EXHIBIT 10.1
------------
AGREEMENT OF LEASE
BETWEEN
FIVE REGENT PARK ASSOCIATES
AS LANDLORD
AND
SWK TECHNOLOGIES, INC.
AS TENANT
DATED: APRIL 8, 2005
TABLE OF CONTENTS
DEFINITIONS....................................................................1
ADDITIONAL RENT............................................................1
BASIC RENT.................................................................1
BROKER.....................................................................1
BUILDING...................................................................1
BUILDING HOLIDAY...........................................................1
COMMENCEMENT DATE..........................................................1
EXCUSABLE DELAY............................................................2
GOVERNMENTAL AUTHORITY.....................................................2
LEASE YEAR.................................................................2
PARKING SPACES.............................................................2
PREMISES...................................................................2
REAL PROPERTY..............................................................2
RENTABLE AREA OF THE BUILDING..............................................2
RENTABLE AREA OF THE PREMISES..............................................2
RENT COMMENCEMENT DATE.....................................................3
SECURITY DEPOSIT...........................................................3
STRUCTURAL REPAIRS.........................................................3
TENANT'S PROPORTIONATE SHARE...............................................3
TERM.......................................................................3
TERMINATION DATE...........................................................3
ARTICLE I......................................................................3
1.1 RENT....................................................................3
ARTICLE II.....................................................................4
2.1 USE.....................................................................4
ARTICLE III....................................................................4
3.1 CHANGE OF COMMENCEMENT DATE.............................................4
ARTICLE IV.....................................................................5
4.1 ACCEPTANCE..............................................................5
ARTICLE V......................................................................5
5.1 COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS.........................5
ARTICLE VI.....................................................................5
6.1 PERSONAL PROPERTY TAXES.................................................5
ARTICLE VII....................................................................5
7.1 ADDITIONAL RENT.........................................................5
7.2 REAL ESTATE TAXES.......................................................5
7.3 LANDLORD'S OPERATING EXPENSES...........................................6
7.4 LANDLORD'S STATEMENTS...................................................7
ARTICLE VIII...................................................................7
8.1 RULES AND REGULATIONS...................................................7
ARTICLE IX.....................................................................8
9.1 LANDLORD'S RIGHT OF ENTRY...............................................8
ARTICLE X......................................................................8
10.1 MAINTENANCE BY TENANT AND LANDLORD.....................................8
10.2 MAINTENANCE BY LANDLORD................................................8
ARTICLE XI.....................................................................9
11.1 ALTERATIONS OR IMPROVEMENTS BY TENANT..................................9
ARTICLE XII....................................................................9
12.1 ASSIGNMENT AND SUBLETTING..............................................9
ARTICLE XIII..................................................................12
13.1 SURRENDER.............................................................12
ARTICLE XIV...................................................................12
14.1 HOLDING OVER..........................................................12
ARTICLE XV....................................................................12
15.1 ELECTRICITY...........................................................12
ARTICLE XVI...................................................................13
16.1 QUIET ENJOYMENT.......................................................13
ARTICLE XVII..................................................................13
17.1 AIR AND LIGHT.........................................................13
ARTICLE XVIII.................................................................13
18.1 DEFAULT...............................................................13
ARTICLE XIX...................................................................13
19.1 LANDLORD'S RIGHTS UPON TENANT'S DEFAULT...............................13
ARTICLE XX....................................................................16
20.1 LANDLORD'S REMEDIES CUMULATIVE:EXPENSES...............................16
ARTICLE XXI...................................................................16
21.1 SUBORDINATION, ESTOPPEL AND ATTORNMENT................................16
ARTICLE XXII..................................................................17
22.1 DAMAGE BY FIRE OR OTHER CASUALTY......................................17
ARTICLE XXIII.................................................................17
23.1 MUTUAL WAIVER OF SUBROGATION CASUALTY.................................17
ARTICLE XXIV..................................................................18
24.1 CONDEMNATION..........................................................18
ARTICLE XXV...................................................................18
25.1 CHANGES SURROUNDING BUILDING..........................................18
ARTICLE XXVI..................................................................18
26.1 NOTICES...............................................................18
ARTICLE XXVII.................................................................18
27.1 NO WAIVER.............................................................18
ARTICLE XXVIII................................................................19
28.1 LANDLORD'S RESERVED RIGHTS............................................19
ARTICLE XXIX..................................................................19
29.1 LANDLORD'S LIABILITY..................................................19
ARTICLE XXX...................................................................19
30.1 TENANT'S LIABILITY....................................................19
ARTICLE XXXI..................................................................20
31.1 INSURANCE.............................................................20
ARTICLE XXXII.................................................................20
32.1 CONSTRUCTION LIENS....................................................20
ARTICLE XXXIII................................................................21
33.1 NOTICE OF FIRE AND ACCIDENTS..........................................21
ARTICLE XXXIV.................................................................21
34.1 RELEASE OF LANDLORD...................................................21
ARTICLE XXXV..................................................................21
35.1 SECURITY DEPOSIT......................................................21
ARTICLE XXXVI.................................................................22
36.1 SIGNS.................................................................22
ARTICLE XXXVII................................................................22
37.1 GLASS.................................................................22
ARTICLE XXXVIII...............................................................22
38.1 HAZARDOUS WASTE, AIR, WATER AND GROUND POLLUTION......................22
ARTICLE XXXIX.................................................................23
39.1 ISRA COMPLIANCE.......................................................23
39.2 CONDITION PRECEDENT TO ASSIGNMENT AND SUBLEASE........................23
ARTICLE XL....................................................................23
40.1 TENANT RELOCATION.....................................................23
ARTICLE XLI...................................................................24
41.1 OPTION TO RENEW.......................................................24
ARTICLE XLII..................................................................24
42.1 MISCELLANEOUS.........................................................24
42.1 ENTIRE AGREEMENT......................................................24
42.2 JURY TRIAL WAIVER.....................................................24
42.3 FORCE MAJEURE.........................................................24
42.4 BROKER................................................................24
42.5 SEPARABILITY..........................................................25
42.6 INTERPRETATION........................................................25
42.7 FINANCIAL STATEMENTS..................................................26
ATTACHMENTS:
EXHIBIT A
WORKLETTER
RULES AND REGULATIONS
AGREEMENT OF LEASE
AGREEMENT OF LEASE made this 8th day of April, 2005, between FIVE REGENT PARK
ASSOCIATES, a New Jersey partnership, having a principal place of business at
c/o Eastman Management Corporation, 000 X. Xx. Xxxxxxxx Xxx., Xxxxxxxxxx, XX
00000 hereinafter referred to as "Landlord"; and SWK TECHNOLOGIES, INC., a New
Jersey corporation, currently having an office and principal place of business
at 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, hereinafter referred to
as "Tenant".
WITNESSETH:
For and in consideration of the covenants herein contained, and upon the terms
and conditions herein set forth, Landlord and Tenant agree as follows:
DEFINITIONS
For all purposes of this Lease and all agreements supplemental thereto or
modifying this Lease, the following terms shall have the meaning specified:
"ADDITIONAL RENT"
ADDITIONAL RENT shall mean all sums payable by Tenant to Landlord
pursuant to the various Articles herein in which said term is used.
"BASIC RENT"
BASIC RENT shall mean Eighty-Nine Thousand Seventy-One and 50/100
($89,071.50) Dollars per annum in Lease Year 1; Ninety-Six Thousand
Fifty-Seven and 50/100 ($96,057.50) Dollars per annum in Lease Years 2
and 3 and Ninety-Nine Thousand Five Hundred Fifty and 50/100
($99,550.50) Dollars per annum in Lease Years 4 and 5.
"BROKER"
BROKER shall mean XXXXXXX XXXX and XXXXXXX MANAGEMENT CORPORATION.
"BUILDING"
BUILDING shall mean the building known as 0 Xxxxxx Xxxxxx, and located
at 0 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx.
"BUILDING HOLIDAY"
BUILDING HOLIDAY shall mean President's Day, Memorial Day, Independence
Day, Labor Day, Columbus Day, Veteran's Day, Thanksgiving Day and the
day after, Christmas Day, and New Year's Day as each of said holidays
are celebrated in the state in which the Real Property is located.
"COMMENCEMENT DATE"
COMMENCEMENT DATE shall mean the earlier of:
(1) the date which is ten (10) days after the date on which Landlord
gives notice to Tenant that the Premises are or will be on a date
certain, substantially completed in accordance with the provisions of
the Workletter attached to this Lease; or;
(2) the date on which Tenant shall take possession and occupy the
Premises.
As used herein, "substantially completed" shall mean that the Premises
are fully completed and in working order, as to Landlord's building
standard items of materials, work, and installations, except for minor
items, the incompletion of which will not unreasonably interfere with
Tenant's normal business operations, and Landlord has received
notification, which may be verbal, from the municipality that a
Certificate of Occupancy or similar permit or certificate confirming
authorization to occupy the Premises will be issued in the ordinary
course of business without additional work by Landlord hereunder.
As of the date hereof, the ESTIMATED COMMENCEMENT DATE IS: May 15,
2005.
In the event the COMMENCEMENT DATE shall fall on a day other than the
first day of a month, then, in such event, the BASIC RENT and
ADDITIONAL RENT payable hereunder shall be apportioned for the number
of days remaining in that month until the last day thereof.
"COMPLEX"
COMPLEX shall mean Regent Street Office Park.
"EXCUSABLE DELAY"
EXCUSABLE DELAY shall mean a delay caused by strike, lock-out or other
labor troubles, act of God, inability to obtain labor or materials,
governmental restrictions, enemy action, civil commotion, fire,
unavoidable casualty, or any other cause similar or dissimilar, beyond
the reasonable control of either Landlord or Tenant, or due to the
passing of time while waiting for an adjustment of insurance proceeds.
"GOVERNMENTAL AUTHORITY"
GOVERNMENTAL AUTHORITY shall mean the town, village, city, county,
state, or federal government, or any agency or quasi-governmental
agency, or any fire insurance rating organization having jurisdiction
over the Real Property.
"LEASE YEAR"
LEASE YEAR shall mean the period beginning on the Commencement Date or
the first day of the first calendar month thereafter if the
Commencement Date is not on the first day of the month and on each
annual anniversary thereof and ending one (1) year later. Lease Year 1
shall mean the period beginning on the Commencement Date and ending one
(1) year later or on the last day of the calendar month in which the
first anniversary of the Commencement Date shall occur, if the
Commencement Date is not on the first day of the month. Lease Year 2
shall be the annual period beginning upon expiration of Lease Year 1.
Lease Year 3 shall be the annual period beginning upon expiration of
Lease Year 2. Lease Year 4 shall be the annual period beginning upon
expiration of Lease Year 3. Lease Year 5 shall be the annual period
beginning upon expiration of Lease Year 4.
"PARKING SPACES"
PARKING SPACES shall mean the parking spaces located on the Real
Property.
"PREMISES"
PREMISES shall mean the area cross hatched on the floor plan of the
Building annexed hereto as Exhibit A and made a part hereof and known
as Suite _______.
"REAL PROPERTY"
REAL PROPERTY shall mean the land upon which the Building is located
and the Building collectively.
"RENTABLE AREA OF THE BUILDING"
RENTABLE AREA OF THE BUILDING shall mean 68,808 square feet.
"RENTABLE AREA OF THE PREMISES"
RENTABLE AREA OF THE PREMISES shall mean the sum of (1) the total
number of square feet contained in the area shown on Exhibit A computed
by measuring from the outside finish of the exterior of the Building
wall(s) to the corridor side of the corridor walls or permanent
partitions in the Premises, and to the center of partitions that
separate the Premises from adjoining areas in the Building plus (2) an
appropriate adjustment of one (1%) percent loss factor for the
Premises' allocable share of the Building that is used for public
corridors, public toilets, air-conditioning rooms, fan rooms, janitor's
closets, electrical closets, telephone closets, elevator shafts, flues,
stacks, pipe shafts and vertical ducts with their enclosing walls. In
computing Rentable Area of the Premises and Rentable Area of the
Building, no deduction shall be made for columns and projections
necessary for the structural integrity of the Building. Upon
completion, Landlord's architect will deliver a certification of the
Rentable Area of the Premises, and the measurements so provided by
Landlord's architect shall be conclusive and binding upon the parties
hereto. If and to the extent the final measurements vary from those set
forth herein, the Basic Rent, Rentable Area of the Premises and
Tenant's Proportionate Share will be modified accordingly. The Rentable
Area of the Premises is 6,986 square feet.
"RENT COMMENCEMENT DATE"
RENT COMMENCEMENT DATE shall mean the date which is two months after
the COMMENCEMENT DATE.
"SECURITY DEPOSIT"
SECURITY DEPOSIT shall mean Twenty-One Thousand Two Hundred Six and
50/100 ($21,206.50) Dollars to be deposited by Tenant with Landlord on
or before May 18, 2005, in the form of cash or irrevocable stand-by
letter of credit in accordance with Section 35.1 of this Lease.
"STRUCTURAL REPAIRS"
STRUCTURAL REPAIRS shall mean repairs to the roof, foundation, and
permanent exterior walls and support columns of the Building.
"TENANT'S PROPORTIONATE SHARE"
TENANT'S PROPORTIONATE SHARE is ten point one five (10.15%) percent.
"TERM"
TERM shall mean a period of sixty-two (62) months commencing on the
Commencement Date or on the 1st day of the first full month after the
Commencement Date if same shall not be on the first day of the month,
and terminating on the Termination Date.
"TERMINATION DATE"
TERMINATION DATE shall mean the date which is sixty-two (62) months
from the Commencement Date or the 1st day of the first full month after
the Commencement Date if same shall not be on the first day of the
month.
This Lease consists of this LEASE AGREEMENT and EXHIBIT A, a WORKLETTER, AND
RULES AND REGULATIONS.
ARTICLE I
1.1 RENT
1.1 Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the Premises for the Term. The Premises shall be delivered to
the Tenant on the Commencement Date in broom-clean condition.
1.2 Beginning on the Rent Commencement Date, Tenant hereby covenants
and agrees to pay, when due, the Basic Rent and all Additional Rent as
herein provided. Basic Rent shall be payable in equal monthly
installments of (i) Seven Thousand Four Hundred Twenty-Two and 63/100
($7,422.63) Dollars on the first day of each month during Lease Year 1;
(ii) Eight Thousand Four and 79/100 ($8,004.79) Dollars on the first
day of each month during Lease Years 2 and 3; and (iii) Eight Thousand
Two Hundred Ninety-Five and 88/100 ($8,295.88) Dollars on the first day
of each month during Lease Years 4 and 5, all shall be paid in advance,
without set-off, demand or deduction, at the office of Landlord, or
such other place as Landlord may designate. Notwithstanding any
provision hereof, Basic Rent for the first complete calendar month of
the Term shall be paid upon execution hereof and Landlord hereby
acknowledges receipt thereof.
1.3 In addition to and at the same times as it makes payments of Basic
Rent as set forth in Section 1.2 above, Tenant hereby covenants and
agrees to pay Additional Rent (as hereinafter defined) in monthly
installments as described in Article VII below. Landlord hereby
estimates that Tenant's Additional Rent during the first calendar year
of the Term shall be $3,312.50 per month. Notwithstanding any provision
hereof, Additional Rent for the first complete calendar month of the
Term shall be paid upon execution hereof and Landlord hereby
acknowledges receipt thereof.
1.4 Any installment or installments of Basic Rent or Additional Rent
accruing hereunder, and all other sums payable by Tenant hereunder
which are not paid when due (without regard to any otherwise applicable
cure period), shall bear interest until paid at the rate of two (2%)
percent per month (unless such rate shall be unlawful, in which case
the highest permitted legal rate shall apply). In addition, if Tenant
is delinquent more than five (5) days in the payment of any Basic Rent
or Additional Rent it shall pay to the Landlord a late charge equal to
five (5) cents for each dollar of Base Rent or Additional Rent which is
delinquent.
1.5 In the event any check paid by Tenant for the payment of any
installment or installments of Basic Rent or Additional Rent or for any
other sums payable by Tenant hereunder is returned by Landlord's bank
for insufficient or unavailable funds, Tenant shall pay to Landlord a
Fifty ($50.00) Dollar handling and administration fee upon notice and
demand by Landlord.
ARTICLE II
2.1 USE
2.1 The Premises are to be used only for executive, general, and
administrative offices in Tenant's information technology business,
including, but not limited to technical and training services and other
related business functions, which training shall be confined to the
room labeled on Exhibit A as the "training room", and for no other
purpose. Neither Tenant nor any of Tenant's servants, agents,
employees, invitees or licensees shall damage, disfigure or injure the
Premises or any portion thereof or the Real Property; nor shall Tenant
allow the emission of any offensive odors or noise from the Premises.
Any office equipment or machines used by Tenant within the Premises
which may interfere with the use or enjoyment of any other tenant or
occupant of the Building or which may be heard from any public area in
or about the building shall be placed and maintained by Tenant, at
Tenant's sole expense, in a sound proof setting such as cork, rubber or
vibration eliminators to eliminate any such noise or vibration. Smoking
shall not be permitted anywhere in the Premises.
2.2 Tenant shall have access to the Premises on a twenty-four (24)
hour, seven (7) day per week basis.
2.3 If any governmental license or permits, other than a certificate of
occupancy, shall be required for the proper and lawful conduct of
Tenant's business in the Premises, or any part thereof, and if failure
to secure such license or permit would in any way affect Landlord,
Tenant, at its expense shall duly procure and thereafter maintain such
license or permit and submit the same to inspection by Landlord. Tenant
shall, at all times, comply with the terms and conditions of each such
license or permit.
2.4 Tenant shall not store, place or allow the storing or placement of
any materials, debris or other obstructions of any nature in any
hallway, lobby or other public areas of the interior of the Building or
on the sidewalk, parking area or other area or areas abutting or
adjacent to the Real Property.
2.5 Tenant shall not place anything on any floor of the Premises which
will create a load in excess of the load per square foot which such
floor was designed to carry.
2.6 Tenant shall not move any heavy equipment or bulky matter,
including, but not limited to safes or large office equipment or
furniture, into or out of the Building without first obtaining
Landlord's consent. If the movement of such items requires any special
handling, all such work shall be done in full compliance with
applicable laws, ordinances, codes, rules and regulations and any other
applicable governmental requirements. All such movements shall be made
during hours designated by Landlord which will least interfere with the
normal operation of the Building, and all damage directly or indirectly
caused by such movement shall be promptly repaired by Tenant at
Tenant's expense.
ARTICLE III
3.1 CHANGE OF COMMENCEMENT DATE
3.1 If, for any reason, the Premises are not, or will not be, ready for
occupancy on the Estimated Commencement Date, except as expressly set
forth in Section 3.2 of this Lease, this Lease shall nevertheless
continue in full force and effect and Tenant shall have no right to
rescind, cancel, or terminate same, nor shall Landlord be liable for
damages, if any, sustained by Tenant by reason of inability to obtain
possession thereof on such date. In such event, Landlord will give
Tenant notice, oral or otherwise, at least ten (10) days in advance of
the date when Landlord expects the Premises to be ready for occupancy
by Tenant, which notice, if in writing, shall establish the
Commencement Date, or otherwise, the then Estimated Commencement Date.
3.2 If Tenant shall use or occupy all or any part of the Premises for
the conduct of business prior to the Commencement Date, such use or
occupancy shall be deemed to be under all of the terms, covenants and
conditions of this Lease, including the covenant to pay Basic Rent and
Additional Rent for the period from the commencement of said use or
occupancy to and including the date immediately preceding the
Commencement Date, without, however, affecting the Term or the
Termination Date. The provisions of the foregoing sentence shall not be
deemed to give to Tenant any right or ability to use or occupy the
Premises prior to the Commencement Date without the written consent of
Landlord.
ARTICLE IV
4.1 ACCEPTANCE
4.1 When Tenant takes possession of the Premises, which shall be on or
about the Commencement Date, Tenant shall be deemed to have accepted
the Premises as being satisfactory and in good condition as of the date
of such possession, subject to punch list items and latent defects of
which Tenant gives notice to Landlord within thirty (30) days
thereafter.
ARTICLE V
5.1 COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS
5.1 Tenant shall not do, or permit anything to be done in or to the
Premises, or bring or keep anything therein which will, in any way,
increase the cost of fire and extended coverage or public liability
insurance on the Real Property, or invalidate or conflict with the fire
and extended coverage insurance or public liability insurance policies
covering the Real Property, any Building fixtures, or any personal
property kept therein, or obstruct or interfere with the rights of
Landlord or of other tenants, or in any other way injure or annoy
Landlord or other tenants, or subject Landlord to any liability for
injury to persons or damage to property, or interfere with the good
order of the Building, or conflict with the present or future laws,
rules, or regulations of any Governmental Authority. Tenant hereby
indemnifies and will hold Landlord harmless of and from all liability
for injury to persons or damage occurring on the Premises, in the
Building, or on the Real Property whether occasioned by any act or
omission of Tenant, or Tenant's agents, servants, employees, invitees,
or licensees. Tenant agrees that any increase in insurance premiums on
the Building or contents caused by the occupancy of Tenant and any
expense or cost incurred in consequence of negligence, carelessness, or
willful action of Tenant, Tenant's agents, servants, employees,
invitees or licensees, shall be reimbursed to Landlord within ten (10)
days of demand therefore. Any amounts payable by Tenant hereunder shall
be deemed Additional Rent.
ARTICLE VI
6.1 PERSONAL PROPERTY TAXES
6.1 Tenant agrees to pay all taxes imposed on the personal property of
Tenant, the conduct of its business, and its use and occupancy of the
Premises.
ARTICLE VII
7.1 ADDITIONAL RENT
7.1 Tenant hereby covenants and agrees to pay as Additional Rent the
amounts as set forth below.
7.2 REAL ESTATE TAXES
7.2.1 For each year or part of a year occurring within the Term, Tenant
shall pay to Landlord, within thirty (30) days after Landlord's
presentation of Landlord's Statement (as hereinafter defined), to
Tenant therefor, as Additional Rent, Tenant's Proportionate Share of
all real estate and personal property taxes (inclusive of municipal
sewer and water rents and charges, if any) assessed against the Real
Property and Building of which the Premises are a part.
7.2.2 As used herein, the term "Real Estate Taxes" shall mean those
real estate taxes, assessments (added, special or regular), sewer
rents, rates and charges which shall be levied, imposed or assessed
upon the Real Property, including, but not limited to assessments for
any special improvement district in which the Real Property may be
located, provided that, if because of any change in the method of
taxation of real estate any other tax or assessment is imposed upon
Landlord or the owner of the Real Property or upon or with respect to
the Real Property or the rents or income therefrom in substitution for
or in lieu of those taxes attributable to the Real Property, such other
tax or assessment shall be deemed Real Estate Taxes for the purpose
herein; provided, however, that Real Estate Taxes shall not include any
gift, inheritance, estate, franchise, income, profits, capital or
similar tax imposed, unless and to the extent any such tax shall be
imposed or levied in lieu of Real Estate Taxes.
7.2.3 Landlord may take the benefit of the provisions of any statute or
ordinance permitting any Real Estate Taxes to be paid over a period of
time.
7.2.4 If Landlord shall receive any refund of Real Estate Taxes in
respect of any tax year, Landlord shall deduct from such refund any
expenses incurred in obtaining such refund, and out of the remaining
balance of such refund, Landlord shall credit to Tenant Tenant's
Proportionate Share of such refund provided however, that in no event
shall any such refund reduce Tenant's Proportionate Share of Real
Estate Taxes beyond that which was originally charged to Tenant as
Additional Rent. Any expenses incurred by Landlord in contesting the
validity of the amount of the assessed valuation of the Real Property
or of any Real Estate Taxes, to the extent not offset by a tax refund,
shall be included as an item of Real Estate Taxes for the tax year in
which such contest shall be finally determined for the purpose of
computing the Additional Rent due Landlord or any credit due to Tenant
hereunder.
7.2.5 If the tax year for Real Estate Taxes shall be changed, then
appropriate adjustment shall be made in the computation of the
Additional Rent due to Landlord or any credit due to Tenant, in
accordance with sound accounting principles to effectuate the
changeover to any new tax year adopted by any taxing authority.
7.2.6 If the last year of the Term ends on any day other than the last
day of a tax year, any payment due to Landlord or credit due to Tenant
by reason of any increase or decrease, as the case may be, in Real
Estate Taxes shall be prorated and Tenant covenants to pay any amount
due to Landlord within thirty (30) days after being billed therefor and
Landlord covenants to credit any amount due to Tenant as the case may
be. These covenants shall survive the expiration or termination of this
Lease.
7.3 LANDLORD'S OPERATING EXPENSES
7.3.1 For each year or part of a year occurring within the Term, Tenant
shall pay to Landlord within thirty (30) days after Landlord's
presentation of Landlord's Statement (as hereinafter defined) to Tenant
therefor, as Additional Rent, Tenant's Proportionate Share of
Landlord's Operating Expenses attributable to the Real Property and the
Building.
7.3.2 As used herein, the term "Landlord's Operating Expenses" shall
mean those costs or expenses paid or incurred by Landlord for
operating, maintaining, and repairing (inclusive of Structural Repairs)
the Building, any of its systems, or the Real Property, including the
cost of electricity, gas, water, fuel, window cleaning, janitorial
service, insurance of all kinds carried in good faith by Landlord and
applicable to the Building or the Real Property, snow removal,
maintenance and cleaning of the parking lot, cleaning of the exterior
of the Building's windows, landscape maintenance (including replanting
and replacing flowers and other plantings), painting or repainting or
redecorating of the public areas, maintenance of equipment and
replacement of worn out mechanical or damaged equipment, uniforms,
management fees, typical and customary office expenses, building
supplies, sundries, sales or use tax on supplies or services, wages,
salaries and other compensation, including applicable payroll taxes and
benefits, of all persons engaged by Landlord for the operation,
maintenance and repair of the Building and the Real Property including
independent contractors' fees, replacement cost of tools and equipment,
legal and accounting expenses, and any other expenses or costs, which
in accordance with generally accepted accounting principles and the
standard management practices for office buildings comparable to the
Building would be considered as an expense of operating, maintaining,
or repairing the Building and the Real Property. Excluded from
Landlord's Operating Expenses are capital improvement costs (unless any
such cost or costs are incurred as a cost savings measure that will, at
least in part, be of benefit to Tenant), costs reimbursed by insurance
or otherwise, the cost of work performed specifically for a tenant in
the Building for which such tenant reimburses Landlord, costs in
connection with preparing space for a new tenant and real estate
broker's commissions.
7.4 LANDLORD'S STATEMENTS
7.4.1 On or about May first of each year of the Term, or within a
reasonable period of time thereafter, Landlord shall submit to Tenant a
statement ("Landlord's Statement") showing in reasonable detail
Landlord's Operating Expenses and Real Estate Taxes during the
preceding calendar year. Within fifteen (15) days next following the
submission of a Landlord's Statement.
Tenant shall pay to Landlord Tenant's Proportionate Share. Provided
Tenant pays its Proportionate Share of said amount in accordance with
the terms herein, Tenant or its representative shall have the right to
examine Landlord's books and records with respect to the items in the
foregoing Landlord's Statement during normal business hours at any time
within forty-five (45) days following the delivery by Landlord to
Tenant of such Landlord's Statement (the "Inspection Period"). Tenant's
failure to inspect during the Inspection Period shall be deemed a
waiver of Tenant's right to so inspect and Tenant waives its right to
request any such inspection after the Inspection Period. Unless Tenant
shall take written exception to any item contained therein within the
Inspection Period, such Landlord's Statement shall be considered as
final and accepted by Tenant and Tenant waives its right to take
exception after the Inspection Period. In the event Tenant takes timely
written exception to any item contained in Landlord's books and records
with respect to the items in the foregoing Landlord's Statement, any
payment made in accordance with this Paragraph 7.4.1 shall be deemed
made in protest to the extent of such exception.
7.4.2 On the first day of each month following the submission of any
Landlord's Statement which shows that Tenant is obligated to pay
Additional Rent pursuant to this ARTICLE, Tenant shall pay to Landlord,
on account of its potential obligation to pay such Additional Rent for
the calendar year following the calendar year for which such Landlord's
Statement shall have been rendered, a sum equal to one-twelfth (1/12)
of the amount which the Tenant shall have paid as such Additional Rent
for such prior calendar year. Such sum shall be due with each monthly
installment of Basic Rent until submission of the next succeeding
Landlord's Statement and shall be collectible by Landlord as Additional
Rent. However, the Landlord may, at its discretion from time to time
determine the new monthly account payments based on the Landlord's
operating budget for the year to which the monthly account payments
apply (Budget Billing). Such account payments may begin on January 1 of
the subject year or thereafter whenever the account payments are
determined with an appropriate retroactive adjustment to January 1 of
that year.
7.4.3 In each Landlord's Statement there shall be a reconciliation as
follows: Tenant shall be charged with any Additional Rent shown on such
Landlord's Statement, which charge shall be reduced by the aggregate
amount, if any, paid by Tenant on account thereof. Tenant shall pay any
net balance due to Landlord within thirty (30) days as set forth above;
any overpayment shall be applied by Landlord against the next accruing
monthly installment of Additional Rent, or shall be paid over to Tenant
upon termination of this Lease, subject to Landlord's rights and
remedies hereunder.
7.4.4 Any Additional Rent under this ARTICLE shall be prorated for the
final calendar year of the Term if such year covers a period of less
than twelve (12) months. In no event shall any adjustment in Tenant's
obligation to pay Additional Rent under this ARTICLE result in a
decrease in the Basic Rent payable hereunder. Tenant's obligation to
pay Additional Rent and Landlord's obligation to credit to Tenant any
amount referred to in this ARTICLE for the final year of the Term shall
survive the expiration or termination of this Lease.
ARTICLE VIII
8.1 RULES AND REGULATIONS
8.1 Tenant, on behalf of itself and its employees, agents, servants,
invitees, and licensees, agrees to comply with the Rules and
Regulations with respect to the Real Property which are set forth at
the end of this Lease and which are expressly made a part hereof.
Landlord shall have the right to make reasonable amendments thereto
from time to time for the safety, care, and cleanliness of the Real
Property, the preservation of good order therein, and the general
convenience of all the tenants and Tenant agrees to comply with such
amended Rules and Regulations, after twenty (20) days written notice
thereof from Landlord. All such amendments shall apply to all tenants
in the Building, and will not materially interfere with the use and
enjoyment of the Premises or the parking lot by Tenant.
ARTICLE IX
9.1 LANDLORD'S RIGHT OF ENTRY
9.1 Landlord and Landlord's agents and representatives shall have the
right to enter into or upon the Premises, or any part thereof, at all
reasonable hours for the following purposes: (1) examining the
Premises; (2) making such repairs or alterations therein as may be
necessary in Landlord's sole
judgment for the safety and preservation thereof; (3) erecting,
maintaining, repairing, or replacing wires, cables, conduits, vents or
plumbing equipment running in, to, or through the Premises; (4) showing
the Premises to prospective purchasers or lessees of the Building or to
prospective mortgagees or to prospective assignees of any such
mortgagees or others; or (5) showing the Premises to prospective new
tenants of the Premises during the last nine (9) months of the Term.
However, Landlord shall give Tenant prior notice, oral or otherwise,
before commencing any non-emergency repair or alteration.
9.2 Landlord may enter upon the Premises at any time in case of
emergency without prior notice to Tenant.
9.3 Landlord, in exercising any of its rights under this ARTICLE IX,
shall not be deemed guilty of an eviction, or disturbance of Tenant's
use or possession of the Premises and shall not be liable to Tenant for
same. The Basic Rent and Additional Rent as defined in this Lease shall
in no way xxxxx while said repairs or alterations are being made.
9.4 All work performed by or on behalf of Landlord in or on the
Premises pursuant to this ARTICLE IX shall be performed with as little
inconvenience to Tenant's business as possible, and in such manner as
not unreasonably to interfere therewith.
ARTICLE X
10.1 MAINTENANCE BY TENANT AND LANDLORD
10.1 Except as otherwise set forth in this ARTICLE X, Tenant shall take
good care of the Premises throughout the Term and shall preserve same
in the condition delivered to Tenant on the Commencement Date, normal
wear and tear excepted. Tenant, at its sole cost shall be responsible
for cleaning and maintenance and repair of the Premises and shall
retain and maintain its own janitorial services. Tenant further agrees
not to injure, overload, deface, or commit waste of the Premises, the
Building or the Real Property. Tenant shall be responsible for all
injury or damage of any kind or character to the Real Property,
including the windows, floors, walls, ceilings, lights, electrical
equipment, plumbing and HVAC equipment, caused by Tenant or by anyone
using or occupying the Premises by, through, or under the Tenant. In
addition, Tenant shall, at its sole cost and expense, maintain a
service contract with a reliable HVAC contractor reasonably acceptable
to Landlord (and is a certified Carrier technician) to perform regular
monthly or other required service and maintenance to the HVAC system.
If the Premises become infested with vermin, Tenant shall, at Tenant's
expense, cause the same to be exterminated from time to time to the
satisfaction of Landlord and shall employ such extermination company as
shall be approved by Landlord. Tenant shall be responsible for the cost
of maintenance and repair of all plumbing and related equipment which
is within the Premises.
10.2 Notwithstanding the provisions of ARTICLE X which may be to the
contrary, Landlord represents and warrants that the HVAC system
servicing the Premises shall be in working order as of the Commencement
Date and Landlord covenants and agrees to warranty the HVAC system
against defects for a period of one (1) year beginning on the
Commencement Date, conditioned upon the Tenant performing all of its
maintenance obligations with respect thereto as set forth in Section
10.1 above.
10.3 Landlord shall be responsible for making all Structural Repairs
and shall maintain, repair and replace the parking area and the
exterior of the Building. Landlord shall be responsible for landscape
maintenance, snow removal, striping of the parking lot, exterior window
cleaning, dumpster rental and trash removal, as set forth in Section
7.3.2 above. Nothing in this Section shall be construed to prohibit
Landlord from including the costs paid or incurred hereunder as
"Landlord's Operating Expenses." To the extent any such repairs or
replacements arise from the negligence of Tenant, its agents, servants,
employees, licensees or invitees, Tenant shall be solely responsible
for the cost thereof.
ARTICLE XI
11.1 ALTERATIONS OR IMPROVEMENTS BY TENANT
11.1 Tenant shall make no changes in or to the Premises of any nature
without Landlord's prior written consent, with the exception of minor
cosmetic changes in the nature of painting and carpeting at a cost up
to $25,000 per job or series of related jobs, which may be done without
Landlord's prior consent, but shall not be done unless at least seven
(7) days prior written notice
thereof shall be given to Landlord. Subject to the aforementioned
consent of Landlord, Tenant at Tenant's sole expense, may hire
contractors approved by Landlord, or Landlord may elect, on Tenant's
behalf, to make such alterations, installations, additions, or
improvements in or to the Premises (collectively "Tenant Alterations")
which are non-structural and which do not affect utility services,
plumbing, electrical lines, sprinkler systems, HVAC systems or any
other mechanical systems, in or to the Premises or Building or which
involve any drywall construction. In the event Landlord shall elect on
Tenant's behalf to perform the Tenant Alterations, Landlord shall (a)
perform such work upon terms and conditions that are fair and
competitive with those that would be available on an arms-length basis
with third parties, and (b) obtain multiple bids where appropriate. All
such Tenant Alterations shall, upon installation, become the property
of Landlord and shall remain upon and be surrendered with the Premises,
unless otherwise required by Landlord, by written notice given at the
time of Landlord's consent to the specific Tenant Alterations, to be
removed by Tenant upon the expiration or termination of this Lease, or
unless Tenant, by notice to Landlord no later than thirty (30) days
prior to the Termination Date, requests Landlord's consent to remove
same. If Landlord so consents the same shall be removed from the
Premises by Tenant prior to the Termination Date at Tenant's sole
expense. Nothing in this ARTICLE shall be construed to give Landlord
title to or to prevent Tenant's removal of trade fixtures, movable
office furniture and equipment, but upon removal of any such from the
Premises or upon removal of any other installation as may be permitted
or required by Landlord, Tenant shall immediately and at its expense,
repair and restore the Premises to the condition existing prior to such
Tenant Alteration. Tenant shall take care during such removal, and
Tenant shall repair any damage to the Premises or to the Real Property
incurred during such removal. All property permitted or required to be
removed by Tenant at the end of the Term which remains on the Premises
after the Termination Date shall be deemed abandoned and may, at the
election of Landlord, either be retained as Landlord's property or may
be removed from the Premises by Landlord at Tenant's expense.
11.2 Prior to the commencement of any Alteration, Tenant shall at its
sole expense, obtain all required permits, approvals, and certificates
required by all Governmental Authorities and upon completion of the
alteration, certificates of final approval thereof. Tenant shall
deliver to Landlord promptly upon its receipt duplicates of same.
Tenant shall carry and will cause Tenant's contractors and
subcontractors to carry such xxxxxxx'x compensation, general liability,
personal and property damage insurance as required by law and in
amounts no less than the amounts set forth in ARTICLE XXXI below.
11.3 Upon completion of any Tenant alterations as defined herein,
Tenant shall immediately deliver to Landlord (i) an unconditional,
final Certificate of Occupancy, (ii) "as-built" final plans and
drawings identical to those upon which Landlord granted its approval,
and (iii) Tenant's architect's certification that the alterations as
completed conform with all applicable local, county state and/or
federal statutes, ordinances, rules, regulations and codes including,
but not limited to the orders, rates and regulations of the National
and local Boards of Fire Underwriters and any other body or bodies
hereinafter exercising similar functions.
ARTICLE XII
12.1 ASSIGNMENT AND SUBLETTING
12.1 Tenant for itself, its heirs, distributees, successors, and
assigns, expressly covenants that it shall not directly or indirectly
by operation of law, merger, consolidation, reorganization,
dissolution, change of majority ownership of Tenant, or otherwise,
assign (which for purposes of this Lease, shall include any such
merger, consolidation, reorganization, dissolution or change of
ownership of Tenant), mortgage, or encumber this Lease, or any part
thereof, or permit the Premises to be used by others without the prior
written consent of Landlord in each instance. Any attempt to do so by
the Tenant shall be void. Notwithstanding anything in this Lease to the
contrary, the Landlord's prior consent shall not be required if such
merger, consolidation or reorganization is with Tenant's parent or
subsidiary or a company affiliated with Tenant so long as Landlord has
received evidence that such parent, subsidiary or affiliate has a net
worth that is equal to or greater than the net worth of Tenant as of
the date of execution of this Lease, provided, however, that Tenant
shall give Landlord prior written notice not less than ten (10) days
prior to such a merger and provide copies of the certificate of merger,
certificate of consolidation or such similar document confirming same
within twenty (20) days thereafter. The consent by Landlord to any
assignment, mortgage, encumbrance, subletting, or use of the Premises
by others shall not constitute a waiver of Landlord's right to withhold
its consent to any other assignment, mortgage, encumbrance, subletting
or use of the Premises by others. Without the prior written consent of
Landlord, this Lease and the interest of Tenant therein or any assignee
of Tenant therein, shall not pass by operation of law, and shall not be
subject to garnishment or sale under execution in any suit or
proceeding which may be brought against or by Tenant or any assignee of
Tenant.
12.2 Landlord covenants and agrees that it will not unreasonably
withhold its consent to Tenant's assigning or subletting all or a part
of the Premises, provided, however, (1) that Tenant shall not be in
default under any of the terms, covenants, conditions, provisions, and
agreements 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 subletting or assigning; and (2) that such subletting or assigning
shall not be made with a Tenant who shall be or who shall seek to use
any portion of the Premises for a use incompatible with that
customarily found in first-class office buildings; notwithstanding the
foregoing, the Premises may not be sublet or assigned to any employment
agency, governmental department, labor union office, doctor's or
dentist's office, dance or music studio, school or beauty salon and (3)
that the proposed subtenant or assignee is not then an occupant of any
part of the Building or a party who dealt with Landlord or Landlord's
agent (directly or through a broker) with respect to space in the
Building during the 12 months immediately preceding Tenant's request
for Landlord's consent.
12.3 If Tenant requests Landlord's consent to an assignment of this
Lease or a subletting of all or any part of the Premises, Tenant shall
submit to Landlord: (1) the name and address of the proposed assignee
or subtenant; (2) the terms of the proposed assignment or subletting;
(3) the nature of the proposed assignee's or subtenant's business; and
(4) such information as to the proposed assignee's or subtenant's
financial responsibility and general reputation as Landlord may
reasonably require.
12.4 Upon the receipt of such request and information from Tenant,
Landlord shall have the option to be exercised in writing within twenty
(20) days after such receipt, to either (1) cancel and terminate this
Lease, if the request is to assign this Lease or to sublet all of the
Premises, or if the request is to sublet a portion of the Premises
only, to cancel and terminate this Lease with respect to such portion,
in each case as of the date set forth in Landlord's notice of exercise
of such option; or (2) to grant said request; or, (3) to deny such
request. In the event Landlord elects to give Tenant notice under
subpart (1) of this Section 12.4, then, Tenant shall have the option,
exercisable on written notice within five (5) business days of
Landlord's notice to withdraw its request for Landlord's consent,
whereupon this Lease shall remain in full force and effect.
12.5 In the event Landlord shall cancel this Lease, Tenant shall
surrender possession of the Premises, or the portion of the Premises
which is the subject of the request, as the case may be, on the date
set forth in such notice in accordance with the provisions of this
Lease relating to surrender of the Premises. If the Lease shall be
canceled as to a portion of the Premises only, the Basic Rent and
Additional Rent payable by Tenant hereunder shall be reduced
proportionately according to the ratio that the number of square feet
in the portion of space surrendered bears to the square feet in the
Rentable Area of the Premises.
12.6 In the event that Landlord shall consent to a sublease or
assignment pursuant to the request from Tenant, Tenant shall cause to
be executed by its assignee or subtenant an agreement to perform
faithfully and to assume and be bound by all of the terms, covenants,
conditions, provisions, and agreements of this Lease for the period
covered by the assignment or sublease and to the extent of the space
sublet or assigned. An executed copy of each sublease or assignment and
assumption of performance by the sublessee or assignee, on a form
acceptable to Landlord, shall be delivered to Landlord within thirty
(30) days prior to the commencement of occupancy set forth in such
assignment or sublease. No such assignment or sublease shall be binding
on Landlord until Landlord has received such copies as required herein.
12.7 In no event shall any assignment or subletting (whether or not
Landlord may have consented), release or relieve Tenant from its
obligations to fully perform all of the terms, covenants, and
conditions of this Lease on its part to be performed.
12.8 Without otherwise restricting the grounds upon which Landlord may
otherwise withhold its consent, Landlord shall not be deemed to have
unreasonably withheld its consent to such an assignment or subletting
if "Landlord Consent Requirements" are not satisfied. Furthermore,
Landlord may withhold its consent if, in its judgment, it determines
that:
12.8.1 The proposed new use of the Premises is not, in
Landlord's sole opinion, appropriate for the Building or in
keeping with the character of the existing tenancies or is
expressly prohibited under the terms of this Lease.
12.8.2 The proposed assignee's use or occupancy will make
unreasonable or excessive demands on the Building's services,
maintenance or facilities or will cause excessive traffic or
unacceptable increase in density of traffic of the building.
12.8.3 Less than fifty (50%) percent of the Rentable Area Of
The Building or eighty (80%) percent of the Rentable Area of
the Complex is then rented.
12.9 As used herein, "Landlord's Consent Requirements" shall mean the
following minimum requirements which must be met by Tenant before
Landlord shall consent to an assignment or subletting of all or part of
the Premises:
12.9.1 The assignment or subletting shall be at any one time to no
more than one (1) subtenant or assignee.
12.9.2 The assignment or subletting shall be for not less than
3,000 rentable square feet.
12.9.3 If Tenant shall remain in possession of at least fifty (50%)
percent of the Premises, the assignment or subletting shall be for
a term of not less than twelve (12) months, otherwise, the
assignment or subletting shall be for a term of not less than
forty-eight (48) months, unless the unexpired portion of such Term
of this Lease shall be less than twelve (12) months or forty-eight
(48) months, as the case may be, in which event for the unexpired
portion or such Term.
12.10 If the Landlord shall consent to any subletting or assignment, in
accordance with the terms of this Article, fifty (50%) percent of any
rents or other consideration received by the Tenant in excess of the
rents or other sums required to be paid by Tenant to Landlord, shall be
paid by Tenant to Landlord.
12.11 Tenant shall reimburse Landlord for Landlord's reasonable costs
and expenses (including without limitation the charges of any outside
architectural, engineering, accounting or legal professionals retained
by Landlord to review the proposed assignment or sublease, if any)
incurred by Landlord in connection with any proposed subletting or
assignment by Tenant. The amount of such costs and expenses shall be
deemed to be Additional Rent under the terms of this Lease and shall be
payable by Tenant upon demand, regardless of whether Landlord consents
to or denies such assignment or sublease or elects to cancel this Lease
as provided in paragraph 12.4 above.
12.12 Neither the Tenant nor any other person having an interest in the
possession, use, occupancy or utilization of the Premises or any other
portion of the Real Property shall enter into any lease, sublease,
license, concession or other agreement for the use, occupancy or
utilization of space in the Premises or any other portion of the Real
Property which provides for any rental or other payment for such use,
occupancy or utilization based in whole or in part upon the net income
or profits derived from any person from the space in the Premises or
any other portion of the Real Property so leased, used, occupied or
utilized, other than an amount based upon a fixed percentage or
percentages of gross receipts or gross sales.
12.13 Notwithstanding any provision of ARTICLE XII which may be to the
contrary, Tenant shall be permitted to sublease up to two (2) offices
(as shown on Exhibit A) without obtaining Landlord's consent and
without being subject to Section 12.4 of this Lease, so long as Tenant
shall give written notice of such sublease(s), including a true copy of
same, within five (5) days after the execution thereof.
ARTICLE XIII
13.1 SURRENDER
13.1 Upon the termination of the Term or prior expiration of this
Lease, Tenant shall peaceably and quietly quit and surrender to
Landlord the Premises, broom clean, in as good condition as on the
Commencement Date, normal wear and tear, repairs and replacements by
Landlord, alterations, additions, and improvements permitted hereunder,
excepted, free and clear of all occupancies. Tenant's obligations to
observe or perform this covenant shall survive the Termination Date or
prior expiration of the Term. If the Termination Date falls on a Sunday
or a legal holiday, this Lease shall expire at 11:59 p.m. on the
business day first preceding said date.
ARTICLE XIV
14.1 HOLDING OVER
14.1 If Tenant holds possession of the Premises beyond the Termination
Date or prior expiration of the Term, Tenant shall become a tenant from
month-to-month at Double the Basic Rent and Additional Rent payable
hereunder and upon all other terms and conditions of this Lease, and
shall continue to be such month-to-month tenant until such tenancy
shall be terminated by Landlord and such possession shall cease.
Nothing contained in this Lease shall be construed as a consent by
Landlord to the occupancy or possession by Tenant of the Premises
beyond the Termination Date or prior expiration of the Term, and
Landlord, upon said Termination Date or prior expiration of the Term
shall be entitled to the benefit of all legal remedies that now may be
in force or may be hereafter enacted relating to the speedy
repossession of the Premises. In addition, Tenant shall indemnify and
hold Landlord harmless from and against any loss, cost, liability or
expense, including, but not limited to, attorney's fees resulting from
such failure to vacate and also including any claims made by any
succeeding tenant founded on such failure to vacate.
ARTICLE XV
15.1 ELECTRICITY
15.1 Throughout the Term, Landlord agrees to redistribute electrical
energy to the Premises (not exceeding the present electrical capacity
at the Premises), upon the following terms and conditions: (1) Tenant
shall pay for such electrical energy as provided by this Paragraph; (2)
Landlord shall not be liable in any way to Tenant, Tenant's agents,
servants, employees, invitees or licensees, for any loss, damage, or
expense which Tenant, Tenant's agents, servants, employees, invitees or
licensees, may sustain or incur as a result of any failure, defect, or
change in the quantity or character of electricity furnished to the
Premises or if such quantity or character of electricity furnished to
the Premises is no longer available or suitable for Tenant's
requirements or due to any cessation, diminution or interruption of the
supply thereof.
15.2 The Tenant shall, at its own cost and expense, pay all service and
usage charges for gas, electric, sprinkler, or any other utility which
is separately metered and billed to Tenant. With respect to any utility
which is not separately metered and billed to Tenant, Tenant shall pay
the charge assessed to Tenant by Landlord based upon Tenant's
Proportionate Share. Landlord shall arrange for separate metering or
sub-metering of Tenant's actual electricity usage (except for common
areas) and Tenant shall pay to the utility or Landlord, as the case may
be, the charges billed.
15.3 In no event shall Landlord be required or obligated to increase
the electrical capacity of any portion of the Building's system, or to
provide any additional wiring or capacity to meet Tenant's additional
requirements, if any, beyond that which was servicing the Premises at
the Commencement of the Lease Term. Tenant's use of electric energy in
the Premises shall not at any time exceed the capacity of any of the
electrical conductors and equipment in or serving the Premises. Tenant
shall make no alteration to the existing electrical equipment or
connect any fixtures, appliances, or equipment without the prior
written consent of Landlord in each instance. Should Landlord grant
such consent, all additional risers or other equipment required
therefore shall be provided by Landlord and the cost thereof shall be
paid by Tenant upon Landlord's demand.
15.4 Landlord shall not be liable in the event of any interruption in
the supply of electricity, or for any consequence thereof and Tenant
agrees that such supply may be interrupted for inspection, repairs,
replacement and in emergencies.
15.5 The failure of Landlord to furnish any service hereunder shall not
be construed as a constructive eviction of Tenant and shall not excuse
Tenant from failing to perform any of its obligations hereunder and
shall not give Tenant any claims against Landlord for damages for
failure to furnish such service.
ARTICLE XVI
16.1 QUIET ENJOYMENT
16.1 Landlord covenants and agrees that, upon the performance by Tenant
of all of the covenants, agreements, and provisions hereof on Tenant's
part to be kept and performed, Tenant shall have, hold, and enjoy the
Premises, subject and subordinate to the rights set forth in ARTICLE
XXI, free from any interference whatsoever by, from, or through the
Landlord, provided, however, that no diminution or abatement of the
Basic Rent, Additional Rent, or other payment to Landlord shall be
claimed by or allowed to Tenant for inconvenience or discomfort arising
from the making of any repairs, improvements or additions to the
Premises or the Real Property, nor for any space taken to comply with
any law, ordinance, or order of any Governmental Authority, except as
and if expressly provided for herein.
ARTICLE XVII
17.1 AIR AND LIGHT
17.1 This Lease does not grant any rights to air and light.
ARTICLE XVIII
18.1 DEFAULT
18.1 Each of the following, whether occurring before or after the
Commencement Date, shall be deemed a Default by Tenant and a breach of
this Lease: (1) the filing of a petition by or against Tenant for
adjudication as a bankrupt, or for reorganization, or for arrangement
under any bankruptcy act; (2) the commencement of any action or
proceeding for the dissolution or liquidation of Tenant, whether
instituted by or against Tenant, or for the appointment of a receiver
or trustee of the property of Tenant under any state or federal statute
for relief of debtors; (3) the making by Tenant of an assignment for
the benefit of creditors; (4) the suspension of business by Tenant or
any act by Tenant amounting to a business failure; (5) the filing of a
tax lien or a mechanics' lien against any property of Landlord or
Tenant, which filing is not bonded or removed within five (5) days
after notice thereof from Landlord; (6) Tenant's causing or permitting
the Premises to be vacant, for a period in excess of ten (10) days or
abandonment of the Premises by Tenant; (7) failure by Tenant to pay
Landlord when due the Basic Rent, Additional Rent or any other sum by
the time required by the terms of this Lease which failure is not cured
within five (5) business days after notice thereof from Landlord; (8) a
failure by Tenant in the performance of any other term, covenant,
agreement, or condition of this Lease on the part of Tenant to be
performed, which failure, if curable, is not cured within thirty (30)
days (or such longer period as may be necessary, so long as Tenant is
diligently and continuously undertaking such cure) after notice thereof
from Landlord; (9) a default by Tenant under any other lease or
sublease with Landlord.
18.2 Notwithstanding anything herein to the contrary, Landlord shall
not be required to provide Tenant with more than two (2) notices of
default during the Term of this Lease, regardless of the cause giving
rise to, or the nature of the default. Tenant herein waives any notice
requirements found elsewhere in this Lease beyond the number described
herein.
ARTICLE XIX
19.1 LANDLORD'S RIGHTS UPON TENANT'S DEFAULT
19.1 Upon a Default by Tenant the following provisions shall apply and
Landlord shall have the rights and remedies set forth therein which
rights and remedies may be exercised upon or at any time following the
occurrence of a Default unless, prior to such exercise, Landlord shall
agree in writing with Tenant that the Default has been cured by Tenant
in all respects.
19.2 Landlord shall have the right to xxx for unpaid Basic Rent,
Additional Rent and for all other sums owed to Landlord, or to
accelerate all Basic Rent and all expense installments due hereunder
and otherwise payable in installments over the remainder of the Term,
and, at Landlord's option, any other Additional Rent and/or other
charges to the extent that such Additional Rent and/or other charges
can be determined and calculated to a fixed sum; and the amount of
accelerated rent and other charges, without further notice or demand
for payment, shall be due and payable by Tenant within five (5) days
after Landlord has so notified Tenant. Additional Rent and/or other
charges which has not been included, in whole or in part, in
accelerated rent, shall be due and payable by Tenant during the
remainder of the Term, in the amounts and at the times otherwise
provided for in this Lease.
Notwithstanding the foregoing or the application of any rule of law
based on election of remedies or otherwise, if Tenant fails to pay the
accelerated rent in full when due, Landlord thereafter shall have the
right by notice to Tenant, (i) to terminate Tenant's further right to
possession of the Premises and (ii) to terminate this Lease under
paragraph 19.3 below; and if Tenant shall have paid part but not all of
the accelerated rent, the portion thereof attributable to the period
equivalent to the part of the Term remaining after Landlord's
termination of possession or termination of this Lease shall be applied
by Landlord against Tenant's obligations owing to Landlord as
determined by the applicable provisions of paragraphs 19.4 and 19.5
below.
19.3 By notice to Tenant, Landlord shall have the right to terminate
this Lease as of a date specified in the notice of termination and in
such case, Tenant's rights, including any based on any option to renew,
to the possession and use of the Premises shall end absolutely as of
the termination date specified in such notice; and this Lease shall
also terminate in all respects except for the provisions hereof
regarding Landlord's damages and Tenant's liabilities arising prior to,
out of and following the Default and the ensuing termination.
Following such termination (as well as upon any other termination of
this Lease by expiration of the Term or otherwise) Landlord immediately
shall have the right to recover possession of the Premises; and to that
end, Landlord may enter the Premises and take possession, without the
necessity of giving Tenant any notice to quit or any other further
notice, with or without legal process or proceedings, and in so doing
Landlord may remove Tenant's property (including any improvements or
additions to the Premises which Tenant made, unless made with
Landlord's consent which expressly permitted Tenant to not remove the
same upon expiration of the Term), as well as the property of others as
may be in the Premises, and make disposition thereof in such manner as
Landlord may deem to be commercially reasonable and necessary under the
circumstances.
19.4 Unless and until Landlord shall have terminated this Lease under
paragraph 19.3 above, Tenant shall remain fully liable and responsible
to perform all of the covenants and to observe all the conditions of
this Lease throughout the remainder of the Term; and, in addition and
without regard to whether Landlord shall have terminated this Lease,
Tenant shall pay to Landlord, upon demand and as Additional Rent, the
total sum of all costs, losses and expenses, including reasonable
counsel fees, as Landlord incurs, directly or indirectly, because of
any Default having occurred.
If Landlord either terminates Tenant's right to possession without
terminating this Lease or terminates this Lease and Tenant's leasehold
estate as above provided, Landlord shall have the unrestricted right to
relet the Premises or any part(s) thereof to such tenant(s) on such
provisions and for such period(s) as Landlord may deem appropriate. It
is understood that Landlord shall have no obligation to have the
Premises available for reletting or otherwise endeavor to relet so long
as Landlord (or any related entity) has other comparable vacant space
or property available for leasing to others and that notwithstanding
non-availability of other space or property Landlord's obligation to
mitigate damages shall be limited to such efforts as Landlord, in its
sole reasonable judgment, deems appropriate.
19.5 The damages which Landlord shall be entitled to recover from
Tenant shall be the sum of:
(1) all Basic Rent, Additional Rent and other charges accrued and
unpaid as of the termination date; and
(2) (i) all costs and expenses incurred by Landlord in recovering
possession of the Premises, including removal and storage of
Tenant's property, improvements and alterations therefrom, (ii) the
costs and expenses of restoring the Premises to the condition in
which the same were to have been surrendered by Tenant as of the
expiration of the Term, or, in lieu thereof, the costs and expenses
of remodeling or altering the Premises or any part for reletting
the same, (iii) the costs of reletting (exclusive of those covered
by the foregoing (ii)), including brokerage fees and reasonable
counsel fees; and
(3) all Basic Rent, Additional Rent and other charges to the extent
that the amount(s) of Additional Rent or other charges have been
determined otherwise payable by Tenant over the remainder of the
Term; and
(4) all Basic Rent which would have been due from the Commencement
Date until the Rent Commencement Date.
Less, deducting from the total determined under subparagraphs (1),
(2), and (3) all rent and all other Additional Rent to the extent
determinable as aforesaid, (to the extent that like charges would
have been payable by Tenant) which Landlord receives from other
tenant(s) by reason of the leasing of the Premises or part during
or attributable to any period falling within the otherwise
remainder of the Term.
The damage sums payable by Tenant under the preceding provisions of
this paragraph 19.5 shall be payable on demand from time to time as the
amounts are determined.
In lieu of the damages payable in subparagraph (1), (2), and (3) of
this paragraph 19.5, in the event Landlord so elects or relets the
Premises (or part thereof) during or attributable to any period falling
within the otherwise remainder of the Term, Landlord shall be entitled
to recover from Tenant, in a single action, as liquidated damages for
such sum (in addition to the damages otherwise set forth herein), an
amount calculated to equal the damages set forth in such subparagraph
(1), (2), and (3), provided that for the purpose of calculating said
liquidated damage amount, Additional Rent and other charges shall be
fixed, from the date of such election or commencement of reletting, as
the amount of Additional Rent and other charges which would have been
paid by Tenant, had Tenant not defaulted, as of the date of such
election or commencement of reletting and, the deduction, if any,
therefrom as set forth above shall be the fair market rental value of
the Premises at the date of such election or the then fixed rent
payable by the terms of such reletting as the case may be.
19.6 Any sums payable by Tenant hereunder, which are not paid after the
same shall be due, shall bear interest from that day until paid at the
rate of interest stated at paragraph 1.3.
19.7 Landlord shall be entitled to injunctive relief in case of the
violation, or attempted or threatened violation, of any covenant,
agreement, condition or provision of this Lease, or to a decree
compelling performance of any covenant, agreement, condition or
provision of this Lease.
19.8 In addition to any applicable lien, none of which are to be deemed
waived by Landlord, upon the occurrence of an event of default by
Tenant, Landlord may, in addition to any other remedies provided
herein, enter upon the Premises and take possession of any and all
goods, wares, equipment, fixtures, furniture, improvements and other
personal property of Tenant situated on the Premises, without liability
for trespass or conversion, and sell the same at public or private
sale, with or without having such property at the sale, after giving
Tenant reasonable notice of the time and place of any public sale or of
the time after which any private sale is to be made, at which sale
Landlord or its assigns may purchase unless otherwise prohibited by
law. Unless otherwise provided by law, and without intending to exclude
any other manner of giving Tenant reasonable notice, the requirement of
reasonable notice shall be met if such notice is given in the manner
prescribed in ARTICLE XXVI of this Lease at least five (5) days before
the time of sale. The proceeds from any such disposition, less any and
all expenses connected with the taking of possession, holding and
selling of the property (including reasonable attorney's fees and other
expenses), shall be applied as a credit against the indebtedness
secured by the security interest granted herein. Any surplus shall be
paid to Tenant or as otherwise required by law; and Tenant shall pay
any deficiencies forthwith.
19.9 For the purpose of this ARTICLE XIX, in the event of Tenant's
voluntary or involuntary bankruptcy, should the Tenant as
Debtor-in-Possession or a Trustee appointed by the Bankruptcy Court,
attempt to provide adequate assurance of Tenant's ability to continue
to operate out of the Premises, adequate assurance shall mean, at a
minimum, the following:
(i) The Trustee or Debtor-in-Possession has and will continue to
have sufficient unencumbered assets after the payment of all
secured obligations and administrative expenses to assure Landlord
that the Trustee or Debtor-in-Possession will have sufficient funds
to fulfill the obligations of Tenant under this Lease, and to keep
the Demised Premises properly staffed with sufficient employees to
conduct a fully operational, actively promoted business in the
Premises; and
(ii) The Bankruptcy Court shall have entered an Order segregating
sufficient cash payable to Landlord and/or the Trustee or
Debtor-in-Possession shall have granted a valid and perfected first
lien and security interest and/or mortgage in property of Tenant,
Trustee or Debtor-in-Possession, acceptable as to value and kind to
Landlord, to secure to Landlord the obligation of the Trustee or
Debtor-in-Possession to cure the monetary and/or non-monetary
defaults under this Lease within the time periods set forth above.
ARTICLE XX
20.1 LANDLORD'S REMEDIES CUMULATIVE; EXPENSES
20.1 All rights and remedies of Landlord herein enumerated shall be
cumulative, and none shall exclude any other right or remedy allowed by
law. For the purposes of any suit brought or based hereon, at
Landlord's option, this Lease shall be construed to be a divisible
contract, to the end that if Landlord so elects successive actions may
be maintained on this Lease as successive periodic sums mature
hereunder.
20.2 Tenant shall pay, upon demand, all of Landlord's costs, charges
and expenses, including reasonable fees of counsel, agents and others
retained by Landlord, incurred in enforcing Tenant's obligations
hereunder, whether or not incurred in litigation; provided, however,
that in the event of litigation, then Landlord shall be entitled to
recover such fees only if Landlord substantially prevails in such
action.
ARTICLE XXI
21.1 SUBORDINATION, ESTOPPEL AND ATTORNMENT
21.1 This Lease is subject and subordinate to the lien of any and all
mortgages (which term shall include both construction and permanent
financing and shall include deeds of trust and similar security
instruments) and all ground or other underlying leases from which
Landlord's title is derived ("ground leases") which may now or
hereafter encumber or otherwise affect the Real Property or Landlord's
leasehold therein, and to any and all renewals, extensions,
modifications, recasting or refinancing thereof. This clause shall be
self operative and no further instrument of subordination need to be
required by any mortgagee, trustee or ground lessee. Nevertheless, if
requested by Landlord, Tenant shall promptly execute such subordination
certificate or other subordination document requested. Landlord may
execute said certificate or other document on behalf of Tenant if
Tenant does not execute said certificate or other document within five
(5) business days after receiving it and Tenant hereby designates
Landlord its attorney-in-fact for such purpose. Tenant agrees that if
any proceedings are brought for the foreclosure of any such mortgage,
Tenant if requested to do so by the purchaser at the foreclosure sale
or the grantee of any deed given in lieu of foreclosure, shall attorn
to such purchaser or grantee, shall recognize the purchaser or grantee
as the Landlord under this Lease, and shall make all payments required
hereunder to such new Landlord without any deduction or set-off or any
kind whatsoever. Tenant agrees that if any proceedings are successfully
brought for the termination of any ground lease, or if any other remedy
is successfully exercised by any ground lessor whereby the ground
lessor succeeds to the interests of tenant under the ground leases,
Tenant, if requested to do so by the ground lessor, shall attorn to the
ground lessor, shall recognize the ground lessor as the Landlord under
this Lease, and shall make all payments required hereunder to such new
Landlord without deduction or set-off.
21.2 Both parties agree at any time and from time to time upon not less
than five (5) business days prior written request by the other party,
to execute, acknowledge and deliver a statement in writing certifying
that this Lease is unmodified and in full force and effect (or, if
there have been modifications, that the same are in full force and
effect as modified and stating the modifications) and the dates to
which the Basic Rent and Additional Rent have been paid, and stating
whether that party knows of any default by the other party under this
Lease, and, if so, specifying each such known default, it being
intended that any such statement delivered pursuant to this paragraph
21.2 shall be given in connection with a sale or financing transaction
being consummated by the requesting party and may be relied upon by a
prospective purchaser of the requesting party's interest or a mortgagee
of Landlord's the requesting parties interest or assignee thereof.
21.3 If, in connection with obtaining or continuing financing on the
Premises, the Real Property, or improvements thereto, the Landlord's
mortgage lender shall request reasonable modifications to this Lease as
a condition to such financing, Tenant agrees to promptly execute a
modification document incorporating such modifications; provided that
said modifications do not increase the monetary obligations of the
Tenant or, in the Tenant's reasonable judgment, materially adversely
affect the Tenant's use of the Premises.
ARTICLE XXII
22.1 DAMAGE BY FIRE OR OTHER CASUALTY
22.1 If the Premises shall be damaged by fire or other casualty not
arising from the fault or negligence of Tenant or its servants, agents,
employees, invitees or licensees or, if such damage irrespective of
cause shall be insured: (1) except as otherwise provided in subsection
(2) hereof, the damage shall be repaired by and at the expense of
Landlord (subject to the receipt of applicable insurance proceeds) and
the Basic Rent and Additional Rent until such repairs shall be made
shall be equitably abated according to the part of the Premises which
is usable by Tenant, unless such damage was caused by the fault or
negligence of Tenant or its servants, agents, employees, invitees, or
licensees, in which case no abatement of Basic Rent or Additional Rent
shall be made. Landlord agrees, at its expense, to repair promptly any
damage to the Premises, except that Tenant agrees to repair or replace
its own furniture, furnishings and equipment. No penalty shall accrue
due to an Excusable Delay. (2) If the Premises are totally damaged or
are rendered wholly untenantable by fire or other casualty, or if
Landlord's architect certifies that it cannot be repaired within nine
(9) months of the casualty or if Landlord shall decide not to restore
or repair same, or shall decide to demolish the Building or to rebuild
it, then Landlord shall, within thirty (30) days after final adjustment
of all the insurance claims from such fire or other casualty, give
Tenant a notice of such circumstance or decision, and thereupon the
Term shall expire ten (10) days after such notice is given, and Tenant
shall vacate the Premises and surrender the same to Landlord. (3) If
Landlord fails to complete the repair and restoration of the Premises
within nine (9) months from the date of the casualty (subject to
Excusable Delays) then Tenant shall have the right to cancel and
terminate this Lease upon the delivery of a notice to Landlord
delivered within fifteen (15) days after the expiration of the
aforesaid nine (9) month period. (4) Landlord agrees that it shall
diligently pursue all repair and restoration work required on its part
to be completed hereunder.
22.2 If the Premises shall be damaged by fire or other casualty arising
from the fault or negligence of Tenant or its servants, agents,
employees, invitees or licensees and said damage is not covered under
the policy or policies of insurance issued to Landlord or Tenant,
Tenant shall be liable to Landlord as is elsewhere provided in this
Lease, Landlord shall have the option but not the obligation to restore
or rebuild the same or to terminate this Lease and Tenant shall
continue to be responsible to pay Basic Rent and Additional Rent
without abatement for the entire Term otherwise applicable.
Notwithstanding anything herein to the contrary, under no circumstances
shall Tenant have the right to cancel and terminate this Lease in the
event the Premises shall be damaged by fire or other casualty arising
from the fault or negligence of Tenant or its servants, agents,
employees, invitees or licensees.
ARTICLE XXIII
23.1 MUTUAL WAIVER OF SUBROGATION CASUALTY
23.1 Each party hereto waives any cause of action it might have against
the other party on account of any loss or damage that is insured
against under any insurance policy (to the extent that such loss or
damage is recoverable under such insurance policy) that covers the
Building, and/or Premises, Landlord's or Tenant's fixtures, personal
property, leasehold improvements or business and which names Landlord
or Tenant, as the case may be, as a party insured. Each party hereto
agrees that it will cause its insurance carrier to endorse all
applicable policies waiving the carrier's right of recovery under
subrogation or otherwise against the other party.
ARTICLE XXIV
24.1 If the Premises shall be acquired or condemned by eminent domain
proceeding, or by giving of a deed in lieu of thereof, then and in that
event, the Term shall cease and terminate from the date of
title-vesting pursuant to such proceeding or agreement. If only a
portion of the Premises shall be so acquired or condemned, this Lease
shall cease and terminate at Landlord's option, and if such option is
not exercised by Landlord, an equitable adjustment of the Basic Rent
and Additional Rent payable by Tenant for the remaining portion of the
Premises shall be made. If 25% or more of the Premises shall be
acquired or condemned, the Tenant shall also have the option to
terminate this Lease. In the event of a termination under this ARTICLE
other than for the adjustment of the Basic Rent and Additional Rent as
hereinbefore mentioned, Tenant shall have no claim whatsoever against
Landlord including (without limitation) any claim for the value of any
unexpired Term; nor shall Tenant be entitled to claim or receive any
portion of any amount that may be awarded as damages or paid as a
result of such proceedings or as the result of any agreement made by
the condemning authority with Landlord. Tenant may apply for
reimbursement of its moving and
relocation expenses from the condemning authority, but Tenant shall
assert no claim, including (without limitation) any claim for the value
of any unexpired Term, against the condemning authority that may in any
way impair or diminish Landlord's claims against such condemning
authority.
ARTICLE XXV
25.1 CHANGES SURROUNDING BUILDING
25.1 This Lease shall not be affected or impaired by any change,
alteration or addition in, to or of any sidewalk, alley, street,
landscape or structure adjacent to or around the Building or Real
Property, except as provided in ARTICLE XXIV, and so long as such
change does not materially reduce the number of parking spaces
available for Tenant's use or materially impair access to the Building.
25.2 Any changes in the arrangement or location of any public portion
of the Building not contained in the Premises or any part thereof shall
not constitute an eviction or disturbance of Tenant's use or possession
of the Premises provided such change does not unreasonably interfere
with Tenant's use of or ingress to and from the Premises and Landlord
shall be free to make such changes or alterations without liability to
Tenant
25.3 Landlord may on sixty (60) days written notice, designate a name
and address for the Building and may change same from time to time as
Landlord sees fit or as may be required by law.
ARTICLE XXVI
26.1 NOTICES
26.1 Except as may be otherwise expressly provided in this Lease,
notices by either party to the other shall be in writing and shall be
sent by registered or certified mail, by overnight mail by a reputable
overnight delivery service or by hand delivery, addressed to Landlord
or Tenant at their respective addresses hereinabove set forth (or to
the appropriate facsimile number in the case of delivery by facsimile
transmission) or to such other address as either party shall hereafter
designate by notice as aforesaid. All notices properly addressed shall
be deemed served upon receipt by the addressee or, in the case of
notice by mail, three (3) days after the date of mailing, except that
notice of change of address shall not be deemed served until received
by the addressee.
ARTICLE XXVII
27.1 NO WAIVER
27.1 No delay or forbearance by Landlord or Tenant, no act or
undertaking by Landlord or Tenant and/or no waiver by Landlord or
Tenant of any breach by the other party of any of the terms, covenants,
agreements, or conditions of this Lease shall be deemed to constitute a
waiver of any current (unless Landlord so agrees in writing) or
succeeding breach thereof, or a waiver of any breach of any of the
terms, covenants, agreements and conditions herein contained.
27.2 No employee of Landlord or of Landlord's agents shall have any
authority to accept the keys of the Premises prior to the Termination
Date and the delivery of keys to any employee of Landlord or Landlord's
agents shall not operate as an acceptance of a termination of this
Lease or an acceptance of a surrender of the Premises.
27.3 The receipt by Landlord of the Basic Rent and Additional Rent with
knowledge of the breach of any covenant of this Lease shall not be
deemed a waiver of such breach. No payment by Tenant or receipt by
Landlord of a lesser amount than the monthly Basic Rent or a lesser
amount of the Additional Rent then due shall be deemed to be other than
on account of the earliest stipulated amount then due, nor shall any
endorsement or statement on any check or any letter or other instrument
accompanying any check or payment as Basic Rent or Additional Rent be
deemed an accord and satisfaction and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of
such Basic Rent or Additional Rent or pursue any other remedy provided
in this Lease.
27.4 The failure of Landlord to enforce any of the Rules and
Regulations as may be set by Landlord from time to time against Tenant
or against any other tenant in the Building shall not be deemed a
waiver of any such Rule or Regulation.
ARTICLE XXVIII
28.1 LANDLORD'S RESERVED RIGHTS
28.1 Landlord reserves the following rights: (1) if during or prior to
the last ninety (90) days of the Term Tenant vacates the Premises, to
decorate, remodel, repair, alter or otherwise prepare the Premises for
reoccupancy and, (2) to masterkey all locks to the Premises.
28.2 Landlord may enter upon the Premises and may exercise either of
the foregoing rights hereby reserved without being deemed to have
caused an eviction or disturbance of Tenant's use and possession of the
Premises and without being liable in any manner to Tenant.
ARTICLE XXIX
29.1 LANDLORD'S LIABILITY
29.1 Landlord, as well as Landlord's owners, servants, employees,
agents or licensees, shall not be liable for any injury or damage to
persons or property resulting from fire, explosion, falling plaster,
steam, gas, electricity, water, rain, snow, or leaks from any part of
the Building or from the pipes, appliances, plumbing, or the roof,
street, subsurface, or from any other place or by dampness, offensive
odors or noise, or by any other cause of whatsoever nature, unless
caused by or due to the negligence of Landlord or its agents.
29.2 Should Tenant enter the Premises prior to the Commencement of this
Lease for the purpose of making any installations, alterations or
improvements as may be permitted by Landlord, Landlord shall have no
liability or obligation for the care or preservation of Tenant's
property , for personal injury, or otherwise.
29.3 Tenant agrees to take such steps, at its own cost, as it may deem
necessary and adequate for the protection of itself, and its agents,
servants, employees, invitees, and licensees against personal injury
and property damage, by insurance, as a self-insurer or otherwise.
ARTICLE XXX
30.1 TENANT'S LIABILITY
30.1 Tenant shall hold Landlord harmless from and indemnify Landlord
for all expenses, damages, or fines, incurred or suffered by Landlord
by reason of any breach, violation, or non-performance by Tenant, its
agents, servants, employees, invitees, or licensees of any covenant or
provision of this Lease, or by reason of damage to persons or property
caused by moving property of or for Tenant in or out of the Building,
or by the installation or removal of furniture or other property of or
for Tenant or by reason of, or arising out of the carelessness,
negligence or improper conduct of Tenant, or its agents, servants,
employees, invitees, and licensees in the use or occupancy of the
Premises. Any such expense shall be deemed Additional Rent, due in the
next calendar month after it is incurred.
ARTICLE XXXI
31.1 INSURANCE
31.1 Tenant covenants to provide on or before the Commencement Date for
the benefit of Landlord and Tenant a comprehensive policy of liability
insurance protecting Landlord and Tenant against any liability
whatsoever occasioned by any occurrence on or about the Premises or any
appurtenances thereto. Such policy is to be written by insurance
companies qualified to do business in the State of New Jersey and the
limits of liability thereunder shall not be less than the amount of
Three Million Dollars ($3,000,000.00) with respect to any one person,
with respect to any one accident, and with respect to property damage.
Such insurance may be carried under a blanket policy covering the
Premises and other locations of Tenant, if any.
31.2 Prior to the time such insurance is first required by this ARTICLE
to be carried by Tenant, and thereafter, at least thirty (30) days
prior to the expiration of any such policy, Tenant agrees to deliver to
Landlord either a duplicate original of the aforesaid policy or a
certificate evidencing such insurance, including the Landlord and the
managing agent as an additional insured, together
with evidence of payment for the policy. Said policy or certificate
shall contain an endorsement that such insurance may not be canceled
except upon thirty (30) days notice to Landlord.
31.3 Upon failure at any time on the part of Tenant to procure and
deliver to Landlord the policy or certificate of insurance, as
hereinabove provided, stamped "Premium Paid" by the issuing company at
least thirty (30) days before the expiration of the prior insurance
policy or certificate, if any, or to pay the premiums therefore,
Landlord shall be at liberty, from time to time, as often as such
failure shall occur, after prior notice, which may be telephonic, to
procure such insurance and to pay the premium therefore, and any sums
paid for insurance by Landlord shall be and become, and are hereby
declared, to be Additional Rent hereunder for the collection of which
Landlord shall have all the remedies provided for in this Lease or by
law for the collection of rent. Payment by Landlord of such premium or
the carrying by Landlord of any such policy shall not be deemed to
waive or release the default of Tenant with respect thereto. Tenant's
failure to provide and keep in force the aforementioned insurance shall
be regarded as a Default hereunder entitling Landlord to exercise any
or all of the remedies as provided in this Lease in the event of
Default.
31.4 Landlord shall carry such insurance as shall in Landlord's
reasonable business judgment be appropriate and in keeping with that
customarily maintained by Landlords with respect to buildings similar
to the Building, in the Livingston, New Jersey area. The provisions of
this Section 31.4 shall not be construed to prevent the Landlord from
including the cost of such insurance within Landlord's Operating
Expenses pursuant to Section 7.3 of this Lease.
ARTICLE XXXII
32.1 CONSTRUCTION LIENS
32.1 Nothing herein contained shall be construed as a consent on the
part of the Landlord to subject the estate of the Landlord to liability
under the Construction Lien Law of the State of New Jersey, it being
expressly understood that the Landlord's estate shall not be subject to
such liability. The Tenant shall have no power or right to do any act
or make any contract which may create or be the format for any lien,
mortgage or other encumbrance upon the estate of the Landlord.
Notwithstanding the foregoing, any construction lien filed against the
Real Property for work claimed to have been done for, or materials
claimed to have been furnished to Tenant, shall be bonded or discharged
by Tenant within fifteen (15) days after notice of filing, at Tenant's
expense. Tenant shall forever indemnify and hold Landlord harmless from
and against any and all claims arising from said liens including all
costs, expenses, losses, fines and penalties, including without
limitation, reasonable attorneys fees related thereto or resulting
therefrom. This clause shall survive the Term of this Lease.
ARTICLE XXXIII
33.1 NOTICE OF FIRE AND ACCIDENTS
33.1 Tenant shall give Landlord immediate notice in case of fire or
accident on the Premises or, in case of fire or accident involving
Tenant, its servants, agents, employees, invitees, or licensees, in the
Building or on the Real Property.
ARTICLE XXXIV
34.1 RELEASE OF LANDLORD
34.1 The term "Landlord" as used in this Lease means only the owner for
the time being of the Real Property or the lessee of a lease of the
Real Property. In the event of any transfer of title to or lease of the
Real Property, the Landlord shall be and hereby is entirely freed and
relieved of all covenants and obligations of Landlord accruing from and
after the date of said transfer hereunder and this Lease shall be
deemed and construed as a covenant running with the Land without
further agreement between the parties or their successors in interest.
34.2 Landlord, as well as Landlord's owners, servants, employees,
agents or licensees, shall be under no personal or recourse liability
with respect to any of the provisions of this Lease, and if
Landlord is in breach or default with respect to its obligations or
otherwise, Tenant shall look solely to the equity of Landlord in the
Real Property for the satisfaction of Tenant's remedies. It is
expressly understood and agreed that Landlord's liability under the
terms, covenants, conditions, and obligations of this Lease shall in no
event exceed the loss of its equity in the Real Property.
ARTICLE XXXV
35.1 SECURITY DEPOSIT
35.1 The irrevocable stand-by letter of credit (the "Letter of Credit")
to be furnished by Tenant as its Security Deposit shall be delivered to
Landlord on or before May 18, 2005 and shall be drawn on a bank within
the State of New Jersey and shall be acceptable to Landlord in its
reasonable discretion. The Letter of Credit shall either extend for a
minimum term of sixty-three (63) months from the Commencement Date or
shall be automatically renewable from year to year until such date
which shall be not less than sixty-three (63) months after the
Commencement Date. In the event the Letter of Credit shall, as of any
date during the Term, by its terms expire within ninety (90) days
thereafter, and such Letter of Credit shall not have been renewed or
replaced by a Letter of Credit which complies with the requirements of
this Section or with a cash Security Deposit, then, such shall
constitute a Default at any time on or after the date which is ninety
(90) days before such expiration date.
35.2 In the event of a default of Tenant in respect of any of the
terms, covenants or conditions of this Lease not cured in any
applicable grace or cure period Landlord may use, apply or retain the
whole or any part of the Security Deposit or present for payment the
Letter of Credit to the extent required for the payment of any Basic
Rent, Additional Rent, or any other sum as to which Tenant is in
default, or for any sum which Landlord may expend or may be required to
expend by reason of Tenant's Default in respect to any of the terms,
covenants, or conditions of this Lease, including but not limited to,
any damages or deficiency accrued before or after summary proceedings
of other re-entry by Landlord. In the event that Landlord may at any
time or from time to time use, apply or retain the whole or any part of
the Security Deposit as aforesaid, Tenant shall immediately restore the
Security Deposit to the sum thereof prior to any such use, application
or retention. In the event that Tenant shall fully and faithfully
comply with all of the terms, covenants, and conditions of this Lease,
the remaining amount of the Security Deposit shall be returned to
Tenant, without interest, after the Termination Date and after delivery
of possession of the entire Premises to Landlord.
35.3 In the event Tenant shall have delivered the Letter of Credit as
the Security Deposit, a breach of any of the provisions of Section 35.1
above shall constitute a Default under this Lease. In the event of a
Default, Landlord shall have the right to present the Letter of Credit
for payment either in multiple draws, if the Letter of Credit shall so
provide, or in one (1) single draw for the entire amount thereof.
35.4 In the event of a sale of the Real Property or a leasing thereof,
Landlord shall have the right to transfer the Security Deposit to the
vendee or lessee, as the case may be, and Landlord shall thereupon be
released by Tenant from all liability for the return of such Security
Deposit transferred to the new Landlord; and Tenant agrees to look to
the new Landlord solely for the return of the Security Deposit; and it
is agreed that the provisions thereof shall apply to every transfer or
assignment made of the Security Deposit to a new Landlord. Tenant
further covenants that it will not assign or encumber, or attempt to
assign or encumber the Security Deposit and that neither Landlord nor
its successors or assigns shall be bound by any such assignment, or
attempted encumbrance.
ARTICLE XXXVI
36.1 SIGNS
36.1 Tenant shall have the right and privilege of erecting at the
Premises only such exterior signs as are required by the Tenant for the
purpose of identifying the Tenant, provided that the Tenant obtains
prior written approval of Landlord, who shall have the absolute right
to control the size, material, design and content of such signs which
signs shall be consistent aesthetically with the signs erected or to be
erected on or adjacent to the Building of which the Premises are a
part. The said signs shall comply with the ordinances, rules,
regulations, and/or standards of any applicable governmental boards and
bureaus having jurisdiction thereof. The erection of such signs shall
not cause any damage to the Building or its improvements, and in any
event Tenant shall be responsible at its cost and expense for the
repair of any such damage caused by sign installation as hereinabove
referred to. It is expressly understood and agreed that the Tenant
shall not erect roof signs, and at
the termination of the Term and any renewal term, Tenant, at its cost
shall remove all signs and repair all damage occasioned by said
removal.
ARTICLE XXXVII
37.1 GLASS
37.1 The Tenant expressly covenants and agrees to immediately replace
any broken glass in the windows or other apertures of the Premises
which may become damaged or destroyed at its cost and expense, unless
said damage is the result of the acts of the Landlord, its agents,
employees, servants and business invitees. Tenant covenants and agrees
that it will either carry plate glass insurance or, in lieu thereof,
Tenant will self insure and will, at its own cost and expense, replace
the said plate glass hereinabove referred to. If Tenant obtains
insurance coverage, it shall furnish to Landlord a certificate of
insurance evidencing such coverage together with such renewals thereof,
as shall be required during the Term of the Lease.
ARTICLE XXXVIII
38.1 HAZARDOUS WASTE, AIR, WATER AND GROUND POLLUTION
38.1 Tenant hereby warrants that its North American Industry
Classification System ("NAICS") Code Number is 54169. If Tenant's NAICS
code shall ever change it shall immediately notify Landlord of such
change. Tenant shall not (either with or without negligence) cause or
permit the escape, disposal or release of any biological or chemically
active or other hazardous substances, or materials. Tenant shall not
allow the storage or use of such substances or materials in any manner
not sanctioned by law or by the highest standards prevailing in the
industry for the storage and use of such substances or materials, nor
allow to be brought into the Premises, Building or Real Property any
such materials or substances except to use in the ordinary course of
Tenant's business, and then only after written notice is given to
Landlord of the identity of such substances or materials. Without
limitation, hazardous substances and materials shall include those
described in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section
6901 et seq., any applicable state or local laws and the regulations
adopted under these acts. If any lender or governmental agency shall
ever require testing to ascertain whether or not there has been release
of hazardous materials, then the reasonable costs thereof shall be
reimbursed by Tenant to Landlord upon demand as additional charges if
such requirement applies particularly to Tenant's use of the Premises.
In addition, Tenant shall execute affidavits, representations and the
like from time to time at Landlord's request concerning Tenant's
knowledge and belief regarding the presence of hazardous substances or
materials on the Premises. In all events, Tenant shall indemnify
Landlord in the manner elsewhere provided in this Lease from any
release of hazardous materials on the Premises occurring while Tenant
is in possession, except to the extent resulting from the acts of
Landlord or Landlord's agents or others acting under Landlord, or
elsewhere if caused by Tenant or persons acting under Tenant. The
within covenants shall survive the expiration or earlier termination of
the Lease Term. The Tenant expressly covenants and agrees to indemnify,
defend, and save the Landlord harmless against any claim, damage,
liability, costs, penalties, or fines which the Landlord may suffer as
a result of Air, Water or Ground Pollution (hereinafter referred to as
("Pollution") caused by the Tenant in its use of the Premises. The
Tenant covenants and agrees to notify the Landlord immediately of any
claim or notice served upon it with respect to any such claim that the
Tenant is causing Pollution; and the Tenant, in any event, will take
immediate steps to halt, remedy or cure any Pollution caused by the
Tenant by its use of the Premises. The foregoing covenant shall survive
the expiration or termination of the within Lease.
38.2. Landlord shall indemnify Tenant from any claims, damage,
liability, costs, penalties or fines which Tenant may suffer as a
result of Pollution caused by Landlord, its agents or others acting
under Landlord, or Pollution existing at the Real Property as of the
date of this Lease.
ARTICLE XXXIX
39.1 ISRA COMPLIANCE
39.1 Tenant shall not cause the Premises to be used as an "Industrial
Establishment" as defined under the New Jersey Industrial Site
Remediation Act, N.J.S.A. 12:1K-6 et seq. ("the Act") and all
regulations promulgated pursuant to the Act. Tenant shall, at Tenant's
own expense, comply with the Act, Tenant shall, at Tenant's own
expense, provide all information within Tenant's control requested by
Landlord or the Bureau of Industrial Site Evaluation for the
preparation of submissions, declarations, reports and plans pursuant to
the Act. If the New Jersey Department of Environmental Protection (DEP)
or any successor agency shall determine that a clean-up plan be
prepared and that a clean-up be undertaken because of any spills or
discharges of hazardous substances or wastes at the Premises or
elsewhere if Tenant or persons acting under Tenant or on behalf of
Tenant caused such release, then Tenant shall, at Tenant's own expense,
prepare and submit the required plans and carry out the approved plans.
Tenant shall indemnify, defend and save harmless Landlord from all
costs, expenses, fines, suits, procedures, claims and actions of any
kind arising out of or in any way connected with any such spills or
discharges of hazardous substances or wastes at the Premises or
elsewhere if caused by Tenant or persons acting under Tenant or on
behalf of Tenant. Tenant's obligations and liability under this
Paragraph shall survive the Term of this Lease and shall continue so
long as Landlord remains responsible for any spills or discharges or
hazardous substances or wastes at the Premises. Tenant also agrees to
cooperate with the Landlord in obtaining ISRA approval.
39.2 CONDITION PRECEDENT TO ASSIGNMENT AND SUBLEASE
39.2.1 As a condition precedent to Tenant's right to sublet the
Premises or to assign this Lease, Tenant shall, at Tenant's own
expense, first comply with ISRA and all other Environmental Laws, and
fulfill all of Tenant's environmental obligations under this Lease
pursuant to ARTICLE XXXVII which also arise upon termination of
Tenant's Lease Term. If this condition shall not be satisfied, the
Landlord shall have the right to withhold consent to sublet or
assignment.
ARTICLE XL
40.1 TENANT RELOCATION
40.1 Notwithstanding any other provisions of this Lease to the
contrary, the Landlord reserves the right, from time to time, but not
more than once during the initial Term and not more than once during
the Extended Period, upon ninety (90) days advance written notice to
the Tenant, to relocate Tenant to substituted space of approximately
equal square footage and of comparable quality and location in the
Building. Such substituted space shall then constitute the Premises
under this Lease and this Lease shall remain in full force and effect
without modification except as may be appropriate to take into account
any differences in the square footage of such substituted space. In
such event the Landlord shall pay all of Tenant's reasonable costs of
moving and reinstallation of telephone, computers and other equipment
in the substituted space and reasonable printing costs for letterhead,
business cards and announcements. In addition, Landlord shall reimburse
Tenant for decorating and preparation of the substituted space, in such
manner as shall be similar or equal to that which existed in the
Premises; and the reimbursement costs shall be so limited.
ARTICLE XLI
41.1 OPTION TO RENEW
41.1 Provided that no default has occurred, Tenant shall have one
(1) option to extend the Term of its Lease of the Premises,
from the date upon which this Lease would otherwise expire,
for one (1) period of five (5) years (the "Extended Period")
upon the following terms and conditions:
41.2 If Tenant elects to exercise said option, it shall do so by
giving notice of such election to Landlord on or before the
date which is nine (9) months before the Termination Date.
Tenant agrees that it shall have forever waived its right to
exercise any such option if it shall fail for any reason
whatsoever to give such notice to Landlord by the time
provided herein for giving of the such notice, whether such
failure is inadvertent or intentional, time being of the
essence as to the exercise of such option.
41.3 If Tenant elects to exercise said option, the Term shall be
automatically extended for the Extended Period without
execution of an extension or renewal lease. However, within
ten (10) days after request of either party following the
effective exercise of such option, Landlord and tenant shall
execute, acknowledge and deliver to each other duplicate
originals of an instrument confirming that such option was
effectively exercised.
41.4 If the within option is exercised, the Extended Period shall
be upon the same terms and conditions as are in effect
immediately preceding the commencement of any such Extended
Period; provided, however, that Tenant shall have no further
right or option to extend the Term for any period of time
beyond the expiration of the Extended Period and provided
further, that in the Extended Period Tenant's annual Basic
Rent shall be One Hundred Fourteen Thousand Five Hundred and
54/100 ($114,500.54) per year payable in equal monthly
installments in advance in the amount of Nine Thousand Five
Hundred Forty-One and 71/100 ($9,541.71) per month.
41.5 Any Termination, expiration, cancellation or surrender of this
Lease shall terminate any right or option for the Extended
Period not yet exercised.
41.6 The option provided herein to extend the term of the Lease may
not be severed from the lease or separately sold, assigned or
otherwise transferred.
ARTICLE XLIII
42.1 MISCELLANEOUS
42.1 ENTIRE AGREEMENT: This Lease contains the entire agreement between
the parties, and any attempt hereafter made to change, modify,
discharge, or effect an abandonment of it in whole or in part shall be
void and ineffective unless in writing and signed by the party against
whom enforcement of the change, modification, discharge, or abandonment
is sought.
42.2 JURY TRIAL WAIVER: Landlord and Tenant do hereby waive trial by
jury in any action, proceeding, or counterclaim brought by either of
the parties hereto against the other on any matter whatsoever arising
out of or in any connection with this Lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the Premises, and/or
any claim, injury or damage, or any emergency or statutory remedy.
42.3 FORCE MAJEURE: If, by reason any circumstance or condition
constituting Excusable Delay, Landlord shall be unable to fulfill its
obligations under this Lease or shall be unable to supply a service
which Landlord is obligated to supply, this Lease and Tenant's
obligation to pay Basic Rent and Additional Rent hereunder shall in no
way be affected, impaired, or excused.
42.4 BROKER: The parties mutually represent to each other that neither
party has dealt with any real estate broker in connection with this
Lease, other than the Broker whose fee will be paid by Landlord
pursuant to a separate agreement. Each party indemnifies and holds the
other harmless of and from any and all claims, liabilities, costs, or
damages it may incur as a result of claims of any other real estate
brokers claiming commissions in connection with this Lease and claiming
authority from the indemnifying party.
42.5 SEPARABILITY: If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other
than those to which it is held invalid or unenforceable, shall not be
affected thereby and all other terms and provisions of this Lease shall
be valid and enforced to the fullest extent permitted by law.
42.6 INTERPRETATION:
42.6.1 Whenever in this Lease any words of obligation or duty are
used, such words or expressions shall have the same force and
effect as though made in the form of covenants.
42.6.2 Words of any gender used in this Lease shall be held to
include any other gender, and words in singular number shall be
held to include the plural, when the sense requires.
42.6.3 All pronouns and any variations thereof shall be deemed to
refer to the neuter, masculine, feminine, singular, or plural as
the identity of the Tenant requires.
42.6.4 No rules of construction shall apply by reason of the
identity of the draftsperson of the Lease. No remedy or election
given by any provision in this Lease shall be deemed exclusive
unless so indicated, but each shall, wherever possible, be
cumulative with all other remedies in
law or equity except as otherwise specifically provided. Each
provision hereof shall be deemed both a covenant and a condition
and shall run with the land.
42.6.5 If, and to the extent that, any of the provisions of any
Rider to this Lease conflict or are otherwise inconsistent with
any of the preceding provisions of this Lease, or of the Rules and
Regulations appended to this Lease, whether or not such
inconsistency is expressly noted in the Rider, the provisions of
the Rider shall prevail, and in case of inconsistency with said
Rules and Regulations, shall be deemed a waiver of such Rules and
Regulations with respect to Tenant to the extent of such
inconsistency.
42.6.6 Tenant agrees that all of Tenant's covenants and agreements
herein contained providing for the payment of money and Tenant's
covenant to remove mechanics' liens shall be deemed conditions as
well as covenants, and that if default be made in any such
covenants, Landlord shall have all of the rights provided for
herein.
42.6.7 The parties mutually agree that the headings and captions
contained in this Lease are inserted for convenience of reference
only, and are not to be deemed part of or to be used in construing
this Lease.
42.6.8 The covenants and agreements herein contained shall,
subject to the provisions of this Lease, bind and inure to the
benefit of Landlord, its successors and assigns, and Tenant, its
successors and assigns except as otherwise provided herein.
42.6.9 It is further understood and agreed that wherever the
provisions of this Lease require that Landlord shall approve or
consent, Landlord agrees not to unreasonably withhold such prompt
approval and consent and wherever Tenant is required to do
anything to the satisfaction of Landlord it shall be deemed except
as set forth in ARTICLE XII and elsewhere as stated in Lease that
reasonable satisfaction of Landlord will be sufficient.
42.6.9.1 This Lease has been executed and delivered in the State
of New Jersey and shall be construed in accordance with the laws
of the State of New Jersey, and Landlord and Tenant acknowledge
that all of the applicable statutes of the State of New Jersey are
superimposed on the rights, duties, and obligations of Landlord
and Tenant hereunder and this Lease shall not otherwise provide
that which said statutes prohibit.
42.6.9.2 Landlord has made no representations or promises with
respect to the Premises or the Real Property, except as expressly
contained herein. Tenant has inspected the Premises and agrees to
take the same in an "as is" condition, except as other-wise
expressly set forth. Landlord shall have no obligation, except as
herein set forth, to do any work in and to the Premises to render
them ready for occupancy and use by Tenant.
42.6.9.3 Tenant shall not record this Lease or a memorandum
thereof.
42.7 FINANCIAL STATEMENTS: Tenant agrees at Landlord's request to file
periodically with the Landlord or its mortgagee(s) copies of such
financial information as is commercially reasonable in light of the
request.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the date
first above written.
WITNESS: LANDLORD:
FIVE REGENT PARK ASSOCIATES
BY: JANFEL-JBS, CORP., A GENERAL PARTNER
_____________________________ __________________________________
BY:
WITNESS: TENANT:
SWK TECHNOLOGIES, INC.
_____________________________ __________________________________
BY:
EXHIBIT A
---------
FIVE REGENT PARK ASSOCIATES
C/O EASTMAN MANAGEMENT CORPORATION
000 X. XX. XXXXXXXX XXXXXX
XXXXXXXXXX, XX 00000
(000)000-0000
WORKLETTER AGREEMENT
FOR
SWK TECHNOLOGIES, INC.
APRIL 8, 2005
To induce Tenant to enter into the Lease (which is hereby incorporated by
reference to the extent that the provisions of this agreement may apply thereto)
and in consideration of the covenants hereinafter contained, Landlord and Tenant
mutually agree as follows: Tenant accepts the Premises in an "As Is" "Where As"
condition, except as expressly stated herein.
1. Landlord, at its sole cost and expense subject to the aforementioned limits,
shall cause to be prepared the following architectural drawings and
specifications:
A. Complete, finished, detailed architectural drawings and
specifications for Tenant's partition layout, reflected ceiling and
other installations, for the work to be done by Landlord under
Paragraph 2 hereof and pursuant to the attached floor plan "Exhibit A".
B. Complete mechanical plans and specifications where necessary for
installation of air conditioning systemand ductwork, heating,
electrical, plumbing and other mechanical plans, for the work to be
done by Landlord under paragraph 2 hereof. In the event any special
engineering services are required for purposes of layout or
requirements, Tenant shall reimburse Landlord for the cost of such
engineering services, which shall be performed by Landlord's engineers
only. Landlord hereby acknowledges that no special engineering services
will be required for the current layout reflected on Exhibit A. All
such plans and specifications are expressly subject to Landlord's
written approval, which Landlord covenants it will not unreasonably
withhold.
Tenant covenants and agrees to cause said plans and specifications to
be approved and forwarded to Landlord within ten (10) days of its
receipt from Landlord.
2. Landlord, at its expense and without charge to Tenant, will perform the
following work, hereinafter referred to as "Building Standard", in the Premises.
Building Standard shall also mean the type and grade of material, equipment,
and/or device designated by the Landlord as standard for the building:
A. Furnish and install metal, ceiling height stud partitions with
drywall (spackled and taped for painting); together with Building
Standard doors, bucks, and hardware (consisting of office door,
latchset, and hinges) and 5-7 existing door locks will remain and be
re-used, as designated by Landlord. All partition work and number of
doors shall be in accordance with the attached floor plan, "Exhibit A",
and one (1) entrance door with lock for the demised premises. Emergency
exit doors will be provided and located as required by code.
(1) Demising Partitions - Partitions shall be 3-5/8" steel studs 24"
o.c. with 5/8" gypsum board, fire rated where required to underside of
structure, and having full thick sound insulation.
(2) Interior Partitions - Partitions shall be 3-5/8" steel studs 24"
o.c. with 5/8"gypsum board extending to underside of finish ceiling.
(3) Entrance door - 3'-0" x 6'-8", glass door.
(4) Interior doors and frames - all door bucks to be hollow metal.
Doors will be 3-'0" 6'-8" solid core birch veneer paint or stain grade.
Existing interior doors are to be re-used.
B. Furnish and install Building Standard 2'-0" x 4'-0" x 5/8"
acoustical hung ceilings, at a height of approximately 9'0". Existing
to remain and be re-used; all damaged, stained and non-matching tiles
will be replaced.
C. Furnish and install Building Standard Carpeting with vinyl cove base
throughout.
D. Paint the peripheral walls and all Building Standard
partitions, doors, door bucks and trim with a prime coat and a finish
coat in Tenant's choice of Building Standard colors. Color breaks shall
be at Tenant's extra cost.
E. Provide a heating, ventilating and air conditioning system with
peripheral and interior components.
(1) This system is designed to maintain, within tolerance 78 F
degrees Fahrenheit dry bulb when the outside temperature is 91
degrees Fahrenheit dry bulb based on an average of one person per
100 square feet. During the winter season, the system will be
capable of maintaining a minimum temperature of 70 degrees
Fahrenheit dry bulb when the outside temperature is zero (0)
degrees dry bulb.
(2) Building Standard will not include any modifications or
rerouting of heating, ventilating, or air conditioning which is
necessitated by peculiarities of Tenant's office layout.
(3) Provide one thermostat and one night set back per HVAC unit.
F. Provide electrical services and equipment as follows:
(1) Building Standard recessed fluorescent lighting fixtures in
the amount necessary to provide 50 foot candles of lighting
intensity at desk height in work areas. This anticipated level of
illumination is contingent upon good fixtures layout procedures in
large spaces, light wall and ceiling finishes throughout, and
proper placement of lighting fixtures with respect to working
surfaces in small spaces. Because of the many factors in Tenant's
furniture and partition layout which affect lighting, it shall in
no way be interpreted that the Landlord guarantees that the
fixtures it provides will produce the estimated foot candles of
illumination at the working plane on each and every square foot of
Tenant's demised premises.
(2) Building Standard wall mounted duplex electric outlets - one
(1) for every one hundred fifty (150) square feet of in the
demised premises.
(3) Building Standard wall mounted switch for lighting control -
one (1) for every eighteen fixtures in open areas, and one (1)
switch for each private office.
(4) Electrical wiring within the demised premises for other than
Building Standard items is not included.
(5) Provide 1-5 volt amperes per square foot in the demised
premises (based upon the installation by Landlord of central
facilities for the joint use of all tenants) for the connection of
Tenant's standard electrical equipment and installations. In the
event that Tenant's connected load is ascertained to be excess
usage, Tenant shall reimburse Landlord for such additional
equipment as may be needed as set forth in the Lease.
(6) Landlord shall, at Tenant's cost and expense, supply and
install all replacement lamps, bulbs and starters used in the
demised premises.
(7) Building Standard electric shall not include special wiring
and power distributing for Tenant's equipment including but not
limited to computer equipment and separate air conditioning
related thereto.
(8) Building Standard electric shall not include furnishings,
wiring, nor installation of required conduit for the Tenant's
signal, alarm, and coaxial cable system.
(9) Building Standard electric shall not include the furnishing,
wiring, nor installation of required telephone equipment and
conduit for Tenant's telephone system. The Tenant shall contract
directly with the telephone company for complete furnishing and
installation of the Tenant's telephone system.
G. Provide plumbing as follows:
(1) Building the existing bathrooms which include standard
plumbing fixtures in all lavatories consist of water closets,
lavatories and urinals (where required) of the quantities required
by the
state building code. Landlord to install automatic flush systems.
Existing water closets will remain; where stained, will be cleaned
or replaced.
(2) Provide one hot water heater, either under counter in kitchen
or above ceiling, at Landlord's option.
(3) Provide the following kitchen accessories; single basin sink &
hardware standard size formica countertop with cutout for sink,
standard sink base.
(4) Remove Janitor's sink from utility closet.
H. Landlord will obtain and pay for all permits and inspections
required for occupancy for Building Standard work and such extra work
that the Landlord is authorized in writing by the Tenant to perform
under all stipulations as set forth in this Workletter. Where work is
to be performed by the Tenant and his subcontractors as stipulated in
this Workletter and said work requires the issuance of permits and
requirements for inspections by the agencies maintaining jurisdiction,
the Tenant shall obtain and pay for said permits and inspections and
any deficiencies therein shall be the responsibility of the Tenant.
3. If Landlord further agrees to perform, at Tenant's request, and upon
submission by Tenant of necessary plans and specifications, any additional or
non-standard work over and above that specified in Paragraph 2 hereof, such work
shall be performed by Landlord, at Tenant's sole expense, as a Tenant's extra.
Prior to commencement any such work requested by Tenant, Landlord will submit to
Tenant written estimates of the costs of any such work. If Tenant shall fail to
approve any such estimate within one (1) week, the same shall be deemed
disapproved in all respects by Tenant and Landlord shall not be authorized to
proceed thereon. Tenant acknowledges and agrees that it shall be obligated to
pay promptly upon being billed therefor, the cost of all such work, which
obligation shall include ten percent (10%) of such costs for the general
contractor's overhead, ten percent (10%) of such costs for the general
contractor's profit and General Conditions not in excess of two and one half
percent (2 1/2%) of the total costs.
4. It is agreed that notwithstanding the date provided in the Lease for the
Estimated Commencement Date, Tenant's obligation for the payment of Basic Rent
and Additional Rent thereunder shall not commence until Landlord has
"substantially completed" all work to be performed by Landlord as hereinbefore
set forth in Paragraph 2 above and as set forth in the Lease; provided, however,
that if Landlord shall be delayed in substantially completing said work as a
result of:
A. Tenant's failure to furnish plans and specifications in accordance
with Paragraph 1 and 3 hereof; or,
B. Tenant's request for materials, finishes or installations other than
Landlord's Building Standard; or,
C. Tenant's changes in the said plans or specifications; or,
D. The performance by a person, firm or corporation employed by Tenant
and the completion of the said work by said person, firm or
corporation; then the Commencement Date of the Terms of said Lease
shall be accelerated by the number of days of such delay and Tenant's
obligation to pay Basic Rent and Additional Rent shall commence as of
such earlier date.
Landlord will permit Tenant and its agents to enter the demised
premises prior to the Commencement Date in order that the Tenant may
perform through its own union contractors such other work and
decorations as Tenant may desire at the same time Landlord's
contractors are working in the space. The foregoing license to enter
prior to the Commencement Date, however, is conditioned upon Tenant's
workmen and mechanics working in harmony and not interfering with the
Labor employed by Landlord, Landlord's mechanics or contractors or by
any other tenant or their contractors. If at any time such entry shall
cause disharmony or interference therewith, this license may be
withdrawn by Landlord upon forty-eight (48) hours written notice to
Tenant. Such entry shall be deemed controlled by all of the terms,
covenants, provisions, and conditions of said Lease, except as to the
covenant to pay Basic Rent and Additional Rent. Landlord shall not be
liable in any way for any injury, loss or damage which may occur to any
of Tenant's decorations or installations so made prior to the
Commencement Date the same being solely at Tenant's risk.
5. Tenant's Subcontractor Qualifications and Procedure. Prior to the
Commencement Date of the Lease, the Tenant's sub-contractors performing work as
stipulated in Section 3 shall be accepted by the Landlord under the following
provisions:
A. That the Tenant furnish in writing to the Landlord a listing of said
Union subcontractors at least seven (7) days prior to said
subcontractors commencing work.
B. The Tenant shall furnish the Landlord subcontractors insurance,
including Workmen's Compensation and Public Liability and Property
Damage Insurance, all in the amounts and with companies conducting
business in New Jersey and/or forms acceptable to Landlord.
C. Tenant's subcontractors shall where applicable maintain a license as
a contractor with the municipality and all other enforcement agencies
having jurisdiction.
D. The Landlord shall provide the Tenant at least fifteen (15) business
days prior to the Lease Commencement Date to have the Tenant's
subcontractors commence their portion of the work provided that the
Landlord's portion of the work in the demised premises has progressed
to a point where the Tenant's subcontractors will not be unduly
interfering with the work of the Landlord in the judgment of the
Landlord.
E. Access to the demised premises for the Tenant's sub-contractors
shall be during normal working hours and Tenant shall receive without
charge, water, heat, ventilation or cooling but only to the extent that
such services are being supplied to the Landlord at the demised
premises at the time. Tenant shall pay for hoist and rubbish removal
service in connection with its work. The Tenant's subcontractors may
have access to the demised premises beyond normal working hours with
the Landlord's approval and the Tenant shall pay utility overtime
charges on an hourly basis as defined in the Lease. The Tenant shall
pay Landlord all costs incurred by Landlord for maintaining Landlord's
superintendents and subcontractors in the demised premises as required
by codes and/or union jurisdiction for all overtime work being
performed by Tenant's subcontractors.
F. If at any time, the Tenant's subcontractors cause interference
and/or disharmony with the Landlord prior to the commencement of the
Lease, the Tenant's (and his subcontractors) right to such access and
entry shall be withdrawn by the Landlord immediately upon the Tenant
being notified of such proposed action. Tenant's notification shall be
by fax.
G. The Tenant (and his subcontractors) access and entry shall be deemed
to be under all of the terms, covenants, provisions and conditions of
the Lease except as the covenant to pay rent.
Landlord shall not be liable in any way for injury, loss or damage
which may occur to any Tenant's decorations, furnishings or
installations so made prior to the commencement of the term of this
lease excepting for items stipulated in this Workletter. Items
exclusive of those specified in this Workletter shall be installed
solely at the Tenant's risk unless prior written approval is granted by
Landlord to Tenant, where Landlord agrees to make provisions for
security for such items.
RULES AND REGULATIONS
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1. Tenant shall not obstruct or permit its employees, agents, servants
invitee or licensees to obstruct, in any way, the sidewalks, entry passages,
corridors, halls, stairways or elevators of the building, or use the same in any
way other than as a means of passage to and from the offices of Tenant; bring
in, store, test or use any materials in the Building; smoke in any elevator;
throw substances of any kind out of the windows or doors, or down the passages
of the Building, or in the halls or passageways; sit on or place anything upon
the window xxxxx; or clean the windows.
2. The cost of repairing any damage to the public portions of the
Building or to any common areas, caused by a tenant or the servants, agents,
employees, licensees, or invitees of a tenant, shall be paid by such tenant.
3. Waterclosets and urinals shall not be used for any purpose other
than those for which they were constructed, and no sweepings, rubbish, ashes,
newspaper or any other substances of any kind shall be thrown into them. Waste
and excessive or unusual use of electricity or water is prohibited.
4. The windows, doors, partitions and lights that reflect or admit
light into the halls or other places of the Building shall not be obstructed. NO
SIGNS, ADVERTISEMENTS OR NOTICES SHALL BE INSCRIBED, PAINTED, AFFIXED OR
DISPLAYED IN, ON, UPON OR BEHIND ANY WINDOWS, except as may be required by law
or agreed upon by the parties; and no sign, advertisement or notice shall be
inscribed, painted or affixed on any doors, partitions or other part of the
inside of the Building, without prior written consent of Landlord. If such
consent be given by Landlord, any such sign, advertisement, or notice shall be
inscribed, painted or affixed by Landlord, or a company approved by Landlord,
but the cost of the same shall be charged to and be paid by Tenant, and Tenant
agrees to pay the same promptly, on demand. Landlord will allow Tenant to place
a sign consisting of individual white vinyl letters, on the glass doors or
adjacent thereto, the design, size and content of which must be approved in
writing by Landlord prior to installation. Tenant shall be responsible for the
cost of repairing any damage caused by the said sign or signs.
5. INTENTIONALLY LEFT BLANK.
6 When electric wiring of any kind is introduced, it must be connected
as directed by Landlord, and no stringing or cutting of wires will be allowed,
except with the prior written consent of Landlord, and shall be done only by
contractors approved by Landlord. No Tenant shall lay floor covering so that the
same shall be in direct contact with the floor of the Premises; and if 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, the use of cement or
other similar adhesive material being expressly prohibited.
7. Landlord shall have the right to prescribe the weight, size, and
position of all safes and other bulky or heavy equipment and all freight brought
into the Building by any Tenant; and the time of moving the same in and out of
the Building. All such moving shall be done under the supervision of the
Landlord. Landlord will not be responsible for loss of or damage to any such
equipment or freight from any cause; but all damage done to the Building by
moving or maintaining any such equipment or freight shall be repaired at the
expense of Tenant. All safes shall stand on a base of such size as shall be
designated by Landlord. Landlord 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 or the Lease of which these Rules
and Regulations are a part.
8. No machinery of any kind or articles of unusual weight or size will
be allowed in the Building, without the prior written consent of Landlord.
Business machines and mechanical equipment shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient, in Landlord's judgment, to
absorb and prevent vibration, noise and annoyance to other Tenant's.
9. No additional lock or locks shall be placed by Tenant on any door in
the Building, without the prior written consent of Landlord. Two keys will
initially be furnished to Tenant by Landlord; two additional keys will be
supplied to Tenant by Landlord, upon request, without charge; any additional
keys requested by Tenant shall be paid for by Tenant. Tenant, its agents and
employees, shall not have any
duplicate key made and shall not change any lock. All keys to doors and
washrooms shall be returned to Landlord on or before the Termination Date, and,
in the event of a loss of any keys furnished, Tenant shall pay Landlord the cost
thereof.
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11. No bicycles, vehicles or animals of any kind shall be brought into
or kept in or about the Premises.
12. The requirements of Tenant will be attended to only upon
application at the office of Landlord. Employees of Landlord shall not perform
any work for Tenant or do anything outside of their regular duties, unless under
special instructions from Landlord.
13. The Premises shall not be used for lodging or sleeping purposes,
and cooking therein is prohibited, except for normal microwave use.
14. Tenant shall not conduct or permit any other person to conduct, any
auction upon the Premises; manufacture or store goods, wares or merchandise upon
the Premises, without the prior written approval of Landlord, except the storage
of usual supplies and inventory to be used by Tenant in the conduct of its
business; permit the Premises to be used for gambling; make any unusual noises
in the Building; permit to be played any musical instrument in the Premises;
permit to be played any radio, television, recorded or wired music in such a
loud manner as to disturb or annoy other tenants; or permit any unusual odors to
be produced upon the Premises.
15. No awnings or other projections shall be attached to the outside
walls of the Building. No curtains, blinds, shades or screens shall be attached
to or hung in, or used in connection with any window or door of the Premises,
without the prior written consent of Landlord. Such curtains, blinds, and shades
must be of a quality, type, design, and color, and attached in a manner approved
by Landlord.
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17. Canvassing, soliciting and peddling in the Buildings are
prohibited, and Tenant shall cooperate to prevent the same.
18. There shall not be used in the Premises or in the Building either
by Tenant or by others in the delivery or receipt of merchandise, supplies or
equipment, any hand trucks except those equipped with rubber tires and side
guards. No hand trucks will be allowed in passenger elevators.
19. Each Tenant, before closing and leaving the Premises, shall ensure
that all windows are closed and all entrance doors locked.
20. Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's opinion tends to impair the reputation of the Building or
its desirability as a building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
21. Landlord hereby reserves to itself any and all rights not granted
to Tenant hereunder, including, but not limited to, the following rights which
are reserved to Landlord for its purposes in operating the Building; (a) the
exclusive right to the use of the name of the Building for all purposes, except
that Tenant may use the name as its business address and for no other purpose;
(b) the right to change the name or address of the Building, without incurring
any liability to Tenant for so doing; (c) the right to install and maintain a
sign or signs on the exterior of the Building; (d) the exclusive right to use or
dispose of the use of the roof of the Building; (e) the right to limit the space
on the directory of the Building to be allotted to Tenant; (f) the right to
grant to anyone the right to conduct any particular business or undertaking in
the Building.
22. Tenant shall be required to break down any large boxes; corrugated,
crates or otherwise for Landlord's cleaning service to remove same from the
Building, or Tenant shall be responsible to remove same. Tenant shall not place
any garbage outside its Premises in the Building hallways or common areas at any
time except in the appropriate trash dumpsters as directed by Landlord. Tenant
shall strictly comply with any recycling program which Landlord may have in
place from time to time.
23. Tenant shall supply its own fire extinguishers throughout the
Premises.
24. Tenant shall have the non-exclusive right to use in common with
Landlord and other Tenants of the Building and their employees and invitees the
parking area provided by Landlord for the parking of passenger automobiles,
other than parking spaces specifically allocated to others by Landlord. Landlord
may issue parking permits, install a gate system, and impose any other system as
Landlord deems necessary for the use of the parking area. Tenant agrees that it
and its employees and invitees shall not park their automobiles in parking
spaces allocated to others by Landlord and shall comply with such rules and
regulations for use of the parking area as Landlord may from time to time
prescribe. Tenant further agrees that it shall not burden the parking available
for the Building and agrees that it shall not use more than four (4) parking
spaces per 1,000 square feet of Rentable Area of the Premises as defined in the
Agreement of Lease. Landlord shall not be responsible for any damage to or theft
of any vehicle in the parking area and shall not be required to keep parking
spaces clear of unauthorized vehicles or to otherwise supervise the use of the
parking area. Landlord reserves the right to change any existing or future
parking area, roads or driveways and may make any repairs or alterations it
deems necessary to the parking area, roads and driveways and to temporarily
revoke or modify the parking rights granted to Tenant hereunder.
25. The Tenant shall not use the Premises or permit the Premises to be
used for the sale of food or beverages.
26. Smoking of any kind shall be prohibited at all times in the entire
building including but not limited to common public areas of the building,
including the lobbies, hallways, stairways, bathrooms and elevators.
27. In the event Tenant installs any type of security system within
their premises, Landlord must be notified. Tenant shall provide Landlord with
the appropriate access code to disarm/arm the system in order to gain access to
the Premises in the event of an emergency situation.
28. Tenant shall provide the Landlord with the names and telephone numbers of at
least two (2) individuals who can be contacted after normal working hours in the
event of an emergency.
