STANDARD FORM OF OFFICE LEASE
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AGREEMENT OF LEASE, made as of this 29th day of December, 1993, between 6
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CENTURY ASSOCIATES, a New Jersey limited partnership, having an office c/o
Bellemead Management Co., Inc., 280 Corporate Center, 0 Xxxxxx Xxxx Xxxx, Xxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 (the "Owner" or "Landlord"), and HGB, INC., a
New Jersey corporation, having an address c/o The Hardardt Group, Xxxxxxx Xxxx,
Xxx Xxxxxx, Xxx Xxxxxx 00000 (the "Tenant").
WITNESSETH: Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord a portion of the third (3rd) floor of a certain office building located
at 0 Xxxxxxx Xxxxx, Xxxxxxxxxx-Xxxx Xxxxx, Xxx Xxxxxx (the "Premises" or
"Demised Premises" or "demised premises"), more particularly shown upon the
Rental Plan annexed hereto and made a part hereof as Exhibit "A", for a term
commencing and terminating as set forth in Article 37 of the Rider to Lease.
The annual rental rate ("Minimum Rent") for the Premises shall be TWO
HUNDRED TEN THOUSAND FIFTY TWO AND 50/100 DOLLARS ($210,052.50), payable in
advance on the first day of each calendar month in equal monthly installments of
SEVENTEEN THOUSAND FIVE HUNDRED FOUR AND 38/100 DOLLARS ($17,504.38) during the
term of this Lease.
Installments of Minimum Rent payable hereunder shall be paid at the office
of Landlord or at such other place as Landlord may designate from time to time
by written notice to Tenant hereunder, without setoff or deduction whatsoever
except that Tenant shall pay (i) security equal to one (1) monthly installment
of Minimum Rent on the date hereof and (ii) prepaid rent equal to the sum of
five (5) monthly installments of Minimum Rent, two (2) monthly installments of
which shall be due on the date hereof and three (3)
monthly installments of which shall be due on or before the commencement Date
(hereinafter defined in Section 37.1 hereof). Said prepaid rent shall be (a)
deposited in the same interest bearing account (described in Section 62.3
hereof) in which the security is deposited and (b) disbursed pursuant to Article
67 hereof.
In the event that, at the commencement of the term of this lease, or
thereafter, Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner of with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to Owner as additional rent.
The Parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby covenant
as follows:
RENT
1. Tenant shall pay the rent as above and as hereinafter provided.
OCCUPANCY
2. Tenant shall use and occupy demised premises for general
executive and administrative offices only and for no other purpose.
TENANT ALTERATIONS
3. Except for the initial work performed on Tenant's behalf at the
commencement of the lease term, Tenant shall make no other changes in or to the
demised premises of any nature without Owner's prior written consent. Subject to
the prior written consent of Owner, and to the provisions of this article.
Tenant at Tenant's expense, may make alterations, installations, additions or
improvements which are non-structural and which do not affect utility services
or plumbing and electrical lines, in or to the interior of the demised premises
by using contractors or mechanics first approved by Owner. Tenant shall, before
making any alterations, additions, installations or improvements, at its
expense, obtain all permits, approvals and certificates required by any
governmental or quasi-governmental bodies and (upon completion) certificates of
final approval thereof and shall deliver promptly duplicates of all such
permits, approvals and certificates to Owner and Tenant agrees to carry and will
cause Tenant's contractors and sub-contractors to carry such xxxxxxx'x
compensation, general liability, personal and property damage insurance as Owner
may require. If any mechanic's lien is filed against the demised premises, or
the building of which the same forms a part, for work claimed to have been done
for, or materials furnished to, Tenant, whether or not done pursuant to this
article, the same shall be discharged by Tenant within thirty days thereafter,
at Tenant's expense, by filing the bond required by law. Except for the initial
work performed on Tenant's behalf at the commencement of the lease term, all
other fixtures and all paneling, cables, telephones wires, partitions, railings
and like installations, installed in the premises at any time, either by Tenant
or by Owner in Tenant's behalf, shall, upon installation, become the property of
Owner and shall remain upon and be surrendered with the demised premises unless
Owner, by notice to Tenant no later than twenty days prior to the date fixed as
the termination of this lease, elects to relinquish Owner's right thereto and to
have them removed by Tenant, in which event the same shall be removed from the
premises by Tenant prior to the expiration of the lease, at Tenant's expense.
Nothing in this Article shall be construed to give Owner title to or to prevent
Tenant's removal of trade fixtures, moveable office furniture and equipment, but
upon removal of any such from the premises or upon removal of other
installations as may be required by Owner, Tenant shall immediately and at its
expense, repair and restore the premises to the condition existing prior to
installation and repair any damage to the demised premises or the building due
to such removal, reasonable wear and tear excepted. All property permitted or
required to be removed, by Tenant at the end of the term remaining in the
premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or may be removed from
the premises by Owner, at Tenant's expense.
MAINTENANCE AND REPAIRS
4. Tenant shall, throughout the term of this lease, take good care
of the demised premises and the fixtures and appurtenances therein. Tenant shall
be responsible for all damage or injury to the demised premises or any other
part of the building and the systems and equipment thereof, whether requiring
structural or nonstructural repairs caused by or resulting from carelessness,
omission, neglect or improper conduct of Tenant, Tenant's subtenants, agents,
employees, invitees or licensees, or which arise out of any work, labor, service
or equipment done for or supplied to Tenant or any subtenant or arising out of
the installation, use or operation of the property or equipment of Tenant or any
subtenant. Tenant shall also repair all damage to the building and the demised
premises caused by the moving of Tenant's fixtures, furniture and equipment.
Tenant shall promptly make, at Tenant's expense, all repairs in and to the
demised premises for which Tenant is responsible, using only the contractor for
the trade or trades in question, selected from a list of at least two
contractors per trade submitted by Owner. Any other repairs in or to the
building or the facilities and systems thereof for which Tenant is responsible
shall be performed by Owner at the Tenant's expense. Owner shall maintain in
good working order and repair the exterior and the structural portions of the
building, including the structural portions of its demised premises, and the
public portions of the building interior and the building plumbing, electrical,
heating and ventilating systems (to the extent such systems presently exist)
serving the demised premises. Tenant agrees to give prompt notice of any
defective condition in the premises for which Owner may be responsible
hereunder. Except for Owner's gross negligence or wilfull misconduct, there
shall be no allowance to Tenant for diminution of rental value and no liability
on the part of Owner by reason of inconvenience, annoyance or injury to business
arising from Owner or others making repairs, alterations, additions or
improvements in or to any portion of the building or the demised premises or in
and to the fixtures, appurtenances or equipment thereof. It is specifically
agreed that Tenant shall not be entitled to any setoff or reduction of rent by
reason of any failure of Owner to comply with the covenants of this or any other
article of this Lease. Tenant agrees that Tenant's sole remedy at law in such
instance will be by way of an action for damages for breach of contract. The
provisions of this Article 4 shall not apply in the case of fire or other
casualty which are dealt with in Article 9 hereof.
WINDOW CLEANING
5. Tenant will not clean nor require, permit, suffer or allow any
window in the demised premises to be cleaned from the outside.
REQUIREMENTS OF LAW, FIRE INSURANCE, FLOOR LOADS
6. Prior to the commencement of the lease term, if Tenant is then in
possession, and at all times thereafter, Tenant, at Tenant's sole cost and
expense, shall promptly comply with all present and future laws, orders and
regulations of all state, federal, municipal and local governments, departments,
commissions and boards and any direction of any public officer pursuant to law,
and all orders, rules and regulations of any body which shall impose any
violation, order or duty upon Owner or Tenant with respect to the demised
premises, arising out of Tenant's use or manner of use thereof, (including
Tenant's permitted use) or, with respect to the building if arising out of
Tenant's use or manner of use of the premises or the building (including the use
permitted under the lease). Nothing herein shall require Tenant to make
structural repairs or alterations unless Tenant has, by its manner of use of the
demised premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect thereto.
Tenant may, after securing Owner to Owner's satisfaction against all damages,
interest, penalties and expenses, including, but not limited to, reasonable
attorney's fees, by cash deposit or by surety bond in an amount and in a company
satisfactory to Owner, contest and appeal any such laws, ordinances, orders,
rules, regulations or requirements provided some is done with all reasonable
promptness and provided such appeal shall not subject Owner to prosecution for a
criminal offense or constitute a default under any lease or mortgage under which
Owner may be obligated, or cause the demised premises or any part thereof to be
condemned or vacated. Tenant shall not do or permit any act or thing to be done
in or to the demised premises which is contrary to law, or which will invalidate
or be in conflict with public liability, fire or other policies of insurance at
any time carried by or for the benefit of Owner with respect to the demised
premises or the building of which the demised premises form a part, or which
shall or might subject Owner to any liability or responsibility to any person or
for property damage. Tenant shall not keep anything in the demised premises
except as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization or other authority having
jurisdiction, and then only in such manner and such quantity so as not to
increase the rate for fire insurance applicable to the building, nor use the
premises in a manner which will increase the insurance rate for the building or
any property located therein over that in effect prior to the commencement of
Tenant's occupancy. Tenant shall pay all costs, expenses, fines, penalties, or
damages, which may be imposed upon Owner by reason of Tenant's failure to comply
with the provisions of this article and if by reason of such failure the fire
insurance rate shall, at the beginning of this lease or at any time thereafter,
be higher than it otherwise would be, then Tenant shall reimburse Owner, as
additional rent hereunder, for that portion of all fire insurance premiums
thereafter paid by Owner which shall have been charged because of such failure
by Tenant. In any action or proceeding wherein Owner and Tenant are parties, a
schedule or "make-up" of rate for the building or demised premises issued by any
body making fire insurance rates applicable to said premises shall be conclusive
evidence of the facts therein stated and of the several items and charges in the
fire insurance rates then applicable to said premises. Tenant shall not place a
load upon any floor of the demised premises exceeding the floor load per square
foot area which it was designed to carry and which is allowed by law. Owner
reserves the right to prescribe the weight and position of all safes, business
machines and mechanical equipment. Such installations shall be placed and
maintained by Tenant, at Tenant's expense, in settings sufficient, in Owner's
reasonable judgement, to absorb and prevent vibration, noise and annoyance to
other tenants of the building.
SUBORDINATION
7. (a) This lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or hereafter affect such
leases or the real property of which demised premises are a part and to all
renewals, modifications, consolidations,
replacements and extensions of any such underlying leases and mortgages. This
clause shall be self-operative and no further instrument of subordination shall
be required by any ground or underlying lessor or by any mortgagee, affecting
any lease or the real property of which the demised premises are a part. In
confirmation of such subordination, Tenant shall execute promptly any
certificate that Owner may request.
(b) With respect to all mortgages which may as of the date
hereof affect this Lease or the building of which the demised premises form a
part, Owner agrees that upon Tenant's written request received by Owner within
ten (10) days after the date hereof (time being of the essence), Owner shall
endeavor to use reasonable efforts (at no cost or expense to Owner) to obtain a
non-disturbance and attornment agreement in recordable form from the holder of
any such mortgage, providing in substance that so long as Tenant shall have
entered into possession and occupancy of the demised premises and commenced
payment of Minimum Rent and additional rent due hereunder, and so long as Tenant
has not breached its obligations for the timely payment of Minimum Rent and
additional rent and in the performance of the other terms, covenants and
conditions to be performed or observed on Tenant's part under the Lease.
Tenant's possession of the demised premises will not be disturbed during the
term hereof, notwithstanding the foreclosure of any such mortgage, and Tenant
will not be named as a party defendant in any foreclosure proceedings brought
for the recovery of possession, it being hereby covenanted and agreed by Tenant
that the holder of any such mortgage, or anyone claiming by, through or under
said holder shall not be (i) liable for any act or omission for any prior
landlord (including Owner), or (ii) subject to any offsets or defenses which
Tenant might have against any prior landlord (including Owner), or (iii) bound
by any Minimum Rent, Adjusted Minimum rent or additional rent or other charges
which Tenant might have paid for more than the current month to a prior landlord
(including Owner), or (iv) bound by any modifications of this Lease made without
the written consent of such mortgagee.
(c) The failure of Owner to obtain a non-disturbance and
attornment agreement shall not be deemed a default on Owner's part of its
obligations hereunder, or impose any claim in favor of Tenant against Owner by
reason thereof, or affect the validity of this Lease. Tenant agrees to (i)
execute and deliver to such mortgagee a non-disturbance and attornment agreement
in form and substance satisfactory to and customarily adopted by such mortgagee
and (ii) reimburse Owner for all expenses incurred by Owner in connection
therewith, including legal expenses.
PROPERTY-LOSS, DAMAGE, REIMBURSEMENT, INDEMNITY
8. Owner or its agents shall not be liable for any damage to
property of Tenant or of others entrusted to employees of the building, nor for
loss of or damage to any property of Tenant by theft or otherwise, nor for any
injury or damage to persons or property resulting from any cause of whatsoever
nature, unless caused by or due to the negligence of Owner, its agents, servants
or employees. Owner or its agents will not be liable for any such damage caused
by other tenants or persons in, upon or about said building or caused by
operations in construction of any private, public or quasi public work. If at
any time any windows of the demised premises are temporarily closed, darkened or
bricked up (or permanently closed, darkened or bricked up, if required by law)
for any reason whatsoever including, but not limited to Owner's own acts. Owner
shall not be liable for any damage Tenant may sustain thereby and Tenant shall
not be entitled to any compensation therefor nor-abatement or diminution of rent
nor shall the same release Tenant from its obligations hereunder nor constitute
an eviction. Tenant shall indemnify and save harmless Owner against and from all
liabilities, obligations, damages, penalties, claims, costs and expenses for
which Owner shall not be reimbursed by insurance, including reasonable attorneys
fees, paid, suffered or incurred as a result of any breach by Tenant, Tenant's
agents, contractors, employees, invitees, or licensees, of any covenant or
condition of this lease, or the carelessness, negligence or improper conduct of
the Tenant, Tenant's agents, contractors, employees, invitees or licensees.
Tenant's liability under this lease extends to the acts and omissions of any
sub-tenant, and any agent, contractor, employee, invitee or licensee of any
sub-tenant. In case any action or proceeding is brought against Owner by reason
of any such claim, Tenant, upon written notice from Owner, will, at Tenant's
expense, resist or defend such action or proceeding by counsel approved by Owner
in writing, such approval not to be unreasonably withheld.
DESTRUCTION, FIRE AND OTHER CASUALTY
9. (a) If the demised premises or any part thereof shall be damaged by
fire or other casualty, Tenant shall give immediate notice thereof to Owner and
this lease shall continue in full force and effect except as hereinafter set
forth. (b) If the demised premises are partially damaged or rendered partially
unusable by fire or other casualty, Owner shall notify Tenant of its intention
to restore said damage which shall be repaired by and at the expense of Owner
and the rent, until such repair shall be substantially completed, shall be
apportioned from the day following the casualty according to the part of the
premises which is usable. (c) If the demised premises are totally damaged or
rendered wholly unusable by fire or other casualty, then the rent shall be
proportionately paid up to the time of the casualty and thenceforth shall cease
until the date when the premises shall have been repaired and restored by Owner,
subject to Owner's right to elect not to restore the same as hereinafter
provided. (d) If the demised premises are rendered wholly unusable or (whether
or not the demised premises are damaged in whole or in part) if the building
shall be so damaged that Owner shall decide to demolish it or to rebuild it,
then, in any of such events, Owner may elect to terminate this lease by written
notice to Tenant, given within 90 days after such fire or casualty, specifying a
date for the expiration of the lease, which date shall not be more than 60 days
after the giving of such notice, and upon the date specified in such notice the
term of this lease shall expire as fully and completely as if such date were the
date set forth above for the termination of this lease and Tenant shall
forthwith quit, surrender and vacate the premises without prejudice however, to
Landlord's rights and remedies against Tenant under the lease provisions in
effect prior to such termination, and any rent owing shall be paid up to such
date and any payments of rent made by Tenant which were on account of any period
subsequent to such date shall be returned to Tenant. Unless Owner shall serve a
termination notice as provided for herein, Owner shall make the repairs and
restorations under the conditions of (b) and (c) hereof, with all reasonable
expedition, subject to delays due to adjustment of insurance claims, labor
troubles and causes beyond Owner's reasonable control. After any such casualty,
Tenant shall cooperate with Owner's restoration by removing from the premises as
promptly as reasonably possible, all of Tenant's salvageable inventory and
movable equipment, furniture, and other property. Tenant's liability for rent
shall resume ten (10) days after written notice from Owner that the premises are
substantially ready for Tenant's occupancy. In the event (i) the demised
premises shall be damaged by fire or other casualty during the term and Tenant
shall be unable to use the demised premises as a result of such damage and (ii)
Owner shall not exercise the right to terminate this Lease and shall,
accordingly, be obligated to repair any such damage pursuant to the provisions
hereof, and (iii) Owner shall have failed to repair such damage within six (6)
months after the date of such fire or other casualty, as such period shall be
extended by the number of days that Owner is delayed in completing such
restoration by any cause or factor beyond Owner's reasonable control, including,
but not limited to, Tenant's failure to cooperate with Owner, strikes or other
labor disputes, accidents, orders or regulations of any Federal, State, County
or Municipal Authority, delays due to adjustment of insurance claims, lack of
availability of materials, parts or utility services, acts of God, fire,
earthquake, floods, explosion, action of the elements, war, hostilities,
invasion, insurrection, riot, mob violence, sabotage, or by reason of any other
cause, whether similar or not to the foregoing, that is beyond the reasonable
control of Owner, (such six (6) month period as so extended is referred to as
the "Restoration Period"), then, in such event, Tenant shall have a one time
option to give the Owner, within ten (10) days next following the expiration of
the Restoration Period, time being of the essence, a thirty (30) day notice of
termination of this Lease and upon the expiration of said thirty (30) days, this
Lease and the term thereunder shall end and expire as fully and completely as if
the expiration of such thirty (30) day period were the day herein definitely
fixed for the end and expiration of this Lease and the term thereof and Tenant
shall then quit and surrender the demised premises to Owner but Tenant shall
remain liable through and including the date of such damage as provided in this
Lease. Failure of Tenant to timely deliver a thirty (30) day notice of
termination shall be conclusively deemed to be an express election by Tenant to
waive Tenant's right to terminate the Lease as provided in this Article 9. (e)
Nothing contained hereinabove shall relieve Tenant from liability that may exist
as a result of damage from fire or other casualty. Notwithstanding the
foregoing, each party shall look first to any insurance in its favor before
making any claim against the other party for recovery for loss or damage
resulting from fire or other casualty, and to the extent that such insurance is
in force and collectible and to the extent permitted by law, Owner and Tenant
each hereby releases and waives all right of recovery against the other or any
one claiming through or under each of them by way of subrogation or otherwise.
The foregoing release and waiver shall be in force only if both relessors'
insurance policies contain a clause providing that such a release or waiver
shall not invalidate the insurance. If, and to the extent, that such waiver can
be obtained only by the payment of additional premiums, then the party
benefiting from the waiver shall pay such premium within ten days after written
demand or shall be deemed to have agreed that the party obtaining insurance
coverage shall be free of any further obligation under the provisions hereof
with respect to waiver of subrogation. Tenant acknowledges that Owner will not
carry insurance on Tenant's furniture and/or furnishings or any fixtures or
equipment, improvements, or appurtenances removable by Tenant and agrees that
Owner will not be obligated to repair any damage thereto or replace the same.
EMIMENT DOMAIN
10. If the whole or any part of the demised premises shall be acquired
or condemned by Emiment Domain for any public or quasi public use or purpose,
then and in that event, the term of this lease shall cease and terminate from
the date of title vesting in such proceeding and Tenant shall have no claim for
the value of any unexpired term of said lease and assigns to Owner. Tenant's
entire interest in any such award. Tenant shall be permitted to prosecute its
own claim against the condemning authority for moving expenses and other
damages provided Tenant's award does not in any way diminish Owner's award
hereunder.
ASSIGNMENT, MORTGAGE, ETC.
11. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this agreements, nor
underlet, or suffer or permit the demised premises or any part thereof to be
used by others, without the prior written consent of Owner in each instance.
Subject to Article 48 hereof, transfer of the majority of the stock of a
corporate Tenant shall be
deemed an assignment. If this lease be assigned, or if the demised premises or
any part thereof be underlet or occupied by anybody other than Tenant. Owner
may, after default by Tenant, collect rent from the assignee, under-tenant or
occupant, and apply the net amount collected to the rent herein reserved, but no
such assignment, underletting, occupancy or collection shall be deemed a waiver
of this covenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further
assignment or underletting.
ELECTRIC CURRENT
12. Tenant covenants and agrees that at all times its use of electric
current shall not exceed the capacity 6 existing feeders to the building or the
risers or wiring installation and Tenant may not use any electrical equipment
which, in Owner's opinion, reasonably exercised, will overload such
installations or interfere with the use thereof by other tenants of the
building. The change at any time of the character of electric service shall
in no wise make owner liable or responsible to Tenant, for any loss, damages or
expenses which Tenant may sustain.
ACCESS TO PREMISES
13. Owner or Owner's agents shall have the right (but shall not be
obligated) to enter the demised premises in any emergency at any time, and, at
other reasonable times during normal business hours, to examine the same and to
make such repairs, replacements and improvements as Owner may deem necessary and
reasonably desirable to the demised premises or to any other portion of the
building or which Owner may elect to perform. Tenant shall permit Owner to use
and maintain and replace pipes and conduits in and through the demised premises
and to erect new pipes and conduits therein provided they are concealed
within the walls, floor, or ceiling. Owner may, during the progress of any work
in the demised premises, take all necessary materials and equipment into said
premises without the same constituting an eviction nor shall the Tenant be
entitled to any abatement of rent while such work is in progress nor to any
damages by reason of loss or interruption of business or otherwise. Throughout
the term hereof Owner shall have the right to enter the demised premises at
reasonable hours upon reasonable notice for the purpose of showing the same to
prospective purchases or mortgagees of the building, and during the last six
months of the term for the purpose of showing the same to prospective tenants.
If Tenant is not present to open and permit an entry into the premises, Owner or
Owner's agents may enter the same whenever such entry may be necessary or
permissible by master key or forcibly and provided reasonable care is exercised
to safeguard Tenant's property, such entry shall not render Owner or its agents
liable therefor, nor in any event shall the obligations of Tenant hereunder be
affected. If during the last month of the term Tenant shall have removed all or
substantially all of Tenant's property therefrom, Owner may immediately enter,
alter, renovate or redecorate the demised premises without limitation or
abatement of rent, or incurring liability to Tenant for any compensation and
such act shall have no effect on this lease or Tenant's obligations hereunder.
SMOKING POLICY
14. Landlord reserves the right to establish a no smoking policy in
some or all common areas of the building including but not limited to elevators,
lobbies, atriums, stairwells, corridors and restrooms.
CERTIFICATE OF OCCUPANCY
15. Tenant will not at any time use or occupy the demised premises in
violation of the certificate of occupancy issued for the building of which the
demised premises are a part. Tenant has inspected the premises and accepts them
as is, subject to the rider annexed hereto with respect to Owner's work, if any.
In any event, Owner makes no representation as to the condition of the premises
and Tenant agrees to accept the same subject to violations, whether or not of
record.
BANKRUPTCY
16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by the sending of a
written notice to Tenant within a reasonable time after the happening of any one
or more of the following events: (1) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as the debtor; or (2) the making by
Tenant of an assignment or any other arrangement for the benefit of creditors
under any state statute. Neither Tenant nor any person claiming through or under
Tenant, or by reason of any statute or order of court, shall thereafter be
entitled to possession of the premises demised but shall forthwith quit and
surrender the premises. If this lease shall be assigned in accordance with its
terms, the provisions of this Article 16 shall be applicable only to the party
then owning Tenant's interest in this lease.
(b) it is stipulated and agreed that in the event of the termination
of this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
the rent reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof be relet by the Owner for the unexpired term of said lease, or any
part thereof, before presentation of proof of such liquidated damages to any
court, commission or tribunal, the amount of rent reserved upon such reletting
shall be deemed to be the fair and reasonable rental value for the part or the
whole of the premises so re-let during the term of the re-letting. Nothing
herein contained shall limit or prejudice the right of the Owner to prove for
and obtain as liquidated damages by reason of such termination, an amount equal
to the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved, whether
or not such amount be greater, equal to, or less than the amount of the
difference referred to above.
DEFAULT
17. (1) If Tenant defaults in fulfilling any of the covenants of
this lease other than the covenants for the payment of rent or additional rent;
or if the demised premises becomes vacant or deserted; or if any execution or
attachment shall be issued against Tenant or any of Tenant's property whereupon
the demised premises shall be taken or occupied by someone other than Tenant; or
if this lease be rejected under Section 235 of Title 11 of the U.S. Code
(bankruptcy code); or if Tenant shall fail to move into or take possession of
the premises within fifteen (15) days after the commencement of the term of this
lease, then, in any one or more of such events, upon Owner serving a written
five (5) days notice upon Tenant specifying the nature of said default and upon
the expiration of said five (5) days, if Tenant shall have failed to comply with
or remedy such default, or if the said default or omission complained of shall
be of a nature that the same cannot be completely cured or remedied within said
five (5) day period, and if Tenant shall not have diligently commenced curing
such default within such five (5) day period, and shall not thereafter with
reasonable diligence and in good faith, proceed to remedy or cure such default,
then Owner may serve a written three (3) days' notice of cancellation of this
lease upon Tenant, and upon the expiration of said three (3) days this lease and
the term thereunder shall end and expire as fully and completely as if the
expiration of such three (3) day period were the day herein definitely fixed for
the end and expiration of this lease and the term thereof and Tenant shall then
quit and surrender the demised premises to Owner but Tenant shall remain liable
as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given,
and the term shall expire as aforesaid; or if Tenant shall make default in the
payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required;
then and in any of such events Owner may upon notice, re-enter the demised
premises either by force or otherwise, and dispossess Tenant by summary
proceedings or otherwise, and the legal representative of Tenant or other
occupant of demised premises and remove their effects and hold the premises as
if this lease had not been made. If Tenant shall make default hereunder prior to
the date fixed as the commencement of any renewal or extension of this lease,
Owner may cancel and terminate such renewal or extension agreement by written
notice.
REMEDIES OF OWNER AND WAIVER OF REDEMPTION
18. In case of any such default, re-entry, expiration and/or
dispossess by summary of proceedings or otherwise, (a) the rent shall become due
thereupon and be paid up to the time of such re-entry, dispossess and/or
expiration, (b) Owner may re-let the premises or any part or parts thereof,
either in the name of Owner or otherwise, for a term or terms, which may at
Owner's option be less than or exceed the period which would otherwise have
constituted the balance of the term of this lease and may grant concessions or
free rent or charge a higher rental than that in this lease, and/or (c) Tenant
or the legal representatives of Tenant shall also pay Owner as liquidated
damages for the failure of Tenant to observe and perform said Tenant's covenants
herein contained, any deficiency between the rent hereby reserved and/or
convenanted to be paid and the net amount, if any, of the rents collected on
account of the lease or leases of the demised premises for each month of the
period which would otherwise have constituted the balance of the term of this
lease. The failure of Owner to re-let the premises or any part or parts thereof
shall not release or affect Tenant's liability for damages. In computing such
liquidated damages there shall be added to the said deficiency such reasonable,
customary and ordinary expenses as Owner may incur in connection with
re-letting, such as legal expenses, attorneys' fees, brokerage, advertising and
for keeping the demised premises in good order or for preparing the same for
re-letting. Any such liquidated damages shall be paid in monthly installments by
Tenant on the rent day specified in this lease and any suit brought to collect
the amount of the deficiency for any month shall not prejudice in any way the
rights of Owner to collect the deficiency for any subsequent month by a similar
proceeding. Owner, in putting the demised premises in good order or preparing
the same for re-rental may, at Owner's option, make such alterations, repairs,
replacements, and/or decorations in the demised premises as Owner, in Owner's
sole judgment, considers advisable and necessary for the purpose of re-letting
the demised premises, and the making of such alterations, repairs, replacements,
and/or decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Owner shall in no event be liable in any way
whatsoever for failure to re-let the demised premises, or in the event that the
demised premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or
threatened breach by Tenant of any of the covenants or provisions hereof, Owner
shall have the right of injunction and the right to invoke any remedy allowed at
law or in equity as if re-entry, summary proceedings and other remedies were not
herein provided for. Mention in this lease of any particular remedy, shall not
preclude Owner from any other remedy, in law or in equity. Tenant hereby
expressly waives any and all rights of redemption granted by or under any
present or future laws in the event of the Tenant being evicted or dispossessed
for any cause, or in the event of Owner obtaining possession of demised
premises, by reason of the violation by Tenant of any of the covenants and
conditions of this lease, or otherwise.
FEES AND EXPENSES
19. If Tenant shall default in the observance or performance of any
term or covenant on Tenant's part to be observed or performed under or by virtue
of any of the terms or provisions in any article of this lease, then, unless
otherwise provided elsewhere in this lease. Owner may immediately or at any time
thereafter and without notice perform the obligation of Tenant thereunder. If
Owner, in connection with the foregoing or in connection with any default by
Tenant in the covenant to pay rent hereunder, makes any expenditures or incurs
any obligations for the payment of money, including but not limited to
reasonable attorney's fees, in instituting, prosecuting or defending any action
or proceeding, then Tenant will reimburse Owner for such sums so paid or
obligations incurred with interest and costs. The foregoing expenses incurred by
reason of Tenant's default shall be deemed to be additional rent hereunder and
shall be paid by Tenant to Owner within five (5) days of rendition of any xxxx
or statement to Tenant therefor. If Tenant's lease term shall have expired at
the time of making of such expenditures or incurring of such obligations, such
sums shall be recoverable by Owner as damages.
BUILDING ALTERATIONS AND MANAGEMENT
20. Owner shall have the right at any time without the same
constituting an eviction and without incurring liability to Tenant therefor to
change the arrangement and/or location of public entrances, passageways, doors,
doorways, corridors, elevators, stairs, toilets or other public parts of the
building and to change the name, number or designation by which the building may
be known. There shall be no allowance to Tenant for diminution of rental value
and no liability on the part of Owner by reason of inconvenience, annoyance or
injury to business arising from Owner or other Tenants making any repairs in the
building or any such alterations, additions and improvements. Furthermore,
Tenant shall not have any claim against Owner by reason of Owner's imposition
of such controls of the manner of access to the building by Tenant's social or
business visitors as the Owner may deem necessary for the security of the
building and its occupants.
NO REPRESENTATIONS BY OWNER
21. Neither Owner nor Owner's agents have made any representations or
promises with respect to the physical condition of the building, the land upon
which it is erected or the demised premises, the rents, leases, expenses of
operation or any other matter or thing affecting or related to the premises
except as herein expressly set forth and no rights, easements or licenses are
acquired by Tenant by implications or otherwise except as expressly set forth in
the provisions of this lease. Tenant has inspected the building and the demised
premises and is thoroughly acquainted with their condition and agrees to take
the same "as is" and acknowledges that the taking of possession of the demised
premises by Tenant shall be conclusive evidence that the said premises and the
building of which the same form a part were in good and satisfactory condition
at the time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between Owner and Tenant and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of
it in whole or in part, unless such executory agreement is in writing and
signed by the party against whom enforcement of the change, modification,
discharge or abandonment is sought.
END OF TERM
22. Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of this lease. If the
last day of the term of this Lease or any renewal thereof, falls on Sunday, this
lease shall expire at noon on the preceding Saturday unless it be a legal
holiday in which case it shall expire at noon on the preceding business day.
QUIET ENJOYMENT
23. Owner covenants and agrees with Tenant that upon Tenant paying
the rent and additional rent and observing and performing all the terms,
covenants and conditions, on Tenant's part to be observed and performed, Tenant
may peaceably and quietly enjoy the premises hereby demised, subject,
nevertheless, to the terms and conditions of this lease including, but not
limited to, Article 31 hereof and to the ground leases, underlying leases and
mortgages hereinbefore mentioned.
FAILURE TO GIVE POSSESSION
24. If Owner is unable to give possession of the demised premises on
the date of the commencement of the term hereof, because of the holding-over or
retention of possession of any tenant, undertenant or occupants or if the
demised premises are located in a building being constructed, because such
building has not been sufficiently completed to make the premises ready for
occupancy or because of the fact that a certificate of occupancy has not been
procurred or for any other reason, Owner shall not be subject to any liability
for failure to give possession on said date and the validity of the lease shall
not be impaired under such circumstances, nor shall the same be construed in any
wise to extend the term of this lease, but the rent payable hereunder shall be
abated (provided Tenant is not responsible for Owner's inability to obtain
possession) until after Owner shall have given Tenant written notice that the
premises are substantially ready for Tenant's occupancy. If permission is given
to Tenant to enter into the possession of the demised premises or to occupy
premises other than the demised premises prior to the date specified as the
commencement of the term of this lease, Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease, except as to the covenant to pay rent. Notwithstanding
anything to the contrary contained in this Article 24, in the event the
Commencement Date (as hereinafter defined) does not occur within one hundred
eighty (180) days after the Estimated Commencement Date (as hereinafter defined)
("Outside Date"), Tenant shall have a singe option to cancel this Lease and the
term thereof by giving notice to Owner of such cancellation within ten (10)
days, time being of the essence, next following the Outside Date, as said
Outside Date may be extended pursuant to the following provisions. Upon the
giving of such notice, this lease and the term thereof shall expire and come to
an end as of the date of the giving of such notice and Tenant shall then quit
and surrender the demised premises to Owner but Tenant shall remain liable as
provided in the Lease. If Tenant shall fail to give timely notice exercising the
foregoing option to cancel this Lease and the term thereof, then the term shall
commence and end in accordance with the provisions of this Lease. Owner shall
have the right to extended the Outside Date by a period equal to the aggregate
number of days of delay in Substantial Completion (as hereinafter defined) or in
the issuance of a temporary or permanent Certificate of Occupancy covering the
demised premises occasioned by reason of Tenant's failure to cooperate with
Owner, Tenant's delays in submitting any drawings or specifications, or in
supplying information, or in approving drawings, specifications or estimates, or
in giving authorizations, or by reason of any "Extra" or "Change Order"
designated by Tenant, or by reason of any changes by Tenant in any designations
previously made by Tenant, or by reason of any similar acts or omissions of
Tenant or by reason of any cause or factor beyond Landlord's reasonable control
including but not limited to, strikes or other labor disputes, accidents, orders
or regulations of any Federal, State, County or Municipal authority, lack of
availability of materials, parts or utility services, delays due to adjustment
of insurance claims, acts of God, fire, earthquake, floods, explosion, action of
the elements, war, hostilities, invasion, insurrection, riot, mob violence,
sabotage or by reason of any other cause, whether similar or not to the
foregoing that is beyond the reasonable control of Owner. If Tenant shall use or
occupy all or part of the demised premises, the foregoing option to cancel this
Lease and the term thereof shall no longer be of any force and effect.
NO WAIVER
25. The failure of Owner to seek redress for violation of, or to
insist upon the strict performance of any covenant or condition of this lease or
of any of the Rules or Regulations set forth or hereafter adopted by Owner,
shall not prevent a subsequent act which would have originally consituted a
violation from having all the force and effect of an original violation. The
receipt by Owner of rent with knowledge of the breach of any coventant of this
lease shall not be deemed a waiver of such breach and no provision of this lease
shall be deemed to have been waived by Owner unless such waiver be in writing
signed by Owner. no payment by Tenant or receipt by Owner of a lessor amount
than the monthly rent herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
of any check or any letter accompanying any check or payments as rent be deemed
an accord and satisfaction, and Owner may accept such check or payments without
prejudice to Owner's rights to recover the balance of such rent or pursue any
other remedy in this lease provided. No act or thing done by Owner or Owner's
agents during the term hereby demised shall be deemed an acceptance of a
surrender of said premises, and no agreement to accept such surrender shall be
valid unless in writing signed by Owner, No employee of Owner or Owner's agent
shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
WAIVER OF TRIAL BY JURY
26. It is natually agreed by and between Owner and Tenant that the
respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other (except for personal injury or property damage) on any matters
whatsoever arising out of in any way connected with this lease, the relationship
of Owner and Tenant, Tenant's use of or occupancy of said premises, and any
emergency statutory or any other statutory remedy. It is further matually agreed
that in the event Owner commences any summary proceeding for possession of the
premises, Tenant will not interpose any counterclaim of whatever nature or
decription in any such proceeding, including a counterclaim under Article 4;
provided, however, that Tenant shall be entitled to interpose any mandatory
counterclaim which would otherwise be barred pursuant to the entire controversy
doctrine.
INABILITY TO PERFORM
27. This Lease and the obligation of Tenant to pay rent hereunder and
perform all of the other covenants and agreements hereunder on part of Tenant to
be performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Owner is prevented or delayed from so doing by reason of strike or
labor troubles or any cause whatsoever including, but not limited to, government
preemption in connection with a National Emergency or by reason of any rule,
order or regulation of any department or subdivision thereof of any government
agency or by reason of the conditions of supply and demand which have been or
are affected by war or other emergency.
BILLS AND NOTICES
28. See Article 57 Rider to Lease.
Services Provided by Owner
29. As long as Tenant is not in default under any of the covenants of
this Lease, Owner shall provide: (a) necessary elevator facilities on business
days from 8 a.m. to 6 p.m. and have one elevator subject to call at all other
times; (b) heat to the demised premises when and as required by law, on business
days from 8 a.m. to 6 p.m.; (c) water for ordinary lavatory purposes, but if
Tenant uses or consumes water for any other purposes or in unusual quantities
(of which fact Owner shall be the sole judge), Owner may install a water meter
at Tenant's expense which Tenant shall thereafter maintain a Tenant's expense in
good working order and repair to register such water consumption and Tenant
shall pay for water consumed as shown on said meter as additional rent as and
when bills are rendered; (d) cleaning service for the demised premises on
business days at Owner's expense provided that the same are kept in order by
Tenant. If, however, said premises are to be kept clean by Tenant, it shall be
done at Tenant's sole expense, in a manner satisfactory to Owner and no one
other than persons approved by Owner shall be permitted to enter said premises
or the building of which they are a part for such purpose. Tenant shall pay
Owner the cost of removal of any of Tenant's refuse and rubbish from the
building; (e) if the demised premises are serviced by Owner's air
conditioning/cooling and ventilating system, air conditioning/cooling will be
furnished to tenant from May 15th through September 30th on business days
(Mondays through Fridays, holidays excepted) from 8:00 a.m. to 6:00 p.m., and
ventilation will be furnished on business days during the aforesaid hours except
when air conditioning/cooling is being furnished as aforesaid. If Tenant
requires air conditioning/cooling or ventilation for more extended hours or on
Saturdays, Sundays or on holidays, Owner will furnish the same as Tenant's
expense; (f) Owner reserves the right to stop services of the heating,
elevators, plumbing, air-conditioning, power systems or cleaning or other
services, if any, when necessary by reason of accident or for repairs,
alterations, replacements or improvements necessary or desirable in the judgment
of Owner for as long as may be reasonably required by reason thereof. If the
building of which the demised premises are a part supplies manually operated
elevator service, Owner at any time may substitute automatic control elevator
service and upon ten days' written notice to Tenant, proceed with alterations
necessary therefor without in any wise affecting this Lease or the obligation of
Tenant hereunder. The same shall be done with minimum of inconvenience to Tenant
and Owner shall pursue the alteration with due diligence.
CAPTIONS
30. The Captions are inserted only as a matter of convenience and for
reference and in no way define, limit or describe the scope of this lease nor
the intent of any provisions thereof.
DEFINITIONS
31. The term "office", or "offices", wherever used in this lease,
shall not be construed to mean premises used as a store or stores, for the sale
or display, at any time, of goods, wares or merchandise, of any kind, or as a
restaurant, shop, booth, bootblack or other stand, xxxxxx shop, or for other
similar purposes or for manufacturing. The term "Owner" means a landlord or
lessor, and as used in this lease means only the owner, or the mortgagee in
possession, for the time being of the land and building (or the owner of a lease
of the building or of the land and building) of which the demised premises form
a part, so that in the event of any sale or sales of said land and building or
of said lease, or in the event of a lease of said building, or of the land and
building, the said Owner shall be and hereby is entirely freed and relieved of
all covenants and obligations of Owner hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
interest, or between the parties and the purchaser, at any such sale, or the
said lessee of the building, or of the land and building, that the purchaser of
the lessee of the building has assumed and agreed to carry out any and all
covenants and obligations of Owner, hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "business days" as used in this lease shall exclude Saturdays
(except such portion thereof as is covered by specific hours in Article 29
hereof), Sundays and all days set forth on Exhibit E.
ADJACENT EXCAVATION-SHARING
32. Intentionally Deleted Prior to Execution.
RULES AND REGULATIONS
33. Tenant and Tenant's servants, employees, agents, visitors, and
licensees shall observe faithfully, comply strictly with, the written Rules and
Regulations and such other and further reasonable written Rules and Regulations
as Owner or Owner's agents may from time to time adopt. Notice of any additional
rules or regulations shall be given in such manner as Owner may elect. In case
Tenant disputes the reasonableness of any additional Rule or Regulation
hereafter made or adopted by Owner or Owner's agents, the parties hereto agree
to submit the question of the reasonableness of such Rule or Regulation for
decision to the Newark office of the American Arbitration Association, whose
determination shall be final and conclusive upon the parties hereto. The right
to dispute the reasonableness of any additional Rule or Regulation upon Tenant's
part shall be deemed waived unless the same shall be asserted by service of a
notice, in writing upon Owner within ten (10) days after the receipt of notice
thereof. Nothing in this lease contained shall be construed to impose upon Owner
any duty or obligations to enforce the Rules and Regulations or terms, covenants
or conditions in any other lease, as against any other tenant and Owner shall
not be liable to Tenant for violation of the same by any other tenant, its
servants, employees, agents, visitors or licensees.
SECURITY
34. Tenant shall deposit with Owner on the date hereof the sum of
$17,504.38 as security for the faithful performance and observance by Tenant of
the terms, provisions and conditions of this lease; it is agreed that in the
event Tenant defaults in respect of any of the terms, provisions and conditions
of this lease, including, but not limited to, the payment of rent and additional
rent. Owner may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any rent and additional rent
or any other sum as to which Tenant is in default or for any sum which Owner may
expend or may be required to expend by reason of Tenant's default in respect of
any of the terms, covenants and conditions of this lease, including but not
limited to, any damages or deficiency in the re-letting of the premises, whether
such damages or deficiency accrued before or after summary proceedings or other
re-entry by Owner. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
security shall be returned to Tenant after the date fixed as the end of the
Lease and after delivery of entire possession of the demised premises to Owner.
In the event of a sale of the land and building or leasing of the building, of
which the demised premises form a part, Owner shall have the right to transfer
the security to the vendee or lessee and Owner shall thereupon be released by
Tenant from all liability for the return of such security; and Tenant agrees to
look to the new Owner solely for the return of said security, and it is agreed
that the provisions hereof shall apply to every transfer or assignment made of
the security to a new Owner. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
ESTOPPEL CERTIFICATE
35. Tenant, at any time, and from time to time, upon at least 10
days' prior notice by Owner, shall execute, acknowledge and deliver to Owner,
and/or to any other person, firm or corporation specified by Owner, a statement
certifying that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), stating the dates to which the rent and
additional rent have been paid, and stating whether or not there exists any
default by Owner under this Lease, and, if so, specifying each such default.
SUCCESSORS AND ASSIGNS
35A. The covenants, conditions and agreements Assigns contained in
this lease shall bind and inure to the benefit of Owner and Tenant and their
respective heirs, distributees, executors, administrators, successors, and
except as otherwise provided in this lease, their assigns.
EXHIBITS
35B. This lease consists of this Printed Portion containing Articles
1-35C. and each of the following, attached hereto and made a part hereof: (a)
Rider to Lease and (b) the following exhibits: Exhibit A (Rental Plan), Exhibit
B (Work Letter), Exhibit C (Legal Description), Exhibit D (Cleaning Service
Rider) and Exhibit E (Legal Holidays).
RIDER
35C. In the event of any in consistency between the provisions of the
Rider to Lease and those contained in this Printed Portion to which the Rider to
Lease is annexed, the provisions of the Rider to Lease shall govern and be
binding.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed this Lease
on the day and year first written above.
ATTESTED BY: LANDLORD:
6 CENTURY ASSOCIATES
By: 6 Century Corp.,
General Partner
/s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------- ------------------------
Xxxxx Xxxxxxxxxx Xxxxxx X. Xxxxxx
Vice President
ATTESTED BY: AGENT FOR LANDLORD:
BELLEMEAD MANAGEMENT CO., INC.
/s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------- ---------------------------
Xxxxx Xxxxxxxxxx Xxxxxx X. Xxxxxx
Vice President
ATTESTED BY: TENANT:
HGB, INC.
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxxxx
---------------------- ---------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxxx X. Xxxxxxxx
----------------- ----------------------
(Please Print) (Please Print)
Title: Corporate Secretary Title: President
APPLY CORPORATE SEAL HERE
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purposes other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery
by Owner. There shall not be used in any space, or in the public hall of the
building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks except those equipped with rubber tires
and sideguards. If said premises are situated on the ground floor of the
building, Tenant thereof shall further, at Tenant's expense, keep the sidewalk
and curb in front of said premises clean and free from ice, snow, dirt and
rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage remaining from the
violation of this rule shall be borne by the Tenant who, or whose clerks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the building; and no Tenant shall sweep or throw or permit to be swept
or thrown from the demised premises any dirt or other substances into any of the
corridors or halls, elevators, or out of the doors or windows or stairways of
the building and Tenant shall not use, keep or permit to be used or kept any
foul or noxious gas or substance in the demised premises, or permit or suffer
the demised premises to be occupied or used in manner offensive or
objectionable to Owner or other occupants of the building by reason of noise,
odors, and/or vibrations, or interfere in any way with other Tenants or those
having business therein, nor shall any animals or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the elevators of
the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premises if the
same is visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the premises. In the event of violation of the foregoing by any Tenant.
Owner may remove same without any liability, and may charge the expense incurred
by such removal to Tenant or Tenants violating this rule. Interior signs on
doors and directory tablet shall be inscribed, painted or affixed for each
Tenant by Owner at the expense of such Tenant, and shall be of a size, color and
style acceptable to Owner.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any part
of the demised premises or the building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Owner, and as Owner may direct. Not tenant shall lay linoleum, or
other similar floor covering, so that the same shall come in direct contact
with the floor of the demised premises, and, if linoleum or other similar floor
covering is desired to be used an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly
prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any Tenant, nor shall any changes be made in existing
locks or mechanism thereof. Each Tenant must, upon the termination of his
Tenancy, restore to Owner all keys of stores, offices and toilet rooms, either
furnished to, otherwise procured by, such Tenant, and in the event of the loss
of any keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter
of any description shall be delivered to and removed from the premises only on
the freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and
each Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building between the
hours of 6 P.M. and 8 A.M. and at all hours on Sundays, and legal holidays all
persons who do not present a pass to the building signed by Owner. Owner will
furnish passes to persons for whom any Tenant requests same in writing. Each
Tenant shall be responsible for all persons for whom he requests such pass and
shall be liable to Owner for all acts of such persons.
11. Owner shall have the right to prohibit any advertising by any Tenant
which in Owner's opinion, tends to impair the reputation of the building or its
desirability as a building for offices, and upon written notice from Owner,
Tenant shall refrain from such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible or explosive fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors to permeate in or emanate
from the demised premises.
13. If the building contains central air conditioning and ventilation,
Tenant agrees to keep all windows closed at all times and to abide by all rules
and regulations issued by the Owner with respect to such services. If Tenant
requires air conditioning or ventilation after the usual hours, Tenant shall
give notice in writing to the building superintendent prior to 3:00 P.M. in the
case of services required on week days, and prior to 3:00 P.M. on the day prior
in the case of after hours service required on weekends or on holidays.
14. Tenant shall not move any safe, heavy machinery, heavy equipment,
bulky matter, or fixtures into or out of the building Landlord's prior written
consent. If such safe, machinery, equipment, bulky matter or fixtures requires
special handling, all work in connection therewith shall comply with all laws
and regulations applicable thereto and shall be done during such hours as Owner
may designate.
15. Tenant shall report all peddlers, solicitors and beggars to the office
of the Building or as Landlord otherwise requests. Landlord shall exercise
reasonable steps to keep such persons outside of the Building.
16. Tenant shall take reasonable action to assure that its employees,
invitees and guests do not (a) utilize any parking spaces designated for the
use of others, nor (b) park in any driveways, fire lanes or other areas not
striped for vehicular parking.
TABLE OF CONTENTS FOR
RIDER TO LEASE
ARTICLE PAGE
------- ----
36. DEFINITIONS; DEMISED PREMISES;
ADJUSTED MINIMUM RENT........................................ 1
37. COMMENCEMENT OF TERM; COMMENCEMENT DATE;
ESTIMATED COMMENCEMENT DATE AND TERMINATION DATE............. 5
38. TENANT'S POSSESSION.......................................... 6
39. HEATING, AIR-CONDITIONING AND VENTILATION;
LEGAL HOLIDAYS; "AFTER HOURS"................................ 6
40. ELECTRIC CURRENT............................................. 6
41. LIABILITY INSURANCE.......................................... 7
42. ALL RISK INSURANCE........................................... 7
42B. LANDLORD'S INSURANCE......................................... 8
43. PARKING FACILITIES........................................... 8
44. ACCESS AND COMMON AREAS...................................... 8
45. RELOCATION................................................... 9
46. BROKER....................................................... 9
47. CLEANING SERVICES............................................ 9
48. ASSIGNMENT AND SUBLETTING.................................... 10
49. TENANT'S COOPERATION; REASONABLE
MODIFICATIONS; ESTOPPEL CERTIFICATE.......................... 14
50. LIMITATION OF LIABILITY;..................................... 15
DEFINITION OF "LANDLORD"
51. STATUTORY WAIVER; NOTICE BY TENANT........................... 15
52. CORPORATE AUTHORITY.......................................... 15
53. PERSONAL TAXES............................................... 16
54. BUILDING CHANGES............................................. 16
55. HOLDING OVER................................................. 16
56. RESTRICTIVE COVENANT - FOOD SERVICE.......................... 16
57. NOTICES...................................................... 17
58. INTERPRETATION............................................... 17
59. NO OFFER OR AGREEMENT........................................ 18
60. DAMAGES...................................................... 18
61. BANKRUPTCY................................................... 19
62. SECURITY..................................................... 19
63. PARTNERSHIP TENANT........................................... 20
64. LANDLORD'S WORK; LANDLORD'S WORK LETTER...................... 20
65. RENEWAL OPTION............................................... 21
66. ISRA COMPLIANCE.............................................. 22
67. PREPAID RENT................................................. 23
68. RIGHT TO FIRST/SECOND OFFER................................. 23
SIGNATURE PAGE.............................................. 26
RIDER TO LEASE
--------------
DATED: As of December 29, 1993
LANDLORD: 6 Century Associates
TENANT: HGB, Inc.
PREMISES: Portion of the third (3rd) floor
0 Xxxxxxx Xxxxx
Xxxxxxxxxx-Xxxx Xxxxx, Xxx Xxxxxx
36 DEFINITIONS; DEMISED PREMISES;
ADJUSTED MINIMUM RENT
------------------------------
36.1 Definitions. For purposes of this Article, the following
terms shall have the meanings set forth below:
(1) Assessed Valuation shall mean the assessed valuation of the
Real Estate for the First Tax Year, as such assessed valuation is or may be
ultimately determined by final administrative or judicial proceeding, or by
abatement by an appropriate taxing authority;
(2) Base Tax Rate shall mean the real estate tax rate in effect
on the date of this Lease;
(3) First Operating Year shall mean the calendar year ending
December 31, 1994. Operating Year shall mean any calendar year thereafter;
(4) First Tax Year shall mean the calendar year ending December
31, 1994. Tax Year shall mean any calendar year thereafter;
(5) Land shall mean the land described in Exhibit C to this
Lease;
(6) Occupancy Percentage shall be as defined in Section 36.2;
(7) Real Estate Tax Base shall mean the amount determined by
multiplying the Assessed Valuation by the Base Tax Rate;
(8) Taxes shall mean all real estate taxes, charges and
assessments imposed upon the Land, Building and other improvements thereon or
the occupancy or leasing thereof (collectively, the "Real Estate"). If any
franchise, capital stock, capital gains, rent, income, profit or any other tax
or charge shall be imposed upon all or any part of the Real Estate, such
franchise, capital stock, capital gains, rent, income, profit or other tax or
charge shall be deemed included in the term "Taxes" for the purposes of this
Article. Landlord shall have the exclusive right, but not the obligation, to
contest or appeal any Tax assessment levied on the Real Estate by any
governmental or quasi-governmental authority;
36.2 The Demised Premises shall be deemed to contain a floor area
of 12,003 square feet and the building of which the Demised Premises form a part
("Building" or "building") shall be deemed to contain a total floor area of
100,036 square feet. Tenant's Occupancy Percentage shall be deemed to be 12
percent.
36.3 Adjusted Minimum Rent shall mean the Minimum Rent as
increased in accordance with this Article to reflect any increase in Taxes and
Building Operating Costs. Tenant shall pay such increases as additional rent as
hereinafter provided.
36.4 Taxes. (1) If the Taxes for any Tax Year during the term
of this Lease shall be greater than the Real Estate Tax Base, then Tenant shall
pay to Landlord, as additional rent, an amount equal to the Occupancy
Percentage of such excess.
1
(2) Upon the issuance by the respective taxing authorities having
jurisdiction over the Real Estate of a xxxx or bills for the Taxes imposed upon
the Real Estate for the First Tax year, Landlord shall submit a copy of such
xxxx or bills to Tenant. Thereafter, on or about each anniversary of said date,
Landlord shall submit to Tenant a copy of the latest tax xxxx or bills for the
Taxes for each subsequent Tax Year indicating each change in the Taxes and the
effective date of such change together with a statement (the "Tax Statement")
which shall indicate the amount, if any, required to be paid by Tenant as
additional rent. Within 30 days after the issuance of the Tax Statement, Tenant
shall pay the additional rent as set forth therein. Any payments due pursuant to
this Article for a period of less than a full Tax Year, either at the
commencement or at the end of the term of this Lease, shall be ratably
apportioned.
(3) If at any time the taxing jurisdiction in which the Real Estate
is located should change its method of valuating the Real Estate for the First
Tax Year as part of a general revaluation program ("Revaluation"), then, the
provisions of Sections 36.1(2) and 36.1(1) above notwithstanding, for purposes
of computing the Real Estate Base pursuant to Section 36.1(7) Landlord may, at
its option, use one of the following methods:
(a) The Assessed Valuation shall be the amount for which the Real
Estate would have been assessed for the First Tax Year if there had been no
Revaluation, and the Base Tax Rate shall be as defined in Section 36.1(2) above,
or
(b) The Assessed Valuation shall be the actual amount assessed, and
the Base Tax Rate shall be the real estate tax rate as subsequently reduced by
the taxing jurisdiction in connection with the Revaluation.
Landlord shall inform the Tenant as to which of the above two methods
Landlord has elected at such time as Landlord submits the Tax Statement to
Tenant.
36.5 Building Operating Costs. (1) Tenant hereby agrees that for each
Operating Year during the term of this Lease for which the total Building
Operating costs (as hereinafter defined) shall exceed the Building Operating
Costs for the First Operating Year, Tenant shall pay to Landlord, as additional
rent, an amount equal to the Occupancy Percentage of such excess within 30 days
after presentation of Landlord's statement (the "Operating Statement") therefor.
The Operating Statement shall indicate (i) the intial additional amount required
to be paid by Tenant as additional rent as in this Article provided; (ii) the
Tenant's new Adjusted Minimum Rent; and (iii) the manner in which such
adjustment is computed. Landlord shall present its Operating Statement within 90
days after the commencement of each such Operating Year ("Billing Date"). Tenant
shall thereafter, for the balance of that Operating Year and for that portion of
the next Operating Year until the Billing Date during such year, make monthly
payments of 1/12th of such increase to reflect the change as of the Billing
Date, which amounts shall be credited for the account of Tenant against the
annual payment due on the succeeding Billing Date.
(2) The "Building Operating Costs" shall include each and every
expense incurred in connection with the ownership, administration, management,
operation, repair, replacement and maintenance of the real Estate, including but
not limited to, wages, salaries and fees paid to persons either employed by
Landlord or engaged as independent contractors in the operaton of the Real
Estate, and such other typical items of expense as indicated below. All such
costs and the values allocated to services rendered and supplies delivered shall
be reflected on the comparative statement which shall be exhibited to the Tenant
upon request.
(3) The expenses referred to in this Article shall be determined in
accordance with generally accepted accounting principles. So long as Tenant is
not in default under any
2
provisions of this Lease, Tenant or its representatives shall have the right, at
its own expense, upon reasonable notice and during reasonable hours, to inspect
the books of Landlord for the purpose of verifying the information contained in
any Operating Statement, provided prior written request for such inspection
shall be made by Tenant and further provided that such request is made within
one hundred twenty (120) days of receipt of the Operating Statement to be
verified. Any Operating Statement not verified within said one hundred twenty
(120) day period shall be deemed to be correct.
(4) Some of the typical items of expense which comprise or may
comprise the Building Operating Costs and to be included in the Statement are or
may be: (a) general repairs and maintenance; (b) utility costs, including but
not limited to, cost of electricity to power HVAC units serving the entire
Building (both tenant and common areas), cost of oil or other fuel required to
heat the entire Building, cost of electricity to light the common areas; (c)
cleaning costs, including but not limited to, window cleaning, general interior
office cleaning, cleaning of common areas; (d) service contracts, including but
not limited to, contracts for elevator service, HVAC service, rubbish removal,
carting, janitorial and watchman services and snow removal; (e) costs of
landscaping; (f) costs of insurance; (g) fees and/or salaries of
superintendents, engineers, mechanics, custodians; (h) towel service for common
lavatories; and (i) sales and use taxes. Notwithstanding the above, the
following costs or expenses are specifically excluded from Building Operating
Costs:
(a) Taxes;
(b) Franchise or income taxes imposed upon the Landlord;
(c) Debt service on mortgages;
(d) Leasing commissions;
(e) Capital improvements;
(f) Cost of alterations or improvements to the Demised Premises, or
the premises of other tenants;
(g) Costs of correcting defects in or inadequacy of the initial
design or construction of the Building;
(h) Costs for which the Landlord is reimbursed by insurance by its
carrier, or any tenant's carrier;
(i) Any bad debt loss, rent loss, or reserves from bad debts or rent
loss;
(j) Expenses of extraordinary services provided to other tenants in
the Building;
(k) Costs associated with the operation of the business of the
partnership, or entity which constitutes the Landlord as the same
are distinguished from the costs of operation of the Building,
including partnership, accounting and legal matters, costs of
defending any lawsuit with a mortgagee (except as the actions of
the Tenant may be an issue), costs of selling, syndicating,
financing, mortgaging, or hypothecating any of the Landlord's
interest in the Building, costs of any disputes between the
Landlord and its employees (if any), disputes of Landlord with
building management or outside fees paid in connection with
disputes with other tenants;
(l) Fines, penalties and interest;
(m) Rent paid under superior leases, including ground rentals;
(n) Costs incurred by Landlord for alterations which are considered
capital improvements under generally accepted accounting
principals consistently applied;
(o) Any expenses in connection with services or other benefits which
are not provided to Tenant or the Building's common areas, or for
which Tenant is charged directly, but which are provided to
another tenant or occupant of the Building;
(p) Overhead and profit increments paid to Landlord, or to
subsidiaries or affiliates of Landlord for
3
services in the Building to the extent the same exceeds the costs
of such services rendered by unaffiliated, third-parties on a
competitive basis; and
(q) Rentals and/or other related expenses incurred in leasing air
conditioning systems, elevators, or other equipment, which are
considered to be of a capital nature, except for equipment not
affixed to the Building, which is used to provide janitorial or
similar services.
(5) Anything to the contrary contained in this Article 36 notwithstanding,
if the average occupancy of the Building is less than ninety-five (95%) percent
during the First Operating Year, then Landlord shall make a determination
("Landlord's Determination") of what the Building Operating Costs for such year
would have been if during the entire year the average tenant occupancy of the
Building were ninety-five (95%) percent. Landlord's Determination shall be
binding and conclusive upon Tenant and shall for all purposes of this Lease be
deemed to be the Building Operating Costs for the First Operating Year. Landlord
shall notify Tenant of Landlord's Determination within ninety (90) days
following the last day of the First Operating Year. Thereafter, if for any
subsequent Lease year the average tenant occupancy of the Building is below
ninety-five (95%), the Building Operating Costs for any such year shall be
adjusted by Landlord to the amount that such Building Operating Costs would have
been if the average tenant occupancy during that year has been ninety-five (95%)
percent.
36.6 If, pursuant to any Tax Statement or Operating Statement showing
Taxes or Building Operating Costs for any year subsequent to the First Tax Year
or First Operating Year, respectively, there shall be an additional amount
payable or a refund due with respect to Taxes and/or Building Operating Costs
for the period covered by such statement(s), such amount shall be calculated,
and any amount payable by the Tenant to the Landlord as additional rent shall be
promptly paid, or the amount due to the Tenant shall be credited against amounts
owing Landlord. However, it is agreed by the parties that any refund shall not
in any way operate to reduce the Minimum Rent. If such calculation takes place
and/or any payment in connection herewith becomes payable after the expiration
of the term of this Lease, this provision shall be deemed to have survived such
expiration.
36.7 Any increase in additional rent under this Article shall be
prorated for the final Operating Year if such Operating Year covers a period of
less than twelve (12) full months. Tenant's obligation to pay additional rent
under this Article for the final Operating Year shall survive the expiration of
the term of this Lease.
36.8 In the event that the payment of any sum required to be paid by
Tenant to Landlord under this Lease (including without limiting the generality
of the foregoing, Minimum Rent, Adjusted Minimum Rent, or payment made by
Landlord under any provision of this Lease for which Landlord is entitled to
reimbursement by Tenant) shall become overdue for 10 days beyond the date on
which they are due and payable as provided in this Lease, then a delinquency
service charge equal to four percent of the amount overdue shall become
immediately due and payable to Landlord as liquidated damages for Tenant's
failure to make prompt payment. Further, such delinquency service charge shall
be payable on the first day of the month next succeeding the month during which
such late charges become payable as additional rent, together with interest at
the maximum rate permitted by law on the amounts overdue from the date on which
they became due and payable. In the event of nonpayment of any delinquency
service charges and interest provided for above, Landlord shall have, in
addition to all other rights and remedies, all the rights and remedies provided
for herein and by law in the case of nonpayment of rent. No failure by Landlord
to insist upon the strict performance by Tenant of Tenant's obligations to pay
late charges shall constitute a waiver by Landlord of its rights to enforce the
provisions of this Section
4
36.8 in any instance thereafter occurring. The provisions of this Section 36.8
shall not be construed in any way to extend any time period provided for in this
Lease.
36.9 If Tenant fails to remit when due any sum required to be paid by
Tenant to Landlord under this Lease (including, without limiting the generality
of the foregoing, Minimum Rent, Adjusted Minimum Rent, or payment made by
Landlord under any provision of this Lease for which Landlord is entitled to
reimbursement by Tenant), Landlord may, in addition to all other rights and
remedies provided herein and by law, serve a written notice of cancellation of
this Lease upon Tenant and if Tenant fails to cure the applicable default or
defaults within ten (10) days after receipt of the above-referenced notice, this
Lease and the term thereof shall terminate and expire as fully and completely as
if the day on which said notice of cancellation was given were the day herein
definitely fixed for the end and expiration of this Lease and the term thereof
and Tenant shall then quit and surrender the Demised Premises to Landlord but
Tenant shall remain liable as herein provided. Following each second
consecutive monthly installment of Adjusted Minimum Rent that remains unpaid for
longer than ten (10) days beyond the date on which same is due and payable,
Landlord may, in addition to all other rights and remedies provided herein and
by law, require that (i) beginning with the first monthly installment of
Adjusted Minimum Rent next due, the Adjusted Minimum Rent shall no longer be
paid in monthly installments but shall be payable in advance on a quarterly
basis and/or (ii) Tenant increase the amount of the security deposited with
Landlord by an amount equal to two (2) months' Minimum Rent. If Tenant shall
deliver to Landlord a check that is returned unpaid for any reason, Tenant shall
pay Landlord TWENTY FIVE AND 00/100 DOLLARS ($25.00) for Landlord's expense in
connection therewith and said charge shall be payable to Landlord on the first
day of the next succeeding month as additional rent.
37. COMMENCEMENT OF TERM; COMMENCEMENT DATE;
ESTIMATED COMMENCEMENT DATE AND TERMINATION DATE
------------------------------------------------
37.1 The parties intended that the Lease shall commence on or about
February 25, 1994 (the "Estimated Commencement Date"). Notwithstanding the
above, the commencement date ("Commencement Date") as defined, fixed and
ascertained in this Article shall be the date upon which the work required to be
performed by the Landlord pursuant to the Work Letter attached hereto a Exhibit
"B" (the "Work"), shall be substantially completed. The Work shall be deemed to
be substantially completed ("Substantial Completion") for all purposes
hereunder, on the earlier of the date upon which:
A. (i) Landlord has procured a temporary or permanent Certificate of
Occupancy, permitting occupancy of the Demised Premises by the Tenant ; and (ii)
the Landlord's architects shall have certified that Landlord has substantially
performed the Work. Substantial Completion shall be deemed to have occurred even
though minor details of work remain to be done, provided such details do not
materially interfere with the Tenant's use of the Demised Premises,
or
B. Tenant shall have taken possession of all or any part of the
Demised Premises.
37.2 On or about the Commencement Date, Landlord shall deliver to
Tenant a notice ("Commencement Date Notice") fixing the Commencement Date and
termination date which shall be a date six (6) years after the Commencement
Date ("Termination Date"). Tenant shall acknowledge receipt of the Commencement
Date Notice by signing a copy of same and returning it to Landlord within five
(5) days of the receipt thereof.
37.3 The date upon which Tenant's obligation to pay Minimum Rent due
hereunder commences ("Rent Commencement Date") shall be deemed to be three (3)
months after the Commencement Date. Notwithstanding the foregoing, Tenant shall
pay Landlord upon the
5
execution of this Lease the first monthly installment of Minimum Rent and the
security referred to in Articles 34 and 62 hereof.
37.4 If, prior to the Commencement Date, Tenant shall enter the
Demised Premises to make any installations of its equipment, fixtures and
furnishings, Landlord shall have no liability for any personal injury or
property damage suffered by Tenant.
37.5 Anything contained in this Article 37 to the contrary
notwithstanding, if for any reason the Premises are not ready for occupancy on
the Estimated Commencement Date, this Lease shall nevertheless continue in full
force and effect; the Commencement Date shall be postponed until Substantial
Completion has occurred and the Rent Commencement Date shall be postponed for a
like number of days, subject to Article 64. The Termination Date shall be
adjusted to provide the full term set forth above.
38. TENANT'S POSSESSION
-------------------
38.1 When Tenant takes possession of the Demised Premises, Tenant
shall be deemed to have accepted the Demised Premises as substantially completed
as of the date of such possession, subject to Tenant's punch-list items.
39. HEATING, AIR-CONDITIONING AND VENTILATION;
LEGAL HOLIDAYS; "AFTER HOURS"
------------------------------------------
39.1 Notwithstanding the provisions of subsections (b) and (e) of
Article 29 of this Lease , but subject to all of the other terms, covenants and
conditions of said Article 29, Landlord shall provide and furnish appropriate
heat, air-conditioning or ventilation to the Demised Premises between the hours
of 8:00 a.m. to 6:00 p.m., Monday through Friday, other than Legal Holidays
(which are listed on Exhibit "E"), attached to this Lease. The heat,
air-conditioning or ventilation supplied to the Demised Premises shall be
consistent with other similarly situated office buildings in the Parsippany-Xxxx
Hills area.
39.2 At all other times not otherwise provided for in Section 39.1
above, Landlord agrees that it shall, upon prior written request from Tenant,
provide after-hours air-conditioning, ventilation or heating, as the case may
be, for which Tenant shall pay to Landlord as additional rent hereunder, a sum
equal to $50.00 per hour for providing heat, air-conditioning or ventilation
(irrespective of whether any other tenants in the Building are furnished with
heat, air-conditioning or ventilation at the same time) that being intended to
cover Landlord's cost for the power or fuel required to provide the same. In the
event that during the term of this Lease, or any renewal hereof, the Landlord's
cost for providing after-hours heating, air-conditioning or ventilation shall
increase by virtue of utility rate increases or unit fuel cost increases, the
above-specified hourly charges shall be adjusted from time to time to reflect
said increases. In addition to the foregoing, should there be any charges
incurred by Landlord for additional attendant engineers or similar additional
requirements as may be imposed from time to time by the State Labor Department,
local authorities, union requirements, or the like, Tenant agrees to reimburse
Landlord for its out-of-pocket expenses incurred in connection therewith,
related to the after-hours use by Tenant.
40. ELECTRIC CURRENT
----------------
40.1 Landlord's obligation to supply current shall be limited to the
current required to power the Building standard heating and air-conditioning
systems and the lighting of common areas.
40.2 Tenant shall arrange to purchase and pay for all of the electric
current requirements for light and power used in connection with Tenant's
operations within the Demised Premises. Landlord shall furnish and install an
electric meter for the
6
measurement of the consumption of Tenant's electric current as herein provided.
40.3 At the request of Landlord prior to the occupancy of the Demised
Premises, Tenant shall execute any and all applications for service, or forms
required by the local utility company supplying electric current to the Building
for the metering of all electric current and power required for the operation
of the electrical equipment of any nature whatsoever and lights within or
serving the Demised Premises.
40.4 Tenant's electric consumption within the Demised Premises shall
be measured by a separate electric meter within the Demised Premises. Tenant
shall pay its own electric costs directly to the utility company serving the
Demised Premises and the provisions of Sections 40.1 and 40.2 shall thereupon
apply hereunder.
41. LIABILITY INSURANCE
-------------------
41.1 Tenant, at its sole cost and expense, shall procure, provide and
maintain in force during the term of this Lease the following policies to be
written by good and solvent insurance companies satisfactory to Landlord having
a policyholders' rating of no less than A+ XV as determined by the AM Best
Company, or any successor thereto: (1) comprehensive general liability
insurance, which shall include coverage for personal liability, contractual
liability, Tenant's legal liability, bodily injury, death and property damage,
all on an occurrence basis with respect to the business carried on, in or from
the Demised Premises and Tenant's use and occupancy of the Demised Premises,
with coverage for any one occurrence or claim of not less than $1,000,000 or
such other amount as Landlord may reasonably require upon not less than six (6)
months' prior written notice. Such insurance shall include Landlord and the
managing agent of the Building as additional insureds and shall protect Landlord
in respect of claims by Tenant as if Landlord were separately insured; and (2)
insurance against such other perils and in such amounts as may be required by
law upon not less than thirty (30) days' prior written notice.
41.2 Each of the aforesaid policies shall contain an undertaking by
the insurer that no material change adverse to Landlord or Tenant will be made
and such policy will not lapse or be cancelled, except after not less than
thirty (30) days' prior written notice to Landlord of the intended change, lapse
or cancellation. On or before the Commencement Date and thereafter, at least
thirty (30) days prior to the effective date of any policy, Tenant agrees to
deliver to Landlord a duplicate original of the aforesaid policies.
42. ALL RISK INSURANCE
------------------
41.1 Tenant, at its sole cost and expense, shall procure, provide and
maintain in force during the term of this Lease the following policy to be
written by a good and solvent insurance company satisfactory to Landlord having
a policyholders' rating of no less than A+ XV as determined by the AM Best
Company, or any successor thereto: "All Risk" insurance, which shall cover the
Demised Premises, Tenant's personal property, equipment and improvements against
loss or damage by fire and any other hazards or casualties in an amount to
provide for the actual replacement cost of the Demised Premises, Tenant's
personal property, equipment and improvements. Such insurance shall include
Landlord and the managing agent of the Building as additional insureds and shall
protect Landlord in respect of claims by Tenant as if Landlord were separately
insured. The aforesaid "All Risk" policy shall contain an undertaking by the
insurer that no material change adverse to Landlord or Tenant will be made and
such policy will not lapse or be cancelled, except after not less than ninety
(90) days' prior written notice to Landlord of the intended change, lapse, or
cancellation. On or before the Commencement Date and thereafter, at least thirty
(30) days prior to the effective date of the "All
7
Risk" policy, Tenant agrees to deliver to Landlord a duplicate original of said
policy.
42.B LANDLORD'S INSURANCE
--------------------
42B.1 Throughout the term of this Lease, Landlord shall maintain in
full force and effect a comprehensive liability policy and an all risk insurance
policy for the full replacement value of the Building.
43. PARKING FACILITIES
------------------
43.1 So long as Tenant is not in default under this Lease, Landlord
hereby grants to Tenant the revocable license (the "License") to park up to
forty eight (48) cars ("Allotted Parking"), for use solely by Tenant and
Tenant's employees, licensees, guests and invitees in the parking area or areas
serving the Building (the "Parking Area"). Landlord agrees to xxxx once, at
Tenant's expense, as the designated parking spaces of Tenant four (4) parking
spaces within the Parking Area. Such designations shall not increase the
Allotted Parking defined in the first sentence of this Section. The use of any
more than the Allotted Parking by Tenant, its employees, licensees, guests or
invitees, after notice from Landlord at least two (2) times during any calender
year, shall be deemed a material event of default under this Lease, and Landlord
may immediately suspend or revoke the License, remove Tenant's designations from
any parking spaces so marked and/or exercise such remedies as are provided in
this Lease. Landlord shall not be responsible to Tenant (i) if Tenant's
designated parking spaces are used by anyone other than Tenant, its employees,
licensees, guests and invitees, (ii) for enforcing the License or (iii) for
violation of the License by other tenants of the Building, by third parties, or
guests or visitors to the Building.
43.2 In the event the number of parking spaces in the Parking Area is
reduced by circumstances beyond the control of Landlord, the Allotted Parking
shall be reduced proportionately.
43.3 Nothing contained in this Lease shall be deemed to create
liability upon Landlord for any damage to motor vehicles of visitors or
employees, for any loss of property from within those motor vehicles, or for any
injury to Tenant, its employees, licensees, guests and invitees unless
ultimately determined to be caused by the sole negligence or willful misconduct
of Landlord, its agents, servants and employees. Tenant agrees to acquaint its
employees with any parking rules and regulations promulgated by Landlord and
assumes responsibility for compliance by its employees with such parking
provisions, and Tenant shall be liable to Landlord for all unpaid parking
charges, if any, incurred by its employees. Any amount due from Tenant pursuant
to this Article 43 shall be deemed additional rent and failure to pay same shall
constitute a default under the Lease. If Tenant or its employees, licensees,
guests and invitees park illegally or in areas designated for use by others, or
in driveways, fire lanes or areas not striped for general parking, then Landlord
may charge Tenant, as additional rent, FIFTY and 00/100 DOLLARS ($50.00) per
day for each day or partial day each motor vehicle is so parked. In addition,
Tenant authorizes Landlord to (i) tow away from the Parking Area, at Tenant's
sole cost and expense, any motor vehicle belonging to Tenant or Tenant's
employees, licensees, guests and invitees parked illegally or in violation of
this Article 43 or any parking rules and regulations promulgated by Landlord
after notice to Tenant and (ii) attach violation stickers or notices to any
motor vehicles belonging to Tenant or Tenant's employees, licensees, guests and
invitees parked illegally or in violation of this Article 43 or any parking
rules and regulations promulgated by Landlord.
44. ACCESS AND COMMON AREAS
-----------------------
44.1 Tenant shall have the right of nonexclusive use, in common with
others, of (a) automobile parking areas not designated for use by others and
driveways (subject to Article 43 hereof); (b)
8
footways, and (c) such elevator and other facilities as may be constructed and
designated from time to time by Landlord in the Building, all to be subject to
the terms and conditions of the Lease and to reasonable rules and regulations
for the use thereof as prescribed from time to time by Landlord.
45. RELOCATION
----------
45.1 If the Demised Premises contain less than 10,000 square feet of
rentable area, Landlord shall have the right, at its option, upon at least sixty
(60) days' written notice to Tenant, to relocate Tenant and to substitute for
the Demised Premises other space within the office park of which the Building
forms a part containing at least as much rentable area as the Demised Premises
(the "Substitute Premises"). The Substitute Premises shall be improved by
Landlord at its expense, with decorations and improvements that are
substantially comparable in quantity and quality to those provided by Landlord
in the original Demised Premises. Landlord shall pay the expenses reasonably
incurred by Tenant in connection with such substitution, including but not
limited to costs of moving, door lettering and telephone relocation. The
Substitute Premises shall become the "Demised Premises" for purposes of this
Lease following Tenant's taking occupancy thereof.
46. BROKER
------
46.1 Tenant and Landlord each represents to the other that no real
estate broker other than Xxxxxxx Xxx of Xxxxxx Xxxxxx & Associates is
responsible for bringing about, or negotiating, this Lease and Tenant and
Landlord have not dealt with any other broker in connection with the Demised
Premises.
46.2 In accordance with the foregoing representation, Tenant and
Landlord each agrees to defend, indemnify and hold harmless the other, its
affiliates and/or subsidiaries, partners and officers from any expense or
liability (including attorney's fees) arising out of any claim for commission by
any broker other than Xxxxxxx Xxx of Xxxxxx Xxxxxx & Associates claiming or
alleging to have acted on behalf of or to have dealt with Tenant or Landlord, as
applicable. Landlord agrees to pay a commission to the broker for facilitating
this transaction in accordance with a separate agreement between the Landlord
and said broker.
47. CLEANING SERVICES
-----------------
47.1 So long as Tenant is not in default under this Lease, Landlord
shall provide services for maintenance of the grounds, common areas and parking
areas and such other cleaning services within the Demised Premises as are set
forth on "Cleaning Services Rider" annexed hereto and made a part hereof as
Exhibit "D", as same may be reasonably amended from time to time by Landlord.
47.2 Tenant acknowledges that Landlord's obligation to cause the
office areas of the Demised Premises to be cleaned excludes any portions of the
Demised Premises which are inaccessible to Landlord or Landlord's cleaning
contractor. Tenant shall pay to Landlord the cost of removal from the Demised
Premises of any of Tenant's refuse or rubbish other than ordinary office waste,
and Tenant, at Tenant's expense, shall cause all portions of the Demised
Premises not used as office areas to be cleaned daily in a manner satisfactory
to Landlord. Tenant also shall cause all portions of the Demised Premises used
for the storage, preparation, service or consumption of food or beverages to be
exterminated against infestation by vermin, roaches or rodents regularly and, in
addition, whenever there shall be evidence of any infestation. Tenant shall
contract directly with Landlord or, at Landlord's option, directly with
Landlord's contractors, for the removal of such other refuse and rubbish and for
cleaning services in addition to those furnished by Landlord and for
extermination services required hereunder.
9
48. ASSIGNMENT AND SUBLETTING
-------------------------
48.1 For purposes of this Article and Article 11, any occupancy
arrangement (including without limitation management agreements, concessions and
licenses) affecting all or any part of the Demised Premises, other than a direct
lease with Landlord, not deemed an assignment shall be referred to as a sublease
and any occupant of all or part of the Demised Premises, other than a tenant
under a direct lease with Landlord, not deemed an assignee shall be referred to
as a sublessee. Supplementing the provisions of Article 11, and except as
provided in section 48.8 if the Tenant shall desire to assign this Lease, sublet
or underlet all or any portion of the Demised Premises, it shall first submit in
writing to the Landlord a notice setting forth in reasonable detail:
(a) the identity and address of the proposed assignee or sublessee;
(b) in the case of a subletting, the terms and conditions thereof;
(c) the nature and character of the business of the proposed
assignee and sublessee and its proposed use for the Demised Premises;
(d) evidence that the proposed assignee or sublessee is a United
States citizen or citizens or a corporation qualified to do business in the
State of New Jersey and organized and existing under the laws of one of the
States of the United States;
(e) banking, financial and other credit information relating to the
proposed assignee or sublessee reasonably sufficient to enable Landlord to
determine the proposed assignee's or sublessee's financial responsibility; and
(f) in the case of a subletting of only a portion of the Demised
Premises, plans and specifications for Tenant's layout, partitioning, and
electrical installations for the portion of the Demised Premises to be sublet.
48.2 If the nature and character of the business of the proposed
assignee or sublesse, and the proposed use and occupancy of the Demised
Premises, or any portion thereof, by the proposed assignee or sublessee, is in
keeping and compatible with the dignity and character of the Building, then,
subject to compliance with the requirements of Article 11 and this Article 48,
anything to the contrary in Article 11 notwithstanding, Landlord agrees not
unreasonably to withhold or delay its consent to any such proposed assignment or
subletting; provided, however, that Tenant shall, by notice in writing as
described in Section 48.1, advise Landlord of its intention to assign this Lease
or to sublease all or any part of the Demised Premises, from, on and after a
stated date (which shall not be less than 60 days after the date of Tenant's
notice), in which event Landlord shall have the right, to be exercised by giving
written notice, to recapture the space described in Tenant's notice. Such
recapture notice shall, if given, cancel and terminate this Lease with respect
to the space therein described as of a date which shall be the later of 30 days
following the date set forth in Tenant's notice, or 30 days after Tenant shall
have surrendered possession of the Demised Premises. In the event less than all
of the Demised Premises are recaptured, Landlord shall construct and erect such
partitioning and modify building systems as may be required to separate the
space retained by Tenant from the space recaptured. The cost of such alterations
shall be borne by Landlord.
48.3 If this Lease be cancelled pursuant to the foregoing with
respect to less than the entire Demised Premises, the Minimum Rent and/or the
Adjusted Minimum Rent and Tenant's Occupancy Percentage shall be adjusted on the
basis of the number of square feet retained by Tenant in proportion to the
number of square feet originally demised under this Lease, and this Lease, as so
amended, shall continue thereafter in full force and effect.
10
48.4 In addition to the foregoing requirements: (a) no sublease shall
violate any law or result in an occupancy of the Demised Premises by more than
two tenants, including the Tenant hereunder, (b) no sublease shall be for a term
of less than two years, unless the unexpired term of this Lease shall be less
than two years at the commencement of the sublease, (c) no assignee or sublessee
shall be an existing tenant of or any party then negotiating for space in the
Building, or any other building in the office park of which the Building is a
part (i) owned by Landlord, Bellemead Development Corporation ("Bellemead") or
any partnership in which Bellemead or an affiliate of Bellemead is a partner or
(ii) managed by Bellemead or an affiliate of Bellemead ("Affiliated Building"),
(d) no sublease shall result in the occupancy of less than 1000 square feet of
space, (e) Tenant shall not be in default under any of the terms and conditions
of this Lease at the time of any notice or request for consent under the terms
of this Article or at the effective date of such assignment or subletting, (f)
no subletting or assignment shall be for a rental rate less than that currently
being charged by Landlord for comparable space in the Building or any Affiliated
Building. Furthermore, anything to the contrary in Section 48.2 notwithstanding,
Landlord shall not consent to any sublease or assignment unless Tenant agrees at
the time of the proposed sublease or assignment and in the Tenant's notice
required in Section 48.2 to pay over to Landlord seventy-five (75%) percent of
all consideration (of whatever nature) that would be payable by the prospective
sublessee or assignee to Tenant over the term of the sublease or assignment
pursuant to such sublease or assignment which exceeds the prorata share of the
-------
Minimum Rent allocable to the Demised Premises, or any part thereof, as the case
may be, payable by Tenant hereunder and (g) Tenant shall pay when due all
brokerage or similar commissions arising from any assignment or sublease.
48.5 Any sublease must provide (a) that it shall be subject and
subordinate to all of the terms and conditions of this Lease, (b) that
notwithstanding Article 2 hereof, the use of the Demised Premises thereunder
shall be restricted exclusively to executive and administrative office use, (c)
that the term thereof shall not extend beyond a date which is one day prior to
the expiration date of the Term hereof, (d) no sublessee or its heirs,
distributees, executors, administrators, legal representatives, successors or
assigns, without the prior consent of Landlord in each instance, which consent
Landlord may withhold for any reason or no reason, shall (i) assign, whether by
merger, consolidation or otherwise, mortgage or encumber its interest in any
sublease, in whole or in part, or (ii) sublet, or permit the subletting of, that
part of the Demised Premises affected by such subletting or any part thereof, or
(iii) permit such part of the Demised Premises affected by such subletting or
any part thereof to be occupied or used for desk space, mailing privileges or
otherwise, by any person other than such sublessee. The sale, pledge, transfer
or other alienation of (y) any of the issued and outstanding capital stock of
any corporate sublessee (unless such stock is publicly traded on any recognized
security exchange or over-the-counter market) or (z) any transfer or interest in
any partnership or joint venture sublessee, however accomplished, and whether in
a single transaction or in a series of related or unrelated transactions, shall
be deemed, for the purposes of this Section, an assignment of such sublease
which shall require the prior consent of Landlord in each instance, and (e) in
the event of cancellation or termination of this Lease for any reason whatsoever
or of the surrender of this Lease whether voluntary, involuntary or by operation
of law, prior to the expiration date of such sublease, including extensions and
renewals granted thereunder, that, at Landlord's options, the subtenant shall
vacate the Demised Premises or shall make full and complete attornment to
Landlord for the balance of the term of the sublease, which attornment shall be
evidenced by an agreement in form and substance satisfactory to Landlord which
the subtenant shall execute and deliver at any time within five days after
request by Landlord, its successors and assigns. The subtenant shall waive the
provisions of any law now or hereafter in effect which may give the subtenant
any right of election to terminate the sublease or to surrender possession of
the Demised Premises in the event any proceeding is brought by Landlord to
terminate this
11
Lease. No assignee or sublessee shall receive any credit from Landlord
whatsoever for security deposits, rent or any other monies paid to Tenant unless
same shall have been actually received by Landlord.
48.6 Each of the following events shall be deemed to constitute an
assignment of this Lease and shall require the prior written consent of Landlord
in each instance:
(a) Any assignment or transfer of this Lease by operation of law;
(b) Any hypothecation, pledge or collateral assignment of this
Lease;
(c) Any involuntary assignment or transfer of this Lease in
connection with bankruptcy, insolvency, receivership or otherwise;
(d) Any assignment, transfer, disposition, sale or acquiring of a
controlling interest in Tenant to or by any person, entity or group of related
persons or affiliated entities, whether in a single transaction or in a series
of related or unrelated transactions; and
(e) Any issuance of an interest or interests in Tenant (whether
stock, partnership interests or otherwise) to any person, entity or group of
related persons or affiliated entities, whether in a single transaction or in a
series of related or unrelated transactions, such that following such issuance,
such person, entity or group shall hold a controlling interest in Tenant.
For purposes of the immediately preceding sentence, a "controlling interest" of
Tenant shall mean fifty (50%) percent or more of the aggregate issued and
outstanding equitable interest (whether stock, partnership interests or
otherwise) thereof.
48.7 Tenant, its sublessees, and their respective successors and
assigns acknowledge and agree that the restriction that Landlord's consent under
certain circumstances to a proposed assignment of this Lease or to a subletting
shall not be unreasonably withheld and shall not be intended or construed as an
agreement or covenant on the part of Landlord, but rather as a qualification on
Tenant's covenant not to assign this Lease or sublet, and they further agree
that Landlord shall not be liable in damages or subject to liability of any
other kind or nature whatever by reason of Landlord's failure or refusal to
grant its consent to any proposed assignment of this Lease or subletting of the
Demised Premises, the sole and exclusive recourse being a declaratory judgment
on the question of Landlord's reasonableness.
48.8 It is a condition to the effectiveness of any permitted
assignment or sublease otherwise complying with Article 11 and this Article 48
that the (i) Tenant increase on Landlord's demand the amount of security
deposited with Landlord by a sum not to exceed two (2) months Adjusted Minimum
Rent and (ii) assignee execute, acknowledge and deliver to Landlord an agreement
in form and substance satisfactory to Landlord whereby the assignee assumes all
obligations of Tenant under this Lease, and agrees that the provisions of
Article 11 and this Article 48 shall continue to be binding upon it in respect
of all future assignments of this Lease. No assignment of this Lease shall
release the assignor from its continuing obligations to Landlord under this
Lease or any renewals or extensions thereof, except as expressly herein
provided, and Tenant and any subsequent assignor shall continue to remain
jointly and severally liable (as primary obligor) for all of Tenant's
obligations hereunder.
48.9 Tenant covenants to obtain all permits and approvals required by
any governmental or quasi-governmental agency for any work or otherwise required
in connection with any assignment of this Lease or any sublease, and Tenant
shall deliver copies of the same to Landlord prior to the commencement of work
if work is to be done. Tenant is furthermore responsible for and is
12
required to reimburse Landlord for all costs including, but not limited to,
architectural, engineering and legal fees which Landlord incurs in reviewing any
proposed assignment of this Lease or any sublease and any permits, approvals and
applications for the construction within the Demised Premises.
48.10 If Landlord reasonably withholds its consent of any proposed
assignment or sublease, or if Landlord exercises its recapture option under
Section 48.2, Tenant shall indemnify, defend and hold harmless Landlord against
and from all loss, liability, damage, cost and expense (including reasonable
attorneys' fees and disbursements) resulting from any claims that may be made
against Landlord by the proposed assignee or sublessee or by any brokers or
other persons claiming a commission or similar compensation in connection with
the proposed assignment or sublease.
48.11 If Landlord consents to any proposed assignment or sublease and
Tenant fails to consummate the assignment or sublease to which Landlord
consented within 45 days after the giving of such consent, Tenant shall be
required again to comply with all of the provisions and conditions of this
Article 48 before assigning this Lease or subletting all or part of the Demised
Premises.
48.12 The joint and several liability of the named Tenant and any
immediate or remote successor in interest of the named Tenant for the due
performance and observance of all covenants and conditions to be performed and
observed by Tenant shall not be impaired by any agreement of Landlord extending
the time for such performance or observance or by Landlord's waiving or failing
to enforce any provisions of this Lease.
48.13 The listing of any name other than that of Tenant on any door of
the Demised Premises or on any directory or in any elevator in the Building or
otherwise, shall not operate to vest in the person so named any right or
interest in this Lease or in the Demised Premises or the Building, or be deemed
to constitute, or serve as a substitute for any prior consent required under
this Article, and it is understood that any such listing shall constitute a
privilege extended by Landlord which shall be revocable at Landlord's will by
notice to Tenant.
48.14 Any provisions of Article 11 and Article 48 to the contrary
notwithstanding, but subject to the other terms, conditions and provisions
contained in said Articles:
(a) Any corporate Tenant shall have the right, without the consent of
Landlord, to assign this Lease or sublet all or any part of the Demised
Premises to any corporation controlling, controlled by or under common
control with Tenant, provided that no such assignee shall further assign
--------
this Lease and no such sublessee shall assign or encumber its sublease or
further sublet all or any part of the Demised Premises, and provided,
--------
further, that any event resulting in such assignee or sublessee ceasing to
-------
be a corporation controlling, controlled by or under common control with
Tenant shall be deemed to be an assignment or sublease requiring the prior
consent of Landlord and Tenant shall thereupon be required to comply with
all provisions of Article 11 and this Article 48 applicable thereto. For
purposes of the immediately foregoing, "control", means ownership of at
least fifty one percent (51%) of the issued and outstanding voting stock of
such corporation.
(b) Any corporate Tenant shall also have the right, without the
consent of Landlord, to assign this Lease to any corporation succeeding to
Tenant by merger or consolidation in accordance with applicable statutory
provisions for merger or consolidation of corporations or by purchase of
all or substantially all of Tenant's assets, provided that immediately
after such merger, consolidation or purchase, the shareholders' equity
(capital stock, additional paid-in capital and retained earnings) of the
successor corporation or the purchasing corporation, as the case may be,
shall be at least equal to the shareholder's equity of Tenant immediately
13
prior to such merger, consolidation or purchase and this shall be so
certified by the chief financial officer of the assignee.
It is Landlord's intent to permit assignment of the Lease and subletting
pursuant to this Section 48.14 exclusively as an accommodation to the bona fide
and legitimate business needs of Tenant, and notwithstanding the provisions
hereof, no assignment of this Lease or sublease of all or any part of the
Demised Premises without Landlord's consent hereunder shall be permitted where
the sole or primary purpose of such assignment or subletting is to permit
occupancy of all or any part of the Demised Premises by a third party in
avoidance of Landlord's consent, or in the case of a corporation's purchasing
all or substantially all of Tenant's assets where this Lease constitutes all or
a substantial portion of such assets.
Tenant shall promptly give Landlord prior written notice of any assignment
of this Lease or subletting permitted under this Section 48.14 accompanied by
all documentation required by Landlord to establish compliance with the
requirements of subsections (a) and (b) above and Tenant shall also promptly
provide Landlord with a copy of any executed instrument of merger, consolidation
or assignment or the executed sublease, as the case may be.
49. TENANT'S COOPORATION; REASONABLE
MODIFICATIONS; ESTOPPEL CERTIFICATE
-----------------------------------
49.1 If, in connection with obtaining financing for the Building
and/or the Real Estate, or otherwise upon the interest of the Landlord, as
lessee, under any ground or underlying lease, any lending institution shall
request reasonable modifications of this Lease as a condition of such financing,
Tenant covenants not unreasonably to withhold or delay its agreement to such
modification, upon Landlord's request, provided that such modification does not
materially or adversely affect the rights of Tenant under this Lease.
49.2 Tenant agrees at any time and from time to time, upon not less
than ten days' prior written request, that Tenant shall execute, acknowledge
and deliver to Landlord, or its designee, a statement in writing certifying:
that this Lease is unmodified and is in full force and effect (or if there have
been modifications, the specifics thereof and that the Lease is in full force
and effect as modified); the dates to which the Minimum Rent (or Adjusted
Minimum Rent) and additional rent have been paid; the amount of all rents paid
in advance, if any; and any other information that Landlord shall reasonably
request. Tenant further agrees to furnish Landlord upon demand at any time such
information and assurances as Landlord may request that Tenant has not breached
the provisions of this Lease. It is intended hereby that any such statement
delivered pursuant to this Article may be relied upon by a prospective purchaser
of the Landlord's interest or a mortgagee of Landlord's interest, or any
assignee of any mortgage upon Landlord's interests in the Real Estate. The
foregoing obligation shall be deemed a substantial obligation of the tenancy,
the breach of which shall give Landlord those remedies herein provided for an
event of default. Tenant's failure to timely deliver such statement shall be
conclusive upon Tenant: (a) that this Lease is in full force and effect, without
modification except as may be represented by Landlord; (b) that there are no
uncured defaults in Landlord's performance and Tenant has no right of offset,
counterclaim, defenses or deduction against the Minimum Rent, Adjusted Minimum
Rent, additional rent or against Landlord; and (c) that no more than one month's
installment of Minimum Rent has been paid in advance.
49.3 Tenant agrees at any time it is in monetary default hereunder
that Tenant shall demonstrate to Landlord upon not less than ten (10) days prior
written request Tenant's financial status and that of any occupant of the
Demised Premises by submitting to Landlord all reasonable information as
Landlord may request, including but not limited to a balance sheet as of a date
within ninety (90) days of Landlord's request therefor and statements of
14
income or profit and loss. The foregoing obligation shall be deemed a
substantial obligation of the tenancy, the breach of which shall give Landlord
those remedies herein provided for an event of default.
50. LIMITATION OF LIABILITY;
DEFINITION OF "LANDLORD"
------------------------
50.1 Notwithstanding anything to the contrary herein provided, each
and every term, covenant, condition and provision of this Lease, is hereby made
specifically subject to the provisions of this Article 50. The term "Owner" or
"Landlord" as used in this Lease means only the owners or lessors for the time
being of the Real Estate, so that in the event of any conveyance of such
interest and the transfer to the transferee of any funds then being held under
this Lease by such owner, Landlord shall be and hereby is entirely freed and
relieved of any and all obligations of Landlord hereunder thereafter accruing,
and it shall be deemed without further agreement between the parties and such
grantee(s) that the grantee has assumed and agreed to observe and perform all
obligations of Landlord hereunder. It is specifically understood and agreed that
notwithstanding anything to the contrary herein provided or otherwise provided
at law or in equity, there shall be absolutely no personal liability in excess
of its interest in the Real Estate to the Landlord or any successor in interest
thereto (whether the same be an individual, joint venture, tenancy in common,
firm or partnership, general, limited or otherwise) or on the part of the
members of any firm, partnership or joint venture or other unincorporated
Landlord with respect to any of the terms, covenants and/or conditions of this
Lease; in the event of a breach or default by Landlord, or any successor in
interest thereof, of any of its obligations under this Lease, Tenant shall look
solely to the then Landlord for the satisfaction of each and every remedy of
Tenant, such exculpation of personal and additional liability which is in excess
of such interest in the Real Estate to be absolute and without any exception
whatsoever.
51. STATUTORY WAIVER; NOTICE BY TENANT
----------------------------------
51.1 Tenant waives the benefit of N.J.S.A. 46:8-6 and 46:8-7, as same
may be amended. Tenant further waives its right under N.J.S.A 2A:18-60, as same
be amended. Tenant agrees that it will not be relieved of the obligations to pay
the Minimum Rent, Adjusted Minimum Rent or any additional rent in case of damage
to or destruction of the Building, except as provided in Article 9 of the
Printed Portion of this Lease.
51.2 Tenant shall give Landlord prompt notice in case of fire or
accident within the Demised Premises, or, upon the Real Estate if involving
Tenant, its servants, agents, guests, employees, invitees or licensees.
52. CORPORATE AUTHORITY
-------------------
52.1 Tenant represents that the officer executing and delivering this
Lease has been duly authorized to enter into this Lease and that the execution
and delivery of this Lease by Tenant do not and shall not violate any provision
of any by-law, agreement, order, judgment, governmental regulation or any other
obligation to which Tenant is a party or is subject.
52.2 Upon Landord's request, Tenant shall deliver an appropriate
certification by its secretary or assistant secretary to the above effect.
52.3 Landlord represents that the officer executing and delivering
this Lease has been duly authorized to enter into this Lease and that the
execution and delivery of this Lease by Landlord do not and shall not violate
any provision of any by-law, agreement, order, judgment, governmental regulation
or any other obligation to which Landlord is a party or is subject.
15
53. PERSONAL TAXES
--------------
53.1 Tenant agrees to pay all taxes imposed upon Tenant or on the
personal property of Tenant in connection with its use and occupancy of the
Demised Premises including, but not limited to, personal property, income,
withholding and unemployment compensation, and to hold Landlord harmless from
collection thereof out of monies due and owing Landlord.
54. BUILDING CHANGES
----------------
54.1 This Lease shall not be affected or impaired by any change to
any lawns, sidewalk, driveways, parking areas or streets adjacent to or around
the Building, except as provided in the provisions of this Lease dealing with
condemnation.
55. HOLDING OVER
------------
55.1 Tenant shall pay Landlord one and one-half (1 1/2) times the
fair market rental value of the Demised Premises, as determined by Landlord (but
in no event less than one and one-half (1 1/2) times the total of Adjusted
Minimum Rent plus additional rent then applicable under the Lease) for each
month or partial month during which Tenant retains possession of the Demised
Premises, or any part thereof, after the expiration or termination of the Lease.
Tenant understands that on the last day of the term of this Lease, all or a part
of the Demised Premises may be subject to certain rights of occupancy held by
other parties and that any retention of possession by Tenant after the last day
of the term of this Lease may cause significant hardship on Landlord and on
parties to whom certain rights of occupancy for all or any part of the Demised
Premises have been granted. In connection with the foregoing, Tenant shall
defend, indemnify and hold Landlord harmless against all liabilities and damages
sustained by reason of any such retention of possession. Nothing contained in
this Lease shall be construed as a consent by Landlord to the occupancy or
possession by Tenant of the Demised Premises beyond the Termination Date or
prior expiration of the term hereof, and Landlord, upon the Termination Date or
prior expiration of the term hereof, shall also be entitled to consequential
damages and to the benefit of all legal remedies that now may be in force or may
be hereafter enacted for summary possession of the Demised Premises.
56. RESTRICTIVE COVENANT - FOOD SERVICE
-----------------------------------
56.1 Tenant hereby covenants and agrees (anything to the contrary
contained in this Lease, notwithstanding) that it shall not use the Demised
Premises or any portion thereof, for the service of food to anyone other than
Tenant's employees or guests, nor shall it maintain any facilities for the sale
or consumption of food to and by anyone other than Tenant's employees or guests
without, in each case, obtaining the prior written consent of the Landlord. The
consent of the Landlord required hereunder may be withheld for any reason or no
reason.
56.2 Landlord represents to Tenant, and Tenant acknowledges, that
pursuant to agreements made or to be made by and between the Landlord and third
parties for the operation of a restaurant, cafeteria, coffee-cart and similar
food services for this Building and/or other buildings in the office park in
which this Building is located, no tenant of this Building, including Tenant,
shall prepare, contract for, serve or otherwise make available a food service
facility in competition with such third parties. Any breach of this restriction
by the Tenant shall be deemed a material event of default under the terms of
this Lease, and Landlord may, in its discretion, exercise such remedies as it
may deem appropriate to terminate this Lease, prevent a violation of this
covenant, and recover any damages to which it may be exposed by virtue of a
breach by the Tenant.
56.3 Tenant shall not permit the consumption of food or drink in the
common areas of the Building.
16
57. NOTICES
-------
57.1 All notices, demands and requests which may or are required to
be given by either party hereunder to the other, shall be in writing. All
notices, demands and requests by Landlord to Tenant shall be deemed to have been
properly given if sent by Landlord or its managing agent and mailed by
registered or certified mail, return receipt requested, postage prepaid,
addressed to Tenant at the Demised Premises with a copy to Xxxxxx X. Xxxxxxxxx,
Esq., Schenck, Price, Xxxxx & King, 00 Xxxxxxxxxx Xxxxxx, X.X. Xxx 000,
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000 or to such other address as Tenant may from
time to time designate by written notice to Landlord.
All notices, demands and requests by Tenant to Landlord shall be
deemed duly given or served if, and shall not be deemed duly given or served
unless, sent by (i) registered or certified mail, return receipt requested,
postage prepaid, (ii) any nationally recognized overnight delivery service, or
(iii) via facsimile transmission with evidence of transmission, in each case
addressed to Landlord at:
LANDLORD: 6 Century Associates
c/o Bellemead Management Co., Inc.
280 Corporate Center
0 Xxxxxx Xxxx Xxxx
Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Legal Department
or to such other address as Landlord may from time to time designate by written
notice to Tenant.
All notices referred to hereunder shall be deemed given and received
two days after the date said notice is mailed by United States registered or
certified mail as aforesaid, in any post office or branch post office regularly
maintained by the United States Government, unless said notice was personally
served upon an officer of Landlord or Tenant, in which case such notice shall be
deemed given when delivered.
58. INTERPRETATION
--------------
58.1 If any term or provisions of this Lease or the application
thereof to any party or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Lease or the application of such term or
provision to parties or circumstances other than to those with respect to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Lease shall be valid and enforced to the fullest
extent permitted by law.
58.2 Time is of the essence with respect to the Tenant's obligation
to pay Minimum Rent, Adjusted Minimum Rent and additional rent hereunder.
58.3 In any and all cases where Landlord's consent or approval is
required under this Lease, Tenant shall upon Landlord's demand reimburse
Landlord, as additional rent, for all reasonable costs and expenses, including
but now limited to architectural, engineering and legal fees, which Landlord
incurs in determining whether to grant its consent or approval.
58.4 Tenant shall pay all reasonable legal fees and expenses incurred
by Landlord (i) in interpreting, enforcing or modifying the terms of the Lease,
(ii) in commencing and prosecuting a suit for the recovery of the Demised
Premises, damages or any amounts owed to Landlord, (iii) in commencing and
prosecuting a declaratory action, (iv) in defending an action or counterclaim
brought by Tenant and (v) in preparing for or appearing in an arbitration,
mediation or other nonjudicial proceeding.
17
58.5 This Lease shall be governed by and construed in accordance with
the laws of and enforced only in the courts of New Jersey. Tenant hereby
irrevocably submits itself to the jurisdiction of the courts of the State of New
Jersey and to the jurisdiction of the United States District Court for the
District of New Jersey for the purposes of any suit, action or other proceeding
brought by Landlord arising out of or based upon this Lease. Tenant hereby
waives and agrees not to assert, by way of motion, as a defense, or otherwise,
in any such suit, action or proceeding, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Lease may not be enforced in or by
such court.
58.6 This Lease shall be construed without regard to any presumption
or other rule requiring construction against the party causing this Lease to be
drafted. Text deleted from a prior draft of this Lease shall not be admissible
in an action or proceeding relating to the Lease for the purpose of altering or
limiting the meaning or effect of the Lease.
58.7 Tenant and Landlord each acknowledges and agrees that it has had
the assistance of counsel in the review, negotiation and execution of this Lease
or has waived its right to counsel.
59. NO OFFER OR AGREEMENT
---------------------
59.1 No broker or agent of any broker has authority to make or agree
to make a lease or any other agreement or undertaking in connection herewith,
including, but not limited to the modification, amendment of or cancellation of
a lease. The mailing or delivery of this document or any draft hereof by the
Landlord or its agent to Tenant, its agent or attorney shall not be deemed an
offer by the Landlord to lease the Demised Premises on the terms herein. This
Lease shall not be effective, nor shall Tenant have any rights with respect
thereto unless and until Landlord shall accept this Lease and execute and
deliver the same to Tenant.
60. DAMAGES
-------
60.1 Notwithstanding anything to the contrary contained in Article 18
hereof, if Landlord shall re-enter the Demised Premises under the provisions of
Article 18, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action of any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall pay to
Landlord as damages, (i) a sum which at the time of such termination of this
Lease or at the time of any such re-entry by Landlord, as the case may be,
equals the aggregate Adjusted Minimum Rent payable hereunder which would have
been payable by Tenant (conclusively presuming that additional rent on account
of increases in Taxes and Building Operating Costs shall increase at the average
of the rates of increase thereof previously experienced by Landlord during the
period not to exceed 3 years prior to such termination) for the period
commencing with such earlier termination of this Lease or the date of such
re-entry, as the case may be, and ending with the Termination Date, had this
Lease not so terminated or had Landlord not so re-entered the Demised Premises
plus (ii) the expenses or re-letting, including altering and preparing the
Demised Premises for new tenants, brokers' commissions, attorney's fees and all
other expenses properly chargeable against the Demised Premises and the rental
thereof less any sums actually received by Landlord on account of such
re-letting. Any such re-letting may be for a period shorter or longer than the
remaining term of this Lease; but in no event shall Tenant be entitled to
receive any excess of such net rents over the sums payable by Tenant to Landlord
hereunder, or shall Tenant be entitled in any suit for the collection of damages
pursuant to this subsection of a credit in respect of any net rents from a
reletting. If the Demised Premises or any part thereof should be re-let in
combination with the other space, then proper
18
apportionment on a square foot basis shall be made of the rent received from
such re-letting and of the expenses of re-letting.
60.2 Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this Lease would have expired if
it had not been so terminated or had Landlord not re-entered the Demised
Premises. Nothing herein contained shall be construed to limit or preclude
recovery by Landlord against Tenant of any sums or damages to which, in addition
to the damages particularly provided above, Landlord may lawfully be entitled by
reason of any default hereunder on the part of Tenant. Any indemnity of Tenant
shall survive the expiration or earlier termination of this Lease. Nothing
herein contained shall be construed to limit or prejudice the right of Landlord
to prove for and obtain as liquidated damages by reason of the termination of
this Lease or re-entry of the Demised Premises for the default of Tenant under
this Lease, an amount equal to the maximum allowed by any statute or rule of law
governing the proceedings in which such damages are to be proved whether or not
such amount be greater, equal to, or less than any of the sums referred to in
Section 60.1.
61. BANKRUPTCY
----------
61.1 If, as a matter of law, Landlord has no right on the bankruptcy
of Tenant to terminate this Lease, then, if Tenant, as debtor, or its trustee
wishes to assume or assign this Lease, in addition to curing or adequately
assuring the cure of all defaults existing under this Lease on Tenant's part on
the date of filing of the proceeding (such assurances being defined below),
Tenant, as debtor, or the trustee or assignee, must also furnish adequate
assurances of future performance under this Lease (as defined below). Adequate
assurance of curing defaults means the posting with Landlord of a sum in cash
sufficient to defray the cost of such a cure. Adequate assurance of future
performance under this Lease means posting a deposit equal to three (3) months'
rent, including all other charges payable by Tenant hereunder, such as the
amounts payable pursuant to Article 36 hereof, and, in the case of an assignee,
assuring Landlord that the assignee is financially capable of assuming this
Lease, and that its use of the Demised Premises will not be detrimental to the
other tenants in the Building or Landlord. In a reorganization under Chapter 11
of the Bankruptcy Code, the debtor or trustee must assume this Lease or assign
it within one hundred twenty (120) days from the filing of the proceeding, or he
shall be deemed to have rejected and terminated this Lease.
61.2 If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et seq. (the
"Bankruptcy Code"), any and all monies or other considerations to be delivered
in connection with the assignment shall be delivered to Landlord, shall be and
remain the exclusive property of Landlord and shall not constitute property of
Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any
person or entity to which this Lease is assigned pursuant to the provisions of
the Bankruptcy Code shall be deemed to have assumed all of the obligations
arising under this Lease on and after the date of the assignment, and shall upon
demand execute and deliver to Landlord an instrument confirming that assumption.
62. SECURITY
--------
62.1 In the event Landlord applies or retains any portion or all of
the security deposited, Tenant shall forthwith restore the amount so applied or
retained so that at all times the amount deposited with Landlord shall be not
less than $17,504.38.
62.2 Landlord shall deposit any cash security received from Tenant on
the date hereof in an interest bearing account in a commercial banking
institution, subject to Landlord's right to
19
apply the security as provided in Article 34 and subject to Tenant's obligation
to restore the amount of security should Landlord apply or utilize all or any
portion thereof. The interest bearing account in which the security is to be
deposited shall be in a commercial banking institution selected by Landlord and
may from time to time be transferred by Landlord to another commercial banking
institution of Landlord's choice. Any interest earned on the security shall be
earned for the account of Tenant and shall be held by Landlord as additional
security thereunder; except that Landlord may retain one percent (1%) of the
security annually as an administrative fee.
63. PARTNERSHIP TENANT
------------------
63.1 If Tenant is a partnership, joint venture or unincorporated
association (or is comprised of two (2) or more persons, individually and as co-
partners of a partnership) or if Tenant's interest in this Lease shall be
assigned to a partnership, joint venture or unincorporated association (or to
two (2) or more persons, individually and as co-partners of a partnership)
pursuant to Articles 11 and 48 (any such partnership and such persons are
referred to in this Section as "Partnership Tenant"), the following provisions
of this Section shall apply to such Partnership Tenant; (i) the liability of
each of the persons comprising Partnership Tenant shall be joint and several,
individually and as a partner, and (ii) each of the persons comprising
Partnership Tenant, whether or not such person shall be one of the persons
comprising Tenant at the time in question, hereby consents in advance to, and
agrees to be bound by, any written instrument which may hereafter be executed,
changing, modifying or discharging this Lease, in whole or in part, or
surrendering all or any part of the Demised Premises to Landlord, and by any
notices, demands, requests or other communications which may hereafter be given,
by Partnership Tenant or by any of the persons comprising Partnership Tenant,
and (iii) any bills, statements, notices, demands, requests or other
communications given or rendered to Partnership Tenant or to any of the persons
comprising Partnership Tenant shall be deemed given or rendered to Partnership
Tenant and to all such persons and shall be binding upon Partnership Tenant and
all such persons, and (iv) if Partnership Tenant shall admit new partners, all
of such new partners shall, by their admission to partnership Tenant, be deemed
to have assumed performance of all of the terms, covenants and conditions of
this Lease on Tenant's part to be observed and performed, and shall be liable
for such performance, together with all other partners, jointly or severally,
individually and as a partner, and (v) if any partners shall leave Partnership
Tenant, all of such departing partners shall nevertheless remain liable for
performance of all the terms, covenants, and conditions of this Lease on
Tenant's part to be observed and performed and shall continue to be liable for
such performance, together with all currently admitted partners, jointly or
severally, individually and as a partner, and (vi) Partnership Tenant shall give
prompt notice to Landlord of the admission of any such new partners, and upon
demand of Landlord, shall cause each such new partner to execute and deliver to
Landlord an agreement in form satisfactory to Landlord, wherein each such new
partner shall so assume performance of all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed (but
neither Landlord's failure to request any such agreement nor the failure of any
such new partner to execute or deliver any such agreement to Landlord shall
vitiate the provisions of subdivision (iv) of this Section).
64. LANDLORD'S WORK; LANDLORD'S WORK LETTER
---------------------------------------
64.1 Annexed hereto as Exhibit "B" and made a part hereof is Proposal
10196; SK-1 dated 10/12/93; SK-2 dated 10/12/93; SK-3 dated 10/12/93; TA-3c
dated 10/12/93; TA-3d dated 1/12/93 (collectively referred to as the "Work
Letter"). Tenant agrees that it shall provide to Landlord on or before November
1, 1993, such final drawings and specifications (which must first be approved in
writing by Landlord) for Tenant's layout, partitioning, electrical, reflecting
ceiling and other installations. Landlord shall furnish and install in
accordance with such final and approved drawings and specifications, so much of
the work described
20
in said final and approved drawings and specifications and in the Work Letter as
allowed by a construction credit of $304,876.86 ("Construction Credit"). To the
extent Tenant's final and approved drawings and specifications require work, the
cost of which exceeds the Construction Credit, such work shall be reduced to an
"Extra" or "Change Order" to be executed by both Landlord and Tenant, which
shall indicate the work required, the cost thereof to be paid by Tenant upon
demand, and the additional time required, if any, for completion. Any or all of
the Construction Credit that remains unexpended as of the Commencement Date
shall be deemed null and void and forever forfeited. Tenant shall be responsible
for any delays in completing the Demised Premises by reason of Tenant's failure
to cooperate with Landlord, Tenant's delays in submitting any drawings or
specifications, or in supplying information, or in approving drawings,
specifications or estimates, or in giving authorizations, or by reason of any
"Extra" or "Change Order" designated by Tenant, or by reason of any changes by
Tenant in any designations previously made by Tenant, or by reason of any
similar acts or omissions of Tenant or by reason of any cause or factor beyond
Landlord's reasonable control, including but not limited to strikes or other
labour disputes, accidents, orders or regulations of any federal, state, country
or municipal authority, delays due to adjustment or insurance claims, lack of
availability of materials, parts or services, acts of God, fire, earthquake,
floods, explosion, action of the elements, war, hostilities, invasion,
insurrection, riot, mob violence, sabotage or by reason of any other cause,
whether similar or not to the foregoing, that is beyond the reasonable control
of Landlord. If the commencement Date does not occur on or before the Estimated
Commencement Date by virtue of any of the reasons set forth in the immediately
preceding sentence, then the Commencement Date shall be deemed, notwithstanding
anything contained to the contrary in Article 37, to have occurred on the
Estimated Commencement Date.
65. RENEWAL OPTION
--------------
65.1 Subject to the provisions of Section 65.2 below, Tenant shall
have the option to renew this Lease for an additional term of five (5) years
(the "Renewal Term"), which Renewal Term shall commence upon the expiration of
the term described in Article 37 of this Lease (the "Initial Term"). The terms,
covenants and conditions during the Initial Term, including but not limited to
the definitions of the First Tax Year and First Operating Year as set forth in
Article 36 hereof, shall be projected and carried over into the Renewal Term,
except as specifically set forth hereinafter.
(a) The Minimum Rent during the Renewal Term shall be the greater of
(i) Market Rent (as defined in clause (b) below) or (ii) the Adjusted Minimum
Rent as of the last day of the Initial Term.
(b) "Market Rent" shall mean the fair market rent for the Demised
Premises, as of the commencement date of the Renewal Term (the "Determination
Date"), based upon the rents generally in effect for comparable office space in
the area in which the Real Estate is located. Market Rent (for the purposes of
determining the Minimum Rent only during the Renewal Term) shall be determined
on what is commonly known as "gross" basis; that is, in computing Market Rent,
it shall be assumed that all real estate taxes and expenses for customary
services are included in such Market Rent and are not passed through to the
Tenant as separate additional charges. Notwithstanding the foregoing, the
Minimum Rent for the Renewal Term shall be thereafter increased form time to
time as provided in this Lease and the First Tax Year and First Operating Year
for the Renewal Term shall be defined as provided in Article 36 hereof.
(c) Landlord shall notify Tenant ("Landlord's Determination Notice")
of Landlord's determination of the Market Rent within sixty (60) days of the
Determination Date. If Tenant disagrees with Landlord's determination, Tenant
shall notify Landlord ("Tenant's Notice of Disagreement") within fifteen (15)
days of receipt of Landlord's Determination Notice. Time shall be
21
of the essence with respect to Tenant's Notice of Disagreement, and the failure
of Tenant to give such notice within the time period set forth above shall
conclusively be deemed an acceptance by Tenant of the Market Rent as determined
by Landlord and a waiver by Tenant of any right to dispute such Market Rent. If
Tenant timely gives its Tenant's Notice of Disagreement, then the Market Rent
shall be determined as follows: Landlord and Tenant shall, within thirty (30)
days of the date on which Tenant's Notice of Disagreement was given, each
appoint an Appraiser (hereinafter defined) for the purpose of determining the
Market Rent. An Appraiser shall mean a duly qualified impartial real estate
appraiser having at least ten (10) years' experience in the area in which the
Demised Premises are located. In the event that the two (2) Appraisers so
appointed fail to agree as to the Market Rent within a period of thirty (30)
days after the appointment of the second Appraiser, such two (2) Appraisers
shall forthwith appoint a third Appraiser who shall make a determination within
thirty (30) days thereafter. If such two Appraisers fail to agree upon such
third Appraiser within ten (10) days following the last thirty (30) day period,
such third Appraiser shall be appointed by a presiding Judge of the Superior
Court of the State of New Jersey for the County in which the Real Estate is
located. Such two (2) Appraisers or three (3) Appraisers, as the case may be,
shall proceed with all reasonable dispatch to determine the Market Rent. The
decision of such Appraisers shall be final; such decision shall be in writing
and a copy shall be delivered simultaneously to Landlord and to Tenant. If such
Appraisers fail to deliver their decision as set forth above prior to the
commencement of the Renewal Term, Tenant shall pay Landlord the Adjusted Minimum
Rent at the rate as of the last day of the Initial Term, until such decision is
so delivered. If the Market Rent as determined above is in excess of the actual
rent paid, then Tenant, upon demand, shall pay to Landlord the difference
between the actual rent paid and the Market Rent from the commencement of the
Renewal Term. Landlord and Tenant shall each be responsible for and shall pay
the fee of the Appraiser appointed by them respectively, and Landlord and Tenant
shall share equally the fee of the third Appraiser. Promptly upon determination
of the Market Rent, Tenant shall execute and deliver a Lease amendment prepared
by Landlord setting forth the terms of the Renewal Term.
65.2 Tenant's option to renew, as provided in Section 65.1 above,
shall be strictly conditioned upon and subject to each of the following:
(a) Tenant shall notify Landlord in writing of Tenant's exercise of
its option to renew at least six (6) months, but not more than twelve (12)
months, prior to the expiration of the Initial Term;
(b) At the time Landlord receives Tenant's notice as provided in (a)
above, and at the expiration of the Initial Term, Tenant shall not have been in
default under the terms or provisions of this Lease and the Tenant named on the
first and last page of this Lease shall be in occupancy of the entire Demised
Premises;
(c) Tenant shall have no further renewal option other than the
option to extend for the one Renewal Term as set forth in Section 65.1 above;
(d) This option to renew shall be deemed personal to the Tenant
named on the first and last page of this Lease and may not be assigned;
(e) Landlord shall have no obligation to do any work or perform any
services for the Renewal Term with respect to the Demised Premises or the
Building which Tenant agrees to accept in their then "as is" condition; and
(f) No later than ten (10) days prior to the commencement of the
Renewal Term, Tenant shall deposit with Landlord such additional sums as may be
required to increase any security deposit then held by Landlord proportionate to
the increase in the Minimum Rent.
22
66. ISRA COMPLIANCE
---------------
66.1 Tenant shall, at Tenant's own expense, comply with the
Industrial Site Recovery Act, (N.J.S.A. 13:1K-6 et seq.), the Comprehensive
Environmental Response, Compensation & Liability Act (42 U.S.C. 9601 et seq.)
and the Spill Compensation and Control Act (N.J.S.A. 58:10-23.11 et seq.) and
any and all environmental laws, amendments thereto and the regulations and
orders promulgated thereunder with respect to Tenant's use and occupancy of the
Demised Premises. Tenant shall, at Tenant's own expense, make all submissions
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 and Energy ("NJDEPE"). Should the Bureau or any other
division of NJDEPE determine that a cleanup plan be prepared and that a cleanup
be undertaken because of any spills or discharges of hazardous substances or
wastes in or about the Real Estate caused by Tenant 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 Article shall arise if there is any closing,
terminating or transferring of operations of an industrial establishment
utilizing the Demised Premises or a transfer of the Real Estate or any portion
thereof which falls under the purview of the statutes hereinbefore referred.
66.2 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 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 in or
about the Real Estate caused by Tenant which occur during the term of this
Lease; and from all fines, suits, 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 the Bureau or any other division of NJDEPE.
Tenant's obligations and liabilities under this Article shall continue so long
as Landlord remains responsible for any spills or discharges of hazardous
substances or wastes in or about the Real Estate caused by Tenant which occur
during the term of this Lease. Tenant's failure to abide by the terms of this
Article shall be restrainable by injunction.
67. PREPAID RENT
------------
67.1 Tenant shall pay Landlord prepaid rent equal to the sum of five
(5) monthly installments of Minimum Rent, two (2) monthly installments of which
shall be due on the date hereof and three (3) monthly installments of which
shall be due on or before the Commencement Date. Said prepaid rent shall be
deposited in the same interest bearing account (described in Section 62.3
hereof) in which the security is deposited. All the prepaid rent [plus any
interest earned thereon less the one percent (1%) annual administrative fee
referred to in Section 62.3 hereof] actually received by Landlord on or before
the Commencement Date shall be applied by Landlord against (i) the monthly
installment of Minimum Rent due for the tenth (10th) Lease month of the term and
(ii) the consecutive monthly installments of Minimum Rent due for each Lease
month of the term thereafter until the prepaid rent [plus any interest earned
thereon less the one percent (1%) annual administrative fee referred to in
Section 62.3 hereof] is entirely expended.
68. RIGHT OF FIRST/SECOND OFFER
---------------------------
68.1 The following units of space currently exist on the second
(2nd) and third (3rd) floors of the Building: 1,926 rentable square feet of
vacant space on the third floor, 20,843 rentable square feet of leased spaced on
the third floor, 8,132 rentable square feet of vacant space on the second floor
(the "PC Strategies Space"), 2,558 rentable square feet of leased space on the
second floor and 9,900 rentable square feet of leased space on the second
23
floor. All of the above-referenced premises are hereinafter collectively
referred to as the "Option Space". Landlord agrees that if all or any portion of
the Option Space shall become available during the term of this Lease, then in
any such case, before offering the available Option Space (other than the PC
Strategies Space) to any other party, Landlord will first offer to Tenant the
right to include the Option Space (other than the PC Strategies Space) within
the Demised Premises on the Inclusion Date (hereinafter defined) upon all of the
terms and conditions of this Lease, as if the Option Space had been part of the
Demised Premises on the Commencement Date, except as specifically set forth
hereinafter. With respect to the PC Strategies Space, Landlord agrees that if
the PC Strategies Space shall become available during the term of this Lease,
then, subject to the rights of PC Strategies & Solutions, Inc., Landlord will
offer to Tenant the right to include the PC Strategies Space within the Demised
Premises on the Inclusion Date upon all of the terms and conditions of this
Lease, as if the PC Strategies Space had been part of the Demised Premises on
the Commencement Date, except as specifically set forth hereinafter. The
Inclusion Date shall be the date on which Tenant exercises its option pursuant
to the terms of this Article.
(a) In the event Tenant exercises its option pursuant to the terms of this
Article within twelve (12) months from the Commencement Date (the "Anniversary
Date") the Minimum Rent payable with respect to the Option Space shall be $17.50
per rentable square foot and Tenant shall be entitled to a construction
allowance of $23.00 per rentable square foot (based on a five year term and
reduced on a pro-rata basis for any term less than five years) for work
performed by Landlord's affiliate, Bellemead Construction Corporation within the
Option Space. In the event Tenant exercises its option pursuant to the terms of
this Article at any time after the Anniversary Date, the Minimum Rent payable
with respect to the Option Space shall commence on the Inclusion Date and shall
be (i) the Market Rent (as defined in clause (b) below) which shall in no event
be less than (ii) the product of (1) the adjusted Minimum Rent per square foot
with respect to the Demised Premises on the date Landlord's offer is made and
(2) the rentable square foot area of the Option Space.
(b) "Market Rent" shall mean the fair market rent for the Option Space as
of the Inclusion Date based upon the rents generally in effect for comparable
office space in the area in which the Building is located. Market Rent (for the
purposes of determining the Minimum Rent for the Option Space only) shall be
determined on what is commonly known as "gross" basis; that is, in computing
Market Rent it shall be assumed that all real estate taxes and customary
services are included in such additional charges. Notwithstanding the foregoing,
the Minimum Rent for the option Space shall be thereafter increased from time to
time as provided in this Lease.
(c) Landlord shall notify Tenant ("Landlord's Determination Notice") of
Landlord's determination of the Market Rent on or before the Inclusion Date. If
Tenant disagrees with Landlord's determination, Tenant shall notify Landlord
("Tenant's Notice of Disagreement") within fifteen (15) days after receipt of
Landlord's Determination Notice. Time shall be of the essence with respect to
Tenant's Notice of Disagreement, and the failure of Tenant to give such notice
within the time period set forth above shall conclusively be deemed an
acceptance by Tenant of the Market Rent as determined by Landlord and a waiver
by Tenant of any right to dispute such Market Rent. If Tenant timely gives its
Tenant's Notice of Disagreement, then the Market Rent shall be determined as
follows: Landlord and Tenant shall, within thirty (30) days after the date on
which Tenant's Notice of Disagreement was given, each appoint an Appraiser
(hereinafter defined) for the purpose of determining the Market Rent. An
Appraiser shall mean a duly qualified impartial real estate appraiser having at
least ten (10) years experience in the area in which the Building is located. In
the event that the two (2) Appraisers so appointed fail to agree as to the
Market Rent within a period of thirty (30) days after the appointment of the
second Appraiser, such two (2) Appraisers shall
24
forthwith appoint a third Appraiser who shall make a determination within
thirty (30) days thereafter. If such two (2) Appraisers so appointed fail to
agree upon such third Appraiser within ten (10) days following the last thirty
(30) day period, such third Appraiser shall be appointed by a presiding Judge of
the Superior Court of the State of New Jersey for the County in which the
Building is located. Such two (2) Appraisers or three (3) Appraisers, as the
case may be, shall proceed with all reasonable dispatch to determine the Market
Rent. The decision of such Appraisers shall be final; such decision shall be in
writing and a copy shall be delivered simultaneously to Landlord and to Tenant.
Tenant shall pay Landlord Adjusted Minimum Rent on the Option Space at the rate
set forth in Section 68.1(a) (ii) hereof until such decision is so delivered.
If the Market Rent as determined above is in excess of actual rent paid, then
Tenant, upon demand, shall pay to Landlord the difference between the actual
rent paid and the Market Rent from the Inclusion Date. Landlord and Tenant shall
each be responsible for and shall pay the fee of the Appraiser appointed by them
respectively, and Landlord and Tenant shall share equally the fee of the third
Appraiser. Promptly upon determination of the Market Rent, Tenant shall execute
and deliver a Lease amendment in a form satisfactory to Landlord reflecting the
inclusion of the Option Space within the Demised Premises on the Inclusion Date.
68.2 Landlord shall make the foregoing offer in writing, and Tenant shall
have the right to exercise such option with respect to the Option Space if
Tenant shall not have breached any term or provision of the Lease and the
Tenant named on the first and last page of the Lease is in occupancy of the
entire Demised Premises. Tenant may only exercise such option by written notice
received by Landlord within ten (10) days after Landlord makes such offer to
Tenant. For an option exercised after the Anniversary Date, Tenant shall accept
the Option Space in its "as is" physical condition as of the Inclusion Date and
agrees that Landlord will not be required to do any work or perform any services
therein. In addition to the foregoing, Tenant shall be prohibited from leasing
any of the Option Space for a term less than eighteen (18) months. If Tenant
does not accept the offer made by Landlord pursuant to the provisions of this
Article 68 with respect to the Option Space, Landlord shall be under no further
obligation to Tenant with respect to the Option Space or any part thereof and
Tenant shall have forever waived and relinquished its right to the Option Space
and any part thereof and Landlord shall at any and all times thereafter be
entitled to lease such space in whole or in part, or in whole or in parts in
conjunction with any other space, to others at such rental and upon such terms
and conditions as Landlord, in its sole discretion may desire whether such
rental terms, provisions and conditions are the same as those offered to Tenant
or more or less favorable. Tenant agrees not to acquire the Option Space
pursuant to this Article 68 for the primary purpose of subletting or otherwise
disposing of the same or any part thereof to others.
68.3 If the Option Space shall not be available for Tenant's occupancy on
the Inclusion Date for any reason including the holding over of the prior
tenant, then Landlord and Tenant agree that the failure to have such Option
Space available for occupancy by Tenant shall in no way affect the validity of
this Lease or the inclusion of the Option Space within the Demised Premises as
of the inclusion of the Option Space within the Demised Premises as of the
Inclusion Date or the obligations of Landlord and Tenant hereunder, nor shall
the same be construed in any way to extend the term of this Lease. Within ten
(10) days after Tenant's exercise of this option for the Option Space, Tenant
shall deposit with Landlord such additional sums as may be required by Landlord
to increase the security deposit, if any, then held by Landlord proportionate to
the increase in Minimum Rent. Tenant's rights under this Article shall be deemed
personal to the Tenant named on the first and last page of this Lease and may
not be assigned.
25
IN WITNESS WHEREOF, Landlord has signed this Lease and this Rider, and
Tenant by its proper corporate officers has signed this Lease and this Rider
this 29th day of December, 1993.
LANDLORD:
ATTESTED BY: 6 CENTURY ASSOCIATES
By: 6 Century Corp.,
General Partner
/s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------- ------------------------
XXXXX XXXXXXXXXX Xxxxxx X. Xxxxxx
Vice President
AGENT FOR LANDLORD:
ATTESTED BY: BELLEMEAD MANAGEMENT CO., INC.
/s/ Xxxxx Xxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------- ------------------------
XXXXX XXXXXXXXXX Xxxxxx X. Xxxxxx
Vice President
TENANT:
ATTESTED BY: HGB, INC.
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxxxx
---------------------- ------------------------
Name: XXXXXXX X. XXXX Name: Xxxxxx X. Xxxxxxxx
---------------- ----------------------
(Please Print) (Please Print)
Title: Corporate Secretary Title: President
APPLY CORPORATE SEAL HERE
26
BASEMENT STORAGE LICENSE
------------------------
Licensor: CENTBURG REALTY ASSOCIATES, L.P.
Licensee: HGB, INC.
Premises: 0 Xxxxxxx Xxxxx
Xxxxxxxxxx-Xxxx Xxxxx, Xxx Xxxxxx
BASEMENT STORAGE LICENSE
TABLE OF CONTENTS
-----------------
PARAGRAPH PAGE
--------- ----
1. ANNUAL FEE.............................................................. 1
2. TERM.................................................................... 1
3. OCCUPANCY............................................................... 2
4. NO ALTERATIONS.......................................................... 2
5. MAINTENANCE............................................................. 2
6. PROPERTY LOSS AND DAMAGE................................................ 2
7. LICENSEE'S INDEMNIFICATION OF LICENSOR.................................. 2
8. DESTRUCTION, FIRE AND OTHER CASUALTY.................................... 3
9. ASSIGNMENT.............................................................. 3
10. ACCESS TO STORAGE AREA.................................................. 3
11. DEFAULT................................................................. 4
12. END OF TERM............................................................. 4
13. SERVICES PROVIDED BY LICENSOR........................................... 5
14. RULES AND REGULATIONS................................................... 5
15. LIABILITY INSURANCE..................................................... 5
16. FIRE INSURANCE - WAIVER OF SUBROGATION.................................. 5
17. ACCESS AND COMMON AREAS................................................. 6
18. RELOCATION OR CANCELLATION.............................................. 6
19. CLEANING................................................................ 6
20. ESTOPPEL CERTIFICATE.................................................... 6
21. LIMITATION OF LIABILITY................................................. 6
22. PERSONAL PROPERTY TAXES................................................. 7
23. NOTICES................................................................. 7
24. BROKER.................................................................. 7
25. REQUIRED APPROVAL....................................................... 7
SIGNATURE............................................................... 8
BASEMENT STORAGE LICENSE
LICENSE, made as of the 25th day of February, 1994 between CENTBURG REALTY
ASSOCIATES, L.P., a New Jersey limited partnership, with offices c/o Bellemead
Management Co., Inc., at 0 Xxxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx, 00000,
hereinafter referred to as "Licensor", and HGB, INC., a New Jersey corporation
having an office address c/o The Hardardt Group, Xxxxxxx Xxxx, Xxx Xxxxxx, Xxx
Xxxxxx 00000 hereinafter referred to as "Licensee".
W I T N E S S E T H
-------------------
WHEREAS, 6 Century Associates, a New Jersey limited partnership and an
affiliate of Licensor, as landlord and Licensee, as tenant, heretofore entered
into a lease dated December 29, 1993 (said lease, as the same may be amended
from time to time, is hereinafter called the "Lease") for premises on the third
(3rd) floor of the building known as and located at 0 Xxxxxxx Xxxxx,
Xxxxxxxxxx-Xxxx Xxxxx, Xxx Xxxxxx; and
WHEREAS, Licensee desires to hire from Licensor a portion of the basement
floor (the "Storage Area") deemed to contain a floor area of 579 rentable square
feet in the building known as and located at 0 Xxxxxxx Xxxxx, Xxxxxxxxxx-Xxxx
Xxxxx, Xxx Xxxxxx (the "Building"). The Storage Area is more particularly shown
on the Rental Plan annexed hereto and made a part hereof as Exhibit "A";
NOW, THEREFORE, for good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, it is mutually covenanted and
agreed as follows:
1. ANNUAL FEE
----------
1.1 The annual fee (the "Annual Fee") for the Storage Area through and
including the Termination Date (as hereinafter defined) shall be $4,053.00.
1.2 Licensee agrees to pay the above stated Annual Fee in lawful money of
the United States, which shall be legal tender in payment, in equal monthly
installments of $337.75 through and including the Termination Date, in advance,
on the first day of each month during said term, at the office of Licensor or
such other place as Licensor may designate, without any setoff or deduction
whatsoever, except that Licensee shall pay the first monthly installment of the
Annual Fee upon the execution of this License.
1
2. TERM
----
2.1 The term of this License shall commence ("Commencement Date") on the
Commencement Date of the Lease (as such term is defined in the Lease) and shall
terminate on the Termination Date of the Lease (as such term is defined in the
Lease), ("Termination Date") unless sooner terminated as hereinafter provided.
3. OCCUPANCY
---------
3.1 Licensee shall use and occupy the Storage Area for dead storage of
personal property, including but not limited to files, and for no other purpose.
Licensee shall store no flammable, toxic or other potentially dangerous
materials or substances in the Storage Area.
3.2 Licensee shall not do or permit any act or thing to be done in or to
the Storage Area which is contrary to law or which will invalidate or be in
conflict with public liability, fire or other policies of insurance at any time
carried by or for the benefit of Licensor with respect to the Storage Area or
the Building or which shall or might subject Licensor to any liability or
responsibility to any person or for property damage, nor shall Licensee keep
anything in the Storage Area except as now or hereafter permitted by the Fire
Department, Board of Fire Underwriters, Fire Insurance Rating Organization or
other authority having similar jurisdiction, and then only in such manner and
such quantity so as not to increase the rate for fire insurance applicable to
the Building, nor use the Storage Area in a manner which would increase the
insurance rate for the Building or any property located therein over that in
effect prior to the commencement of Licensee's occupancy.
4. NO ALTERATIONS
--------------
4.1 Licensee shall make no changes in or to the Storage Area of any nature
including but not limited to attaching any item to or drilling into the walls of
the Storage Area.
5. MAINTENANCE
-----------
5.1 Licensee shall, throughout the term of this License, take good care of
the Storage Area and maintain it at Licensee's sole cost and expense in good
order and condition.
6. PROPERTY LOSS AND DAMAGE
------------------------
6.1 Licensor and Licensor's agents and employees shall have no
responsibility to handle or accept the property of Licensee. Licensor or its
agents or employees shall not be liable for any damage to property of Licensee,
or for loss of or damage to any property of Licensee by theft or otherwise, or
for any injury or
2
damage to persons or property resulting from any cause of whatsoever nature,
unless caused by or due to the gross negligence or willful misconduct of
Licensor, its agents or employees.
7. LICENSEE'S INDEMNIFICATION OF LICENSOR
--------------------------------------
7.1 Licensee shall indemnify and save harmless Licensor against and from
all liabilities and expenses paid, suffered or incurred as a result of any
breach by Licensee of this License, including, without limitation attorneys'
fees and expenses for which Licensor is not reimbursed by insurance. Licensee's
indemnification of Licensor shall extend to all of Licensee's acts, including,
without limitation, the storage of goods or materials not permitted under this
License, or the carelessness, negligence or improper conduct of the Licensee,
Licensee's agents, contractors, employees, invitees or licensees. In case any
action or proceeding is brought against Licensor by reason of any such claim,
Licensee, upon written notice from Licensor, shall, at Licensee's expense,
resist or defend such action or proceeding by counsel approved by Licensor in
writing.
8. DESTRUCTION, FIRE AND OTHER CASUALTY
------------------------------------
8.1 Licensee shall give Licensor immediate notice in case of fire or other
casualty or accident in the Storage Area, or, if involving Licensee, its
servants, agents, employees, invitees or licensees, in the Building. If the
Storage Area or any part thereof shall be damaged by fire or other casualty,
this License shall immediately terminate.
9. ASSIGNMENT
----------
9.1 Licensee shall not assign or sublicense this License.
10. ACCESS TO STORAGE AREA
----------------------
10.1 Licensor and Licensor's agents and employees shall have the right (but
not be obligated) to enter the Storage Area in any emergency at any time and at
other reasonable times to examine the same and to make such repairs,
replacements and improvements as Licensor may deem necessary and reasonably
desirable to the Storage Area or to any other portion of the Building or which
Licensor may elect to perform following Licensee's failure, to make repairs or
for the purpose of complying with laws, regulations and other direction of
Governmental authorities. Licensee shall permit Licensor to use and maintain and
replace pipes and conduits in and through the Storage Area and to erect new
pipes and conduits therein. If Licensee is not present to open and permit entry
into the Storage Area, Licensor or Licensor's agents may enter the same whenever
such entry may be necessary or permissible by master key or forcibly, upon
reasonable notice to Licensor or, in an emergency, without notice, and provided
reasonable care is exercised to
3
safeguard Licensee's property, such entry shall not render Licensor or its
agents liable therefor, nor in any event shall the obligations of Licensee
hereunder be affected. Licensee agrees to move its property as may be necessary
for Licensor to perform the work contemplated by this Paragraph 10.
11. DEFAULT
-------
11.1 If Licensee defaults in fulfilling any of the covenants of this
License then upon Licensor giving a written five (5) days' notice upon
Licensee specifying the nature of said default and upon the expiration of said
five (5) days if Licensee shall have failed to remedy such default, or if such
default cannot be cured within the five (5) day period, Licensee shall have
failed diligently and continuously to cure such default, Licensor may serve a
written three (3) days' notice of cancellation of this License upon Licensee,
and upon the expiration of said three (3) days, this License and the term
hereunder shall end and expire as fully and completely as if the expiration of
such three (3) day period were the day herein definitely fixed for the end and
expiration of this License and the term thereof, and Licensee shall remove its
property from the Storage Area and quit and surrender the Storage Area to
Licensor, but Licensee shall remain liable for damages suffered by Licensor. In
addition, Licensor may revoke this License at any time pursuant to law and shall
have the right to invoke against Licensee any remedy available at law or in
equity.
11.2 If the notice provided for in Section 11.1 hereof shall have been made
and the term shall expire as aforesaid, or is otherwise terminated, then without
notice Licensor may re-enter the Storage Area either by force or otherwise and
dispossess Licensee by summary proceedings or otherwise, and remove Licensee's
property found therein and hold the Storage Area as if this License had not been
made, and Licensee hereby waives the service of notice of intention to re-enter
or to institute legal proceedings to that end.
11.3 Any and all costs, including attorney's fees, incurred by Licensor by
reason of Licensee's breach of this License, shall be deemed to be additional
fees hereunder and shall be paid by Licensor to Licensee within ten (10) days of
rendition of a xxxx or statement to Licensee therefor. Licensee's obligation to
pay any fees required under this License shall survive the termination of this
License.
12. END OF TERM
-----------
12.1 Upon the expiration or other termination of this License, Licensee
shall quit and surrender to Licensor the Storage Area, broom clean, in good
order and condition, ordinary wear and casualty accepted, and Licensee shall
remove all its property therefrom. Licensee's obligation to observe or perform
this covenant shall survive the expiration or other termination of this License.
4
12.2 In the event Licensee fails to remove its property from the Storage
Area in accordance with Section 12.1 above, Licensee's property shall be deemed
abandoned and Licensor shall have the right to dispose of Licensee's property,
store Licensee's property at Licensee's expense or to sell Licensee's property
at auction or otherwise.
13. SERVICES PROVIDED BY LICENSOR
-----------------------------
13.1 Licensor shall supply electric current required to provide the
Storage Area with overhead lighting. Licensor shall have no other obligations to
supply services to the Storage Area.
13.2 Licensor shall provide necessary elevator facilities on business days
from 8 a.m. to 6 p.m.
13.3 Licensor shall have no responsibility or liability for failure to
supply the services agreed to herein. Licensor reserves the right to stop any
services when necessary by reason of accident or for repairs, alterations,
replacements or improvements necessary or desirable in the judgement of Licensor
for as long as may be reasonably required by reason thereof or by reason of
strikes, accidents, acts of God, laws, orders or regulations or any other reason
beyond the control of Licensor.
14. RULES AND REGULATIONS
---------------------
14.1 Licensee and Licensee's servants, employees, agents, visitors and
licensees shall observe faithfully, and comply strictly with, such reasonable
written rules and regulations as Licensor or Licensor's agents may from time to
time adopt upon reasonable notice to Licensee. Licensor shall not be liable for
failure to enforce rules and regulations against other tenants of the Building.
15. LIABILITY INSURANCE
-------------------
15.1 Licensee shall maintain at all times during the term of this License
no less than $1,000,000.00 combined single limit per occurrence insurance
coverage under a comprehensive liability policy naming Licensor and Bellemead
Management Co., Inc., as additional insureds and confirming, among other things,
(i) personal injury coverage, (ii) coverage of Licensee's contractual duty of
indemnification under this License, (iii) a provision that such insurance shall
not be cancelled except upon thirty (30) days prior notice to Licensor, and (iv)
a provision that such insurance coverage is primary and noncontributing with any
insurance maintained by Licensor. Licensee shall furnish to Licensor at
Licensor's request a certificate evidencing such insurance coverage.
5
16. FIRE INSURANCE; WAIVER OF SUBROGATION
-------------------------------------
16.1 Licensee releases Licensor, its respective officers, directors,
employees and agents from any and all liability or responsibility to the
Licensee or anyone claiming through or under Licensee by way of subrogation or
otherwise, for any loss or damage to property, caused by fire or any of the
extended coverage casualties. Licensee shall maintain a standard fire insurance
policy with extended coverage and vandalism with waiver of subrogation covering
the replacement value of all Licensee's property located in the Storage Area.
17. ACCESS AND COMMON AREAS
-----------------------
17.1 Licensee shall only use the elevator facilities for delivery or
removal of personal property to or from the Storage Area.
17.2 Licensee shall have the right of nonexclusive use, in common with
others, of the elevator facilities, subject to the terms and conditions of this
License and to rules and regulations for the use thereof as prescribed from time
to time by Licensor.
18. RELOCATION
----------
18.1 Licensor shall have the right, at its option, upon at least thirty
(30) days' written notice to Licensee to relocate Licensee and substitute for
the Storage Area other space in the basement of the Building containing as much
or less area as the original Storage Area. In the event Licensor substitutes
less area for the Storage Area the annual fee shall be adjusted on the basis of
the number of square feet substituted in proportion to the number of square feet
originally covered under this License.
19. CLEANING
--------
19.1 Licensee shall maintain the Storage Area in an orderly and broom
clean manner.
19.2 Licensee shall not dispose of any refuse or rubbish at the Building.
20. ESTOPPEL CERTIFICATE
--------------------
20.1 Licensor and Licensee agree at any time and from time to time, upon
not less than ten (10) days' prior written request, that Licensee shall execute,
acknowledge and deliver to Licensor, or its designee, a statement in writing
certifying that this License is unmodified and is in full force and effect.
6
21. LIMITATION OF LIABILITY;
DEFINITION OF "LICENSOR"
------------------------
21.1 The term "Licensor" as used in this License means only the owner or
licensor for the time being of the Building, so that in the event of any
conveyance of such interest and the transfer to the transferee of any funds then
being held under this License by such owner, Licensor shall be and hereby is
entirely freed and relieved of any and all obligations of Licensor hereunder
thereafter accruing, and it shall be deemed without further agreement between
the parties and such grantee(s) that the grantee(s) has/have assumed and agreed
to observe and perform all obligations of Licensor hereunder.
22. PERSONAL PROPERTY TAXES
-----------------------
22.1 Licensee agrees to pay all taxes imposed on the personal property of
Licensee or its use and occupancy of the Storage Area and hold Licensor harmless
therefrom.
23. NOTICES
-------
23.1 All notices, demands and requests which may or are required to be
given by either party hereunder to the other, shall be in writing. All notices,
demands and requests shall be deemed to have been properly given if sent by
registered or certified mail, return receipt requested, postage prepaid to the
address first above written. Either party may change its address for notice by
giving notice of such change to the other party.
23.2 All notices referred to hereunder shall be deemed given and received
two (2) days after the date said notice is mailed postage prepaid by United
States registered or certified mail as aforesaid, in any post office or branch
post office regularly maintained by the United States Government in the
continental United States.
24. BROKER
------
24.1 Licensee represents that no real estate broker is responsible for
bringing about, or negotiating, this License and Licensee has not dealt with any
broker in connection with the Storage Area.
24.2 In accordance with the foregoing representation, Licensee agrees to
defend, indemnify and hold harmless the Licensor, its affiliates and/or
subsidiaries, partners and officers from and against any expense or liability
(including attorney's fees) arising out of any claim for commission by any
broker claiming or alleging to have acted on behalf of or to have dealt with
Licensee.
7
25. REQUIRED APPROVAL
-----------------
25.1 This License is subject to the approval by the applicable governmental
agencies, including, but not limited to the Township of Parsippany building
inspector and fire inspector. In the event such approval is not received, this
License shall be null and void.
Licensor and Licensee have duly executed this License as of the date first
written above.
Licensor: CENTBURG REALTY ASSOCIATES, L.P.
By: Merchant Centburg, Inc.
General Partner
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------
Xxxxxx Xxxxxxxxxx
Vice President and
Assistant Controller
Licensee: HGB, INC.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------
Name: XXXXXX XXXXXXXX
---------------------------
(Please Print)
Title: PRESIDENT
--------------------------
(Please Print)
8
EXHIBIT A
(Rental Plan)
9
RENTAL PLAN
-----------
579 S.F.
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[RENTAL PLAN APPEARS HERE]
OFFICE BUILDING - FOUR CENTURY DRIVE BASEMENT TENANT PLAN
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