Exhibit 10.11
LEASE
FROM:
300 XXXX REALTY ASSOCIATES L.L.C.
LESSOR
TO:
PAR PHARMACEUTICAL, INC.
LESSEE
BUILDING:
000 XXXX XXXXXXXXX
XXXXXXXXX XXXX, XXX XXXXXX
TABLE OF CONTENTS
-----------------
1. DESCRIPTION:..........................................................3
2. TERM:.................................................................3
3. BASIC RENT:...........................................................3
4. USE AND OCCUPANCY:....................................................3
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL:............................3
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:...............................5
7. ACTIVITIES INCREASING FIRE INSURANCE RATES:...........................6
8. ASSIGNMENT AND SUBLEASE:..............................................6
9. COMPLIANCE WITH RULES AND REGULATIONS:................................9
10. DMAGES TO BUILDING:...................................................9
11. EMINENT DOMAIN:......................................................10
12. INSOLVENCY OF LESSEE:................................................10
13. LESSOR'S REMEDIES ON DEFAULT:........................................10
14. DEFICIENCY:.......................................................11
15. SUBORDINATION OF LEASE:...........................................12
16. SECURITY DEPOSIT:.................................................12
17. RIGHT TO CURE LESSEE'S BREACH:....................................13
18. MECHANIC'S LIENS:.................................................13
19. RIGHT TO INSPECT AND REPAIR:......................................13
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION:...........13
21. INTERRUPTION OF SERVICES OR USE:..................................14
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:......................14
23. ADDITIONAL RENT:..................................................15
24. LESSEE'S ESTOPPEL:................................................18
25. HOLDOVER TENANCY:.................................................18
26. RIGHT TO SHOW PREMISES:...........................................18
27. LESSOR'S WORK - LESSEE'S DRAWINGS:................................19
28. WAIVER OF TRIAL BY JURY:..........................................19
29. LATE CHARGE:......................................................19
i
30. LESSEE'S INSURANCE:...............................................19
31. NO OTHER REPRESENTATIONS:.........................................21
32. QUIET ENJOYMENT:..................................................21
33. INDEMNITY:........................................................21
34. ARTICLE HEADINGS:.................................................22
35. APPLICABILITY TO HEIRS AND ASSIGNS:...............................22
36. OUTSIDE PARKING SPACES:...........................................22
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY:..........................22
38. PARTIAL INVALIDITY:...............................................22
39. LESSEE'S BROKER:..................................................22
40. PERSONAL LIABILITY:...............................................23
41. NO OPTION:........................................................23
42. DEFINITIONS:......................................................23
43. LEASE COMMENCEMENT:...............................................24
44. NOTICES:.............................................................24
45. ACCORD AND SATISFACTION:.............................................24
46. EFFECT OF WAIVERS:...................................................25
47. LEASE CONDITION:.....................................................25
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE:..........................25
49. LESSOR'S RESERVED RIGHT:.............................................25
50. CORPORATE AUTHORITY:.................................................25
51. AFTER-HOURS USE:.....................................................25
52. LESSEE'S EXPANSION/RELOCATION:.......................................26
53. BUILDING PERMIT:.....................................................26
54. MISCELLANEOUS:.......................................................27
55. OPTION TO EXTEND.....................................................27
ii
LEASE, is made the 24th day of May, 2002 between 300 XXXX REALTY
ASSOCIATES L.L.C. (herein referred to as "Lessor") whose address is c/o
Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and
PAR PHARMACEUTICAL, INC. (herein referred to as "Lessee") whose address is 0 Xxx
Xxxxx Xxxx, Xxxxxxxx Xxxxx, Xxx Xxxx 00000.
PREAMBLE
--------
BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the following terms
whenever used in this Lease shall have only the meanings set forth in this
section, unless such meanings are expressly modified, limited or expanded
elsewhere herein.
1. ADDITIONAL RENT shall mean all sums in addition to Fixed Basic Rent
payable by Lessee to Lessor pursuant to the provisions of the Lease.
2. BASE PERIOD COSTS shall mean the following:
A. Base Operating Costs: Those Operating Costs incurred during Calendar
Year 2002.
B. Base Real Estate Taxes: Those Real Estate Taxes incurred during
Calendar Year 2002.
C. Insurance Cost Expense Stop: $32,630.00.
D. Utility and Energy Costs Expense Stop: $230,000.00.
Notwithstanding anything hereinabove to the contrary, Lessee shall have
no obligation to pay Additional Rent based upon increases over Base
Period Costs prior to January 1, 2003.*
3. BUILDING shall mean 000 Xxxx Xxxxxxxxx, Xxxxxxxxx Xxxx, Xxx Xxxxxx.
4. BUILDING HOLIDAYS shall be those shown on Exhibit F.
5. BUILDING HOURS shall be Monday through Friday, 8:00 a.m. to 6:00 p.m.
and on Saturdays from 8:00 a.m. to 1:00 p.m., but excluding those
holidays as set forth on Exhibit F attached hereto and made a part
hereof, except that Common Facilities, lighting in the Building and
Office Building Area shall be maintained for such additional hours as,
in Lessor's sole judgment, is necessary or desirable to insure proper
operating of the Building and Office Building Area.
6. COMMENCEMENT DATE is June 1, 2002, and shall for purposes hereof be
subject to Articles 27 and 43 hereof.
7. DEMISED PREMISES OR PREMISES shall be deemed to be 10,420 gross
rentable square feet on the second (2nd) floor as shown on Exhibit A
hereto, which includes an allocable share of the Common Facilities as
defined in Article 42(b).
8. EXHIBITS shall be the following, attached to this Lease and
incorporated herein and made a part hereof.
Exhibit A Location of Premises
Exhibit X-0 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxx X Rules and Regulations
Exhibit C Lessor's Work
Exhibit C-1 Air Conditioning &
Heating Design Standards
Exhibit D Cleaning Services
Exhibit E Building Holidays
Exhibit F Tenant Estoppel Certificate
Exhibit G Commencement Date Agreement
Exhibit H Form of Letter of Credit
1
9. EXPIRATION DATE shall be the last day of the month in which the day
before the fifth (5th) anniversary of the Rent Commencement Date
occurs.
10. FIXED BASIC RENT shall mean: TWO MILLION ONE HUNDRED SIXTY NINE
THOUSAND NINE HUNDRED SIXTY FIVE AND 00/100 DOLLARS ($2,169,965.00) for
the Term payable as follows:
Yearly Rate: $286,550.00 per annum for years 1 through 5.
$296,970.00 per annum for years 6 through 7.
Monthly Installment: $23,879.17 per month for years 1 through 5.
$24,747.50 per month for years 6 through 7.
Notwithstanding anything hereinabove to the contrary, payment of the
Fixed Basic Rent shall commence on the six (6) month anniversary of the
Commencement Date (the "Rent Commencement Date"). If such day is other
than the first day of a calendar month, the first monthly installment
of Fixed Basic Rent shall be prorated to the end of said calendar month
and shall be payable on such day.*
11. LESSEE'S BROKER shall mean Strategic Alliance Partners, LLC.
12. LESSEE'S PERCENTAGE shall be 4.53% subject to adjustment as provided
for in Article 42(d).
13. OFFICE BUILDING AREA is as set forth on Exhibit A-1.
14. PARKING SPACES shall mean a total of forty two (42) spaces, as follows:
Assigned: nine (9) spaces located in the garage
Unassigned: thirty three (33) spaces in the outdoor parking lot
15. PERMITTED USE shall be general office use and for no other purpose.
16. SECURITY DEPOSIT shall be SIXTY FIVE THOUSAND ONE HUNDRED TWENTY FIVE
AND 00/100 DOLLARS ($65,125.00).
17. TERM shall mean five (5) years from the Rent Commencement Date, plus
the number of days, if any, to have the Lease expire on the last day of
a calendar month, unless extended pursuant to any option contained
herein.
-- End of Preamble --
2
W I T N E S S E T H
- - - - - - - - - -
For and in consideration of the covenants herein contained,
and upon the terms and conditions herein set forth, Lessor and Lessee agree as
follows:
1. DESCRIPTION:
-----------
Lessor hereby leases to Lessee, and Lessee hereby hires from Lessor,
the Premises as defined in the Preamble which includes an allocable
share of the Common Facilities, as shown on the plan or plans,
initialed by the parties hereto, marked Exhibit A attached hereto and
made part of this Lease in the Building as defined in the Preamble,
(hereinafter called the "Building") which is situated on that certain
parcel of land (hereinafter called "Office Building Area") as described
on Exhibit A-1 attached hereto and made part of this Lease, together,
with the right to use in common with other lessees of the Building,
their invitees, customers and employees, those public areas of the
Common Facilities as hereinafter defined.
2. TERM:
----
The Premises are leased for a term to commence on the Commencement
Date, and to end at 12:00 midnight on the Expiration Date, all as
defined in the Preamble.
3. BASIC RENT:
----------
The Lessee shall pay to the Lessor during the Term, the Fixed Basic
Rent as defined in the Preamble (hereinafter called "Fixed Basic Rent")
payable in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and
private debts. The Fixed Basic Rent shall accrue at the Yearly Rate as
defined in the Preamble and shall be payable, in advance, on the first
day of each calendar month during the Term at the Monthly Installments
as defined in the Preamble, except that a proportionately lesser sum
may be paid for the first and last months of the Term of this Lease if
the Term commences on a day other than the first day of the month, in
accordance with the provisions of this Lease herein set forth. Lessor
acknowledges receipt from Lessee of the first monthly installment by
check, subject to collection, for Fixed Basic Rent for the first month
of the Lease Term. Lessee shall pay Fixed Basic Rent, and any
Additional Rent as hereinafter provided, to Lessor at Lessor's above
stated address, or at such other place as Lessor may designate in
writing, without demand and without counterclaim, deduction or set off.
4. USE AND OCCUPANCY:
-----------------
Lessee shall use and occupy the Premises for the Permitted Use as
defined in the Preamble.
If at any time during the Term of this Lease, Lessee adopts a policy
prohibiting Lessee, its employees, agents or invitees from smoking
within the Premises, Lessee shall establish a designated area within
the Premises where Lessee shall permit smoking. Lessee shall establish
such designated area at Lessee's sole expense in accordance with
Article 6 of this Lease. Such designated area shall include, among
other things, adequate area, ventilation and fire safety equipment.
Lessee hereby acknowledges that such designated area is necessary and
reasonable to prevent smoking by Lessee, Lessee's employees, agents and
invitees in unauthorized areas of the Building or Common Facilities in
violation of relevant fire and safety laws and regulations and to
prevent fire hazards within the Premises.
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL:
(a) Lessee shall commit no act of waste and shall take good care of
the Premises and the fixtures and appurtenances therein, and
shall, in the use and occupancy of the Premises, conform to all
laws, orders and regulations of the federal, state and municipal
governments or any of their departments affecting the Premises and
with any and all environmental requirements resulting from the
Lessee's use of the Premises, this covenant to survive the
3
expiration or sooner termination of the Lease. Lessor shall,
subject to the same being included in Operating Costs, make all
necessary repairs to the Premises, Common Facilities and to the
assigned parking areas, if any, except where the repair has been
made necessary by misuse or neglect by Lessee or Lessee's agents,
servants, visitors or licensees, in which event Lessor shall
nevertheless make the repair but Lessee shall pay to Lessor, as
Additional Rent, immediately upon demand, the costs therefor. All
improvements made by Lessee to the Premises, which are so attached
to the Premises, shall become the property of Lessor upon
installation. Not later than the last day of the Term, Lessee
shall, at Lessee's expense, remove all Lessee's personal property
and those improvements made by Lessee which have not become the
property of Lessor, including trade fixtures, cabinetwork, movable
paneling, partitions and the like; repair all injury done by or in
connection with the installation or removal of said property and
improvements; and surrender the Premises in as good condition as
they were at the beginning of the Term, reasonable wear and damage
by fire, the elements, casualty or other cause not due to the
misuse or neglect by Lessee, Lessee's agents, servants, visitors
or licensees excepted. All other property of Lessee remaining on
the Premises after the last day of the Term of this Lease shall be
conclusively deemed abandoned and may be removed by Lessor, and
Lessee shall reimburse Lessor for the cost of such removal. Lessor
may have any such property stored at Lessee's risk and expense.
ENVIRONMENTAL
-------------
(b) COMPLIANCE WITH ENVIRONMENTAL LAWS. Lessee shall, at Lessee's own
expense, promptly comply with each and every federal, state,
county and municipal environmental law, ordinance, rule,
regulation, order, directive and requirement, now or hereafter
existing ("Environmental Laws"), applicable to the Premises,
Lessee, Lessee's operations at the Premises, or all of them.
(c) ISRA COMPLIANCE. Lessee shall, at Lessee's own expense, comply
with the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 ET SEQ.,
the regulations promulgated thereunder and any amending and
successor legislation and regulations ("ISRA").
(d) INFORMATION TO LESSOR. At no expense to Lessor, Lessee shall
promptly provide all information and sign all documents requested
by Lessor with respect to compliance with Environmental Laws.
(e) LESSOR AUDIT. Lessee shall permit Lessor and its representatives
access to the Premises, from time to time, to conduct an
environmental assessment, investigation and sampling, all at
Lessee's own expense.
(f) LESSEE REMEDIATION. Should any assessment, investigation or
sampling reveal the existence of any spill, discharge or placement
of Contaminants in, on, under, or about, or migrating from or onto
the Premises, the Building or the Office Building Area, as a
result of the action or omission of Lessee or a "Lessee
Representative", then, in addition to being in default under this
Lease and Lessor having all rights available to Lessor under this
Lease and by law by reason of such default, Lessee shall, at
Lessee's own expense, in accordance with Environmental Laws,
undertake all action required by Lessor and any governmental
authority, including, without limitation, promptly obtaining and
delivering to Lessor an unconditional No Further Action Letter.
For purposes of this Article, the term "Lessee's Representative"
shall mean any shareholder, officer, director, member, partner,
employee, agent, licensee, assignee, sublessee or invitee of
Lessee, or any third party other than Lessor, or another lessee of
the Building, or a shareholder, officer, director, member,
partner, employee, agent, licensee, assignee, sublessee or invitee
of such other lessee. In no event shall any of Lessee's remedial
action involve engineering or institutional controls, a
groundwater classification exception area or well restriction
area, and Lessee's remedial action shall meet the most stringent
published or unpublished remediation standards for soil, surface
water, groundwater and drinking water. Promptly upon completion of
all required investigatory and remedial activities, Lessee shall,
at Lessee's own expense, to Lessor's satisfaction, restore the
affected areas of the Premises, the Building or the Office
Building Area, as the case may be, from any damage or condition
caused by the investigatory or remedial work. Notwithstanding
4
anything to the contrary herein, Lessee shall not be responsible
for any Contaminants on, in, under or affecting all or any portion
of the Premises or Office Building Area which occurred or were
present on the Premises or Office Building Area prior to the
Commencement Date.*
(g) ENVIRONMENTAL QUESTIONNAIRE. Upon Lessor's request,
contemporaneously with the signing and delivery of this Lease, and
thereafter upon renewal of the lease, if at all, Lessee shall
complete, execute and deliver to Lessor an environmental
questionnaire in form and substance satisfactory to Lessor.
(h) ENVIRONMENTAL DOCUMENTS AND CONDITIONS. For purposes of this
Article, the term "Environmental Documents" shall mean all
environmental documentation concerning the Building or the Office
Building Area, of which the Premises is a part, or its environs,
in the possession or under the control of Lessee, including,
without limitation, plans, reports, correspondence and
submissions. During the term of this Lease and subsequently,
promptly upon receipt by Lessee or Lessee's Representatives,
Lessee shall deliver to Lessor all Environmental Documents
concerning or generated by or on behalf of Lessee, whether
currently or hereafter existing. In addition, Lessee shall
promptly notify Lessor of any environmental condition of which
Lessee has knowledge, which may exist in, on, under, or about, or
may be migrating from or onto the Building or the Office Building
Area.
(i) LESSOR'S RIGHT TO PERFORM LESSEE'S OBLIGATIONS. Notwithstanding
anything to the contrary set forth in this Lease, in the event,
pursuant to this Lease, Lessee is required to undertake any
sampling, assessment, investigation or remediation with respect to
the Premises, the Building or the Office Building Area, as the
case may be, then, at Lessor's discretion, Lessor shall have the
right, upon notice to Lessee, from time to time, to perform such
activities at Lessee's expense, and all sums incurred by Lessor
shall be paid by Lessee, as Additional Rent, upon demand.
(j) INDEMNITY. Lessee shall indemnify, defend and hold harmless
Lessor, Lessor's officers, directors, shareholders, employees and
personal or legal representatives from and against any and all
claims, liabilities, losses, damages, penalties and costs,
foreseen or unforeseen, including, without limitation, counsel,
engineering and other professional or expert fees, which an
indemnified party may incur resulting directly or indirectly,
wholly or partly from Lessee's actions or omissions with regard to
Lessee's obligations under this Article.
(k) SURVIVAL. This Article shall survive the expiration or earlier
termination of this lease. Lessee's failure to abide by the terms
of this Article shall be restrainable or enforceable, as the case
may be, by injunction.
(l) INTERPRETATION. The obligations imposed upon Lessee under
subparagraphs (a) through (j) above are in addition to and are not
intended to limit, but to expand upon, the obligations imposed
upon Lessee under this Article 5. As used in this Article, the
term "Contaminants" shall include, without limitation, any
regulated substance, toxic substance, hazardous substance,
hazardous waste, pollution, pollutant, contaminant, petroleum,
asbestos or polychlorinated biphenyls, as defined or referred to
in any Environmental Laws. Where a law or regulation defines any
of these terms more broadly then another, the broader definition
shall apply.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:
--------------------------------------
Lessee shall not, without first obtaining the written consent of
Lessor, make any structural or Building Systems alterations, additions
or improvements in, to or about the Premises. Building Systems shall
mean any structural, life safety, plumbing, electrical, heating,
ventilation or air conditioning system or its components. Lessee shall
not, without first obtaining the written consent of Lessor (which shall
not be unreasonably withheld or delayed) make any non-Building Systems
alterations, additions or improvements in, to or about the Premises.
Lessee may, upon notification to Lessor, but without prior consent of
Lessor perform minor cosmetic improvements, such as painting and
wallpapering, and make alterations that do not (a) exceed, in the
aggregate, $10,000.00 in cost, (b) require a building permit, or (c)
adversely affect the Building's utility or mechanical systems.*
5
7. ACTIVITIES INCREASING FIRE INSURANCE RATES:
------------------------------------------
Lessee shall not do or suffer anything to be done on the Premises which
will increase the rate of fire insurance on the Building.
8. ASSIGNMENT AND SUBLEASE:
-----------------------
Provided Lessee is not in default of any provisions of this Lease,
Lessee may assign or sublease the within Lease to any party subject to
the following:
a. In the event Lessee desires to assign this Lease or sublease all
or part of the Premises to any other party, the terms and
conditions of such assignment or sublease shall be communicated to
the Lessor in writing no less than thirty (30) days prior to the
effective date of any such sublease or assignment, and, prior to
such effective date, the Lessor shall have the option, exercisable
in writing to the Lessee, to: (i) sublease such space from Lessee
at the lower rate of (a) the rental rate per rentable square foot
of Fixed Basic Rent and Additional Rent then payable pursuant to
this Lease or (b) the terms set forth in the proposed sublease,
(ii) recapture in the case of subletting, that portion of the
Premises to be sublet or all of the Premises in the case of an
assignment ("Recapture Space") so that such prospective sublessee
or assignee shall then become the sole Lessee of Lessor hereunder,
or (iii) recapture the Recapture Space for Lessor's own use and
the within Lessee shall be fully released from any and all
obligations hereunder with respect to the Recapture Space.
b. In the event that the Lessor elects not to recapture the Lease or
relet the Premises as hereinabove provided, the Lessee may
nevertheless assign this Lease or sublet the whole or any portion
of the Premises, subject to the Lessor's prior written consent,
which consent shall not be unreasonably withheld, on the basis of
the following terms and conditions:
i. The Lessee shall provide to the Lessor the name and address
of the assignee or sublessee.
ii. The assignee or sublessee shall assume, by written
instrument, all of the obligations of this Lease, and a copy
of such assumption agreement shall be furnished to the Lessor
within ten (10) days of its execution. Any sublease shall
expressly acknowledge that said sublessee's rights against
Lessor shall be no greater than those of Lessee. Lessee
further agrees that notwithstanding any such subletting, no
other and further subletting of the Premises by Lessee or any
person claiming through or under Lessee shall or will be made
except upon compliance with and subject to the provisions of
this Article 8.
iii. Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this
Lease is or shall be subordinate, and that in the event of
default by Lessee under this Lease, Lessor may, at its
option, take over all of the right, title and interest of
Lessee, as sublessor, under such sublease, and such sublessee
shall, at Lessor's option, attorn to Lessor pursuant to the
then executory provisions of such sublease, except that
Lessor shall not (i) be liable for any previous act or
omission of Lessee under such sublease or, (ii) be subject to
any offset not expressly provided in such sublease which
theretofore accrued to such sublease to which Lessor has not
specifically consented in writing or by any previous
prepayment of more than one month's rent.
iv. The Lessee and each assignee shall be and remain liable for
the observance of all the covenants and provisions of this
Lease, including, but not limited to, the payment of Fixed
Basic Rent and Additional Rent reserved herein, through the
entire Term of this Lease, as the same may be renewed,
extended or otherwise modified.
6
v. The Lessee and any assignee shall promptly pay to Lessor
fifty percent (50%) of any consideration received for any
assignment and/or fifty percent (50%) of all of the rent, as
and when received, in excess of the Rent required to be paid
by Lessee for the area sublet computed on the basis of an
average square foot rent for the gross square footage Lessee
has leased.*
vi. In any event, the acceptance by the Lessor of any rent from
the assignee or from any of the subtenants or the failure of
the Lessor to insist upon a strict performance of any of the
terms, conditions and covenants herein shall not release the
Lessee herein, nor any assignee assuming this Lease, from any
and all of the obligations herein during and for the entire
Term of this Lease.
vii. In Lessor's reasonable judgment, the proposed assignee or
subtenant is engaged in a business or activity, and the
Premises, or the relevant part thereof, will be used in a
manner, which (a) is in keeping with the then standard of the
Building and (b) is limited to the use of the Premises as
general offices.
viii. The proposed assignee or subtenant shall be an entity which
has existed for at least one (1) year and provided Lessor has
comparable space available for leasing in the Building, is
not then an occupant of any part of the Building or any other
building then owned by Lessor or its affiliates within a
five-mile radius of the Building.*
ix. Provided Lessor has comparable space available for leasing in
the Building, the proposed assignee or subtenant is not an
entity or a person with whom Lessor is or has been, within
the preceding twelve (12) month period, negotiating to lease
space in the Building or any other building owned by Lessor
or its affiliates within a five-mile radius of the Building.*
x. There shall not be more than one (1) subtenant in the
Premises.
xi. Lessee shall not publicly advertise the subtenancy for less
than the then current market rent per rentable square foot
for the Premises as though the Premises were vacant.*
xii. Lessee shall not have (a) publicly advertised the
availability of the Premises without prior notice to and
approval by Lessor, nor shall any advertisement state the
name (as distinguished from the address) of the Building or
(b) listed the Premises for subletting or assignment with
other than a broker, agent or representative who waives any
entitlement to a commission or other fee from Lessor in the
event of a recapturing of the Premises;
xiii. The proposed occupancy shall not, in Lessor's reasonable
opinion, increase the density of population using the Demised
Premises to exceed one (1) person per 250 gross rentable
square feet of space or exceed the parking allocation
presently provided for in this Lease;
xiv. The proposed assignee or subtenant shall only use the
Premises for general offices and shall not be engaged in any
of the following:
(a) educational, including but not limited to, instructional
facilities and correspondence schools;
(b) employment agencies;
(c) model agencies;
(d) photographic studios or laboratories;
(e) spas, health, physical fitness or exercise salons;
(f) small loan offices;
(g) real estate brokerage or real estate sales offices open
to the general public or construction offices;
(h) medical or dental facilities, including professional
offices, treatment facilities, dispensaries or
laboratories;
(i) federal, state or local government offices;
(j) so-called boiler room operations;
7
(k) retail stock brokerage offices; and
(l) religious organizations making facilities available to
congregations for uses other than business purposes; and
(m) executive office suite use.
xv. The proposed assignee or subtenant shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity
and shall be subject to the service of process in, and the
jurisdiction of, the state courts of New Jersey.
xvi. Lessor shall require a FIVE HUNDRED AND 00/100 DOLLAR
($500.00) payment to cover its handling charges for each
request for consent to any sublet or assignment prior to its
consideration of the same. Lessee acknowledges that its sole
remedy with respect to any assertion that Lessor's failure to
consent to any sublet or assignment is unreasonable shall be
the remedy of specific performance and Lessee shall have no
other claim or cause of action against Lessor as a result of
Lessor's actions in refusing to consent thereto.
c. If Lessee is a corporation other than a corporation whose stock is
listed and traded on a nationally recognized stock exchange, the
provisions of Sub-section a. shall apply to a transfer (however
accomplished, whether in a single transaction or in a series of
related or unrelated transactions) of stock (or any other
mechanism such as, by way of example, the issuance of additional
stock, a stock voting agreement or change in class(es) of stock)
which results in a change of control of Lessee as if such transfer
of stock (or other mechanism) which results in a change of control
of Lessee were an assignment of this Lease, and if Lessee is a
partnership or joint venture, said provisions shall apply with
respect to a transfer (by one or more transfers) of an interest in
the distributions of profits and losses of such partnership or
joint venture (or other mechanism, such as, by way of example, the
creation of additional general partnership or limited partnership
interests) which results in a change of control of such a
partnership or joint venture, as if such transfer of an interest
in the distributions of profits and losses of such partnership or
joint venture which results in a change of control of such
partnership or joint venture were an assignment of this Lease; but
said provisions shall not apply to transactions with a corporation
into or with which Lessee is merged or consolidated or to which
all or substantially all of Lessee's assets are transferred or to
any corporation which controls or is controlled by Lessee or is
under common control with Lessee, provided that in the event of
such merger, consolidation or transfer of all or substantially all
of Lessee's assets (i) the successor to Lessee has a net worth
computed in accordance with generally accepted accounting
principles at least equal to the greater of (1) the net worth of
Lessee immediately prior to such merger, consolidation or
transfer, or (2) the net worth of Lessee herein named on the date
of this Lease, and (ii) proof satisfactory to Lessor of such net
worth shall have been delivered to Lessor at least 10 days prior
to the effective date of any such transaction. Lessee may assign
this Lease or sublet any portion of all the Premises to any
corporation, partnership, trust, association or other business
organization directly or indirectly controlling or controlled by
Lessee or under common control with Lessee, or to any successor by
merger, consolidation, corporate reorganization or acquisition of
all or substantially all of the assets of Lessee provided that any
such successor by merger, consolidation, corporate reorganization
or acquisition of assets has a net worth at the time of such
merger, consolidation, reorganization or acquisition (herein,
"Merger") equal to or greater than the lesser of (A) the net worth
of Lessee immediately preceding the Merger or (B) the net worth of
Lessee as of the Commencement Date. Any other assignment or
subleasing of Lessee's interest under this Lease shall be subject
to Lessor's approval, which approval shall not be unreasonably
withheld or delayed.*
d. In the event that any or all of Lessee's interest in the Premises
and/or this Lease is transferred by operation of law to any
trustee, receiver, or other representative or agent of Lessee, or
to Lessee as a debtor in possession, and subsequently any or all
of Lessee's interest in the Premises and/or this Lease is offered
or to be offered by Lessee or any trustee, receiver, or other
representative or agent of Lessee as to its estate or property
(such person, firm or entity being hereinafter referred to as the
"Grantor"), for assignment, conveyance, lease, or other
disposition to a person, firm or entity other than Lessor (each
such transaction being hereinafter referred to as a
8
"Disposition"), it is agreed that Lessor has and shall have a
right of first refusal to purchase, take, or otherwise acquire,
the same upon the same terms and conditions as the Grantor thereof
shall accept upon such Disposition to such other person, firm, or
entity; and as to each such Disposition the Grantor shall give
written notice to Lessor in reasonable detail of all of the terms
and conditions of such Disposition within twenty (20) days next
following its determination to accept the same but prior to
accepting the same, and Grantor shall not make the Disposition
until and unless Lessor has failed or refused to accept such right
of first refusal as to the Disposition, as set forth herein.
Lessor shall have thirty (30) days next following its receipt of
the written notice as to such Disposition in which to exercise the
option to acquire Lessee's interest by such Disposition, and the
exercise of the option by Lessor shall be effected by notice to
that effect sent to the Grantor; but nothing herein shall require
Lessor to accept a particular Disposition or any Disposition, nor
does the rejection of any one such offer of first refusal
constitute a waiver or release of the obligation of the Grantor to
submit other offers hereunder to Lessor. In the event Lessor
accept such offer of first refusal, the transaction shall be
consummated pursuant to the terms and conditions of the
Disposition described in the notice to Lessor. In the event Lessor
rejects such offer of first refusal, Grantor may consummate the
Disposition with such other person, firm, or entity; but any
decrease in price of more than two percent (2%) of the price
sought from Lessor or any change in the terms of payment for such
Disposition shall constitute a new transaction requiring a further
option of first refusal to be given to Lessor hereunder.*
e. Without limiting any of the provisions of Articles 12 and 13, if
pursuant to the Federal Bankruptcy Code (herein referred to as the
"Code"), or any similar law hereafter enacted having the same
general purpose, Lessee is permitted to assign this Lease
notwithstanding the restrictions contained in this Lease, adequate
assurance of future performance by an assignee expressly permitted
under such Code shall be deemed to mean the deposit of cash
security in an amount equal to the sum of six month's Fixed Basic
Rent plus an amount equal to the Additional Rent for the calendar
year preceding the year in which such assignment is intended to
become effective, which deposit shall be held by Lessor for the
balance of the Term, without interest, as security for the full
performance of all of Lessee's obligations under this Lease, to be
held and applied in the manner specified for security in Article
16.*
f. Except as specifically set forth above, no portion of the Premises
or of Lessee's interest in this Lease may be acquired by any other
person or entity, whether by assignment, mortgage, sublease,
transfer, operation of law or act of the Lessee, nor shall Lessee
pledge its interest in this Lease or in any security deposit
required hereunder.
9. COMPLIANCE WITH RULES AND REGULATIONS:
-------------------------------------
Lessee shall observe and comply with the rules and regulations
hereinafter set forth in Exhibit B attached hereto and made a part
hereof and with such further reasonable rules and regulations as Lessor
may prescribe, on written notice to the Lessee, for the safety, care
and cleanliness of the Building and the comfort, quiet and convenience
of other occupants of the Building. Lessee shall not place a load upon
any floor of the Premises exceeding the floor load per square foot area
which it was designed to carry and which is allowed by law. Lessor
reserves the right to prescribe the weight and position of all safes,
business machines and mechanical equipment. Such installations shall be
placed and maintained by Lessee, at Lessee's expense, in settings
sufficient, in Lessor's judgement, to absorb and prevent vibration,
noise and annoyance.
10. DAMAGES TO BUILDING:
-------------------
If the Building is damaged by fire or any other cause to such extent
the cost of restoration, as reasonably estimated by Lessor, will equal
or exceed twenty-five percent (25%) of the replacement value of the
Building (exclusive of foundations) just prior to the occurrence of the
damage, then Lessor may, no later than the sixtieth (60th) day
following the date of damage, give Lessee a notice of election to
9
terminate this Lease, or if the cost of restoration will equal or
exceed fifty percent (50%) of such replacement value and if the
Premises shall not be reasonably usable for the purpose for which they
are leased hereunder, and if restoration of the damage will require
more than one hundred eighty (180) days to complete or if such damage
is not fully repaired and reasonable access to the Premises restored
within one hundred eighty (180) days from the date of damage, then, in
any such event Lessee may, no later than the sixtieth (60th) day
following the date of damage or following the end of said one hundred
eighty (180) day period, give Lessor a notice of election to terminate
this Lease. In either said event of election, this Lease shall be
deemed to terminate on the tenth (10th) day after the giving of said
notice, and Lessee shall surrender possession of the Premises within a
reasonable time thereafter, and the Fixed Basic Rent, and any
Additional Rent, shall be apportioned as of the date of said surrender
and any Fixed Basic Rent or Additional Rent paid for any period beyond
said date shall be repaid to Lessee. If the cost of restoration shall
not entitle Lessor to terminate this Lease, or if, despite the cost,
Lessor does not elect to terminate this Lease, Lessor shall restore the
Building and the Premises with reasonable promptness, subject to Force
Majeure, and Lessee shall have no right to terminate this Lease, except
as set forth above. Lessor need not restore fixtures and improvements
owned by Lessee.*
In any case in which use of the Premises is affected by any damage to
the Building, there shall be either an abatement or an equitable
reduction in Fixed Basic Rent, depending on the period for which and
the extent to which the Premises are not reasonably usable for the
purpose for which they are leased hereunder. The words "restoration"
and "restore" as used in this Article 10 shall include repairs. If the
damage results from the fault of the Lessee, Lessee's agents, servants,
visitors or licensees, Lessee shall not be entitled to any abatement or
reduction in Fixed Basic Rent, except to the extent of any rent
insurance received by Lessor.
11. EMINENT DOMAIN:
--------------
If Lessee's use of the Premises is materially affected due to the
taking by eminent domain of (a) the Premises or any part thereof or any
estate therein; or (b) any other part of the Building; then, in either
event, this Lease shall terminate on the date when title vests pursuant
to such taking. The Fixed Basic Rent, and any Additional Rent, shall be
apportioned as of said termination date and any Fixed Basic Rent or
Additional Rent paid for any period beyond said date, shall be repaid
to Lessee. Lessee shall not be entitled to any part of the award for
such taking or any payment in lieu thereof, but Lessee may file a
separate claim for any taking of fixtures and improvements owned by
Lessee which have not become the Lessor's property, and for moving
expenses, provided the same shall, in no way, affect or diminish
Lessor's award. In the event of a partial taking which does not effect
a termination of this Lease but does deprive Lessee of the use of a
portion of the Premises, there shall either be an abatement or an
equitable reduction of the Fixed Basic Rent, and an equitable
adjustment reducing the Base Period Costs as hereinafter defined
depending on the period for which and the extent to which the Premises
so taken are not reasonably usable for the purpose for which they are
leased hereunder.
12. INSOLVENCY OF LESSEE:
--------------------
Either (a) the appointment of a receiver to take possession of all or
substantially all of the assets of Lessee, or, (b) a general assignment
by Lessee for the benefit of creditors, or, (c) any action taken or
suffered by Lessee under any insolvency or bankruptcy act, shall
constitute a default of this Lease by Lessee, and Lessor may terminate
this Lease forthwith and upon notice of such termination Lessee's right
to possession of the Premises shall cease, and Lessee shall then quit
and surrender the Premises to Lessor but Lessee shall remain liable as
hereinafter provided in Article 14 hereof.
13. LESSOR'S REMEDIES ON DEFAULT:
----------------------------
If Lessee defaults in the payment of Fixed Basic Rent, or any
Additional Rent, or defaults in the performance of any of the other
covenants and conditions hereof or permits the Premises to become
deserted, abandoned or vacated, Lessor may give Lessee notice of such
default, and if Lessee does not cure any Fixed Basic Rent or Additional
10
Rent default within ten (10) days or other default within twenty (20)
days after giving of such notice (or if such other default is of such
nature that it cannot be completely cured within such period, if Lessee
does not commence such curing within such twenty (20) days and
thereafter proceed with reasonable diligence and in good faith to cure
such default), then Lessor may terminate this Lease on not less than
ten (10) days notice to Lessee, and on the date specified in said
notice, Lessee's right to possession of the Premises shall cease but
Lessee shall remain liable as hereinafter provided. If this Lease shall
have been so terminated by Lessor pursuant to Articles 12 or 13 hereof,
Lessor may at any time thereafter resume possession of the Premises by
any lawful means and remove Lessee or other occupants and their
effects. Lessee shall pay to Lessor, on demand, such expenses as Lessor
may incur, including, without limitation, court costs and reasonable
attorney's fees and disbursements, in enforcing the performance of any
obligation of Lessee under this Lease.*
14. DEFICIENCY:
----------
In any case where Lessor has recovered possession of the Premises by
reason of Lessee's default, Lessor may, at Lessor's option, occupy the
Premises or cause the Premises to be redecorated, altered, divided,
consolidated with other adjoining premises or otherwise changed or
prepared for reletting, and may relet the Premises or any part thereof,
as agent of Lessee or otherwise, for a term or terms to expire prior
to, at the same time as or subsequent to, the original Expiration Date
of this Lease, at Lessor's option and receive the rent therefor. Rent
so received shall be applied first to the payment of such expenses as
Lessor may have incurred in connection with the recovery of possession,
redecorating, altering, dividing, consolidating with other adjoining
premises, or otherwise changing or preparing for reletting, and the
reletting, including brokerage and reasonable attorney's fees, and then
to the payment of damages in amounts equal to the Fixed Basic Rent and
Additional Rent hereunder and to the costs and expenses of performance
of the other covenants of Lessee as herein provided. Lessee agrees, in
any such case, whether or not Lessor has relet, to pay to Lessor
damages equal to the Fixed Basic Rent and Additional Rent from the date
of such default to the date of expiration of the term demised and other
sums herein agreed to be paid by Lessee, less the net proceeds of the
reletting, if any, received by Lessor during the remainder of the
unexpired term hereof, as ascertained from time to time, and the same
shall be payable by Lessee on the several rent days above specified.
Lessee shall not be entitled to any surplus accruing as a result of any
such reletting. In reletting the Premises as aforesaid, Lessor may
grant rent concessions, and Lessee shall not be credited therewith. No
such reletting shall constitute a surrender and acceptance or be deemed
evidence thereof. If Lessor elects, pursuant hereto, actually to occupy
and use the Premises or any part thereof during any part of the balance
of the Term as originally fixed or since extended, there shall be
allowed against Lessee's obligation for rent or damages as herein
defined, during the period of Lessor's occupancy, the reasonable value
of such occupancy, not to exceed, in any event, the Fixed Basic Rent
and Additional Rent herein reserved and such occupancy shall not be
construed as a release of Lessee's liability hereunder.
Alternatively, in any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may at Lessor's option,
and at any time thereafter, and without notice or other action by
Lessor, and without prejudice to any other rights or remedies it might
have hereunder or at law or equity, become entitled to recover from
Lessee, as Damages for such breach, in addition to such other sums
herein agreed to be paid by Lessee, to the date of re-entry, expiration
and/or dispossess, an amount equal to the difference between the Fixed
Basic Rent and Additional Rent reserved in this Lease from the date of
such default to the date of Expiration of the original Term demised and
the then fair and reasonable rental value of the Premises for the same
period. Said Damages shall become due and payable to Lessor immediately
upon such breach of this Lease and without regard to whether this Lease
be terminated or not, and if this Lease be terminated, without regard
to the manner in which it is terminated. In the computation of such
Damages, the difference between an installment of Fixed Basic Rent and
Additional Rent thereafter becoming due and the fair and reasonable
rental value of the Premises for the period for which such installment
was payable shall be discounted to the date of such default at the rate
of not more than six percent (6%) per annum.
Lessee hereby waives all right of redemption to which Lessee or any
person under Lessee might be entitled by any law now or hereafter in
force.
11
Lessor's remedies hereunder are in addition to any remedy allowed by
law.
Lessor shall use commercially reasonable efforts to mitigate damages to
the extent required by law.*
15. SUBORDINATION OF LEASE:
----------------------
This Lease shall, at Lessor's option, or at the option of any holder of
any underlying lease or holder of any mortgages or trust deed, be
subject and subordinate to any such underlying leases and to any such
mortgages or trust deed which may now or hereafter affect the real
property of which the Premises form a part, and also to all renewals,
modifications, consolidations and replacements of said underlying
leases and said mortgages or trust deed. Although no instrument or act
on the part of Lessee shall be necessary to effectuate such
subordination, Lessee will, nevertheless, execute and deliver such
further instruments confirming such subordination of this Lease as may
be desired by the holders of said mortgages or trust deed or by any of
the lessor's under such underlying leases. Lessee hereby appoints
Lessor attorney-in-fact, irrevocably, to execute and deliver any such
instrument for Lessee. If any underlying lease to which this Lease is
subject terminates, Lessee shall, on timely request, attorn to the
owner of the reversion.
16. SECURITY DEPOSIT:
----------------
Lessee shall deposit with Lessor on the signing of this Lease, the
Security Deposit as defined in the Preamble for the full and faithful
performance of Lessee's obligations under this Lease, including without
limitation, the surrender of possession of the Premises to Lessor as
herein provided. If Lessor applies any part of said Security Deposit to
cure any default of Lessee, Lessee shall, on demand, deposit with
Lessor the amount so applied so that Lessor shall have the full
Security Deposit on hand at all times during the Term of this Lease. In
the event a bona fide sale, subject to this Lease, Lessor shall have
the right to transfer the Security Deposit to the vendee, and Lessor
shall be considered released by Lessee from all liability for the
return of the Security Deposit; and Lessee agrees to look solely to the
new lessor for the return of the Security Deposit, and it is agreed
that this shall apply to every transfer or assignment made of the
Security Deposit to the new lessor. Provided this Lease is not in
default, the Security Deposit (less any portions thereof used, applied
or retained by Lessor in accordance with the provisions of this Article
16), shall be returned to Lessee after the expiration or sooner
termination of this Lease and after delivery of the entire Premises to
Lessor in accordance with the provisions of this Lease. Lessee
covenants that it will not assign or encumber or attempt to assign or
encumber the Security Deposit and Lessor shall not be bound by any such
assignment, encumbrance or attempt thereof.
Lessee may deliver to Lessor, in lieu of the cash deposit set forth in
this Article an irrevocable negotiable letter of credit issued by and
drawn upon such commercial bank selected by Lessee and acceptable to
Lessor (at its sole discretion) and in form and content acceptable to
Lessor (also at its sole discretion) (the form attached hereto as
Exhibit H shall be deemed acceptable to Lessor) for the account of
Lessor, in the sum of SIXTY FIVE THOUSAND ONE HUNDRED TWENTY FIVE AND
00/100 ($65,125.00) DOLLARS. Said letter of credit shall be for a term
of not less than one (l) year and shall be renewed by Lessee (without
notice from Lessor) no later than sixty (60) days prior to its
expiration, and the expiration of each replacement thereof, until
Lessor shall be required to return the security to Lessee pursuant to
the terms of this Lease but in no event earlier than ninety (90) days
after the Expiration Date, and each such renewed letter of credit shall
be delivered to Lessor no later than sixty (60) days prior to the
expiration of the letter of credit then held by Lessor. If any portion
of the security deposit shall be utilized by Lessor in the manner
permitted by this Lease, Lessee shall, within five (5) days after
request by Lessor, replenish the security account by depositing with
Lessor, in cash or by letter of credit, an amount equal to that
utilized by Lessor. Failure of Lessee to comply strictly with the
provisions of this Article shall constitute a material breach of this
Lease and Lessor shall be entitled to present the letter of credit then
held by it for payment (without notice to Lessee). If the cash security
is converted into a letter of credit, the provisions with respect to
letters of credit shall apply (with the necessary changes in points of
detail) to such letter of credit deposit. In the event of a bank
failure or insolvency affecting the letter of credit, Lessee shall
replace same within twenty (20) days after being requested to do so by
Lessor.*
12
In the event of the insolvency of Lessee, or in the event of the entry
of a material judgment in any court against Lessee which is not
discharged or appealed within thirty (30) days after entry, or in the
event a petition is filed by or against Lessee under any chapter of the
bankruptcy laws of the State of New Jersey or the United States of
America, then in such event, Lessor may require the Lessee to deposit
additional security in an amount which in Lessor's sole judgement would
be sufficient to adequately assure Lessee's performance of all of its
obligations under this Lease including all payments subsequently
accruing. Failure of Lessee to deposit the security required by this
Article 16 within ten (10) days after Lessor's written demand shall
constitute a material breach of this Lease by Lessee.*
17. RIGHT TO CURE LESSEE'S BREACH:
-----------------------------
If Lessee breaches any covenant or condition of this Lease, Lessor may,
on reasonable notice to Lessee (except that no notice need be given in
case of emergency), cure such breach at the expense of Lessee and the
reasonable amount of all expenses, including attorney's fees, incurred
by Lessor in so doing (whether paid by Lessor or not) shall be deemed
Additional Rent payable on demand.
18. MECHANIC'S LIENS:
----------------
Lessee shall, within fifteen (15) days after notice from Lessor,
discharge or satisfy by bonding or otherwise any mechanic liens for
materials or labor claimed to have been furnished to the Premises on
Lessee's behalf.
19. RIGHT TO INSPECT AND REPAIR:
---------------------------
Lessor may enter the Premises but shall not be obligated to do so
(except as required by any specific provision of this Lease) at any
reasonable time on reasonable notice to Lessee (except that no notice
need be given in case of emergency) for the purpose of inspection or
the making of such repairs, replacement or additions in, to, on and
about the Premises or the Building, as Lessor deems necessary or
desirable. Lessee shall have no claims or cause of action against
Lessor by reason thereof. In no event shall Lessee have any claim
against Lessor for interruption of Lessee's business, however
occurring, including but not limited to that arising from the
negligence of Lessor, its agents, servants or invitees, or from
defects, errors or omissions in the construction or design of the
Premises and/or the Building, including the structural and
non-structural portions thereof.
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION:
------------------------------------------------------
Subject to intervening laws, ordinances, regulations and executive
orders, while Lessee is not in default under any of the provisions of
this Lease, Lessor agrees to furnish, except on holidays, as set forth
on Exhibit E attached hereto and made a part hereof:
a. The cleaning services, as set forth on Exhibit D attached hereto
and made a part hereof, and subject to the conditions therein
stated. Except as set forth on Exhibit D, Lessee shall pay the
cost of all other cleaning services required by Lessee.
b. Heating, ventilating and air conditioning (herein "HVAC") as
appropriate for the season, and as set forth on Exhibit C-1,
attached hereto and made a part hereof, together with Common
Facilities lighting and electric energy all during Building Hours,
as defined in the Preamble.
c. Cold and hot water for drinking and lavatory purposes.
d. Elevator service during Building Hours (if the Building contains
an elevator or elevators for the use of the occupants thereof).
e. Restroom supplies and exterior window cleaning when reasonably
required.
13
f. Notwithstanding the requirements of Exhibit C-1 (as to HVAC) or D
or any other provision of this Lease, Lessor shall not be liable
for failure to furnish any of the aforesaid services when such
failure is due to Force Majeure, as hereinafter defined. Lessor
shall not be liable, under any circumstances, including, but not
limited to, that arising from the negligence of Lessor, its
agents, servants or invitees, or from defects, errors or omissions
in the construction or design of the Premises and/or the Building,
including the structural and non-structural portions thereof, for
loss of or injury to Lessee or to property, however occurring,
through or in connection with or incidental to the furnishings of,
or failure to furnish, any of the aforesaid services or for any
interruption to Lessee's business, however occurring.
21. INTERRUPTION OF SERVICES OR USE:
-------------------------------
Interruption or curtailment of any service maintained in the Building
or at the Office Building Area, if caused by Force Majeure, as
hereinafter defined, shall not entitle Lessee to any claim against
Lessor or to any abatement in rent, and shall not constitute a
constructive or partial eviction, unless Lessor fails to take measures
as may be reasonable under the circumstances to restore the service
without undue delay. If the Premises are rendered untenantable in whole
or in part, for a period of ten (10) consecutive business days, by the
making of repairs, replacements or additions, other than those made
with Lessee's consent or caused by misuse or neglect by Lessee, or
Lessee's agents, servants, visitors or licensees, there shall be a
proportionate abatement of Rent from and after said tenth (10th)
consecutive business day and continuing for the period of such
untenantability. In no event, shall Lessee be entitled to claim a
constructive eviction from the Premises unless Lessee shall first have
notified Lessor in writing of the condition or conditions giving rise
thereto, and if the complaints be justified, unless Lessor shall have
failed, within a reasonable time after receipt of such notice, to
remedy, or commence and proceed with due diligence to remedy such
condition or conditions, all subject to Force Majeure as hereinafter
defined.
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:
-------------------------------------------
The cost of electric current which is supplied by the Lessor for use by
the Lessee in the Premises, other than for heating or air conditioning
purposes, shall be reimbursed to the Lessor at terms, classification
and rates normally charged by the public utilities corporation serving
that part of the municipality where the subject Premises are located.
a. From and after the Commencement Date, Lessee agrees to pay as
Additional Rent an estimated electrical charge of $.10 per square
foot per month, payable on the first day of each and every month,
until such time as an electrical survey can be performed pursuant
to Article 22(b) below.
b. Lessee agrees that an independent electrical engineering
consultant shall make a survey of electric power demand of the
electric lighting fixtures and the electric equipment of Lessee
used in the Premises to determine the average monthly electric
consumption thereof, and the costs of said survey shall be borne
by Lessee. The findings of said consultant as to the average
monthly electric consumption of Lessee shall, unless objected to
by Lessee within forty-five (45) days, be conclusive and binding
on Lessor and Lessee. After Lessor's consultant has submitted its
report, Lessee shall pay to Lessor, within ten (10) days after
demand therefor by Lessor, the amount (based on the monthly
consumption found by such consultant) as owing from the Lease
Term's Commencement Date, and the then expired months, to include
the then current month and thereafter adjusted for the estimated
electrical charges already paid pursuant to Article 22(a), on the
first day of every month, in advance, the amount set forth as the
monthly consumption in said report. Said amounts shall be treated
as Additional Rent due hereunder. Proportionate sums shall be
payable for periods of less than a full month if the Term
commences or ends on any other than the first or last day of the
month. If Lessee objects to said findings, Lessee shall
nevertheless pay and continue to pay the amount determined by
Lessor's consultant until the issue is finally resolved, but
Lessee may, at its expense, seek the services of an independent
electrical consultant who shall make a survey as provided above.
If Lessor's and Lessee's consultant cannot agree as to Lessee's
consumption within thirty (30) days of Lessee's consultant's
findings either Lessor or Lessee may request the American
14
Arbitration Association in Somerset, New Jersey to appoint an
electrical engineering consultant whose decision shall be final
and binding on Lessor and Lessee, and whose cost shall be shared
equally. Upon the issue being finally resolved, any overpayment
made by Lessee shall be promptly refunded.
c. In the event that there shall be an increase or decrease in the
rate schedule (including surcharges or demand adjustments), of the
public utility for the supply of Building Standard Office
Electrical Service, or the imposition of any tax with respect to
such service or increase in any such tax following the Lease
Term's commencement, the Additional Rent payable hereunder shall
be adjusted equitably to reflect the increase or decrease in rate
or imposition or increase in the aforesaid tax. All computations
shall be made on the basis of Lessee's surveyed usage as if a
meter exclusively measuring such usage to the Premises was in
place.
d. Lessee covenants that it shall notify Lessor immediately upon the
introduction of any office equipment or lighting different from
that on the Premises as of Lessor's electrical survey or in
addition to the aforesaid equipment or lighting on the Premises as
of said survey. The introduction of any new or different equipment
or lighting shall be cause for, at Lessor's election, a
resurveying of the Premises at Lessee's expense. Lessor reserves
the right to inspect the Premises to insure compliance with this
provision.
x. Xxxxxx shall not be liable in any way to Lessee for any loss,
damage or expense which Lessee may sustain or incur as a result of
any failure, defect or change in the quantity or character of
electrical energy available for redistribution to the Premises
pursuant to this Article 22 nor for any interruption in the
supply, and Lessee agrees that such supply may be interrupted for
inspection, repairs and replacement and in emergencies. In any
event, the full measure of Lessor's liability for any interruption
in the supply due to Lessor's acts or omissions shall be an
abatement of Fixed Basic Rent and Additional Rent, unless Lessor
fails to take such measures as may be reasonable under the
circumstances to restore such service without undue delay. In no
event shall Lessor be liable for any business interruption
suffered by Lessee.
x. Xxxxxx, at Lessee's expense, shall furnish and install all
replacement lighting tubes, lamps, ballasts and bulbs required in
the Premises. Lessee, however, shall have the right to furnish
and/or install any or all of the items mentioned in this Article
22(f).
g. Lessee's use of electrical service as contemplated herein shall be
during Building Hours, and any use in excess of said Building
Hours may result in a resurveying of Lessee's usage set forth
above to reflect such additional consumption.*
23. ADDITIONAL RENT:
---------------
It is expressly agreed that Lessee will pay in addition to the Fixed
Basic Rent provided in Article 3 hereof, an Additional Rent to cover
Lessee's Percentage as defined in the Preamble, of the increased cost
to Lessor, for each of the categories enumerated herein, over the "Base
Period Costs", as defined in the Preamble for said categories.
a. OPERATING COST ESCALATION -- If the Operating Costs incurred for
the Building in which the Premises are located and Office Building
Area for any Lease Year or Partial Lease Year during the Lease
Term shall be greater than the Base Operating Costs (adjusted
proportionately for periods less than a Lease Year), then Lessee
shall pay to Lessor, as Additional Rent, Lessee's Percentage of
all such excess Operating Costs. Operating Costs shall include, by
way of illustration and not of limitation: personal property
taxes; management fees; labor, including all wages and salaries;
social security taxes, and other taxes which may be levied against
Lessor upon such wages and salaries; supplies; repairs and
maintenance; maintenance and service contracts; painting; wall and
window washing; laundry and towel service; tools and equipment
(which are not required to be capitalized for federal income tax
purposes); trash removal; lawn care; snow removal and all other
items properly constituting direct operating costs according to
standard accounting practices (hereinafter collectively referred
to as the "Operating Costs"), but not including depreciation of
Building or equipment; interest; income or excess profits taxes;
costs of maintaining the Lessor's corporate existence; franchise
15
taxes; any expenditures required to be capitalized for federal
income tax purposes, unless said expenditures are for the purpose
of reducing Operating Costs within the Building and Office
Building Area, or those which under generally applied real estate
practice are expensed or regarded as deferred expenses or are
required under any governmental or quasi-governmental law,
statute, ordinance, rule, order, requirements or regulation, in
which event the costs thereof shall be included. Notwithstanding
anything contained herein to the contrary, any additional costs
incurred by Lessor during the 2002 Calendar Year by reason of
Lessor or any of its vendors entering into new labor contracts or
renewals or modifications of existing labor contracts shall not be
included in Base Operating Costs. The Base Operating Costs shall
be as defined in the Preamble.
b. FUEL, UTILITIES AND ELECTRIC COST ESCALATION (hereinafter referred
to as "Utility and Energy Costs") -- If the Utility and Energy
Costs, including any fuel surcharges or adjustments with respect
thereto, incurred for water, sewer, gas, electric, other utilities
and heating, ventilating and air conditioning for the Building, to
include all leased and leasable areas (not separately billed or
metered within the Building) and Common Facilities electric,
lighting, water, sewer and other utilities for the Building and
Office Building Area, for any Lease Year or Partial Lease Year,
during the Term, shall be greater than the Utility and Energy
Costs Expense Stop (adjusted proportionately for periods less than
a Lease Year), then Lessee shall pay to Lessor as Additional Rent,
Lessee's Percentage of all such excess Utility and Energy Costs.
As used in this Article 23, the Utility and Energy Costs Expense
Stop shall be as defined in the Preamble.
c. TAX ESCALATION -- If the Real Estate Taxes for the Building and
Office Building Area at which the Premises are located for any
Lease Year or Partial Lease Year, during the Lease Term, shall be
greater than the Base Real Estate Taxes (adjusted proportionately
for periods less than a Lease Year), then Lessee shall pay to
Lessor as Additional Rent, Lessee's Percentage as hereinafter
defined, of all such excess Real Estate Taxes.
As used in this Article 23(c), the words and terms which follow
mean and include the following:
i. "Base Real Estate Taxes" shall be as defined in the Preamble.
ii. "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building and Office Building
Area, or upon the rent, as such, payable to the Lessor,
including, but not limited to, real estate, city, county,
village, school and transit taxes, or taxes, assessments, or
charges levied, imposed or assessed against the Building and
Office Building Area by any other taxing authority, whether
general or specific, ordinary or extraordinary, foreseen or
unforeseen. If due to a future change in the method of
taxation, any franchise, income or profit tax shall be levied
against Lessor in substitution for, or in lieu of, or in
addition to, any tax which would otherwise constitute a Real
Estate Tax, such franchise, income or profit tax shall be
deemed to be a Real Estate Tax for the purposes hereof;
conversely, any additional real estate tax hereafter imposed
in substitution for, or in lieu of, any franchise, income or
profit tax (which is not in substitution for, or in lieu of,
or in addition to, a Real Estate Tax as hereinbefore
provided) shall not be deemed a Real Estate Tax for the
purposes hereof.
d. INSURANCE COST ESCALATION - If the Insurance Costs for the
Building and Office Building Area for any Lease Year or partial
Lease Year during the Term shall be greater than the Insurance
Expense Stop (adjusted proportionately for periods less than a
Lease Year), Lessee shall pay to Lessor as Additional Rent for
each Lease Year or partial Lease Year commencing from and after
the Commencement Date, Lessee's Percentage of such excess
Insurance Costs.
As used in this Article 23(d), the words and terms which follow
mean and include the following:
16
i. "Insurance Expense Stop" shall be as defined in the Preamble.
ii. "Insurance Costs" shall mean all fire and other insurance
costs incurred by Lessor in connection with its operation and
maintenance of the Building and Office Building Area, for any
Lease Year or Partial Lease Year, during the Term.
e. LEASE YEAR -- As used in this Article 23, Lease Year shall mean a
calendar year. Any portion of the Term which is less than a Lease
Year as hereinbefore defined, that is, from the Commencement Date
through the following December 31, and from the last January 1,
falling within the Term to the end of the Term, shall be deemed a
"Partial Lease Year". Any reference in this Lease to a Lease Year
shall, unless the context clearly indicates otherwise, be deemed
to be a reference to a Partial Lease Year if the period in
question involves a Partial Lease Year.
f. PAYMENT -- At any time, and from time to time, after the
establishment of the Base Period Costs for each of the categories
referred to above, Lessor shall advise Lessee in writing of
Lessee's Percentage share with respect to each of the categories
as estimated for the next twelve (12) month period (or
proportionate part thereof if the last period prior to the Lease's
expiration is less than twelve (12) months) as then known to the
Lessor, and thereafter, the Lessee shall pay as Additional Rent,
Lessee's Percentage share of these costs for the then current
period affected by such advice (as the same may be periodically
revised by Lessor as additional costs are incurred) in equal
monthly installments, such new rates being applied to any months,
for which the Fixed Basic Rent shall have already been paid which
are affected by the Operating Cost Escalation and/or Utility and
Energy Cost Escalation and/or Tax Escalation Costs and/or
Insurance Costs above referred to, as well as the unexpired months
of the current period, the adjustment for the then expired months
to be made at the payment of the next succeeding monthly rental,
all subject to final adjustment at the expiration of each Lease
Year as defined in Article 23(e) hereof (or Partial Lease Year if
the last period prior to the Lease's termination is less than
twelve (12) months).
In the event the last period prior to the Lease's termination is
less than twelve (12) months, the Base Period Costs during said
period shall be proportionately reduced to correspond to the
duration of said final period.
g. BOOKS AND REPORTS -- For the protection of Lessee, Lessor shall
maintain books of account which shall be open to Lessee and its
representatives at all reasonable times so that Lessee can
determine that such Operating, Utility and Energy, Real Estate Tax
and Insurance Costs have, in fact, been paid or incurred. Lessee's
representatives shall mean only (i) Lessee's employees or (ii) a
Certified Public Accounting firm, and neither Lessee's employees
nor any Certified Public Accounting firm shall be permitted to (i)
perform such inspection and/or audit on a contingency basis, or
(ii) perform such an inspection and/or audit for any other tenant
in the Building. At Lessor's request, Lessee shall execute a
confidentiality agreement reasonably acceptable to Lessor prior to
any examination of Lessor's books and records. In the event Lessee
disputes any one or more of said charges, Lessee shall attempt to
resolve such dispute with Lessor, provided that if such dispute
shall not be satisfactorily settled between Lessor and Lessee, the
dispute shall be referred by either party to an independent
certified public accountant to be mutually agreed upon, and if
such an accountant cannot be agreed upon, The American Arbitration
Association may be asked by either party to select an arbitrator,
whose decision on the dispute will be final and binding upon both
parties, who shall jointly share any cost of such arbitration.
Pending resolution of said dispute the Lessee shall pay to Lessor
the sum so billed by Lessor subject to its ultimate resolution as
aforesaid.
h. RIGHT OF REVIEW -- Once Lessor shall have finally determined said
Operating, Utility and Energy, Real Estate Tax and Insurance Costs
at the expiration of a Lease Year, then as to the item so
established, Lessee shall only be entitled to dispute said charge
as finally established for a period of six (6) months after such
charge is finally established, and Lessee specifically waives any
right to dispute any such charge at the expiration of said six (6)
month period.
17
i. OCCUPANCY ADJUSTMENT -- If, with respect to Operating Cost
Escalation, as established in Article 23(a) hereof, and Utility
and Energy Cost Escalation, as established in Article 23(b) hereof
and Insurance Cost Escalation, as established in Article 23(d),
the Building is less than ninety-five percent (95%) occupied
during the establishment of the respective Base Periods, then the
Base Period Costs incurred with respect to said Operating Cost,
Utility and Energy Cost and Insurance Cost shall be adjusted
during any such period within the Base Period so as to reflect
ninety-five percent (95%) occupancy. Similarly, if during any
Lease Year or Partial Lease Year, subsequent to the Base Period
the Building is less than ninety-five percent (95%) occupied, then
the actual costs incurred for Operating Cost, Utility and Energy
Cost and Insurance Cost shall be increased during any such period
to reflect ninety-five percent (95%) occupancy so that at all
times after the Base Period the Operating Cost, Utility and Energy
Cost or Insurance Cost shall be actual costs, but in the event
less than ninety-five percent (95%) of the Building is occupied
during all or part of the Lease Year involved, the Operating Cost,
Utility and Energy Cost or Insurance Cost shall not be less than
that which would have been incurred had ninety-five percent (95%)
of the Building been occupied. The aforesaid adjustment shall only
be made with respect to those items that are in fact affected by
variations in occupancy levels.*
24. LESSEE'S ESTOPPEL:
-----------------
Lessee shall, from time to time, on not less that ten (10) days prior
written request by Lessor, execute, acknowledge and deliver to Lessor a
written statement certifying that the Lease is unmodified and in full
force and effect, or that the Lease is in full force and effect as
modified and listing the instruments of modification; the dates to
which the rents and charges have been paid; and, to the best of
Lessee's knowledge, whether or not Lessor is in default hereunder, and
if so, specifying the nature of the default. It is intended that any
such statement delivered pursuant to this Article 24 may be relied on
by a prospective purchaser of Lessor's interest or mortgagee of
Lessor's interest or assignee of any mortgage of Lessor's interest.
Lessee shall also execute and deliver the form "Lessee Estoppel
Certificate" attached hereto as Exhibit F.
25. HOLDOVER TENANCY:
----------------
If Lessee holds possession of the Premises after the Expiration Date of
this Lease, Lessee shall (i) become a tenant from month to month under
the provisions herein provided, but at one hundred fifty percent (150%)
percent of the monthly fixed basic rental for the last month of the
term plus the Additional Rent for the first month and two hundred
percent (200%) of the monthly fixed basic rental for the last month of
the term plus the Additional Rent thereafter which shall continue as
provided in the Lease which sum shall be payable in advance on the
first day of each month, and without the requirement for demand or
notice by Lessor to Lessee demanding delivery of possession of said
Premises, and such tenancy shall continue until terminated by Lessor,
or until Lessee shall have given to Lessor, at least sixty (60) days
prior to the intended date of termination, a written notice of intent
to terminate such tenancy, which termination date must be as of the end
of a calendar month; and (ii) indemnify Lessor against loss or
liability resulting from the delay by Lessee in so surrendering the
Premises including, without limitation, any claims made by any
succeeding occupant founded on such delay. Lessee's obligations under
this Section shall survive the expiration or sooner termination of the
Lease. The time limitations described in this Article 25 shall not be
subject to extension for Force Majeure.*
26. RIGHT TO SHOW PREMISES:
----------------------
Lessor may show the Premises to prospective purchasers and mortgagees;
and during the twelve (12) months prior to termination of this Lease,
to prospective tenants, during Building Hours on reasonable notice to
Lessee.
18
27. LESSOR'S WORK - LESSEE'S DRAWINGS:
---------------------------------
a. Lessor agrees that, prior to the commencement of the Term of this
Lease, it will do substantially all of the work in the Premises in
accordance with Exhibit C attached hereto and made a part hereof.
b. Lessee will timely supply such drawings and information to Lessor
as set forth in Exhibit C. Any delay occasioned by Lessee's
failure to timely supply such drawings and information shall not
delay the Commencement Date of the Term and Lessee's obligations
hereunder, and the same shall commence on the date the Premises
would have been delivered to Lessee pursuant to Article 2, but for
Lessee's delay.
c. Lease commencement shall occur and the Commencement Date is
defined as that date when Lessor has done substantially all of the
work to be done by Lessor in accordance with Exhibit C, unless
Lessor has been precluded from completing said work as a result of
Lessee's acts or omissions including, but not limited to, its
failure to comply with Article 27(b) hereof. Occupancy by Lessee
or the delivery of a Certificate of Occupancy by Lessor (if
required pursuant to local law) shall be prima facie evidence that
Lessor has done substantially all of the work.
28. WAIVER OF TRIAL BY JURY:
-----------------------
To the extent such waiver is permitted by law, the parties waive trial
by jury in any action or proceeding brought in connection with this
Lease or the Premises.
29. LATE CHARGE:
-----------
Anything in this Lease to the contrary notwithstanding, at Lessor's
option, Lessee shall pay a "Late Charge" of eight percent (8%) of any
installment of Fixed Basic Rent or Additional Rent paid more than five
(5) days after the due date thereof, to cover the extra expense
involved in handling delinquent payments, said Late Charge to be
considered Additional Rent. The amount of the Late Charge to be paid by
Lessee shall be reassessed and added to Lessee's obligations for each
successive monthly period until paid. Notwithstanding anything in this
Article to the contrary, Lessor shall waive a Late Charge one time
during each Lease Year provided, however, the installment of Fixed
Basic Rent or Additional Rent so due is paid by the fifteenth (15th)
day of the month. Payment received subsequent to the fifteenth (15th)
of the month during these grace periods shall require a Late Charge to
be reassessed and added to Lessee's obligations hereunder.*
30. LESSEE'S INSURANCE:
------------------
a. Lessee covenants to provide at Lessee's cost and expense on or
before the earlier of (i) the Commencement Date, or (ii) Lessee's
taking actual possession for the purpose of completing any
improvement work, and to keep in full force and effect during the
entire Term and so long thereafter as Lessee, or anyone claiming
by, through or under Lessee, shall occupy the Premises, insurance
coverage as follows:
i. Commercial General Liability insurance with contractual
liability endorsements with respect to the Premises and the
business of Lessee in which Lessee shall be adequately
covered under limits of liability of not less than THREE
MILLION AND 00/100 DOLLARS ($3,000,000.00) combined single
limit per occurrence for bodily or personal injury (including
death) and property damage. Such insurance may be carried (x)
under a blanket policy covering the Premises and other
locations of Lessee, if any, provided that each such policy
shall in all respects comply with this Article and shall
specify that the portion of the total coverage of such policy
that is allocated to the Premises is in the amounts required
pursuant to this Article 30 and (y) under a primary liability
policy of not less than ONE MILLION AND 00/100 DOLLARS
($1,000,000.00) and the balance under an umbrella policy.
Notwithstanding anything to the contrary contained in this
Lease, the carrying of insurance by Lessee in compliance with
this Article 30 shall not modify, reduce, limit or impair
19
Lessee's obligations and liability under Article 33 hereof.
ii. Fire and Extended Coverage, Vandalism, Malicious Mischief,
Sprinkler Leakage and Special Extended Coverage Insurance in
an amount adequate to cover the cost of replacement of all
personal property, decoration, trade fixtures, furnishings,
equipment in the Premises and all contents therein. Lessor
shall not be liable for any damage to such property of Lessee
by fire or other peril includable in the coverage afforded by
the standard form of fire insurance policy with extended
coverage endorsement attached (whether or not such coverage
is in effect), no matter how caused, it being understood that
the Lessee will look solely to its insurer for reimbursement.
iii. Worker's Compensation Insurance in the minimum statutory
amount covering all persons employed by Lessee.
iv. Said limits shall be subject to periodic review and Lessor
reserves the right to increase said coverage limits if, in
the reasonable opinion of Lessor, said coverage becomes
inadequate and is less than that commonly maintained by
tenants in similar buildings in the area by tenants making
similar uses. On or before the Commencement Date, and
thereafter at Lessor's request, Lessee shall provide Lessor
evidence of the insurance coverage required herein in the
form of a duplicate original insurance policy, an insurance
binder (countersigned by the insurer), or Evidence of
Insurance (in form XXXXX 27 with respect to property
insurance and XXXXX 25-S with respect to liability insurance)
for each of the insurance policies Lessee is required to
carry in compliance with its obligations under this Lease.
b. All of the aforesaid insurance shall (i) name Lessor as an
additional insured; (ii) be written by one or more responsible
insurance companies licensed in the State of New Jersey
satisfactory to Lessor and in form satisfactory to Lessor; (iii)
contain endorsements substantially as follows: "It is understood
and agreed that the insurer will give to Lessor, or any successor
lessor, c/o Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxxxx, thirty (30) days prior written notice of any
material change in or cancellation of this policy."; (iv) shall be
written on an "occurrence" basis and not on a "claims made" basis.
c. Lessee shall be solely responsible for payment of premium and
Lessor (or its designee) shall not be required to pay any premium
for such insurance. Lessee shall deliver to Lessor at least
fifteen (15) days prior to the expiration of such policy, either a
duplicate original or a certificate it being the intention of the
parties hereto that the insurance required under the terms hereof
shall be continuous during the entire Term of this Lease and any
other period of time during which pursuant to the Term hereof,
said insurance is required. Any insurance carried by Lessee shall
be in excess of and will not contribute with the insurance carried
by Lessor for injuries or damage arising out of the Premises.
d. Lessee agrees, at its own cost and expense, to comply with all
rules and regulations of the National Fire Protection Association
(NFPA) National Fire Code. If, at any time or from time to time,
as a result of or in connection with any failure by Lessee to
comply with the foregoing sentence or any act or omission or
commission by Lessee, its employees, agents, contractors or
licensees, or a result of or in connection with the use to which
the Premises are put (notwithstanding that such use may be for the
purposes hereinbefore permitted or that such use may have been
consented to by Lessor), the fire insurance rate(s) applicable to
the Premises shall be higher than that which would be applicable
for a business office legally permitted therein, Lessee agrees
that it will pay to Lessor as Additional Rent, such portion of the
premiums for all Lessor's fire insurance policies in force with
respect to the building and the contents of any occupant thereof
as shall be attributable to such higher rate(s).
x. Xxxxxx makes no representation that the limits of liability
specified to be carried by Lessee or Lessor under the terms of
this Lease are adequate to protect Lessee against Lessee's
undertaking under this Article 30, and in the event Lessee
believes that any such insurance coverage called for under this
20
Lease is insufficient, Lessee shall provide, at is own expense,
such additional insurance as Lessee deems adequate.
f. In the event the Premises or its contents are damaged or destroyed
by fire or other insured casualty, (i) Lessor, to the extent of
the coverage of Lessor's policies of fire insurance, hereby waives
its rights, if any, against Lessee with respect to such damage or
destruction, even if said fire or other casualty shall have been
caused, in whole or in part, by the negligence of Lessee, and (ii)
Lessee, to the extent of the coverage of Lessee's policies of fire
insurance with extended coverage, hereby waives its rights, if
any, against Lessor with respect to such damage, or destruction,
even if said fire or other casualty shall have been caused, in
whole or in part, by the negligence of Lessor; provided, however,
such waivers of subrogation shall only be effective with respect
to loss or damage occurring during such time as Lessor's or
Lessee's policies of fire insurance (as the case may be) shall
contain a clause or endorsement providing in substance that the
aforesaid waiver of subrogation shall not prejudice the type and
amount of coverage under such policies or the right of Lessor or
Lessee (as the case may be) to recover thereunder. If, at any
time, Lessor's or Lessee's insurance carrier refuses to write
insurance which contains a consent to the foregoing waiver of
subrogation, Lessor or Lessee, as the case may be, shall notify
the party thereof in writing, and upon the giving of such notice,
the provisions of this Section shall be null and void as to any
casualty which occurs after such notice. If Lessor's or Lessee's
insurance carrier shall make a charge for the incorporation of the
aforesaid waiver of subrogation in its policies, then the party
requesting the waiver shall promptly pay such charge to the other
party upon demand. In the event the party requesting their waiver
fails to pay such charge upon demand, the other party shall be
released of its obligation to supply such waiver.
g. Should Lessee fail to maintain the insurance coverage as set forth
in this Article 30, then Lessee shall be in default hereunder and
shall be deemed to have breached its covenants as set forth
herein.
31. NO OTHER REPRESENTATIONS:
------------------------
No representations or promises shall be binding on the parties hereto
except those representations and promises contained herein or in some
future writing signed by the party making such representation(s) or
promise(s).
32. QUIET ENJOYMENT:
---------------
Lessor covenants that if, and so long as, Lessee pays Fixed Basic Rent,
and any Additional Rent as herein provided, and performs Lessee's
covenants hereof, Lessor shall do nothing to affect Lessee's right to
peaceably and quietly have, hold and enjoy the Premises for the Term
herein mentioned, subject to the provisions of this Lease.
33. INDEMNITY:
---------
Lessee shall defend, indemnify and save harmless Lessor and its agents
against and from; (a) any and all claims (i) arising from (x) the
conduct or management by Lessee, its subtenants, licensees, its or
their employees, agents, contractors or invitees on the Premises or of
any business therein, or (y) any work or thing whatsoever done, or any
condition created (other than by Lessor for Lessor's or Lessee's
account) in or about the Premises during the Term of this Lease, or
during the period of time, if any, prior to the Commencement Date that
Lessee may have been given access to the Premises, (z) any default by
Lessee under the terms, covenants and conditions of this Lease or (ii)
arising from any negligent or otherwise wrongful act or omission of
Lessee or any of its subtenants or licensees or its or their employees,
agents, contractors or invitees, and (b) all costs, expenses and
liabilities including attorneys fees and disbursements incurred in or
in connection with each such claim, action or proceeding brought
thereon. In case any action or proceeding be brought against Lessor by
reason of any such claim, Lessee, upon notice from Lessor, shall resist
and defend such action or proceeding.
21
34. ARTICLE HEADINGS:
----------------
The article headings in this Lease and position of its provisions are
intended for convenience only and shall not be taken into consideration
in any construction or interpretation of this Lease or any of its
provisions.
35. APPLICABILITY TO HEIRS AND ASSIGNS:
----------------------------------
The provisions of this Lease shall apply to, bind and inure to the
benefit of Lessor and Lessee, and their respective heirs, successors,
legal representatives and assigns. It is understood that the term
"Lessor" as used in this Lease means only the owner, a mortgagee in
possession or a term lessee of the Building, so that in the event of
any sale of the Building or of any lease thereof, or if a mortgagee
shall take possession of the Premises, the Lessor herein shall be and
hereby is entirely freed and relieved of all covenants and obligations
of Lessor hereunder accruing thereafter, and it shall be deemed without
further agreement that the purchaser, the term lessee of the Building,
or the mortgagee in possession has assumed and agreed to carry out any
and all covenants and obligations of Lessor hereunder.
36. OUTSIDE PARKING SPACES:
----------------------
Lessee's occupancy of the Premises shall include the use of the number
of outside parking spaces as set forth in the Preamble, all of which
will be unassigned. Lessor shall not be responsible for any damage 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. Lessee shall, upon request,
promptly furnish to Lessor the license numbers of the cars operated by
Lessee and its subtenants, licensees, invitees, concessionaires,
officers and employees. If any vehicle of the Lessee, or of any
subtenant, licensee, concessionaire, or of their respective officers,
agents or employees, is parked in any part of the Common Facilities
other than the employee parking area(s) designated therefor by Lessor,
Lessee shall pay to Lessor such penalty as may be fixed by Lessor from
time to time. All amounts due under the provisions of this Article 36
shall be deemed to be Additional Rent.
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY:
---------------------------------------
Lessor shall not be liable for any loss of property from any cause
whatsoever, including but not limited to theft or burglary from the
Premises, and any such loss arising from the negligence of Lessor, its
agents, servants or invitees, or from defects, errors or omissions in
the construction or design of the Premises and/or the Building,
including the structural and non-structural portions thereof, and
Lessee covenants and agrees to make no claim for any such loss at any
time.
38. PARTIAL INVALIDITY:
------------------
If any of the provisions of this Lease, or the application thereof to
any person or circumstances, shall to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
provision or provisions to persons or circumstances other than those as
to whom or which it is held invalid or unenforceable, shall not be
affected thereby, and every provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
39. LESSEE'S BROKER:
---------------
Lessee and Lessor each represents and warrants to the other that
Lessee's broker, as defined in the Preamble is the sole broker with
whom it has negotiated in bringing about this Lease and Lessee and
Lessor each agrees to indemnify and hold the other and Lessor's
mortgagee(s) harmless from any and all claims of other brokers claiming
to have dealt with it, and expenses in connection therewith arising out
of or in connection with the negotiation of or the entering into this
22
Lease by Lessor and Lessee. In no event shall Lessor's mortgagee(s)
have any obligation to any broker involved in this transaction. In the
event that no broker was involved as aforesaid, then Lessee represents
and warrants to the Lessor that no broker brought about this
transaction, and Lessee agrees to indemnify and hold Lessor harmless
from any and all claims of any broker arising out of or in connection
with the negotiations of, or entering into of, this Lease by Lessee and
Lessor.*
40. PERSONAL LIABILITY:
------------------
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed, such agreement being a primary
consideration for the execution of this Lease by Lessor, that there
shall be absolutely no personal liability on the part of Lessor, its
constituent members (to include but not be limited to, officers,
directors, partners and trustees) their respective successors, assigns
or any mortgagee in possession (for the purposes of this Article,
collectively referred to as "Lessor"), with respect to any of the
terms, covenants and conditions of this Lease, and that Lessee shall
look solely to the equity of Lessor in the Building for the
satisfaction of each and every remedy of Lessee in the event of any
breach by Lessor of any of the terms, covenants and conditions of this
Lease to be performed by Lessor, such exculpation of liability to be
absolute and without any exceptions whatsoever.
41. NO OPTION:
---------
The submission of this Lease Agreement for examination does not
constitute a reservation of, or option for, the Premises, and this
Lease Agreement becomes effective as a Lease Agreement only upon
execution and delivery thereof by Lessor and Lessee.
42. DEFINITIONS:
-----------
a. AFFILIATE -- Affiliate shall mean any corporation related to
Lessee as a parent, subsidiary or brother-sister corporation so
that such corporation and such party and other corporations
constitute a controlled group as determined under Section 1563 of
the Internal Revenue Code of 1986, as amended and as elaborated by
the Treasury Regulations promulgated thereunder or any business
entity in which Lessee has more than a fifty percent (50%)
interest.
b. COMMON FACILITIES -- Common Facilities shall mean the non-assigned
parking areas; lobby; elevator(s); fire stairs; public hallways;
public lavatories; all other general Building facilities that
service all Building tenants; air conditioning rooms; fan rooms;
janitors' closets; electrical closets; telephone closets; elevator
shafts and machine rooms; flues; stacks; pipe shafts and vertical
ducts with their enclosing walls. Lessor may at any time close
temporarily any Common Facilities to make repairs or changes
therein or to effect construction, repairs or changes within the
Building, or to discourage non-tenant parking, and may do such
other acts in and to the Common Facilities as in its judgement may
be desirable to improve the convenience thereof, but shall always
in connection therewith, endeavor to minimize any inconvenience to
Lessee.
c. FORCE MAJEURE -- Force Majeure shall mean and include those
situations beyond Lessor's reasonable control, including by way of
example and not by way of limitation, acts of God; accidents;
repairs; strikes; shortages of labor, supplies or materials;
inclement weather; or, where applicable, the passage of time while
waiting for an adjustment or insurance proceeds. Any time limits
required to be met by either party hereunder, whether specifically
made subject to Force Majeure or not, except those related to the
payment of Fixed Basic Rent or Additional Rent, shall, unless
specifically stated to the contrary elsewhere in this Lease, be
automatically extended by the number of days by which any
performance called for is delayed due to Force Majeure.
d. LESSEE'S PERCENTAGE -- The parties agree that Lessee's Percentage,
as defined in the Preamble, reflects and will be continually
adjusted to reflect the ratio of the gross square feet of the area
rented to Lessee (including an allocable share of all Common
23
Facilities) [the numerator] as compared with the total number of
gross square feet of the entire Building (or additional buildings
that may be constructed within the Office Building Area) [the
denominator] measured outside wall to outside wall, but excluding
therefrom any storage areas. Lessor shall have the right to make
changes or revisions in the Common Facilities of the Building so
as to provide additional leasing area. Lessor shall also have the
right to construct additional buildings in the Office Building
Area for such purposes as Lessor may deem appropriate, and
subdivide the lands for that purpose if necessary, and upon so
doing, the Office Building Area shall become the subdivided lot on
which the Building in which the Premises is located. However, if
any service provided for in Article 23(a) or any utility provided
for in Article 23(b) is separately billed or separately metered
within the Building, then the square footage so billed or metered
shall be subtracted from the denominator and the Lessee's
proportionate share for such service and/or utility shall be
separately computed, and the Base Costs for such item shall not
include any charges attributable to said square footage. Lessee
understands that as a result of changes in the layout of the
Common Facilities from time to time occurring due to, by way of
example and not by way of limitation, the rearrangement of
corridors, the aggregate of all Building tenant proportionate
shares may be equal to, less than or greater than one hundred
percent (100%).
43. LEASE COMMENCEMENT:
------------------
Notwithstanding anything contained herein to the contrary, if Lessor,
for any reason whatsoever, including Lessor's negligence except as
provided for in Article 27(b), cannot deliver possession of the
Premises, as provided for in Article 27(a), to Lessee at the
commencement of the agreed Term as set forth in Article 2, this Lease
shall not be void or voidable, nor shall Lessor be liable to Lessee for
any loss or damage resulting therefrom, but in that event, the Term
shall be for the full term as specified above to commence from and
after the date Lessor shall have delivered possession of the Premises
to Lessee or from the date Lessor would have delivered possession of
the Premises to Lessee but for Lessee's failure to timely supply to
Lessor such drawings and/or information required by Exhibit C or for
any other reason attributable to Lessee (herein the "Commencement
Date") and to expire midnight of the day immediately preceding Term
anniversary of the Commencement Date, and if requested by Lessor,
Lessor and Lessee shall, ratify and confirm said Commencement and
Expiration Dates by completing and signing Exhibit G attached hereto
and made a part hereof.
Notwithstanding anything hereinabove to the contrary, in the event
Lessor shall not have entered into a agreement with the existing tenant
(Hawk Holdings) on or before June 1, 2002 (the "Outside Date"), for any
reason whatsoever, then, Lessee, as its sole remedy may elect to
terminate this lease, provided that notice of such election shall be
given to Lessor no later than June 10, 2002, TIME BEING OF THE ESSENCE
in the giving of such notice. If Lessee shall so elect, Lessor shall
return any security deposit or moneys paid by Lessee to Lessor on
account of this lease and the parties shall then be released of all
liabilities hereunder, each to the other.*
44. NOTICES:
-------
Any notice by either party to the other shall be in writing and shall
be deemed to have been duly given only if (i) delivered personally or
(ii) sent by registered mail or certified mail return receipt requested
in a postage paid envelope addressed or (iii) sent by nationally
recognized overnight delivery service, if to Lessee, at the above
described Building; if to Lessor, at Lessor's address as set forth
above; or, to either at such other address as Lessee or Lessor,
respectively, may designate in writing. Notice shall be deemed to have
been duly given, if delivered personally, on delivery thereof, if
mailed, upon the tenth (10th) day after the mailing thereof or if sent
by overnight delivery service, the next business day.
45. ACCORD AND SATISFACTION:
-----------------------
No payment by Lessee or receipt by Lessor of a lesser amount than the
rent and additional charges payable hereunder shall be deemed to be
other than a payment on account of the earliest stipulated Fixed Basic
Rent and Additional Rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment for Fixed Basic
24
Rent or Additional Rent be deemed an accord and satisfaction, and
Lessor may accept such check or payment without prejudice to Lessor's
right to recover the balance of such Fixed Basic Rent and Additional
Rent or pursue any other remedy provided herein or by law.
46. EFFECT OF WAIVERS:
-----------------
No failure by Lessor to insist upon the strict performance of any
covenant, agreement, term or condition of this Lease, or to exercise
any right or remedy consequent upon a breach thereof, and no acceptance
of full or partial rent during the continuance of any such breach,
shall constitute a waiver of any such breach or of such covenant,
agreement, term or condition. No consent, or waiver, express or
implied, by Lessor to or of any breach of any covenant, condition or
duty of Lessee shall be construed as a consent or waiver to or of any
other breach of the same or any other covenant, condition or duty,
unless in writing signed by Lessor.
47. LEASE CONDITION:
---------------
Intentionally omitted.
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE:
------------------------------------------
Lessee agrees to give any mortgagees and/or trust deed holders, by
registered mail, a copy of any notice of default served upon Lessor,
provided that, prior to such notice, Lessee has been notified in
writing (by way of notice of assignment of rents and leases or
otherwise) of the address of such mortgagees and/or trust deed holders.
Lessee further agrees that, if Lessor shall have failed to cure such
default within the time provided for in this Lease, then the mortgagees
and/or trust deed holders shall have an additional thirty (30) days
within which to cure such default, or if such default cannot be cured
within that time, then such additional time as may be necessary, if
within such thirty (30) days, any mortgagee and/or trust deed holder
has commenced and is diligently pursuing the remedies necessary to cure
such default (including but not limited to commencement of foreclosure
proceedings if necessary to effect such cure), in which event this
Lease shall not be terminated while such remedies are being so
diligently pursued.
49. LESSOR'S RESERVED RIGHT:
-----------------------
Lessor and Lessee acknowledge that the Premises are in a Building which
is not open to the general public. Access to the Building is restricted
to Lessor, Lessee, their agents, employees and contractors and to their
invited visitors. In the event of a labor dispute including a strike,
picketing, informational or associational activities directed at Lessee
or any other tenant, Lessor reserves the right unilaterally to alter
Lessee's ingress and egress to the Building or make any change in
operating conditions to restrict pedestrian, vehicular or delivery
ingress and egress to a particular location.
50. CORPORATE AUTHORITY:
-------------------
If Lessee is a corporation, Lessee represents and warrants that this
Lease has been duly authorized and approved by the corporation's Board
of Directors. The undersigned officers and representatives of the
corporation represent and warrant that they are officers of the
corporation with authority to execute this Lease on behalf of the
corporation, and within fifteen (15) days of execution hereof, Lessee
will provide Lessor with a corporate resolution confirming the
aforesaid.
51. AFTER-HOURS USE:
---------------
Lessee shall be entitled to make use of said Standard Electric Service
and HVAC beyond the Building Hours, at Lessee's sole cost and expense,
provided Lessee shall notify the Lessor by 3:00 p.m. on the day that
Lessee shall require said overtime use if said overtime use is required
25
on any weekday, and by 3:00 p.m. on Friday for Saturday and/or Sunday
overtime use. It is understood and agreed that Lessee shall pay the sum
of FORTY-FIVE AND 00/100 DOLLARS ($45.00) per hour per zone for
air-conditioning service and THIRTY AND 00/100 DOLLARS ($30.00) per
hour per zone for heating services, plus such additional percentage
increase of the aforesaid hourly sum computed by measuring the
percentage increase between the rate in effect (including fuel
surcharges or adjustments) during the month for which such overtime use
is requested and the Base Rate. The Base Rate for purposes hereof shall
be the average of the rates in effect (including surcharges and/or
adjustments) during Calendar Year 2001.
In no event shall the Lessee pay less than the sum of FORTY-FIVE AND
00/100 DOLLARS ($45.00) per hour per zone for such overtime
air-conditioning service or less than THIRTY AND 00/100 DOLLARS
($30.00) per hour per zone for such overtime heating service.
52. LESSEE'S EXPANSION/RELOCATION:
-----------------------------
The Lessor, in its sole discretion, shall have the right from time to
time, before or after the Commencement Date, to change the location of
the Premises to other space (the "Substituted Leased Premises") within
the Building, subject to the terms and conditions set forth below.
a. The Substituted Leased Premises shall contain a minimum floor area
of approximately the same number of square feet as are contained
in the Premises and shall be comparable to the Premises with the
same level of finishes as the Premises.*
b. If the total square footage comprised by the Substituted Leased
Premises and its attributable Common Facilities exceed the total
of the Premises, the Lessee shall not be required to pay any
increase in the Fixed Basic Rent and Lessee's Percentage shall not
be increased. If, however, such total square footage shall be
less, Lessee's Fixed Basic Rent and Lessee's Percentage shall be
decreased proportionately.
c. The Lessor shall give the Lessee not less than forty-five (45)
days prior notice of Lessor's decision to relocate the Lessee; and
the Lessee agrees that no later than forty-five (45) days from the
date of its receipt of such notice it shall relocate to the
Substituted Leased Premises.
d. The Lessor shall bear and pay for the cost and expense of any such
relocation from the Premises to the Substituted Leased Premises
including, without limitation, printing of new stationary or
business cards if necessitated by such relocation; provided,
however, that the Lessee shall not be entitled to any compensation
for damages for any interference with or interruption of its
business during or resulting from such relocation. The Lessor
shall make reasonable efforts to minimize such interference.
e. In connection with any such relocation, the Lessor shall, at its
own cost and expense, furnish and install in (or, if practicable,
relocate to) the Substituted Leased Premises all walls,
partitions, floors, floor coverings, ceilings, fixtures, wiring
and plumbing, if any, (as distinguished from trade fixtures,
equipment, furniture, furnishings and other personal property
belonging to Lessee) required to be installed by Lessor in the
Premises or comparable in quality to those situated in the
Premises at the time such notice of substitution is given by
Lessor, whichever is applicable.
f. The payments of new monthly minimum rent shall commence on the
three (3) months anniversary of the day Lessor has completed the
physical relocation and installation of permanent improvements in
the Substituted Leased Premises.*
x. Xxxxxx and Lessee shall promptly execute an amendment to this
Lease reciting the relocation of the Premises and any changes in
the monthly Fixed Basic Rent payable hereunder.
53. BUILDING PERMIT:
---------------
26
This Lease is expressly conditioned upon Lessor obtaining a building
permit from the appropriate government official for Lessee's Premises.
Lessor hereby agrees to make application to said government official
within five (5) days following the execution of the construction
drawings for the Premises. As used herein, construction drawings shall
mean the final plans and specifications required pursuant to Article
27(b).
54. MISCELLANEOUS:
-------------
a. This Lease shall not be recorded.
b. This Lease contains the entire agreement between Lessor and Lessee
relating to the leasing of the Demised Premises. Lessee expressly
acknowledges and agrees that Lessor has not made and is not
making, and, in executing and delivering this Lease Lessee is not
relying upon, any warranties, representations, promises or
statements, except to the extent that the same may be expressly
set forth in this Lease.
c. 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 as to whom or which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this
lease shall be valid and enforceable to the fullest extent
permitted by law.
d. This Lease shall be deemed to have been made in Bergen County, and
shall be construed according to, and governed by, the law of the
State of New Jersey .
e. This Lease is submitted to Lessee for signature, with the
understanding that it shall not bind Lessor unless and until it
has been executed by Lessor and delivered to Lessee or Lessee's
attorney or agent.
f. Lessee agrees not to disclose the terms, covenants, conditions or
other facts with respect to this Lease, including, but not limited
to, the Fixed Basic Rent, to any person, corporation, partnership,
association, newspaper, periodical or other entity. This
non-disclosure and confidentiality agreement shall be binding upon
Lessee without limitation as to time, and a breach of this
paragraph shall constitute a material breach under this Lease.
55. OPTION TO EXTEND.
----------------
(a) (i) If the term of this lease shall then be in full force
and effect and Lessee has complied fully with its obligations
hereunder, Lessee shall have the option to extend the term of this
lease for a period of five (5) years (the "Extension Term")
commencing on the day immediately following the Expiration Date,
provided however that Lessee shall give Lessor notice of its
election to extend the term no earlier than eighteen (18) months
prior to the Expiration Date nor later than twelve (12) months
prior to the Expiration Date of the term. TIME SHALL BE OF THE
ESSENCE in connection with the exercise of Lessee's option
pursuant to this Article.
(ii) Notwithstanding anything contained herein to the
contrary, if Lessee exercises its option to extend the term of
this lease, Lessor may elect to cause Lessee to rescind such
notice if Lessor intends to lease the Premises to a tenant in the
Building then leasing more than 10,420 gross rentable square feet
(a "Larger Tenant"). If Lessor intends to lease the Premises to a
Larger Tenant, Lessor shall notify Lessee within thirty (30) days
after Lessor's receipt of Lessee's election to extend the term of
this lease, in which event, Lessee's election shall be deemed
rescinded, Lessee shall no longer have any option to extend the
term of this lease and this lease shall expire on the Expiration
Date. The provisions of this Section 55(a)(ii) shall no longer be
applicable in the event Lessor relocates Lessee to Substituted
Leased Premises (pursuant to Article 52 above) after the three (3)
year anniversary of the Rent Commencement Date.*
(b) Such extension of the term of this lease shall be upon
the same covenants and conditions, as herein set forth except for
27
the Fixed Basic Rent (which shall be determined in the manner set
forth below), and except that Lessee shall have no further right
to extend the term of this lease after the exercise of the single
option described in paragraph (a) of this Section. If Lessee shall
duly give notice of its election to extend the term of this lease,
the Extension Term shall be added to and become a part of the term
of this lease (but shall not be considered a part of the initial
term), and any reference in this lease to the "term of this
lease", the "term hereof", or any similar expression shall be
deemed to include such Extension Term, and, in addition, the term
"Expiration Date" shall thereafter mean the last day of such
Extension Term. Lessor shall have no obligation to perform any
alteration or preparatory or other work in and to the Premises and
Lessee shall continue possession thereof in its "as is" condition.
(c) If Lessee exercises its option for the Extension Term,
the Fixed Basic Rent during the Extension Term shall be the fair
market rent for the Premises, as hereinafter defined.
(d) Lessor and Lessee shall use their best efforts, within 30
days after Lessor receives Lessee's notice of its election to
extend the term of this lease for the Extension Term ("Negotiation
Period"), to agree upon the Fixed Basic Rent to be paid by Lessee
during the Extension Term. If Lessor and Lessee shall agree upon
the Fixed Basic Rent for the Extension Term, the parties shall
promptly execute an amendment to this lease stating the Fixed
Basic Rent for the Extension Term.
(e) If the parties are unable to agree on the Fixed Basic
Rent for the Extension Term during the Negotiation Period, then
within 15 days after notice from the other party, given after
expiration of the Negotiation Period, each party, at its cost and
upon notice to the other party, shall appoint a person to act as
an appraiser hereunder, to determine the fair market rent for the
premises for the Extension Term. Each such person shall be a real
estate broker or appraiser with at least ten years' active
commercial real estate appraisal or brokerage experience
(involving the leasing of office space as agent for both landlords
and tenants) in Bergen County. If a party does not appoint a
person to act as an appraiser within said 15 day period, the
person appointed by the other party shall be the sole appraiser
and shall determine the aforesaid fair market rent. Each notice
containing the name of a person to act as appraiser shall contain
also the person's address. Before proceeding to establish the fair
market rent, the appraisers shall subscribe and swear to an oath
fairly and impartially to determine such rent.
If the two appraisers are appointed by the parties as stated
in the immediately preceding paragraph, they shall meet promptly
and attempt to determine the fair market rent. If they are unable
to agree within 45 days after the appointment of the second
appraiser, they shall attempt to select a third person meeting the
qualifications stated in the immediately preceding paragraph
within 15 days after the last day the two appraisers are given to
determine the fair market rent. If they are unable to agree on the
third person to act as appraiser within said 15 day period, the
third person shall be appointed by the American Arbitration
Association, upon the application of Lessor or Lessee to the
office of the Association nearest the Building. The person
appointed to act as appraiser by the Association shall be required
to meet the qualifications stated in the immediately preceding
paragraph. Each of the parties shall bear 50% of the cost of
appointing the third person and of paying the third person's fees.
The third person, however selected, shall be required to take an
oath similar to that described above.
The three appraisers shall meet and determine the fair market
rent. A decision in which two of the three appraisers concur shall
be binding and conclusive upon the parties. In deciding the
dispute, the appraisers shall act in accordance with the rules
then in force of the American Arbitration Association, subject
however, to such limitations as may be placed on them by the
provisions of this lease.
Notwithstanding the foregoing, in no event shall the Fixed
Basic Rent during the Extension Term be less than the Fixed Basic
Rent during the last year of the initial term of this lease.
(f) After the fair market rent for the Extension Term has
been determined by the appraiser or appraisers and the appraiser
28
or appraisers shall have notified the parties, at the request of
either party, both parties shall execute and deliver to each other
an amendment of this lease stating the Fixed Basic Rent for the
Extension Term.
(g) If the Fixed Basic Rent for the Extension Term has not
been agreed to or established prior to the commencement of the
Extension Term, then Lessee shall pay to Lessor an Fixed rent
("Temporary Rent") which Temporary Rent shall be equal to 200% of
the Fixed Basic Rent payable by Lessee for the last year of the
initial term. Thereafter, if the parties shall agree upon a Fixed
Basic Rent, or the Fixed Basic Rent shall be established upon the
determination of the fair market rent by the appraiser or
appraisers, at a rate at variance with the Temporary Rent (i) if
such Fixed Basic Rent is greater than the Temporary Rent, Lessee
shall promptly pay to Lessor the difference between the Fixed
Basic Rent determined by agreement or the appraisal process and
the Temporary Rent, or (ii) if such Fixed Basic Rent is less than
the Temporary Rent, Lessor shall credit to Lessee's subsequent
monthly installments of Fixed Basic Rent the difference between
the Temporary Rent and the Fixed Basic Rent determined by
agreement or the appraisal process.
(h) In describing the fair market rent during the Extension
Term, the appraiser or appraisers shall be required to take into
account the rentals at which leases are then being concluded (as
of the last day of the initial term) (for 5 year leases without
renewal options with the lessor and lessee each acting prudently,
with knowledge and for self-interest, and assuming that neither is
under undue duress) for comparable space in the Building and in
comparable office buildings in the County of Bergen.
(i) The option granted to Lessee under this Article 55 may be
exercised only by Lessee, its affiliates, permitted successors and
assigns, and not by any subLessee or any successor to the interest
of Lessee by reason of any action under the Bankruptcy Code, or by
any public officer, custodian, receiver, United States Trustee,
trustee or liquidator of Lessee or substantially all of Lessee's
property. Lessee shall have no right to exercise this option
subsequent to the date Lessor shall have the right to give the
notice of termination referred to in Article 13 unless Lessee
cures the default within the applicable grace period.
Notwithstanding the foregoing, Lessee shall have no right to
extend the term if, at the time it gives notice of its election,
Lessee shall not be in occupancy of substantially all of the
Premises.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under the Lease or this Agreement or make any claim that the Lease or
this Agreement is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses, notarizations, or
other similar requirements, and each party hereby waives the right to assert any
such defense or make any claim of invalidity or unenforceability due to any of
the foregoing.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
LESSOR: LESSEE:
300 XXXX REALTY ASSOCIATES L.L.C. PAR PHARMACEUTICAL, INC.
By: Xxxx-Xxxx Realty, L.P.
Member
By: Xxxx-Xxxx Realty Corporation,
General Partner
By: Xxxxxxx X. Xxxxxxxx By: Xxxxxx X'Xxxxxx
------------------- ---------------
Xxxxxxx X. Xxxxxxxx Name: Xxxxxx X'Xxxxxx
Executive Vice President Title:VP-CFO
29
EXHIBIT A
---------
LOCATION OF PREMISES
Exhibit A - Page 1
EXHIBIT A-1
-----------
OFFICE BUILDING AREA
Being known and designated as Lot 3.3 in Block 301 as shown on Final Subdivision
Plat entitled: "Tice Campus, Borough of Woodcliff Lake, Bergen County, State of
New Jersey" prepared by Xxxxx X. Xxxxxx, P.E., L.S. dated June 15, 1978 and
filed in the Bergen County Clerk's Office on October 20, 1978 as Map No. 7683;
said parcel being more particularly described as follows:
Beginning at a point in the northerly line of Xxxx Boulevard as shown on the
above mentioned plat, where same is intersected by the dividing line between
Lots 3.2 and 3.3 in Block 3.01. Said beginning point being further describ3ed as
the terminus of the following courses and distances form a concrete monument set
at the intersection of the northerly line of Xxxx Boulevard with the westerly
line of Chestnut Ridge Road, said courses being:
a) North 58 degrees 30 minutes 28 seconds West, 38.21 feet to a point of
curvature, thence;
b) Southwesterly on a curve to the right, said curve having a radius of 80.00
feet, a central angle of 77 degrees 07 minutes 17 seconds, an arc length of
107.68 feet to a point of tangency in the northerly line of Xxxx Boulevard,
thence;
c) North 74 degrees 09 minutes 35 seconds West 95.81 feet to a point of
curvature, thence;
d) Southwesterly on a curve to the right, said curve having a radius of 990.00
feet, a central angle of 09 degrees 11 minutes 58 seconds an arc length of
158.95 feet to a point of tangency in the northerly line of Xxxx Boulevard,
thence;
e) North 61 degrees 20 minutes 10 seconds West 1724.56 feet to the point and
place of Beginning and running thence;
1) North 67 degrees 20 minutes 10 seconds West 148.16 feet to a point of
curvature; thence
2) Northwesterly on a curve to the right, said curve having a radius of
60.00 feet, a central angle of 41 degrees 24 minutes 35 seconds an arc
length of 43.36 feet to a point of reverse curvature; thence
3) On a curve to the left, said curve having a radius of 60.00 feet, a
central angle of 200 degrees 14 minutes 58 seconds an arc length of
209.70 feet to a point; thence
4) South 37 degrees 14 minutes 11 seconds West 808,.84 feet to a point;
thence
5) North 48 degrees 51 minutes 52 seconds West 406.27 feet to a point;
thence
6) North 38 degrees 30 minutes 56 seconds East 81.86 feet to a concrete
monument; thence
7) North 26 degrees 37 minutes 32 seconds East 1141.62 feet to a point;
thence
8) South 60 degrees 01 minutes 58 seconds East 72.27 feet to a point;
thence
9) North 30 degrees 10 minutes 28 seconds East 221.88 feet to a point;
thence
10) South 59 degrees 49 minutes 32 seconds East 371.63 feet to a point;
thence
11) South 66 degrees 29 minutes 02 seconds East 72.65 feet to a point;
thence
12) North 74 degrees 35 minutes 18 seconds East 110.22 feet to a point;
thence
13) South 66 degrees 21 minutes 42 seconds East 132.99 feet to a point;
thence
14) South 24 degrees 00 minutes 10 second West 731.15 feet to the point and
place of Beginning.
Exhibit A-1 - Page 1
EXHIBIT B
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS: The sidewalks, entrance, passages, courts,
elevators, vestibules, stairways, corridors and public parts of the Building
shall not be obstructed or encumbered by Lessee or used by Lessee for any
purpose other than ingress and egress. If the Premises are situated on the
ground floor with direct access to the street, then Lessor shall, at
Lessor's expense, keep the sidewalks and curbs directly in front of the
Premises clean and free from ice, snow and refuse.
2. WINDOWS: Windows in the Premises shall not be covered or obstructed by
Lessee. No bottles, parcels or other articles shall be placed on the
windowsills, in the halls, or in any other part of the Building other than
the Premises. No article shall be thrown out of the doors or windows of the
Premises.
3. PROJECTIONS FROM BUILDING: No awnings, air-conditioning units, or other
fixtures shall be attached to the outside walls or the window xxxxx of the
Building or otherwise affixed so as to project from the Building, without
prior written consent of Lessor.
4. SIGNS: No sign or lettering shall be affixed by Lessee to any part of the
outside of the Premises, or any part of the inside of the Premises so as to
be clearly visible from the outside of the Premises, without the prior
written consent of Lessor. However, Lessee shall have the right to place its
name on any door leading into the Premises the size, color and style thereof
to be subject to the Lessor's approval. Lessee shall not have the right to
have additional names placed on the Building directory without Lessor's
prior written consent.
5. FLOOR COVERING: Lessee shall not lay linoleum or other similar floor
covering so that the same shall come in direct contact with the floor of the
Premises. If linoleum or other similar floor covering is desired to be used,
an interlining of builder's deadening felt shall first be fixed to the floor
by a paste or other material that may easily be removed with water, the use
of cement or other similar adhesive material being expressly prohibited.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING: Lessee shall not make, or permit to
be made, any unseemly or disturbing noises or odors and shall not interfere
with other tenants or those having business with them. Lessee will keep all
mechanical apparatus in the Premises free of vibration and noise which may
be transmitted beyond the limits of the Premises.
7. LOCK KEYS: No additional locks or bolts of any kind shall be placed on any
of the doors or windows by Lessee. Lessee shall, on the termination of
Lessee's tenancy, deliver to Lessor all keys to any space within the
Building either furnished to or otherwise procured by Lessee, and in the
event of the loss of any keys furnished, Lessee shall pay to Lessor the cost
thereof. Lessee, before closing and leaving the Premises, shall ensure that
all windows are closed and entrance doors locked. Nothing in this Paragraph
7 shall be deemed to prohibit Lessee from installing a burglar alarm within
the Premises, provided: (1) Lessee obtains Lessor's consent which will not
be unreasonably withheld or delayed; (2) Lessee supplies Lessor with copies
of the plans and specifications of the system; (3) such installation shall
not damage the Building; and (4) all costs of installation shall be borne
solely by Lessee.
8. CONTRACTORS: No contract of any kind with any supplier of towels, water,
toilet articles, waxing, rug shampooing, venetian blind washing, furniture
polishing, lamp servicing, cleaning of electrical fixtures, removal of waste
paper, rubbish, garbage, or other like service shall be entered into by
Lessee, nor shall any machine of any kind be installed in the Building or
the Office Building Area without the prior written consent of the Lessor.
Lessee shall not employ any persons other than Lessor's janitors for the
purpose of cleaning the Premises without prior written consent of Lessor.
Lessor shall not be responsible to Lessee for any loss of property from the
Premises however occurring, or for any damage to the effects of Lessee by
such janitors or any of its employees, or by any other person or any other
cause.
9. PROHIBITED ON PREMISES: Lessee 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
Exhibit B - Page 1
Lessor, except the storage of usual supplies and inventory to be used by
Lessee in the conduct of his business, permit the Premises to be used for
gambling, make any unusual noises in the Building, permit to be played
musical instrument on the Premises, permit any radio to be played, or
television, recorded or wired music in such loud manner as to disturb or
annoy other tenants, or permit any unusual odors to be produced on the
Premises. Lessee shall not permit any portion of the Premises to be occupied
as an office for a public stenographer or typewriter, or for the storage,
manufacture, or sale of intoxicating beverages, narcotics, tobacco in any
form or as a xxxxxx or manicure shop. Canvassing, soliciting and peddling in
the Building and the Office Building Area are prohibited and Lessee shall
cooperate to prevent the same. No bicycles, vehicles or animals of any kind
shall be brought into or kept in or about the Premises.
10. PLUMBING, ELECTRIC AND TELEPHONE WORK: Plumbing facilities shall not be used
for any purpose other than those for which they were constructed; and no
sweepings, rubbish, ashes, newspaper or other substances of any kind shall
be thrown into them. Waste and excessive or unusual amounts of electricity
or water is prohibited. When electric wiring of any kind is introduced, it
must be connected as directed by Lessor, and no stringing or cutting of
wires will be allowed, except by prior written consent of Lessor, and shall
be done by contractors approved by Lessor. The number and locations of
telephones, telegraph instruments, electrical appliances, call boxes, etc.
shall be subject to Lessor's approval.
11. MOVEMENT OF FURNITURE, FREIGHT OR BULKY MATTER: The carrying in or out of
freight, furniture or bulky matter of any description must take place during
such hours as Lessor may from time to time reasonably determine and only
after advance notice to the superintendent of the Building. The persons
employed by Lessee for such work must be reasonably acceptable to the
Lessor. Lessee may, subject to these provisions, move freight, furniture,
bulky matter, and other material into or out of the Premises on Saturdays
between the hours of 9:00 a.m. and 1:00 p.m., provided Lessee pays
additional costs, if any, incurred by Lessor for elevator operators or
security guards, and for any other expenses occasioned by such activity of
Lessee. If, at least three (3) days prior to such activity, Lessor requests
that Lessee deposit with Lessor, as security of Lessee's obligations to pay
such additional costs, a sum of which Lessor reasonably estimates to be the
amount of such additional cost, the Lessee shall deposit such sum with
Lessor as security of such cost. There shall not be used in the Building or
Premises, either by Lessee or by others in the delivery or receipt of
merchandise, any hand trucks except those equipped with rubber tires and
side guards, and no hand trucks will be allowed in the elevators without the
consent of the superintendent of the Building.
12. SAFES AND OTHER HEAVY EQUIPMENT: Lessor reserves the right to prescribe the
weight and position of all safes and other heavy equipment so as to
distribute properly the weight thereof and to prevent any unsafe condition
from arising.
13. ADVERTISING: Lessor shall have the right to prohibit any advertising by
Lessee which in Lessor's reasonable opinion tends to impair the reputation
of the Building or its desirability as a building for offices, and upon
written notice from Lessor, Lessee shall refrain from or discontinue such
advertising.
14. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER TENANTS: Lessor shall not be
responsible to Lessee for non-observance or violation of any of these rules
and regulations by any other tenant.
15. AFTER HOURS USE: Lessor reserves the right to exclude from the Building
between the hours of 6:00 p.m. and 8:00 a.m. and at all hours on Saturdays,
Sundays and Building Holidays, all persons who do not present a pass to the
Building signed by the Lessee. Each Lessee shall be responsible for all
persons for whom such a pass is issued and shall be liable to the Lessor for
the acts of such persons.
16. PARKING: Lessee and its employees shall park their cars only in those
portions of the parking area designated by Lessor.
17. Lessor hereby reserves to itself any and all rights not granted to Lessee
hereunder, including, but not limited to, the following rights which are
reserved to Lessor for its purposes in operating the Building:
Exhibit B - Page 2
a) the exclusive right to the use of the name of the Building for all
purposes, except that Lessee may use the name as its business address
and for no other purposes; and
b) the right to change the name or address of the Building, without
incurring any liability to Lessee for doing so; and
c) the right to install and maintain a sign on the exterior of the
Building; and
d) the exclusive right to use or dispose of the use of the roof of the
Building; and
e) the right to limit the space on the directory of the Building to be
allotted to Lessee; and
f) the right to grant to anyone the right to conduct any particular
business or undertaking in the Building.
18. The Lessee shall be responsible for initiating, maintaining and supervising
all health and safety precautions and/or programs required by Law in
connection with the Lessee's use and occupancy of the Premises.
19. The Lessee shall not store, introduce or otherwise permit any material known
to be hazardous within the Premises. Any material within the Premises which
is determined to be hazardous shall be removed and properly disposed of by
the Lessee at the Lessee's sole expense.
-- END --
Exhibit B - Page 3
EXHIBIT C
---------
NOTES
RE: Workletter Agreement for office space on the second floor at 000 Xxxx
Xxxxxxxxx, Xxxxxxxxx Lake, New Jersey.
, 2002
LESSEE:
PAR PHARMACEUTICAL, INC.
You ("Lessee") and we ("Lessor") are executing simultaneously with this
Workletter Agreement a written lease ("Lease"), covering the space referred to
above, as more particularly described in the Lease ("Premises").
To induce Lessee to enter into the Lease (which is hereby incorporated by
reference) and in consideration of the covenants hereinafter contained, Lessor
and Lessee mutually agree as follows:
1. Lessee shall have its architect prepare the following architectural and
mechanical drawings and specifications based upon the sketch layout supplied
to Lessor by Lessee, attached hereto and made a part hereof, upon full
execution of this Lease.
a. Architectural drawings and specifications for Lessee's partition layout,
reflected ceiling, placement of electrical outlets and other
installations for the work to be done by Lessor.
b. Mechanical plans and specifications where necessary for installation of
air conditioning systems, ductwork and heating.
All such plans and specifications are expressly subject to Lessor's
written approval, which Lessor covenants it will not unreasonably
withhold.
2. Upon approval of the plans by Lessor, Lessor shall file said plans with the
appropriate governmental agencies.
3. Lessor agrees, at its expense and without charge to Lessee (unless otherwise
provided), to do the work in the Premises as shown on the plans attached
hereto and described on the "Description of Materials" schedule attached
hereto which shall hereinafter be referred to as "The Work". "Building
Standard" shall mean the type and grade of material, equipment and/or device
designated by Lessor as standard for the Building. All items are Building
Standard unless otherwise noted. The provisions of Article 6 of the Lease
shall apply to any alterations made to the Premises after the initial work
to be performed herein.
4. Intentionally omitted.*
5. All low partitioning, workstation modules, bank screen partitions and
prefabricated partition systems shall be furnished and installed by Lessee.
6. The installation or wiring of telephone and computer (data) outlets is not
part of The Work. Lessee shall bear the responsibility to provide its own
telephone and data systems at Lessee's sole cost and expense. Upon
expiration or sooner termination of the Lease, Lessee shall remove all
telephone and data equipment and wiring from the Premises and the Building
risers prior to vacation of same.
7. Changes in The Work, if necessary or requested by the Lessee, shall be
accomplished after the execution of the Lease and this Workletter Agreement,
and without invalidating any part of the Lease or Workletter Agreement, by
written agreement between Lessor and Lessee hereinafter referred to as a
Change Order. Each Change Order shall be prepared by Lessor and signed by
both Lessee and Lessor stating their agreement upon all of the following:
a. The scope of the change in The Work; and
Exhibit C - Page 1
b. The cost of the change; and
c. Manner in which the cost will be paid or credited; and
d. The estimated extent of any adjustment to the Commencement Date as a
result of the change in The Work.
Each and every Change Order shall be signed by Lessor's and Lessee's
respective construction representatives. In no event shall any Change
Order(s) be permitted without such authorizations. A 10% supervision plus
10% overhead charge will be added to the cost of any Change Order. If Lessee
shall fail to approve any such Change Order within one (1) week, the same
shall be deemed disapproved in all respects by Lessee and Lessor shall not
be authorized to proceed thereon. Any increase in the cost of The Work or
the change in The Work stated in a Change Order which results from Lessee's
failure to timely approve and return said Change Order shall be paid by the
Lessee. Lessee agrees to pay to Lessor the cost of any Change Order promptly
upon receipt of an invoice for same.
8. If Lessee elects to use the architect suggested by Lessor, this architect
becomes the Lessee's agent solely with respect to the plans, specifications
and The Work. If any change is made prior to completion of schematic
drawings and final construction documents which result in a Change Order and
additional costs, such costs shall be the responsibility of the Lessee.
Similarly, any cost savings resulting from such Change Order(s) shall be
credited to the Lessee.
9. Prior to Lessee's occupancy of the Premises, Lessee shall identify and list
any portion of The Work which does not conform to this Workletter Agreement
("Punch List"). The Lessor shall review with the Lessee all of the items so
listed and correct or complete any portion of The Work which fails to
conform to the requirements of this Workletter Agreement.
10. The terms contained in the Lease (which include all exhibits attached
thereto) constitute Lessor's agreement with Lessee with respect to the work
to be performed by Lessor on Lessee's behalf. If the architectural drawings
are in conflict with the terms of the Lease, then the Lease shall be deemed
the controlling document.
11. All materials and installations constructed for the Lessee within the
Premises shall become the property of the Lessor upon installation. No
refund, credit or removal of said items is to be permitted at the
termination of the Lease. Items installed that are not integrated in any
such way with other common building materials do not fall under this
provision (e.g. shelving, furniture, etc.).
12. It is agreed that notwithstanding the date provided in the Lease for the
Commencement Date, the term shall not commence until Lessor has
"substantially completed" all work to be performed by Lessor as hereinbefore
set forth in Paragraph 3 above and as set forth in the Lease; provided,
however, that if Lessor shall be delayed in substantially completing said
work as a result of:
a. Lessee's failure to approve the plans and specifications in accordance
with Paragraph 2 hereof; or
b. Lessee's failure to furnish interior finish specifications, i.e., paint
colors, carpet selection, etc., to Lessor by the fifth (5th) working day
after Lessor has approved the plans and specifications submitted by
Lessee referred to in Paragraph 2 hereof; or
c. Lessee's request for materials, finishes or installations other than
Lessor's Building Standard; or
d. Lessee's changes in The Work; or
e. The performance of a person, firm, partnership or corporation employed
by Lessee and the completion of the said work by said person, firm,
partnership or corporation;
then the Commencement Date of the term of said Lease shall be accelerated by
the number of days of such delay and Lessee's obligation to pay Fixed Basic
Rent and Additional Rent shall commence as of such earlier date.
Exhibit C - Page 2
13. Lessor shall permit Lessee and its agents to enter the Premises prior to the
Commencement Date in order that Lessee may perform through its own union
contractors such other work and decorations as Lessee may desire at the same
time Lessor's contractors are working in the Premises. The foregoing license
to enter prior to the Commencement Date, however, is conditioned upon:
a. Lessee's workmen and mechanics working in harmony and not interfering
with the labor employed by Lessor, Lessor's mechanics or contractors or
by any other Lessee or its mechanics or contractors; and
b. Lessee providing Lessor with evidence of Lessee's contractors and
subcontractors carrying such worker's compensation, general liability,
personal and property insurance as required by law and in amounts no
less than the amounts set forth in Article 30 of the Lease. If at any
time such entry shall cause disharmony or interference therewith, this
license may be withdrawn by Lessor upon forty-eight (48) hours written
notice to Lessee. 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 Fixed Basic Rent and Additional Rent. Lessor shall
not be liable in any way for any injury, loss or damage which may occur
to any of Lessee's decorations or installations so made prior to the
Commencement Date, the same being solely at Lessee's risk.
14. No part of the Premises shall be deemed unavailable for occupancy by the
Lessee, or shall any work which the Lessor is obligated to perform in such
part of the Premises be deemed incomplete for the purpose of any adjustment
of Fixed Basic Rent payable hereunder, solely due to the non-completion of
details of construction, decoration or mechanical adjustments which are
minor in character and the non-completion of which does not materially
interfere with the Lessee's use of such part of the Premises.
15. Lessee is responsible for all costs related to the repairs and maintenance
of any additional or supplemental HVAC systems, appliances and equipment
installed to meet Lessee's specific requirements. Lessee shall purchase a
service contract for this equipment so that the equipment is covered by such
service contract each year of the term of the Lease.
16. If construction is to occur in a space occupied by Lessee's employees,
Lessee shall be liable for all costs associated with a delay if Lessee shall
fail to comply with a submitted construction schedule to relocate personnel,
furniture, or equipment. These costs shall include, but not be limited to
the following:
a. cost of construction workers time wasted; and
b. cost of any overtime work necessary to meet schedule deadlines; and
c. any other costs associated with delays in final completion.
17. This workletter is based on the quantities and specifications listed herein.
Any change to these specifications shall require the recalculation of the
construction costs. Such recalculation shall not negate any other section of
this Lease.
18. With respect to the construction work being conducted in or about the
Premises, each party agrees to be bound by the approval and actions of their
respective construction representatives. Unless changed by written
notification, the parties hereby designate the following individuals as
their respective construction representatives:
FOR LESSOR: _____________________________ FOR LESSEE: _________________________
c/o Xxxx-Xxxx Realty Corporation _________________________
_____________________________ _________________________
_____________________________ _________________________
If the foregoing correctly sets forth our understanding, kindly sign this letter
agreement where indicated.
Exhibit C - Page 3
LESSOR: LESSEE:
300 XXXX REALTY ASSOCIATES L.L.C. PAR PHARMACEUTICAL, INC.
By: Xxxx-Xxxx Realty, L.P.
Member
By: Xxxx-Xxxx Realty Corporation,
General Partner
By: Xxxxxxx X. Xxxxxxxx By: Xxxxxx X'Xxxxxx
----------------------------- ---------------------------
Xxxxxxx X. Xxxxxxxx Name: Xxxxxx X'Xxxxxx
Executive Vice President Title:VP-CFO
Exhibit C - Page 4
EXHIBIT C - 1
-------------
AIR CONDITIONING & HEATING DESIGN STANDARDS
The following are design standards for the building air-conditioning system for
cooling and heating in the air in the subject building:
1. During the normal heating season to maintain an average indoor dry bulb
temperature of not less than 70 degrees F (21 degrees C) or more than 76
degrees (24.4 degrees C) when the outdoor dry bulb temperature is lower than
65 degrees F (18 degrees C) but not lower than 0 degrees F (-13 degrees C).
2. To maintain comfort cooling for an average indoor dry bulb temperature of
not more than 78 degrees F when the outside dry bulb temperature is 95
degrees F (24 degrees C).
3. During the intermediate seasons, when the outside dry bulb temperature is
below 55 degrees (13 degrees C), cooling will be provided by outside air
usage in conjunction with operating of return air, outside air and exhaust
air dampers.
4. To furnish not less than .10 cubic foot of fresh air per minute per square
foot of rentable area, and between .20 and 1.0 cubic feet of total air per
minute, per square foot of rentable occupied space.
5. Lessor will not be responsible for the failure of the air-conditioning
system if such failure results from (i) the occupancy of the Premises with
more than an average of one (1) person for each one hundred (100) usable
square feet of floor area (ii) the installation or operation by Lessee of
machines and appliances, the installed electrical load of which when
combined with the load of all lighting fixtures exceeds five (5) xxxxx per
square foot of floor area and in any manner exceeding the aforementioned
occupancy and electrical load criteria, or (iii) rearrangement of
partitioning after the initial preparation of the Premises. If interference
with normal operation of the air-conditioning system in the Premises
results, necessitating changes in the air conditioning system servicing the
Premises, such changes shall be made by Lessor upon written notice to Lessee
at Lessee's sole cost and expense. Lessee agrees to lower and close window
coverings when necessary because of the sun's position whenever the air
conditioning system is in operation, and Lessee agrees at all times to
cooperate fully with Lessor and to abide by all the Rules and Regulations
attached hereto as well as reasonable rules and regulations which Lessor may
hereafter prescribe involving the air-conditioning system.
-- END --
Exhibit C-1 - Page 1
EXHIBIT D
---------
CLEANING SERVICES
(Five Nights Per Week)
LESSEE'S PREMISES
-----------------
1. Vacuum clean all carpeted areas.
2. Sweep and dust mop all non-carpeted areas. Wet mop whenever necessary.
3. All office furniture such as desks, chairs, files, filing cabinets, etc.
shall be dusted with a clean treated dust cloth whenever necessary and only
if such surfaces are clear of Lessee's personal property including but not
limited to plants.
4. Empty and wash ashtrays.
5. Empty wastepaper baskets and remove waste to the designated areas.
6. All vertical surfaces within arms reach shall be spot cleaned to remove
finger marks and smudges. Baseboard and window xxxxx are to be spot cleaned
whenever necessary.
7. All cleaning of cafeterias, vending areas, kitchen facilities are excluded.
Lessee may make necessary arrangements for same directly with Lessor's
cleaning maintenance company.
8. Cleaning hours shall be Monday through Friday between 5:30 p.m. and 11:00
p.m.
9. No cleaning service is provided on Saturday, Sunday and Building Holidays.
10. Cartons or refuse in excess which can not be placed in wastebaskets will not
be removed. Lessee is responsible to place such unusual refuse in trash
dumpster.
11. Cleaning maintenance company will not remove nor clean tea, office cups or
similar containers. If such liquids are spilled in waste baskets, the waste
baskets will be emptied but not otherwise cleaned. Lessor will not be
responsible for any stained carpet caused from liquids leaking or spilling
from Lessee's wastepaper receptacles.
12. Upon completion of cleaning, all lights will be turned off and doors locked
leaving the Premises in an orderly condition.
13. Glass entrance doors will be cleaned nightly. Interior glass doors or glass
partitions are excluded. Lessee may make arrangements for same with Lessor's
cleaning maintenance company.
COMMON AREAS
------------
1. Vacuum all carpeting in entrance lobbies, outdoor mats and all corridors.
2. Wash glass doors in entrance lobby with a clean damp cloth and dry towel.
3. Clean cigarette urns. Sweep and/or wet mop all resilient tile flooring. Hard
surface floors such as quarry tile, etc., shall be cleaned nightly.
4. Wash, clean and disinfect water fountains.
5. Clean all elevators and stairwells.
6. Lavatories -- Men and Women.
a. Floors in all lavatories shall be wet mopped each evening with a
germicidal detergent to ensure a clean and germ free surface.
b. Wash and polish all mirrors, shelves, bright work including any piping
and toilet seats.
c. Wash and disinfect wash basins and sinks using a germicidal detergent.
d. Wash and disinfect toilet bowls and urinals.
e. Keep lavatory partitions, tiled walls, dispensers and receptacles in a
clean condition using a germicidal detergent when necessary.
f. Empty and sanitize sanitary disposal receptacles.
g. Fill toilet tissue holders, towel dispensers and soap dispensers.
Refills to be supplied by Lessor.
7. Clean all air ventilation grill work in ceilings.
Exhibit D - Page 1
EXHIBIT E
BUILDING HOLIDAYS
BUILDING CLOSED
* NEW YEAR'S DAY *
* MEMORIAL DAY *
* INDEPENDENCE DAY *
* LABOR DAY *
* THANKSGIVING DAY *
* CHRISTMAS DAY *
-- END --
Exhibit E - Page 1
EXHIBIT F
---------
TENANT ESTOPPEL CERTIFICATE
TO: MORTGAGEE and/or its affiliates and/or whom else it may concern:
1. The undersigned is the Lessee (Tenant) under that certain Lease dated ____
by and between __________ as Lessor (Landlord) and _____________ as Lessee,
covering those certain premises commonly known and designated as ____ r.s.f.
on the _____ ( ) floor of _________________________________ ,NJ.
2. The Lease has not been modified, changed, altered or amended in any respect
(except as indicated following this sentence) and is the only Lease or
agreement between the undersigned and the Lessor affecting said premises. If
none, state "none".
3. The undersigned has made no agreements with Lessor or its agents or
employees concerning free rent, partial rent, rebate of rental payments or
any other type of rental concession (except as indicated following this
sentence). If none, state "none".
4. The undersigned has accepted and now occupies the premises, and is and has
been open for business since , 200_. The Lease term began , 200_, and the
rent for said premises has been paid to and including , 200_ in conformity
with this Lease agreement. No rent has been prepaid for more than two (2)
months. The fixed minimum rent being paid as above is $ __________ per
month. If Lessee is not in full possession, whether Lessee has assigned the
Lease, sublet all or any portion of the Premises, or otherwise transferred
any interest in the Lease or the Premises, Lessee agrees to provide a copy
of such assignment, sublease, or transfer upon request.
5. The Lease is not in default and is in full force and effect. As of the date
hereof, the undersigned is entitled to no credit, no free rent and no offset
or deduction in rent.
6. All alterations, improvements, additions, build-outs, or construction
required to be performed under the Lease have been completed in accordance
with the terms of the Workletter attached to Lease as Exhibit C.
7. The Lease does not contain and the undersigned doesn't have any outstanding
options or rights of first refusal to purchase the premises or any part
thereof or the real property of which the premises are a part.
8. No actions, whether voluntary or otherwise, are pending against the
undersigned under the bankruptcy laws of the United States or any State
thereof.
9. There are currently no valid defenses, counterclaims, off-sets, credits,
deductions in rent, or claims against the enforcement of any of the
agreements, terms, or conditions of the Lease.
10. The undersigned acknowledges that all the interest of Lessor in and to the
above-mentioned Lease is being duly assigned to MORTGAGEE or one of its
affiliates hereunder and that pursuant to the terms thereof (i) all rental
payments under said Lease shall continue to be paid to Lessor in accordance
with the terms of the Lease unless and until you are otherwise notified in
writing by MORTGAGEE, or its successor or assigns and (ii) no modification,
revision, or cancellation of the Lease or amendments thereto shall be
effective unless a written consent thereto of such mortgagee is first
obtained.
11. The undersigned is authorized to execute this Tenant Estoppel Certificate on
behalf of the Lessee.
Dated this ________ day of __________________ , 200_
LESSEE:
____________________________________
Name:
Title:
Exhibit F - Page 1
EXHIBIT G
---------
COMMENCEMENT DATE AGREEMENT
1.0 PARTIES
--- -------
THIS AGREEMENT made the _________day of ________, 200_ is by and
between ________________ (hereinafter "Lessor") whose address is c/o
Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx
00000 and _________________________ (hereinafter "Lessee") whose
address is ________________________________________.
2.0 STATEMENT OF FACTS
--- ------------------
2.1 Lessor and Lessee entered into a Lease dated ____________, 200_
(hereinafter "Lease") setting forth the terms of occupancy by
Lessee of approximately ________ rentable square feet on the _____
(___) floor (hereinafter "Premises") at
_____________________________ (hereinafter "Building"); and
3.0 STATEMENT OF TERMS
--- ------------------
NOW, THEREFORE, in consideration of the Premises and the covenants
hereinafter set forth, it is agreed:
3.1 The Commencement Date of the Term of the Lease is ___________ ,
200_ and the Expiration Date thereof is _____________ , 200_ and
the Lease Preamble Articles 6 and 9 shall be deemed modified
accordingly.
3.2 This Agreement is executed by the parties hereto for the purpose of
providing a record of the Commencement and Expiration Dates of the
Lease and the Term of the Lease and Fixed Basic Rent amount shall
be adjusted accordingly.
EXCEPT as modified herein, the Lease covering the Premises shall remain
in full force and effect as if the same were set forth in full herein and Lessor
and Lessee hereby ratify and confirm all the terms and conditions thereof.
THIS AGREEMENT shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives, successors and
permitted assigns.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under the Lease or this Agreement or make any claim that the Lease or
this Agreement is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses, notarizations, or
other similar requirements, and each party hereby waives the right to assert any
such defense or make any claim of invalidity or unenforceability due to any of
the foregoing.
IN WITNESS THEREOF, Lessor and Lessee have hereunto set their hands and
seals the date and year first above written and acknowledge one to the other
they possess the requisite authority to enter into this transaction and to sign
this Agreement.
LESSOR LESSEE
By: ________________________________ By: ____________________________
Xxxxxxx X. Xxxxxxxx Name:
Executive Vice President Title:
Exhibit G - Page 1
EXHIBIT H
---------
SAMPLE FORM - LETTER OF CREDIT
[DATE]
TO:
[Name of Beneficiary]
[Address]
Re: Irrevocable Letter of Credit
Gentlemen:
By order of our client, _________________________, we hereby establish
our irrevocable Letter of Credit No. ______ in your favor for a sum or sums not
to exceed $__________________- (_________________U.S. Dollars) in the aggregate,
effective immediately.
This Letter of Credit shall be payable in immediately available funds
in U.S. Dollars. Funds under this credit are payable to you upon your
presentation to us a sight draft drawn on us in the form annexed hereto. All
drafts must be marked: "Drawn under Letter of Credit No. ____ of [Name of
Issuing Bank].
This Letter of Credit shall expire twelve (12) months from the date
hereof; but is automatically extendable, so that this Letter of Credit shall be
deemed automatically extended, from time to time, without amendment, for one
year from the expiration date hereof and from each and every future expiration
date, unless at least sixty (60) days prior to any expiration date we shall
notify you by registered mail that we elect not to consider this Letter of
Credit renewed for any such additional period. The final expiration date hereof
shall be no EARLIER than [fill in suitable date after expiration of lease].
This Letter of Credit is transferable and may be transferred one or
more times. However, no transfer shall be effective unless advice of such
transfer is received by us in our standard form.
We hereby agree to honor each draft drawn under and in compliance with
this Letter of Credit, if duly presented at our offices at
___________________________or at any other of our offices.
This Letter of Credit is subject to the International Standby Practices
1998, International Chamber of Commerce Publication No. 590.
[Name of Bank]
By:
[Annex Bank's Form of Sight Draft]
Exhibit H - Page 1
