AMENDMENT TO MULTI-TENANT OFFICE LEASE
AGREEMENT made as of the 26th day of April, 1994, by and between EDB
Property Partners, LP III, successor to Laurel Larchmont Office, Inc.
("Landlord") and qad, inc. ("Tenant").
W I T N E S S E T H:
WHEREAS, Tenant and Laurel Larchmont Office, Inc. ("LLO") executed and
delivered a multi-tenant office lease (the "Lease") for certain premises
commonly known as Xxxxxx 000 Xxxx, 000 Xxxx, 000 Xxxx, and 200 West (the
"Premises") in the building known as 10,000 Midlantic Drive, Mount Laurel,
New Jersey; and
WHEREAS, LLO assigned the Lease to Landlord on or about December 31, 1993;
and
WHEREAS, under Section 13(c) of the Lease, Tenant was required to furnish
to Landlord and approve certain plans for work specified on Exhibit C to the
Lease ("Tenant Improvements") by January 31, 1994, and, under Section 13(d)
of the Lease, Landlord was required to substantially complete the Premises,
subject to extensions for delays caused by Tenant and/or by force majeure, by
June 1, 1994; and
WHEREAS, Tenant was unable to furnish plans for Tenant Improvements to
Landlord until April, 1994; and
WHEREAS, the parties agree that the Commencement Date shall be extended;
and
WHEREAS, the parties wish to adopt procedures to enhance the speed at which
the Premises will be completed;
NOW, THEREFORE, in consideration of the premises, and the
mutual covenants and agreements hereinafter set forth, the parties hereby agree
that the Lease is amended as follows:
1. The first sentence of Section 7 of the Lease is deleted in its
entirety, and the following is substituted therefor:
"The term of this Lease shall be seven (7) years, zero (0) months
commencing September 1, 1994 ("Commencement Date") and ending at 12:00
noon on August 31, 2001."
2. In addition to any other actions, inactions, causes or events that may
cause or result in the postponement or extension of the Commencement Date
under the terms and provisions of the Lease, the Commencement Date shall be
postponed by the number of days of delay caused by or resulting from any one
or more of the following:
(a) The failure of the plans by the Landlord for Tenant Improvements to
be bid, awarded, and approved on a "fast track" basis.
(b) The failure of Township officials to grant a building permit for
Tenant Improvements within twenty (20) days after the application for such
permit is submitted.
(c) The inclusion by the Landlord of any "long lead time" items in the
plans for Tenant Improvements.
(d) The failure of Tenant to respond to the applicable party as to any
decisions with respect to Tenant Improvements, change orders, or the completion
of the Premises within forty eight (48) hours after such a decision is
requested, orally or in writing.
3. In order to expedite the completion of the Premises, the parties agree
that the following will apply to work required to complete the "Project", which
for purposes of this Agreement shall
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mean the completion of the Premises, including without limitation the completion
of Tenant Improvements:
(a) Landlord will engage Cosensa & Associates, Inc. ("C & A") an
independent Project Administrator, responsible to both Landlord and Tenant, to
oversee and expedite the Project. C&A's fee shall not exceed three percent (3%)
of the total cost of completing the Project. The fee will be included in
Tenant's construction allowance of $25.00 per rentable square foot, granted
under Exhibit C to the Lease.
(b) Tenant hereby designates Xxxxx X. Xxxxxxx as its representative
who will have full authority to make binding decisions on behalf of Tenant
with respect to the Project, including without limitation authority to
approve plans, specifications, modifications, architects, and general
contractors. Tenant must cause Xx. Xxxxxxx to be available at all times when
work on the Project is occurring.
4. This Amendment supersedes and cancels all prior agreements between
the parties hereto with respect to the subject matter hereof,* including
without limitation the provisions of paragraphs 1, 2, and 3 of the letter
agreement between the parties dated April 19, 1994 and countersigned by
Tenant on April 26, 1994.
5. Except as expressly set forth herein, the Lease is hereby in all
respects ratified, confirmed and approved.
*including the additional construction and expense clause and penalty clause
contained in Paragraph 13(c) of the lease, and
3
IN WITNESS WHEREOF, this Amendment has been duly executed on behalf of each
of the parties hereto as of the day and year first above written. *
qad, inc., Tenant
By: /s/
-----------------------------
EDB Property Partners, LP III
Landlord
By: Xxxxx Xxxxxx Property Corp.,
A Delaware Corporation
General Partner
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Xxxxxx Xxxxxxxx L.P.
* There is attached hereto a Rider which amends the terms of this document and
which is hereby incorporated into this document by reference.
RIDER
Notwithstanding anything to the contrary contained in this Amendment:
1. The parties agrees that: (1) Landlord has not caused a delay under
Paragraphs 2 (a) and (b) above and that (2) these Paragraphs are now
null and void for all purposes;
2. The parties agree that, as of June 2, 1994, Landlord had caused no
delay under Paragraph 2 (c) of the Amendment;
3. The following language is added to the end of the Paragraph 2 (d)
of the Amendment:
Provided, however, that if Tenant fails to respond to an initial
inquiry from Landlord within forty-eight hours, Landlord may then
provide Tenant with a failure to respond notice ("Second Failure
Notice"). Should Tenant (once again) fail to respond within
forty-eight hours after Tenant's receipt of the Second Failure Notice,
then Tenant shall be liable to Landlord for: (a) any rent foregone by
Landlord, and (b) any additional construction costs incurred, both as a
result of Tenant's failure to respond in a timely matter, under terms
of existing lease.
4. The first sentence of Paragraph 13 (c) of the lease is hereby
deleted and replaced with the following:
If Tenant makes any changes to the plans for its space after June 2,
1994, and such changes cause a delay in the Commencement Date or an
increase in the construction costs for the space, then Tenant shall pay
to Landlord as rent hereunder: (1) any rent foregone by Landlord as a
result of said delay, (2) any operating expenses incurred by Landlord
(which would have been otherwise paid by Tenant) as a result of said
delay, and (3) any increase in construction costs carried by said
delay, all of which payments shall be due and payable under the terms
of the existing lease.
5. Paragraph 4 of the Amendment is hereby deleted and replaced with
the following:
Where this Amendment conflicts with the terms of the Lease or any other
prior written or oral agreement between the parties, the terms of this
Amendment shall control and be paramount. Notwithstanding the
foregoing, the letter agreement between the parties dated April 19th,
1994 (a copy of which is attached hereto and incorporated herein
by reference) is now null and void for all purposes, except paragraph 4.
The parties agree that Paragraph 4 of the letter is incorporated into a
pre-existing lease dated July 13, 1990 for 0000 Xxxxxxxxx Xxxxx by
Amendment #7.
April 19, 1994
Xxxxx X. Xxxxxxx
Manager, Regional Administrative Services
qad inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xx. Xxxxxx, XX, 00000
Re: Lease agreement between qad, inc.,(Tenant), and Laurel Larchmont
Offices, Inc. (Landlord), for 00000 Xxxxxxxxx Xxxxx, Xx. Xxxxxx, XX
assigned to EDB Property Partners, LP III as Landlord on December 31,
1993
Dear Xxxxx:
The following recaps our discussion with Xxxxxx Xxxxxxxx on Friday, April 15
concerning the tenant improvements for the above referenced Lease Agreement:
The Lease was drafted with the intention that qad would submit tenant
improvement plans to us for our approval by January 31, 1994, in order for
the tenant improvements to be completed by June 1, 1994., We received the
tenant improvement plans in early April and thus will not be able to complete
construction by June 1, 1994, as originally intended.
To assist qad in expediting the tenant build out, we will modify the Lease as
follows:
1. Xxxxxxx & Associates, Inc. will be engaged as an independent
project administrator, jointly responsible to both Landlord and Tenant,
to oversee and expedite the construction of your space. Xxxxxxx &
Associates' fee which may be up to 3% of the total project cost, will
be included in the $25.00 per square foot tenant allowance specified
in the Lease.
2. The rent commencement and substantial completion dates specified
in the Lease will be changed from June 1, 1994 to September 1, 1994.
This is an aggressive deadline and therefore requires the following to
occur:
a. The project must be designed, bid, awarded, and approved by the
Township building code officials on a "Fast Track" basis. There must
be no "long lead time" items on the Tenant's specifications.
April 19, 1994 -2-
Xxxxx X. Xxxxxxx
b. Tenant schematic drawings submitted to Xxxxxxx & Associates are
complete and fully approved by qad.
c. Project decisions required from qad, from this date forwarded,
will be received within 48 hours after receipt of same.
d. A maximum of two architectural firms will be asked to bid on
project drawings. A maximum of four general contractors will be
asked to bid on project construction. qad will approve the architects
and general contractors asked to bid.
e. qad will appoint one representative of qad, inc. who will be
on-site and fully authorized to make decisions, such as approving
plans, specifications, modifications, etc., within the 48 hours
specified in paragraph 2.c.
3. We will provide architectural and engineering plans and tenant
improvements as per the Lease Agreement referenced above.
4. Regarding the rent commencement date for the additional space qad
currently occupies at 0000 Xxxxxxxxx Xxxxx, xxx agrees to begin paying,
as of July 1, 1994 additional annual rent of $7.00 per square foot.
The additional rent is calculated and paid in advance on a monthly
basis. Attached is a copy of the Lease Amendment, outlining the terms
of this agreement, which was submitted to you for your execution on
April 8, 1994.
Please indicate your agreement with the above by signing as designated below
and I will institute the necessary lease modifications. If you have any
questions, please contact me immediately at (000) 000-0000.
Kind Regards,
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
General Manager
Approved: /s/ Xxxxx X. Xxxxxxx
------------------------ ----------
Xxxxx X. Xxxxxxx Date
cc: Xxxx Xxxxxxxx
[LETTERHEAD]
January 10, 1994
FEDERAL EXPRESS
---------------
Xx. Xxxxx X. Xxxxxxx
Manager - Regional Administrative Services
QAD Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Re: Multi-Tenant Office Lease between
Laurel Larchmont Office, Inc. and
QAD, Inc.
Premises: 00000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxxxx
----------------------------------
Dear Xx. Xxxxxxx:
This law firm represents EDB Property Partners L.P. III, the entity
which acquired title to the captioned property from Laurel Larchmont Office,
Inc. on December 30, 1993. On behalf of the new owner of the premises, I am
enclosing one fully executed copy of the captioned Lease. Please be advised
that this Lease was assigned to the new owner in connection with the sale of
the premises. I have also enclosed for your file a copy of a letter dated
December 30, 1993 from the previous owner advising of the transfer of title.
All future payments under the Lease should be directed to EDB
Property Partners L.P. III, care of Emmes Asset Management Corp., 00
Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000. Any inquiries
regarding the premises and the Lease should be directed to Xx. Xxxxxx
Xxxxxxxx at Emmes Asset Management
[LETTERHEAD]
Xx. Xxxxx X. Xxxxxxx
January 10, 1994
Page 2
Corp., who may be reached by telephone at 000-000-0000 (Extension 306).
Very truly yours,
/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
GSK:bmw
Encl.
cc: Xx. Xxxxxx Xxxxxxxx
(by hand, w/encl.)
LAUREL LARCHMONT OFFICE, INC.
c/o Midlantic National Bank
000 Xxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxx Xxxxxx 00000
December 30, 1993
Qad Inc.
00000 Xxxxxxxxx Xxxxx
Xx. Xxxxxx, Xxx Xxxxxx
Attention: Xxxxx X. Xxxxxxx, Manager,
Regional Administration Services
Re: Lease between Laurel
Laurel Office Inc. and Qad Inc.
Premises: 00000 Xxxxxxxxx Xxxxx
Xx. Xxxxxx, Xxx Xxxxxx
Dear Xx. Xxxxxxx:
We have enclosed for your files one (1) fully executed original of the
captioned Lease, which has been dated as of December 29, 1993.
Please be advised that the Premises were sold to EDB Property Partners
L.P. III on December 30, 1993.
Accordingly, all future payments and inquiries regarding the Premises
and the Lease should be directed to the managing agent for the new landlord
as follows:
EDB Property Partners L.P. III
c/o Emmes Asset Management Corp.
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
(000) 000-0000
Thank you for your attention to this matter.
Very truly yours,
LAUREL LARCHMONT OFFICE, INC.
By: /s/ Xxxxx Xxxxx
--------------------------
Xxxxx Xxxxx
Vice President
LANDLORD: LAUREL LARCHMONT OFFICE, INC.
TENANT: qad, inc.
PREMISES: 00000 XXXXXXXXX XXXXX, XXXXX
XXXXX XXXXXX, XXX XXXXXX
INDEX TO MULTI-TENANT OFFICE LEASE
DESCRIPTION PAGE
----------- ----
1. DATE OF LEASE 1
2. LANDLORD 1
3. TENANT 1
4. NOTICES 1
5. PREMISES 2
6. USE OF PREMISES 2
7. TERM 3
8. RENT 4
9. LATE PAYMENT 8
10. SECURITY DEPOSIT 9
11. SIGNS 9
12. EXCESS USE OF ELECTRICITY 9
13. CONDITION OF PREMISES 9
14. REPAIRS AND MAINTENANCE 12
15. ALTERATIONS AND TRADE FIXTURES 14
16. ACCESS TO PREMISES 16
17. ECRA COMPLIANCE 16
18. BUILDING SERVICES 18
19. ASSIGNMENT AND SUBLETTING 21
20. MECHANICS' LIENS 23
21. INDEMNIFICATION AND LIABILITY INSURANCE 24
22. WAIVER OF SUBROGATION 27
23. WAIVER OF CLAIMS 27
24. FIRE OR OTHER CASUALTY 28
25. SUBORDINATION AND XXX-XXXXXXXXXXX 00
00. CONDEMNATION 31
27. ESTOPPEL CERTIFICATE 32
28. DEFAULT 33
29. REMEDIES 35
30. REQUIREMENT OF STRICT PERFORMANCE 39
31. RELOCATION OF TENANT 40
32. LANDLORD'S OBLIGATIONS 40
33. LANDLORD'S LIABILITY 40
34. SUCCESSORS 40
35. GOVERNING LAW 41
36. SEVERABILITY 41
37. CAPTIONS 41
38. GENDER 41
39. WARRANTIES OF TENANT 41
40. ENTIRE AGREEMENT 42
41. WAIVER OF TRIAL BY JURY 43
42. CONSENT OF THE PARTIES 43
43. ADDITIONAL SCHEDULES 43
44. BINDING EFFECT 43
MULTI-TENANT OFFICE LEASE
1. DATE OF LEASE:
2. LANDLORD: Laurel Larchmont Office, Inc.
Address of Landlord: c/o Midlantic National Bank
000 Xxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxx Xxxxxx 00000
3. TENANT: qad, inc.
Address of Tenant: 6450 Via Real
Xxxxxxxxxxx, Xxxxxxxxxx 00000
Tenant's SIC Number: 7757
4. NOTICES
Wherever in this Lease it shall be required or permitted that notice
or demand be given or served by either party to this Lease to or on the
other party, such notice or demand shall be deemed to have been duly
given or served if in writing and either personally served or forwarded
by Registered or Certified Mail, Return Receipt Requested postage
prepaid, and addressed as follows:
LANDLORD: Laurel Larchmont Office, Inc.
c/o Midlantic National Bank
000 Xxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxx, Xxx Xxxxxx 00000
TENANT: qad, inc.
00000 Xxxxxxxxx Xxxxx
Xxxxxx 000 Xxxx, 000 Xxxx, 000 Xxxx and 000 Xxxx
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Each such mailed notice shall be deemed to have been given to or
served upon the party to which addressed two (2) days after the date the
same is deposited in the United States Registered or Certified Mail,
postage prepaid, and
2
properly addressed in the manner above provided. Either party hereto may
change its address to which said notices shall be delivered or mailed by
giving written notice of such change to the other party hereto as herein
provided.
5. PREMISES
(Include street address, approximate square footage, suite number, and
lot & block number)
00000 Xxxxxxxxx Xxxxx
Suites 105 East, 200 East and 000 Xxxx
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
R.S.F. Suite 103 East 3,384 sf.
Xxxxx 000 Xxxx 0,000 xx.
Xxxxx 000 Xxxx 22,287 sf.
Suite 200 West 22,188 sf.
----------
Total: 57,271 sf.
Xxxxx #000, Xxx #0
As identified on Exhibit "A" ("Premises") in the building known as
00000 XXXXXXXXX XXXXX ("Building").
Landlord, for and in consideration of the rent to be paid and the
covenants and agreements to be performed by Tenant, as hereinafter set
forth, does hereby lease, demise and let unto Tenant the Premises,
together with the right to use in common with the other tenants in the
Building, six (6) parking spaces per 1,000 square feet located adjacent
to the Building and non-exclusive use of the walks, access roads and land
surrounding the Building and the common areas in the Building.
6. USE OF PREMISES
The Tenant covenants and agrees to use the Premises as OFFICE AND
RELATED PURPOSES. Tenant agrees not to use or permit the Premises to be
used for any other purpose without
3
the prior written consent of the Landlord endorsed hereon. No machinery,
equipment or other thing that could cause unusual vibration, noise, odor
or fumes shall be installed or placed therein. Tenant shall not use or
occupy the Premises for any other purpose or business without the prior
written consent of Landlord which consent Landlord agrees shall not be
unreasonably withheld. Tenant shall not subject any portion of the floor
to greater loading than that portion of the Premises is designed to carry.
Tenant shall observe and comply with the rules and regulations
attached hereto, as Exhibit "B", as well as applicable laws and
governmental regulations as currently or hereinafter enacted and to all
reasonable requirements of the insurer of the Premises or other Building
which the Premises are a part. Tenant agrees to promptly furnish Landlord
with a copy of any notice that it receives that it is in violation of any
applicable law or governmental regulations.
7. TERM
The term of this Lease shall be SEVEN (7) YEARS, ZERO (0) MONTHS
commencing on June 1, 1994 ("Commencement Date") and ending at 12:00 noon
on May 31, 2001. In no event shall Landlord be liable to Tenant for any
actual or consequential damages in the event that Landlord is unable to
deliver possession on the date indicated due to the failure of any prior
Tenant to vacate the Premises at the termination of its Lease or if any
work necessary to make
4
the Premises ready for Lessee's occupancy is not accomplished due to
shortages or unavailability of material, labor or other causes beyond
Landlord's control. In the event that the Landlord is delayed in giving
possession as provided herein, the termination date of the Lease shall be
extended accordingly.
If the Lease term does not commence upon the date indicated above,
Landlord and Tenant shall, by separate writing, set forth the date that
the Lease term commenced and will terminate.
8. RENT
(a) Tenant shall pay to Landlord, without set off or deduction, at
its offices, X.X. Xxx 000, Xxxxxx, Xxx Xxxxxx 00000 or such other place
as Landlord directs, rental as set forth below:
TERM PSF RATE MONTHLY RENT ANNUAL RENT
---------------------------------------------------------------------------
Year 1 $12.00 (x $45,271.00 $543,252.00
45,271 sf)
Year 2 $12.00 $57,271.00 $687,252.00
Years 3 thru 5 $12.50 $59,657.29 $715,887.50
Years 6 and 7 $13.00 $62,043.58 $744,523.00
Payable on the first business day of each month during the term of this
Lease except that the first month's rent shall be payable upon the
execution of this Lease.
(b) In addition to the minimum annual rental, Tenant shall pay to
Landlord its proportionate share of all operating costs incurred during
each calendar year (pro rated where appropriate) during the term of this
Lease.
5
This operating cost shall be estimated by Landlord at the commencement
of the rental term and Tenant shall pay to Landlord in addition to the
basic rent and on the same day provided in paragraph 8(a) 1/12 thereof.
The estimated operating cost for the year in which this Lease commences
is $7.00 per R.S.F. As an inducement to Tenant, Landlord shall fix the
operating expenses during the first twelve (12) months at a rate of
$6.27 per square foot or $29,924.10 per month. The Tenant's proportionate
share is 32.62 percent (57,271 sf DIVIDED BY 175,573 sf = 32.62%). The
operating expenses shall include all costs normally incurred in the
maintenance and operation of an Office Building, less any charges invoiced
directly to other tenants in the Building and shall include:
(i) Real estate taxes assessed on the Building, land underlying
same, parking areas or other common elements including any assessments or
municipal improvements;
(ii) All costs and expense directly related to the operation of
the Building including preparing units for rental, lighting, cleaning,
insuring, removing snow, ice and debris, policing and regulating traffic
in the area immediately adjacent to the Building and depreciation of
machinery and equipment used for such operation;
(iii) All costs and expense, other than those of a capital
nature, of replacing paving, curbs, walkways, landscaping (including
replanting and replacing flowers and
6
other planting), drainage and lighting facilities in the Building and areas
immediately adjacent thereto;
(iv) Electricity and fuel used in lighting, heating,
ventilating, and air conditioning of the Premises;
(v) Maintenance of mechanical and electrical equipment
including heating, ventilating and air conditioning equipment in the
Premises;
(vi) Window cleaning and janitorial service, including
janitorial equipment and supplies;
(vii) Maintenance of elevators, rest rooms, lobbies, hallways and
other common areas of the Building;
(viii) Wages for personnel directly involved in the building
management and operation, including all taxes payable by Landlord thereon
and fringe benefits;
(ix) Water and sewer rents, charges and standby fees; and
(x) Accounting fees, management fees and legal fees which
directly benefit the overall operation of the Building, it is expressly
agreed that legal fees incurred in an action against an individual tenant
shall not be deemed includable as an operating expense pursuant to this
provision.
(xi) All costs associated with maintaining, operating and
monitoring any security system or sprinkler system.
7
(xii) Any other expense or charge which would be considered an
expense of maintaining, operating or repairing the Premises under sound
accounting principles.
The operating expense increases shall not exceed five percent (5%)
cummulatively per year except for the first year's fixed rate as it affects
the second year's adjustment, not including those items outside of
Landlord's direct control such as taxes and utilities, which shall not be
capped.
Notwithstanding anything to the contrary contained herein, capital
expenditures and the costs of preparing any other unit for rental shall not
be included as operating costs. However, if Landlord incurs any capital
expense for an improvement required by virtue of any governmental statute,
ordinance or regulation then Landlord shall be permitted to recover on an
amortized basis the portion of the capital costs applicable to the term of
this Lease including any renewal or extension. Similarly, should Landlord
make any capital improvement which reduces the operating costs payable
hereunder then Landlord shall be permitted to recover the amortized costs
as aforesaid but in no case shall the expense allocated to Tenant exceed
the cost savings achieved by the capital improvement.
Within sixty (60) days after the expiration of each calendar year,
Landlord shall furnish Tenant with an accounting of the actual operating
expenses. If the actual operating expenses are less than the estimated
expenses paid
8
by the tenant the difference will be credited against all rental payments
immediately due following the issuance of credit. In the event that the
operating expenses exceed the estimates then Tenant shall pay to Landlord
the difference within twenty (20) days of receipt of the accounting. The
estimated payment for the current year shall then be adjusted to reflect
the actual operating costs of the prior year.
(c) When used in this Lease pro rata shall be a percentage obtained by
dividing the square footage of the Premises by the square footage of the
Building in which the Premises are located. The percentage for the Premises
is 32.62 percent.
(d) In determining Operating Expenses, if less than 95% of the rentable
area of the Building have been occupied by tenants for more than thirty
(30) days during such year, operating expenses shall be deemed for such
year to be an amount equal to the like expenses which would normally be
expected to be incurred had such occupancy of the Building been 95%
throughout such year, as reasonably determined by Landlord.
9. LATE PAYMENT
Rent is due and payable on or before the first day of each month.
Rent received after the tenth (10th) of the month is subject to a late
charge of six percent (6%) of the monthly payment which charge must
accompany rent. An
9
additional charge will be made for checks returned for insufficient
funds.
10. SECURITY DEPOSIT - DELETED
11. SIGNS
Landlord shall place a building standard sign upon the Tenant's door
and a listing in the directory on the first floor. Tenant shall not post
any sign or other listing in the windows or upon the exterior of the
Building.
12. EXCESS USE OF ELECTRICITY
Landlord shall xxxx Tenant separately and Tenant shall pay to
Landlord, at its then prevailing rate, an hourly fee for excess costs
incurred for electricity, heating and air conditioning beyond the
Building's normal operating hours. These hours are defined as follows:
Weekly business days: 8:00 AM to 7:00 PM
Customer Service Area: 8:00 AM to 9:00 PM
(All Areas) Saturday: 8:00 AM to 1:00 PM
Tenant shall have direct control of lighting at all hours.
13. CONDITION OF PREMISES
(a) Before the Commencement Date, Landlord will substantially
complete the construction of the Building or any improvements to the
Premises (if not substantially completed as of the date of this Lease) to
the stage that the Building is operable for Tenant's purposes, which shall
be defined as occurring when the public entrances of the Building,
including ground floor lobbies and public hallways of the floor containing
the Premises (or portions of said lobbies and hallways necessary to
provide reasonable and
10
safe access to the Premises) are substantially completed and elevators
necessary to provide services to the Premises, the heating and air
conditioning system (as required for the season and then prevailing
climate) and all other mechanical systems required for service to the
Premises are in regular operation.
(b) The Premises shall be deemed to be substantially completed when
all work specified to be done in Exhibit "C" ("Tenant Finish") have been
substantially completed, except for: (i) minor items of finishing and
construction of a nature which are not necessary to make the Premises
reasonably tenantable for the permitted use, and; (ii) items not then
completed because of delay by Tenant in furnishing any drawings, plans
or approvals (collectively, "Plans") required by Exhibit "C" or because
of approved requests made by Tenant subsequent to delivery of Plans, or
changes or additions therein.
(c) If Tenant fails to furnish or approve space plans by January 31,
1994, or makes any changes in such plans after said date, Tenant shall bear
any additional construction or other expense to Landlord caused directly by
any delay in furnishing the Plans or by any such changes and shall pay
Landlord as a portion of rent, at the Commencement Date, an amount equal to
the aggregate number of days lapsed between the delivery date set forth in
Exhibit "C" and the actual delivery dates, multiplied by 1/365th of the
annual base rent, plus an amount of additional rent attributed to such
11
period as reasonably estimated by Landlord. Landlord and Tenant,
understanding the difficulty in determining or estimating the actual
damages that will result from Tenant's lateness in delivering Plans,
have agreed upon the foregoing as an appropriate method of liquidating
such damages.
(d) Landlord shall have the Premises substantially completed by
the Commencement Date, except for delays due to Force Majeure or
Tenant's failure to timely furnish or approve the Plans, any of which
shall extend the Commencement Date for a period equal to a total of the
duration of each such delay. If the Premises is not substantially
completed within one (1) month of the Commencement Date, Landlord shall
credit Tenant one (1) day of "free" rent for each late day as penalty, or
if not completed within THREE (3) months following the Commencement Date,
as the same may be extended in accordance herewith, Tenant, as Tenant's
sole right thereby arising, may terminate this Lease by notice to
Landlord given thereafter, provided that the terms shall not have
commenced within thirty (30) days after the giving of such notice by
Tenant. This Lease shall terminate in such case upon expiration of
thirty (30) days after Landlord's receipt of such notice without
substantial completion having occurred, whereupon Landlord shall return
all rent and the security deposit paid by Tenant to Landlord in advance,
and all further obligations of the parties hereunder shall end. It is
understood that in the event of such termination by Tenant,
12
Landlord shall have no responsibility to reimburse Tenant for any cost
or expense which Tenant may have directly or indirectly incurred with
respect to this Lease or the projected occupancy of the Premises,
whether arranging for or terminating of arrangements for other space, or
any alterations to the Premises of otherwise except for reasonable legal
fees.
(e) The taking of possession of the Premises by Tenant shall
conclusively establish that the Premises and the Building were at such
time in satisfactory condition, order and repair, subject only to a
punch list which will be prepared prior to the time the Tenant takes
possession.
(f) The Tenant shall quit and surrender the Premises at the end of
the term in as good condition as received except for reasonable wear
and tear.
14. REPAIRS AND MAINTENANCE
(a) Except as specifically otherwise provided in paragraph (b) and
(c) of this paragraph, Tenant, at its sole cost and expense and
throughout the term of this Lease, shall keep and maintain the Premises
including carpeting in good order and condition, free of accumulation of
dirt and rubbish, and shall promptly make all repairs necessary to keep
and maintain such good order and condition reasonable wear and tear
excepted, whether such repairs are interior or exterior, ordinary or
extraordinary, foreseen or unforeseen. When used in this Article 14, the
term "repairs" shall include replacements and renewals when necessary.
All
13
repairs made by Tenant shall utilize materials and equipment which are
at least equal in quality and usefulness to those originally used in
constructing the Building and the Premises.
(b) Landlord, throughout the term of this Lease and at Landlord's
sole cost and expense, shall make all necessary repairs to the footings
and foundations and the structural steel columns and girders forming a
part of the Premises, providing however, that Landlord shall have no
responsibility to make any repair unless and until Landlord receives
written notice of the need for such repair. Tenant shall pay the cost of
any repairs made pursuant to this paragraph if same are occasioned by
the act, omission or negligence of Tenant, its employees or invitees.
(c) Landlord shall make all necessary repairs to the roof, walls,
exterior portions of the Premises and the Building, utility lines,
equipment and other utility facilities in the Building, which serve more
than one tenant of the Building, and to any driveways, sidewalks, curbs,
loading, parking and landscaped areas, and other exterior improvements
on the property; provided, however, that Landlord shall have no
responsibility to make any repairs unless and until Landlord received
written notice of the need for such repair. Tenant shall pay its
proportionate share of the cost of all repairs to be performed by
Landlord pursuant to this subparagraph (c) as additional rent promptly
upon being billed therefore.
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(d) Landlord shall not be liable by reason of any injury to or
interference with Tenant's business arising from the making of any
repairs, alterations, additions or improvements in or to the Premises or
the Building or to any appurtenances or equipment therein. There shall
be no abatement of rent because of such repairs, alterations, additions
or improvements, except as set forth in the "Fire or Other Casualty"
Section 24 hereof.
15. ALTERATIONS AND TRADE FIXTURES
Tenant shall have the right to make any reasonable alterations,
additions, or improvements with Landlord's prior written consent and all
alterations, additions or improvements made by either of the parties
hereto upon the Premises, except moveable and detached or detachable
office furniture, and moveable partitions, and moveable machinery and
equipment put in at Tenant's expense, shall be the property of Landlord,
and shall remain upon and be surrendered with the Premises, as part
thereof at the termination of this Lease.
Any property or fixtures which remain upon the Premises after the
expiration of the Lease shall be deemed abandoned by Tenant and Landlord
may take possession of same and dispose of in any reasonable manner
without any further liability of Landlord to Tenant. Any costs
associated with the removal of such property shall be payable by Tenant.
All labor and materials furnished by or on behalf of Tenant under
or pursuant to this Lease shall be first class,
15
no less than the caliber and quality which exists in the Premises and by
contractors approved in writing by Landlord and shall be accomplished at
times so as not to disturb the activities of other tenants. Tenant shall
not install any alterations, additions or improvements in such a manner
as to compromise the structural integrity of the Premises or any part
thereof. The labor and materials shall be installed in complete
conformity to all applicable statutes, codes, ordinances and regulations.
Landlord agrees that it will not unreasonably withhold or delay its
consent to any proposed addition, alteration or improvement. Tenant
agrees that it will submit to Landlord sealed plans and specifications
along with the name and address of the proposed contractor and all
subcontractors as part of any request made hereunder. Prior to
commencing the work, Tenant will furnish Landlord with copies of all
governmental permits and certificates establishing that its contractor
and subcontractors have adequate insurance coverages. Upon completion of
the work, Tenant will submit to Landlord as-built drawings and
certificates of inspection certifying the satisfactory completion of the
alteration, addition or improvement.
Landlord either has or is in the process of installing a master key
system. Tenant therefore agrees that under no circumstances will it
change any of the exterior locks thereby making it impossible for the
Landlord to gain access with its master key.
16
16. ACCESS TO PREMISES
Landlord, its employees and agents shall have the right to enter
the Premises at all reasonable times upon twenty-four (24) hour notice
except in the case of emergency, for the purpose of examining or
inspecting the same, showing the same to prospective purchasers,
mortgagees or tenants of the Building, and making such alterations,
repairs, improvements or additions to the Premises or to the Building as
may be necessary. If representatives of Tenant shall not be present to
open and permit entry into the Premises at any time when such entry by
Landlord is necessary or permitted hereunder, Landlord may enter by means
of a master key (or forcibly in the event of an emergency) without
liability to Tenant and without such entry constituting an eviction of
Tenant or termination of this Lease. Tenant shall not change any lock
leading into the Premises whereby Landlord would not be able to enter
with a master key.
17. ECRA COMPLIANCE
Tenant shall, at Tenant's own expense, comply with the
Environmental Cleanup Responsibility Act, N.J.S.A. 13:1K-6 et seq. and
the regulations promulgated thereunder ("ECRA"). Tenant shall, at
Tenant's own expense, make all submission to, provide all information
to, and comply with all requirements of, the Bureau of Industrial Site
Evaluation ("the Bureau") of the New Jersey Department of Environmental
Protection ("NJDEPE"). Should the Bureau or any other division of NJDEPE
determine that a cleanup plan be prepared
17
and that a cleanup be undertaken because of any spills or discharges of
hazardous substances or wastes at the Premises which occur during the
term of this Lease, then Tenant shall, at Tenant's own expense, prepare
and submit the required plans and financial assurances, and carry out
the approved plans. Tenant's obligations under this paragraph shall
arise if there is any closing, terminating or transferring of operations
of an industrial establishment at the Premises pursuant to ECRA. At no
expense to Landlord, Tenant shall promptly provide all information
requested by Landlord for preparation of non-applicability affidavits and
shall promptly sign such affidavits when requested by Landlord. Tenant
shall be required to pay for only one (1) such affidavit during the term
of this lease. Tenant shall indemnify, defend and save harmless Landlord
from all fines, suits, procedures, claims and actions of any kind
arising out of or in any way connected with any spills or discharges of
hazardous substances or wastes at the Premises which occur during the
term of this Lease; and from all fines, suites, procedures, claims and
actions of any kind arising out of Tenant's failure to provide all
information, make all submissions and take all actions required by ECRA
Bureau or any other division of NJDEPE. Tenant's obligations and
liabilities under this paragraph shall continue so long as Landlord
remains responsible for any spills or discharges of hazardous substances
or wastes at the Premises which occur during the term of this Lease.
Tenant's failure to abide by
18
the terms of this paragraph shall be restrainable by injunction.
Nothing herein is intended nor shall be it construed as imposing
any environmental liability upon the Tenant for any spill or discharge
occurring prior to the date that the Tenant takes possession nor shall
the Tenant be required to comply with the NJDEPE closure requirements in
the event that the Landlord determines to sell the Building or otherwise
engages in a reorganization of some other act which triggers the NJDEPE
closure requirements.
Landlord warrants to the best of its knowledge that there exists
no discharges of hazardous substances or waste, or the existence of
PCB's and Asbestos on the Premises and further indemnifies Tenant from
such condition if in existence before Tenant's lease commencement.
18. BUILDING SERVICES
(a) Landlord shall provide within the following standards
consistent with the operation of a first class office building in the
Philadelphia metropolitan area:
(1) Air conditioning, ventilating and heating, at comfortable
levels through the system of the Building, Monday to Friday, from 8:00AM
to 7:00PM except as modified in Paragraph 12 and on Saturdays from
8:00AM to 1:00PM, excluding holidays so as to heat the Tenant's Premises
to a minimum of 68 degrees F. between October 1 and May 1 and cooled to
a maximum of 74 degrees F. between May 1 and October 1, subject to
revision due to mandatory or voluntary
19
compliance with Federal, State or Municipal laws, orders, rulings,
statutes or guidelines from time to time in effect during the term of
this Lease, and any renewals thereof.
(2) Electric current controllable by Tenant at all hours in
such reasonable quantity as may be required by Tenant for the operation
of the lighting fixtures and electrical outlets existing upon the
Premises as of the date of the commencement of the Lease. If Tenant's
use of electricity, in Landlord's judgement reasonably exercised,
exceeds normal office use levels, Landlord may, at Tenant's expense
install a submeter in the leased space to measure the electricity
consumed and xxxx Tenant the cost thereof. In the event a meter cannot
be used, a mutually agreed upon load count may be used to determine the
amount of electricity used which exceeds normal levels.
(3) Landlord, at the inception of this Lease, will furnish
light bulbs or fluorescent tubes for each lighting fixture then
installed on the Premises at Landlord's expense and during the term of
this Lease or any renewals or extensions thereof, replace the same from
time to time as needed, the labor and material of which replacements
shall be billed to Tenant if overused or abused, otherwise the cost
shall be included in the normal operating expense budget.
(4) Maintenance of service of the public toilet rooms in the
Building.
20
(5) Cleaning of outside and inside of exterior window panes.
(6) Cleaning and maintenance of common areas in the Building.
(7) Elevator service during the normal business hours set
forth in subparagraph 1 above, except that a minimum of one (1) elevator
shall be operational at all times;
(8) Janitor service - Exhibit "D".
Tenant shall have the right but not the obligation to contract
directly for janitorial service and the cost normally included in the
operating expenses shall be adjusted accordingly to reflect only the
Tenant's pro rata share of building common areas. Landlord shall charge
only for services customarily provided in similar buildings at rates
reasonably acceptable to the industry.
Landlord does not warrant that these services shall be free from
any slowdown, interruption or stoppage pursuant to voluntary agreement
by and between Landlord and governmental bodies and regulatory agencies
or caused by the maintenance, repair, substitution, renewal, replacement
or improvement of any of the equipment involved in the furnishing of any
such services, or caused by changes of services, alterations, strikes,
lockouts, labor controversies, fuel shortages, accidents, acts of God or
the elements or any other cause beyond the reasonable control of
Landlord; and specifically no such slowdown, interruption or stoppage of
any such
21
services shall ever by construed as an eviction, actual or constructive, of
Tenant nor shall same cause any abatement of annual basic rent or
additional rent payable hereunder.
19. ASSIGNMENT AND SUBLETTING
(a) Tenant shall have no right to sublet all or any part of the
Premises without the prior written approval of Landlord, except to an
affiliate or subsidiary which shall not require Landlord's approval.
Approval by Landlord will not be unreasonably withheld. On any approved
subletting of all or any part of the Premises, (a) Landlord shall receive
from Tenant fifty percent (50%) of all profit direct or indirect derived by
Tenant from the subletting* and (b) Tenant shall remain liable under all
terms and conditions of this Lease. In the event of default by Tenant under
the terms and conditions of this Lease at such time that all or part of the
Premises are then sublet, Landlord may collect directly from the
subtenant(s) all rents becoming due to Tenant under the Sublease(s) and
apply such rents against any sums due to Landlord by Tenant under this
Lease, and Tenant hereby authorizes and directs such Subtenant(s) to make
such payment of rent to Landlord upon receipt of notice from Landlord. Such
collection of rent by Landlord shall not constitute a novation or a release
of Tenant from its liability under the terms and conditions or this Lease.
(b) Tenant shall have no right to make an assignment of this Lease
without the prior written approval of Landlord. Approval by Landlord will
not be unreasonably
* excluding the sale of furniture, fixtures and equipment in the premises
22
withheld. On any approved assignment of this Lease, (a) Landlord shall have
the right to approve the assignee and the assignment documents (the
assignee must agree therein to assume all terms, conditions, and
obligations of the Lease), (b) Landlord shall receive from Tenant all
profit derived by Tenant form the assignment, and (c) Tenant shall be
relieved of all subsequent liability under the terms and conditions of this
Lease upon the approval and completion of the assignment.
(c) The written approval of Landlord to one or more sublettings or
assignments shall not operate as a waiver of Landlord's right to approve
any further sublettings and assignments.
(d) Tenant shall not (a) mortgage, pledge or otherwise encumber its
interest in this Lease or (b) grant any license, concession or other right
of occupancy of any portion of the Premises, without the prior written
consent of Landlord.
(e) As a condition precedent to Tenant's right to sublease the
Premises or to assign this Lease, Tenant shall, at Tenant's own expense,
comply with ECRA.
(f) Tenant shall promptly furnish to Landlord true and complete
copies of all documents, submissions and correspondence provided by Tenant
to the Bureau and all documents, reports, directives and correspondence
provided by the Bureau to Tenant. Tenant shall also promptly furnish to
Landlord true and complete copies of all sampling and
23
test results obtained from samples and tests taken at and around the
Premises.
(g) As a condition precedent to Tenant's right to sublease the
Premises or to assign the Lease, Tenant shall have received from the Bureau
either (i) a non-qualified approval of Tenant's negative declaration or
(ii) a non-applicability letter, for which Tenant shall promptly apply
pursuant to ECRA. If this condition shall not be satisfied, then Landlord
shall have the right to withhold consent to sublease or assignment.
(h) Nothing herein to the contrary withstanding, Landlord's written
consent shall not be required for any sublease or assignment of this Lease
to any other entity which controls or is controlled by Tenant provided that
Tenant shall continue to remain liable in such instance. Tenant shall be
required to give Landlord thirty (30) days written notice in advance of any
such subleasing or assignment.
(i) Tenant agrees that any subleasing or assignment to any person,
firm, partnership or corporation which is not an actual user of the
Premises is absolutely prohibited and nothing herein shall require Landlord
to consent to any such subleasing or assignment.
20. MECHANICS' LIENS
If any mechanics' or other lien shall be filed against the Premises or the
Building for labor or material furnished or to be furnished at the request
of the Tenant, then Tenant
24
shall at its expense cause such lien to be discharged of record by payment,
bond or otherwise, within thirty (30) days after Tenant receives written
notice. If Tenant shall fail to cause such lien to be discharged of record
within such thirty (30) day period, Landlord may cause such lien to be
discharged by payment, bond or otherwise, without investigation as to the
validity thereof or as to any offsets or defenses thereto. The cost to
Landlord for removal of such lien will be charged to Tenant as additional
rent and payable on the first day of the month next following the payment
by Landlord. Tenant shall indemnify and hold Landlord harmless against any
and all claims, costs, damages, liabilities and expenses (including
reasonable attorney fees) which may be brought or imposed against or
incurred by Landlord by reason of any such lien or its discharge.
21. INDEMNIFICATION AND LIABILITY INSURANCE
(a) Tenant shall indemnify hold Landlord harmless against and from
liability and claims of any kind for liabilities, losses, damages, suits,
actions, fines, penalties, claims or demands of any kind and asserted by or
on behalf of any person, entity, independent contractor or governmental
authority, arising out of or in any way connected with, (i) Tenant's use
and occupancy of the Premises or any work, activity or other things allowed
or suffered by Tenant to be done in, on or about the Premises; (ii) any
breach or default by Tenant of any of Tenant's
25
obligations under this Lease; (iii) any negligent or otherwise tortious act
or omission of Tenant, its agents, employees, invitees or contractors; or
(iv) any failure by Tenant to comply with any statutes, ordinances,
regulations, guidelines, or orders of any governmental authority. Tenant
shall, at Tenant's expense, defend Landlord in any action or proceeding
arising from any such claim and shall indemnify Landlord against all costs,
attorney fees,
(b) During the term of this Lease or any renewal thereof, Tenant
shall obtain and maintain and promptly pay all premiums for comprehensive
general liability insurance with respect to the demised Premises, the
Buildings and land on which it is situated, covering at least the hazards
of "premises operations" and "independent contractors" in the amount of not
less than $1,000,000.00 with respect to injuries to or death or any one
person and in the amount of not less than $1,000,000.00 with respect to
injuries to or death of more than one person in any one occurrence and in
the amount of not less than $100,000.00 per occurrence with respect to
damaged property, such coverage to also include a contractual liability
endorsement with such insurance company or companies as shall be
satisfactory to Landlord from time to time, and all such policies and
renewals thereof shall name the Landlord as an additional insured. On or
before the commencement date of the term of this Lease, and thereafter not
less than fifteen (15) days prior to the expiration dates of said policy or
policies, Tenant
26
shall provide copies of policies or certificates of insurance evidencing
coverage required by this Lease.
(c) All Tenant's policies of insurance shall provide (i) that no
material change or cancellation of said policies shall be made without
thirty (30) days prior written notice to Landlord and (ii), (iii) that the
insurance company issuing the same shall have no right of subrogation
against the Landlord, and (iv) that as to the interest of Landlord, the
insurance afforded by the policy shall not be invalidated by any breach or
violation by Tenant of any of the warranties, declarations or conditions in
the policy.
(d) Landlord shall insure the Building of which the demised Premises
are a part and Tenant shall insure the fixtures, equipment, machinery,
tenant improvement and betterments and contents against loss or damage by
fire and such other risks as may be included in the broadest form of
extended coverage insurance including sprinkler leakage and rent insurance
where applicable from time to time available. Tenant shall not engage in
any activity or store any product or material in the demised Premises which
will either cause an increase in the insurance on the entire Building or
which will make the Building uninsurable.
27
22. WAIVER OF SUBROGATION
Tenant and Landlord, respectively, hereby release each other from any
and all liability or responsibility to the other for anyone claiming by,
through or under it or them by way of subrogation or otherwise for any loss
or damage to property covered by any insurance then in force, even if such
loss or damage 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 any loss or damage occurring during such time as the policy
or policies of insurance covering said loss shall contain a clause or
endorsement to the effect that this release shall not adversely affect or
impair such insurance or prejudice the right of the insured to recover
thereunder.
23. WAIVER OF CLAIMS
Except as otherwise in this Lease provided, Landlord and Landlord's
agents, servants and employees shall not be liable for, and Tenant hereby
releases and relieves Landlord, its agents, servants, employees from, all
liability in connection with any and all loss of life, personal injury,
damage to or loss of property, or loss or interruption of business
occurring to Tenant, its agents, servants, employees, invitees, licensees,
visitors, or any other person, firm, corporation or entity, in or about or
arising out of the Premises, from, without limitation, (a) any fire, other
casualty, accident, occurrence or condition
28
in or upon the Premises or the Building; (b) any defect in or failure of
(i) plumbing, sprinkling, electrical, heating or air conditioning systems
or equipment, telecommunication conduit, lines and equipment or any other
systems and equipment of the Premises and the Building, and (ii) the
elevators, stairways, railings or walkways of the Building; (c) any steam,
gas, oil, water, rain or snow that may leak into, issue or flow from any
part of the Premises or the Building from the drains, pipes, roof, or
plumbing, sewer or other installation of same, or from any other place or
quarter; (d) the breaking or disrepair of any installations and equipment;
(e) the falling of any fixture or any wall or ceiling materials; (f)
damaged or broken interior or exterior glass; (g) latent or patent
defects; (h) the exercise of any rights by Landlord under the terms and
conditions of this Lease; (i) any acts or omissions of the other tenants
or occupants of the Building or of nearby buildings; (j) any acts or
omissions of other persons; (k) any acts or omissions of Landlord, its
agents, servants and employees, except those involving gross negligence;
and (l) theft, acts of God, public enemy, injunction, riot, strike,
insurrection, war, court order or any order of any governmental authorities
having jurisdiction over the Premises.
24. FIRE OR OTHER CASUALTY
(a) If the Premises are damaged by fire or other casualty, the damages
shall be repaired by and at the
29
expense of Landlord and the rent until such repairs shall be made shall be
apportioned from the date of such fire or other casualty according to the
part of the Premises which is usable by Tenant. Landlord agrees to repair
such damage within a reasonable period of time after receipt from Tenant of
written notice of such damage, except that Tenant may agree to repair and
replace its own furniture, furnishings, equipment and any alteration or
improvement installed by Tenant. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting from such damage or the repair thereof.
(b) If the Premises, in the opinion of Landlord's licensed architect
or engineer, are (i) rendered substantially untenantable by reason of such
fire or other casualty, or (ii) twenty percent (20%) or more of the
Premises is damaged by said fire or other casualty and less than six (6)
months would remain on the Lease term or any renewal thereof upon
completion of the repairs or reconstruction, or (iii) fifty percent (50%)
or more of the Premises is damaged by said fire or other casualty, then
Landlord shall have the right to be exercised by notice in writing
delivered to the Tenant within thirty (30) days from and after said
occurrence, to elect to terminate this Lease, and, in such event, this
Lease and the tenancy hereby created shall cease as of the date of said
occurrence, the rent to be adjusted as of said date.
30
(c) If the Building, in the sole opinion of Landlord, shall be
substantially damaged by fire or other casualty, regardless of whether or
not the Premises were damaged by such occurrence, Landlord shall have the
right, to be exercised by notice in writing delivered to the Tenant within
thirty (30) days from and after said occurrence, to terminate this Lease;
and in such event, this Lease and the tenancy hereby created shall cease as
of the date of said termination unless terminated as of the date of said
occurrence in accordance with Paragraph 24(b) hereof, the rent to be
adjusted as of the date of such termination.
25. SUBORDINATION AND NON-DISTURBANCE
This Lease is subject and subordinate to any mortgage now or hereafter
affecting or covering the Premises. Notwithstanding the aforesaid
subordination, in the event of the foreclosure of any such mortgage, (a)
this Lease shall not terminate, and (b) the peaceful possession of Tenant
shall not be disturbed, provided that Tenant is not in default under any of
the terms and conditions of this Lease. Tenant agrees to attorn to and to
recognize the mortgagee or the purchaser at foreclosure sale as Tenant's
landlord for the balance of the term of this Lease. Tenant hereby agrees,
however, that such mortgage or the purchaser at foreclosure sale shall not
be (i) liable for any act or omission of Landlord and (ii) subject to any
offsets or defenses which Tenant might have against Landlord; (iii) bound
by any amendment or modification of this Lease made
31
without its consent. The aforesaid subordination, non-disturbance and
attornment provisions shall be self-operative; however, Tenant agrees to
promptly execute any other agreement submitted by Landlord in confirmation
or acknowledgement of same. Tenant hereby authorizes and empowers Landlord
as its attorney-in-fact to execute an instrument in confirmation or
acknowledgement of the provisions of this paragraph in the event that
Tenant fails to execute any document within ten (10) days of its
presentation.
26. CONDEMNATION
(a) If the whole of the Premises shall be condemned or taken either
permanently or temporarily for any public or quasi-public use of purpose,
under any statute or by right of eminent domain, or by private purchase in
lieu thereof, then in that event the term of this Lease shall cease and
terminate from the date when possession is taken thereunder pursuant to
such proceeding or purchase. The rent shall be adjusted as of the time of
such termination and any rent paid for a period thereafter shall be
refunded. In the event more than fifteen percent (15%) of the Building
containing same shall be so taken (or if more than fifty percent (50%) of
the parking areas are taken and not promptly replaced with contiguous
parking areas) then Landlord may elect to terminate this Lease from the
date when possession is taken thereunder pursuant to such proceeding or
purchase or, upon mutual agreement of the
32
parties, Landlord shall repair and restore, at its own expense, the portion
not taken and thereafter the rent shall be reduced proportionately to the
portion of the Premises taken.
(b) In the event of any total or partial taking of the Premises or
the Building, Landlord shall be entitled to receive the entire award in
such proceeding of the Building and land and Tenant shall make a separate
application for Tenant's fixtures, equipment and moving expenses under the
then applicable New Jersey eminent domain code.
(c) If the Premises or the Building are declared unsafe by any duly
constituted authority having the power to make such determination, or are
the subject of a violation notice or notice requiring repair or
reconstruction which cannot be repaired by Landlord at its sole cost and
expense within thirty (30) days, then Landlord at its option, may terminate
this Lease, unless Tenant chooses to make such repair at it's own cost, and
in such event, Tenant shall immediately surrender said Premises to Landlord
and thereupon this Lease shall terminate and the rent shall be apportioned
as of the date of such termination.
27. ESTOPPEL CERTIFICATE
Tenant shall, at any time and from time to time, within ten (10) days
after written request by Landlord, execute, acknowledge and deliver to
Landlord, or its mortgagee or trustee, a statement in writing duly executed
by Tenant (i) certifying that this Lease is in full force and effect (if
33
that be the case) without modification or amendment (or, if there have been
any modifications or amendments, that this Lease is in full force and
effect as modified and amended and setting forth the modifications or
amendments), (ii) certifying the dates to which annual basic rental and
Additional Rent have been paid, and (iii) either certifying that to the
knowledge of the Tenant no default exists under this Lease or specifying
each such default; it being the intention and agreement of Landlord and
Tenant that any such statement by Tenant may be relied upon by a
prospective purchaser or a prospective or current mortgagee of the
Building, or by others, in any matter affecting the Premises.
28. DEFAULT
The occurrence of any of the following shall constitute a material
default and breach of this Lease by Tenant:
(a) Failure of Tenant to accept possession of the Premises within
thirty (30) days after the date of issuance of a certificate of occupancy;
(b) The vacation or abandonment of the Premises by Tenant, which
shall be defined as Tenant's non-use of the premises for a contiguous
period of greater than fourteen (14) calendar days;
(c) A failure by Tenant to pay, when due or no later than the tenth
(10th) day of the month, any installment of rent hereunder or any
Additional Rent or any such other sum herein required to be paid by Tenant
where such failure
34
continues for thirty (30) days after written notice thereof from Landlord
to Tenant. No default shall exist until ten (10) days after Landlord has
sent to Tenant a written notice that the rent has not been received except
that Landlord shall not be required to send Tenant notice of nonreceipt of
rental more than three (3) times during any twelve (12) consecutive months;
(d) A failure by Tenant to observe and perform any other provisions
or covenants of this Lease to be observed or performed by Tenant, where
such failure continues for thirty (30) days after written notice thereof
from Landlord to Tenant provided, however, that if the nature of the
default is such that the same cannot reasonably be cured within such thirty
(30) day period, Tenant shall not be deemed to be in default if Tenant
shall within such period commence such cure and thereafter diligently
prosecute the same to completion;
(e) The filing of a petition by or against Tenant for adjudication as
a bankrupt or insolvent or for its reorganization or for the appointment
pursuant to any local, state or federal bankruptcy or insolvency laws of a
receiver or trustee of Tenant's property; or an assignment by Tenant for
the benefit of creditors; or the taking of possession of the property of
Tenant by any local, state or federal governmental officer or agency or
court appointed official for the dissolution or liquidation of Tenant or
for the operating, either temporary or permanent, of Tenant's
35
business; provided, however, that if any such action is commenced against
Tenant the same shall not constitute a default if Tenant causes the same to
be dismissed within sixty (60) days after the filing of same.
29. REMEDIES
Upon the occurrence of any such default set forth above:
(a) Landlord may (but shall not be required to) perform for the
account of Tenant any such default of Tenant and immediately recover as
Additional Rent any expenditure made and the amount of any obligations
incurred in connection therewith, plus interest at the rate of two percent
(2%) per annum over the Midlantic National Bank prime rate from the date
of such expenditure;
(b) Landlord may accelerate all rent and additional rent due for the
balance of the term of this Lease and declare the same to be immediately
due and payable; in the case of bankruptcy, insolvent by law or
reorganization, Tenant agrees to vacate premises and accelerate rent for a
period of two (2) months. This Lease and the unexpired term hereof shall
cease and expire.
(c) In determining the amount of any future payments due Landlord due
to increase as an operating cost and/or for costs of living increases,
Landlord may make such determinations based upon the amount of increases in
operating costs and costs of living increase for the full year immediately
prior to such default;
36
(d) Landlord, at its option, may serve notice upon Tenant that this
Lease and the then unexpired term hereof and all renewal options shall
cease and expire and become absolutely void on the date specified in such
notice, to be not less than five (5) days after the date of such notice
without any right on the part of the Tenant to save the forfeiture of
payment of any sum due or by the performance of any terms, provision,
covenant, agreement or condition broken; and, thereupon and at the
expiration of the time limit in such notice, this Lease and the term
hereof granted, as well as the right, title and interest of the Tenant
hereunder, shall wholly cease and expire and become void in the same manner
and with the same force and effect (except as to Tenant's liability) as if
the date fixed in such notice were the date herein granted for expiration
of the term of this Lease. Thereupon, Tenant shall immediately quit and
surrender to Landlord the Premises, and Landlord may enter into and
repossess the Premises by summary proceedings, detainer, ejectment or
otherwise and remove all occupants thereof and, at Landlord's option, any
property thereon without being liable to indictment, prosecution or damages
therefor. No such expiration or termination of this Lease shall relieve
Tenant of its liability and obligations under this Lease, whether or not the
Premises shall be relet;
(e) Landlord may, at any time after the occurrence of any event of
default, re-enter and repossesses the Premises
37
and any part thereof and attempt in its own name, as agent for Tenant if
this Lease not be terminated or in its own behalf if this Lease be
terminated, to relet all or any part of such Premises for and upon such
terms and to such persons, firms or corporations and for such period or
periods as Landlord, in its sole discretion, shall determine, including the
term beyond the termination of this Lease; and Landlord shall not be
required to accept any tenant offered by Tenant or observe any instruction
given by Tenant about such reletting or do any act or exercise any care or
diligence with respect to such reletting or to the mitigation of damages.
For the purpose of such reletting, Landlord may decorate or make repairs,
changes, alterations or additions in or to the Premises to the extent
deemed by Landlord desirable or convenient; and the cost of such
decoration, repairs, changes, alterations or additions shall be charged to
and be payable by Tenant as Additional Rent hereunder, as well as any
reasonable brokerage and legal fees expended by Landlord; and any sums
collected by Landlord from any new tenant obtained on account of the Tenant
shall be credited against the balance of the rent due hereunder as
aforesaid. Tenant shall pay to Landlord monthly, on the days when the rent
would have been payable under this Lease, the amount due hereunder less the
amount obtained by Landlord from such new tenant;
(f) Landlord shall have the right of injunction, in the event of a
breach by Tenant of any of the agreements,
38
conditions, covenants or terms hereof, including the actual vacation of the
Premises at the end of the term, to restrain the same and the right to
invoke any remedy allowed by law or in equity, whether or not other
remedies, indemnity or reimbursements are herein provided. Landlord shall
have the right of distraint upon Tenant's goods pursuant to N.J.S.A. 2A:33-1
et seq. upon adequate notice consistent with due process. The right and
remedies given to Landlord in this Lease are distinct, separate and
cumulative remedies; and no one of them, whether or not exercised by
Landlord, shall be deemed to be in exclusion of any of the others.
(g) In the event Tenant fails to vacate the premises upon the
expiration of this or any extended term hereunder or upon termination of
this Lease, Tenant shall pay to the Landlord one hundred fifty percent
(150%) the monthly rental payment for the month in which this Lease expired
or terminated and for each succeeding month as liquidated damages.
This lease may only be extended beyond the expiration date by the
parties executing a new lease on Landlord's then current lease form or by
an extension agreement signed by both parties making specific reference to
this Lease. No proposals, offers, correspondence or the like shall be
legally binding upon Landlord until and unless the terms are incorporated
in either a new lease or a formal amendment to this Lease as provided in
paragraph 40.
39
(h) In addition to all remedies provided herein or by law, Tenant
shall pay to Landlord reasonable attorneys fees and court costs incurred as
a result of such breach.
30. REQUIREMENT OF STRICT PERFORMANCE
The failure or delay on the part of either party to enforce or
exercise at any time any of the provisions, rights or remedies in the Lease
shall in no way be construed to be a waiver thereof, nor in any way to
affect the validity of this Lease or any part hereof, or the right of the
party to thereafter enforce each and every such provision, right or remedy.
No waiver of any breach of this Lease shall be held to be a waiver of any
other of subsequent breach. The receipt by Landlord of rent at a time when
the rent is in default under this Lease shall not be construed as a waiver
of such default. The receipt by Landlord of a lesser amount than the rent
due shall not be construed to be other than a payment on account of the
rent then due, nor shall any statement on Tenant's check or any letter
accompanying Tenant's check be deemed an accord and satisfaction, and
Landlord may accept such payment without prejudice to Landlord's right to
recover the balance of the rent due or to pursue any other remedies
provided in this Lease. No act or thing done by Landlord or Landlord's
agents or employees during the term of this Lease shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such
a surrender shall be valid unless in writing and signed by Landlord.
40
31. RELOCATION OF TENANT - DELETED
32. LANDLORD'S OBLIGATIONS
Landlord's obligations hereunder shall be binding upon Landlord only
for the period of time that Landlord is in ownership of the Building;
and, upon termination of that ownership, Tenant, except as to any
obligations which have then matured; shall look solely to Landlord's
successor in interest in the Building for the satisfaction of each and
every obligation of Landlord hereunder.
33. LANDLORD'S LIABILITY
Landlord shall have no liability under any of the terms, conditions
or covenants of this Lease and Tenant shall look solely to the equity of
the Landlord in the Building of which the Premises form a part for the
satisfaction of any claim, remedy or cause of action accruing to Tenant
as a result of the breach of any action of this Lease by Landlord.
34. SUCCESSORS
The respective rights and obligations provided in this Lease shall
bind and inure to the benefit to the parties hereto, their legal
representatives, heirs, successors and assigns; provided, however, that
no rights shall inure to the benefit of any successors of Tenant unless
Landlord's written consent for the transfer to such successor has first
been obtained as provided in paragraph 19 hereof.
41
35. GOVERNING LAW
This Lease shall be construed, governed and enforced in accordance
with the laws of the state in which the Premises are located.
36. SEVERABILITY
If any provisions of this Lease shall be held to be invalid, void or
unenforceable, the remaining provisions hereof shall in no way be
affected or impaired and such remaining provisions shall remain in full
force and effect.
37. CAPTIONS
Marginal captions, titles or exhibits and riders and the table of
contents in this Lease are for convenience and reference only, and are in
no way to be construed as defining, limiting or modifying the scope of
intent of the various provisions of this Lease.
38. GENDER
As used in this Lease, the word "person" shall mean and include,
where appropriate, an individual, corporation, partnership or other
entity; the plural shall be substituted for the singular, and the
singular for the plural, where appropriate; and the words of any gender
shall mean to include any other gender.
39. WARRANTIES OF TENANT
Tenant warrants to Landlord that Tenant dealt and negotiated solely
and only with Landlord for this Lease and with no other broker, firm,
company or person, other than XXXXXXX-XXXXX COMPANY. Tenant further
warrants that it is a
42
corporation it is in good standing organized and existing under the laws
of the State of California, that all corporate action necessary to
authorize the execution of this Lease has been taken by the Board of
Directors and that the Regional Manager, XXXXXX X. CAST, has been
authorized to execute and attest respectively this Lease.
Tenant for good and valuable consideration shall indemnify and hold
Landlord harmless from and against any and all claims, suits,
proceedings, damages, obligations, liabilities, counsel fees, costs,
losses, expenses, orders and judgements imposed upon, incurred by or
asserted against Landlord by reason of the falsity or error of this
aforesaid warranty.
40. ENTIRE AGREEMENT
This Lease, including the Exhibits and any Riders hereto, contains
all the agreements, conditions, understandings, representations and
warranties made between the parties hereto with respect to the subject
matter hereof, and may not be modified orally or in any manner other than
by an agreement in writing signed by both parties hereto or their
respective successors in interest. Without in any way limiting the
generality of the foregoing, this Lease can only be extended pursuant to
the due exercise of an option (if any) contained herein and/or otherwise
formal agreement signed by both Landlord and Tenant specifically
extending the terms. No negotiations, correspondence by Landlord or
offers to extend the terms shall be deemed an
43
extension of the termination date for any period whatsoever without such
formal agreement.
41. WAIVER OF TRIAL BY JURY
Landlord and Tenant each hereby waive the right to a trial by jury
in the event any claim is made concerning the construction,
interpretation or enforcement of this Lease.
42. CONSENT OF THE PARTIES
Wherever the consent of either party is required, it shall be deemed
to be written consent and shall not be unreasonably withheld or delayed.
43. ADDITIONAL SCHEDULES
The following additional schedules are attached hereto and made a
part of this Lease:
Exhibit "A" - Plan
Exhibit "B" - Rules and Regulations
Exhibit "C" - Tenant Work Letter
Exhibit "D" - Janitorial Specifications
Exhibit "E" - Renewal Option
Exhibit "F" - Fees
Exhibit "G" - Right of First Offer
Exhibit "H" - Amended Agreement
44. BINDING EFFECT
This Lease shall be effective only when it is signed by both the
Landlord and Tenant and a fully executed copy delivered to the Tenant.
The Tenant's submission of a signed Lease for review by the Landlord does
not give the Tenant any interest, right or option to the Premises.
44
45. CESSATION OF EXISTING LEASE
Landlord and Tenant agree that, upon the Commencement Date (as
defined and, potentially, amended in Paragraph 7) the existing Lease
dated July 13, 1990 (and subsequently amended by various and numerous
Lease Amendments) between the Landlord's predecessor and Tenant shall
cease, and Tenant shall be entitled to a refund of any prepaid rent, as
well as a return of Tenant's deposit monies paid to Landlord's
predecessor pursuant to the July 13, 1990 Lease.
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease and have
initialed the Exhibits and Riders hereto in seven (7) counterparts the day
and year first above written.
TENANT: xxx.xxx
BY Xxxxxx X. Cast
-------------------------------
Title Regional Manager
----------------------------
LANDLORD: LAUREL LARCHMONT OFFICE INC.
BY Xxxxx X. Xxxxx
-------------------------------
Title Vice President
----------------------------
EXHIBIT "A"
[FLOOR PLANS]
(WEST XXXX-XXXXX XXXXX)
(XXXX XXXX-XXXXX XXXXX)
00000 XXXXXXXXX XXXXX
LAUREL CORPORATE CENTER
MOUNT LAUREL, NEW JERSEY
[Illegible]
EXHIBIT "A"
FIRST FLOOR PLAN (EAST)
EXHIBIT "A"
SECOND FLOOR PLAN (EAST)
EXHIBIT "A"
SECOND FLOOR PLAN (WEST)
EXHIBIT "B"
RULES AND REGULATIONS
1. No part or the whole of the sidewalks, plaza areas, entrances, passages,
courts, stairways, corridors or halls of the building or the real property
shall be obstructed or encumbered by any tenant or used for any purpose other
than ingress and egress to and from the space demised to such Tenant.
2. No awnings or other projections shall be attached to the outside walls or
windows of the building. No curtains, blinds, shades, or screens shall be
attached to or hung in, or used in connection with, any window or door of the
space demised to any tenant other than those specified or supplied by
landlord, removal of same at any time will be prohibited.
3. No sign, advertisement, object, notice or other lettering shall be
exhibited, inscribed, painted, or affixed on any part of the outside or
inside of tenant's premises, so as to be visable from the exterior without
prior written consent of landlord.
4. No showcases or other articles shall be put in front of or affixed to any
part of the exterior of the building.
5. The water and wash closets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances (including, without limitation,
coffee grounds) shall be thrown therein. All repairs necessitated by damage
resulting from any misuse of the plumbing fixtures shall be borne by the
tenant.
6. No tenant, nor any of its agents, employees, visitors, licensees,
contractors, or suppliers shall at any time bring or keep upon the leased
premises any flammable, combustible or explosive fluid, chemical or substance
without landlord's prior approval, and tenant shall obey fire regulations and
procedures governing said leased space and building.
7. No tenant shall xxxx, paper, paint, bore into, make any alterations or
additions to, or in any way deface any part, including equipment and
fixtures, of the leased space
or the building of which it forms a part, without the prior written consent
of landlord. No wires shall be installed except in conduits, ducts or outlets
established for that purpose, unless prior written consent of landlord has
been obtained. No tenant shall lay carpeting, so that the same shall come in
direct contact with the floor of the leased space, and, if tenant desires to
install carpeting, an underlayment shall be first laid, without the use of
cement or other similar adhesive material. If any tenant desires to install
any floor covering other than carpeting, subject to the prior written consent
of landlord, such floor covering shall be installed in accordance with the
manufacturer's specifications.
8. No cooking shall be done or permitted by any tenant in the leased space,
without the prior written consent of landlord, provided, however, that the
heating, refrigeration and preparing of beverages and light snacks for
employees shall be permitted if there are appropriate facilities and
equipment for such purposes. No tenant shall cause to permit any unusual or
objectionable odors to be produced upon or emanate from the leased space.
9. Neither the whole nor any part of the space demised to any tenant shall
be used for manufacturing, without prior written approval from the landlord,
or for the sale at auction of merchandise, goods, or property.
10. No tenant shall make or permit to be made, any unseemly or disturbing
noises or disturb or interfere with other tenants or occupants of the
building or neighboring buildings or premises.
11. All moving of safes, freight, furniture or bulky matter of any
description to and from the leased space, shall only take place within the
confines of specified passageways or stairs, and during the hours designated
by landlord. There shall not be used in any space, or in the public walkways
of the building, either by the tenant or by jobbers or others, in the
delivery or receipt of merchandise, and hand trucks, except those equipped
with rubber tires.
12. No tenant shall use or occupy or permit any portion of the space demised
to such tenant to be used or occupied as an employment bureau or for the
storage, manufacture or sale of liquor, narcotics or illegal drugs.
13. Landlord shall have the right to prohibit any advertising by any tenant
which in landlord's opinion, tends to impair the reputation of the building,
and upon notice from landlord, such tenant shall refrain from or discontinue
such advertising.
14. No space demised to any tenant shall be used, or permitted to be used,
for lodging or sleeping or for any immoral or illegal purposes.
15. The requirements of tenants will be attended to only upon application at
the office of landlord. Building employees shall not be required to perform,
and shall not be requested by any tenant to perform, any work outside of
their regular duties, unless under specific instructions from the office of
landlord or the building management.
16. Canvassing, soliciting, and peddling in the buildings are prohibited,
and each tenant shall cooperate to prevent the same.
17. No animals of any kind shall be brought into or kept about the building
by any tenant.
18. No tenant shall install or permit or allow installation of a television,
radio, or two-way radio antenna, or any other similar antenna, on the roof,
in the windows or upon the exterior of the leased space of the building,
without the prior written consent of landlord.
19. No tenant shall tie in, or permit other to tie into the water supply on
the premises without prior written consent of the building management.
20. No tenant shall remove, alter or replace the building standard ceiling
light diffusers in any portion of the leased space without the prior written
consent of landlord.
21. Except for purposes of emergency, notices, posters, or advertising media
will not be permitted to be affixed on the exterior of the building.
22. Business machines and mechanical equipment belonging to tenant which
cause noise or vibration that may be transmitted to the structure of the
building or to any space therein to such a degree to be objectionable to
landlord or
to any tenant in the building shall be installed and maintained by tenant, at
tenant's expense, on vibration eliminators or other devices sufficient to
eliminate such noise and vibration.
23. Tenant shall immediately notify the building management of any serious
breakage, or fire or disorder, which comes to its attention in its premises
or any of the common areas of the building.
24. Tenant shall apply, at tenant's costs, such reasonable pest
extermination measures as tenant deems reasonably necessary.
25. Tenant shall not burn any trash or garbage of any kind in or about the
demised premises.
26. Tenant shall not permit the use or placement of door mats or the like on
the exterior of any entrance door to the demised premises.
27. For purposes of these Rules and Regulations, the "building management"
shall mean the duly designated representative of landlord to manage the
building.
28. Landlord reserves the right to recind, amend, alter or waive any of the
foregoing Rules and Regulations at any time when, in its judgement, it deems
it necessary, desirable or proper for its best interest and for the best
interest of the tenants, and no such recission, amendment, alteration or
waiver of any rule or regulation in favor of one tenant shall operate as an
alteration or waiver in favor of any other tenant. Landlord shall not be
responsible to any tenant for the non-observance or violation by any other
tenant of any of these Rules and Regulations at any time.
ACCEPTED BY: /s/
---------------------------
ACCEPTED BY: /s/ Xxxxx X. Xxxxx
---------------------------
EXHIBIT "C"
TENANT WORK LETTER
Tenant acknowledges and agrees that the entire cost and expense of tenant
improvement work to be performed for the leased premises is to be at the
Tenant's sole cost and expense, except that the Landlord will contribute to
such expense the amount of $25 per square foot of the leased premises.
Lessor shall be responsible for preparing all necessary construction drawings
based on the floor plans submitted by the Lessee. Lessee shall have fourteen
(14) days in which to review and approve final construction drawings prepared
by lessor.
The lessor shall be responsible for having work shown on the final
construction plans completed in good and workmanlike manner as expeditiously
as possible and shall give Lessee an allowance against the cost to construct
said improvements shown on the final construction plans of up to $25.00 per
rentable square foot for Lessee improvements. In the event the cost to
construct said Lessee improvements exceeds $25.00 per rentable square foot,
Lessee shall be responsible for the payment of all costs in excess of said
$25.00 per rentable square foot allowance within fifteen (15) days of
submission of an invoice from Lessor.
In the event, the cost to construct Lessee improvements is less than $25.00
per rentable square foot, Lessor shall apply the remaining value of the
construction allowance as a credit against Base Rent due from Lessee. Such
credit shall be applied in twelve (12) equal monthly installments beginning
as of the Commencement Date.
The plans and specifications for these improvements shall be mutually agreed
to by both Landlord and Tenant. Landlord will not unreasonably withhold its'
approval.
Landlord is responsible to provide renovations which are required by the
Americans with Disabilities Act which are not part of the above improvements,
at no additional cost to Tenant.
Tenant requires the Landlord employ the design and construction services
of Xxxxxxxxx Services, Inc. for the purpose of continuity and expediency since
time is of the essence.
If the cost of such service, in the reasonable opinion of Tenant, is not in
keeping with industry standards in the region, then Tenant shall have the
right to contract directly for the services. If Tenant chooses to contract
directly for the services, then Tenant shall have no claim to penalties or
termination defined in Paragraph 13(d) unless such delay is caused directly by
Landlord.
EXHIBIT "D"
JANITORIAL SPECIFICATIONS
A. NIGHTLY -- (Monday through Friday)
1. OFFICES AND COMMON AREAS
a. Empty waste receptacles and replace liner as needed.
b. Boxes of trash will also be removed if clearly labeled
"trash".
c. Empty and wipe all ash trays.
d. Vacuum all carpeted areas.
e. Dust mop all tiled floors, baseboards and damp mop any
spillages.
f. Dust and/or damp wipe clean the following:
Desks (if cleared), chairs, file cabinets, tables,
lamps, pictures and frames, window xxxxx, doors,
push and switch plates and telephones.
g. Wash clean all water coolers and/or fountains.
h. Clean all glazed entrance and elevator doors.
i. Spot clean carpeting.
j. Sweep stair towers.
2. BATHROOMS
a. Empty and clean waste receptacles (replace liner if
applicable) and wash dispensers.
b. Sweep and wet mop all floors using disinfectant.
c. Spot clean all tiled walls and partitions.
d. Scour, wash and disinfect all basins, bowls and urinals.
e. Wash and polish all mirrors, shelves and bright work
including plumbing fixtures.
f. Refill all paper products and soap dispensers.
B. WEEKLY
1. OFFICES AND COMMON AREAS.
a. Render high dusting of all pictures, frames, doors, partitions
pipes, louvers, etc.
2. BATHROOMS.
a. Spray buff tiled floors.
C. MONTHLY
1. OFFICES AND COMMON AREAS.
a. Clean all interior partition glass, diffusers and grills.
2. BATHROOMS.
a. Machine wash and refinish floors.
D. EVERY THREE MONTHS
1. OFFICES AND COMMON AREAS.
a. Strip and refinish all tiled flooring as appropriate.
2. STAIR TOWERS.
a. Damp mop all floors.
E. EVERY SIX MONTHS
1. WINDOWS.
a. Wash clean all interior and exterior windows.
F. ANNUALLY
1. COMMON AREAS AND TENANT SPACES.
a. Carpet cleaning.
Revised: 11/12/93
EXHIBIT "E"
RENEWAL OPTION
(A) So long as Tenant is not in default under this Lease, Landlord grants to
Tenant the option to extend the term of this Lease from the date of
termination of the initial term for an additional term of five (5) years (the
"First Renewal Term") upon all of the terms, conditions and provisions set
forth in this Lease, except that the yearly Minimum Rent payable under
Section 8(A) of this Lease for each Lease Year (hereinafter defined) of the
Renewal Term shall be as set forth below in this Exhibit "E". To exercise the
option to renew, Tenant shall give Landlord written notice of such exercise
not less than one hundred eighty (180) days prior to the expiration of the
initial term.
(B) The Minimum Rent payable under Section 8(A) of this Lease for the Lease
Year of the Renewal Term shall be calculated on a fixed rental rate of $14.00
per square foot, $801,794.00 per year, $66,816.17 per month.
(i) The term "Lease Year" as used in this Exhibit "E" shall
mean the twelve (12) calendar months commencing with the first day
of the first full calendar month of the initial term or the Renewal
Term of this Lease, as applicable and the succeeding twelve (12)
calendar month periods.
Upon execution of the Renewal Option, Landlord shall provide Tenant
within a reasonable time, and at no additional cost to the Tenant,
refurbishment of the Premises including repainting all painted
surfaces and new carpet installation in a quality equivalent to the
initial carpet.
LANDLORD: TENANT:
BY /s/ Xxxxx X. Xxxxx BY /s/
---------------------------------- -----------------------------------
Xxxxx X. Xxxxx
EXHIBIT "F"
FEES
In the event of suit or other proceeding between the partners hereto with
respect to this Lease, the prevailing party shall, in addition to other such
relief as the Court may award, be entitled to recover reasonable attorney's
fees, expenses and costs of investigations.
EXHIBIT "G"
RIGHT OF FIRST OFFER
Provided that Tenant is not then in default hereunder, Landlord shall offer
in writing to lease to Tenant any space in the building as to which Landlord
has made a bona fide offer to lease to any other prospective tenant
(hereafter, a "Qualified Offer"). Said right of first offer shall be subject
to all rights of first offer previously granted other tenants in the building
and the following conditions:
a) At the time Landlord makes any Qualified Offer, Landlord shall
give Tenant written notice specifying (i) the identity of the proposed
tenant; (ii) the square footage proposed to be leased and it's location
within the Building and (iii) the proposed commencement date.
b) If Tenant intends to exercise it's right of first offer as to the
space described in Landlord's notice, Tenant shall give Landlord
written notice of such intent. Such notice must be received by Landlord
not later than 5:00 p.m. prevailing Eastern Time on the fourteenth
(14th) day following Tenant's receipt of Landlord's notice described in
(a) above.
c) If Tenant fails to give timely notice in accordance with
subparagraph (b) above, Landlord may lease such space to the party and
on the terms specified in it's notice to Tenant, however, in the event
a lease is not consummated with the party identified in Landlord's
notice, Tenant's right of first offer shall again apply to the
pertinent space and Landlord shall notify Tenant of any subsequent
offer from or to any other party to lease same.
d) If Tenant properly exercises it's right of first offer granted
hereby, that portion of space herein described, will be leased, as of
the commencement date specified in Landlord's notice, on the terms and
conditions applicable to the Premises, including the same basic rent
per rentable square foot except as follows:
(i) In the event the cost (per rentable square foot) to
Landlord of constructing leasehold improvements comparable to
those described in the Building Standard Tenant Work Letter
attached hereto as Exhibit "C" is either higher or lower than the
cost of such improvements to the Premises, the basic rent set
forth in Paragraph 8(a) will be increased or decreased, as
appropriate, by an amount equivalent to such cost differential.
The amount of said cost differential, if any, will be
determined by comparing the total work letter cost computed in
accordance with the most recent "Dodge Report" available as of (1)
the date of this lease and (2) the date of Tenant's notice of it's
intent to exercise the foregoing option. The cost set forth in
each such "Dodge Report" shall be conclusive as to any individual
work letter item.
(ii) Tenant's pro rata share of operating expenses under Paragraph 8(b)
of the Lease shall be amended.
(iii) The description of (and Exhibits depicting) the "Premises" in
Paragraph 5 of the Lease shall be amended.
jp:11/17/93
EXHIBIT "H"
AMENDED AGREEMENT
EARLY TERMINATION OF LEASE
Notwithstanding anything to the contrary contained in this Lease, Lessee, at
its option, may cancel and terminate this Lease effective as of the end of
the sixtieth (60th) month of the term, provided, as conditions of such
termination and cancellations: (a) Lessee gives written notice to the Lessor
at least one hundred and fifty (150) days prior to the commencement of the
sixtieth (60th) month in the term of its intent to terminate the Lease, (b)
Lessee pays to Lessor an amount equal to $12.00 per rentable square foot to
cover the unamortized portion of those costs and expenses incurred by Lessor
in connection with this Lease, and (c) Lessee continues to perform all the
terms and conditions of the Lease until the date of its cancellation and
termination.
