EXHIBIT 4.1(f)
LEASE AGREEMENT
FORT XXX EXECUTIVE PARK
Xxx Xxxxxxxxx Xxxxx
Xxxx Xxx, Xxx Xxxxxx 00000
OWNER - LESSOR: Executive Park, LLC
LESSEE: VocalTec, Inc.
Prepared by: Xxxx Xxxxxxx, Esq.
Xxxxxxx, Xxxxxxx & Bern, Esqs.
Xxx Xxxxxxxxx Xxxxx
Xxxx Xxx, Xxx Xxxxxx 00000
TABLE OF CONTENTS
Page
1. Description..........................................................1
2. Term.................................................................1
3. Occupancy and Basic Rent.............................................1
4. Use and Occupancy....................................................3
5. Care and Repair of Premises..........................................3
6. Alterations, Additions or Improvements...............................4
7. Activities Increasing Fire Insurance Rates...........................5
8. Abandonment..........................................................5
9. Assignment and Sublease..............................................5
10. Compliance with Rules and Regulations................................6
11. Damage to Building/waiver of Subrogation.............................7
12. Eminent Domain.......................................................7
13. Insolvency of Lessee.................................................8
14. Default of Lessee....................................................8
15. Lesssor's Remedies on Default of Lessee..............................9
16. Subordination of Lease..............................................11
17. Right to Cure Lessee's Breach.......................................12
18. Mechanic's Liens....................................................12
19. Right to Inspect and Repair.........................................12
20. Services to Be Provided by Lessor/lessor's Exculpation..............12
21. Electricity.........................................................13
22. Additional Rent.....................................................14
23. Interruption of Services or Use.....................................18
24. Lessee's Estoppel...................................................18
25. Holdover Tenancy....................................................18
26. Lessor's Work.......................................................18
27. Right to Show Premises..............................................20
28. Waiver of Trial by Jury.............................................20
29. Late Charge.........................................................20
30. No Recordation......................................................20
31. Quite Enjoyment.....................................................21
32. Lessee's Insurance..................................................21
33. Parking Spaces......................................................21
34. Lessor's Liability For Loss of Property.............................21
35. Broker..............................................................21
36. Personal Liability..................................................22
37. No Option...........................................................22
38. Security Deposit....................................................22
39. Lessor's Lien.......................................................23
40. Notices.............................................................23
41. Attorney's Fees.....................................................23
42. Definitions.........................................................23
43. Paragraph Headings..................................................24
44. Applicability to Heirs and Assigns..................................25
45. Waiver..............................................................25
46. Amendments, Modifications, etc......................................26
47. Governing Law.......................................................26
48. Separability........................................................26
49. No Unlawful Occupancy...............................................26
50. No Other Representations............................................26
51. Accord and Satisfaction.............................................26
52. Mortgagee's Notice and Opportunity to Cure..........................27
53. Corporate Authority.................................................27
54. Environmental/ISRA Compliance.......................................27
55. Mortgagee's Consent.................................................29
56. Americans with Disability Act.......................................29
57. Option to Lease.....................................................29
58. Right of First Offer................................................31
59. Signage.............................................................31
60. Renewal Option......................................................32
61. Relocation of Lessee................................................32
LESSOR CONTRIBUTION
TO TENANT WORK: Not to exceed $187,500.00
SECURITY: $300,000.00
PARKING: 85 SPACES - 17 RESERVED
BROKER: MRH REAL ESTATE SERVICES,
INC.
RENEWAL OPTION: One (1) Renewal Option for Five (5)
Year Term.
MISC: Option to lease Suites 365, 370 and 375.
Right of First Offer with respect to
Suite 350
IN THE EVENT OF ANY CONFLICT BETWEEN THE INFORMATION SET FORTH ABOVE
AND IN THE LEASE, THE TERMS OF THE LEASE SHALL GOVERN.
LEASE, made this _____ day of June, 1998, by and between EXECUTIVE
PARK, LLC, with offices located c/o The Witkoff Group, 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, 00000-0000 (hereinafter called "Lessor"); and VOCALTEC,
INC., with offices located c/o The C., with offices at 00 Xxxxxxxxxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx, 00000.
W I T N E S S E T H:
-------------------
For and in consideration of the covenants herein contained, and upon
the terms and conditions herein set forth, Lessor and Lessee agree as
follows:
1. DESCRIPTION. Lessor hereby leases to Lessee and Lessee hereby
hires from Lessor, the following space: Xxxxx 000, comprised of 12,500
Rentable Square Feet, as hereinafter defined, which shall be located on the
Third (3rd) Floor (the "Third Floor Premises") and Suite L-100, comprised of
4,000 Rentable Square Feet, as hereinafter defined, which shall be located on
the Lower Lobby ("Lower Lobby Premises") (The Third Floor Premises and the
Lower Lobby Premises are 16,500 Rentable Square Feet in the aggregate and are
hereinafter collectively called the "Demised Premises" or "Premises")
including an allocable share of the common facilities, approximately as shown
on the plan or plans, initialed by the parties hereto, marked Exhibit A-1 and
Exhibit A-2, respectively (attached hereto and by this reference made a part
of this Lease the same as if fully set forth herein) in the Building known as
FORT XXX EXECUTIVE PARK, Xxx Xxxxxxxxx Xxxxx, Xxxx Xxx, Xxx Xxxxxx, 00000
(hereinafter called the "Building") which is situated on that certain parcel
of land (hereinafter called "Office Building Area") as described in Exhibit A
attached hereto and by this reference made a part of this Lease the same as
if fully set forth herein, together with the right to use in common with
other lessees of the Building, their invitees, customers and employees, those
public areas of the common facilities as hereinafter defined.
2. TERM. The Premises are leased for a term of five (5) years to
commence on August 1, 1998 (the "Lease Commencement Date") and to expire on
July 31, 2003 (the "Lease Expiration Date"). Notwithstanding the aforesaid,
the Lease Commencement Date and the Lease Expiration Date shall be adjusted
to reflect the substantial completion of Lessor's Work if same is not
completed by August 1, 1998. Substantial completion shall be conclusively
evidenced by the issuance of a Certificate of occupancy by the Borough of
Fort Xxx. If the Premises are substantially completed prior to August 1,
1998, Lessee shall be afforded possession of the Premises prior to August 1,
1998 but shall have no obligation to pay Basic or Additional Rent prior to
August 1, 1998.
3. OCCUPANCY AND BASIC RENT. The Lessee shall pay to the
Lessor Basic Rent for the Demised Premises on the commencement of the Term.
Basic Rent Shall accrue for the Demised Premises for the Lease Term and shall
be payable as follows:
(a) Basic Rent in respect of the Third Floor Premises
shall be payable as follows:
(i) For the first (1st) year of the Lease Term,
Basic Rent shall be the sum of Three Hundred Six Thousand Two Hundred Fifty and
00/100ths ($306,250.00) Dollars per annum payable in equal monthly
installments of Twenty-Five Thousand Five Hundred Twenty and 83/100ths
($25,520.83) Dollars each;
(ii) For the second (2nd) year of the Lease
Term, Basic Rent shall be the sum of Three Hundred Nine Thousand Three Hundred
Seventy-Five and 00/100ths ($309,375.00) Dollars per annum payable in equal
monthly installments of Twenty-Five Thousand Seven Hundred Eighty-One and
25/100ths ($25,781.25) Dollars each;
(iii) For the third (3rd) year of the Lease
Term, Basic Rent shall be the sum of Three Hundred Twelve Thousand Five
Hundred and 00/100ths ($312,500.00) Dollars per annum payable in equal
monthly installments of Twenty-Six Thousand Forty-One and 67/100ths
($26,041.67) Dollars each;
(iv) For the fourth (4th) year of the Lease
Term, Basic Rent shall be the sum of Three Hundred Fifteen Thousand Six
Hundred Twenty-Five and 00/100ths ($315,625.00) Dollars per annum payable in
equal monthly installments of Twenty-Six Thousand Three Hundred Two and
08/100ths ($26,302.08) Dollars each; and
(v) For the fifth (5th) year of the Lease
Term, Basic Rent shall be the sum of Three Hundred Eighteen Thousand Seven
Hundred Fifty and 00/100ths ($3l8,750.00) Dollars per annum payable in equal
monthly installments of Twenty-Six Thousand Five Hundred Sixty-Two and
50/100ths ($26,562.50) Dollars each.
(b) Basic Rent in respect of the Lower Lobby Premises
shall be payable as follows:
(i) For years one (1) through five (5) of the
Lease Term, Basic Rent shall be the sum of Forty-Six Thousand and 00/100ths
($46,000.00) Dollars per annum payable in equal monthly installments of Three
Thousand Eight Hundred Thirty-Three and 34/100ths ($3,833.34) Dollars each.
Basic Rent is inclusive of the cost of Lessor's Standard Electric
Service as that term is defined in Paragraph 21(a) hereof calculated at the
rate of $1.50 per Rentable Square Foot per annum and based upon estimated
usage of six (6) xxxxx per Rentable Square Foot.
All such monthly installments shall be paid in advance on the first
day of the month, except that a proportionately lesser sum may be paid for
the first and last months of occupancy of the Demised Premises if the
obligation to pay rent for said space commenced on a day other than the first
day of a month, in accordance with the provisions of this Lease as herein set
forth. Notwithstanding the aforesaid, simultaneously upon the execution of
this Lease, Lessee shall pay to Lessor the sum of $29,354.17, representing
the Basic Rent for the initial first (1st) full month of the lease term. All
such Basic Rent shall be 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. Any and all payments on account of this
Lease made by check shall be subject to collection thereon. Lessor
acknowledges receipt from Lessee of the sum of $29,354.17 by check, subject
to collection, for Basic Rent for the Demised Premises for the first month of
the lease term. Lessee shall pay Basic Rent and any additional rent and other
payments as hereinafter provided, to Lessor at Lessor's above stated address,
or at such other place as Lessor may designate by written notice to Lessee,
without demand and without counterclaim, deduction or setoff.
4. USE AND OCCUPANCY. Lessee shall use and occupy the Third Floor
Premises for general office and administrative purposes and for no other
purpose. Lessee shall use and occupy the Lower Lobby Premises for storage and
mailing services and subassembly, testing and laboratory purposes only (any
manufacturing is prohibited) and for no other purpose. Lessee shall use the
Demised Premises in a careful, lawful, safe and proper manner.
Lessee agrees to indemnify and save harmless Lessor from and against
(a) all claims of whatever nature against Lessor arising from any act,
omission or negligence of Lessee, its contractors, licensees, agents,
servants, employees, invitees or visitors, including any claims arising from
any act, omission or negligence of Lessee, (b) all claims against Lessor
arising from any accident, injury or damage whatsoever caused to any person
or to the property of any person and occurring during the Term in or about
the Demised Premises provided same is not caused by the omission or
negligence of Lessor, (c) all claims against Lessor arising from any
accident, injury or damage occurring outside of the Demised Premises but
anywhere within or about Lessor's Building where such accident, injury or
damage results or is claimed to have resulted from an act or omission of
Lessee or Lessee's agents, employees, invitees or visitors, including any
claims arising from any act, omission or negligence of Lessee, and (d) any
breach, violation or non-performance of any covenant, condition or agreement
in this Lease set forth and contained on the part of Lessee to be fulfilled,
kept, observed and performed. This indemnity and hold harmless agreement
shall include indemnity from and against any and all liability, fines, suits,
demands, costs and expenses of any kind or nature incurred in or in
connection with any such claim or proceeding brought thereon and the defense
thereof. In any event, there shall be absolutely no personal liability on the
part of the Lessor to the Lessee with respect to any of the terms, covenants
and conditions of this Lease and Lessee shall look solely to the equity of
the Lessor or any successor in interest to the Lessor in the fee or leasehold
estate of the Lessor, as the case may be, for the satisfaction of each and
every remedy of the Lessee in the event of any breach by the Lessor or by any
successor in interest to the Lessor of any of the terms, covenants and
conditions of this Lease to be performed by the Lessor. Such exculpation of
personal liability is to be absolute and without any exception whatsoever.
5. CARE AND REPAIR OF PREMISES. Lessee Shall commit no act of waste
and shall take good care of the Premises and fixtures and appurtenances
therein, and shall, in the use and occupancy of the Premises, conform to all
laws, orders and regulations of the federal, state, county and municipal
governments or any agency or department thereof. Lessee shall make all
necessary repairs, not including structural repairs, to the Premises at
Lessee's sole cost and expense to preserve the Premises in good condition and
working order. All of Lessee's repairs shall be of a first class quality and
done in a good and workmanlike manner and performed by such contractors that
have been approved by Lessor and have executed and delivered Lessor's
standard indemnity agreement and provided a certificate of insurance
evidencing liability coverage in such an amount and by such a carrier
satisfactory to Lessor. All such work shall be scheduled in consultation with
and subject to the approval of Lessor. If Lessee shall fail to make such
repairs as are necessary, Lessor shall nevertheless make the necessary
repairs but Lessee shall pay to Lessor, as additional rent, immediately upon
demand, the costs therefor.
All alterations, additions and 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 installation. Not later than the last day of the term, Lessee shall, at
Lessee's expense, (a) remove all Lessee's personal property and those
improvements made by Lessee which have not become the property of Lessor, as
hereinabove provided, (including trade fixtures, cabinetwork, movable
paneling, partitions and the like); (b) repair all injury done by or in
connection with the installation or removal of said property and
improvements; and (c) 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 or fault
of or by Lessee, Lessee's agents, 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. Any fixtures placed upon the Demised Premises shall be the property
of the Lessor. Lessee shall not mortgage, hypothecate, assign or otherwise
permit a lien to attach to said fixtures. At Lessor's option, prior to
vacating the Demised Premises at the expiration or earlier termination of
this Lease, Lessee shall remove all telephone and computer cable, wiring and
flooring and deliver the Demised Premises in broom clean condition.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS. Lessee shall not make any
non-structural alterations, additions or improvements in, to or about the
Premises without first obtaining the express written consent of Lessor, which
consent shall not be unreasonably withheld or delayed. Lessor's consent may
be subject to such terms and conditions as Lessor may reasonably require. If,
in Lessor's sole opinion, the proposed alteration, addition or improvement
shall affect or impact on any structural or mechanical system in the
Building, Lessor may withhold its consent with or without cause. Lessee, at
its sole costs and expense, may install a supplemental air-conditioning or
heating system within the Demised Premises, provided however, such
installation shall be subject to Lessor's written consent which shall
expressly include by way of example, the size, specifications, design, method
of installation and connection with all conduits, cables and the like.
Further, Lessee may install a condenser on the roof provided Lessee shall (i)
be fully responsible for any and all damage to the roof that may result from
the installation and subsequent removal of the condenser; (ii) be responsible
for maintaining the condenser and obtaining a service agreement at Lessee's
sole cost and expense; and (iii) provide suitable insurance coverage.
7. 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.
8. ABANDONMENT. During the term of this Lease or any renewed or
extended term thereof, Lessee shall not, without first obtaining the
written consent of Lessor, abandon the Premises, or allow the Premises to
become vacant or deserted.
9. ASSIGNMENT AND SUBLEASE. Lessee may assign or sublease the
within Lease to any party subject to the following:
(a) In the event that Lessee desires to sublease the whole
or any portion of the Premises or assign the within Lease to any other party,
the terms and conditions of such sublease or assignment shall be communicated
to Lessor in writing prior to the effective date of any such sublease or
assignment, and, prior to such effective date, Lessor shall have the option,
exercisable in writing to Lessee, to recapture the within Lease so that such
prospective sublessee or assignee shall then become the sole Lessee of Lessor
hereunder, or alternatively to recapture said space, and the within Lessee
shall be fully released from any and all obligations hereunder.
(b) In the event that Lessor elects not to recapture the
Lease as hereinabove provided, Lessee may nevertheless assign this Lease or
sublet the whole or any portion of the Premises, subject to Lessor's prior
written consent, which consent shall not be unreasonably withheld or delayed,
and subject to the consent of any mortgagee, trust deed holder or ground
lessor, on the basis of the following terms and conditions:
(1) If Lessee shall provide to Lessor the name and address
of the assignee or sublessee.
(2) The assignee or sublessee shall assume, by written
instrument, all of the obligations of this Lease, and a copy of such
assumption agreement shall be furnished to Lessor within ten (10) days of its
execution.
(3) the Lessee and each assignee shall be and remain liable
for the observance of all the covenants and provisions of this Lease,
including, but not limited to, the payment of rent reserved herein, through
the entire term of this Lease, as the same may be renewed, extended or
otherwise modified.
(4) The Lessee and any assignee shall promptly pay to
Lessor one-half of any consideration received, for any assignment or
one-half 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.
(5) In any event, the acceptance by Lessor of any rent from
the assignee or from any of the subtenants or the failure of Lessor to insist
upon a strict performance of any of the terms, conditions and covenants
herein shall not release Lessee herein, nor any assignee assuming this Lease,
from any and all of the obligations herein during and for the entire term of
this Lease.
(6) Lessee shall reimburse Lessor all reasonable costs and
expenses incurred, including reasonable attorneys fees, with respect to its
handling of each request for consent to any sublet or assignment prior to its
consideration of the same. Lessee acknowledges that its sole remedy with
respect to any assertion that Lessor's failure to consent to any sublet or
assignment is unreasonable shall be the remedy of specific performance and
Lessee shall have not other claim or cause of action against Lessor as a
result of Lessor's actions in refusing to consent thereto.
Notwithstanding the aforesaid, Lessor's consent to any proposed
assignment or sublet may be withheld in Lessor's sole and absolute discretion
if the proposed assignee or sublessee (i) is a domestic or foreign
governmental or agency thereof; (ii) is a person or entity with a reputation
Lessor reasonably believes is less than reputable; (iii) is a person or
entity whose financial condition is reasonably unacceptable to Lessor; (iv)
proposes a use Lessor determines is incompatible with the uses of other space
tenants at the Office Building Complex; (v) proposes a use that has been
exclusively reserved to another space tenant at the Office Building Complex;
(vi) proposes to use the Premises, or any portion thereof, for a school or
training facility; (vii) is a charitable organization; or (viii) is an
existing tenant at the Office Building Area, an entity affiliated with a
tenant, a principal of a tenant or an entity, principal or affiliate of an
entity that has been introduced to or commenced negotiations for the leasing
of space from Lessor (or its affiliate) at the Office Building Area.
(c) Any sublet or assignment to an Affiliated Company (as
that term is defined in Paragraph 42(e) hereof) shall not be subject to the
provisions of subsections (a) or (b)(4) hereof and shall not require Lessor's
prior written consent, but all other provisions of this Paragraph shall
apply.
(d) Without limiting any of the provisions of Paragraphs 13
and 15, if pursuant to the Federal Bankruptcy code (herein the "Code"), or
any similar law hereafter enacted having the same general purpose, Lessee is
permitted to assign this Lease notwithstanding the restrictions contained in
this Lease, adequate assurance of future performance by an assignee expressly
permitted under such Code shall be deemed to mean the deposit of cash
security in an amount equal to the sum of one year's basic rent plus an
amount equal to additional rent for the calendar year preceding the year in
which such assignment is intended to become effective, which deposit shall be
held by Lessor for the balance of the term, without interest, as security for
the full performance of all of Lessee's obligations under this Lease, to be
held and applied in the manner specified for security in Paragraph 38.
10. COMPLIANCE WITH RULES AND REGULATIONS. Lessee shall observe and
comply with the rules and regulations hereinafter set forth in Exhibit B
attached hereto and made a part hereof and with such further reasonable rules
and regulations as Lessor may prescribe, on written notice to the Lessee, for
the security, safety, care and cleanliness of the Building and the comfort,
quiet and convenience of other occupants of the Building. Lessee shall not
place a load upon any floor of the Demised Premises exceeding the floor load
per square foot area which it was designed to carry and which is allowed by
law. Lessor reserves the right to prescribe the weight and position of all
safes, business machines and mechanical equipment. Such installations shall
be placed and maintained by Lessee, at Lessee's expense, in settings
sufficient, in Lessor's judgment, to absorb and prevent vibration, noise and
annoyance.
11. DAMAGES TO BUILDING/WAIVER OF SUBROGATION.
(a) Conditions of Termination of Lease and Restoration. If
the Building is damaged by fire or any other cause to such extent that the
cost of restoration, as reasonably estimated by Lessor, will equal or exceed
ten (10%) percent of the replacement value of the Building (exclusive of
foundations) just prior to the occurrence of the damage, then Lessor may, no
later than the Sixtieth (60th) day following the damage, give Lessee a notice
of election to terminate this Lease, or if the cost of restoration will equal
or exceed fifty (50%) percent of such replacement value or if the Premises
shall not be reasonably usable for the purpose for which they are leased
hereunder and Lessor has not substantially restored the Premises within
thirty (30) days of the casualty, then Lessee may, no later than the sixtieth
(60th) day following the damage, give Lessor a notice of election to
terminate this Lease. In either said event of election, this lease shall be
deemed to terminate on the thirtieth (30th) day after the giving of said
notice, and Lessee shall surrender possession of the Premises within a
reasonable time thereafter and the Basic Rent, and any additional rent, shall
be apportioned as of the date of said surrender, and the Basic Rent, and any
additional rent, paid for any period beyond said date shall be repaid to
Lessee. If the cost of restoration as estimated by Lessor shall amount to
less than ten (10%) percent of said replacement value of the Building, or if,
despite the Cost, Lessor does not elect to terminate this Lease, and provided
that Lessee has not exercised its right to terminate as aforesaid, Lessor
shall restore the Building and the Premises with reasonable promptness,
subject to force majeure, and Lessee shall have no further right to terminate
this Lease. Lessor need not restore fixtures and equipment owned by Lessee
unless the cost of restoration is covered by Lessor's insurance. Without
derogating from the foregoing, Lessor shall restore any improvements made by
Lessee in accordance with this Lease provided the cost of same is covered by
insurance. In the event of a casualty rendering the Premises unusable for the
purposes intended, Lessee's obligation to pay Rent shall be abated from the
date of the casualty and until the Premises have been restored.
(b) Waiver of Subrogation, Etc. Notwithstanding the
provisions of this Paragraph 11 of the Lease, in any event of loss or damage
to the Building, the Premises and/or any contents, each party shall look
first to any insurance in its favor before making any claim against the other
party, and, to the extent possible without additional cost, each party shall
obtain, for each policy of insurance, provisions permitting waiver of any
claim against the other party for loss or damage within the scope of such
insurance, and each party, to the extent permitted, for itself and its
insurers waives all such insured claims against the other party.
12. EMINENT DOMAIN. If Lessee's use of the Premises is materially
affected due to the taking by 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 such termination date, and the Basic Rent, and any
additional rent, paid for any period beyond said date shall be repaid 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 expenses, provided the same shall in no way
affect or diminish Lessor's award and further provided that Lessee shall have
no right to any part of the award resulting from the value of the within
leasehold estate. 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 Demised Premises, there shall either be an abatement or an equitable
reduction of the Basic Rent, and an equitable adjustment reducing the
additional rent provided in Paragraph 22 hereinafter, depending on the period
for which and the extent to which the Premises so taken are not reasonably
usable for which they are leased hereunder.
13. INSOLVENCY OF LESSEE. Either (a) the appointment of a receiver
to take possession of all or substantially all of the assets of Lessee, or
(b) a general assignment by Lessee for the benefit of creditors, or (c) any
action taken or suffered by Lessee, voluntarily or involuntarily, under any
insolvency or bankruptcy or reorganization act or law, shall constitute a
default of this Lease by Lessee.
14. DEFAULT OF LESSEE. Any of the following events shall be a
default of Lessee: (a) Lessee's default in the payment on the due date of the
Basic Rents and/or additional rents and/or any other payment required of
Lessee by this Lease, unless Lessee shall cure such default within five (5)
days after the due date of such Basic Rent and/or additional rent and/or
other payment required of Lessee hereunder; (b) Lessee's default in the
performance of any of the other covenants of Lessee or conditions of this
Lease, unless Lessee shall cure such default within thirty (30) days after
notice of such default given by Lessor (or if any such default is of such
nature that it cannot be completely cured within such period, then unless
Lessee shall commence such curing within thirty (30) days after notice of
such default given by Lessor and shall thereafter proceed with reasonable due
diligence and in good faith to cure such default and shall succeed in curing
such default within a reasonable period of time, and provided that the
existence of such default for more than fifteen (15) days does not, in
Lessor's reasonable judgment, itself result in substantial damages to Lessor
and place Lessor in risk of substantial damage by such additional time to
cure such default); (c) insolvency of Lessee as set forth in Paragraph 13 of
this Lease; (d) the sale or attempted sale by or under execution or other,
legal process of Lessee's leasehold interest hereunder and/or substantially
all of Lessee's other assets; (e) the initiation of legal proceedings to
effect, or resulting in, the seizure, sequestering or impounding of any of
Lessee's goods or chattels used in, or incident to, the operation of the
Premises by Lessee; (f) assignment by operation of law of Lessee's leasehold
interest hereunder; (g) any attempt by Lessee to assign the within Lease or
Sublet the Demised Premises without the express prior written consent of the
Lessor; or (h) any act or omission of Lessee constituting an anticipatory
breach or repudiation of this Lease.
15. LESSSOR'S REMEDIES ON DEFAULT OF LESSEE. Upon any default of
Lessee as set forth in Paragraph 13 or Paragraph 14 of this Lease, Lessor, at
Lessor's sole option, may elect and enforce any one of the remedies
hereinafter provided in this Paragraph 15; provided, however, that Lessor
may, at Lessor's sole option, elect and enforce multiple remedies from among
those remedies hereinafter provided to the extent such remedies are not
inconsistent and are not legally mutually exclusive and to the extent Lessor,
in Lessor's reasonable judgment, deem the enforcement of such multiple
remedies necessary or appropriate to indemnify and make Lessor whole from any
loss or damage as a result of the default or defaults of Lessee; and provided
further that Lessor, at Lessor's sole discretion, may successively elect and
enforce any number of the remedies hereinafter provided to the extent that
Lessor, in Lessor's reasonable judgment, deems necessary or appropriate to
indemnify and make Lessor whole from any loss or damage as a result of the
default or defaults of Lessee:
(a) Termination and Lessee's Liabilities. Lessor shall have
the right to terminate this Lease forthwith, and upon notice of such
termination given by Lessor to Lessee in accordance with the notice
provisions of this Lease, Lessee's right to possession, use and enjoyment of
the Demised Premises shall cease, and Lessee shall immediately quit and
surrender the Demised Premises to Lessor, but Lessee shall remain liable to
Lessor as hereinafter provided. Upon such termination of this Lease, Lessor
may at any time thereafter re-enter and resume possession of the Premises by
any lawful means and remove Lessee and/or other occupants and their goods and
chattels. 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 portion thereof 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 sole
option, and Lessor shall 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 attorney's fees, and then to the payment of damages in amounts
equal to the rent (basic and additional) and other payments required of
Lessee 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 damage equal to the basic
and additional 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
resetting shall constitute a surrender and acceptance or be deemed evidenced
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, other payments and damages as herein defined, during the
period of Lessor's occupancy, the reasonable value of such occupancy, equal
to in any event the basic and additional rent herein reserved. In no event
shall such occupancy by Lessor be construed as a release of Lessee's
liability hereunder.
(b) Acceleration of the Rents. Lessor shall have the right
to declare the entire remaining unpaid Basic Rents and all other then known
additional rents and other payments required of Lessee by this Lease for the
full balance of the Lease term to be immediately due and payable. Such
declaration of acceleration shall be made by notice given by Lessor to Lessee
in accordance with the notice provisions of this Lease. Upon notice of
declaration of acceleration, Lessee shall immediately pay to Lessor, without
further demand or notice, an amount equal to the sum of the entire remaining
Unpaid Basic Rents provided in Paragraph 3 of this Lease for the entire Lease
term, plus the entire remaining balance of all unpaid additional rents
provided in Paragraph 22 of this Lease of the entire Lease term to the extent
the amount of such additional rents are then known, plus all unpaid other
payments required of Lessee by this Lease for the entire Lease term to the
extent the amount of such other payments are then known. Upon timely payment
of all the sums hereinabove provided in this Subparagraph 15(b), Lessee shall
have the right to continue to possess, occupy and enjoy the Demised Premises
for the remaining balance of the Lease term, subject to strict observance by
Lessee of all the covenants, conditions and other provisions of this Lease
and provided that Lessee has not vacated or abandoned the Premises and
provided that Lessee shall pay when due all additional rents as provided in
Paragraph 22 of this Lease and all other payments required of Lessee by this
Lease, the amount of which additional rents and other payments were not paid
upon the declaration of acceleration pursuant to the hereinabove stated
provisions of this Subparagraph 15(b). Lessor shall have the right to
immediately enforce declaration of acceleration as hereinabove provided by
means of distress or any legal action. The foregoing notwithstanding, Lessor
shall have the right to declare an acceleration and collect upon same and, in
addition, to dispossess Lessee and re-enter and take possession of the
Premises if Lessee has vacated or abandoned the Premises or if Lessor is
dispossessing and evicting Lessee for the purpose of ultimately reducing
Lessee's liabilities under this Lease. In the event Lessor shall declare an
acceleration as provided in this Subparagraph 15(b) and the amounts due
hereunder shall not be paid forthwith, then Lessor, at Lessor's sole option,
may exercise Lessor's right to terminate this Lease as provided in
Subparagraph 15(a) hereof, in which event Lesser shall be entitled to the
full benefits of, and full enforcement of, Subparagraph l5(a) hereof.
(c) Specific Performance of Lease. Lessor shall have
the right to enforce Lessee's specific performance of each and every
covenant, condition and other provision of this Lease.
(d) Liquidated Damages. In any case where Lessor has
recovered possession of the Premises by reason of Lessees 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 default, in addition to such other sums herein
agreed to be paid by Lessee, to the date of re-entry, expiration and/or
dispossess, an amount equal to the difference between (i) the sum of the
Basic Rent and additional rents and other payments reserved in this Lease and
required of Lessee hereunder from the date of such default to the date of
expiration of the original term demised, and (ii) 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 default 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 damage, the difference between any
installments of rent (basic and additional) thereafter becoming due and the
fair and reasonable rental value of the Premises for the period for which
such installment was payable shall be discounted to the date of such default
at the rate of not more than four (4%) percent per annum.
(e) Waiver of Right of Redemption. Lessee hereby waives all
right of redemption to which Lessee or any person under Lessee might be
entitled by any law now or hereafter in force.
(f) Other Remedies. Lessors remedies hereunder are
in addition to any remedy allowed by law or in equity.
(g) Non-exclusivity. The remedies set forth above shall be
non-exclusive and the Lessor's election to enforce any remedy shall not be
deemed a waiver of any other remedy Lessor may be entitled to hereunder or as
allowed by law or in equity.
(h) Lessor's Duty to Mitigate. Lessor and Lessee
acknowledge that Lessor's obligation to mitigate damages in the event of
Lessee's breach shall be satisfied by providing adequate information to the
commercial brokerage community as to the availability for letting of the
Demised Premises; having the Demised Premises available for inspection by
prospective tenants during Building Hours, and by the acceptance of a
commercially reasonable offer for all or a portion of the Demised Premises,
which acceptance shall be evidenced by the execution of a lease agreement in
form and providing terms substantially the same as the form utilized for all
space tenants at the Building and without material changes therefrom. Lessor
shall be under no obligation to accept any offer other than a commercially
reasonable offer. Lessor's actions required hereunder, including providing
information as to the availability of the Demised Premises for letting, the
showing of the Demised Premises to prospective lessees and the evaluation and
acceptance of proposed offers to let, shall be in the ordinary course of
business and shall neither discriminate in favor of nor against the Demised
Premises.
16. SUBORDINATION OF LEASE. This Lease shall, at Lessor's option, or
at the option of any holder of any underlying or ground lease or holder of a
first institutional mortgage or deed of trust, be subject and subordinate to
any such underlying leases and to any such first institutional mortgage
and/or Deed of Trust which may flow or hereafter affect the real property of
which the Premises form a part, and also to all renewals, modifications,
consolidations and replacements of said underlying leases and said first
institutional mortgage and/or Deed of Trust. 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 holder
of said first institutional mortgage and/or Deed of Trust or by any of the
lessors under such underlying or ground leases. Lessee hereby appoints Lessor
attorney-in-fact, irrevocably, to execute and deliver any such instrument for
Lessee. If any underlying or ground lease to which this Lease is subject
shall terminate, Lessee shall, on timely request, attorn to the owner of the
reversion.
17. RIGHT TO CURE LESSEE'S BREACH. If Lessee breaches any covenant
or condition of this lease, Lessor may, on reasonable 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
reasonable attorney's fees, incurred by Lessor in so doing (whether paid by
Lessor or not) shall be deemed additional rent payable on demand.
18. MECHANIC'S LIENS. Lessee shall, within fifteen (15) days after
notice from Lessor, discharge or satisfy by bonding or otherwise any
mechanic's liens or other liens for equipment, material, labor or goods or
services claimed to have been furnished to the Premises on Lessees behalf.
19. 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 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 for
interruption to Lessee's business, however occurring.
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION.
While Lessee is not in default under any of the provisions
of this Lease, Lessor agrees to furnish, except on holidays as set forth on
Exhibit C attached hereto and made a part hereof, the following:
(a) The cleaning services, as set forth in Exhibit D
attached hereto and made a part hereof, and subject to the conditions therein
stated. Except as set forth in Exhibit D, Lessee shall pay Lessor the cost of
all other cleaning services required by Lessee.
(b) Heating, ventilating and air conditioning (herein
"HVAC") as appropriate for the season together with common facilities,
lighting and electric energy all during "Building Hours", as hereinafter
defined. In the event Lessee shall require HVAC other than during Building
Hours (as defined elsewhere herein) and in July and August only, through 8:00
P.M. Monday through Friday, Lessee shall give not less than four (4) hours
notice to Lessor and shall pay Lessor, upon demand, the sum of $65.00 for
each hour, or portion thereof, of HVAC provided outside Building Hours.
(c) Notwithstanding the requirements of Exhibit D or any
other provision of this Lease, Lessor shall not be liable for failure to
furnish any of the aforesaid services when such failure is due to force
majeure, as hereinafter defined. Lessor shall not be liable, under any
circumstances, for loss of, or injury to Lessee or to property however
occurring, through or in connection with or incidental to the furnishing of,
or failure to furnish, any of the aforesaid services or for any interruption
to Lessee's business, however occurring.
21. ELECTRICITY.
(a) Subject to intervening laws, ordinances and executive
Orders, Lessor shall furnish the Lessor's Standard Electric Service (as
hereinafter defined in Subparagraph 21(b) which Lessee shall require in the
Demised Premises on a rent inclusion basis. That is, subject to the
provisions of Subparagraphs 21(b) and 21(e), there shall be no charge to
Lessee for such Standard Electric Service by way of measuring the same on any
meter or otherwise, such Standard Electric Service being included in Lessor's
services which are covered by the Basic Rent reserved hereunder. Lessor shall
not be liable in any way to Lessee for any failure or defect in the supply or
character of electric energy furnished to the Demised Premises by reason of
any requirement, act or omission of the public utility serving the Building
with electricity or for any other reason not attributable to Lessor. Lessor,
however, shall furnish and install all building standard replacement lighting
tubes, lamps, bulbs and ballasts required in the Demised Premises, at
Lessee's sole cost and expense. Lessee shall be solely responsible for
furnishing and installing, at its cost and expense, all non-building standard
lighting tubes, lamps, bulbs and ballasts.
(b) The Lessor's Standard Electric Service shall, unless
otherwise provided by agreement in writing between the parties, provide the
electrical current for usual office requirements, equipment and heating,
ventilating and air-conditioning systems during Building Hours (as that term
is defined in Paragraph 42(d) hereof). Usual office equipment shall include
typewriters and collators, copying machines, calculators, clocks, water
coolers, personal computers and the like. In no event shall Lessor's Standard
Electric Service include electrical current for any computer and/or word
processor installation or for any requirements needing greater than a 15-amp
line. All installations of electrical fixtures, appliances and equipment
within the Demised Premises shall be subject to Lessor's prior written
approval, which approval shall not be unreasonably withheld or delayed.
Lessor and Lessee shall use their reasonable good faith efforts to negotiate
for the delivery of supplemental air conditioning by Lessor, and the cost
therefor. If Lessor and Lessee shall be unable to agree after good faith
discussions, Lessee may install one or more supplemental air-conditioning
system for the server room and any other room in the Demised Premises at
Lessee's sole cost and expense and subject to Lessor's approval not to be
unreasonably withheld. Any such supplemental air-conditioning system shall
include electronic metering at Lessee's sole cost and expense. Lessee shall
pay to Lessor the direct cost of the supplemental air-conditioning system
including electric metering together with an administrative and handling fee
of ten (10%) percent, promptly upon receipt of invoices therefor.
(c) Lessee shall pay to Lessor in equal monthly
installments, in advance, the reasonable cost of electrical services and
energy in excess of the Standard Electric Service referred to above, whether
resulting from the installation of additional fixtures, appliances or
equipment with or without Lessor's consent, or from use at times other than
those set forth above. Lessee agrees that Lessor, from time to time, may
cause an independent electrical engineer, electrical consulting firm, or such
other appropriate professional firm selected by Lessor, from time to time, to
make a determination of the value of the electrical services supplied to
Lessee. If it shall be determined that the then full value of such electrical
services being supplied to Lessee is in excess of the Standard Electric
Service Factor based upon increased usage, rate increase or any other reason,
this Lease shall be modified to provide for an increase in the Basic Rent for
the entire Term of the Lease by an annual amount equal to such excess.
However, if it shall be determined that the full value to the Lessee does not
exceed the Standard Electric Service Factor, there shall be no increase or
decrease in the Basic Rent.
22. ADDITIONAL RENT. It is expressly agreed that Lessee will pay in
addition to the Basic Rent, provided in Paragraph 3 above, an additional
rental to cover Lessee's proportionate share, as hereinafter defined, of the
increased cost to Lessor, for each of the categories enumerated herein, over
the "Base Period Costs" (as hereinafter defined) for said categories.
(a) Operating Costs Escalation. If the Operating Costs (as
hereinafter defined) incurred for the Building and the Office Building Area
for any calendar year or proportionate part thereof during the Lease Term
shall be greater than the Base Operating Costs incurred during the Base
Period (as hereinafter defined), adjusted proportionately for periods less
than a lease year (as hereinafter defined), then Leasee shall pay to Lessor,
as additional rent, its proportionate share (as hereinafter defined) of such
excess operating costs. Operating costs means each and every item of cost and
expense of whatever variety or description paid or incurred for maintenance
and operation of the Office Building Area and Building of which the Demised
Premises form a part (excluding Real Estate Taxes), including by way of
illustration and not of limitation, fuel, utilities, electric, water, sewer,
heating, ventilating and air conditioning, service contracts, elevators,
plumbing/sprinkler, pumps and motors, roofing and waterproofing, window and
glass, water treatment, painting, rubbish removal, tools and equipment, metal
maintenance, general building supplies, locks and keys, signage and
directory, security, masonry repairs, personal property taxes, management
fees, direct labor (including all wages and salaries; fringe benefits;
unemployment taxes, social security taxes, worker's compensation, insurance
and other similar taxes which may be levied upon the Lessor with respect to
such wages and salaries; disability benefits, hospitalization, medical,
surgical, union and general welfare benefits, any pension, retirement, or
life insurance plan and other benefit or similar expense respecting employees
of the Lessor; uniforms and working clothes for such employees; Lessor's
expenses imposed pursuant to law or to any collective bargaining agreement),
fire and other insurance, trash removal, data processing costs, interior and
exterior landscaping and decoration, repairs, replacements and improvements
which are necessary or appropriate for the continued operation of the
Building and Office Building Area as a first class office building or are
made in compliance with requirements of any federal, state or local law or
governmental regulation, whether or not such law or regulation is valid or
mandatory, management fees for the management of the Building, or if no
managing agent is employed by the Landlord, a sum in lieu thereof which is
not in excess of the then prevailing rates for management fees in Bergen
County, New Jersey, attorneys fees, appraisal and other experts fees incurred
in pursuance of any real estate tax appeal, accounting fees, and all other
items properly constituting direct operating costs or that portion of a
capital expenditure amortized during the Base Period and/or applicable lease
year according to generally accepted accounting principles, but not including
depreciation of Building or equipment, interest, income or excess profits
taxes, costs of maintaining the Lessor's corporate or other existence,
franchise taxes, or any expenditures required to be capitalized for federal
income tax purposes in excess of that portion of said capital expenditure
amortized during the Base Period and/or applicable lease year. As used in
this Subparagraph 22(a), the Base Operating Costs shall be the operating
costs incurred during the Base Period with respect to the establishment of
the Base Operating Costs (as said Base Period is hereinafter defined in
subparagraph 22(e)). If such Base Period is less than three hundred
sixty-five (365) days, then the Base Operating Costs shall be determined by
annualizing the Operating Costs incurred during such Base Period.
(b) Tax Escalation.
(1) If the Real Estate Taxes (as hereinafter
defined in Subparagraph 22(b)(2)(ii) for the Building and Office Building
Area at which the Demised Premises are located for any lease year or
proportionate part thereof, during the Lease term, shall be greater than the
Base Real Estate Taxes (as hereinafter defined in Subparagraph 22(b)(2)(i)),
incurred in the Base Period adjusted proportionately for periods less than a
lease year, then Lessee shall pay to Lessor as additional rent its
proportionate share, as hereinafter defined, of all such excess Real Estate
Taxes.
(2) As used in this Subparagraph 22(b), the words
and terms which follow mean and include the following:
(i) "Base Real Estate Taxes" shall mean those
real estate taxes assessed against the Building and Office Building Area as
provided for in the tax xxxx issued by the Borough of Fort Xxx for the year
commencing 1998.
(ii) "Real Estate Taxes" shall mean the
property taxes and assessments imposed upon the Building and the land upon
which it stands, or upon the rent, as such, payable to the Lessor. If due to
a future change in the method of taxation, any franchise, income or profit
tax shall be levied against Lessor in substitution for, or in lieu of, or in
addition to, any tax which would otherwise constitute a Real Estate Tax, such
franchise, income or profit tax shall be deemed to be a Real Estate Tax for
the purposes hereof; conversely, any additional Real Estate Tax hereafter
imposed in substitution for, or in lieu of, any franchise, income or profit
tax (which is not in substitution for, or in lieu of, or in addition to, a
Real Estate Tax as hereinbefore provided) shall not be deemed a Real Estate
Tax for the purposes hereof.
(3) In the event Lessor is successful, as a
result of a tax appeal or protest, in obtaining a reduction in Real Estate
Taxes for any period for which Lessee has paid additional rent pursuant to
Paragraph 22(c)(i) hereof, Lessee shall be entitled to a rebate for its
proportionate share of the reduction less all costs and expenses incurred in
pursuance of the said tax appeal or protest including filing fees, legal fees
and expert fees. Lessor may pay the rebate as a credit against rent due in
equal installments over the succeeding twelve (12) month period or such
shorter period as Lessor may determine in its sole discretion. A reduction
shall be deemed final thereby entitling Lessee to the rebate hereunder only
upon final judgment of a court of competent jurisdiction and not until the
time for filing any appeal therefrom has expired. Nothing contained herein
shall be deemed to give Lessee standing to file a tax appeal. Lessee
expressly acknowledges that the right to file such a tax appeal shall be
solely that of the Lessor.
(c) Lease Year. As used. in this Paragraph 22, lease year
shall mean the calendar year within which possession is delivered, and each
twelve (12) month calendar year thereafter. Once the Base Period Costs are
established, in the event any lease period is less than twelve (12) months,
then the Base Period Costs for the categories listed above shall be adjusted
to equal the proportion that said period bears to twelve (12) months, and
Lessee shall pay to Lessor as additional rent for such period, an amount
equal to Lessee's proportionate share, as hereinafter defined, of the excess
for said period over the adjusted Base Period Costs with respect to each of
the categories listed above.
(d) Payment. At any time, and from time to time, after the
establishment of the Base Period Costs for each of the categories referred to
above, Lessor shall advise the Lessee in writing of Lessee's proportionate
share of the excess of the sum of the Operating Costs, and Real Estate Taxes
over the Base Period Costs with respect to each of the said categories as
Lessor has reasonably estimated for the next twelve (12) month period
subsequent to the respective Base Periods (and for each succeeding twelve
(12) month period, or proportionate part thereof if the last period prior to
the Lease's termination is less than twelve (12) months with respect to any
one or more of the categories listed above) as then known to the Lessor, and
thereafter, the Lessee shall pay as additional rent, its proportionate share,
as hereinafter defined, of the excess of the sum of the Operating Costs, and
Real Estate Taxes over the Base Period Costs with respect to each of the said
categories for the then current period affected by such advice (as the same
may be periodically revised by Lessor as additional costs are incurred) in
equal monthly installments, such new rates being applied to any months for
which the rental shall have already been paid but which are affected by the
Operating Costs Escalation and/or Tax Escalation Costs above referred to, as
well as to the unexpired months of the current period, the adjustment for the
then expired months to be paid at the payment of the next succeeding monthly
rental, all subject to final adjustment at the expiration of each lease year
as defined in Subparagraph 22(c) hereof (or proportionate part thereof if the
last period prior to the Lease's termination is less than twelve (12)
months).
Notwithstanding anything herein contained to the contrary, in the
event the last period prior to the Lease's termination is less than twelve
(12) months, the Base Period Costs shall be proportionately reduced to
correspond to the duration of said final period.
(e) Base Period.
(1) The Base Period with respect to the
establishment of the Base Operating Costs shall be the calendar year 1998.
(2) The Base Period with respect to the Base
Real Estate Taxes shall mean the calendar year 1998 as set forth in the tax
xxxx issued July 1, 1998.
(f) Bills and Charges. For the protection of Lessee, Lessor
shall maintain bills and charges for the previous 12 month period which,
provided Operating Cost Escalation shall increase by more than five (5%)
percent in any calendar year during the term of this Lease and further
provided that Lessee has not otherwise defaulted in any of its obligations
under this Lease, shall be open to Lessee and its representatives at all
reasonable times and upon reasonable notice, so that Lessee can determine
that such Operating and Tax Costs have, in fact, been paid or incurred. In
the event of any disagreement as to one or more charges not settled between
Lessor and Lessee, such disagreement shall be referred to an independent
certified public accountant mutually acceptable to Lessor and Lessee. If
Lessor and Lessee shall fail to agree upon such an accountant, either party
may refer the dispute to the American Arbitration Association (the "AAA").
The decision of the accountant or the AAA, as applicable, shall be final and
binding. Lessor and Lessee shall share equally the costs and expenses
incurred with respect to such arbitration. Pending resolution or
determination of the Dispute, Lessee shall pay to Lessor the sum as billed by
Lessor. Lessee shall not review such bills and charges more than once in any
12 month period and then may only review bills and charges for the said 12
month period.
(g) Occupancy Adjustment. In the event the Building
is less than ninety-five (95%) percent occupied during the Base Period, the
Base Operating Costs shall be adjusted during such Base Period so as to
reflect ninety-five (95%) percent occupancy. Similarly, if the Building is
less than ninety-five (95%) percent occupied during any Lease Year or portion
thereof, actual Operating Costs shall be increased for such period to reflect
ninety-five (95%) percent occupancy. Costs and expenses unaffected by
variations in occupancy shall not be adjusted as aforesaid. To the extent
that any item comprising an Operating Cost is separately billed, metered or
paid directly by a space tenant, including Lessee, or for which Lessor is
reimbursed, such space shall be deemed vacant for purposes of the adjustment
herein.
23. INTERRUPTION OF SERVICES OR USE. Interruption or curtailment of
any service maintained in the Building or at the Office Building Area, if
caused by force majeure, as hereinafter defined, 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 Lessor fails to take
measures as may be reasonable under the circumstances to restore the service
within fifteen (15) days after receipt of notice from Lessee regarding such
interruption or curtailment. If the Premises are rendered untenantable in
whole or in part, for a period of thirty (30) consecutive business days by
the making of repairs or replacements, other than those made with Lessee's
consent or caused by misuse or neglect by Lessee, or Lessee's agents,
servants, visitors or licensees, Lessee shall have the right to make such
repairs or replacements and offset the cost thereof against the Basic Rent
due pursuant to Paragraph 3 hereof. In no event shall Lessee be entitled to
claim a constructive eviction from the Premises, unless Lessee shall first
have notified Lessor in writing of the condition or conditions giving rise
thereto, and, if the complaints be justified, unless Lessor shall have failed
within thirty (30) days, after receipt of such notice to remedy, to commence
and proceed with due diligence to remedy such condition or conditions,
subject to force majeure, as hereinafter defined.
24. LESSEE'S ESTOPPEL. Lessee shall, from time to time, on not less
than seven (7) 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 whether or not, to the
best of Lessee's knowledge, 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 upon by a prospective
purchaser of Lessor's interest or mortgagee of Lessor's interest or assignee
of any mortgage of Lessor's interest. Lessee shall promptly provide Lessor
with its most recent financial statements prepared in accordance with
generally accepted accounting principles and/or tax returns for submission to
Lessor's mortgagee.
25. HOLDOVER TENANCY. If Lessee holds possession of the Premises
after the term of this Lease, Lessee shall become a tenant from month to
month under the provisions herein provided, but, at a monthly Basic Rental of
one hundred seventy-five (175%) percent of the Basic Rent for the last month
of the lease term or any renewed or extended term, payable in advance on the
first day of each month, and such tenancy shall continue until terminated by
Lessor, or until Lessee shall have given to Lessor a written notice, at least
sixty (60) days prior to the intended date of termination of intent to
terminate such tenancy.
26. LESSOR'S WORK. Lessor acknowledges that it has inspected
and is fully familiar with the Demised Premises and that it has accepted the
Demised Premises in "AS IS" condition. Notwithstanding the aforementioned:
(a) Third Floor Premises -
(i) Prior to the Lease Commencement Date,
all of the work in the Third Floor Premises as set forth on the space plan
attached hereto as Exhibit "E" (the "Lessor's Work") shall be completed.
Lessor's obligation with respect to the build-out of the Third Floor Premises
and Lower Lobby Premises including Lessor's Work, shall not exceed the sum of
$187,500.00 ("Lessor's Contribution"). Any costs in excess of $187,500.00
shall be paid by Lessee promptly upon submission of invoice(s) thereof.
Subject to the foregoing, in the event that the Budget (defined below) for
the Third Floor Premises, as approved by the parties, is less than Lessor's
Contribution ($187,000.00), Lessee shall be entitled to utilize all or a
portion of the remaining balance of Lessor's Contribution (less the costs
allocable to the Drawings as set forth below) toward any further improvements
and/or decorations to be performed by Lessor to the Lower Lobby premises (in
addition to the build-out of such Premises described in Section 26 (b)
below), subject to the applicable terms of this Agreement. Notwithstanding
anything herein to the contrary, not more than ten (10%) percent of Lessor's
Contribution shall be applied towards the preparation of the Drawings (as
defined in Paragraph 26(a)(ii) below) or other soft costs incurred by Lessee
and any cost and expense in excess thereof shall be paid by Lessee even if
the aggregate of Lessor's Contribution shall be less than $187,500.00.
(ii) Lessee shall cause its architects to
produce construction drawings and its mechanical engineers or contractor to
produce mechanical drawings (sprinkler, air conditioning, heating, electrical
and plumbing drawings (collectively, the "Drawings") covering all mechanical
elements with respect to the build out of the Demised Premises including
Lessor's Work. Lessee shall submit the Drawings within ten (10) business days
of the execution of this Lease. Within ten (10) business days of Lessor's
receipt of the Drawings, Lessor shall prepare an itemized budget (the
"Budget") for the Lessor's Work. Lessee shall approve or disapprove the
Budget within ten (10) business days of its receipt. The Drawings shall be
subject to Lessor's approval which shall not be unreasonably withheld,
delayed or conditioned.
(iii) If Lessee approves the Budget, the work
shall commence immediately after such approval.
(iv) If Lessor fails to submit the Budget and
if completion of the Demised Premises as required hereunder within the time
periods stipulated shall be delayed due to such failure or requests, then
each full day of such delay shall equal one (1) day of Lessor Delay. If
Lessee fails to submit the Drawings and/or approve or disapprove the Budget
submitted by Lessor within the time periods stipulated, or if Lessee shall
request any change in the Drawings or Budget once approved and if completion
of the Demised Premises shall be delayed due to such request, then each full
day of such delay shall equal one (1) day of Lessee Delay. If the number of
days of Lessee Delay exceed the number of days of Lessor Delay, then the
Demised Premises shall be deemed complete and ready for occupancy on the date
when they would have been ready but for such excess days of Lessor Delay.
Basic Rent shall xxxxx one (1) day for every two (2) days of Lessor Delay in
excess of the number of days of Lessee Delay.
(v) If the Budget is disapproved, Lessee shall
inform Lessor of the reasons for such disapproval, and Lessor shall then have
five (5) business days to revise the Budget addressing Lessee's Objections.
Lessor shall not unreasonably refuse to satisfy any objections of Lessee to
the Budget and Lessee shall not unreasonably withhold its approval. The
review and revision of the Budget shall continue until approved by Lessee. In
the event Lessor and Lessee are unable to agree as to the Drawings and/or
Budget by May 29, 1998, resolution of all outstanding issues regarding the
Drawings and/or Budget shall be determined in the following manner: lessor
and Lessee shall each appoint an architect and in turn, the architects
appointed by Lessor and Lessee shall appoint a third arbitrator (the
"Architect Arbitrator"). The Architect Arbitrator shall review the Drawings
and Budget together with all objections thereto and shall, on an expedited
basis, consider the objections of the Lessor and Lessee with respect to each
such item of dispute and render a determination with respect to same as soon
as practicable. The determination of the Architect Arbitrator shall be final,
binding and unappealable.
(b) Lower Lobby Premises - Lessor will remove the cinder
block wall in front of the northern entrance to the Lower Lobby Premises and
erect a demising wall set forth on the plan attached hereto as Exhibit "F".
No "high hats" or other lighting fixtures shall be permitted without
the express written consent of the Lessor. Lessee agrees to maintain 100%
covering of the floor area within the Demised Premises utilizing carpeting,
vinyl floor tiles, hardwood or a similar covering. No bare concrete floors
shall be permitted.
27. RIGHT TO SHOW PREMISES. Lessor may show the Premises to
mortgagees, prospective mortgagees, prospective purchaser, insurance agents
and inspectors and the like on reasonable notice to Lessee, during business
hours, and, during the twelve (12) months prior to the termination of this
Lease, to prospective tenants.
28. 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.
29. LATE CHARGE. Anything in this Lease to the contrary
notwithstanding, at Lessor's option, Lessee shall pay a "Late Charge" of five
(5%) percent of any installment of rent or additional rent paid more than
five (5) days after the due date thereof, to cover the extra expense involved
in handling delinquent payments.
30. NO RECORDATION. Lessee agrees not to record or file this Lease
or any memorandum thereof in any public recording Office, including the
Bergen County Clerk's Office. Any such recording or filing shall constitute a
default hereunder entitling Lessor to all available remedies, including but
not limited to termination and re-entry pursuant to Paragraph 15(a) hereof
and acceleration of rent pursuant to Paragraph 15(b) hereof.
31. QUIET ENJOYMENT. Lessor covenants that if, and so long as,
Lessee pays the 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 provided, subject to the provisions of this Lease.
32. LESSEE'S INSURANCE.
(a) 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. Said policy is to be written by an insurance company
licensed and qualified to do business in the State of New Jersey and
reasonably satisfactory to Lessor. The policy shall have a limit of not less
than One Million ($1,000,000.00) 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 the Lessor reserves the right to
increase said coverage limits if, in the reasonable opinion of Lessor, said
coverage becomes inadequate and is less than 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 cancellation date of any policy,
the Lessee shall deliver a renewal or replacement policy with proof of the
payment of the premium therefor.
(b) Lessee covenants and represents, said representation
being specifically designed to induce Lessor to execute this Lease, that
Lessee's personal property and fixtures and any other items which Lessee may
bring to the Premises which may be subject to any claim for damages or
destruction due to Lessor's negligence shall be fully insured by a policy of
insurance covering all risks with a deductible not to exceed $1,000.00 which
policy shall specifically provide for a waiver of subrogation for Lessor and
all Building tenants without regard to whether or not same shall cost an
additional premium and notwithstanding anything to the contrary contained in
this Lease. Should Lessee fail to maintain said all risk insurance with the
required waiver of subrogation, or fail to maintain the liability insurance,
naming Lessor as an additional named insured, then Lessee shall be in default
hereunder and shall be deemed to have breached its covenants as set forth
herein.
33. PARKING SPACES. Lessee's occupancy of the Demised Premises
shall include the use of eighty-five (85) parking spaces of which seventeen
(17) parking spaces will be reserved. Lessor shall not be responsible or
liable for any damage to Lessee's vehicles as a result of fire, theft,
vandalism and/or collision.
34. LESSOR'S LIABILITY FOR LOSS OF PROPERTY. Lessor shall
not be liable for any loss of property from any cause whatsoever, including,
but not by way of limitation, theft or burglary from the Demised Premises,
and Lessee covenants and agrees to make no claim for any such loss at any
time.
35. BROKER. Lessee represents to Lessor that no broker other than
MRH Real Estate Services, Inc. (the "Broker") was engaged by it in connection
with this Lease and Lessee agrees to indemnify and hold Lessor harmless from
any and all claims of brokers arising out of or in connection with the
negotiation of or the entering into this Lease to the extent inconsistent
with Lessee's representation herein. In no event shall Lessor's mortgagee(s)
have any obligation to any broker involved in this transaction.
36. 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 partners, shareholders of partners, Affiliated Company, 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.
37. NO OPTION. The submission of this Lease Agreement for
examination does not constitute a reservation of, 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.
38. SECURITY DEPOSIT. Lessee shall deposit with Lessor on the
signing of this Lease the sum of Three Hundred Thousand and 00/100ths
($300,000.00) Dollars 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. The Security Deposit may be
posted by way of a clean irrevocable and unconditional letter of credit (the
"LC") issued by a banking institution reasonably acceptable to Lessor and
providing that Lessor is the sole beneficiary. The LC shall have an initial
duration of not less than one (1) year. In the event Lessee shall fail to
deliver to Lessor a renewal of the LC at least fifteen (15) days prior to the
expiration date, upon two (2) days notice (which may be by telecopier) Lessor
may draw down upon the LC.
If Lessor applies any part of said deposit to cure any default of
Lessee (after the expiration of any applicable cure periods), Lessee shall on
demand deposit with Lessor the amount so applied so that Lessor will 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.
Provided Lessee is not otherwise in default hereunder, at the
expiration of the first (1st) year following the Lease Commencement Date,
Lessor shall return to Lessee the sum of One Hundred Fifty Thousand and
00/100ths ($150,000.00) Dollars (or the renewal LC may be reduced
accordingly). Provided Lessee is not otherwise in default hereunder, at the
expiration of the second (2nd) year following the Lease Commencement Date,
Lessor shall return to Lessee the sum of Eighty-Eight Thousand and 00/100ths
($88,000.00) Dollars (or the renewal LC may be reduced accordingly). Provided
Lessee is not in default hereunder at the expiration of the Lease Term, the
balance of the Security Deposit (or LC whichever may be appropriate) shall
promptly be returned to Lessee.
The security deposit shall not be deemed or construed to be an
advance payment of rent for any month of the Lease Term as the same may be
renewed or extended including the last month of the term.
39. LESSOR'S LIEN. The Lessor and Lessee specifically agree, in
consideration of the Lease herein, that in addition to any statutory lien for
rent which the Lessor may have, Lessor shall also have an express lien upon
all of Lessee's good and chattels, including, but not by way of limitation,
all Lessee's furniture, fixtures and equipment which may be brought upon, or
placed in the Premises. The lien therein provided shall be as additional
security for the payment of the Basic Rents, additional rents and other
payments required by Lessee by this Lease and for the performance by Lessee
of the other covenants and conditions of Lease to be kept and performed by
Lessee. The lien therein provided may be enforced by Lessor by means of
distress, foreclosure or otherwise at the sole option of Lessor. The lien
herein provided notwithstanding, Lessee shall have the right to remove
Lessee's goods and chattels from the Premises from time to time, subject to
any other provisions of this Lease with respect to such removal and provided
that Lessee is not then in default of any of Lessee's obligations under this
Lease.
40. 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, Federal Express or similar national overnight courier, or sent by
registered mail or certified mail in a postpaid envelope addressed to Lessee,
prior to Lessee's occupancy of the Demised Premises, or a portion thereof, at
Lessee's address set forth above, and if subsequent to Lessee's occupancy of
the Demised Premises, or any portion thereof, at the above described
Building; if to Lessor, at Lessor's address as set forth above; with copies
to Xxxx Xxxxxxx, Esq., Xxxxxxx, Xxxxxxx & Bern, Esqs., Xxx Xxxxxxxxx Xxxxx,
Xxxx Xxx, Xxx Xxxxxx, 00000, or, to either at such other address as Lessee or
Lessor, respectively, may designate by written notice in accordance with this
Paragraph. Notice shall be deemed to have been duly given, if delivered
personally or by Federal Express or similar courier, on delivery thereof, and
if mailed, upon the 3rd day after mailing thereof.
41. ATTORNEY'S FEES. In the event either party shall employ an
attorney to enforce any of the conditions of this Lease, or to enforce any of
the covenants hereunder, or any rights, remedies, privileges or options under
this Lease, or at law or in equity, the prevailing party shall be entitled to
reimbursement from the non-prevailing party of all reasonable costs and
expenses incurred or paid by the prevailing party in so doing, including, but
not by way of limitation, all reasonable attorney's fees and costs incurred
or paid by the prevailing party at any time or times in connection therewith,
whether the matter is settled privately, or by arbitration, or by legal
action at the trial court level and at any and all appellate court levels.
42. DEFINITIONS.
(a) Proportionate Share. Lessee's proportionate share,
wherever that phrase is used, shall be seven and two tenths (7.2%) percent,
which the parties agree reflects the ratio of the rentable square feet of the
area rented to Lessee as compared with the total number of rentable square
feet of the entire Building (and additional buildings that may be constructed
within the Office Building Area) as finally determined by the Building
architect in accordance with the definition of rentable square feet
hereunder.
However, if any service or utility provided for in
Subparagraph 22(a) is separately billed or separately metered within the
Building, then the rentable square footage so billed or metered shall be
subtracted from the denominator (the Building's total number of rentable
square feet), and the Lessee's proportionate share for such service and/or
utility shall be separately computed, and the base for such item shall not
include any charges attributable to said rentable square footage.
(b) Common Facilities. Common facilities shall mean the
non-assigned parking areas, lobby, elevator(s), fire stairs, and all other
general Building facilities that service all Building tenants, including,
without limitation, air conditioning rooms, fan rooms, elevator shafts,
machine rooms, flues, stacks, pipe shafts, and vertical ducts with their
enclosing walls, except as any such items are included in rentable square
feet as defined in Subparagraph 42(f). Lessor may, at any time, close
temporarily any Common Facilities to make repairs or changes therein or
to effect construction, repairs or changes within the Building, or to
discourage non-tenant parking, and may do such other acts in and to the
Common Facilities as in its judgment may be desirable to improve the
convenience thereof.
(c) 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, 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.
(d) Building Hours. As used in this Lease the "Building
Hours" shall be Monday through Friday, 8:00 a.m. to 6:00 p.m. and Saturday
8:00 a.m. to 1:00 p.m., excluding those holidays set forth on Exhibit C
attached hereto and made a part hereof, except that common area lighting in
the Building and Office Building Area shall be maintained for such additional
hours as, in Lessor's sole judgment, is necessary or desirable to insure
proper operation of the Building and Office Building Area and Standard
Electric Service shall be available as provided in Subparagraph 21(b) of this
Lease.
(e) Affiliated Company. Affiliated Company with respect to
Lessee shall mean any corporation related to Lessee as a parent, subsidiary
or brother-sister corporation so that such corporation and Lessee or such
corporation and Lessee and other corporations constitute a controlled group
as determined under Section 1563 of the Internal Revenue Code of 1986, as
amended and as elaborated by the Treasury Regulations promulgated thereunder.
(f) Rentable Square Feet. Rentable Square Feet shall mean
the area demised to each Lessee and delineated on Exhibit A hereto, together
with its allocated share of the common areas located on the same floor,
including hallways, lavatories, closets and other rooms and areas
contributing part of the common facilities defined in Subparagraph 42(b).
Lessor and Lessee hereby agree that the Demised Premises consist of 12,500
Rentable Square Feet comprising the Third Floor Premises and 4,000 Rentable
Square Feet comprising the Lower Lobby Premises as provided for in Paragraph
1 hereof.
43. 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.
44. 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 and/or the Office Building Area (or
assignment of the contract to purchase same) and/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,
obligations and liabilities 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. In the
event of any sale or transfer as provided hereinabove, the liability of the
Lessor hereunder shall cease and Lessee agrees to present any claim to the
purchaser, successor or assignee.
45. WAIVER. Lessee agrees that the failure of Lessor in one or more
instances to insist upon strict performance or observance of one or more of
the covenants or conditions hereunder, or in any other Lease, or to exercise
any rights, remedies, privileges, or option provided by law or in equity or
provided or reserved to Lessor in this Lease, or any other Lease, shall not
operate or be construed as a relinquishment or waiver for the future of such
covenant or condition or of the right to enforce the same or to exercise such
right, remedy, privilege or option; but rather, the same shall continue in
full force and effect. The receipt and acceptance by Lessor of Basic Rents
and/or additional rents and/or any other payments hereunder, or any part or
portion thereof, shall not be a waiver of any other Basic Rents and/or
additional rents and/or any other payments hereunder, or any part or portion
thereof, and such receipt and acceptance by Lessor, though with knowledge on
the part of Lessor of the breach of any covenant or conditions of this Lease,
shall not be, or operate as, a waiver of such breach or a waiver of any
right, remedy, privilege or option of Lessor arising hereunder or at law or
in equity on account of such breach in the absence of such receipt or
acceptance. No waiver by Lessor of any of the provisions of this Lease, or of
any of Lessor's rights, remedies, privileges or options under this Lease,
shall be deemed to have been made unless made by Lessor in writing. If Lessor
shall consent to the assignment of this Lease or to a subletting of all or a
portion of the Demised Premises, or if any such assignment or subletting may
be made hereunder without Lessor's consent, no further assignment or
subletting shall be made without the prior written consent of Lessor, unless
otherwise expressly permitted elsewhere in this Lease (this provision with
respect to an assignment or subletting without Lessor's consent shall not
constitute a waiver, or any way lessen Lessor's rights and remedies with
respect to an assignment or subletting made without Lessor's consent).
46. AMENDMENTS, MODIFICATIONS, ETC. No change, modification or
termination of any of the terms, provisions, covenants, promises or
conditions of this Lease agreement shall be effective unless made in
writing and signed or initialed by all parties hereto, their successors or
assigns.
47. GOVERNING LAW. This Lease agreement shall be governed by and
construed in accordance with the substantive and procedural laws of the
State of New Jersey and Lessor and Lessee acknowledge that they are subject
to the jurisdiction of the courts of the State of New Jersey.
48. SEPARABILITY. If any paragraph, subparagraph or other
provision of this Lease agreement, or application of such paragraph,
subparagraph or provision, is held invalid, then the remainder of the Lease
agreement, and the application of such paragraph, subparagraph or provision
to persons, parties or circumstances other than those with respect to which
it is held invalid, shall not be affected thereby.
49. NO UNLAWFUL OCCUPANCY. Lessee shall not use or occupy, nor
permit or suffer, the Demised Premises or any part thereof to be used or
occupied for any unlawful purpose deemed by Lessor disreputable not in
keeping with the high-class nature of the complex of which the Demised
Premises forms a part, or extra-hazardous, nor in such mariner as to
constitute a nuisance of any kind, nor for any purpose or in any way in
violation of any present or future governmental laws, ordinances,
requirements, orders, directions, rules or regulations. Lessee shall
immediately upon the discovery of any such unlawful, illegal, disreputable
or extra-hazardous use not in keeping with the high-class nature of the
building of which the Demised Premises forms a part, take all necessary
steps, legal and equitable, to compel the discontinuance of such use and to
oust and remove any subtenants, occupants or other persons guilty of such
unlawful, illegal, disreputable or extra-hazardous use.
50. 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).
5l. ACCORD AND SATISFACTION: No payment by Lessee or receipt by
Lessor of a lesser amount than the rent and additional charges 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
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 rent and additional rent or pursue any other remedy
provided herein or by law.
52. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE: Lessee agrees to
give any mortgagees and/or trust deed holders, by registered mail, a copy of
any notice of default served upon Lessor, provided that, prior to such
notice, Lessee has been notified in writing (by way of notice of assignment
of rents and leases or otherwise) of the address of such rnortgagees and/or
trust deed holders. Lessee further agrees that, if Lessor shall have failed
to cure such default within the time provided for in this Lease, then the
mortgagees and/or trust deed holders shall have an additional thirty (30)
days within which to cure such default, or if such default cannot be cured
within that time, then such additional time as may be necessary, if within
such thirty (30) days, any mortgagee and/or trust deed holder has commenced
and is diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings if
necessary to effect such cure), in which event this Lease shall not be
terminated while such remedies are being so diligently pursued.
53. CORPORATE AUTHORITY: If Lessee is a corporation, Lessee
represents and warrants that this Lease and the undersigned's execution of
this Lease has been duly authorized and approved by the corporation's Board
of Directors. 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, and within fifteen (15) days of
execution hereof, Lessee will provide Lessor with a corporate resolution
confirming the aforesaid.
54. ENVIRONMENTAL/ISRA COMPLIANCE.
(a) Lessee shall indemnify and hold Lessor harmless
including attorneys and professional fees, with respect to any and all
liability pursuant to and/or under any federal and state environmental
statute, law, regulation, rule or ordinance and from all suits, fines, claims
and actions of whatsoever nature arising out of the use and/or storage of any
substance determined by the New Jersey Department of Environmental Protection
and Energy ("NJDEPE") or the United States Environmental Protection Agency
("EPA") to be hazardous or toxic and any damages or liabilities therefrom.
Lessee's liability shall be limited to claims, damages or contamination
arising from Lessee's use and occupancy of the Demised Premises and use of
the Common Facilities. Lessee shall promptly provide Lessor with a copy of
any notice, correspondence, or document received by Lessee from and/or
disclosure required to be submitted by Lessee to any governmental agency in
respect of environmental, health and safety matters including but not limited
to NJDEPE, EPA and OSHA.
(b) Lessee shall, at Lessee's own expense, comply with the
Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., the regulations
promulgated thereunder and any amending and successor legislation and
regulations ("ISRA"). Lessee shall, at Lessee's own expense, make all
submissions to, provide all information to, and comply with all requirements
of the Industrial Site Evaluation Element or its successor ("Element") of the
New Jersey Department of Environmental Protection and Energy or its successor
("NJDEPE").
(c) Lessee's obligations Under this paragraph shall arise
if there is a closing of operations, a transfer or ownership or operations,
or a change in ownership at or affecting the Premises pursuant to ISRA.
(d) Lessee represents and warrants to Lessor that Lessee
intends to use the Premises for general office and administrative purposes
which has the following Standard Industrial Classification ("S.I.C.") numbers
as defined by the most recent edition of the Standard Industrial
Classification Manual published by the Federal Executive Office of the
President, Office of Management and Budget: 5045. Lessee's use of the Demised
Premises shall be restricted to the classification set forth above. Prior to
the Lease Commencement Date, Lessee shall supply to Lessor an affidavit of an
officer or partner of Lessee setting forth Lessee's S.I.C. number and a
detailed description of the use. The affidavit shall be supplemented and
updated in the event of any change but no less frequently than every two (2)
years.
(e) Lessee shall, at Lessee's sole cost and expense, obtain
a letter of non-applicability from the Element prior to the termination of
the Lease Term and shall promptly provide to Lessor copies of Lessee's
submission and the Element's non-applicability letter.
(f) Lessee shall notify Lessor in advance of all meetings
scheduled between Lessee or Lessee's representatives and NJDEPE or any other
environmental authority, and Lessor and Lessor's representatives shall have
the right, but not the obligation, to attend and participate in all such
meetings.
(g) Lessee shall permit Lessor and Lessor's agents, servants,
and employees, including but not limited to legal counsel and environmental
consultants and engineers, access to the premises for the purposes of
environmental inspection and sampling during regular business hours, or
during other hours either by agreement of the parties or in the event of any
environmental emergency. Lessee shall not restrict access to any part of the
Premises, and Lessee shall not impose any conditions to access. In the event
that Lessor's environmental inspection shall include sampling and testing of
the Premises, Lessor shall use its best efforts to avoid unreasonably
interfering with Lessee's use of the Premises, and upon completion of
sampling and testing shall, to the extent reasonably practicable, repair and
restore the affected areas of the Premises from any damage caused by the
sampling and testing.
(h) Lessee shall indemnify, defend, and hold harmless
Lessor from and against all claims, liabilities, losses, damages, penalties
and costs, foreseen or unforeseen, including without limitation, counsel,
engineering and other professional or expert fees, which Lessor may incur
resulting directly or indirectly, wholly or partly from Lessee's action or
non-action with regard to Lessee's obligations under this paragraph.
(i) This paragraph shall survive the expiration or earlier
termination of this Lease. Lessee's failure to abide by the terms of this
paragraph shall be restrainable by injunction.
55. MORTGAGEE'S CONSENT. This Lease is subject to the receipt of the
consent and approval of Lessor's First Mortgagee not later than thirty (30)
days after the execution and delivery of this Lease by Lessor and Lessee. In
the event Lessor has not received such consent and approval within the
aforesaid period, Lessor may, at Lessor's sole option, cancel this Lease and
upon Lessor's remittance to Lessee of any Basic and/or Additional Rent and/or
Security Deposit paid by Lessee, this Lease shall be null and void and
neither party shall have any further rights or obligation hereunder.
56. AMERICANS WITH DISABILITY ACT. Notwithstanding anything herein
to the contrary, Lessee shall be obligated to, and have the responsibility of
complying with all of the relevant terms, conditions and requirements of the
Americans with Disability Act (the "ADA") to the extent the ADA is applicable
to Lessee's Use and occupancy of the Demised Premises. To the extent the
provisions of the ADA mandate modifications to the Demised Premises, Such
modifications Shall be made by Lessee at its Sole cost and expense, but in
coordination and consultation With Lesson In the event Lessee shall fail to
comply with the requirements of the ADA, Lessor may, but shall not be
obligated, take such steps as may be necessary to comply with the ADA and
Lessee shall pay Lessor, upon demand, the cost thereof which Shall be deemed
Additional Rent.
57. OPTION TO LEASE. During the term of this Lease Agreement and
provided Lessee is not otherwise in default under this Lease agreement,
Lessee shall have the right to lease all of Suite 365 comprised of 1,100
rentable square feet (the "Dacom America Premises"); and/or Suite 370
comprised of 1,485 rentable square feet (the "2001 Real Estate premises"),
and/or Suite 375 comprised of 800 rentable square feet (the "ASN Premises").
(The Dacom America Premises, 2001 Real Estate Premises and the ASN Premises
are collectively, the "Expansion Premises")
Lessee Shall exercise its Option granted herein by the
delivery of a notice (the "Notice to Exercise") no later than December 31,
1999 Time shall be Of the essence with respect to the delivery of the
Notice to Exercise. The Notice to Exercise shall specify if Lessee has
exercised its option to lease all or a portion of the Expansion Premises.
If Lessee shall elect to lease a portion of the Expansion Premises, Lessee
shall lease all of the Dacom America premises or all of the 2001. Real
Estate Premises or all of both, and Lessee shall have no further option to
lease the ASN Premises. Lessee shall take possession of the Expansion
Premises and the term thereof or shall commence September 1, 000 and the
Lease Expiration Date shall be extended to August 31, 2005. Basic Rent for
the Expansion Premises shall be a sum equal to the aggregate Rentable
Square Feet comprising the Expansion Premises (or the portion thereof as
aforementioned) multiplied by the Basic Rent in effect for the Third Floor
Premises on a square foot basis through May 31, 2003 including increases In
the same manner as provided with respect to the Third Floor Premises.
Thus, if Lessee shall exercise its option granted herein to lease
the entire Expansion Premises, the Third Floor Premises shall be increased
to 16,385 Rentable Square Feet and Basic Rent shall be as follows:
Original Third Floor Premises
(13 000 Xxxxxxxx Xxxxxx Feet)
----------------------------
Period Per Annum Per Month
------ --------- ---------
9/1/00 to 8/31/01 $325,000.00 $27,083.33
9/1/01 to 8/31/02 328,250.00 27,354.17
9/1/az to 8/31/03 331,500.00 27,625.00
Expansion Premises
(3385 Rentable square Feet)
--------------------------
Period Per annum Per Month
------ --------- ---------
9/1/00 to 8/31/01 $ 84,525.00 $ 7,052.08
9/1/01 to 8/31/0 85,471.25 7,122.60
9/1/02 to 8/31/03 86,317.50 7,193.13
Third Floor Premises
(l6,385 Rentable square Feet)
----------------------------
Period Per Annum Per Month
------ --------- ---------
9/1/03 to 8/31/04 $434,202.50 $36,183.54
9/1/04 to 8/31/05 450,587.50 37,548.96
If Lessee shall exercise its option to Lease only the Dacom America
Premises and/or the 2001 Real Estate Premises, Basic Rent Set forth above
shall be adjusted accordingly.
In addition, Basic Rent in respect of the Lower Lobby Premises Shall
be modified as follows.
Period Per Annum Per Month
------ --------- ---------
6/1/03 to 8/31/03 $ 46,000.00 $ 3,833.34
9/1/03 to 8/31/04 50,000.00 4,166.67
9/1/04 to 8/31/05 54,000.00 4,500.00
If Lessee shall exercise its option granted herein,
Paragraph 60 of this Lease Shall be deemed modified to provide that (i) the
Renewal Term Commencement Date shall be September 1, 2005; (ii) the Renewal
Term Expiration Date shall be August 31, 2010; (iii) Notice to Renew shall be
served by February 28, 2005; and (iv) Basic Rent for the Renewal Term shall
be not less than Basic Rent paid during the period of September 1, 2004
through August 31, 2005.
If Lessee shall exercise its Option to lease all of the
Expansion Premises, Lessor shall be responsible for completion of the
build-Out of the Expansion Premises and shall contribute a sum not to exceed
$50,775.00. Any costs in excess of $50,775.00 shall be paid by Lessee
promptly upon Submission Of invoice(s) therefor. If Lessee shall exercise its
Option to lease only the Dacorn America Premises and/or the 2001 Real Estate
Premises, Lessor's build-out contribution shall be adjusted accordingly. The
provisions of Paragraphs 26 (a) (i) through (v) shall govern the build out of
the Expansion Premises (or portion thereof as may be applicable).
Within ten (10) days after delivery of the Notice to
Exercise, Lessor and Lessee shall negotiate in good faith all Other terms and
provisions in respect Of the leasing of the Expansion Premises and shall
execute a supplementary agreement amending this Lease agreement. Wherever
appropriate and unless either specified herein or mutually agreed by Lessor
and Lessee, all other terms, covenants, and conditions of this Lease
Agreement, shall be applicable to the Expansion Premises and incorporated
into the supplementary agreement.
Upon Lessee's acceptance and occupancy of the Expansion
Premises, Lessee shall acknowledge that it has inspected and s fully familiar
With the Expansion Premises and that it has accepted the expansion Premises
in "AS IS" condition. Lessee shall execute and deliver at that time a
document acknowledging the same.
58. RIGHT OF FIRST OFFER, Lessor and Lessee acknowledge that Certain
premises located On the third floor known as Suite 350 comprised of 7,995
rentable square feet or any portion thereof (the "Suite 350 Premises") is
currently vacant but Lessor intends to Lease to other space tenants pursuant
to respective lease agreements, if Such leases shall thereafter expire or
otherwise terminate during the term of the within Lease Agreement, then prior
to entering into any lease therefor, Lessor shall advise Lessee of the
availability of the Suite 350 Premises by notice to Lessee (the "Availability
Notice"), which Availability Notice shall set forth (i) the description of
the Suite 350 Premises proposed to be leased; (ii) the Fair Market Basic Rent
of such Suite 350 Premises, as reasonably determined by Lessor based on
comparable space in comparable buildings in the vicinity of the Building and
as then being charged by Lessor in the Building: and (iii) all Other material
economic terms of the proposed letting. Lessee shall have the right and
option, to be exercised by notice to Lessor Within thirty (30) days of
delivery of the Availability Notice (the "Acceptance Notice") to lease the
Suite 350 Premises at the Basic Rent and, to the extent applicable, the other
business terms set forth in the availability Notice. Within fifteen (15) days
after delivery of the Acceptance Notice, Lessor and Lessee shall negotiate in
good faith all other terms and provisions in respect of the leasing of the
Suite 350 Premises which terms shall, insofar as is applicable, be identical
to the terms and provisions set forth in this Lease Agreement and shall
execute a supplementary agreement amending this Lease Agreement and expressly
Confirming the increase in the Demised Premises, the Basic Rent, and the
Commencement Date of the term of the Suite 350 Premises. If Lessee Shall fail
to deliver the Acceptance Notice within said thirty (30) day period, time
being of the essence with respect to the giving of the Acceptance Notice,
then Lessor shall be free to lease the Suite 350 Premises to any bona fide
third party at a commercially reasonabj.y rental rate upon commercially
reasonable terms and conditions.
59. SIGNAGE. Lessee Shall not place any signs of whatsoever nature
on or about the entry or other door or on any exterior wall of the Demised
Premises. Signage shall be limited to Building Standard signs maintained by
Lessor. Provided that Lessor maintains a computerized directory, Lessor shall
make available on the Building directory, a sufficient number of lines or a
sufficient amount of space for Lessee's use to accommodate Lessee's firm name
and the names of _____ persons associated with Lessee, without any cost to
Lessee.
6O. RENEWAL OPTION:
(a) Lessee shall have the right, at its option, to renew
this Lease for all of the Demised Premises for a renewal term (the "Renewal
Term") of five (5) years. The Renewal Term shall commence on August 1, 2003
(the "Renewal Term Commencement Date") and shall terminate on July 31, 2008
(the "Renewal Term Expiration Date") Lessee shall exercise the option
described herein by giving Lessor written notice of such election to renew
(the "Notice to Renew") no later than July 31, 2003, and upon the giving of
notice to renew this Lease shall thereupon be deemed renewed for the Renewal
Term with the same force and effect as if the Renewal Term had originally
been included in the term of this Lease. The dates set forth herein shall be
adjusted to reflect any adjustment in the Lease Commencement Date as provided
in Paragraph 2 above. Time is of the essence with respect to Lessee's Notice
to Renew. The right of the Lessee to renew this Lease shall be Conditioned
upon Lessee not being in default under the Lease and upon the Lease being in
full and force and effect at the time of the exercise of such option and as
of the Renewal Term Commencement Date.
(b) All of the terms, covenants and conditions of this
Lease shall continue in full force and effect during the Renewal Term except
that (i) Basic Rent for the Renewal Term shall be in an amount equal to the
Fair Market Value as mutually agreed upon by the Lessor and Lessee, provided
that, in the event the parties are unable to agree upon same, the Lessor and
Lessee shall each Select an independent MAI appraiser to determine Fair
Market Value further provided that, if the Fair Market Value as determined by
the respective appraisers are within five (5%) percent of each other, the
Fair Market Value shall be deemed to be the arithmatic mean of the two
appraisals; further provided that, if the Fair Market Value as determined by
the respective appraisers are more than five (5%) percent apart, the
appraisers shall select a third independent MAS appraiser whose determination
as to Fair Market Value shall be binding upon the Lessor and Lessee; further
provided that in no event shall Basic Rent for the Renewal Term be less than
the amount of the Basic Rent paid during the fifth (5th) year of the term of
the Lease. Thereafter, Basic Rent shall increase by the Sum of $1.00 per
square foot per year; and (ii) Lessee Shall have no further Option to renew
or extend this Lease. Any termination, cancellation or surrender of the
entire interest of Lessee under this Lease at anytime during the Teitti
hereof shall termination any right of renewal of Lessee hereunder.
61. RELOCATION OF LESSEE: Lessor hereby reserves the right,
at its sole expense and on at least thirty (30) days prior written notice, to
require Lessee to move from the Lower Lobby Premises to other space within
the Building of comparable size ond decor in order to permit Lessor to
consolidate the space leased to Lessee with any other space leased or to be
leased to another tenant. In the event of any such relocation, Lessor will
pay all expenses of preparing and decorating the new premises so that tile
same shall be substantially similar to the Premises from which Lessee is
moving arid Lessor will also pay the expenses of moving Lessee's furniture
and equipment to the relocated premises. Such event, this Lease and each and
all of the terms and conditions hereof, shall remain in full force and effect
and thereupon be deemed applicable to such new space except that the
description of the Premises shall be revised and if applicable, Lessee's
Proportionate Share shall likewise be revised. Lessor Shall not exercise its
right to relocate Lessee more than twice during the initial five (5) year
term of this Lease.
IN WITNESS WHEREOF, the parties have hereunto sCt their
hands and seals the day and year first above written.
WITNESS: LESSOR:
EXECUTIVE PARK, LLC
By: Flex Park, LLC
Managing Member
By: /s/ Xxxxxx Xxxxxxx
-------------------------- ----------------------------------
XXXXXX XXXXXXX, Manager
ATTEST: LESSER:
VOCALTEC, INC.
By: /s/ Ami Tal
-------------------------- ----------------------------------
COO
