments shall be paid with
the next installment of rent but in no case later than one month after such
demand, whichever occurs sooner.
REMOVAL OF TENANT'S PROPERTY
18th: Any equipment, fixtures, goods or other property of the Tenant,
not removed by the Tenant upon the termination of this lease, or upon any
quitting, vacating or abandonment of the premises by the Tenant, or upon the
Tenant's eviction, shall be considered as abandoned and the Landlord shall have
the right, without any notice to the Tenant, to sell or otherwise dispose of the
same, at the expense of the Tenant, and shall not be accountable to the Tenant
for any part of the proceeds of such sale, if any.
REMEDIES UPON TENANT'S DEFAULT
19th: If there should occur any default on the part of the Tenant in
the performance of any conditions and covenants herein contained, or if during
the term hereof the premises or any part thereof shall be or become abandoned or
deserted, vacated or vacant, or should the Tenant be evicted by summary
proceedings or otherwise, the Landlord , in addition to any other remedies
herein contained or as may be permitted by law, may, without being liable for
prosecution therefor, or for damages, re-enter the said premises and the same
have and again possess and enjoy; and as agent for the Tenant or otherwise,
re-let the premises and receive the rents therefor and apply the same, first to
the payment of such expenses, reasonable attorney fees and costs, as the
Landlord may have been put to in re-entering and repossessing the same and in
making such repairs and alterations as may be necessary; and second to the
payment of the rents due hereunder. The Tenant shall remain liable for such
rents as may be in arrears and also the rents as may accrue subsequent to the
re-entry by the Landlord, to the extent of the difference between the rents
reserved hereunder and the rents, if any, received by the Landlord during the
remainder of the unexpired term hereof, after deducting the aforementioned
expenses, fees and costs; the same to be paid as such deficiencies arise and are
ascertained each month.[SEE ADDENDUM A-35]
TERMINATION ON DEFAULT
20th: Upon the occurrence of any of the contingencies set forth in the
preceding clause, or should the Tenant be adjudicated a bankrupt, insolvent or
placed in receivership, or proceedings be instituted by or against the Tenant
for bankruptcy, insolvency, receivership, agreement of composition or assignment
for the benefit of creditors [SEE ADDENDUM A-36], or if this lease or the estate
of the Tenant hereunder shall pass to another by virtue of any court
proceedings, writ of execution, levy, sale, or by operation of law, the Landlord
may, if the Landlord so elects, at any time thereafter, terminate this lease and
the term hereof, upon giving to the Tenant or to any trustee, receiver, assignee
or other person in charge of or acting as custodian of the assets or property of
the Tenant, five days notice in writing, of the Landlord's intention so to do.
Upon the giving of such notice, this lease and the term hereof shall end on the
date fixed in such notice as if the said date was the date originally fixed in
this lease for the expiration hereof; and the Landlord shall have the right to
remove all persons, goods, fixtures and chattels therefrom, without liability
for damages.
NON-LIABILITY OF LANDLORD
21st: The Landlord shall not be liable for any damage or injury which
may be sustained by the Tenant or any other person, as a consequence of the
failure, breakage, leakage or obstruction of the water, plumbing, steam, sewer,
waste or soil pipes, roof, drains, leaders, gutters, valleys, downspouts or the
like or of the electrical, gas, power, conveyor, refrigeration, sprinkler,
airconditioning or heating systems, elevators or hoisting equipment; or by
reason of the elements; or resulting from the carelessness, negligence or
improper conduct on the part of any other Tenant or this or any other Tenant's
agents, employees, guests, licenses, invitees, subtenants, assignees or
successors; or attributable to any interference with, interruption of or
failure, beyond the control of the landlord, of any services to be furnished or
supplied by the Landlord. [SEE ADDENDUM A-37]
NON-WAIVER BY LANDLORD
22nd: The various rights, remedies, options and elections of the
Landlord, expressed herein, are cumulative, and the failure of the Landlord to
enforce strict performance by the Tenant of the conditions and covenants of this
lease or to exercise any election or option or to resort or have resources to
any remedy herein conferred or the acceptance by the Landlord of any installment
of rent after any breach by Tenant, in any one or more instances, shall not be
construed or deemed to be a waiver or a relinquishment for the future by the
Landlord of any such conditions and covenants, options, elections or remedies,
but the same shall continue in full force and effect.
NON-PERFORMANCE BY LANDLORD
23rd: This lease and the obligation of the Tenant to pay the rent
hereunder and to comply with the covenants and conditions hereof, shall not be
affected, curtailed, impaired or excused because of the Landlord's inability to
supply any service or material called for herein, by reason of any rule, order,
regulation or preemption by any governmental entity, authority, department,
agency or subdivision or for any delay which may arise by reason of negotiations
for the adjustment of any fire or other casualty loss or because of strikes or
other labor trouble or for any cause beyond the control of the Landlord. [See
Addendum A - 38]
VALIDITY OF LEASE
24th: The terms, conditions, covenants and provisions of this lease
shall be deemed to be severable. If any clause or provision herein contained
shall be adjudged to be invalid or unenforceable by a court of competent
jurisdiction or by operation of any applicable law, it shall not affect the
validity of any other clause or provision herein, but such other clauses or
provisions shall remain in full force and effect.
NOTICES
25th: [See Addendum A - 39]
TITLE AND QUIET ENJOYMENT
26th: The Landlord covenants and represents that the Landlord is the
owner of the premises herein leased and has the right and authority to enter
into, execute and deliver this lease; and does further covenant that [See
Addendum A - 40] the Tenant shall and may peaceably and quietly have, hold and
enjoy the leased premises for the term aforementioned. [See Addendum A - 41]
ENTIRE CONTRACT
27th: This lease contains the entire contract between the parties. No
representative, agent or employee of the Landlord has been authorized to make
any representations or promises with reference to the within letting or to vary,
alter or modify the terms hereof. No additions, changes or modifications,
renewals or extensions hereof, shall be binding unless reduced to writing and
signed by the Landlord and the Tenant.
RECAPTURE UPON SALE
28th: [Intentionally Omitted]
TAX INCREASE
29th: [Intentionally Omitted]
MECHANICS' LIENS
30th: If any mechanics' or other liens shall be created or filed
against the leased premises by reason of labor performed or materials furnished
for the Tenant in the erection, construction, completion, alteration, repair or
addition to any building or improvement, the Tenant shall within 30 days [See
Addendum A - 42] at the Tenant's own cost and expense, cause such lien or liens
to be satisfied and discharged of record together with any Notices of Intention
that may have been filed. Failure so to do, shall entitle the Landlord to resort
to such remedies as are provided herein in the case of any default of this
lease, in addition to such as are permitted by law.
WAIVER OF SUBROGATION RIGHTS
31st: [See Addendum A - 43]
SECURITY
32nd: The Tenant has this day deposited with the Landlord the sum of
$32,252.00 as security for the payment of the rent hereunder and the full and
faithful performance by the Tenant of the covenants and conditions on the part
of the Tenant to be performed. Said sum shall be returned to the Tenant, without
interest, after the expiration of the term hereof, provided that the Tenant [See
Addendum A - 44]. During the term hereof, the Landlord may, if the Landlord so
elects, have recourse to such security, to make good any default by the Tenant,
in which event the Tenant shall, on demand, promptly restore said security to
its original amount. Liability to repay said security to the Tenant shall run
with the reversion and title to said premises, whether any change in ownership
thereof be by voluntary alienation or as the result of judicial sale,
foreclosure or other proceedings, or the exercise of a right of taking or entry
by any mortgagee. The Landlord shall assign or transfer said security, for the
benefit of the Tenant, to any subsequent owner or holder of the reversion or
title to said premises, in which case the assignee shall become liable for the
repayment thereof as herein provided, and the assignor shall be deemed to be
released by the Tenant from all liability to return such security. This
provision shall be applicable to every alienation or change in title and shall
in no wise be deemed to permit the Landlord to retain the security after
termination of the Landlord's ownership of the reversion or title. The Tenant
shall not mortgage, encumber or assign said security without the written consent
of the Landlord.
SEE ADDENDUMS A AND B AND SCHEDULE A ATTACHED HERETO AND INCORPORATED
HEREIN BY THIS REFERENCE.
Conformation with Laws and Regulations
The Landlord may pursue the relief or remedy sought in any invalid clause,
by conforming the said clause with the provisions of the statutes or the
regulations of any governmental agency in such case made and provided as if the
particular provisions of the applicable statutes or regulations were set forth
herein at length.
In all references herein to any parties, persons, entities or corporations
the use of any particular gender or the plural or singular number is intended to
include the appropriate gender or number as the text of the within instrument
may require. All the terms, covenants and conditions herein contained shall be
for and shall inure to the benefit of and shall bind the respective parties
hereto, and their heirs, executors, administrators, personal or legal
representatives, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals, or caused these presents to be signed by their proper corporate officers
and their proper corporate seal to be hereto affixed, the day and year first
above written.
SIGNED, SEALED AND DELIVERED /s/ XXXXXX XXXXX
IN THE PRESENCE OF ____________________________________
OR ATTESTED BY Landlord
INTERNATIONAL TECHNIDYNE CORPORATION,
a Delaware corporation
____________________________________
Tenant
By: /s/ XXXXXX XXXXXXX
____________________________________
Xxxxxx Xxxxxxx
President
ADDENDUM A
TO LEASE AGREEMENT
DATED AUGUST , 1995
BY AND BETWEEN
XXXXXX XXXXX ("LANDLORD")
AND
INTERNATIONAL TECHNIDYNE CORPORATION ("TENANT")
Notwithstanding the provisions of the above-referenced Lease Agreement
(the "Lease"), each numbered provision set forth below shall be inserted into
the Lease in the location designated therein by the corresponding numerical
reference:
1. In the event that the Term, as the same may be extended, expires on a
date other than the last day of a calendar month, the final monthly
installment of base rent shall be apportioned accordingly.
2. not injure, damage or deface
3. to the non-structural, interior portions of the premises,
4. interior
4A. ; provided, however, that in no event shall Tenant be obligated to make
any repairs or replacements (i) which are required as the result of the
negligence or willful misconduct of Landlord, its agents, employees,
representatives or contractors, or the failure of Landlord to perform
its obligations under this Lease, or (ii) which would constitute a
Capital Improvement (as defined in Section 7 below), all of which
repairs and replacements shall be made by Landlord at Landlord's sole
cost and expense.
5. Notwithstanding anything to the contrary contained herein, Landlord
covenants and agrees that it will, at Landlord's sole cost and expense,
maintain and keep in good order and repair at all times during the Term,
as the same may be extended, the foundation, floorslab, exterior,
exterior walls, load-bearing interior walls, steel frame, structural
portions, roof, gutters, downspouts, doors, sprinkler system, if any,
and all utility lines serving but located outside of the premises
(including without limitation all underground utility lines). Landlord
shall make all repairs and replacements without, to the extent
practicable, interfering with the conduct of Tenant's business. If
during such repairs and replacements the premises are wholly or
partially unsuitable for their use as provided in this Lease, there
shall be an equitable abatement of base rent and all additional rent and
other charges payable by Tenant hereunder until such time as such
repairs and replacements have been completed.
6. to the extent
1
7. willful misconduct
8. in a prompt manner
9. Landlord's failure, within ten (10) business days after receipt thereof,
either to approve or deny any written request by Tenant to make
alterations, additions or improvements for which Landlord's consent is
required under this Section shall be deemed to constitute approval.
Notwithstanding anything to the contrary contained herein, Tenant shall
have the right, without Landlord's consent, to make non-structural
interior alterations, additions and improvements to the premises costing
less than $50,000.
10. , gas, electricity, sewer and
11. Landlord represents and warrants that all such utilities serving the
premises shall be separately metered.
12. to the extent directly
13. Tenant's particular and specific use of the premises
14. Notwithstanding anything to the contrary contained in this Lease,
Landlord shall be responsible for, at Landlord's sole cost and expense,
all repairs, alterations, additions and replacements required by any
law, ordinance, rule, regulation, requirement or directive of any
governmental or other public authority or the Board of Fire Underwriters
or similar authority, which repairs, alterations, additions or
replacements (i) relate to any portion of the premises the maintenance
of which is Landlord's responsibility under this Lease, or (ii) would
constitute items of expense properly chargeable to "capital account"
(individually, a "Capital Improvement" and collectively, "Capital
Improvements") under generally accepted accounting principles
consistently applied ("GAAP").
15. name Landlord as an additional insured (to the extent of Tenant's
negligence) and shall
16. certificates of such insurance
17. certificates evidencing
18. reasonable
19. to the extent
20. by the negligence or willful misconduct of Tenant, its agents,
employees, representatives or contractors.
2
21. Notwithstanding anything to the contrary contained herein, Tenant shall
have the right, without Landlord's consent, to assign or sublet this
Lease (a) to a parent, subsidiary or affiliate of Tenant, (b) in
connection with a merger, consolidation or combination or (c) in
connection with a sale of substantially of all of the assets of Tenant.
22. provided the holder thereof enters into an agreement with Tenant in
recordable form, binding upon the successors and assigns of the parties
thereto, by the terms of which such holder agrees not to disturb the
possession and other rights of Tenant under or pursuant to this Lease
during the Term, as the same may be extended, so long as Tenant is not
in default hereunder beyond the expiration of all applicable notice and
cure periods, and in the event of acquisition of title, or coming into
possession, by said holder through foreclosure proceedings or otherwise,
to accept Tenant as tenant of the premises under the terms and
conditions of this Lease, and to assume and perform all of Landlord's
obligations hereunder.
23. If at the time of execution of this Lease there shall be any mortgage
encumbering the premises, Landlord shall obtain and deliver to Tenant,
within thirty (30) days thereafter, a non-disturbance agreement with
respect to such mortgage in form reasonably acceptable to Tenant. In the
event that Landlord shall not have delivered such non-disturbance
agreement prior to the expiration of the aforesaid thirty (30)-day
period, Tenant shall have the continuing right to terminate this Lease
on thirty (30) days' prior notice to Landlord and, upon the expiration
of said thirty (30)-day notice period, if such non-disturbance agreement
shall not have been delivered to Tenant, this Lease shall terminate as
if such date were herein fixed as the expiration date hereof.
24. ; provided that Tenant shall have the right to receive a separate award
with respect to its personal property and relocation costs.
25. If the premises, or such portion thereof as to render the balance (if
reconstructed to the maximum extent practicable) unsuitable for Tenant's
purposes, shall be taken by condemnation or right of eminent domain
(including a temporary taking in excess of one hundred eighty (180)
days), Tenant shall have the right to terminate this Lease by notice to
Landlord within thirty (30) days after Tenant has been deprived of
possession. Notwithstanding anything to the contrary contained herein,
if Landlord shall fail to restore the remainder of the premises as
nearly equivalent as practicable to their condition immediately prior to
the taking within one hundred eighty (180) days from the date that
possession of the portion of the premises so taken is delivered to the
condemning authority (regardless of force majeure), then, in such event,
Tenant may terminate this Lease by ten (10) days' prior written notice
to Landlord given no later than thirty (30) days after the expiration of
the aforesaid one hundred eighty (180)-day period. In the case of a
taking that permanently reduces the area of the premises, a just
proportion of the base rent and additional rent hereunder shall be
abated for the remainder of the Term, as the same may be extended.
3
26. and the base rent shall be abated in an equitable manner based upon the
nature and extent of the damage to the premises until completion of such
repairs by Landlord.
27. In the event that the premises are damaged to the extent that thirty
percent (30%) or more of the floor area thereof is rendered
untenantable, Tenant shall have the right to terminate this Lease upon
ten (10) days' prior written notice given to Landlord no later than
thirty (30) days after the date of occurrence of such damage.
Notwithstanding anything to the contrary contained herein, if Landlord
shall fail either to complete the restoration and repair of the
premises, or to restore the same as nearly equivalent as practicable to
their condition immediately prior to the damage or destruction, within
one hundred eighty (180) days from the date of occurrence of the damage
or destruction (regardless of force majeure), then, in either such
event, Tenant may terminate this Lease by ten (10) days' prior written
notice to Landlord given no later than thirty (30) days after the
expiration of the aforesaid one hundred eighty (180)-day period.
28. if Tenant has not commenced to remedy such failure within five (5) days
after written notice thereof by Landlord to Tenant, or if Tenant
thereafter fails to diligently prosecute such remedy to completion,
29. and upon no less than twenty-four (24) hours' prior notice to Tenant
(except in the event of emergency in which case no notice will be
required)
30. Except in the event of emergency, Landlord shall be accompanied by a
representative of Tenant at all times while entering the premises, which
representative Tenant agrees to make available promptly upon request.
31. during the last six (6) months of the Term, as the same may be extended,
32. reasonably
33. expiration of said fifteen (15)-day period
34. unless Tenant, prior to the expiration of said fifteen (15)-day period,
shall provide Landlord with evidence of Tenant's ability to insure the
premises under a policy of "All Risk" insurance, in an amount equal to
the full replacement value of the premises, issued by a reputable
insurance company licensed to do business in the state in which the
premises are located and reasonably acceptable to Landlord. Such
insurance shall show Landlord as a named insured with respect to the
real property.
35. Landlord shall use reasonable efforts to mitigate its damages hereunder.
36. and, with respect to proceedings initiated against Tenant, are not
discharged within sixty (60) days thereafter
4
37. except to the extent such damage or injury is caused by the negligence
or willful misconduct of Landlord, its agents, employees,
representatives or contractors.
38. Tenant shall not be deemed to be in default under this Lease if
prevented from performing any obligation hereunder for any reason beyond
its reasonable control, including without limitation Acts of God, war,
civil commotion, fire, flood or casualty, labor difficulties, shortages
of or inability to obtain labor, materials or equipment, governmental
regulations or restrictions, or unusually severe weather. It is agreed
that financial inability shall not be a matter beyond Tenant's
reasonable control for purposes of this Section.
39. Whenever, by the terms of this Lease, notice, demand or other
communication shall or may be given to either party, the same shall be
in writing and addressed:
If to Landlord:
Xxxxxx Xxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
If to Tenant:
International Technidyne Corporation
0 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Vice President, Finance & Administration
With a copy to:
Thermo Electron Corporation
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
or to such other address or addresses as shall from time to time be
designated by written notice by either party to the other as herein
provided. A11 notices shall be sent by registered or certified mail,
postage pre-paid and return receipt requested, or by Federal Express or
other comparable courier providing proof of delivery, and shall be
deemed duly given and received (i) if mailed, on the third business day
following the mailing thereof, or (ii) if sent by courier, the date of
its receipt (or, if such day is not a business day, the next succeeding
business day).
40. so long as Tenant is not in default hereunder beyond the expiration of
all applicable notice and cure periods,
5
41. Landlord further covenants and represents that, to the best of
Landlord's knowledge, the permitted uses hereunder are permissible
without the need for any special permit, variance or other Zoning Board
approval. If at any time during the Term of this Lease, as the same may
be extended, applicable law shall not permit the use of the premises for
the permitted uses hereunder, Tenant, without waiving any other rights
Tenant may have on account thereof, may terminate this Lease upon no
less than ten (10) days' prior written notice to Landlord.
42. after receipt of written notice thereof
43. Notwithstanding anything to the contrary contained in this Lease,
Landlord and Tenant each hereby waives all rights of recovery against
the other party and such other party's insurance company (by way of
subrogation or otherwise), for all losses, damages or injuries to the
premises, any improvements thereon or any personal property of either
party therein, to the extent such waiver does not invalidate the
insurance coverage of either party and to the extent such losses,
damages or injuries are covered by insurance the damaged party is
required to carry hereunder or otherwise elects to maintain.
44. is not then in default under this Lease.
LANDLORD:
/s/ XXXXXX XXXXX
----------------------------------------
Xxxxxx Xxxxx
TENANT:
INTERNATIONAL TECHNIDYNE CORPORATION,
a Delaware corporation
By: /s/ XXXXXX XXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
6
ADDENDUM B
TO LEASE AGREEMENT
DATED AUGUST , 1995
BY AND BETWEEN
XXXXXX XXXXX ("LANDLORD")
AND
INTERNATIONAL TECHNIDYNE CORPORATION ("TENANT")
Notwithstanding the provisions of the above-referenced Lease Agreement
(the "Lease"), the following new Sections 33 through 47 are hereby added to and
made a part of the Lease:
33RD: In the event that Tenant fails to make any payment of monthly base
rent, on or before the tenth (10th) day of the month in which the same is due,
Tenant shall, from and after the second such occurrence, pay to Landlord a late
charge equal to five percent (5%) of such monthly installment.
34TH: Any consent or approval of Landlord required under this Lease
shall not be unreasonably withheld, conditioned or delayed.
35TH: Prior to the Commencement Date, Landlord shall construct, at
Landlord's sole cost and expense, the demising walls and other improvements
shown on Schedule A attached hereto and incorporated herein by this reference
("Landlord's Work") in order to separate the premises demised hereunder from the
balance of the Building (which balance consists of approximately 5,260 square
feet) currently occupied by ISA. Upon completion of Landlord's Work, Tenant's
premises shall have separate electric, gas, water and sewer meters and shall be
physically separated from the balance of the Building in a secure manner, having
their own entrance from the parking lot and their own bathrooms. It is the
intent of the parties hereto that the premises demised hereunder to Tenant shall
be self-contained and have no access to or from any other tenant's space in the
Building.
36TH: Upon paying the security deposit and signing this Lease, Tenant
shall have the right to enter the Building on October 1, 1995, in order to
commence, at Tenant's sole cost and expense, the construction of its leasehold
improvements in the premises. Tenant shall have access to the premises from
October 1, 1995, through October 31, 1995, between the hours of 8:00 a.m. and
5:00 p.m., Monday through Friday, excluding holidays, for the purpose of such
construction. Tenant shall notify a person to be designated by Landlord of
Tenant's intent to enter the premises. Permission to enter during this
construction period shall not be unreasonably withheld, conditioned or delayed.
Tenant shall have the right to occupy the premises and commence its business
operations therein on November 1, 1995. Tenant and Landlord understand that ISA
currently occupies and will continue to occupy the premises covered under this
Lease until October 31, 1995. Landlord and ISA will cooperate with Tenant so
that the transition period will run smoothly and so as to minimize inconvenience
to any party involved. Tenant shall pay to Landlord the sum of $12,500.00 for
such occupancy for the month of November, 1995. Tenant shall pay no base rental
or other charges for its occupancy of the premises for the month of
1
December, 1995. As of the Commencement Date, all base rental and other charges
hereunder shall be payable in accordance with the terms and conditions of this
Lease.
37TH: Commencing upon the Commencement Date hereunder, Tenant shall pay
to Landlord, in twelve (12) equal monthly installments together with the base
rental, an amount equal to 82.169% ("Tenant's share" or "Tenant's pro rata
share") of the following charges:
1. Real estate taxes on the Building and Land.
2. Commercial liability insurance and extended coverage "All Risk"
insurance, in an amount equal to the replacement cost of the Building,
and any other insurance that Landlord reasonably deems necessary for the
protection of the Building and Land.
3. Maintenance and repairs to the common areas serving the Building,
including without limitation landscaping, snow removal and clean-up of
the parking lot (the "Common Area Expenses").
4. Any inspections and maintenance to the fire sprinkler systems.
38TH: Except to the extent expressly otherwise provided herein, Tenant
shall, at its sole cost and expense, maintain and repair the non-structural
interior portions of the premises, including without limitation the air
conditioning and heating units exclusively serving the premises, and all
electrical wiring and plumbing lines after the point that they enter the
premises. Landlord warrants that, as of the Commencement Date, all of the above
systems shall be in good working order and repair.
39TH: Tenant shall have the option to renew this Lease for an additional
three (3)-year period, beginning on July 1, 1999, and ending on June 30, 2002.
Tenant shall have the right to exercise such option to renew by written notice
to Landlord given on or before June 30, 1998. If Tenant fails to so notify
Landlord, Tenant shall be deemed to have waived its option. All terms and
conditions of this Lease shall remain the same during the option period except
that the annual base rental shall be increased by an amount equal to three
percent (3%) of the previous year's base rental. This increase shall take place
each and every January 1st during the option period, it being understood and
agreed that the base rental for the period commencing on July 1, 1999 and
continuing through and including December 31, 1999, shall be paid at the annual
rate in effect at the time of expiration of the original Term of this Lease.
Notwithstanding anything to the contrary contained herein, in no event shall
Tenant be obligated to make any payment of base rental hereunder prior to the
substantial completion of Landlord's Work. The term "substantial completion" for
purposes of this Section shall mean completion of Landlord's Work in accordance
with Schedule A hereto, with the exception of minor punchlist items that can be
fully completed within ten (10) working days without material interference with
Tenant's use and occupancy of the premises as permitted hereunder.
2
40TH: The term "real estate taxes" for purposes of this Lease shall mean
all ad valorem real estate taxes payable with respect to the building in which
the premises are located (the "Building") and the land on which the Building is
situated (the "Land"). The term "real estate taxes" shall also include such
taxes as may be imposed in lieu of ad valorem real estate taxes; provided,
however, that in no event shall Tenant be responsible for payment of any
inheritance, estate, succession, transfer or gift tax imposed on Landlord or any
income tax or any other like tax which is measured in any manner by the income
or profit of Landlord. Within thirty (30) days after the end of each full or
partial tax year falling within the Term of this Lease, as the same may be
extended, Landlord shall deliver to Tenant (i) a copy of the paid tax xxxx(s)
relating to such tax year and (ii) Landlord's computation of Tenant's share of
the taxes covered by such xxxx(s). If the tax payments previously made by Tenant
with respect to such tax year either exceed or are less than Tenant's share of
the actual taxes evidenced by such xxxx(s), the difference shall be paid by or
reimbursed to Tenant, as appropriate, within fifteen (15) days after Tenant's
receipt of such xxxx(s). Tenant shall not, in any event, be liable for any
interest or penalty charge payable by Landlord with respect to any tax xxxx
unless such charge is the result of Tenant's failure to make its tax payments to
Landlord hereunder in a timely manner in accordance with the provisions of this
Section. A fair and equitable adjustment shall be made with respect to any tax
payments due from Tenant to Landlord in connection with the first and last
periods of the Term of this Lease, as the same may be extended, since said
periods may not coincide with the tax years involved. If Landlord shall obtain
any abatement, refund or rebate in real estate taxes applicable to the Building
or Land, Landlord shall promptly forward to Tenant its pro rata share of said
abatement, refund or rebate, less Tenant's pro rata share of the cost and
expense of obtaining the same. Notwithstanding anything to the contrary
contained herein, Landlord shall elect to pay in installments, over the longest
period allowed by the applicable taxing authority, any betterment or special
assessment included within the definition of real estate taxes hereunder, and
Tenant shall only be obligated to pay its pro rata share of those installments
which are allocable to the Term of this Lease, as the same may be extended.
41ST: Landlord agrees to maintain in good condition and repair the
sprinkler system for the Building, to keep the parking areas serving the
Building well-lighted and to perform all landscaping of the Land and all
maintenance of, and snow and ice removal from, all paved areas of the Land, all
in such manner as shall be in keeping with first-class industrial park practices
and, to the extent practicable, without interfering with the conduct of Tenant's
business. Tenant's share of the Common Area Expenses shall be prorated with
respect to any partial year at the commencement or expiration (or earlier
termination) of the Term of this Lease, as the same may be extended. Within
sixty (60) days after the end of each calendar year, Landlord shall provide to
Tenant a detailed statement of the Common Area Expenses for such year in form
and with accompanying back-up documentation reasonably satisfactory to Tenant.
If the payments previously made by Tenant with respect to such year either
exceed or are less than Tenant's share of the actual Common Area Expenses as
evidenced by such statement, the difference shall be paid by or reimbursed to
Tenant, as appropriate, within fifteen (15) days after Tenant's receipt of said
statement. In no event shall any of the following be included within the
definition of Common Area Expenses: Original costs of acquisition of land or
constructions, the cost of any Capital Improvement (as defined in Section 7
above), administrative costs, management fees, real estate taxes, depreciation,
interest amortization, refinancing costs, overhead and profit, any item for
3
which Landlord is otherwise compensated or which is otherwise payable to
Landlord pursuant to the terms of this Lease, the cost of redecorating,
subdividing or otherwise preparing another tenant's space, interest or penalties
resulting from late payments by Landlord and any other cost benefiting specific
tenant(s) and not all tenants generally. Tenant shall have the right from time
to time, by its accountants or representatives, to inspect and examine all of
Landlord's records (including without limitation supporting data) relating to
the calculation of Common Area Expenses payable by Tenant hereunder, as well as
to request and receive reasonable invoice support with respect to the same.
Landlord shall retain such records for at least two (2) years. In the event that
any such inspection discloses that Tenant has paid an amount in excess of
Tenant's pro rata share, Landlord shall refund such excess to Tenant promptly
upon demand. In addition, in the event that any such inspection discloses that
Landlord has charged Tenant in excess of three percent (3%) more than the amount
properly chargeable to Tenant, Landlord shall reimburse to Tenant the reasonable
costs of such inspection promptly upon demand.
42ND: Notwithstanding anything to the contrary contained herein, Tenant
may, but shall not be obligated to, cure, at any time following ten (10) days'
prior written notice to Landlord (except in cases of emergency when no notice
shall be required), any default by Landlord under this Lease, and Tenant may
reimburse itself for the cost thereof out of payments thereafter accruing
hereunder (with any unreimbursed balance remaining upon the expiration or
earlier termination of this Lease to be promptly paid by Landlord to Tenant).
43RD: If any action at law or in equity is brought to enforce or
interpret the provisions of this Lease, the prevailing party in such action
shall be entitled to reimbursement of the reasonable attorneys' fees and
disbursements and court costs incurred by said prevailing party in connection
with such action.
44TH: Landlord agrees to indemnify, defend and hold harmless Tenant, its
parent, subsidiaries and affiliates, and their respective officers, directors,
shareholders and employees, from and against any and all liabilities, losses,
damages, suits, actions, causes of action, costs, expenses (including without
limitation reasonable attorneys' fees and disbursements and court costs),
penalties, fines, demands, judgments, claims or liens (including without
limitation liens or claims imposed under any so-called "Superfund" or other
environmental legislation) arising from or in connection with the presence at
the time of Tenant's taking possession of the Premises of Hazardous Materials
(as hereinafter defined) on, or the subsequent removal thereof from, the
Premises.
Tenant agrees to indemnify, defend and hold harmless Landlord from and
against any and all liabilities, losses, damages, suits, actions, causes of
action, costs, expenses (including without limitation reasonable attorneys' fees
and disbursements and court costs), penalties, fines, demands, judgments, claims
or liens (including without limitation liens or claims imposed under any
so-called "Superfund" or other environmental legislation) arising from or in
connection with the use, storage, release or discharge by Tenant of Hazardous
Materials on, or the subsequent removal thereof from, the Premises.
4
For purposes of this Section, the term "Hazardous Materials" shall
include without limitation any petroleum product, any flammable, explosive or
radioactive material, or any hazardous or toxic waste, substance or material,
including without limitation substances defined as "hazardous substances",
"hazardous materials," "solid waste" or "toxic substances" under any applicable
laws relating to hazardous or toxic materials and substances, air pollution
(including noise and odors), water pollution, liquid and solid waste,
pesticides, drinking water, community and employee health, environmental land
use management, stormwater, sediment control, nuisances, radiation, wetlands,
endangered species, environmental permitting and petroleum products, which laws
may include, but not be limited to, the Federal Insecticide, Fungicide, and
Rodenticide Act, as amended; the Toxic Substances Control Act; the Clean Water
Act; the National Environmental Policy Act, as amended; the Solid Waste Disposal
Act, as amended; the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986; the Hazardous Materials Transportation Act, as
amended; the Resource Conservation and Recovery Act, as amended; the Clean Air
Act, as amended; the Emergency Planning and Community Right-to-Know Act, as
amended; the Occupational Safety and Health Act, as amended; comparable state
laws; and all rules and regulations promulgated pursuant to such laws and
ordinances.
The provisions of this Section shall survive the expiration or earlier
termination of the Term of this Lease, as the same may be extended.
45TH: So long as Tenant shall be contesting, in good faith and by
appropriate legal proceedings, the validity of any law, ordinance, order or
regulation, compliance with which is the responsibility of Tenant under this
Lease, Tenant may defer compliance with the same provided Tenant first gives
Landlord assurance reasonably satisfactory to Landlord against any loss, cost or
expense on account thereof.
46TH: This Lease shall be governed by and construed in accordance with
the laws of the State of New Jersey. No delay or omission on the part of either
party to this Lease in requiring performance by the other party or in exercising
any right hereunder shall operate as a waiver of any provisions hereof or of any
right hereunder, and the waiver, omission or delay in requiring performance or
exercising any right hereunder on any one occasion shall not be construed as a
bar to or waiver of such performance or right on any future occasion. Any and
all rights and remedies which either party may have under this Lease, at law or
in equity, shall be cumulative and shall not be deemed inconsistent with each
other, and any two or more of all such rights and remedies may be exercised at
the same time insofar as permitted by law. The individuals executing this Lease
hereby represent and warrant that they are empowered and duly authorized to so
execute this Lease on behalf of the parties they represent.
47TH: Landlord shall indemnify, defend and hold harmless Tenant, its
parent, subsidiaries and affiliates, and their respective officers, directors,
shareholders and employees, from and against any and all damages, liabilities,
actions, causes of action, suits, claims, demands, losses, costs and expenses
(including without limitation reasonable attorneys' fees and disbursements and
court costs) to the extent arising from or in connection with (i) the negligence
or willful misconduct of Landlord, its agents, employees, representatives or
contractors or (ii)
5
Landlord's breach of any of the provisions of this Lease; provided, however,
that Landlord shall have no liability under this Section to the extent any such
damages, liabilities, actions, causes of action, suits, claims, demands, losses,
costs or expenses are caused by the negligence or willful misconduct of Tenant,
its agents, employees, representatives or contractors. The provisions of this
Section shall survive the expiration or earlier termination of the Term of this
Lease, as the same may be extended.
LANDLORD:
/s/ XXXXXX XXXXX
-----------------------------------------
Xxxxxx Xxxxx
TENANT:
INTERNATIONAL TECHNIDYNE CORPORATION,
a Delaware corporation
By: /s/ XXXXXX XXXXXXX
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
6
[FLOOR PLAN]
SCHEDULE A
