LEASE AGREEMENT
BY AND BETWEEN
611 Industrial Way, L.L.C.
AND
Logimetrics, Inc.
Dated: November 30, 1998
THIS LEASE, made the 30th day of November, 1998 between 000 Xxxxxxxxxx
Xxx, L.L.C. with an office at c/o X. Xxxxxxx, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxx Xxxxxx 00000 (hereinafter called "Lessor") and Logimetrics, Inc., a Delaware
corporation, whose address is 00 Xxxxxxx Xxxxx, Xxxxxxx, Xxx Xxxx 00000
(hereinafter called "Lessee").
REFERENCE PAGE
BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the
following terms whenever used in this Lease should have only the meanings set
forth in this section, unless such meanings are expressly modified, limited or
expanded elsewhere herein.
. Additional Rent shall mean all sums in addition to Basic Rent payable
by Lessee to Lessor pursuant to the provisions of this Lease.
. Broker shall mean: Marketing Associates Corporate Realty, Inc.
. Building shall mean: 000 Xxxxxxxxxx Xxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx.
. Commencement Date is January 1, 1999 and shall for purposes hereof be
subject to Paragraph 42 hereof.
. Demised Premises or Premises: Approximately 36,500 rentable square
feet of space as shown on "Exhibit A" attached hereto.
. Basic Rent shall mean the minimum amount payable as follows:
A. First Lease Year:
(i) Yearly Rate: $182,750.00
(ii) Monthly Installment: $ 15,229.17
B. Second Lease Year:
(i) Yearly Rate: $184,000.00
(ii) Monthly Installment: $ 15,333.33
C. Third Lease Year:
(i) Yearly Rate: $203,750.00
(Ii) Monthly Installment: $ 16,979.17
D. Fourth and Fifth Lease Year:
(i) Yearly Rate: $230,750.00
(ii) Monthly Installment: $ 19,229.17
. Permitted Use shall be manufacture and assembly of electronic
components and office and administrative use only.
. Security Deposit shall be $24,125.
. Term shall mean five (5) years from the Commencement Date.
. Termination Date shall be the day before the fifth (5th) anniversary
of the Commencement Date unless extended as provided herein.
. Building Area shall mean the Building and surrounding land and
improvements.
. Lessee's Percentage: 26.98% subject to adjustment as set forth in
Paragraph 41A.
For and in consideration of the covenants herein contained, and upon
the terms and conditions herein set forth, Lessor and Lessee agree as follows:
. DESCRIPTION. Lessor hereby leases to Lessee, and Lessee hereby hires
from Lessor, the Demised Premises as defined on the Reference Page
(hereinafter called "Demised Premises" or "Premises") as shown on the
plan or plans, initialed by the parties hereto, marked "Exhibit A"
attached hereto and made part of this Lease in the Building as defined
on the Reference Page which is situated on that certain parcel of land
(hereinafter called "Building Area") as described on the Reference
Page, together with the right to use the Building Area in common with
other lessees of the Building, their invitees, customers and
employees.
. TERM. The Premises are leased for the Term to commence on the
Commencement Date and to end at 12:00 midnight on the Termination
Date, all as defined on the Reference Page.
. BASIC RENT. The Lessee shall pay to the Lessor during the Term basic
rent as defined on the Reference Page (herein "Basic Rent") payable in
such coin or currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private
debts. The Basic Rent shall accrue at the Yearly Rate as defined on
the Reference Page and shall be payable in advance on the first day of
each calendar month during the Term at the Monthly Installments as
defined on the Reference Page, each, except that a proportionately
lesser sum may be paid for the first and last months of the Term of
this Lease if the Term commences on a day other than the first day of
the month, in accordance with the provisions of this Lease herein set
forth. Lessor acknowledges receipt from Lessee of the first Monthly
Installment by check, subject to collection, for Basic Rent for the
first month of the Lease Term. Lessee shall pay Basic Rent, and any
Additional Rent as hereinafter provided, to Lessor at Lessor's above
stated address, or at such other place as Lessor may designate in
writing, without demand and without counterclaim, deduction or setoff.
. USE AND OCCUPANCY. Lessee shall use and occupy the Premises for the
Permitted Use as defined on the Reference Page.
. CARE AND REPAIR OF PREMISES. Lessee shall commit no act of waste and
shall take good care of the Premises and the fixtures and
appurtenances therein, and shall, in the use and occupancy of the
Premises, conform at Lessee's expense to all laws, orders and
regulations of the federal, state and municipal governments or any of
their departments regarding the Demised Premises. Lessee at Lessee's
sole cost and expense shall make all repairs, including painting and
decorating and shall maintain the Premises and all of its systems in
good condition and state of repair; however, this obligation shall not
include making replacements unless caused by Lessee's neglect or
abuse. All improvements made by Lessee to the Premises, which are so
attached to the Premises that they cannot be removed without material
injury to the Premises, shall become the property of Lessor upon
expiration or sooner termination including, but not limited to those
items set forth in Paragraph 20 herein. Not later than the last day of
the Term, Lessee shall, at Lessee's expense, remove all Lessee's
personal property and those improvements made by Lessee which have not
become the property of Lessor, including trade fixtures, cabinet work,
movable paneling, partitions and the like; repair all injury done by
or in connection with the installation or removal of said property and
improvements; and surrender the Premises in as good condition as they
were at the beginning of the Term, reasonable wear and damage by fire,
the elements, casualty, or other cause not due to the misuse or
neglect by Lessee, Lessee's agent, servants, visitors or licensees
excepted. All other property of Lessee remaining on the Premises after
the last day of the Term of this Lease shall be conclusively deemed
abandoned and may be removed by Lessor, and Lessee shall reimburse
Lessor for the cost of such removal. Lessor may have any such property
stored at Lessee's risk and expense.
. ALTERATIONS, ADDITIONS OR IMPROVEMENTS. Except as may be provided in
Paragraph 20, 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
Premises, without the written consent of the Lessor. Lessee shall not
remove any of Lessee's improvements referenced in Exhibit "C"
("Lessee's Work Done at Lessee's Expense") or improvements of a
similar nature made by Lessee.
. ACTIVITIES INCREASING FIRE INSURANCE RATES. Lessee shall not do or
suffer anything to be done on the Premises which will increase the
rate of fire insurance on the Building.
. ASSIGNMENT AND SUBLEASE.
A. Lessee shall not assign this Lease to or sublet to or permit the
occupancy of all or any part of the Premises by any other party nor sublet a
portion of the Premises without the prior written consent of Lessor in each
instance. Subject to the terms and conditions set forth below, Lessee shall have
the privilege, without the consent of Lessor, to assign its interest in the
Lease (i) to any entity which is a successor to Lessee either by merger or
consolidation, (ii) to a purchaser or all or substantially all of Lessee's
assets or (iii) to any parent, subsidiaries or affiliates of Lessee. Lessee
shall, within ten (10) business days after execution thereof, deliver to Lessor
(a) a duplicate original instrument of assignment in form and substance
reasonably satisfactory to Lessor, duly executed by Lessee, and (b) an
instrument in form and substance reasonably satisfactory to Lessor, duly
executed by the assignee, in which such assignee shall assume observance and
performance of, and agree to be bound by, all of the terms, covenants and
conditions of this Lease on Lessee's part to be observed and performed.
B. If Lessee wishes to assign this Lease, or sublet of the Premises
other than as provided in Article 8(A) above, Lessee first shall so notify
Lessor ("Lessee's Notice"), specifying the name of the proposed assignee or
subtenant, the name of and character of its business and current information as
to the financial responsibility and standing of the proposed assignee or
sublessee and shall provide Lessor with such other information as it reasonably
requests. A complete copy of the proposed assignment or sublease to be executed
by Lessee and the assignee or subtenant shall accompany Lessee's Notice.
X. Xxxxxx may, within fifteen (15) days after its receipt of Lessee's
Notice, by notice to Lessee ("Lessor's Notice"), (i) require Lessee to assign
the Lease or sublease the Premises to Lessor or (ii) terminate this Lease as of
the proposed commencement date for such assignment or sublease as though such
date was the original expiration date set forth in this Lease, but, in either
event, Lessee shall be able to withdraw its Lessee's Notice thereby nullifying
Lessor's right to recapture all or part of the Premises or terminate Lease
pursuant to this Article. If Lessor fails to so exercise either of such options
within the time period specified above, it shall not unreasonably withhold or
delay its consent to the proposed assignment or sublease by Lessee, but such
consent shall be deemed of no effect if assignee or subtenant, as the case may
be, executing and delivering the assignment or sublease which accompanied in
Lessee's Notice within forty-five (45) days after such consent is given. If
Lessor does exercise its option to recapture all or any part of the Premises,
then (i) the Basic Rent shall be proportionately reduced during such recapture
period, and (ii) Lessor shall not Lease such recaptured space to any assignee or
subtenant proposed by Lessee for a period of 12 months from the date of Lessor's
Notice.
D. No assignment of this Lease shall be effective unless and until
Lessee delivers to Lessor duplicate originals of the instrument of assignment to
Lessor duplicate originals of the instrument of assignment (wherein the assignee
assumes the performance of Lessee's obligations under this Lease) and any
accompanying documents.
E. No sublease of all or any part of the Demised Premises shall be
effective unless and until Lessee delivers to Lessor duplicate originals of the
instrument of sublease (containing the provision requirement by subdivision (F)
and any accompanying documents. Any such sublease shall be subject and
subordinate to this Lease.
F. Any such sublease shall contain substantially the following
provision:
"In the event of a default under any underlying lease
of all or any portion of the premises demised hereby
which results in the termination of such lease, the
subtenant hereunder shall, at the option of the lessor
under any such lease, attorn to and recognize such
lessor as landlord hereunder and shall promptly upon
such lessor's request, execute and deliver all
instruments necessary or appropriate to confirm such
attornment and recognition. The subtenant hereunder
hereby waives all rights under any present or future
law to elect, by reason of the termination of such
underlying lease, to terminate this sublease or
surrender possession of the premises demised hereby."
X. Xxxxxx'x consent to any assignment or sublease shall neither
release Lessee from its liability for the performance of Lessee's obligations
hereunder during the balance of the Term nor constitute its consent to any
further assignment or sublease.
H. If Lessor shall give its consent to any assignment of this Lease or
any sublease, Lessee and any assignee shall, in consideration therefor, pay to
Lessor, 50% of all consideration received for any assignment and 50% of the
rent, as and when received, in excess of the rent required to be paid by Lessee
for the area sublet computed on the basis of an average square foot rent for the
gross square footage Lessee has leased.
I. (1) If Lessor shall decline to give it consent to any proposed
assignment or sublease, or if Lessor exercises any option under Subparagraph
8(C) above, Lessee shall indemnify, defend and hold harmless Lessor against and
from any and all loss, liability, damages, costs and expenses (including
reasonable counsel fees) resulting from any claims that may be made against
Lessor by the proposed assignee or sublessee or by any broker or other persons
claiming a commission or similar compensation in connection with the proposed
assignment or sublease.
(2) Lessee agrees that its sole remedy with respect to any assertion
that Lessor's failure to consent to any sublet or assignment violates the term
of this Lease shall be the remedy of specific performance and Lessee shall have
no other claim or cause of action against Lessor as a result of Lessor's actions
in refusing to consent thereto.
. COMPLIANCE WITH LAW.
A. The Lessee covenants and agrees, at its own cost and expense, to
comply with such regulations or requests as may be required by the fire or
liability insurance carriers providing insurance for the Premises, and will
further comply with such other requirements that may be promulgated by the Board
of Fire Underwriters, in connection with the use and occupancy by the Lessee of
the Premises in the conduct of its business.
B. The Lessee covenants and agrees that it will not commit any
nuisance, nor permit the emission of any objectionable sound, noise or odors
which would be violative of any applicable governmental rule or regulation or
would per se create a nuisance. The Lessee further covenants and agrees that it
will handle and dispose of all rubbish, garbage and waste in connection with the
Lessee's operations in the Premises in accordance with reasonable regulations
established by the Lessor from time to time in order to keep the Premises in an
orderly condition and in order to avoid unreasonable emission of dirt, fumes,
odors or debris which may constitute a nuisance or induce pests or vermin. The
Lessee may maintain a trash receptacle(s) of an appropriate size considering the
size of the Premises in the rear of the Premises.
C. In case the Lessee shall fail or neglect to comply with the
aforesaid statutes, ordinances, rules, orders, regulations and requirements or
any of them, or in case the Lessee shall neglect or fail to make any necessary
repairs which are hereunder Lessee's responsibility, then the Lessor or the
Lessor's agents may after ten (10) days' notice (except for emergency repairs,
which may be made immediately) enter the Premises and make said repairs and
comply with any and all of the said statutes, ordinances, rules, orders,
regulations or requirements, at the cost and expense of the Lessee and in case
of the Lessee's failure to pay therefor, the said cost and expense shall be
added to the next month's rent and be due and payable as such. This provision is
in addition to the right of the Lessor to terminate this Lease by reason of any
default on the part of Lessee, subject to the rights of the Lessee as
hereinabove mentioned in the manner as in this Lease otherwise provided.
. DAMAGES TO BUILDING.
A. In case of any damage to or destruction of any portion of the
Building of which the Premises is a part by fire or other insured casualty
occurring during the Term (or previous thereto), which shall render the Premises
untenantable or unfit for occupancy, which damage cannot be repaired within one
hundred twenty (120) days from the happening of such casualty, using reasonable
diligence (the foregoing shall be called "Total Destruction") then, and in such
event, the Term hereby created shall, at the option of the Lessor or the Lessee,
upon written notice to the other party by certified mail, return receipt
requested, within twenty (20) days of such fire or casualty, cease and become
null and void from the date of such Total Destruction. In such event the Lessee
shall immediately surrender the Premises and the Lessee's interest in said
Lease, to the Lessor, and the Lessee shall only pay rent to the time of such
Total Destruction in which event, the Lessor may re-enter and re-possess the
Premises thus discharged from this Lease and may remove all parties therefrom.
However, in the event of Total Destruction as hereinbefore defined, if the
Lessor and Lessee shall elect not to cancel this Lease within the twenty (20)
days period hereinabove provided, the Lessor shall thereupon repair and restore
the same with reasonable speed and dispatch, and the rent shall be
proportionally abated after said damage and while the repairs and restorations
are being made.
B. In the event of any other insured casualty which shall not be
tantamount to Total Destruction the Lessor shall repair and restore the Premises
with reasonable speed and dispatch, and the rent shall not be abated.
C. In the event of any uninsured casualty, the Lessor may elect to
treat the casualty as though it had insurance or it may terminate the Lease. If
it treats the casualty as though it had insurance then the provisions of
Paragraphs 10A and 10B shall apply. The Lessor shall serve a written notice upon
the Lessee by certified mail, return receipt requested, within twenty (20) days
of the casualty specifying the election which it chooses to make.
D. In the event of such fire or casualty as above provided wherein the
Lessor shall rebuild, the Lessee agrees at its cost and expense, to forthwith
remove any and all of its equipment, fixtures, stock and personal property as
the same may be required to permit Lessor to expedite rebuilding and/or repair.
In any event, the Lessee shall assume at its sole risk the responsibility for
damage or security with respect to any such removed fixtures and equipment.
E. The Lessee agrees that the said Lessor's agents, and other
representatives, shall have the right to enter into and upon the Premises, or
any part thereof, at all reasonable hours for the purpose of examining the same
upon reasonable advance written notice of not less than twenty-four (24) hours
(except in the event of emergency), or making such repairs or alterations
therein as may be necessary for the safety and preservation thereof, or to
repair and maintain the common utilities without unduly or unreasonably
disturbing the operations of the Lessee (except in the event of emergency).
F. The provisions of this paragraph 10 shall in all respects be
subject to the provisions of paragraph 49 hereof.
. EMINENT DOMAIN. If Lessee's use of the Premises is materially affected
due to the taking of eminent domain of (a) the Premises or any part
thereof or any estate therein; or (b) any other part of the Building;
then, in either event, this Lease shall terminate on the date when
title vests pursuant to such taking. The Basic Rent, and any
Additional Rent, shall be apportioned as of said termination date and
any Basic or Additional Rent paid for any period beyond said date
shall be repair to Lessee. Lessee shall not be entitled to any part of
the award for such taking or any payment in lieu thereof, but Lessee
may file a separate claim for any taking of fixtures and improvements
owned by Lessee which have not become the Lessor's property, and for
moving expense, provided the same shall in no way affect or diminish
Lessor's award. In the event of a partial taking which does not effect
a termination of this Lease but does deprive Lessee of the use of a
portion of the Premises which does not materially affect the Lessee's
use and operation, there shall either be an abatement or an equitable
reduction of the Basic Rent, and an equitable adjustment reducing the
Lessee's Percentage as herein defined depending on the period for
which and the extent to which the Premises so taken are not reasonably
usable for the purpose for which they are leased hereunder.
. INSOLVENCY OF LESSEE. Either (a) the appointment of a receiver to take
possession of all or substantially all of the assets of Lessee not
discharged within sixty (60) days from the date of such appointment,
or (b) a general assignment by Lessee for the benefit of creditors not
discharged within sixty (60) days from the date of such assignment, or
(c) any action taken or suffered by Lessee under any insolvency or
bankruptcy act, shall constitute a default of this Lease by Lessee,
and Lessor may terminate this Lease forthwith and upon notice of such
termination Lessee's right to possession of the Premises shall cease,
and Lessee shall then quit and surrender the Premises to Lessor but
Lessee shall remain liable as hereinafter provided in Paragraph 14
hereof.
. LESSOR'S REMEDIES ON DEFAULT.
A. Each of the following shall be deemed a default by Lessee and a
breach of this Lease:
(i) Default in the payment of the Basic Rent or Additional Rent
herein reserved or any part thereof for more than ten (10) days after same is
due and payable as in this Lease required.
(ii) A default in the performance of any other covenant or
condition (other than as set forth above) of this Lease on the part of the
Lessee to be performed for a period of thirty (30) days after written notice.
(iii) A breach of Paragraph 12 hereof.
B. In case of any such default under subparagraph 13A, at any time
following the expiration of the respective grace periods above mentioned, Lessor
may serve a notice upon the Lessee electing to terminate this Lease upon a
specified date not less than ten (10) working days after the date of serving
such notice and this Lease shall then expire on the date so specified as if that
date had been originally fixed as the expiration date of the term herein
granted.
C. In case this Lease shall be terminated as hereinbefore provided, or
by summary proceedings or otherwise, Lessor or its agents may, immediately or
any time thereafter, reenter and resume possession of the Premises or such part
thereof, and remove all persons and property therefrom, either by summary
proceedings or by a suitable action or proceeding at law, without being liable
for any damages therefor and all at the cost and expense of Lessee including but
not limited to the attorney's fees of Lessor. No re-entry by Lessor shall be
deemed an acceptance of a surrender of this Lease.
D. In case this Lease shall be terminated as herein provided, or by
summary proceedings or otherwise, Lessor may, in its own name and in its own
behalf, relet the whole or any portion of the Premises, for any period equal to
or greater or less than the remainder of the Term, for any sum which it may deem
reasonable, to any tenant which it may deem suitable and satisfactory, and for
any use and purpose which it may deem appropriate, and in connection with any
such lease Lessor may make such changes in the character of the improvements on
the Premises as Lessor may determine to be appropriate or helpful in effecting
such lease and may grant concessions or free rent. Lessor shall not in any event
be required to pay Lessee any surplus of any sums received by Lessor on a
reletting of the Premises in excess of the rent reserved in this Lease.
. DEFICIENCY. In any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may, at Lessor's
option, occupy the Premises or cause the Premises to be redecorated,
altered, divided, consolidated with other adjoining premises, or
otherwise changed or prepared for reletting, and may relet the
Premises or any part thereof as agent of Lessee or otherwise, for a
term or terms to expire prior to, at the same time as, or subsequent
to, the original expiration date of this Lease, at Lessor's option,
and receive the rent therefor. Rent so received shall be applied first
to the payment of such expenses as Lessor may have incurred in
connection with the recovery of possession; redecorating, altering,
dividing, consolidating with other adjoining premises, or otherwise
changing or preparing for reletting, and the reletting, including
brokerage and reasonable attorneys' fees, and then to the payment of
damages in amounts equal to the rent hereunder and to the costs and
expenses of performance of the other covenants of Lessee as herein
provided. Lessee agrees, in any such case, whether or not Lessor has
relet, to pay to Lessor damages equal to the Basic Rent and other sums
herein agreed to be paid by Lessee, less the net proceeds of the
reletting, if any, as ascertained from time to time, and the same
shall be payable by Lessee on the several rent days above specified.
Lessee shall not be entitled to any surplus accruing as a result of
any such reletting. In reletting the Premises as aforesaid, Lessor may
grant rent concessions, and Lessee shall not be credited therewith. No
such reletting shall constitute a surrender and acceptance or be
deemed evidence thereof. If Lessor elects, pursuant hereto, actually
to occupy and use the Premises or any part thereof during any part of
the balance of the Term as originally fixed or since extended, there
shall be allowed against Lessee's obligation for rent or damages as
herein defined, during the period of Lessor's occupancy, the
reasonable value of such occupancy, not to exceed in any event the
Basic Rent herein reserved and such occupancy shall not be construed
as a release of Lessee's liability hereunder.
Alternately, in any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may, at Lessor's option, and at
any time thereafter, and without notice or other action by Lessor, and without
prejudice to any other rights or remedies it might have hereunder or at law or
equity, become entitled to recover from Lessee, as damages for such breach, in
addition to such other sums herein agreed to be paid by Lessee, to the date of
re-entry, expiration and/or dispossession, an amount equal to the difference
between the Base Rent and Additional Rent reserved in this Lease from the date
of such default to the date of expiration of the original Term demised and the
then fair and reasonable rental value of the Premises for the same period. Said
damages shall become due and payable to Lessor immediately upon such breach of
this Lease and without regard to whether this Lease be terminated or not, and if
this Lease be terminated, without regard to the manner in which it is
terminated. In the computation of such damages, the difference between any
installments of Base Rent and Additional Rent thereafter to become due and the
fair and reasonable rental value of the Premises for the period for which sum
installment was payable shall be discounted to the date of such default at the
rate of six (6%) percent per annum.
Lessee hereby waives all right of redemption to which Lessee or any
person under Lessee might be entitled by any law nor or hereafter in force.
Lessor's remedies hereunder are in addition to any remedy allowed by
law.
. SUBORDINATION OF LEASE. This Lease shall be subject and subordinate to
any underlying leases and to any mortgage and/or trust deed which may
now or hereafter affect the real property of which the Premises forms
a part, and also to all renewals, modifications, consolidations and
replacements of said underlying leases and said mortgage and/or trust
deed. Although no instrument or act on the part of Lessee shall be
necessary to effectuate such subordination, Lessee will, nevertheless,
execute and deliver such further instruments confirming such
subordination of this Lease as may be desired by the holders of said
first mortgage and trust deeds or by any of the lessors under such
underlying leases.
. PARKING
Subject to intervening laws, ordinances, regulations and executive
orders, while Lessee is not in default under any of the provisions of this
Lease, Lessor agrees to allow Lessee the use of one hundred (100) parking spaces
for Lessee's use at the Building. Lessee shall have the exclusive use of the
entire east lot for parking only. The east lot is shown and designated on
Exhibit "A". The balance of parking spaces for Lessee shall be in the center
parking lot and shall not be reserved or designated. Lessee shall have the right
to install signs upon Lessor's prior approval not to be unreasonably withheld
indicated the parking in the east lot is reserved exclusively for Lessee's
parking.
. RIGHT TO CURE LESSEE'S BREACH. If Lessee breaches any covenant or
condition of this Lease, Lessor may, on reasonable written notice to
Lessee (except that no notice need be given in case of emergency),
cure such breach at the expense of Lessee and the reasonable amount of
all expenses, including attorney's fees, incurred by Lessor in so
doing (whether paid by Lessor or not) shall be deemed Additional Rent
payable on demand; provided, however, that this provision shall not
impose any obligation upon Lessor to cure such default.
. CONSTRUCTION LIENS. Lessee shall, within ten (10) days after notice
from Lessor, discharge or satisfy by bonding or otherwise any
construction liens for materials or labor claimed to have been
furnished to the Premises on Lessee's behalf.
. RIGHT TO INSPECT AND REPAIR. Lessor may enter the Premises but shall
not be obligated to do so (except as required by any specific
provision of this Lease) at any reasonable time on reasonable written
notice to Lessee (except that no notice need be given in case of
emergency) for the purpose of inspection or the making of such
repairs, replacement or additions, in, to, on and about the Premises
or the Building, as Lessor deems necessary or desirable. Lessee shall
have no claims or cause of action against Lessor by reason thereof. In
no event shall Lessee have any claim against Lessor for interruption
to Lessee's business, however occurring. 20. LESSOR AND LESSEE WORK.
A. Lessor's Work in the Demised Premises. Lessor shall deliver the
Demised Premises substantially "vanilla box" condition in accordance with the
requirements set forth in Exhibit "B" "Lessor's Work Done at Lessor's Expense",
annexed hereto ("Lessor's Work"). Lessor shall commence and complete Lessor's
Work as soon as may practically be done which shall be as close as possible to
January 1, 1999, but Lessor shall not be liable in any manner whatsoever for its
failure to do so. Any of Lessor's Work to be done on the exterior may be done
either contemporaneous with Lessee's Work or promptly after Lessee's completion
of its work.
B. Lessee's Work. Commencement of work.
1. Promptly after Lessor notifies Lessee that the shell of the Demised
Premises is ready for commencement of Lessee's Work (as defined below), Lessee
shall commence and thereafter complete with due diligence its construction work
and installation of fixtures in accordance with its construction obligations set
forth in Exhibit "C" "Lessee's Work Done at Lessee's Expense", annexed hereto
and in accordance with its Working Plans and Specifications attached hereto as
Exhibit "D" ("Lessee's Work"). If Lessee shall neglect, fail or refuse to
commence its work as aforesaid and thereafter neglects, fails or refuses to
diligently proceed with and complete its work, Lessor, in addition to its other
rights and remedies and after thirty (30) days' written notice given to Lessee,
may (a) complete Lessee's work at Lessee's expense, (b) commence the Term and
all of Lessee's payment obligations hereunder, notwithstanding the incompletion
of Lessee's Work, or (c) declare this Lease cancelled and of no further force
and effect.
2. Preliminary Work. Lessee may, with Lessor's consent, enter the
Demised Premises for preliminary work before Lessor completes Lessor's Work,
provided that Lessee's Work is done in a manner that does not interfere with
either the completion of Lessor's Work or any of its labor agreements.
3. Certificates; Entry by Lessee. Lessee shall furnish Lessor with
copies of all certificates, permits and approvals with respect to work done by
Lessee or on its behalf that may be required by any governmental authority for
the issuance of a certificate of occupancy. Lessor shall not be responsible for
any loss or damage to any fixtures or equipment installed or left in the Demised
Premises. Lessee's entry on and occupancy of the Premises before the
commencement of this Lease shall be governed by and subject to all of its
provisions, covenants, and conditions, other than those requiring the payment of
Basic Rent and Additional Rent.
4. Preliminary Plans. Lessee shall furnish preliminary plans and
specifications incorporating its construction obligations under Exhibit "C" for
Lessor's prior approval within 15 days after Lessor's architects provide Lessee
with outline plans for the Demised Premises. Lessor has three (3) business days
to review the preliminary plans. If Lessor fails to object to the plans in
writing within the specified time period, Lessor shall be deemed to have
approved the plans. Within 20 days after Lessor approves the Lessee's
preliminary plans and specifications, Lessee shall submit working plans and
specifications for Lessor's review and prior approval. The Lessor's approval of
the preliminary plans and specifications and the working plans and
specifications shall not constitute its assumption of any liability for their
compliance or conformity with applicable building codes and the requirements of
this Lease or for their accuracy, and Lessee shall be solely responsible for
such plans and specifications. The working plans and specifications shall be for
a modern, first class, fully air conditioned office for high tech use. The
Demised Premises shall be a complete, self-sustaining, operating unit and be of
a design and character, and appearance appropriate and in keeping with the rent
of the Building and the neighborhood.
5. Approval of Contractors. Any contractor used by the Lessee to
perform its work under Exhibit "C" "Lessee's Work Done at Lessee's Expense",
must first be approved in writing by Lessor. Lessor approves of American
Building Group as the Lessee's contractor.
6. Construction. After the Eatontown Construction Offices issues a
permit based upon approved plans and specifications, Lessor, at its expense,
shall with diligence and continuity, construct the improvements in accordance
with the working plans and specifications approved by Lessor. All construction
required hereunder shall be performed diligently, in conformity with all legal
safety requirements, in a good and workmanlike manner, and in accordance with
the standards required by the municipal construction official. No construction
shall be commenced however, until Lessee shall deliver to Lessor the following:
(A) Completion bond. A contractors' completion bond of a surety
company or surety companies (or other assurances that are satisfactory to the
Lessor) running to the Lessor as obligee, conditioned on completion of the
building in accordance with approved Plans and Specifications and the provisions
of this Lease, free and clear of all mechanics' or other liens and security
agreements. If the Working Plans or Specifications are subsequently amplified or
modified, the bond shall immediately be modified to include such change. The
bond shall be in any form and written by any company which Lessor may approve,
but such approval shall not be unreasonably withheld.
7. Time Limitation. Notwithstanding any provision to the contrary
herein contained, Lessee shall comply with all the provisions of this paragraph
and be prepared to commence construction, by no later than the second
anniversary of the first day of the Term.
8. Delay. Such construction shall proceed with diligence and
continuity until completion, subject, however to fire, strikes, embargoes,
governmental restrictions, unavailability of construction materials or other
similar contingencies beyond the Lessee's control.
9. Compliance with the Law. The Lessee shall procure all the required
permits for the construction of the improvements and shall, during construction,
comply with all applicable legal requirements. Lessee's Work shall comply with
all applicable state, municipal, and other governmental laws, ordinances,
regulations and orders, and with all requirements of the local Fire Insurance
Rating Organization or similar body and of any liability for accidents in or
connected with the leased property. Before the Demised Premises is used for its
designed purpose the Lessee shall obtain and deliver to the Lessor a certificate
of occupancy, or a temporary certificate of occupancy if such is provided for by
law. If a certificate of occupancy is issued for any part of the Premises, the
part of the Premises so certified may be occupied. On Lessee's demand, Lessor
shall promptly execute all documents that require its signature in order to
obtain such certificate, but only if, in the opinion of its counsel, it incurs
no expense or liability thereby.
10. Inspection. During the construction of the Lessee's Work the
Lessor and its architects or engineers, or both, any, from time to time, inspect
the Premises and require that they be furnished with copies of all plans, shop
drawings, and specifications relating to construction. If, during construction
or at any time before a final certificate of occupancy is issued, Lessor or it
architects or engineers determine that the Premises is not being constructed in
accordance with the plans and specifications, prompt written notice shall be
given to Lessee specifying in detail the particular deficiency, omission or
other act of nonconformance. Upon receiving such notice, Lessee shall take all
necessary steps to make the proper corrections.
11. Changes and Additions. If after construction is begun the Lessee
desires substantial changes in the plans and specifications or substantial
additions thereto, it shall serve upon the Lessor a statement thereof, together
with appropriate plans and specifications showing in detail the nature of the
proposed changes or additions. Any change or addition proposed by Lessee shall
be deemed part of the plans and specifications approved by both parties unless,
within 20 days after receipt thereof, Lessor notifies Lessee that it refuses to
accept the proposed change or addition and the reason(s) why. Lessor, however,
shall not unreasonably withhold its consent. Minor changes in work or materials
that do not affect the general character of the alteration may be made in the
plans and specifications at any time without Lessor's approval.
21. INTERRUPTION OR SERVICES OR USE. Interruption or curtailment of
any service maintained in the Building or use of the Premises shall not entitle
Lessee to any claim against Lessor or to any abatement in rent, and shall not
constitute a constructive or partial eviction unless caused by Lessor's
negligence.
22. UTILITIES.
A. The Lessee shall pay when due all the rents or charges for
utilities used by the Lessee which are or may be assessed or imposed upon the
Premises or which are or may be charged to the Lessor by the suppliers thereof
during the term hereof. The Premises shall have separate meters to measure
utility consumption, except for water. Lessee shall share a water meter with all
other tenants in the Building except for Xxxxxx (or their replacement in the
west side of the building). Lessee shall pay its proportionate share of the
water charge to Lessor within thirty (30) days of a xxxx therefor. Lessee's
charge shall be based on its relative square frontage compared to the other
tenants sharing the water meter, i.e., 74.84%. The water charge shall be deemed
additional rent.
B. Lessee covenants and agrees that at all times its use of electric
current shall never exceed the capacity of existing feeders to the Building or
the risers or wiring installation.
X. Xxxxxx shall not be liable in any way to Lessee for any loss,
damage or expense which Lessee may sustain or incur as a result of any failure,
defect or change in the quantity or character of electrical energy, or other
utility, nor for any interruption in supply and Lessee agrees that such supply
may be interrupted for repairs and replacement and in emergencies.
23. ADDITIONAL RENT
A. Lessee shall promptly pay to Lessor any increase over the standard
cost of the fire and casualty insurance for the Building caused by Lessee's use
and operations. In addition, Lessee shall pay to Lessor Lessee's Percentage of
the cost of Lessor's casualty and liability insurance premium on the Building in
excess over the cost of same for the policy in effect as the date of this lease.
Such amounts shall be due within fifteen (15) days of a xxxx therefor. Lessor
shall provide Lessee with reasonable documentation upon request of Lessee.
B. Lessee shall maintain at its sole cost and expense during the term
hereof:
1. rental value insurance against loss of rental or other income
derived from the operation due to the risks referred to in the standard fire and
casualty insurance policy on the Building (including those embraced by "extended
coverage") in an amount equal to the aggregate amount of the Basic Rent for the
period of one (1) year.
C. Lessee shall pay annually Lessee's Percentage of the real estate
taxes assessed against the Building Area in excess over the real estate taxes
assessed against the Building Area for 1999 (the "Base Year"). For the final
year of the lease term, the Lessee shall pay only a pro rata share of such
proportion of any real estate taxes. The Lessor shall furnish the Lessee with a
statement of the real estate taxes assessed for each calendar year during the
Term. Such amounts shall be due by Lessee to Lessor within thirty (30) days of a
xxxx therefor.
24. LESSEE'S ESTOPPEL. Lessee shall, from time to time, on not less
than ten (10) days' prior written request by Lessor, execute, acknowledge and
deliver to Lessor a written statement certifying that the Lease is unmodified
and in full force and effect, or that the Lease is in full force and effect as
modified and listing the instruments of modification; the dates to which the
rents and charges have been paid; and, to the best of Lessee's knowledge,
whether or not Lessor is in default hereunder, and if so, specifying the nature
of the default. It is intended that any such statement delivered pursuant to
this Paragraph 24 may be relied on by a prospective purchaser of Lessor's
interest or mortgagee of Lessor's interest or assignee of any mortgage of
Lessor's interest.
25. CONDITION OF PREMISES. Neither the Lessor nor its agent have made
any representations with respect to the Building, the Premises, or the land upon
which the land is erected, except as expressly set forth herein and no rights,
easements or licenses are required by the Lessee by implication or otherwise,
except as expressly set forth in the provisions of this Lease. The Lessee shall
accept the Building, the Premises and the Building Area in their existing
condition and as provided in Paragraph 20A. In no event shall the Lessor be
liable for any defect in such property or for any limitation on its use, except
as expressly set forth herein.
26. SECURITY DEPOSIT. Lessee shall deposit with Lessor on the signing
of this Lease one half of the Security Deposit as defined on the Reference Page
and the other one half of the security deposit by January 1, 1999 as security
for the performance of Lessee's obligations under this Lease, including without
limitation, the surrender of possession of the Premises to Lessor as herein
provided or, alternatively, Lessee may deliver to Lessor an unconditional. If
Lessor applies any part of said deposit to cure any default of Lessee, Lessee
shall on demand deposit with Lessor the amount so applied so that Lessor shall
have the full deposit on hand at all times during the term of this Lease.
Lessor, in the event that the Demised Premises are sold, shall transfer and
deliver the security, as such, to the purchaser of the Demised Premises and
shall notify Lessee thereof and thereupon Lessor shall be discharged from any
further liability in reference thereto.
The Security Deposit (less any portions thereof used, applied, or
retained by Lessor in accordance with the provisions of this Paragraph 26),
shall be returned without interest to Lessee after the expiration or sooner
termination of this Lease without the fault of the Lessee and after delivery of
the entire Premises to Lessor in accordance with the provisions of this Lease.
Lessee covenants that it will not assign or encumber or attempt to assign or
encumber the Security Deposit and Lessor shall not be bound by any such
assignment, encumbrance or attempt thereof. In the event of the insolvency of
Lessee or in the event of the entry of a judgment declaring Lessee insolvent or
bankrupt in any court which is not discharged within sixty (60) days after
entry, or in the event a petition is filed by or against Lessee under any
chapter of the bankruptcy laws of the State of New Jersey or the United States
of America, then and in such event Lessor may require the Lessee to deposit
additional security (herein called the "Additional Security Deposit") in an
amount which in Lessor's sole reasonable judgment would be sufficient to
adequately assure Lessee's performance of all of its obligations under this
Lease including all payments subsequently accruing. Failure of Lessee to deposit
the Additional Security Deposit pursuant thereto within ten (10) days after
Lessor's written demand shall constitute a default by Lessee.
27. WAIVER OF TRIAL BY JURY. To the extent such waiver is permitted by
law, the parties waive trial by jury in any action or proceeding brought in
connection with this Lease or the Premises.
28. LATE CHARGE. Lessee recognizes that late payment of any rent or
other sum due hereunder will result in administrative expenses to Lessor, the
extent of which additional expense is extremely difficult and economically
impractical to ascertain. Lessee therefore agrees that if rent or any other sum
is due and payable pursuant to this Lease, and such amount remains due and
unpaid five (5) work days after said amount is due, such amount shall be
increased by a late charge in an amount equal to five (5%) percent per month.
The amount of the late charge to be paid by Lessee shall be reassessed and added
to Lessee's obligation for each successive monthly period until paid. The
provisions of this Paragraph 28 in no way relieve Lessee of the obligation to
pay rent or other payments on or before the date on which they are due, nor do
the terms of this Paragraph 28 in any way affect Lessor's remedies pursuant to
Paragraph 13 in the event said rent or other payment is unpaid after date due.
29. A. LESSEE'S LIABILITY INSURANCE. Lessee covenants to provide on or
before the Commencement Date a comprehensive policy of general liability
insurance naming the Lessor as an additional named insured, insuring Lessee and
Lessor against any liability commonly insured against and occasioned by accident
resulting from any act or omission on or about the Premises and any
appurtenances thereto. Such policy is to be written by an insurance company
qualified to do business in the State of New Jersey reasonably satisfactory to
Lessor. Such policy or program shall in no way limit the Lessee's liability to
Lessor pursuant to Paragraph 32 hereof. The policy shall be with limits not less
than Three Million and 00/100 ($3,000,000.00) Dollars in respect of any one
person, in respect of any one accident, and in respect of property damage. Said
limits shall be subject to periodic review and Lessor reserves the right to
increase said coverage limits, if in the reasonable opinion of Lessor, said
coverage becomes inadequate and is less than that commonly maintained by tenants
in similar buildings in the area by tenants making similar uses. At least thirty
(30) days prior to the expiration or termination date of any policy, the Lessee
shall deliver a renewal or replacement policy with proof of the payment of the
premium therefor.
X. XXXXXX'X FIRE INSURANCE. Lessor shall keep the Building insured
against loss or damage by fire with extended coverage endorsement in amounts and
with deductibles similar to the policy Lessor currently has in place.
30. NO OTHER REPRESENTATIONS. No representations or promises shall be
binding on the parties hereto except those representations and promises
contained herein or in some future writing signed by the party making such
representation(s) or promise(s).
31. QUIET ENJOYMENT. Lessor covenants that if, and so long as, Lessee
pays the Basic Rent, and any Additional Rent as herein provided, and performs
the covenants hereof, Lessor shall do nothing to affect Lessee's right to
peaceably and quietly have, hold and enjoy the Premises for the term herein
mentioned, subject to the provisions of this Lease.
32. INDEMNITY. Lessee and Lessor shall indemnify and save harmless the
other and their agents against and from (a) any and all claims arising from any
negligent or otherwise wrongful act or omission of either or any of their
subtenants or licensees or its or their employees, agents or contractors, and
(b) all costs, expenses and liabilities incurred in or in connection with each
such claim or action or proceeding brought thereon. In case any action or
proceeding be brought against Lessor or Lessee by reason of any such claim,
Lessee or Lessor, as the case may be, upon notice from the other, shall resist
and defend such action or proceeding.
33. PARAGRAPH HEADINGS. The paragraph headings in this Lease and
position of its provisions are intended for convenience only and shall not be
taken into consideration in any construction or interpretation of this Lease or
any of its provisions.
34. APPLICABILITY TO HEIRS AND ASSIGNS. The provisions of this Lease
shall apply to, bind and inure to the benefit of Lessor and Lessee, and their
respective heirs, successors, legal representatives and assigns. It is
understood that the term "Lessor" as used in this Lease means only the owner, a
mortgagee in possession or a term lessee of the Building, so that in the event
of any sale of the Building or of any lease thereof, or if a mortgagee shall
take possession of the Premises, the Lessor named herein shall be and hereby is
entirely freed and relieved of all covenants and obligations of Lessor hereunder
accruing thereafter, and it shall be deemed without further agreement that the
purchaser, the term lessee of the Building, or the mortgagee in possession has
assumed and agreed to carry out any and all covenants and obligations of Lessor
hereunder.
35. INTENTIONALLY OMITTED.
36. LESSOR'S LIABILITY FOR LOSS OF PROPERTY. Lessor shall not be
liable for any loss of property from any cause whatsoever except for Lessor's
gross negligence or wilful misconduct, including, but not limited to, theft or
burglary from the Premises, and Lessee covenants and agrees to make no claim for
any such loss at any time.
37. PARTIAL INVALIDITY. If any of the provisions of this Lease, or the
application hereof to any person or circumstances, shall to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected
thereby, and every provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
38. BROKER. The parties represent and warrant to one another that the
Broker as defined on the Reference Page is the sole broker(s) with whom the
parties have negotiated in bringing about this Lease and the parties agree to
indemnify and hold one another harmless from any and all claims of other brokers
and expenses in connection therewith arising out of or in connection with the
negotiation of or the entering into this Lease by Lessor and Lessee. Lessor
shall pay a brokerage commission to Broker pursuant to a separate agreement.
39. PERSONAL LIABILITY. Notwithstanding anything to the contrary
provided in this Lease, it is specifically understood and agreed, such agreement
being a primary consideration for the execution of this Lease by Lessor, that
there shall be absolutely no personal liability on the part of Lessor, its
successors, assigns or any mortgagee in possession (for the purposes of this
paragraph, collectively referred to as "Lessor"), with respect to any of the
terms, covenants and conditions of this Lease, and that Lessee shall look solely
to the equity of Lessor in the Building for the satisfaction of each and every
remedy of Lessee in the event of any breach by Lessor of any of the terms,
covenants and conditions of this Lease to be performed by Lessor, such
exculpation of liability to be absolute and without any exceptions whatsoever.
40. NO OPTION. The submission of this Lease Agreement for examination
does not constitute a reservation of or offer to lease or option for the
Premises, and this Lease Agreement becomes effective as a Lease Agreement only
upon execution and delivery thereof by Lessor and Lessee.
41. DEFINITIONS.
A. Lessee's Percentage. Lessee's Percentage wherever that phrase
is used, shall be as defined on the Reference Page, which the parties agree
reflects and will be continually adjusted to reflect the ratio of the gross
square feet of the area rented to Lessee as compared
with the total number of gross square feet of the entire Building, measured
outside wall to outside wall.
B. Force Majeure. Force Majeure shall mean and include those
situations beyond Lessor's control, including by way of example and not by way
of limitation, failure of federal, state or municipal officials to issue
necessary permits or licenses, acts of God, accidents, repairs, strikes,
shortages of labor, supplies or materials, inclement weather, or where
applicable, the passage of time while waiting for an adjustment of insurance
proceeds.
C. Lease Year. Lease Year shall mean each 12 month period
beginning with the Commencement Date of the Lease, and each anniversary thereof.
42. LEASE COMMENCEMENT. Notwithstanding anything contained herein to
the contrary, if Lessor, for any reason whatsoever cannot deliver possession of
the Premises as provided for herein to Lessee at the commencement of the agreed
term as set forth in Paragraph 2, this Lease shall not be void or voidable, nor
shall Lessor be liable to Lessee for any loss or damage resulting therefrom, but
in that event, the Lease Term shall be for the full term as specified above to
commence from and after the date Lessor shall have delivered possession of the
Premises to Lessee and to terminate midnight of the day immediately preceding
the Termination Date and if requested by Lessor, Lessor and Lessee shall, by a
writing signed by the parties, ratify and confirm said commencement and
termination dates.
43. NOTICES. Any notice by either party to the other shall be in
writing and shall be deemed to have been duly given only if delivered personally
or sent by overnight courier service providing a receipt for delivery in a
postpaid envelope addressed, if to Lessee, at the Building; if to Lessor, at
Lessor's address as set forth above; or, to either at such other address as
Lessee or Lessor, respectively, may designate in writing. Notice shall be deemed
to have been duly given, if delivered personally, in delivery thereof, and if
sent by overnight courier, upon the next day after the delivery thereof to such
courier service. Copies of all notices shall also be sent to the following:
If to Lessee: If to Lessor:
Xxxxxxxxxx Xxxxxxx, P.C. Xxxxx, Behot & Fiorenzo
00 Xxxxxxxxxx Xxxxxx 000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000 Xxxxxxxxxx, XX 00000
Att: Xxxx X. Xxxxxxxx, Esq. Att: Xxxxxxx X. Xxxx, Esq.
Fax: (000) 000-0000 Fax: (000) 000-0000
44. ACCORD AND SATISFACTION. No payment by Lessee or receipt by Lessor
of a lesser amount than the Basic Rent and Additional Rent payable hereunder
shall be deemed to be other than a payment on account of the earliest stipulated
Basic Rent and Additional Rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment for Basic Rent or
Additional Rent be deemed an accord and satisfaction, and Lessor may accept such
check or payment without prejudice to Lessor's right to recover the balance of
such Basic Rent and Additional Rent or pursue any other remedy provided herein
or by law.
45. EFFECT OF WAIVERS. No failure by Lessor to insist upon the strict
performance of any covenant, agreement, term or condition of this Lease, or to
exercise any right or remedy consequent upon a breach thereof, and no acceptance
of full or partial rent during the continuance of any such breach, shall
constitute a waiver of any such breach or of such covenant, agreement, term or
condition. No consent or waiver, express or implied, by Lessor to or of any
breach of any covenant, condition or duty of Lessee shall be construed as a
consent or waiver to or of any other breach of the same or any other covenant,
condition or duty, unless in writing signed by Lessor.
46. LESSOR'S RESERVED RIGHT. Lessor and Lessee acknowledge that the
Premises are in a Building which is not open to the general public. Access to
the Building is restricted to Lessor, Lessee, their agents, employees and
contractors and to their invited visitors. In the event of a labor dispute
including a strike, picketing, informational or associational activities
directed at Lessee or any other tenant, Lessor reserves the right unilaterally
to alter Lessee's ingress and egress to the Building or make any other change in
operating conditions to restrict pedestrian, vehicular or delivery ingress and
egress to particular location.
47. RIGHT TO EXHIBIT. Lessee agrees to permit the Lessor and the
Lessor's agents, employees or other representatives to show the Premises to
persons wishing to rent or purchase the same and Lessee agrees that on and after
nine (9) months next proceeding the expiration of the Term hereof the Lessor or
the Lessor's agents, employees or other representatives shall have the right to
place notices on the front of the Premises or any part thereof offering the
Premises for rent or for sale and the Lessor hereby agrees to permit the same to
remain there without hindrance or molestation provided same does not
unreasonably interfere with the conduct of Lessee's business.
48. CORPORATE AUTHORITY. The undersigned officers and representatives
of the corporation executing this Lease on behalf of the corporation represent
and warrant that they are officers of the corporation with authority to execute
this Lease on behalf of the corporation.
49. DAMAGE. In case of the destruction of or any damage of any kind
whatsoever to the Premises, the Building or the Building Area caused by the
carelessness, negligence or improper conduct on the part of the Lessee or the
Lessee's agents, employees, guests, licensees, invitees, subtenants, assignees,
or successors, the Lessee shall repair the said damage or replace or restore any
destroyed parts of the Premises as speedily as possible at Lessee's own cost and
expense.
50. SIGNS. The Lessee shall not place nor allow to be placed any signs
of any kind whatsoever, upon, or in about the said Premises or Building or other
Building Area, except of a design and structure and in or at such places as may
be indicated and consented to by the Lessor in writing. In case the Lessor or
the Lessor'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 Lessor's expense when the said repairs,
alterations, or improvements shall have been completed. Any signs permitted by
the Lessor shall at all times conform with all municipal ordinances or other
laws and regulations applicable thereto, which approval shall be the
responsibility of the Lessee. Lessor intends to install a monument type sign on
the front lawn of the Building Area. Lessor agrees to place Lessee's name on
such sign. The size of the Lessee's name shall be equal to the others on the
sign and shall be second from the top.
51. MISCELLANEOUS.
A. Lessee shall not be entitled to exercise any other option
granted to it by this Lease at any time when Lessee is in default in the
performance or observance of any of the covenants, agreements, terms, provisions
or conditions on its part to be performed or observed beyond the applicable
grace period provided in this Lease.
B. This Lease shall be governed by and construed under the Laws of
the State of New Jersey.
C. This Lease is an amended and restated Lease and shall supersede
and take priority over all agreements, written or otherwise, between Lessor and
Lessee.
52. NEW JERSEY INDUSTRIAL SITE RECOVERY ACT
A. Lessee shall, on or before the date which is four (4) months
prior to the Termination Date, deliver to Lessor evidence of its compliance with
the New Jersey Industrial Site Recover Act (N.J.S.A. 13:1K-6 et seq.) (ISRA). In
the event that the Lessee fails to deliver such evidence to the Lessor on or
before the Termination Date, then, and in such event and for every month or
portion of month thereafter, the obligation of the Lessee to pay rent and
other charges pursuant to this Lease shall be extended one (1) month beyond the
Termination Date.
B. The Lessee agrees to defend, indemnify and hold harmless the
Lessor from and against any and all losses and costs and expenses of
litigation incurred by the Lessor arising out of Lessee's use of the Premises
and which are in any way connected with the application of the New Jersey Spill
Compensation and Control Act (N.J.S.A. 58:10-23 et seq.), the New Jersey
Industrial Site Recovery Act (N.J.S.A. 13:1K-6 et seq.), the Comprehensive
Environmental Response Compensation Liability Act of 1980 (Pub. L. Xx. 00-000,
00xx Xxxx. 0000, 0000), the New Jersey Air Pollution Control Act (N.J.S.A.
26:2C-1 et seq.), the Resource Conservation Recovery Act (42 U.S.C. 6901 et
seq.), the Clean Air Act (42 U.S.C. 7401 et seq.) and any similar state or
federal statutes (collectively, "Environmental Laws") to the Demised Premises
or any part thereof. The Lessee covenants and agrees to take all necessary
steps in order to prevent any liens pursuant to the Environmental Laws from
attaching to the Demised Premises. Lessor acknowledges the presence, now or
formerly, of certain hazardous materials at the Building Area which are
currently under investigation under ECRA case #87920 with the N.J. Department of
Environmental Protection.
C. Lessee shall not cause or permit to exist as a result of an
intentional or unintentional action or omission on its part a releasing,
spilling, leaking, pumping, emitting, pouring, emptying or dumping of a
"hazardous substance", as such term is defined in N.J.S.A. 58:10-23.11(b)(k)
into the waters of the State of New Jersey or onto the lands from which it might
flow or drain into said waters or into waters outside the jurisdiction of the
State of New Jersey or damage may result to the lands, waters, fish, shellfish,
wildlife, biota, air or other resources owned, managed, held in trust or
otherwise controlled by the State of New Jersey, unless such release, spill,
leak, etc. is pursuant to and in compliance with conditions of a permit issued
by the appropriate federal or state governmental authorities.
D. In the event there should be filed a lien against the
Demised Premises by the New Jersey Department of Environmental Protection
pursuant to and in accordance with the provisions of N.J.S.A. 58:10-23.11(f)(f)
as a result of the Chief Executive to the New Jersey Spill compensation Fund
having expended monies from said Fund to pay for "damages", as said term is
defined in N.J.S.A. 58:10-23.11(g) and/or "cleanup and removal costs", as said
term is defined in N.J.S.A. 58:1-23.11(b)(d), or in the event a lien is filed
against the Demised Premises by the United States Environmental Protection
Agency pursuant to the Comprehensive and Environmental Response Compensation and
Liability Act of 1980, arising from an intentional or unintentional action or
omission of Lessee of Lessee's sublessee resulting in the releasing, spilling,
pumping, pouring, emitting, emptying or dumping of "hazardous substances", as
such term is defined in N.J.S.A. 58:10-23-11(b)(k) into the waters of the State
of New Jersey or onto lands from which it might flow or drain into said waters,
then Lessee shall be in default of this Lease and shall, within thirty (30) days
from the day Lessee is given notice that the lien has been placed against the
Demised Premises or within such shorter period of time in the event the State
of New Jersey or the United States Government has commenced steps to cause the
Demised Premises to be sold pursuant to the lien, either (1) pay the claim and
remove the lien from the Demised Premises; or (2) furnish (or lay) (i) a bond
satisfactory to the Lessor in the amount of the claim out of which the lien
arises; or (ii) other security reasonably satisfactory to the Lessor in an
amount sufficient to discharge the claim out of which the lien arises.
E. Lessee's use and any sublessee's use of the Demised Premises
during the Term will not involve the generation, manufacture, refining,
transport, treatment, storage, handling or disposing of "hazardous waste" or
"hazardous substances", as those terms are defined in the New Jersey Spill
Compensation and Control Act which shall be in violation of the New Jersey Spill
Compensation and Control Act. In the event the Lessee or any sublessee shall
breach this provision or in any way conduct its operation on the Demised
Premises or permit the Demised Premises to be used and maintained so as to
subject to the Lessee or any sublessee of the Demised Premises to a claim or
violation, the Lessee shall immediately remedy and fully cure such condition, at
its own cost and expense, or cause such condition to be cured and shall defend,
indemnify and save harmless the Lessor from any and all damages, remedial
orders, judgments or decrees and all costs and expenses related thereto or
arising therefrom, including, but not limited to, attorneys' and consultants'
fees, cleanup, removal and restoration costs and loss rentals.
F. Lessee hereby agrees to execute such documents as Lessor
reasonably deems necessary to make such applications as Lessor reasonably
requires to assure compliance with ISRA. Lessee shall bear all costs and
expenses incurred with any required ISRA compliance resulting from Lessee's use
of the Demised Premises, including, but not limited to, state agency fees,
engineering fees, cleanup costs, filing fees and suretyship expenses. As used in
this Lease, ISRA compliance shall include applications for determinations of
non-applicability by appropriate governmental authority. The foregoing
undertaking shall survive the termination or sooner expiration of the Lease and
the surrender of the Demised Premises, and also shall survive the sale or lease
or assignment of the Demised Premises by Lessor. Lessee agrees to indemnify and
hold Lessor harmless from any violation of ISRA occasioned by the Lessee's use
of the Demised Premises.
G. In the event Lessee fails to comply with ISRA as stated in
this Section as of the termination or sooner expiration of the Lease, the Lessee
shall be responsible to pay all rents and other charges as provided in this
Lease, together with any and all other charges incurred in obtaining compliance
with ISRA and all regulations promulgated thereunder from the date of
termination of the Lease until such time as evidence of full compliance with
ISRA has been delivered to the Lessor.
53. RESERVATION OF EASEMENT. The Lessor reserves the right, easement
and privilege to enter on the Premises in order to install, at its own cost and
expense, any storm drains and sewers and/or utility lines in connection
therewith or borings or monitoring xxxxx as may required by the Lessor. It is
understood and agreed that if such work as may be required by Lessor requires an
installation which may displace any paving, lawn, seeded area or shrubs the
Lessor shall, at its own cost and expense, restore said paving, lawn, seeded
area or shrubs. The Lessor covenants that the foregoing work shall not
unreasonably interfere with the normal operation of Lessee's business, and the
Lessor shall indemnify and save the Lessee harmless in connection with such
installations.
54. AIR, WATER AND GROUND POLLUTION.
A. The Lessee expressly covenants and agrees to indemnify,
defend, and save the Lessor harmless against any claim, damage, liability,
costs, penalties, or fines which the Lessor may suffer as a result of Air, Water
or Ground Pollution caused by the Lessee in its use of the Premises. The Lessee
covenants and agrees to notify the Lessor immediately of any claim or notice
served upon it with respect to any such claim the Lessee is causing Water, Air
or Ground Pollution; and the Lessee, in any event, will take immediate steps to
halt, remedy or cure any pollution of Air, Water or Ground caused by Lessee by
its use of the Premises. The within covenant on the part of the Lessee shall
survive the expiration or earlier termination of this Lease.
B. The Lessor expressly covenants and agrees to indemnify,
defend, and save the Lessee harmless against any claim, damage, liability,
costs, penalties, or fines which the Lessee may suffer as a result of Air, Water
or Ground Pollution caused by the Lessor or prior owners or occupants of the
Building prior to the date of this Lease. The Lessor covenants and agrees to
notify the Lessee immediately of any claim regarding prior pollution and will
take immediate steps to remedy or cure any pollution of Air, Water or Ground
which is the Lessor's responsibility pursuant to this paragraph. The within
covenant on the part of the Lessor shall survive the expiration or earlier
termination of this Lease.
55. AMENDMENTS REQUIRED BY LENDER. If in connection with obtaining
financing for the Building, or any other land or any other improvements on land
owned by Lessor or its related entities, a bank, insurance company, or other
recognized institutional lender shall request reasonable modifications (other
than modifications which effect Lessee's financial obligations hereunder) in
this Lease as a condition to such financing, Lessee will not unreasonably
withhold, delay or defer its consent thereto, provided that such modifications
do not increase the obligations of Lessee hereunder or materially decrease the
obligations of Lessor hereunder. In addition thereto, Lessee shall furnish to
any such mortgagee or proposed mortgagee, copies of Lessee's latest financial
statements, if any, duly certified by an independent certified public
accountant, or if no such certified statement is available, then such statements
shall be certified by the president of Lessee. If Lessee has no such statements,
Lessee shall provide such alternate financial information as may reasonably be
required by the mortgagee or proposed mortgagee.
56. RENEWAL OPTION.
A. Subject to the provisions of paragraph 56(B) below, Lessee
shall have the option to renew ("Renewal option") this Lease for two (2)
additional terms of Five (5) years (the "Renewal Terms") which Renewal Terms
shall commence upon the next day following the Termination Date. The terms,
covenants and conditions during the Term shall be carried over into the Renewal
Terms, except as specifically set forth below.
(1) The Basic Rent during the first Renewal Term shall be
$1,545,882.00 dollars payable in monthly installments of $25,764.71 dollars.
(2) The Basic Rent during the second Renewal Term shall be
$1,776,691.00 payable in monthly installments of $29,611.52.
B. Lessee's Renewal Option shall be conditioned upon and subject
to each of the following:
(1) Lessee shall notify Lessor in writing of its exercise of
its Renewal Option at least six (6) months, but not more than twelve (12)
months, prior to the Termination Date and/or the termination of the First
Renewal Term.
(2) At the time Lessor receives Lessee's notice as provided
for in B(1) above and at the Termination Date and/or the termination of the
First Renewal Term, Lessee shall not be in default under the terms or provisions
of this Lease and Lessee shall not have subleased any portion of the Demised
Premises.
(3) Lessee shall have no further renewal option other than
the Renewal Option.
(4) This Renewal Option shall be deemed personal to the
Lessee and may not be assigned without the express written consent of Lessor.
(5) Lessor shall have no obligation as to any work or
perform any services for the Renewal Terms with respect to the Demised Premises
which Lessee agrees to accept them in "as is" condition.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
000 Xxxxxxxxxx Xxx, L.L.C., Lessor
By: /s/Xxxxxx Xxxxxxx
_______________________________
Xxxxxx Xxxxxxx, MANAGER
Logimetrics, Inc., Lessee
By: /s/Xxxxxx X. Xxxxxx
_______________________________
Xxxxxx X. Xxxxxx, President
EXHIBIT "B"
LESSOR'S WORK DONE AT LESSOR'S EXPENSE
1. New concrete floors in the Non-Land Tech space
2. Sewer hook up to future bathroom areas
3. Roof mounted HVAC - distribution by Lessee
4. Point of attachment and meter for Lessee's electrical service @ 1,200 amps
5. One drive-in door at rear of building
6. One dock height door at rear of building
7. Installation of exterior dri-vit, windows and doors as provided in the Land
Tech space. Dri-vit to be extended in front to include Premium Coffee
space.
8. Landscaping consistent with neighborhood
9. Resurface parking area on eastern side of building including striping
EXHIBIT "C"
LESSEE'S WORK DONE AT LESSEE'S EXPENSE
EXHIBIT "D"
Working Plans and Specifications for Lessee's Work
TABLE OF CONTENTS
Page No.
Paragraph
REFERENCE PAGE
1. DESCRIPTION -1-
2. TERM -1-
3. BASIC RENT -1-
4. USE AND OCCUPANCY -1-
5. CARE AND REPAIR OF PREMISES -1-
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS -2-
7. ACTIVITIES INCREASING FIRE INSURANCE RATES -2-
8. ASSIGNMENT AND SUBLEASE -2-
9. COMPLIANCE WITH LAW -3-
10. DAMAGES TO BUILDING -4-
11. EMINENT DOMAIN -5-
12. INSOLVENCY OF LESSEE -6-
13. LESSOR'S REMEDIES ON DEFAULT -6-
14. DEFICIENCY -7-
15. SUBORDINATION OF LEASE -8-
TABLE OF CONTENTS
(Continued)
16. PARKING -9-
17. RIGHT TO CURE LESSEE'S BREACH -9-
18. CONSTRUCTION LIENS -9-
19. RIGHT TO INSPECT AND REPAIR -9-
20. LESSOR AND LESSEE WORK -9-
21. INTERRUPTION OR SERVICES OR USE -9-
22. UTILITIES -10-
23. ADDITIONAL RENT -10-
24. LESSEE'S ESTOPPEL -10-
25. CONDITION OF PREMISES -11-
26. SECURITY DEPOSIT -11-
27. WAIVER OF TRIAL BY JURY -12-
28. LATE CHARGE -12-
29. LESSEE'S LIABILITY INSURANCE -12-
30. NO OTHER REPRESENTATIONS -13-
31. QUIET ENJOYMENT -13-
32. INDEMNITY -13-
33. PARAGRAPH HEADINGS -13-
TABLE OF CONTENTS
(continued)
34. APPLICABILITY TO HEIRS AND ASSIGNS -13-
35. INTENTIONALLY OMITTED -13-
36. LESSOR'S LIABILITY FOR LOSS OF PROPERTY -13-
37. PARTIAL INVALIDITY -14-
38. BROKER -14-
39. PERSONAL LIABILITY -14-
40. NO OPTION -14-
41. DEFINITIONS -14-
42. LEASE COMMENCEMENT -15-
43. NOTICES -15-
44. ACCORD AND SATISFACTION -15-
45. EFFECT OF WAIVERS -16-
46. LESSOR'S RESERVED RIGHT -16-
47. RIGHT TO EXHIBIT -16-
48. CORPORATE AUTHORITY -16-
49. DAMAGE -16-
50. SIGNS -17-
51. MISCELLANEOUS -17-
TABLE OF CONTENTS
(Continued)
52. NEW JERSEY INDUSTRIAL SITE RECOVERY ACT -17-
53. RESERVATION OF EASEMENT -19-
54. AIR, WATER AND GROUND POLLUTION -20-
55. AMENDMENTS REQUIRED BY LENDER -20-
EXHIBIT "A"
EXHIBIT "B"
EXHIBIT "C"
EXHIBIT "D"
RIDER TO LEASE
DATED NOVEMBER 30, 1998,
BETWEEN LOGIMETRICS, INC., AS LESSEE,
AND 000 XXXXXXXXXX XXX, L.L.C., AS LESSOR
_______________________________________
References to "Premises" shall mean the premises leased by Lessee;
references to "Building" shall mean the building of which the Premises form a
part; references to "Real Property" shall mean the entire tax lot and all the
improvements thereon of which the Building and Premises form a part; references
to "Lease" shall mean the lease to which this rider is attached; references to
"Lease Documents" shall mean the Lease, this rider, any Rules and Regulations
issued by Lessor and any other applicable documents, exhibits, or schedules
which may be part of the Lease; reference to "Lease Term" shall mean the
duration of the initial term and all renewal or extension periods provided for
in the Lease; and reference to "Business Day" shall mean all days other than
Saturdays, Sundays, and legal holidays.
Any term or provision contained in the Lease to the contrary
notwithstanding:
1. In the event of any inconsistency among the Lease Documents, the
terms and conditions of this rider shall prevail over the Lease,
including any other riders, exhibits or schedules, and the terms
and conditions of the Lease, including any exhibits or schedules,
shall prevail over the Rules and Regulations established by
Lessor.
2. Intentionally Omitted.
3. Lessor represents that, during the Lease Term, it will maintain
and operate the Building in a manner consistent with the office
buildings in the vicinity of the Real Property.
4. Lessor represents that the HVAC systems serving the Premises will
be sufficient to maintain temperatures within the Premises below
75 degrees Fahrenheit and above 70 degrees Fahrenheit.
5. Lessee shall have 24 hour / 7 day a week access to the Premises
and during all such times HVAC service shall be available to
Lessee.
6. Lessor shall be responsible for maintenance, repairs and
replacements to the Premises (except those necessitated by
Lessee's negligence) associated with (a) correcting all defects
in construction of the work specified in Exhibit B; (b)
correcting defects in construction to the Premises and the
Building (except for the construction set forth in Exhibit C);
(c) maintaining (including snow, ice and debris removal),
repairing, replacing and repainting/re-striping, paving, curbs,
walkways, parking areas, and driveways; (d) real estate taxes
(except as set forth herein as to increases in real estate taxes)
assessments and other governmental charges levied or assessed on
the Building; (e) maintaining, repairing and replacing the
landscaping on or about the Real Property; and (f) the Building
not otherwise specifically assumed by Lessee in this Lease.
7. Lessor shall use its reasonable good faith efforts to perform all
maintenance, repairs and replacements which Lessor is obligated
to perform pursuant to the terms of this Lease (i) in a good and
xxxxxxx like manner and (ii) as promptly as practically possible.
In the event that Lessor shall fail to provide any essential
service required in the Lease Documents to be provided by Lessor,
which failure results in Lessee's use of the Premises being
materially impaired for thirty (30) days after Lessee provides
Lessor of written notice of same (provided, however, that
conditions which reasonably require more than thirty (30) days to
cure, Lessor shall be required to commence and reasonably proceed
with curing same and Lessee may not exercise the remedy set forth
below if Lessor commences and proceeds to cure such condition
during such thirty (30) day time period) Lessee shall have the
right to take any one or more of the following actions: to
terminate the Lease, upon five (5) days advance notice to Lessor,
to make essential repairs itself and deduct the cost thereof from
rent due, to xxx for damages, or to xxx Xxxxxx for specific
performance of its obligations.
8. During the twelve (12) month period commencing on the
Commencement Date (the "Lessor HVAC Period"), Lessor shall
procure and maintain a service contract for the inspection,
service, maintenance and repair of the HVAC (the inspection
pursuant to such contract shall be made at least quarterly). The
identity of the contractor and the terms and conditions of the
contract shall be subject to Lessee's reasonable approval. Copies
of reports and inspections made thereunder shall be promptly
supplied to Lessee.
Upon the conclusion of the Lessor HVAC Period through the
termination of the Lease Term, Lessee shall procure and maintain
a service contract for the inspection, service, maintenance and
repair of the HVAC (the inspection pursuant to such contract
shall be made at least quarterly). The identity of the contractor
and the terms and conditions of the contract shall be subject to
Lessor's reasonable approval. Copies of reports and inspections
made thereunder shall be promptly supplied to Lessor.
9. Upon termination of the Lease, Lessee shall be entitled to remove
all of its personal property and trade fixtures (including, but
not limited to, the four unit Task U.S.A., Inc. air handling
system installed by Lessee consisting of two TSCO43-OD blower
units, one TSEO53FJ heating/cooling/humidity control unit and one
SRCF48-UO3D condensing unit), provided that it restores the
Premises to its condition at the Commencement Date (as defined
below), reasonable wear and tear and subsequent alterations
approved by Lessor excepted. In no event shall Lessee be required
to paint, paper or resurface any wall, floor, ceiling or other
finishes.
10. Any right of Lessor to incur any expense or obligation for which
it may charge Lessee or to exercise any right to store, remove or
sell Lessee's personal property may be exercised only upon ten
(10) days' advance written notice to Lessee, such notice giving
Lessee the opportunity to undertake the work or otherwise take
such actions as will eliminate the necessity for Lessor to incur
such expense or obligation or exercise such right.
11. Lessee shall have the right to make non-structural alterations to
the Premises costing up to $30,000 in any instance without
Lessor's prior consent; provided, however, Lessee must obtain
Lessor's consent, which shall not be unreasonably withheld, if
Lessee desires to excavate any part of the floor of the Premises
or cut open or make any exterior alterations to the roof of the
Premises. Notwithstanding the foregoing, Lessee shall provide
Lessor notice of all such alterations and such notice shall
include a brief description of any such alterations. Alterations
costing in excess of $30,000 in any instance will require
Lessor's consent, which will not be unreasonably withheld or
delayed.
12. Intentionally omitted.
13. Any right of Lessor to make alterations or improvements to the
Premises shall be exercised only if the making of such
alterations or improvements will not unreasonably disturb
Lessee's use and occupancy of the Premises.
14. Any right of entry into the Premises granted to Lessor for
repairs, alterations or other purposes shall be exercised with
prior written notice to Lessee (except in the case of emergency)
and in a reasonable manner.
15. In the event of a taking by public authority or otherwise which
permanently reduces the area of the Premises so that it is
rendered unfit, in Lessee's reasonable opinion, for Lessee's
purposes, Lessee shall have the right to terminate the Lease.
Lessee and anyone claiming under it at its and their expense may,
jointly with Lessor, claim and prove, if so allowed, in the
proceedings related to any condemnation awards, and may receive
therefrom such portion thereof as represents the value of the
alterations, additions, installations and improvements made by or
for the account of Lessee (except any such alterations,
additions, installations and improvements set forth on Exhibit
"C" to the Lease) and anyone claiming under it in the Premises,
but not more than the total expenditures for such alterations,
additions, installations and improvements less depreciation from
the respective date of the making of such alterations, additions,
installations or improvements to the date of the taking, computed
on a straight line basis over the term of the Lease or the useful
life of such item, which ever is shorter. Furthermore,
notwithstanding the foregoing provisions, Lessee and anyone
claiming under it shall be entitled to appear, claim, prove and
receive, if allowed, an award for personal property, relocation
and moving expenses.
16. Lessor shall have the right to exercise the remedies provided in
the Lease only if (a) any default by Lessee in the payment of
rent shall not be cured within ten (10) days of the date such
payments is due, or (b) a default by Lessee in the performance of
any other obligation under the Lease, or the existence of a
condition considered to be an event of default by Lessee under
the Lease, which shall not be cured within thirty (30) days of
written notice thereof by Lessor to Lessee, provided, however,
that for defaults or conditions which reasonably require more
than thirty (30) days to cure, Lessee shall be required to
commence and reasonably proceed with curing same and Lessor may
not exercise such remedies if Lessee commences and proceeds to
cure such defaults or conditions.
The term "default" or "event of default" as used in the Lease
Documents shall refer either (a) to Lessee's wrongful failure to
pay rent when due or (b) any material failure of Lessee to
perform its obligations or cure a condition deemed to be an event
of default under the Lease Documents.
17. Lessor shall have the obligation to reasonably mitigate its
damages in the event of any default by Lessee in its obligations
under the Lease Documents.
18. Any subordination provision contained in the Lease, relating
either to ground leases or mortgages, is subject to the express
condition that so long as Lessee is not in material default under
the Lease Documents (a) Lessee will not be made a party in any
action or proceeding brought by any person having rights superior
to Lessee to recover possession of the Premises or to foreclose
any mortgage or for any other relief sought, and (b) Lessee's
possession hereunder shall not be disturbed. Lessor agrees to
deliver to Lessee letters or agreements from any holder of rights
superior to Lessee, including mortgagees and ground lessors,
recognizing Lessee's rights hereunder, such delivery to take
place prior to the Commencement Date. Such letters or agreements
shall be in the form regularly used by any such mortgagee or
ground lessor for the purpose of providing tenants the
non-disturbance protections set forth above.
19. The parties contemplate that the Term shall commence on January
1, 1999; provided, however, the Lease Term shall only commence
upon the substantial completion of Lessor's Work (excluding (i)
Lessor's obligation to repave and restripe the paving areas
identified in Exhibit "B" which repaving and restriping will be
completed on or before May 15, 1999 and (ii) Lessor's obligation
to install exterior dri-vit on and around the exterior of the
Premises and the exterior portion of the Building now occupied by
Premium Coffee which will be completed on or before May 15, 1999;
provided, however, Lessor shall, prior to January 1, 1999, apply
a skim coat of concrete on all exterior portions of the Building
where dri-vit does not currently exist (excluding the roof and
the rear (south side) of the Building) and paint same a color
consistent with the color of the existing dri-vit. It is
understood that Lessor has no obligation to install exterior
dri-vit or a skim coat of concrete on the rear (south side) of
the Building, however, Lessor shall be obligated to (i) paint the
rear (south side) of the Building prior to January 1, 1999 (such
paint to be of a color consistent with the other exterior
portions of the Building) and (ii) repaint the rear (south side)
of the Building when same is in need of repainting. Lessor shall
notify Lessee in writing when Lessor's Work is substantially
completed. The Lease Term shall commence on the tenth (10th)
Business Day following Lessee's receipt of such notice (the
"Commencement Date"). In the event Lessor's Work is not
substantially complete by February 1, 1999, subject to extensions
for delays caused by Lessee, Lessee shall have the right to
terminate the Lease by written notice to Lessor, whereupon the
Lease shall be null and void and all moneys paid by Lessee shall
be refunded by Lessor. Lessor shall perform Lessor's Work in a
first class, workmanlike manner. If there are any latent defects
or "punch list" items, Lessor agrees to correct them within
thirty (30) days following notice from Lessee after Lessee
occupies the Premises. In no event shall Lessee be obligated to
pay any amounts of Base Rent or Additional Rent until such time
as Lessor's Work is substantially complete. During all such times
while Lessee is performing fix-up, furnishing and other
preparations for occupancy, all of the terms and conditions of
this Lease shall be effective except for those calling for the
payment of Rent or Additional Rent.
20. Lessee should be permitted to, and will not be deemed in
occupancy by virtue of, performing Lessee fit-up, furnishing and
other preparations for occupancy prior to the Commencement Date.
During all such times while Lessee is performing fit-up,
furnishing and other preparations for occupancy, all of the terms
and conditions of this Lease shall be effective except for those
which call for the payment of Rent or Additional Rent. After the
execution of this Lease, Lessee shall be permitted to occupy and
operate its business out of the approximately seven thousand
(7,000) square feet of the Premises (the "Land Tech Space") which
is identified as the "Demised Premises" or "Premises" under that
certain Lease, dated January 15, 1998, by and between Lessor and
Land Tech Remedial, Inc. (the "Land Tech Lease"). During all such
times while Lessee is occupying the Land Tech Space, all of the
terms and conditions of this Lease shall be effective except for
those which call for the payment of Rent or Additional Rent,
provided however, during all such times that Lessee is in
occupancy of the Land Tech Space, Lessee shall pay to Lessor that
"Basic Rent" due under the Land Tech Lease (the "Land Tech
Rent"), provided, further, however, Lessee's obligation to pay
the Land Tech Rent shall cease on the earlier of (i) the date on
which this Lease terminates or (ii) the date on which Lessee
begins making payments of Rent and/or Additional Rent under this
Lease.
21. "Additional Rent" as referred to in the Lease shall not include
the following: (a) the cost of construction of any improvements
on the Real Property, including any addition, alteration or
refurbishing of space leased to other lessees in the Building;
(b) expenses for repairs or other work occasioned by fire,
windstorm or other casualty in excess of a reasonable deductible
amount provided in Lessor's insurance policy; (c) expenses
incurred in leasing or procuring new lessees for the Building
(e.g. commissions, advertising, renovation and legal); (d) legal
expenses in enforcing the terms of any lease other than this
Lease; (e) interest or principal amortization payments on any
mortgage; (f) any corporate franchise or net worth taxes, income
taxes (state and federal), personal property taxes, excess profit
taxes, license, inspection and permit fees; (g) any expenses
incurred for which Lessor has a right of reimbursement from a
lessee in the Building; (h) claims paid by Lessor in satisfaction
or settlement of liability in tort; (i) any payments to the
ground lessor; and (j) depreciation of the Building or other
improvements located on the Real Property.
22. All policies of insurance shall be issued by insurers authorized
to conduct that type of insurance business in New Jersey, which
shall at all times, have policy holders rating of "A", or better,
and financial rating of "VII", or better, in the then current
edition of Best's Insurance Guide.
Lessor represents and warrants that the real estate taxes
assessed against the Building and Real Property in both the
current and prior year were based upon the Real Property being
fully assessed and taxed without special arrangements,
preferences, abatements or similar treatment. Upon Lessee's
request, Lessor agrees promptly to provide such reasonable
substantiation of any payments beyond the fixed monthly rent
claimed to be due from Lessee resulting from claimed increases in
real estate taxes and insurance. In no event shall Lessee be
responsible for payments beyond the fixed monthly rent resulting
from an assessment for improvements on the Real Property which
are not of general benefit to the Lessees in the Building.
23. Intentionally Omitted.
24. Nothing contained in the Lease Documents shall be construed to
absolve Lessor from responsibility for acts of negligence, gross
negligence or willful misconduct of its agents, employees,
servants or others acting on its behalf.
25. Lessee shall not be liable to Lessor with respect to any damages
suffered by Lessor which are actually covered by insurance
carried by Lessors. The parties agree that each hereby waives any
claim it might have against the other for loss, damage or
destruction with respect to its property, by fire or other
casualty that is actually generally insured against under the
terms of standard fire and extended coverage insurance policies.
The parties agree to obtain waiver of subrogation clauses in
their respective insurance policies, such clauses extending to
the other party and its employees and agents.
26. Lessor shall defend, indemnify and save harmless Lessee and
Lessee's owners, principals, directors, officers,
representatives, agents and employees ("Indemnified Persons")
against and from any losses, liabilities, obligations, damages,
penalties, claims, costs, charges and expenses (including
reasonable attorney's fees) which may be suffered by any
Indemnified Person or asserted by third persons against any
Indemnified Person and which arise directly or indirectly
relating to the presence of any Existing Environmental Conditions
(as defined below) within any portion of the Real Property.
27. Intentionally Omitted.
28. Subject to all applicable municipal ordinances, Lessee shall be
entitled to place a sign on the door to the Premises indicating
Lessee's name. Subject to all applicable municipal ordinances and
Lessor's prior written consent, which consent will not be
unreasonably withheld, Lessee shall be entitled to place a sign
indicating Lessee's name located on the exterior of the Building.
Lessee shall also be entitled to have its name appear on the
monument sign located on the Real Property. Lessee's name shall
appear second from the top on such monument sign and be of a size
and color reasonably consistent with the names of the other
lessees on the monument sign.
29. Intentionally Omitted.
30. Notwithstanding any provision in the Lease Documents to the
contrary (a) Lessor shall indemnify and hold Lessee harmless for
any environmental conditions now existing in or around the
Premises and for such conditions arising during the Lease Term to
the extent not resulting from any act or omission of Lessee
("Existing Environmental Conditions") and (b) Lessee shall have
no responsibility for Existing Environmental Conditions. Lessor
assumes all responsibility for Existing Environmental Conditions
and for compliance with all requirements of governmental agencies
in connection therewith. Lessor shall hold Lessee harmless from
any losses, costs, expenses, remediation orders, fines,
assessments or penalties of any kind which might be incurred by
or imposed against Lessee by governmental agencies as a result of
Existing Environmental Conditions. To the extent applicable or
required relating to Existing Environmental Conditions, Lessor
shall indemnify and hold Lessee harmless all costs and expenses
relating to compliance with ISRA (except in those instances when
ISRA Compliance is necessitated as a result of Lessee's actions),
including (i) obtaining from NJDEP a "Letter of
"Non-Applicability", (ii) submitting to and obtaining the
approval by NJDEP of a "Negative Declaration," or (iii) obtaining
the issuance by NJDEP of a "No Further Action Letter" pursuant to
ISRA and applicable regulations, guidance and guidelines
implementing ISRA ("ISRA Requirements") and other environmental
requirements.
31. Any and all approvals and consents required to be obtained by
Lessee from Lessor as provided in the Lease Documents shall not
be unreasonably withheld by Lessor.
32. Lessee shall comply with all Rules and Regulations of uniform
applicability and application.
33. Any payment required by the Lease to be made by Lessee to Lessor
for legal expenses, attorney's fees or similar purposes shall
only be required in the event that Lessor brings an action or
proceeding against Lessee to enforce Lessor's rights under the
Lease and then only as follows:
In the event that either party should bring suit
against the other because of the breach of any
provision of the Lease or for any other relief
against the other, then all costs and expenses,
including reasonable attorneys' fees, incurred by
the prevailing party therein shall be paid by the
other party.
34. Lessor acknowledges that, at Lessee's option, Lessee may cause
mm-Tech, Inc. a wholly-owned subsidiary of Lessee ("mm-Tech"), to
occupy the Premises on behalf of Lessee and, in such case, any
all signs or other indicia of occupancy shall evidence the
occupation of the Premises by mm-Tech. Lessor hereby waives any
breach of this Lease that may be caused by mm-Tech's occupation
of the Premises.
35. Lessee's sole obligation with respect to the commencement and
completion of Lessee's Work shall be that, provided the Lease
remains in full force and effect from the Commencement Date
through December 31, 2003, Lessee shall complete on or before
December 31, 2003 (i) all Lessor's Work contemplated to occur on
or about the approximate 7,000 square feet of space identified as
the "Land Tech" space on Exhibit A and (ii) complete a fit-out of
at least fifty percent (50%) of the remaining portion of the
Premises consisting of the work described in Exhibit C.
SIGNATURE PAGE TO FOLLOW
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals the day and year first above written.
000 XXXXXXXXXX XXX XXXX, X.X.X.
By:/s/Xxxxxx Xxxxxxx
__________________________________
Xxxxxx Xxxxxxx, Manager
LOGIMETRICS, , INC.
By:/s/Xxxxxx Xxxxxx
__________________________________
Xxxxxx Xxxxxx, President &
Chief Operating Officer
