EXHIBIT 10.8
1
LEASE
Between
BCE ASSOCIATES, L.P., Landlord
and
MEDJET INC., Tenant
As of
Dates: November 9, 2001
2
TABLE OF CONTENTS
ARTICLE 1. DEMISE OF PREMISES
ARTICLE 2. TERM
ARTICLE 3. RENT
ARTICLE 4. BASE RENT ADJUSTMENT
ARTICLE 5. SECURITY
ARTICLE 6. COMPLETION AND POSSESSION
ARTICLE 7. USE OF PREMISES
ARTICLE 8. REPAIR, REPLACEMENTS, ALTERATIONS
ARTICLE 9. TENANT COVENANTS
ARTICLE 10. LANDLORD'S SERVICES
ARTICLE 11. ASSIGNMENT, SUBLETTING, ETC.
ARTICLE 12. LANDLORD'S RIGHTS
ARTICLE 13. DAMAGE BY FIRE, ETC.
ARTICLE 14. CONDEMNATION
ARTICLE 15. COMPLIANCE WITH LAWS
ARTICLE 16. DAMAGE TO PROPERTY
ARTICLE 17. SUBORDINATION
ARTICLE 18. NOTICES
ARTICLE 19. CONDITIONS OF LIMITATION
ARTICLE 20. RE-ENTRY BY LANDLORD
ARTICLE 21. DAMAGES
ARTICLE 22. WAIVER BY TRIAL BY JURY
ARTICLE 23. NO WAIVERS
ARTICLE 24. PARTIES BOUND
ARTICLE 25. CURING TENANT'S DEFAULTS
ARTICLE 26. MORTGAGEE'S NOTICE AND OPPORTUNITY
TO CURE
ARTICLE 27. TENANT'S ENVIRONMENTAL RESPONSIBILITIES
ARTICLE 28. MISCELLANEOUS
ARTICLE 29. INABILITY TO PERFORM
ARTICLE 30. ABANDONED PERSONAL PROPERTY
ARTICLE 31. EXCULPATION
ARTICLE 32. ARTICLE HEADINGS
ARTICLE 33. QUIET ENJOYMENT
ARTICLE 34. HOLDING OVER
ARTICLE 35. RELOCATION
ARTICLE 36 PARKING SPACES
3
AGREEMENT OF LEASE
Between BCE ASSOCIATES, L.P., a limited partnership of the State of New Jersey
(hereinafter called "Landlord"), and MEDJET INC., a Delaware corporation, having
an address at 0000 Xxxx Xxxxxxx Xxxx Xxxx, Xxxxxx, Xxx Xxxxxx (hereinafter
called "Tenant").
PREAMBLE
BASIC LEASE PROVISIONS AND DEFINITIONS.
In addition to other terms elsewhere defined in this Lease, the
following terms whenever used in this Lease should have only the meanings set
forth in this section, unless such meanings are expressly modified, limited or
expanded elsewhere herein.
(1) Date of Lease: November 9, 200l
(2) Exhibits:
The following Exhibits attached to this Lease are incorporated herein
and made a part hereof:
Exhibit A: Site Plan
Exhibit B: Landlord's Work
Exhibit B-1 Floor Plan
Exhibit C: Omitted
Exhibit D Rules and Regulations
Exhibit E Building Maintenance Specification
Exhibit F Environmental Disclosure Affidavit
(3) Building: Business Center at Edison, 0000 Xxxx Xxxxxxx Xxxx
Xxxx, Xxxxxx, XX.
(4) Premises or Demised Premises: Outlined on Exhibit A -1,434
gross rentable square feet, Xxxx 000
(5) Land: Lots 1.D, 1.E, 1.F in Block 390.B on Tax Map of the
Township of Edison, Middlesex County, New Jersey.
(6) Term: One (1) year
4
(7) Base Rent:
Lease Year Annual Base Rent Monthly Base Rent:
--------------------------------------------------------
1 $22,944.00 $1,912.00
(8) Electric Charge: $1,792.50 per annum or 149.38 per
month, unless Landlord elects to
survey Tenant's electric use as
provided for in 10.F.2.
(9) Tenant's Percentage: 1.15%
(10) Base Year: 2001
(11) Security: $3,824.00
(12) Estimated Commencement
Date: November 15,2001, subject to
adjustment as per Article 6
(13) Termination Date: Last day of the month, which is one
(1) year (plus the partial month in
which the Commencement Date occurs),
after the Commencement Date.
(14) Permitted Use: General Office
(15) Tenant's Address: 0000 Xxxx Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000
(16) Landlord's Address: X.X. Xxx 0000
0000 Xx. Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
(17) Broker: Xxxxxx Associates
5
W I T N E S S E T H:
1. DEMISE OF PREMISES. Landlord does hereby lease and demise to
Tenant, and Tenant does hereby hire and take from Landlord, upon and subject to
the covenants, agreements, terms, provisions and conditions of this Lease, the
premises for the term which premises include Tenant's nonexclusive right to the
use of all common areas both inside the buildings and out as well as Tenant's
nondesignated non-exclusive right to the use of four (4) parking places per
1,000 gross rentable square feet.
2. TERM. The term shall commence on the commencement date (subject to
Article 6 hereof) and shall end on the termination date or on such other date as
the term may expire or be terminated pursuant to the provisions of this Lease or
pursuant to law. Whenever reference is made in this Lease to "lease year", the
same shall mean each twelve (12) month period commencing January 1 and
terminating December 3 1, except that in the event of the termination of this
Lease on any day other than the last day of a lease year, then the last lease
year shall be the period from the preceding January 1 to such date of
termination, and in the event that the commencement date is other than January
1, then the first year shall be on the period from the commencement date until
the following December 31.
3. RENT.
A. The base rent shall be payable in equal monthly installments in
advance on the first day of each and every calendar month during the term
(except that Tenant shall pay the first monthly installment on the execution
hereof), plus such additional rent and other charges as shall become due and
payable hereunder, which additional rent and other charges shall be payable as
hereinafter provided; all of which shall be paid to Landlord at Landlord's
address, or at such other place or to such other person as Landlord may
designate, in lawful money of the United States of America. Base rent,
additional rent and other charges hereunder are sometimes collectively referred
to herein as "rent".
B. Tenant does hereby covenant and agree to pay the rent herein
reserved as and when the same shall become due and payable, without demand
therefor and without any set-off or deduction whatsoever, and to keep and
perform, and to permit no violation of, each and every one of the covenants,
agreements, terms, provisions and conditions herein contained on the part and on
behalf of Tenant to be kept and performed.
C. There shall be a late charge equal to ten (10%) percent on all
payments of rent hereunder which are made more than seven (7) days after the due
date thereof, in the event Tenant fails or refuses to pay rent hereunder and
Landlord institutes suit for the collection of same, Tenant agrees to reimburse
Landlord, as additional rent hereunder, for all reasonable expenses incurred by
Landlord in connection therewith, including, but not limited to, reasonable
attorney's fees. From and after the date that any Rent or Additional Rent
becomes due hereunder, such Rent and Additional Rent shall bear interest at the
rate of eighteen (18%) percent per annum until such sums are paid.
D. Whenever in this Lease Tenant is required to pay additional rent
or other charges to Landlord, Landlord shall have all remedies for the
collection thereof that it may have for the non-payment of base rent hereunder.
E. If, by reason of any of the provisions of this Lease, the
obligation of Tenant to commence the payment of rent under this Lease shall be
on any day other than the first day of a calendar month, the rent for such
calendar month shall be prorated based upon one-thirtieth (1/30th) thereof per
diem.
6
4. BASE RENT ADJUSTMENT.
A. As used in, and for the purposes of this Article:
(i) "taxes" shall mean real estate taxes and assessments,
special or otherwise, levied upon or with respect to the Building and the Land,
imposed by Federal, State or local governments (but shall not include income,
franchise, capital stock, estate or inheritance taxes or taxes based on receipts
of rentals, unless the same shall be in substitution for or in lieu of a real
estate tax or assessment) and any personal property taxes imposed upon the
fixtures, machinery, equipment, apparatus, systems and appurtenances in, upon or
used in connection with the Building and Land for the operation thereof, provide
that if, because of any change in the method of taxation of real estate, any
other of additional tax or assessment is imposed upon Landlord or upon or with
respect to the Land and/or Building or the rents or income therefrom, as or in
substitution for or in lieu of any tax or assessment which would otherwise be a
real estate tax, or personal property tax of the type referred to above, such
other tax or assessment shall also be deemed a real estate tax.
(ii) "operating expenses" shall mean and include those expenses
incurred in respect to the operation, maintenance, management and safekeeping of
the Land and Building in accordance with accepted principles of sound management
and accounting practices as applied to the operation, maintenance and
safekeeping of non-institutional first class office buildings. Such expenses
shall not include (1) expenses for any capital improvements made to the Land or
Building, except that capital expenses for improvements which result in savings
of labor costs shall be included at the lesser of the cost of such improvement
amortized over the useful life of the improvement and the annual savings in
labor costs resulting from the improvement; (2) expenses for painting,
redecorating or other work which Landlord, at its expense, performs for Tenant
or for any other tenant in leased areas of the Building other than painting,
redecorating or other work which is standard for or periodically performed in
the Building; (3) interest and amortization payments on any mortgage or
mortgages, and rental under any ground or underlying lease or leases; and (4)
electricity paid for by any tenant of the Building.
(iv) "base expenses" shall mean the operating expenses for the
base year.
(v) "lease year" shall mean each calendar year in which occurs
any part of the term subsequent to the base year.
(vi) "tax year" shall mean each calendar year in which occurs
any part of the term.
B. As soon as practicable after each lease year, Landlord will
furnish Tenant a statement which shall show a comparison of the operating
expenses for the preceding lease year to the base expenses. On the first day for
the payment of base rent hereunder following the furnishing of such comparative
statement, (i) Tenant shall pay to Landlord a sum (the "expense increase") equal
to Tenant's Percentage of the increase, if any, of the operating expenses for
the preceding lease year over the base expenses; (ii) Tenant shall pay to
Landlord a sum equal to one-twelfth (1/12th) of the expense increase multiplied
by the number of months then elapsed commencing with the first day of the
current lease year and, in advance, one-twelfth (1/12th) of the expense increase
in respect of the then current month; and (iii) thereafter, until a different
comparative statement shall be submitted to Tenant as above provided, the
monthly installments of base rent payable under this Lease shall be increased by
an amount equal to one-twelfth (1/12th) of the expense increase.
7
C. As soon as practicable after the base year, Landlord will
furnish Tenant a statement which shall show a comparison of the taxes for the
then current tax year to the tax base. The increase, if any, of taxes for the
then current tax year over the tax base, when multiplied by Tenant's Percentage,
is herein referred to as the "tax increase". On the first day for the payment of
base rent hereunder following the furnishing of such comparative statement, (i)
Tenant shall pay to Landlord a sum equal to one-twelfth (1/12th) of the tax
increase multiplied by the number of months elapsed commencing with the first
day of the then current tax year and, in advance, one-twelfth (l/l2th) of the
tax increase in respect of the then current month; and (ii) thereafter, until a
different comparative statement shall be submitted to Tenant as above provided,
the monthly installments of base rent payable under this Lease be increased by
an amount equal to one-twelfth (1/12th) of the tax increase.
D. If prior to the receipt by Tenant of a comparative statement
from Landlord pursuant to sub-paragraphs B or C above, Tenant has paid any
expense increase or tax increase with respect to the lease year for which that
comparative statement was submitted, then appropriate credits and/or adjustments
shall be made to reflect the expenses which Tenant may have previously paid in
whole or in part or may then be paying.
E. In the event Landlord shall obtain a refund for any taxes or
operating expenses after payment by Tenant of any tax increase or expense
increase relative thereto, Landlord shall give Tenant an appropriate credit or
reimbursement which shall reflect any reasonable costs and expenses incurred by
Landlord in obtaining the refund.
F. If Tenant shall dispute in writing any specific item or items
included by Landlord in any statement furnished by Landlord to Tenant in
accordance with subparagraphs (b) or (c) above, and such dispute is not amicably
settled between Landlord and Tenant within thirty (30) days after statement
therefor has been rendered, either party may, during the thirty (30) days (upon
written notice to the other party accompanied by a copy of its letter of
submission setting forth the items of dispute) refer such disputed item or items
to arbitration in accordance with the provisions of this Lease and the decision
rendered in such arbitration shall be conclusive and binding upon Landlord and
Tenant. The expenses involved in such determination shall be borne by the party
against whom a decision is rendered unless otherwise determined in such
arbitration. Landlord shall have the right, for a period of twelve (12) months
after the rendering of any statements (or for a longer period, if reasonably
required in order to ascertain the facts) to send corrected statements to
Tenant, and any rent required thereby shall be paid by Tenant within thirty (30)
days thereafter. If Tenant shall not so dispute any item or items of any
statement or corrected statement within thirty (30) days after such statement or
corrected statement has been rendered, Tenant shall be deemed to have approved
such statement or corrected statement. Notwithstanding anything contained herein
to the contrary, Tenant shall make payments in accordance with Landlord's
invoices until such time as any dispute hereunder is resolved. Upon resolution,
Landlord and Tenant shall make appropriate adjustments, if required.
G. Landlord shall keep, for a period of sixty (60) days after
statements are rendered as provided in this Article 4, records in reasonable
detail of the items covered by such statements and shall permit Tenant, upon the
giving of reasonable prior notice, to examine and audit such records to verify
such statements, at reasonable times during business hours.
5. SECURITY. Tenant has deposited the Security with Landlord as
security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this Lease. It is agreed that in the event Tenant
defaults in respect of any of the terms, provisions and conditions of this
Lease, including, but not limited to, the payment of rent, Landlord may use,
apply or retain the whole or any part of the Security to the extent required for
the payment of any rents as to which Tenant is in default or for any sum which
8
Landlord may expend or may be required to expend by reason of Tenant's default
in respect of any of the terms, covenants and conditions of this Lease,
including, but not limited to, any damages or deficiency in the re-letting of
the premises, whether such damages or deficiency accrued before or after summary
proceedings or other re-entry by Landlord. To the extent that Landlord, during
the term hereof, so uses, applies or retains all or any part of the Security,
Tenant shall, on demand, promptly restore the Security to its original amount.
The Security (less any portions thereof used, applied as retained by Landlord in
accordance with the provisions of this Article 5) shall be returned to Tenant
after the termination date (or after such other date when the term may expire or
be terminated, without the fault of Tenant, pursuant to the provisions of this
Lease or pursuant to law) and after delivery of entire possession of the
premises to Landlord in accordance with the provisions of this Lease. In the
event of a sale or leasing of the Land and Building, Landlord shall have the
right to transfer the Security to the vendee or lessee and Landlord shall
thereupon be released by Tenant from all liability for the return of such
Security, and Tenant agrees to look to the new Landlord solely for the return of
said Security. It is agreed that the provisions hereof shall apply to every such
transfer or assignment made of the Security. Tenant further covenants that it
will not assign or encumber or attempt to assign or encumber the Security and
that neither Landlord nor its successors and assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
6. COMPLETION AND POSSESSION.
A. Landlord shall exercise reasonable diligence and shall endeavor
to have the premises ready for Tenant's possession on or before the commencement
date designated in the Preamble to this Lease, subject to delay by causes beyond
the reasonable control of Landlord or by the action or inaction of Tenant. If
the premises arc not ready for Tenant's possession within the meaning of this
Article 6 on such commencement date, then this Lease shall not be affected
thereby but, in such case, the commencement date shall be deemed to be postponed
until the date when the premises are ready for Tenant's possession and Tenant
shall not have any claim against Landlord, and Landlord shall have no liability
to Tenant, by reason of any such postponement. The parties hereto agree that
this Article 6 constitutes an express provision as to the time at which Landlord
may deliver possession of the premises to Tenant, and Tenant hereby waives any
rights to rescind this Lease which Tenant might otherwise have pursuant to any
law now or hereafter in force.
B. The premises shall be conclusively deemed ready for Tenant's
possession as soon as (1) a certificate (temporary or final) permitting
occupancy of the premises for the permitted use has been issued by the required
governmental body, and (2) the substantial completion of Landlord's Work, at
which time the rent reserved and covenanted to be paid by Tenant under this
Lease shall commence. The premises shall not be deemed to be unready for
Tenant's possession or incomplete if (i) only minor or insubstantial details of
construction, decoration or mechanical adjustments remain to be done in the
premises, (ii) the delay in the availability of the premises for possession
shall be due to special work, changes, alterations or additions required or made
by Tenant in the premises, (iii) caused in whole or in part by Tenant through
the delay of Tenant in submitting any plans and/or specifications, supplying
information, approving plans, specifications or estimates, giving authorizations
or otherwise, (iv) caused in whole or in part by delay and/or default of the
part of Tenant and/or its subtenant or subtenants, or (v) the telephone
installation in the premises has not been completed.
C. Tenant, by entering into possession of the premises, shall be
conclusively deemed to have agreed that Landlord up to the time of such
possession has performed all of its obligations hereunder and that the premises
are in satisfactory condition as of the date of such possession except only for
latent defects.
D. In the event possession of the premises (herein referred to as
the "possession date") is delivered to Tenant pursuant to this Article 6 on a
day other than the commencement date set forth in the
9
Preamble to this Lease, then the commencement date shall be deemed to be the
same day as the possession date and the termination date set forth in the
Preamble to this Lease shall be adjusted accordingly and the term of the Lease,
as also set forth in said Preamble, shall remain the same. Upon the
determination of the Rent Commencement Date, Landlord shall send Tenant a Rent
Commencement Date Letter specifying the Rent Commencement Date, the termination
date and confirmation of certain other business terms of this Lease which Rent
Commencement Letter shall become a part of this Lease and binding on Tenant and
Landlord if Tenant does not give Landlord notice of its disagreement with any of
the provisions of such Rent Commencement Letter within ten (10) days after the
date of such Letter.
7. USE OF PREMISES.
A. The premises shall be used and occupied only for the permitted
use described in the Preamble to this Lease and for no other use or purpose. The
population density within the Premises as whole shall at no time exceed one
person for each 250 rentable square feet in the Premises. Tenant shall not use
or permit the use of the premises or any part thereof in any way which would
violate any certificate of occupancy for the Building, the premises, or any of
the covenants, agreements, terms, provisions and conditions of this Lease or for
any unlawful purposes or in any unlawful manner and Tenant shall not suffer or
permit the premises or any part thereof to be used in any manner or permit
anything to be done therein or suffer or permit anything to be brought into or
kept in the premises which, in the reasonable judgment of Landlord, shall in any
way impair or interfere with any of the Building services or the proper and
economical heating, cleaning, air conditioning or other servicing of the
Building or the premises, or impair or interfere with the use of any of the
other areas of the Building by, or occasion discomfort, inconvenience or
annoyance to, any of the other tenants or occupants of the Building.
B. If any governmental license or permit (other than the
certificate of occupancy required to be obtained by Landlord pursuant to Article
6 hereof) shall be required for the proper and lawful conduct of Tenant's
business or other activity carried on in the premises, and if the failure to
secure such license or permit would, in any way, affect Landlord, Tenant, at
Tenant's expense, shall duly procure and thereafter maintain such license or
permit and submit the same to inspection by Landlord. Tenant, at Tenant's
expense, shall, at all times, comply with the terms and conditions of each such
license or permit.
C. If by reason of failure of Tenant to comply with the provisions
of this Lease, including but not limited to the manner in which Tenant uses or
occupies the premises, the insurance rates shall at the commencement of the term
or at any time thereafter be higher than it otherwise would be, then Tenant
shall reimburse Landlord, as additional rent hereunder, for that part of all
insurance premiums thereafter paid or incurred by Landlord, which shall have
been charged because of such failure or use by Tenant, and Tenant shall make
such reimbursement upon the first day of the month following the billing to
Tenant of such additional cost by Landlord.
8. REPAIRS, REPLACEMENTS, ALTERATIONS.
A. Tenant shall take good care of the demised premises and the
fixtures and appurtenances therein. Tenant shall make, at its own expense, all
repairs and replacements required to keep the demised premises and fixtures in
good working order and condition except (1) structural repairs, (2) repairs
required to be made by Landlord pursuant to Article 13 hereof, and (3) such
repairs as may be required of Landlord in furnishing the services specified in
Article 10 hereof. Landlord shall maintain, at its own expense, all light bulbs,
fluorescent tubes, and lighting fixtures in the demised premises, including all
component parts such as starters, ballasts, and lenses or grills. All repairs
made by Landlord shall be at least equal in quality to the original work. Tenant
shall not make any installations, alterations, additions or
10
improvements in or to the demised premises without first obtaining Landlord's
written consent thereto, and shall make the same and all repairs only between
such hours and by such contractors or mechanics as may be supplied or approved
by Landlord. All alterations, decorations, installations, additions or
improvements upon the demised premises made by either party (including but not
limited to paneling, partitions, railings, and the like), except Tenant's
movable fixtures and furniture, shall, unless Landlord elects otherwise (by
notice in writing to Tenant given not less than twenty (20) days prior to the
expiration or other termination of this Lease or of any renewal or extension
thereof) become the property of Landlord and shall remain upon, and be
surrendered with, said premises, as a part thereof, at the end of said term or
renewal term, as the case may be. If Landlord shall elect otherwise, then Tenant
shall remove, at its expense, such alterations, installations, additions or
improvements made by Tenant upon the premises as Landlord shall specify, and
Tenant shall repair and restore the premises to its original condition at
Tenant's sole expense prior to the termination date.
B. If, because of any acts or omission of Tenant or anyone claiming
through or under Tenant, any mechanic's or other lien or order for the payment
of money shall be filed against the demised premises, the Land or the Building,
or against Landlord (whether or not such lien or order is valid or enforceable
as such), Tenant shall, at Tenant's own cost and expense, cause the same to be
canceled and discharged of record within twenty (20) days after the date of
filing thereof, and shall also indemnify and save harmless Landlord from and
against any and all costs, expenses, claims, losses or damages, including
reasonable counsel fees, resulting therefrom or by reason thereof.
C. In the event Tenant makes any repairs, replacements, or
alterations in or to the demised premises, any contractors or subcontractors
employed by Tenant shall employ only such labor as will not result in
jurisdictional disputes with any labor unions or strikes against or involving
the Landlord or the Building. Tenant will inform Landlord, in writing, of the
names of contractors and/or subcontractors Tenant proposes using to do work on
its behalf within the Building at least seven (7) days prior to the beginning of
any permitted work. Landlord reserves the right to reject any and all of the
proposed contractors and/or subcontractors. All approved contractors and/or
subcontractors shall submit Certificates of Insurance naming Landlord as an
additional insured. In the event of any strike or dispute, Tenant will cause any
persons involved in such work to leave the demised premises immediately after
receipt of notice from Landlord demanding the same.
9. TENANT COVENANTS. Tenant covenants and agrees that Tenant will:
A. Faithfully observe and comply with any reasonable Rules and
Regulations as Landlord hereafter at any time or from time to time may make and
may communicate in writing to Tenant, which, in the reasonable judgment of
Landlord, shall be necessary or desirable for the reputation, safety, care or
appearance of the Land and Building, or the preservation of good order therein,
or the operation, maintenance or safekeeping of the Land and Building, or the
equipment thereof, or the comfort of tenants or others in the Building;
provided, however, that (i) in the case of any conflict, the provisions of this
Lease shall control, (ii) nothing contained in this Lease shall be construed to
impose upon Landlord any duty or obligation to enforce the Rules and Regulations
upon any other tenant, its servants, employees, agents, visitors, invitees,
subtenants or licensees.
B. Permit Landlord and any mortgagee of the Building or of the
Building and the Land or of the interest of Landlord therein and any lessor
under any ground or underlying lease, and their representatives, to enter the
premises at all reasonable hours, for the purposes of inspection, or of making
repairs, replacements or improvements in or to the premises or the Building or
equipment, or of complying with any laws, orders, and requirements of
governmental or other authority or of exercising any right reserved to Landlord
by this Lease (including the right during the progress of any such repairs,
replacements or
11
improvements or while performing work and furnishing materials in connection
with the compliance with any such laws, orders or requirements to keep and store
within the premises all necessary materials, tools and equipment). Nothing
herein contained, however, shall be deemed or construed to impose upon Landlord
or any mortgagee of Landlord's interest in the Land and/or Building, any
obligation, responsibility or liability whatsoever for the care, supervision or
repair of the premises or Building or any parts thereof other than as herein
provided.
C. Make no claim against Landlord for any injury or damage to
Tenant or to any other person for any damage to, or loss (by theft or otherwise)
of, or loss of use of, any property of Tenant or of any other person, unless
caused by the negligence of Landlord, its employees, agents or servants.
D. Not bring or keep in the premises any property other than such
as might normally be brought upon or kept in the premises as an incident to the
reasonable use of the premises for the purposes herein specified.
E. Not violate, or permit the violation of, any reasonable
conditions imposed by Landlord's insurance carriers, and not do anything or
permit anything to be done, or keep anything or permit anything to be kept, in
the premises, which would increase the insurance rates on the Building or the
property therein, or which would result in insurance companies of good standing
refusing to insure the Building or any such property in amounts and against
risks as reasonably determined by Landlord.
F. Permit Landlord, during business hours within the nine (9) month
period next preceding the termination date with respect to all or any part of
the premises, to show the same to prospective new tenants.
G. Quit and surrender the premises at the expiration or earlier
termination of the term broom clean and in as good condition as ordinary wear
and reasonable use will permit, except for repairs caused by fire or other
casualty, and, subject to Landlord's exercise of the election provided in
Article 8, with all installations, alterations, additions and improvements,
including partitions which may have been installed by either of the parties upon
the premises (except that Tenant's removable fixtures and furniture shall remain
Tenant's property, and Tenant shall remove the same). Tenant's obligations to
observe and perform this covenant shall survive the said expiration or earlier
termination of this Lease.
H. At any time and from time to time upon not less than ten (10)
days prior notice by Landlord to Tenant, execute, acknowledge and deliver to
Landlord, or to anyone Landlord shall designate, a statement of Tenant (or if
Tenant is a corporation, an appropriate officer of Tenant) in writing certifying
that this Lease is unmodified and in full force and effect as modified and
stating the modifications), and the dates to which rent has been paid in
advance, and stating the commencement and expiration dates of the lease, current
monthly charges, security deposits, whether Tenant claims any offsets and such
other items as are requested by Landlord. The estoppel shall also state whether
or not, to the best knowledge of the signer of such certificate Landlord is in
default in performance of any covenant, agreement, term, provision or condition
contained in this Lease and, if so, specifying each such default of which the
signer may have knowledge; it being intended that any such statement delivered
pursuant hereto may be relied upon by any lessor under any ground of underlying
lease, or any lessee or mortgagee, or any prospective purchaser, lessee,
mortgagee, or assignee of any mortgage, of the Building and/or the Land or of
Landlord's interest therein.
I. Indemnify and save harmless Landlord against and from any and
all claims by or on behalf of any person or persons, firm or firms,
corporations, arising from the conduct or management of or from any act or
omission whatsoever done by or on behalf of Tenant in or about the demised
premises as well
12
as from the use and occupancy of the premises by Tenant, and further indemnify
and save Landlord harmless against and from any and all claims arising from
breach or default on the part of Tenant in the performance of any covenant or
agreement on the part of Tenant to be performed pursuant to the terms of this
Lease, or arising from any act or negligence of Tenant, or any of its agents,
contractors, servants, employees or licensees, and from and against all costs,
counsel fees, expenses and liabilities incurred in or about any such claim or
action or proceeding brought thereon; and in case any action or proceeding be
brought against Landlord by reason of any such claim, Tenant, upon notice from
Landlord, covenants to resist or defend at Tenant's expense such action or
proceeding by counsel reasonably satisfactory to Landlord.
J. Not place this Lease on record without the prior written consent
of Landlord. At the request of Landlord, Tenant will execute a memorandum of
lease for recording purposes containing references to such provisions of this
Lease as Landlord, in its sole discretion, shall deem necessary. The recording
of the Lease or a memorandum thereof by Tenant without Landlord's consent shall
constitute a default hereunder.
K. Indemnify, defend and hold Landlord harmless from and against
any and all liability, claims, suits, demands, judgments, costs, interest and
expenses (including but not limited to, counsel fees incurred in the defense of
any action or proceeding) to which Landlord may be subject or suffer by reason
of Tenant's having had dealings with respect to the premises or this Lease with
any real estate agent or broker, other than Broker named herein.
L. During the term hereof, maintain and deliver to Landlord public
liability and property damage insurance policies (or certificates thereof) with
respect to the premises, in which Landlord and Landlord's managing agent, Tenant
and Landlord's mortgagee and/or ground lessor, if required, shall be named as
additional insureds, for a minimum of One Million ($1,000,000) Dollars combined
single limit for coverage purposes only, with no obligation on the part of
Landlord, Landlord's mortgagee and/or ground lessor to pay premiums. Such policy
or policies shall be in such form and with such insurance companies as shall be
reasonably satisfactory to Landlord with provision for at least fifteen (15)
days notice to Landlord of cancellation and shall name Landlord and Landlord's
managing agent as additional insureds. At least ten (10) days before the
expiration of any such policy. Tenant shall supply Landlord with a substitute
therefor with evidence of payment of the premiums thereof. If such premiums
shall not be so paid and/or the policies therefor shall not be so delivered,
then Landlord may procure and/or pay for the same and the amounts so paid by
Landlord shall be added to the installment of rent becoming due on the first of
the next succeeding month and shall be collected as additional rent hereunder.
10. LANDLORD'S SERVICES. Provided Tenant is not in default under any
of the covenants, terms, conditions or provisions of this Lease beyond the
applicable grace period provided herein, Landlord shall furnish the following
services:
A. Air cooling during "Business Hours" on "Business Days" (as those
terms are hereinafter defined) when, in the reasonable judgment of Landlord, it
may be required for the comfortable occupancy of the demised premises. At other
times during Business Days and similar hours, Landlord shall provide ventilation
for the demised premises. Tenant at all times agrees to cooperate fully with
Landlord and to abide by all regulations and requirements which Landlord may
reasonably prescribe for the proper functioning and protection of its heating,
air conditioning and ventilation systems. Landlord shall have free access to any
and all mechanical installations of Landlord, including but not limited to air
conditioning, fans ventilating and machine rooms and electrical closets; and
Tenant agrees that there shall be no construction of partitions or other
obstructions which might interfere with Landlord's full access thereto, or
interfere with the moving of Landlord's equipment to and from the enclosures
containing said installations. Tenant agrees that
13
Tenant, its agents, employees or contractors shall not at any time enter the
said enclosures or tamper with, adjust, touch or otherwise in any manner affect
Lessor's said mechanical installations.
B. Omitted.
C. Heat, when and as required by law, on Business Days during
Business Hours.
D. Janitorial Services for the demised premises. Tenant shall pay
to Landlord the cost of removal from the Building of any of Tenant's refuse and
rubbish which exceeds the retie and rubbish usually attendant upon the use of
such premises as offices. Bills for the same shall be rendered by Landlord to
Tenant and shall be due and payable when rendered, and the amount of such bills
shall be deemed to be, and be paid, as additional rent. Alternatively, Tenant
shall use Landlord's contractors or employees, at the option of the Landlord,
for the removal of such excess rubbish and refuse and Tenant agrees to pay
reasonable charges therefor.
E. Cold and hot water at standard building temperatures to all
lavatories, public or private, for ordinary drinking, cleaning, sanitary and
lavatory purposes.
F. 1. Electric current, with the understanding, however, that the
base rent described in the Preamble to this Lease does not include the cost of
electricity consumed by Tenant in the demised premises (except for the cost of
electricity consumed for heating and cooling which shall be paid for by
Landlord) and Tenant shall, in addition to such base rent, be required to pay
the costs of the Electric Charge set forth in the Preamble as a condition for
the furnishing by Landlord of electric current to the demised premises. Such
charges shall include the costs of supplying electricity for (a) all lighting
fixtures in the demised premises, and (b) all receptacles in the demised
premises. Such charges shall be calculated and be payable in the manner
hereinafter set forth.
2. From and after the Commencement Date, Tenant shall pay the
Electric Charge as set forth in the Preamble. At any time during the Term of the
Lease, Landlord may cause a survey to be made by a reputable independent
electrical engineer or similar agency of the estimated use of electric energy
(other than for heat and air conditioning) to the demised premises, and shall
compute the cost thereof for the quantity so determined at prevailing retail
rates (the "Surveyed Electric Charge"). In the event of such a survey, Tenant
shall pay Landlord the Survey Electric Charge, as so calculated, on a monthly
basis, as additional rent, together with its payment of base rent.
Landlord shall have the right, at any time during the term of
this Lease, to cause the demised premises to be resurveyed. In the event that
such resurvey shall indicate increased electrical consumption by Tenant to
Landlord for premises, there shall be an adjustment in the amount paid by Tenant
to Landlord for Tenant's electrical energy charge in accordance with the survey
as well as an adjustment retroactive to the date Landlord reasonably establishes
Tenant's increase in electrical consumption in excess of the consumption
established by the prior survey.
Landlord shall submit to Tenant the results of any electrical
survey and the same shall be deemed binding upon Tenant unless Tenant shall
object to same within thirty (30) days of the date that Landlord shall furnish
Tenant with the results of the survey. In the event that Landlord and Tenant
cannot agree upon the results of a survey the same shall be submitted to
arbitration by an independent expert appointed jointly by a representative of
Tenant and Landlord. However, until such time as the arbitration shall have been
concluded, the results of Landlord's survey shall be utilized for the purposes
of determining
14
Tenant's electrical consumption with an appropriate adjustment to be made based
upon the results of the arbitration.
If the public utility rate schedule for the supply of electric
current to the Building shall be increased during the term of this Lease, the
additional rent payable pursuant to Section 15.02 hereof shall be equitably
adjusted to reflect the resulting increase in Landlord's cost of furnishing
electric service to the Tenant's premises effective as of the date of any
increase.
Landlord, at Landlord's option, may elect not to have an
electric survey done of the premises in which case Tenant's electric charges
shall conclusively be deemed to be $1.25 per square foot per annum.
3. Tenant shall make no substantial alterations or additions to
the electric equipment and/or appliances.
4. Landlord shall not in any way be responsible or liable to
Tenant at any time for any loss, damage or expense resulting from any change in
the quantity or character of the electric service or for its being no longer
suitable for Tenant's requirements or from any cessation or interruption of the
supply or current, nor shall any such loss, damage or expense, or non-supply of
electric service or current in any way affect the tenancy or in any way relieve
Tenant of any obligation under the terms of this Lease.
5. Tenant shall make no changes, alterations, additions,
substitutions (" changes") to any risers, conduits, meters, panel boxes, switch
gear, wiring or any other part of the electric service without the express prior
written consent of Landlord. Any changes requested by Tenant shall be sent in
writing to Landlord, and if, in the sole judgment of Landlord, such changes will
not cause or create a dangerous or hazardous condition or damage or injury to
the Building, or entail excessive or unreasonable alterations or repairs, or
interfere with or disturb other tenants or occupants and/or the service then or
thereafter to be supplied to tenants or occupants, Landlord will, at the sole
cost and expense of Tenant, make such changes. Tenant covenants and agrees to
pay Landlord for such costs and expenses, as additional rent hereunder, upon the
rendition of a xxxx indicating the amount due therefor.
G. Electrical lighting, cleaning and maintenance of the common
areas of the Building and Land.
H. 1. Tenant acknowledges that Landlord is required to furnish
electricity, water, air conditioning, heat, ventilation, building maintenance
and other facilities and services (herein collectively referred to as "building
services") only during Business Hours, Landlord shall provide building services
to Tenant at times other than during Business Hours (herein referred to as
"extra hours service") provided that (i) Tenant pays to Landlord, as additional
rent, a special charge (herein referred to as "extra hours charge"), (ii)
Tenant's request for the same shall be received by Landlord prior to 2:00 P.M.
on the day on which extra hours service is required after Business Hours on
weekdays, prior to 2:00 P.M. on the day preceding any required extra hours
service before Business Hours on weekdays, and prior to 2:00 P.M. of the prior
Business Day if extra hours service is required before or after Business Hours
on a Saturday, Sunday or holiday.
2. The extra hours charge shall be at the rate of $25.00 per
hour.
I. The term "Business Days", as used in this Lease, shall mean
Monday to Friday, inclusive, and Saturday from 8:00 A.M. to 1:00 P.M. excluding
New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day,
Christmas Day (herein called "holidays") Tenant shall,
15
however, have access to the premises 24 hours a day, 7 days a week, but Landlord
shall not be required to furnish building services during other than Business
Hours on Business Days unless Tenant has requested the same in accordance with
sub-section (H)(I) above.
J. The term "Business Hours", as used in this Lease, shall mean all
times between 8:00 A.M. and 6:00 P.M. on Monday to Friday, inclusive, excluding
holidays, and Saturday from 8:00 A.M. to 1:00 P.M., excluding holidays.
K. Landlord reserves the right, without being liable to Tenant and
without abatement or diminution in rent, to suspend, delay or stop any of the
building services to be furnished and provided by Landlord under this Lease
whenever necessary by reason of fire, storm, explosion, strike, lockout, labor
dispute, casualty or accident, lack or failure of sources of supply of labor or
fuel (or inability in the exercise of reasonable diligence to obtain any
required fuel), acts of God or the public enemy, riots, interferences by civil
or military authorities in compliance with the laws of the United States of
America or with the laws, orders or regulations of any governmental authority,
or by reason of any other cause beyond Landlord's control, or for emergency, or
for inspection, cleaning, repairs, replacements, alterations, improvements or
renewals which in Landlord's reasonable judgment are desirable or necessary to
be made. Landlord agrees, however, to use its best efforts and to act with all
due diligence to restore or have restored any services which may be suspended,
delayed or stopped pursuant to this subparagraph K.
11. ASSIGNMENT, SUBLETTING, ETC.
A. Tenant, for itself, its heirs, executors, administrators,
successors and assigns, expressly covenants that it shall not assign, mortgage
or encumber this Lease, nor underlet, or suffer or permit the demised premises
or any part thereof to be used by others, without the prior written consent of
Landlord in each instance. The sale or transfer of stock control, if Tenant be a
corporation, shall be deemed an assignment of this Lease unless (a) such sale or
transfer is made to a publicly owned corporation, (b) it involves the sale or
issuance of securities registered under the Securities Act of 1933, as amended,
(c) it is made amongst the existing stockholders of Tenant, or (d) it results
from the death of a stockholder of Tenant. Similarly, the sale or transfer of
membership interests in a limited liability company or of partnership interests
in a partnership when such sale or transfers change control of the entity shall
also be deemed an assignment of this Lease. If this Lease be assigned, or if the
demised premises or any part thereof be underlet or occupied by anyone other
than Tenant. Landlord may, after default by Tenant, collect rent from the
assignee, undertenant or occupant and apply the net amount collected to the rent
herein reserved, but no such assignment, underletting, occupancy or collection
shall be deemed a waiver of this covenant, or the acceptance of the assignee,
undertenant or occupant as Tenant, or a release of Tenant from the further
performance by Tenant of all covenants on the part of Tenant herein contained.
The consent by Landlord to an assignment or underletting shall not in any wise
be construed to relieve Tenant from obtaining the express consent in writing of
Landlord to any further assignment or underletting, nor shall the same release
or discharge Tenant from any liability, past, present or future, under this
Lease, and Tenant shall continue fully liable in all respects hereunder.
B. If Tenant intends to and has entered into a proposed sublease of
the premises or assignment of this Lease, such sublease or assignment shall be
subject to the provisions of this Article 11 and Tenant shall send Landlord a
written notice ("Tenant's Notice of Intention") advising Landlord of Tenant's
intention to finalize the sublease or assignment in accordance with the terms of
that instrument and an executed copy of the proposed sublease or assignment.
Landlord shall have a period of thirty (30) days after receipt from Tenant of
such Notice to elect to terminate this Lease and the unexpired term hereof
("recapture") or to advise Tenant that Landlord consents or refuses to consent
to such proposed sublease or assignment. In the event Landlord elects to
recapture the demised premises, Tenant shall vacate and
16
surrender possession of the demised premises by not later than the date set
forth in Tenant's Notice of Intention for the date upon which the proposed
sublease or assignment (as the case may be) was intended to become effective,
which date shall not be prior to forty (40) nor later than one hundred twenty
(120) days after sending of Tenant's Notice of Intention ("termination date").
Upon Tenant's vacating and surrendering possession of the demised premises as of
the aforesaid termination date as if said date were the termination date set
forth in the Preamble to this Lease.
C. Landlord agrees that if it does not elect to recapture the
demised premises in accordance with subparagraph B, Landlord shall not
unreasonably withhold its consent to the proposed sublease or assignment,
provided, however, that Landlord shall not be deemed unreasonable if it refuses
to consent to any proposed sublease or an assignment of the Lease to a tenant,
subtenant or other occupant of the Building (or to a subsidiary or affiliate),
or if, in the reasonable judgment of Landlord, the business of such proposed
subtenant or assignee is not compatible with the type of occupancy of the
Building, or such business will create increased use of the facilities of the
Building or conflict with the provisions of any other lease or agreement
affecting the Building.. Landlord may refuse consent to an assignment or
sublease to any prospective Tenant who has been offered rental space at the
Property by Landlord or its representatives.
D. It is expressly agreed that Landlord shall have the right to
negotiate directly with any proposed subtenant or assignee, whether the
identification thereof shall have been disclosed to Landlord by Tenant or
others, and Landlord shall have the right to enter into a direct lease with any
proposed subtenant, its parent, affiliate or subsidiary, either with respect to
the sublet area or any other premises or space in the Building for such term and
upon such rentals and other provisions or agreements as Landlord elects,
including the same terms and conditions set forth in the proposed sublease or
assignment submitted to Landlord with Tenant's Notice of Intention.
E. Tenant, without Landlord's prior written consent thereto and
without being subject to the provisions of Paragraph B of this Article 11, shall
have the right to assign this Lease or sublet the premises to, or allow the
premises to be otherwise occupied by, any parent, subsidiary, affiliate, group
or division of Tenant, provided, however, that no such assignment or subletting
shall be deemed to relieve it of liability for the full and faithful performance
of all the terms and conditions on its part to be performed under this Lease.
F. In the event Tenant assigns this Lease, as permitted by this
Article 11, such assignment shall not be deemed effective or binding on Landlord
unless there is delivered to Landlord within five (5) days of the execution of
such assignment, a duplicate, executed copy of such assignment and a duplicate,
executed copy of an agreement on the part of the assignee, satisfactory to
Landlord, to the effect that the assignee agrees to and shall assume all of the
obligations on the part of Tenant to be kept, observed and performed pursuant to
this Lease and such assignment is consistent in all manner with Landlord's
consent. Consent by Landlord to any assignment or sublease shall not, nor shall
it be deemed to, relieve or release the assigning Tenant from liability for the
full and faithful performance of all the terms, covenants, provisions and
conditions required to be performed under this Lease by "Tenant" for the
remainder of the term. No oral or verbal assignment, or sublease or receipt by
Landlord of any payment of rental or other amounts, or acceptance by Landlord of
performance of Tenant's obligations hereunder by any purported assignee or
sublessee, shall be deemed a waiver of any obligation of Tenant hereunder.
G. Tenant agrees to pay to Landlord all fees, costs and expenses,
including, but not limited to, reasonable attorney's fees and disbursements,
incurred by Landlord in connection with any proposed assignment of this Lease
and any proposed sublease of the Demised Premises.
17
12. LANDLORD'S RIGHTS. Without abatement or diminution in rent,
Landlord reserves and shall have the following additional rights:
A. To change the street address and/or the name of the Building
and/or the arrangement and/or location of entrances, passageways, doors,
doorways, corridors, stairs, toilets, or other public parts of the Building
without liability to Tenant, provided that Tenant's use and enjoyment of the
premises are not adversely affected thereby.
B. To approve in writing all signs and all sources furnishing sign
painting and lettering, drinking water, towels and toilet supplies or other like
services used in the demised premises and to approve all sources furnishing
cleaning services, painting, repairing and maintenance, which approval shall not
be unreasonably withheld or delayed.
C. To enter the demised premises at all reasonable times (1) for
the making of such inspections, alterations, improvements and repairs, as
Landlord may deem reasonably necessary or desirable, (2) for any purpose
whatsoever relating to the safety, protection or preservation of the demised
premises or of the Building, and (3) to take material into and upon said
premises. If a representative of Tenant shall not be personally present to open
and permit an entry into the premises at any time when an entry shall be
reasonably necessary or permissible hereunder, Landlord or its agents may enter
by a master key or may, in case of emergency, forcibly enter the same without
rendering Landlord or its agents liable therefor (provided that, during such
entry, reasonable care shall be accorded to avoid damage or injury to Tenant's
property), and without in any manner affecting the obligations and covenants of
this Lease. Without incurring any liability to Tenant, Landlord may permit
access to the premises and open the same, whether or not Tenant shall be
present, upon demand of any receiver, trustee, assignee for the benefit of
creditors, sheriff, marshal or court officer entitled to, or reasonably
purporting to be entitled to, such access for the purpose of taking possession
of, or removing, Tenant's property or for any other lawful purpose (but this
provision and any action by Landlord hereunder shall not be deemed a recognition
by Landlord that the person or official making such demand has any right or
interest in or to this Lease, or in or to the premises), or upon demand of any
representative of the fire, police, building, sanitation or other department of
the city, state or federal governments.
D. At any time or times Landlord, either voluntarily or pursuant to
governmental requirement, may, at Landlord's own expense, make repairs,
alterations or improvements in or to the Building or any part thereof and during
alterations, may close entrances, doors, windows, corridors, or other
facilities, provided that such acts shall not unreasonably interfere with
Tenant's use and occupancy of the premises.
E. To erect, use and maintain pipes, ducts, shafts and conduits in
and through the demised premises, provided same do not unreasonably interfere
with Tenant's use and occupancy of the demised premises.
F. To charge to Tenant any expense, as additional rent, including
overtime cost, incurred by Landlord in the event that repairs, alterations,
decorating or other work in the premises are made or done after ordinary
business hours at Tenant's request.
G. If during the last six months of the term or of a renewal term,
Tenant shall have removed all or substantially all of Tenant's property
therefrom, Landlord may enter and alter, renovate, and redecorate the premises
without reduction or abatement of rent or incurring any liability to Tenant for
compensation.
18
H. To grant to anyone the exclusive right to conduct any particular
business or undertaking in the Building, provided that Tenant's permitted use of
the premises shall not be adversely affected thereby.
Landlord may exercise any or all of the foregoing rights thereby
reserved to Landlord without being deemed guilty of an eviction, actual or
constructive, or disturbance or interruption of Tenant's use or possession and
without limitation or abatement of rent or other compensation and such acts
shall have no effect on this Lease.
13. DAMAGE BY FIRE, ETC.
A. If the entire premises or any part thereof shall be damaged by
fire or other casualty and Tenant shall give prompt written notice thereof to
Landlord, Landlord shall proceed with reasonable diligence to repair or cause to
be repaired such damage, and if the premises, or any part thereof, shall be
rendered untenantable by reason of such damage, the rent hereunder, or an amount
thereof apportioned according to the area of the premises so rendered
untenantable if less than the entire premises shall be abated for the period
from the date of such damage to the date when the damage shall have been
repaired as aforesaid; provided, however, that if Landlord or mortgagee of the
Building and the Land shall be unable to collect the insurance proceeds
(including rent insurance proceeds) applicable to such damage because of some
action or inaction on the part of Tenant, or the employees, licensees or
invitees of Tenant, the cost of repairing such damage shall be paid by Tenant
and there shall be no abatement of rent. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting in any way from such damage or the repair thereof. Tenant understands
that Landlord will not carry insurance of any kind on Tenant's furniture or
furnishings or on any fixtures, equipment, improvements, installations or
appurtenances made or removable by Tenant as provided in this Lease, and that
Landlord shall not be obligated to repair any damage thereto or replace the
same.
B. In case the Building shall be so damaged by such fire or other
casualty that substantial alteration or reconstruction of the Building or the
premises shall, in Landlord's reasonable opinion, be required (whether or not
the premises shall have been damaged by such fire or other casualty), then
Landlord may, at its option, terminate this Lease and the term and estate hereby
granted by notifying Tenant in writing of such termination within sixty (60)
days after the date of such damage. In the event that such a notice of
termination shall be given, this Lease and the term and estate hereby granted
shall expire as of the date of such termination with the same effect as if that
were the date hereinbefore set for the expiration of the term of this Lease, and
the rent payable hereunder shall be apportioned as of such date.
C. Each of Landlord and Tenant hereby releases the other from any
and all liability or responsibility (to the other or anyone claiming through or
under it by way of subrogation or otherwise) under fire and extended coverage or
supplementary contract casualties or any other insurance averages obtained, if
such fire or other casualty or other insured event shall have been caused by the
fault or negligence of the other party or anyone for whom such party may be
responsible; provided, however, that this release shall be applicable and in
force and effect only with respect to loss or damage occurring during such time
as the releaser's policies shall contain a clause or endorsement to the effect
that any such release shall not adversely affect or impair such policies or
prejudice the right of the releaser to recover thereunder. Each of Landlord and
Tenant agrees that its policies will include such a clause or endorsement so
long as the same shall be obtainable without extra cost, or if such cost shall
be charged therefor, so long as the other party pays such extra cost.
14. CONDEMNATION.
19
A. In the event that any part of the premises or the whole of the
Land and Building shall be lawfully condemned or taken in any manner for any
public or quasi-public use, this Lease, and the term and estate hereby granted
shall forthwith cease and terminate as of the date of vesting In the of event
title, that a part of the Land or Building shall be so condemned or taken, then
Landlord (whether or not the premises be affected) may, at Landlord's option,
terminate this Lease and the term and estate hereby granted as of the date of
such vesting of title by notifying Tenant in writing of such termination within
sixty (60) days following the date on which Landlord shall have received notice
of vesting If Landlord of title, does not so unaffected by such condemnation or
taking, and the rent payable hereunder shall not be abated. In the event that
only a part of the Building shall be so condemned or taken and this Lease and
the term and estate hereby granted are not terminated as hereinbefore provided,
Landlord will, with reasonable diligence and at its expense, restore the
remaining portion of the Building as nearly as practicable to the same condition
as it was in prior to such condemnation or taking.
B. In the event of their termination in any of the cases
hereinbefore provided, this Lease and the term and estate hereby granted shall
expire as of the date of such termination with the same effect as if that were
the termination date of this Lease, and the rent payable hereunder shall be
apportioned as of such date.
C. In the event of any condemnation or taking hereinbefore
mentioned of all or a part of the Land and Building (including the premises),
Landlord (or the mortgagee of any interest in the Land and/or the Building, if
pursuant to the terms of the mortgage, or if pursuant to law, mortgagee is
entitled to receive all or a portion of the condemnation award), shall be
entitled to receive all or a portion of the condemnation award, shall be
entitled to receive the entire award in the condemnation proceeding, including
any and all right, title and interest of Tenant now or hereafter arising in or
to any such award or any part thereof. Tenant shall not be entitled to receive
any part of such award from Landlord, the mortgagee, or the condemning
authority, except that Tenant shall have the right to assert a claim against the
condemning authority for the value of movable fixtures and equipment installed
and paid for by Tenant and for relocation expenses, provided that the payment of
any award to Tenant does not diminish the amount which would otherwise be paid
to Landlord or the mortgagee by that condemning authority.
D. It is expressly understood and agreed that the provisions of
this Article 14 shall not be applicable to any condemnation or taking for
governmental occupancy for a limited period.
15. COMPLIANCE WITH LAWS. Tenant shall at its expense throughout the
Term, promptly comply, or cause compliance, with all laws and ordinances and the
orders, rules, regulations and requirements (individually and collectively, the
"LEGAL REQUIREMENTS") of all federal, state, county and municipal governments
and appropriate departments, commissions, boards, subdivisions, and officers
thereof (individually and collectively, the "GOVERNMENTAL AUTHORITIES"), and
with all of the requirements of the Board of Fire Underwriters or similar body
having jurisdiction, foreseen or unforeseen, ordinary as well as extraordinary,
and whether or not the same shall presently be within the contemplation of the
parties hereto or shall involve any change of governmental policy, which may be
applicable to the Demised Premises or the use or manner of use thereof. The
foregoing notwithstanding, Tenant shall not hereby be under any obligation to
comply with any law, ordinance, order or regulation requiring any structural
alteration of or in connection with the premises, unless such alteration is
required by reason of a condition which has been created by, or at the instance
of, Tenant, or is attributable to the use or manner of use to which Tenant puts
the premises, or is required by reason of a breach of any of Tenant's covenants
and agreements hereunder. Where any structural alteration of or in connection
with the premises is required by any such law, ordinance, rule, order or
20
regulation, and, by reason of the express exception hereinabove contained,
Tenant is not under any obligation to make such alteration, then Landlord shall
have the option of making such alteration and paying the cost thereof, or of
terminating this Lease and the term and estate hereby granted by giving to
Tenant not less than thirty (30) days' prior written notice of such termination.
16. DAMAGE TO PROPERTY.
A. Tenant shall give to Landlord prompt written notice of any
damage to, or defective condition in, any part or appurtenance of the Building's
sanitary, electrical, heating, air conditioning or other similar or dissimilar
systems serving, located in, or passing through, the premises, and the damage or
defective condition shall be remedied by Landlord with reasonable diligence, but
if such damage or defective condition was caused by, or resulted from the use
by, Tenant or by the employees, licensees or invitees of Tenant, the cost of the
remedy thereof shall be paid by Tenant, as additional rent, upon the rendition
of a xxxx indicating the amount due therefor.
B. All personal property belonging to Tenant, its servants,
employees, suppliers, consignors, customers, licensees, located in or about the
Building or demised premises shall be there at sole risk of Tenant and neither
Landlord nor Landlord's agents shall be liable for the theft, loss or
misappropriation thereof nor for any damage or injury thereto, nor shall
Landlord be considered the voluntary or involuntary bailee of such personal
property, nor for damage or injury to Tenant or any of its officers, agents or
employees or to any other persons or to any other property caused by fire,
explosion, water, rain, snow, frost, steam, gas, electricity, heat or cold,
dampness, falling plaster, sewers or sewage odors, noise, leaks from any part of
said Building or roof, the bursting or leaking of pipes, plumbing, electrical
wiring and equipment and fixtures of all kinds, or by any act or neglect of
other tenants or occupants of the Building or of any other person.
C. All damage or injury to the premises or to its fixtures,
appurtenances and equipment or to the Building, its fixtures, appurtenances or
equipment caused by Tenant's moving property in or out of the Building or by
installation or removal of furniture, fixtures or other property or from any
cause of any kind or nature whatsoever of which Tenant, its servants, employees,
agents, visitors or licensees shall be the cause, shall be repaired, restored
and replaced promptly by Tenant at its sole cost and expense, in quality and
class at least equal to the original work or installations, and to the
satisfaction of Landlord. If Tenant fails to make such repairs, restorations or
replacements, the same may be made by Landlord for the account of Tenant and the
cost thereof shall be collectible as additional rent or otherwise after
rendition of a xxxx or statement and payable simultaneously with the next
monthly installment of rent due and payable hereunder.
17. SUBORDINATION.
A. This Lease is subject and subordinate in all respects to all
ground leases and/or underlying leases now or hereafter covering the Land and to
all mortgages which may now or hereafter be placed on or affect such leases
and/or the Land, Buildings, improvements, or any part thereof and/or Landlord; s
interest therein, and to each advance made and/or hereafter to be made under any
such mortgages and to all renewals, modifications, consolidations. replacements
and extensions thereof and all substitutions of and for such ground leases
and/or underlying leases and/or mortgages. This subparagraph (a) shall be
selfoperative and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall execute and deliver promptly
any instrument that Landlord and/or any mortgagee and/or the lessor under any
ground or underlying lease and/or their respective successors in interest may
request.
21
B. Tenant agrees, at the election and upon demand of any owner of
the Land, or of any mortgagee in possession thereof, or of any holder of a
leasehold hereafter affecting the Land, to attorn, from time to time, to any
such owner, mortgagee or holder, upon the terms and conditions set forth herein
for the remainder of the term of this Lease. The foregoing provisions shall
inure to the benefit of any such owner, mortgagee or holder, shall apply to the
tenancy of Tenant notwithstanding that this Lease may terminate upon the
termination of any such leasehold estate, and shall be self-operative upon any
such demand, without requiring any further instrument to give effect to said
provisions. Tenant, however, upon demand of any such owner, mortgagee or holder,
agrees to execute, from time to time, an instrument in confirmation of the
foregoing provisions, satisfactory to owner, mortgagee or holder, in which
Tenant shall acknowledge such attornment and shall set forth herein and shall
apply for the remainder of the term of this Lease. Nothing contained in this
subparagraph B shall be construed to impair any right, privilege or option of
any such owner, mortgagee or holder.
C. Tenant agrees that, in the event that the interest of the
Landlord becomes vested in the holder of any mortgage or in any ground lessor,
to anyone claiming by, through or under either of them, then such holder shall
not be:
1. liable for any act or omission of any prior landlord
(including Landlord herein); or
2. subject to any offsets or defenses which Tenant may have
against any prior landlord (including Landlord herein); or
3. bound by any rent which Tenant may have paid for more than
the current month to any landlord (including Landlord herein).
D. No alteration or modification of any provision hereof, nor any
cancellation or surrender of this Lease shall be valid or binding as against any
holder of any mortgage unless the same shall have been approved in writing by
such holder, or unless specific provision therefor is set forth in this Lease.
E. Tenant agrees that, upon the request of Landlord, Tenant will
execute, acknowledge and deliver such document or instrument as may be requested
by the holder of any mortgage on the Landlord's interest in the Land and/or the
Building confirming or agreeing that this Lease is assigned to such mortgagee as
collateral security for such mortgage and agreeing to abide by such assignment,
provided that a copy of such assignment has in fact been delivered to Tenant.
18. NOTICES. Any notice, consent, approval, request or demand
hereunder by either party to the other party shall be in writing and shall be
deemed to have been duly given if sent by registered or certified mail with
return receipt requested, postage prepaid, addressed to Landlord at Landlord's
address and to Tenant at Tenant's address, or of the address of such other party
for such notices, consents, approvals, requests or demands shall have been duly
changed as hereinafter provided, if mailed, as aforesaid, to such other party at
such changed address. Either party may at any time change the address for such
notices, consents, approvals, requests or demands by setting forth the changed
address. If the term "Tenant" as used in this Lease refers to more than one
person, any notice, consent, approval, request or demand given as aforesaid to
any one of such persons shall be deemed to have been duly given to Tenant. All
bills, statements and building communications from Landlord to Tenant may be
served by ordinary mail or otherwise delivered to Tenant or left at the
premises, For the purpose hereof, the term "building communications" shall be
deemed to by any notices not specifically referred to in this Lease which relate
to the operation or maintenance of the Building, including amendments to the
Rules and Regulations, and is given to all or substantially all of the
22
tenants in the Building. The time of rendition of any xxxx, statement or
building communication and of the giving of any other notice, consent, approval,
request or demand shall be deemed to be the time when the same is delivered to
Tenant, left at the premises, or deposited in the U.S. Postal Service facility,
postage prepaid, as the case may be.
19. CONDITIONS OF LIMITATION. This Lease and the term and estate
hereby granted are subject to the limitation that if prior to or during the term
of this Lease:
A. Tenant shall make an assignment of its property for the benefit
of creditors or shall file a voluntary petition under any bankruptcy or
insolvency law, or an involuntary petition under any bankruptcy or insolvency
law shall be filed against Tenant and such involuntary petition is not dismissed
within ninety (90) days after the filing thereof; or
B. A petition is filed by or against Tenant under the
reorganization provisions of the United State Bankruptcy Act or under the
provisions of any law of like import, unless such petition under said
reorganization provisions be one filed against Tenant which is dismissed within
ninety (90) days after its filing; or
C. Tenant shall file a petition under the arrangement provisions of
the United States Bankruptcy Act or under the provisions of any law of like
import; or
D. A permanent receiver, trustee or liquidator shall be appointed
for Tenant or of or for the property of Tenant, and such receiver, trustee or
liquidator shall have not been discharged within ninety (90) days from the date
of his appointment; or
E. Tenant shall default in the payment of any rent payable
hereunder by Tenant to Landlord on any date upon which the same becomes due, and
such default shall continue for ten (10) days after written notice; or
F. Tenant shall default in the due keeping, observing or
performance of any covenant, agreement, term, provision or condition of this
Lease on the part of Tenant to be kept, observed or performed, and if such
default shall continue and shall not be remedied by Tenant within thirty (30)
days after Landlord shall have given to Tenant a written notice specifying same,
or, in the case of such a default which for causes beyond Tenant's control
cannot with due diligence be cured within said period of thirty (30) days, if
Tenant (1) shall not, promptly upon giving such notice, advise Landlord in
writing of Tenant's intention to duly institute all steps necessary to remedy
such default, (2) shall not duly institute and thereafter diligently prosecute
to completion all steps necessary to remedy the same, or (3) shall not remedy
the same within a reasonable time after the date of the giving of said notice by
Landlord; or
G. Any event shall occur or any contingency shall arise whereby
this Lease or the estate hereby granted or the unexpired balance of the term
hereof would, by operation of law or otherwise, devolve upon or pass to any
person, firm, association or corporation other than Tenant except as expressly
permitted under Article 11 hereof, or whenever Tenant shall desert or abandon
the premises or the same shall become vacant (whether the keys be surrendered or
not and whether the rent be paid or not); or
H. Any other lease held by Tenant from Landlord shall expire and
terminate (whether or not the term thereof shall then have commenced) as a
result of the default by Tenant thereunder;
23
Then, in any of the aforesaid cases, Landlord may give to Tenant a notice of
intention to end the term of this Lease at the expiration of five (5) days with
the same effect as if that day were the date hereinbefore set for the expiration
of the term of this Lease, but Tenant shall remain liable for damages as
provided in Article 21 hereof. If the term "Tenant", as used in this Lease,
refers to more than one person, then, as used in subparagraphs A, B, C, D and G
of this Article 19, said term shall be deemed to include all of such persons or
any one of them; if any of the obligations of Tenant under this Lease is
guaranteed, the term "Tenant," as used in said paragraphs, shall be deemed to
include also the guarantor or, if there be more than one guarantor, all of any
one of them; and if this Lease shall have been assigned, the term "Tenant," as
used in said subparagraphs, shall be deemed to include the assignee and the
assignor or either of them under any such assignment, provided, however, that
Landlord reserves the sole option to release the assignor from any further
liability under this Lease, in which event the term "Tenant," as used in said
subparagraphs, shall not include the assignor so released.
20. RE-ENTRY BY LANDLORD.
A. If Tenant shall default in the payment of any rent payable
hereunder by Tenant to Landlord on any date upon which the same becomes due, and
if such default shall continue for ten (10) days after Landlord shall have given
to Tenant a written notice specifying such default, or if this Lease shall
expire and terminate as in Article 19 provided, Landlord or Landlord's agents
and servants may immediately or at any time thereafter re-enter into or upon the
premises, or any part thereof, either by summary dispossess proceedings or by
any suitable action or proceeding at law, without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove any
persons therefrom, to the end that Landlord may have, hold and enjoy the
premises again as and of its first estate and interest therein. The words
"re-enter," "re-entry," and "re-entered" as used in this Lease are not
restricted to their technical legal meanings. In the event of any termination of
this Lease under the provisions of Article 19, or in the event that Landlord
shall re-enter the premises under the provisions of this Article 20 or in the
event of the termination of this Lease (or re-entry) by or under any summary
dispossess or other proceeding or action or any provision of law, Tenant shall
be responsible for Tenant's obligations pursuant to this Lease up to the time of
such termination of this Lease, or of such recovery of possession of the
premises by Landlord, as the case may be, and shall also pay to Landlord damages
as provided in Article 21.
B. In the event of a breach or threatened breach on the part of
Tenant with respect to any of the covenants, agreements, terms, provision or
conditions on the part of or on behalf of Tenant to be kept, observed or
performed, Landlord shall also have the right of injunction. The specified
remedies to which Landlord may resort hereunder are cumulative and are not
intended to be exclusive of any other remedies or means or redress to which
Landlord may lawfully be entitled at any time, and Landlord may invoke any
remedy allowed at law or in equity as if specific remedies were not herein
provided for.
C. In the event of (1) the termination of this Lease under the
provisions of Article 19 hereof, (2) the re-entry of the premises by Landlord
under the provisions of this Article 20, or (3) the termination of this Lease
(or re-entry) by or under any summary dispossess or other proceeding or action
or any provision of law by reason of default hereunder on the part of Tenant,
Landlord shall be entitled to retain all moneys, if any, paid by Tenant at the
time of such termination or re-entry or, at Landlord's option, against any
damages payable by Tenant under Article 21 or pursuant to law.
21. DAMAGES.
A. In the event of any termination of this Lease under the
provisions of Article 19 in the event that Landlord shall re-enter the premises
under the provisions of Article 20 or in the event of the
24
termination of this Lease (or of re-entry) by or under any summary dispossess or
other proceeding or action or any provision of law, Tenant will pay to Landlord
as damages, at the election of Landlord, either:
1. a sum which at the time of such termination of this Lease or
at the time of any such re-entry by Landlord, as the case may be, represents the
excess, if any, of(i) the aggregate of all rent which would have been payable
hereunder by Tenant had this Lease not so terminated for the period commencing
with such earlier termination of this Lease or the date of any such re-entry, as
the case may be, and ending with the date hereinbefore set for the expiration of
the full term hereby granted, over (ii) the aggregate of all rent of the
premises for the same period based upon the then local market rental value of
the premises; or
2. sums equal to the aggregate of all rent which would have
been payable by Tenant has this Lease not so terminated, or had Landlord not so
re-entered the premises, payable upon the due dates therefor specified herein
following such termination or such re-entry and until the date hereinbefore set
for the expiration of the full term hereby granted; provided, however, that if
Landlord shall re-let all or any part of the premises for all or any part of
said period, Landlord shall credit Tenant with the net rents received by
Landlord from such re-letting, such net rents to be determined by first
deducting from the gross rents as and when received by Landlord from such
reletting the reasonable expenses incurred or paid by Landlord in connection
thereof, as well as the reasonable expenses for re-letting, including altering
and preparing the premises for new tenants, brokers' commissions and all other
similar or dissimilar expenses properly chargeable against the premises and the
rental therefrom in connection with such re-letting, it being understood that
any such re-letting may be for a period equal to or shorter or longer than the
remaining term of this Lease; provided, further, that (i) in no event shall
Tenant be entitled to receive any excess of such net rents over the sums payable
by Tenant to Landlord hereunder, (ii) in no event shall Tenant be entitled in
any suit for the collection of damages pursuant to this subsection (2) to a
credit in respect of any net rents from a re-letting except to the extent that
such net rents are actually received by Landlord prior to the commencement of
such suit, and (iii) if the premises or any part thereof should be re-let in
combination with other space, then proper apportionment on a square foot area
basis shall be made of the rent received from such re-letting and of the
expenses of re-letting.
B. Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this Lease would have expired if
it had not been terminated under the provisions of Article 19, or under any
provision of law, or had Landlord not re-entered the premises.
C. Nothing herein contained shall be construed as limiting or
precluding the recovery by Landlord against Tenant of any sums or damages
(including interest on all such amounts at the rate of eighteen (18%) percent
per annum) to which, in addition to the damages particularly provided above,
Landlord may lawfully be entitled by reason of any default hereunder on the part
of Tenant.
22. WAIVER OF TRIAL BY JURY. It is mutually agreed by and between
Landlord and Tenant that, except in the case of any action, proceeding or
counterclaim brought by either of the parties against the other for personal
injury or property damage, the respective parties hereto shall and they hereby
do waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties hereto against the other on any matters whatsoever arising
out of or in any way connected with this Lease.
25
23. NO WAIVERS.
A. No receipt of money by Landlord from Tenant with knowledge of
the breach of any covenant or agreement of this Lease, or after the termination
hereof, or after the service of any notice, or after the commencement of any
suit, or after final judgment for possession of the demised premises, shall be
deemed a waiver of such breach, nor shall it reinstate, continue or extend the
term of this Lease, or affect any such notice demand or suit.
B. No delay on the part of the Landlord or Tenant in exercising any
right, power or privilege hereunder or to seek any covenant or condition of this
Lease, or of any of the Rules and Regulations, shall operate as a waiver thereof
nor shall any single or partial exercise of any right, power or privilege,
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
C. No act done or thing said by Landlord or Landlord's agents shall
constitute a cancellation, termination or modification of, or eviction or
surrender under, this Lease, or a waiver of any covenant, condition or provision
hereof, nor relieve Tenant of Tenant's obligation to pay the rent hereunder. Any
acceptance of surrender, waiver or release by Landlord and any cancellation,
termination or modification of this Lease must be in writing signed by Landlord,
by its duly authorized representative. The delivery of keys to any employee or
agent of Landlord shall not operate as a surrender or as a termination of this
Lease, and no such employee or agent shall have any power to accept such keys
prior to the termination of this Lease.
D. Tenant hereby expressly waives service of any notice of
Landlord's intention to reenter. Tenant hereby tiller waives any and all rights
to recover or regain possession of the demised premises or to reinstate or to
redeem the Lease as permitted or provided by or under any statute, law or
decision now or hereafter in force and effect.
E. No failure by Landlord to enforce any of the Rules and
Regulations against Tenant and/or other tenant or occupant of the Building shall
be deemed a waiver thereof. No provision of this Lease shall be deemed waived by
Landlord unless such waiver be in writing signed by Landlord.
F. No payment by Tenant or receipt by Landlord of a lesser amount
than the rent herein stipulated and reserved shall be deemed to be other than on
account of the earliest stipulated rent then due and payable, nor shall any
endorsement or statement on any check, or letter accompanying any rent check or
payment be deemed an accord and satisfaction, and Landlord may accept the same
without prejudice to Landlord's right to recover any balance due or to pursue
any other remedy in this Lease provided.
24. PARTIES BOUND. The covenants, agreement, terms, provisions and
conditions of this Lease shall bind and benefit the respective successors,
assigns and legal representatives of the parties hereto with the same effect as
if mentioned in each instance where a party hereto is named or referred to,
except that no violation of the provisions of Article 11 hereof shall operate to
vest any rights in any successor, assignee or legal representative of Tenant and
that the provisions of this Article 24 shall not be construed as modifying the
conditions of limitation contained in Article 19 hereof. It is understood and
agreed, however, that the covenants and obligations on the part of the Landlord
under this Lease shall not be binding upon Landlord herein named with respect to
any period subsequent to the transfer of its interest in the Building, that in
the event of such transfer said covenants and obligations shall thereafter be
binding upon each transferee of such interest of Landlord herein named, but only
with respect to the period ending with a subsequent transfer of
26
such interest, and that a lease of the entire interest shall be deemed a
transfer within the meaning of this Article 25.
25. CURING TENANT'S DEFAULTS. If Tenant shall default in the
performance of any covenant, agreement, term, provision or condition herein
contained, Landlord, without thereby waiving such default, may perform the same
for the account and at the expense of Tenant, without notice in a case of
emergency and in any other case if such default continues after the expiration
of the applicable grace period provided for in Article 19 of this Lease or if an
emergency exists. Bills for any expense incurred by Landlord in connection with
any such performance by Landlord for the account of Tenant, and bills for all
costs, expenses and disbursements of every kind and nature whatsoever,
including, but not limited to, reasonable counsel fees, involved in collecting
or endeavoring to collect the rent or any part thereof or enforcing or
endeavoring to enforce any rights against Tenant, under or in connection with
this Lease, or pursuant to law, including (without being limited to) any such
costs, expense and disbursement involved in instituting and prosecuting summary
proceedings, as well as bills for any property, material, labor or services
provided, furnished or rendered, or caused to be provided, furnished or
rendered, by Landlord to Tenant including (without being limited to) electric
lamps and other equipment, construction work done for the account of Tenant, as
well as for any charges for other similar or dissimilar services incurred under
this Lease, may be sent by Landlord to Tenant monthly, or immediately, at
Landlord's option, and shall be due and payable in accordance with the terms of
said bills, and if not paid when due, the amounts thereof shall immediately
become due and payable as additional rent under this Lease.
26. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE. Tenant agrees to give
any Mortgagees and/or Trust Deed Holders, by certified mail, return receipt
requested, a copy of any Notice of Default served upon the Landlord, provided
that, prior to such notice, Tenant has been notified in writing by way of Notice
of Assignment of Rents and Leases, or otherwise, of the address of such
Mortgagees and/or Trust Deed Holders. Tenant further agrees that, if Landlord
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
time as may be necessary if within 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.
27. TENANT'S ENVIRONMENTAL RESPONSIBILITIES
A. Tenant agrees to refrain, and to prevent its employees,
invitees, agents, contractors and subtenants, from bringing any Hazardous
Materials onto the Demised Premises, except for cleaning fluids in de minimis
quantities for normal cleaning use within the Demised Premises which shall be
stored in proper containers and in compliance with Legal Requirements. Tenant
hereby covenants and agrees to indemnify, defend and hold Landlord harmless from
and against any and all claims, actions, administrative proceedings, judgments,
damages, penalties. costs, expenses, losses and liabilities of any kind or
nature that arise (indirectly or directly) from or in connection with the
presence (or suspected presence), release (or suspected release), spill (or
suspected spill) or discharge (or suspected discharge) of any Hazardous
Materials in, on or about the Demised Premises at any time during or after the
first day of possession thereof by Tenant, or resulting from the acts or
omissions of Tenant, its subtenants or their respective employees, agents or
contractors. Without limiting the generality of the foregoing, the indemnity set
forth above shall specifically cover any investigation, monitoring and
remediation costs.
B. The term "Hazardous Materials" shall mean any hazardous or toxic
substances, materials, wastes, pollutants and the like which are defined as such
in, and/or regulated by (or become defined
27
in and/or regulated by), any Legal Requirements including, without limitation,
the Comprehensive Environmental Response Compensation and Liability Act (42
U.S.C.ss.9601 ET SEQ.), the Hazardous Materials Transportation Act (49
U.S.C.ss.1801 ET SEQ.), the Clean Water Act (33 U.S.C.ss.1251 ET SEQ.), the
Resource Conservation and Recovery Act (42 U.S.C.ss.6901 ET SEQ.), the Clean Air
Act (42 U.S.C.ss.7401 ET SEQ.), the Toxic Substances Control Act (15
U.S.C.ss.2601 ET SEQ.), the Federal Insecticide, Fungicide, and Rodenticide Act
(7 U.S.C.ss.136 ET SEQ.), the Occupational Safety and Health Act (29 X.X.X.xx.
651 ET SEQ.), ISRA (and its predecessor statutes), the Spill Compensation and
Control Act (N.J.S.A. 58:10-23.11, ET SEQ.), the Air Pollution Control Act
(N.J.S.A. 26:2C-2, ET SEQ.), the New Jersey Water Pollution Control Act
(N.J.S.A. 58:10A-1, ET SEQ.), the Underground Storage Tank Act (N.J.S.A.
58:10A-21, ET SEQ.), the Solid Waste Management Act (N.J.S.A. 13:1E-1, ET SEQ.)
and any other Legal Requirement which is presently in effect or hereafter
enacted relating to environmental matters, any rules and regulations promulgated
under any of the foregoing, and any and all amendments to the foregoing.
C. Tenant further covenants and agrees that (x) its operation at
the Demised Premises shall not involve any Hazardous Materials and (y) Tenant is
not, and the Demised Premises shall not be occupied during the Lease by, an
"Industrial Establishment," as defined in the Industrial Site Recovery Act,
N.J.S.A. 13:1k-6 ET SEQ.), and the rules and regulations promulgated thereunder,
as same may be amended from time to time ("ISRA"). If Tenant's operations on the
Demised Premises now or hereafter constitute an Industrial Establishment subject
to the requirements of ISRA, then prior to the expiration or sooner termination
of this Lease, Tenant, at its own cost and expense, shall comply with all
requirements of ISRA pertaining to an Industrial Establishment closing or
transferring operations, at its sole cost and expense, to the satisfaction of
the New Jersey Department of Environmental Protection ("DEP") and Landlord. If
Tenant has not fully complied with ISRA prior to the expiration or sooner
termination of the Lease, then Tenant, at Landlord's option and in addition to
all other rights and remedies of Landlord under this Lease, at law, in equity or
otherwise, shall be deemed to be a holdover tenant and the provisions of Article
34 shall be applicable. In addition to the foregoing, Tenant shall obtain and
deliver to Landlord, at Tenant's sole cost and expense, at least thirty (30)
days prior to the expiration of the Term or any assignment of this Lease or
subletting of the Demised Premises, a letter from the DEP stating that
termination of Tenant's operations at the Demised Premises does not trigger
ISRA, together with true copies of any affidavits on which such letter is based.
If Landlord shall have to comply with ISRA by reason of Landlord's actions,
Tenant shall promptly provide all information requested by Landlord for
preparation of non-applicability affidavits or a negative declaration and shall
promptly sign such affidavits when requested by Landlord.
D. Tenant has provided an Environmental Disclosure Affidavit
attached hereto as EXHIBIT F. This Lease has been entered into by the Landlord
on the basis of this Environmental Disclosure Affidavit. If any information
provided in the Affidavit is incorrect, such defect shall constitute an Event
of Default hereunder. Further, Tenant shall immediately notify Landlord if any
information provided in the Environmental Disclosure Affidavit has changed and
promptly provide to Landlord upon demand an affirmation of the information
contained therein and any additional information related thereto requested by
Landlord. The provisions of this Article 27 shall survive the expiration or
sooner termination of this Lease.
28. MISCELLANEOUS.
A. If in connection with obtaining financing for the Building, a
bank, insurance company or other recognized institutional lender or the New
Jersey Economic Development Authority or its nominee shall request reasonable
modifications in this Lease as a condition to such financing, Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder or materially
decrease the obligations of Landlord hereunder. In addition thereto, Tenant
shall furnish to any mortgagee or proposed mortgagee of the Building, copies of
Tenant's
28
latest financial statements duly certified by an independent certified public
accountant, or if no such certified statement is available, then such statements
shall be certified by the Tenant, its duly certified officer or partner, as the
case may be.
B. Tenant shall not be entitled to exercise any right of
termination or other option granted to it by this Lease at any time when Tenant
is in default in the performance or observance of any of the covenants,
agreements, terms, provisions or conditions on its part to be performed or
observed beyond the applicable grace period provided in this Lease.
C. Tenant shall not sublet, take by assignment, or otherwise occupy
any space in the Building other than the premises hereby demised, except with
the prior written consent of Landlord in each instance.
D. If this Lease is offered to Tenant by the managing agent of the
Building, such offer is made solely in the capacity as such agent and subject to
Landlord's acceptance and approval; and Tenant has executed this Lease upon the
understanding that this Lease shall not in any way bind Landlord until such time
as the same has been approved and executed by Landlord and a counterpart
delivered to or received by Tenant.
E. The laws of the State of New Jersey shall govern the validity,
performance and enforcement of this Lease. The invalidity or unenforceability of
any provision hereof shall not affect or impair any other provision.
F. Whenever a neutral singular pronoun refers to Tenant, same shall
be deemed to refer to Tenant if Tenant be an individual, a corporation, a
partnership or two or more individuals or corporations.
G. The term "Landlord" as used in this Lease shall mean the owner
for the time being of the Building, and if such Building be sold or transferred,
the seller or assignor shall be entirely relieved of all covenants and
obligations under this Lease subsequent to such sale or transfer and it shall be
deemed, without further agreement between the parties hereto and their
successors, that the purchaser on such sale has assumed and agreed to carry out
all covenants and obligations of Landlord arising on and after such sale or
transfer.
H. The words "herein," "hereof," "hereunder," "hereafter," and the
words of similar import refer to this Lease as a whole and not to any particular
section or subdivision thereof.
I. In all cases where Landlord's consent or approval is required
under this Lease, Landlord covenants and agrees that such covenant or approval
shall not be unreasonably withheld or delayed at such times as Tenant is not in
default in the performance of any of its obligations under this Lease beyond the
applicable grace period provided herein.
J. Landlord does not, in any way for any purpose, become a partner
of Tenant in the conduct of business, or otherwise, a joint adventurer or a
member of a joint enterprise with Tenant.
K. Landlord hereby reserves the right at any time to make
alterations or additions to and to build additional stories on the building in
which the premises are contained and to build adjoining the same. Landlord also
reserves the right to construct other buildings or improvements in the demised
premises from time to time and to make alterations thereof or additions thereto
and to build adjoining same and to instruct double-deck or elevated parking
facilities.
28
29. INABILITY TO PERFORM. This Lease and the obligations of Tenant to
pay rent hereunder and perform all of the other covenants, agreements, terms,
provisions and conditions hereunder on the part of Tenant to be performed shall
in no way be affected, impaired or excused because Landlord is unable to fulfill
any of its obligations under this Lease or is unable to supply or is delayed in
supplying any service expressly or impliedly to be supplied or is unable to make
or is delayed in making any repairs, replacements, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Landlord is prevented or delayed from doing to by reason of strikes
or labor troubles or any other similar or dissimilar cause whatsoever beyond
Landlord's control, including, but not limited to, governmental preemption in
connection with a national emergency or by reason of any rule, order or
regulation of any department or subdivision thereof of any governmental agency
or by reason of the conditions of supply and demand which have been or are
affected by war or other emergency, or by reason of any fire or other casualty
or act of God.
30. ABANDONED PERSONAL PROPERTY. Any personal property (other than any
fixture, equipment, improvement, installation or appurtenance of the character
referred to in Article 8 hereof), which shall remain in the premises or any part
thereof after the expiration or termination of the term of this Lease shall be
deemed to have been abandoned, and either may be retained by Landlord as its
property or may be disposed of in such manner as Landlord may see fit; provided,
however, that notwithstanding the foregoing, Tenant will, upon request of
Landlord made not later than ten (10) days after the expiration or termination
of the term hereof, promptly remove from the Building any such personal property
at Tenant's own cost and expense. If such personal property or any part thereof
shall be sold by Landlord, Landlord may receive and retain the proceeds of such
sale as Landlord's property. In no event shall Landlord have any obligation for
safekeeping or storage of any property that Tenant has left on the premises..
31. EXCULPATION. Notwithstanding anything to the contrary set forth in
this Lease, it is specifically understood and agreed by Tenant that there shall
be absolutely no personal liability on the part of Landlord or on the part of
the partners of Landlord with respect to any of the terms, covenants and
conditions of this Lease, and Tenant shall look solely to the equity, if any, of
Landlord in the Land and Building for the satisfaction of each and every remedy
of Tenant in the event of any breach by Landlord; such exculpation of personal
liability to be absolute and without any exception whatsoever.
32. ARTICLE HEADINGS. The Article headings of this Lease are for
convenience only and are not to be considered in construing the same.
33. QUIET ENJOYMENT. Landlord covenants that if, and so long as,
Tenant is not in default beyond the applicable grace period provided herein with
respect to the performance of the terms and conditions on its part to be
performed under this Lease, Tenant shall quietly enjoy the premises without
hindrance or molestation by Landlord or by any other person lawfully claiming
the same, subject to the covenants, agreements, terms, provisions and conditions
of this Lease and to any ground leases and/or underlying leases and/or
mortgages, extensions, renewals, modifications, alterations and substitutions
thereof, to which this Lease is now and may hereafter be subject and
subordinate, as hereinbefore set forth.
34. HOLDING OVER. If the Tenant retains possession of the demised
premises or any part thereof after the termination of the term by lapse of time
or otherwise, without prior written approval of Landlord, the Tenant shall pay
the Landlord base rent at double the rate specified in Article 3, together with
additional rent and other charges as provided herein, for the time the Tenant
thus remains in possession, and, in addition thereto, shall pay the Landlord all
damages, consequential as well as direct, sustained by reason of the Tenant's
retention of possession, If the Tenant remains in possession of the demised
premises, or any part thereof, after the termination of the term by lapse of
time or otherwise, such holding over shall, at the election
30
of the Landlord expressed in a written notice to the Tenant and not otherwise,
constitute an extension of this Lease on a month-to-month basis at double the
monthly rental set forth in Article 3, together with additional rent and other
charges as provided herein. The provisions of this Article 34 do not exclude the
Landlord's rights of re-entry or any other right hereunder.
35. RELOCATION. Landlord hereby reserves the right, at its sole
expense and on at least thirty (30) days' prior written notice, to require
Tenant to move from the Premises to other space within the Building. The
aforesaid relocated space shall be of comparable size and decor, in order to
petit Landlord to consolidate the space leased to Tenant with any other space
leased or to be leased to another tenant. In the event of any such relocation,
Landlord will pay ail expenses of preparing and decorating the relocated space
so that it will be substantially similar to the Premises from which the Tenant
is moving and Landlord will also pay the expense of moving Tenant's furniture
and equipment to the relocated space. In such event, this Lease and each and all
of the terms, covenants and conditions hereof, shall remain in full force and
effect and thereupon be deemed applicable to new space except that the
description of the Premises shall be revised and if applicable Tenant's
Percentage shall likewise be revised.
36. PARKING SPACES. Tenant's occupancy of the Demised Premises shall
include the use of four (4) non-designated unassigned parking spaces per 1,000
square feet of Demised Premises, or six (6) nondesigned unassigned parking
spaces. Landlord reserves the right to require Tenant to affix parking stickers
or other means of identification upon the vehicles operated by Tenant, its
subtenants, licensees, invitees, concessionaires, officers and employees. Tenant
shall, upon request, promptly furnish to Landlord the license plate numbers of
the vehicles parked in the parking area(s) by Tenant, its subtenants, licensees,
invitees, concessionaires, officers and employees. If any vehicle of Tenant, or
of any subtenant, licensee, concessionaire, or of their respective officers,
agents or employees, fails to affix such parking stickers or other means of
identification, or is parked in any part of the Common Facilities other than the
employee parking area(s) designated therefor by Landlord, or Tenant, its
subtenants, licensees, invitees, concessionaires, officers or employees exceed
the number of unassigned parking spaces allocated to Tenant herein (i) Tenant
shall pay to Landlord such reasonable penalty as may be fixed by Landlord from
time to time and/or (ii) Landlord, at Landlord's sole option by at Tenant's sole
expense, shall cause the parking area(s) to be policed by Landlord's personnel
or , alternatively, request that the Tenant hires its own personnel to do same.
The amounts due under the provisions of this Section shall be deemed to be
Additional Rent. Nothing contained herein shall be deemed to impose any
obligation on Landlord to police the parking area(s).
31
IN WITNESS WHEREOF, Landlord and Tenant have executed or caused to be
executed, these presents, as of the date first hereinabove set forth.
Signed, Sealed and Delivered BCE ASSOCIATES, L.P. (Landlord)
in the presence of:
By: BCE GP, INC., General Partner
By:/S/ Xxxxxx X. Xxxxxxxx
---------------------- -----------------------------
Xxxxxx X. Xxxxxxxx, President
MEDJET (Tenant)
/S/ Xxxxxx Xxxxx By:/S/ Xxxxxx X. Xxxxxx
---------------------------------- --------------------
Xxxxxx Xxxxx Name:
NOTARY PUBLIC OF NEW JERSEY Title:
MY COMMISSION EXPIRES FEB. 9, 2004
