Exhibit 10.20
L E A S E A G R E E M E N T
BY AND BETWEEN:
PRINCETON SOUTH AT LAWRENCEVILLE ONE,
a New Jersey Limited Partnership
"Landlord"
-AND-
PRINCETON VIDEO IMAGE, INC.,
a New Jersey Corporation
"Tenant"
Premises: l5 Princess Road, Suites A-J
Lawrenceville, New Jersey
DATE: July 16, 1997
TABLE OF CONTENTS
PAGE
ARTICLE ONE FUNDAMENTAL LEASE PROVISIONS
AND EXHIBITS l
ARTICLE TWO DEMISED PREMISES 2
ARTICLE THREE COMPLETION OF DEMISED PREMISES 2
ARTICLE FOUR TERM 2
ARTICLE FIVE RENT 4
ARTICLE SIX CONTINGENCIES 6
ARTICLE SEVEN USE 6
ARTICLE EIGHT MAINTENANCE, REPAIRS AND
REPLACEMENTS 8
ARTICLE NINE ALTERATIONS AND IMPROVEMENTS 9
ARTICLE TEN UTILITIES 10
ARTICLE ELEVEN TAXES 11
ARTICLE TWELVE INSURANCE 13
ARTICLE THIRTEEN ASSIGNMENT AND SUBLETTING 16
ARTICLE FOURTEEN DAMAGE OR DESTRUCTION 19
ARTICLE FIFTEEN CONDEMNATION 21
ARTICLE SIXTEEN EASEMENTS 21
ARTICLE SEVENTEEN DEFAULT 22
ARTICLE EIGHTEEN SECURITY DEPOSIT 25
ARTICLE NINETEEN SUBORDINATION AND ATTORNMENT 28
ARTICLE TWENTY NOTICES 29
ARTICLE TWENTY-ONE INDUSTRIAL SITE RECOVERY ACT 29
ARTICLE TWENTY-TWO ESCROWS 30
ARTICLE TWENTY-THREE PARKING 31
ARTICLE TWENTY-FOUR MISCELLANEOUS 31
ARTICLE TWENTY-FIVE TENANT'S OPTION TO RENEW 36
ARTICLE TWENTY-SIX RIGHT OF FIRST OFFER 38
ARTICLE TWENTY-SEVEN SATELLITE DISH 39
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") made as of the 16th day of
July , l997, by and between PRINCETON SOUTH AT LAWRENCEVILLE ONE,
a New Jersey Limited Partnership, ("Landlord") having its principal office at
0 Xxxxxxxx Xxxx Xxxxx, Xxxxxxxxxxxxx, Xxx Xxxxxx 00000 and PRINCETON VIDEO
IMAGE, INC., a New Jersey Corporation, ("Tenant") having its principal office
at 00 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H :
THAT FOR AND IN CONSIDERATION of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE ONE
FUNDAMENTAL LEASE PROVISIONS AND EXHIBITS
Section l.l. Certain Defined Terms
A. "Lease Year" means the period beginning on the commencement date
of the Term hereof and ending twelve (l2) months thereafter, and
each subsequent twelve (l2) month period throughout the Term
hereof, except that if the Term of this Lease shall commence on a
date other than the first day of a calendar month, the first
Lease year shall end twelve (l2) months from the last day of the
month during which the term hereof commences.
B. "Term" means five (5) Lease Years.
C. "Permitted Use" means office, light manufacturing and assembly of
video insertion systems units, research and development and
warehouse and for no other use.
D. "Fixed Rent" means $205,03l.25 per annum payable at the rate of
$l7,085.940 per Rental Period.
E. "Rental Period" means one (l) calendar month.
F. "Landlord" means and includes only the owner of the fee simple
title of the Demised Premises.
G. "Security Deposit" means the sum of $l02,5l5.64 pursuant to
Section l8.l.
Section l.2 Attachments.
The following documents are attached hereto, and such documents, as well
as all drawings and documents prepared pursuant thereto, shall be deemed to
be a part of this Lease:
EXHIBIT A - Plan showing the Lot and the Building being
constructed thereon.
EXHIBIT B - Plan of Leasehold Improvements.
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EXHIBIT C - Exceptions to Section 24.l0, if any.
ARTICLE TWO
DEMISED PREMISES
Section 2.l Demise.
Landlord hereby leases to Tenant, and Tenant hereby takes from Landlord
that certain premises more particularly described in Exhibit A and the
"Improvements", as hereinafter defined, (together the "Demised Premises") for
the Term and upon the covenants and conditions hereinafter specified. The
Demised Premises has an area of l6,875 square feet.
ARTICLE THREE
COMPLETION OF DEMISED PREMISES
Section 3.l. Leasehold Improvements.
Landlord shall improve the Demised Premises with the Leasehold
Improvements described in Exhibit B to this Lease. The Demised Premises
shall be deemed to be ready for occupancy ("Ready for Occupancy") when the
Landlord has substantially completed construction of the Leasehold
Improvements as provided in Exhibit B and has notified Tenant thereof and a
certificate of occupancy, temporary or permanent, being issued by the
municipality. By taking possession of the Demised Premises, Tenant accepts
the Demised Premises as completed. Said Leasehold Improvements are sometimes
hereinafter referred to in this Lease as the "Improvements". Within thirty
(30) days of Tenant taking possession, Tenant shall provide Landlord with a
punch list enumerating cosmetic items requiring repairs by Landlord which
items shall be completed by Landlord as expeditiously as possible.
ARTICLE FOUR
TERM
Section 4.l. Commencement of Term.
The Term of this Lease shall commence on the date on which the Demised
Premises are Ready for Occupancy, which date shall be on or about September
l, l997. In the event Landlord is not able to deliver peaceful possession of
the Demised Premises to Tenant by October 10, 1997, then, and in such event,
Tenant may cancel the within Lease by providing Landlord with written notice
of said cancellation no later than October 13, 1997. In the event of such
cancellation, Landlord shall return any and all monies previously paid by
Tenant to Landlord and, in the event of such cancellation, Tenant shall have
no obligation to reimburse Landlord for certain pre-occupancy services,
plans, drawings and applications pursuant to a letter agreement dated June 6,
l997.
Section 4.2 Early Occupancy.
If Tenant occupies the Demised Premises prior to the commencement date of
the Term of this Lease, Tenant's occupancy of the Demised Premises shall be
subject to all of the terms, covenants and conditions of this Lease. Early
occupancy of the Demised Premises shall not advance the expiration date of
this Lease. Tenant shall pay the Fixed Rent and all other charges specified
in this Lease for the early occupancy period. Notwithstanding the foregoing,
Tenant may, with reasonable prior
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written notice to Landlord, enter the Demised Premises prior to the
Commencement Date of the Term hereof, during the period of time Landlord is
constructing the Leasehold Improvements, for the sole purpose of installing
Tenant's communications, security or computer systems. Said installations by
Tenant shall, in no way, interfere with Landlord's construction of the
Leasehold Improvements. The foregoing shall be subject to Tenant having paid
over to Landlord the entirety of the Security Deposit required hereunder and
Tenant having provided Landlord with evidence of insurance coverage as set
forth in Article Twelve.
Section 4.3. Termination.
This Lease shall terminate at the end of the Term without the necessity
of any notice from either Landlord or Tenant to terminate the same, and
Tenant hereby waives notice to vacate or quit the Demised Premises and agrees
that Landlord shall be entitled to the benefit of all provisions of law
respecting summary recovery of possession of the Demised Premises from a
tenant holding over to the same extent as if statutory notice had been given.
For the period of six (6) months prior to the expiration of the Term,
Landlord shall have the right to display on the exterior of the Demised
Premises the customary signs For Rent" and/or "For Sale" and during such
period Landlord may show the Demised Premises, and all parts thereof, to
prospective tenants or purchasers during normal business hours upon
reasonable notice to the Tenant.
Section 4.4 Holding Over.
A. If Tenant shall be in possession of the Demised Premises at the
end of the Term with the consent or permission of Landlord, the
tenancy under this Lease shall become month-to-month at the then
current Rent, terminable by either party on thirty (30) days'
written notice.
B. During and for any hold-over period in which Tenant occupies the
Demised Premises after expiration of the Term without Landlord's
consent, the monthly Fixed Rent shall be double the monthly Fixed
Rent for the month immediately preceding the hold-over period, and
all other responsibilities and obligations of Tenant hereunder shall
continue in full force and effect.
Section 4.5 Surrender of Demised Premises.
On the last day or sooner termination of the Term, Tenant shall quit and
surrender the Demised Premises broom-clean, in good condition and repair
(reasonable wear and tear and damage by Acts of God, fire extended coverage
and perils excepted), together with all alterations, additions and
improvements which may have been made in, on or to the Demised Premises,
except movable furniture or movable trade fixtures put in at the sole
expense of Tenant; provided, however, that Tenant shall ascertain from
Landlord at least thirty (30) days before the end of the Term, whether
Landlord desires to have the Demised Premises, or any part thereof, restored
to the condition in which it was originally delivered to Tenant and, if
Landlord shall so desire, then Tenant, at its cost and expense, on or before
the end of the Term, shall remove from the Demised Premises all of its
property, together with any alterations, additions and improvements, the
removal of which is requested by Landlord, and any or all of such property
not so removed shall, at Landlord's option, become the exclusive property of
Landlord or be disposed of by Landlord, at Tenant's sole cost and expense,
without further notice to or demand upon Tenant. If
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the Demised Premises be not surrendered as and when aforesaid, Tenant shall
indemnify Landlord against loss or liability resulting from the delay by
Tenant in so surrendering the Demised Premises including, without
limitation, the claims made by any succeeding occupant founded on such
delay. Tenant's obligation under this Section shall survive the expiration
or sooner termination of the Term.
ARTICLE FIVE
RENT
Section 5.l. Fixed Rent.
Tenant shall pay the Fixed Rent to Landlord on or before the first day of
each Rental Period of the Term, as defined in Section 4.l, at Landlord's
principal office or at such other place designated by Landlord in a notice to
Tenant, without any prior demand therefor and without any deduction or
set-off whatsoever. If the Term shall commence on a date other than the
first day of a Rental Period, the Fixed Rent for such fractional Rental
Period shall be prorated on a per diem basis.
Section 5.2. Additional Rent.
Tenant shall pay to Landlord as additional rent under this Lease
("Additional Rent"), prorated on a monthly basis, unless otherwise expressly
provided herein, (i) all amortization of the costs, including financing
costs, for capital expenditures required by a governmental entity for energy
conservation, life safety or other purposes, or made by Landlord to reduce
operating expenses, and (ii) all other charges required to be paid by Tenant
hereunder, including, without limitation, payments for real estate taxes,
insurance, maintenance, repairs and replacements, sewer and stand-by
sprinkler. Tenant's share of all such costs and charges constituting
Additional Rent shall be apportioned as follows: (a) with respect to any
items which pertain solely to the building in which the Demised Premises are
located, Tenant shall pay the same proportion as the number of square feet in
the Demised Premises bears to the total number of square feet in such
building, which proportion is 8l.82%, (b) with respect to all other items,
Tenant shall pay the same proportion as the number of square feet in the
Demised Premises bears to the total number of square feet in all buildings
located on the same Lot as the building in which the Demised Premises are
located, which proportion is l4.22%. At the inception of this Lease, or as
soon thereafter as may be practicable, Landlord shall estimate the amount of
Additional Rent payable by Tenant on a monthly basis and shall submit a
statement to Tenant showing such amount. Thereafter, Tenant shall pay to
Landlord such estimated monthly Additional Rent on or before the first (lst)
day of each month at the same time and in the same manner as above provided
for Fixed Rent, with a suitable proration for any fractional Rental Period.
Landlord shall, within thirty (30) days from the end of the first calendar
year, submit to Tenant a statement certified by Landlord setting forth the
actual expenditures for all items included in such Additional Rent and the
basis for apportionment of Tenant's share of such Additional Rent. If the
estimated Additional Rent paid by Tenant shall be less than Tenant's actual
share of such Additional Rent, then Tenant shall pay Landlord the difference
within thirty (30) days of receipt of such statement by Tenant; and if the
estimated Additional Rent paid by Tenant shall be greater than Tenant's
actual share of such Additional Rent, then Landlord shall credit such excess
payment against the next Additional Rent becoming due. Landlord shall
thereafter submit a similar certified statement at the end of each
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calendar year and shall revise the estimated Additional Rent payments to be
made in the following months as may be required. "Rent" shall mean Fixed
Rent and Additional Rent.
Notwithstanding anything above to the contrary, Tenant shall not be
required to pay the following: (a) any interest due because of late payments
made by Landlord (providing Tenant is current in all of its Rent and
Additional Rent payments); (b) any repairs or replacements to the roof or
structure, excepting if caused by the negligence of Tenant, its employees,
contractors, agents, servants or invitees; and (c) any advertising fees,
realtor commissions or other broker commissions or legal fees, excepting
legal fees and costs incurred by Landlord to enforce the within Lease
Agreement.
Tenant may, upon reasonable notice, inspect Landlord's books and records
at Landlord's principal office. In the event of any dispute between the
parties with respect to said books and records, the parties agree to submit
such dispute for arbitration in accordance with the rules of the American
Arbitration Association. The arbitration proceeding shall be held in
Xxxxxxxx Township, New Jersey.
Section 5.3 Late Charges.
Tenant's failure to pay Rent promptly may cause Landlord to incur
unanticipated costs. Such costs may include, but are not limited to,
processing and accounting charges and late charges which may be imposed on
Landlord by the holder of a mortgage encumbering the Demised Premises.
Therefore, if Landlord does not receive any payment of Rent within five (5)
business days after it becomes due, Tenant shall pay Landlord a late charge
equal to ten (l0%) percent of the overdue amount. The parties agree that
such late charge represents a fair and reasonable estimate of the costs
Landlord will incur by reason of such late payment. Acceptance of such late
charge by Landlord shall in no event constitute a waiver of Tenant's default
with respect to such overdue amount nor prevent Landlord from exercising any
of the other rights and remedies granted in this Lease with respect to Events
of Default.
Section 5.4 Interest on Past Due Rent.
Any installment of Rent owed by Tenant to Landlord which is not paid when
due shall bear interest at the rate of fifteen (l5%) percent per annum from
the date on which it is due until the date on which it is paid, it being
understood that this provision shall not relieve Tenant from payment of Rent
at the time and in the manner herein specified.
Section 5.5. Dishonored Checks.
In the event Tenant issues a check for Rent which is returned to Landlord
as unpaid for any reason, Tenant shall pay Landlord, as Additional Rent, the
sum of Twenty-five ($25.00) Dollars representing a service charge for such
occurrence.
Section 5.6. Accord and Satisfaction.
No payment by Tenant or receipt by Landlord of a lesser amount than the
Rent payment herein stipulated shall be deemed to be other than on account of
the Rent, nor shall any endorsement or statement on any check or any writing
accompanying any check or payment as Rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance of such Rent or pursue any other
remedy
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Landlord may have against Tenant.
Section 5.7. Net Rent.
It is the intent and purpose of Landlord and Tenant that the Rent shall
be absolutely net to Landlord so that this Lease shall yield, net to
Landlord, the Rent specified in this Article Five during the term of this
Lease, and that all costs, expenses and obligations of every kind and nature
whatsoever relating to the Demised Premises which may arise or become due
during the term of this Lease shall be paid by Tenant, except for such
obligations and charges as have otherwise been expressly assumed by Landlord
in accordance with the terms, covenants and conditions of the Lease. Nothing
herein shall require Tenant to undertake obligations in connection with the
sale or mortgaging of the Demised Premises, unless otherwise expressly
provided in accordance with the terms and conditions of this Lease.
ARTICLE SIX
CONTINGENCIES
Section 6.l. Conditions Precedent to Lease and Landlord's Obligations.
This Lease and Landlord's obligations hereunder are hereby made expressly
subject to all of the following:
A. The issuance of all building and occupancy permits and consents
that may be required by all boards, agencies and officials having
jurisdiction.
B. In the event that the construction or completion of the Demised
Premises has been or will be financed with the assistance of the
New Jersey Economic Development Authority or other governmental
agency performing a like function, then this Lease is subject to
the further condition that Tenant agrees to furnish such
information as may be required for approval of Tenant as occupant
of the Demised Premises upon forms and in the manner as required
by such Authority or other agency. In the event that any such
financing shall be refinanced with like assistance during the
term of this Lease, then Tenant likewise agrees to furnish such
information.
ARTICLE SEVEN
USE
Section 7.l. Permitted Use.
Tenant shall use the Demised Premises for the Permitted Use enumerated in
Section l.l only and for no other purpose whatsoever.
Section 7.2. Manner of Use, Rules and Regulations, Waste or Nuisance.
A. Tenant, in its use and occupancy of the Demised Premises, shall
not overload the floors or structure, nor subject the Demised
Premises to any use which could tend to damage any portions
thereof.
B. Tenant shall comply with all present and future laws, statutes
and ordinances and the orders, rules, regulations, directives and
requirements of all federal,
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state, county and municipal departments, bureaus, boards,
agencies, offices, commissions and other subdivisions thereof, or
of any official thereof, or of any governmental, public or
quasi-public authority which may be applicable to the Demised
Premises, and all reasonable Rules and Regulations of Landlord
(as long as said Rules and Regulations are uniformly enforced
throughout the Landlord's Building in which the Demised Premises
is located) pertaining to the Demised Premises, the building in
which and grounds upon which the same are located and all
facilities used in common by Tenant and other tenants of
Landlord. Landlord shall comply, solely with respect to the
repair and replacement of the roof and structural items,
excepting if caused by the negligence of Tenant, its employees,
contractors, agents, servants or invitees, with all present and
future laws, statutes and ordinances and the orders, rules,
regulations, directives and requirements of allfederal, state,
county and municipal departments, bureaus,boards, agencies,
offices, commissions and other subdivisions thereof, or of any
official thereof, or of any governmental, public or quasi-public
authority which may be applicable to the Demised Premises.
C. Tenant shall not suffer, permit or commit any waste, nor allow,
suffer or permit any odors, vapors, steam, vibrations or
undesirable effects to emanate from the Demised Premises, or
otherwise allow, suffer or permit the Demised Premises or any use
thereof to constitute a nuisance. In the event Tenant receives
any claim or notice that any of the aforesaid is occurring, it
shall immediately notify Landlord of such claim or notice. Upon
notice by Landlord to Tenant that any of the aforesaid is
occurring, Tenant agrees forthwith to cease and discontinue the
same and within ten (l0) days thereafter to make such changes in
the Demised Premises and install therein or remove therefrom such
apparatus or equipment as may reasonably be required by Landlord
for the purpose of obviating any such condition; and if any such
condition is not so remedied, Landlord may, at its option, either
(i) enter upon the Demised Premises and cure such condition in
any manner Landlord shall deem necessary and add the cost and
expense incurred by Landlord, together with all damages,
including reasonable attorneys' fees, sustained by Landlord to
the next installment of Fixed Rent due and Tenant agrees to pay
such amount, or (ii) treat such failure on the part of Tenant to
remedy such condition as a default of its obligations under this
Lease. Tenant shall indemnify and save Landlord free and
harmless of and from any and all fines, claims, demands, actions,
proceedings, judgments and damages (including reasonable
attorneys' fees) of any kind or nature by anyone whatsoever,
arising or growing out of any breach or non-performance by Tenant
of its obligations contained in this subsection.
Section 7.3. Signs and Auctions.
A. Any sign placed or erected by Tenant on the Demised Premises,
except in the interior of the Demised Premises, shall contain
only Tenant's name or the name of any affiliate of Tenant
actually occupying the Demised Premises, and no advertising
matter. No such sign shall be erected until Tenant has obtained
Landlord's written
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approval of the location, materials, size, design and
content thereof and any necessary permit therefor, except,
however, no sign shall be erected on the roof of the
Demised Premises. Tenant shall remove any sign upon termination
of this Lease and shall return the Demised Premises to its
condition prior to the placement or erection of said sign.
Tenant shall be permitted to place a sign on the exterior of the
Building, the size, location, design and content thereof shall be
approved by Landlord. No such sign shall be erected by Tenant
until Tenant has obtained Landlord's prior written approval,
which approval shall not be unreasonably withheld, delayed nor
conditioned, except for any necessary municipal approval.
B. Tenant shall not conduct or permit any auctions or sheriff's
sales in, on or at the Demised Premises.
Section 7.4. Inspection by Landlord.
Landlord, its agents and representatives shall have the right to enter
upon the Demised Premises at all reasonable hours upon reasonable notice to
Tenant (and in emergencies at all times): (i) to inspect the same, (ii) to
make repairs, additions or alterations to the Demised Premises and (iii) for
any lawful purpose. If Landlord makes or causes any repairs to be made,
Landlord shall not be responsible to Tenant for any loss or damage that may
occur to its equipment, furniture, personal property or business by reason
thereof. Landlord shall be responsible for the negligence and misconduct of
the Landlord, its employees, contractors and agents and Landlord shall use
reasonable care and efforts to minimize interference with the Tenant's
business. In no event shall Landlord be responsible under this Section or
any other Section of this Lease for any consequential, indirect or punitive
damages.
Section 7.5. Quiet Enjoyment.
Landlord covenants that so long as the Tenant complies with the terms,
covenants and conditions of this Lease, Tenant shall occupy and enjoy the
Demised Premises throughout the Term of this Lease without hindrance,
ejection or molestation by the Landlord or any person acting on behalf of the
Landlord, for the Term, subject to the terms, covenants and conditions of
this Lease.
ARTICLE EIGHT
MAINTENANCE, REPAIRS AND REPLACEMENTS
Section 8.l. Tenant's Obligations.
A. Tenant shall, at Tenant's sole cost and expense, maintain, repair
and replace each and every part of the Demised Premises and keep
and maintain the same in good condition and repair during the
Term. Tenant shall, at Tenant's sole cost and expense, maintain,
repair and replace all driveways, walkways and parking areas and
the lawn and shrubbery and shall keep the exterior of the Demised
Premises in good order, appearance and condition. Tenant shall,
at Tenant's sole cost and expense, keep all driveways, walkways,
sidewalks and parking areas free from ice and snow. All of the
foregoing items which pertain to the interior of the Demised
Premises shall be performed or contracted for by Tenant; and all
of the others of the foregoing items shall be performed or
contracted for by Landlord and apportioned and billed to
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Tenant as above provided in Section 5.2.
B. Notwithstanding the foregoing and excepting for the negligence of
Tenant, its employees, contractors, agents, licensees, servants
and invitees, Landlord shall, at Landlord's sole cost and
expense, maintain, repair and replace the roof and the structural
components of the Demised Premises.
C. Notwithstanding anything to the contrary set forth in the within
Lease Agreement and excepting for the negligence of Tenant or
Tenant's employees, contractors, agents, licensees, servants and
invitees, Landlord shall, at Landlord's sole expense, make all
necessary repairs to the HVAC systems for a period of one (l)
year from the Commencement of the Term.
D. Thereafter and excepting for the negligence of Tenant or Tenant's
employees, contractors, agents, licensees, servants and invitees,
to the extent the replacement of the HVAC systems may be
reasonably expected to have a useful life beyond the Term of this
Lease, Tenant's pro rata share of all costs and expenses of such
HVAC replacements shall include only a portion of the cost of
such replacement as determined by multiplying the cost by a
fraction, the numerator of which is the remaining period of the
leasehold and the denominator of which is the reasonably expected
useful life of the said replacement.
Section 8.2. Landlord's Obligations.
Except for the obligations of Landlord under Article Fourteen (Damage or
Destruction), it is intended by the parties to this Lease that Landlord shall
have no obligation whatsoever to replace, repair and maintain the Demised
Premises nor the equipment therein, whether structural or nonstructural, all
of which obligations are intended to be those of the Tenant under Section
8.l. Tenant expressly waives the benefit of any statute or regulation, now
or hereinafter in effect, which would afford Tenant the right to make repairs
at Landlord's expense or to terminate this Lease because of Landlord's
failure to keep the Demised Premises in good order, condition and repair.
ARTICLE NINE
ALTERATIONS AND IMPROVEMENTS
Section 9.l. Alterations by Tenant.
Tenant shall not make any alterations, renovations, improvements or
other installations ("Alterations") in, on or to the Demised Premises or
any part thereof unless and until Tenant shall have caused plans and
specifications therefor to have been prepared, at Tenant's expense, by an
architect or other duly qualified person and shall have obtained Landlord's
written approval thereof. If such approval is granted, Tenant shall cause
the work described in such plans and specifications to be performed, at its
expense, promptly, efficiently and competently by duly qualified or
licensed persons or entities. In the event that Tenant makes any
Alterations to which Landlord has not granted its approval, then, and in
such case, Tenant hereby warrants, represents and agrees that it shall
remove said Alterations at the expiration or earlier termination of the
Lease Term and restore the Premises to its condition before the unapproved
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Alterations were installed. In the event that Landlord does grant its
approval, then any and all rights with regard to removal or restoration
shall be mutually determined by the parties in conjunction with the initial
approval process.
Section 9.2. Construction Liens.
No Alterations which Landlord permits Tenant to do pursuant to this Lease
shall be deemed to be for the immediate use and benefit of Landlord so that
no construction or other lien shall be allowed against the estate of Landlord
by reason of any consent given by Landlord to Tenant to improve the Demised
Premises. Tenant shall pay promptly all persons furnishing labor or
materials with respect to any Alterations performed by Tenant or its
contractor on or about the Demised Premises. In the event any construction
or other lien or notice of unpaid balance shall at any time be filed against
the Demised Premises by reason of work, labor, services or materials
performed or furnished, or alleged to be performed or furnished, to Tenant or
to anyone holding the Demised Premises through or under Tenant, Tenant shall
forthwith cause the same to be discharged of record or bonded to the
satisfaction of Landlord. If Tenant shall fail to cause such lien or notice
forthwith to be so discharged or bonded after being notified of the filing
thereof, then, in addition to any other right or remedy of Landlord, Landlord
may discharge the same by paying the amount claimed to be due, and the amount
so paid by Landlord including reasonable attorneys' fees incurred by Landlord
in procuring the discharge of such lien or notice, together with interest at
the maximum rate permitted by law, shall be due and payable by Tenant to
Landlord as Additional Rent, upon demand.
Section 9.3. Tenant's Trade Fixtures.
All movable trade fixtures and movable furniture (as distinguished from
Leasehold Improvements) owned by Tenant and installed in the Demised Premises
shall remain the property of Tenant and shall be removable at any time,
including upon the expiration of the Term; provided Tenant shall not at such
time be in default of any terms, conditions, provisions or covenants of this
Lease, and provided further that Tenant shall repair any damage to the
Demised Premises caused by the removal of said fixtures and furniture. If
Tenant is in default, Landlord shall have the benefit of any applicable lien
on Tenant's movable trade fixures and movable furniture (as distinguished
from Leasehold Improvements or inventory, work in process, supplies, or other
goods or property) located in or on the Demised Premises as may be permitted
under any federal or state laws, and in the event such lien is asserted or
filed by Landlord in any manner or by operation of law, Tenant shall have the
responsibilities imposed upon it by any such laws, subject to Tenant's rights
thereunder (including but not limited to the right of replevin).
ARTICLE TEN
UTILITIES
Section l0.l. Landlord's Obligations.
Landlord shall, at its own cost and expense, pay for the construction and
installation of water, sewer, electric and gas to the Demised Premises.
Landlord shall not be liable to Tenant for interruption in or curtailment of
any utility service, nor shall any such interruption or curtailment
constitute a constructive eviction or grounds for rental abatement in whole
or in part hereunder.
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Section l0.2. Tenant's Obligations.
Tenant shall, at its own cost and expense, pay all meter and/or other
service charges for heating, electric and gas. Tenant shall pay as
Additional Rent Tenant's proportionate share as fixed and determined in
Section 5.2, above, of all other metered and/or service charges, including,
but not limited to, water, sewer and stand-by sprinkler charges.
ARTICLE ELEVEN
TAXES
Section ll.l. Tenant to Pay Taxes.
Tenant shall pay in each Tax Year, as defined in Section ll.3, during the
Term, as Additional Rent, its pro rata percentage of all real estate taxes,
ad valorem taxes and assessments, general and special assessments, taxes on
real estate rental receipts, taxes on Landlord's gross receipts, business use
and occupancy taxes, business operations taxes, or any other tax imposed upon
or levied against real estate or upon owners of real estate as such rather
than personalty generally, or payments made to a federal, state or local
government authority by Landlord in lieu of any such taxes or assessments,
payable with respect to or allocable to the entire tax lot of which the
Demised Premises are a part, together with the reasonable cost (including
fees of attorneys, consultants and appraisers) of any negotiation, contest or
appeal pursued by Landlord in an effort to reduce any such tax, assessment or
charge, the same being collectively referred to herein as "Taxes". For the
Tax Year in which the Term commences or terminates, Tenant's liability for
the payment of any Taxes shall be subject to a pro rata adjustment based upon
the number of days of such Tax Year falling within the Term, as set forth in
Section ll.3 below. Notwithstanding the foregoing, Tenant shall not be
responsible for paying any franchise taxes, inheritance taxes, income taxes,
capital stock taxes or interest and penalties (providing Tenant is current in
the payment of all of its Rent and Additional Rent) on any tax. In the event
Landlord receives a refund of any portion of real estate taxes that were
included in the real estate taxes paid by Tenant, then Landlord shall credit
Tenant for its pro rata share of such refunded taxes less Landlord's
reasonable fees and costs.
Section ll.2. Due Dates of Tax Payments.
Said Taxes shall be paid by Tenant, in equal monthly installments, in
such amounts as are reasonably estimated in good faith and billed for each
Tax Year by Landlord at the commencement of the Term and at the beginning of
each successive Tax Year during the Term, each such installment being due on
the first day of each calendar month. Within sixty (60) days after
Landlord's receipt of tax bills for each Tax Year, or such reasonable (in
Landlord's determination) time thereafter, Landlord will certify to Tenant
the amount of Taxes for the Tax Year in question. The Taxes paid or payable
for each Tax Year shall be adjusted between Landlord and Tenant, both
Landlord and Tenant hereby agreeing that Tenant shall pay Landlord or
Landlord shall credit to Tenant's account (or, if such adjustment is at the
end of the Term, pay Tenant), as the case may be, within thirty (30) days of
the aforesaid certification to Tenant, such amount necessary to effect such
adjustment. The failure of Landlord to provide such certification within the
time prescribed above shall not relieve Tenant of its obligations generally
or for the specific Tax Year in which any such failure occurs.
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Section ll.3. "Tax Year" Defined.
The term "Tax Year" shall mean the twelve (l2) full calendar months of
the Term commencing with January lst immediately following the first day of
the Term and shall end December 3lst of such calendar year; thereafter each
Tax Year shall consist of successive period of twelve (l2) calendar months;
provided, however, that the first Tax Year shall commence on the first day of
the Term and terminate immediately following the 3lst day of December, and
the last Tax Year shall terminate on the last day of the Term.
Section ll.4. Taxes on Personal Property.
A. Tenant shall pay or cause to be paid, prior to delinquency, any
and all taxes and assessments levied upon all trade fixtures,
inventories and other personal property placed in and upon the
Demised Premises by Tenant.
B. Should the taxing authorities include in Taxes the value of any
improvements made by Tenant, or include machinery, equipment,
fixtures, inventory or other personal property or assets of
Tenant, then Tenant shall also pay the entire amount of taxes for
such items. Tenant shall pay Landlord the amount of tax for such
items within fifteen (l5) days after Tenant receives a written
statement from Landlord for such taxes.
Section ll.5. Change in Method or Scope of Taxation.
A. If at any time following the execution of this Lease the method
or scope of taxation prevailing at the date of such execution
shall be altered, modified or enlarged so as to cause the method
of taxation to be changed, in whole or in part, so that some
other tax, levy or other imposition is substituted in whole or in
part for the real estate taxes assessed against the Demised
Premises on the date of execution of this Lease, then and in such
event, each and every substituted tax or other imposition shall
be payable and discharged by Tenant in the manner required
pursuant to the law promulgating such tax or other imposition.
If any such substitute tax or other imposition shall be in the
form of an income tax or in the form of any other tax or
imposition which the law promulgating the same shall require
Landlord to pay, then Tenant shall pay Landlord, as Additional
Rent, during the Term of this Lease such amount as shall be
equivalent to the amount by which the real estate taxes have been
decreased or diminished. Such payment shall be made by Tenant to
Landlord at such time or times as Landlord shall be required to
pay such substitute taxes in accordance with law and with the
provisions of this Lease.
B. It being Tenant's obligation to pay its pro rata share of all
real estate taxes assessed against the Demised Premises as
provided elsewhere in this Lease, the parties recognize and
acknowledge that the intent and purpose of this subsection is to
provide against and assure that Landlord does not suffer or
sustain any diminution in the Landlord's gross receipts from the
Rent of the Demised Premises resulting from any change in the
scope or form of taxation which has the effect of shifting any of
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Tenant's obligations under this Lease, or any part thereof, to
Landlord; and Tenant hereby agrees to protect Landlord against
any such diminution in gross receipts as a result thereof.
C. In the event that any dispute shall arise between the parties
with respect to any provisions contained in this Section, then
the parties agree to submit such dispute for arbitration in
accordance with the rules of the American Arbitration
Association. The arbitration proceeding shall be held in
Xxxxxxxx Township, Xxxxxx County, New Jersey.
ARTICLE TWELVE
INSURANCE
Section l2.l. Landlord's Insurance.
Landlord shall take out and maintain during the Term the following
insurance coverages:
A. Insurance providing for payment of replacement costs against
damages by fire, extended coverage perils, and vandalism and
malicious mischief perils including, but not by way of
limitation, boiler and machinery coverage, air conditioning
system and sprinkler damage coverage, in an amount equivalent to
the full replacement value of the Demised Premises.
B. Public liability insurance covering personal injuries and
property damage and naming the Landlord as the insured in the
amount of $5,000,000.00 combined single limit.
C. Insurance payable to and insuring the interest of Landlord and
Landlord's mortgagee against abatement or loss of rent in case of
fire or other casualty required to be insured against pursuant to
Subsection A in an amount at least equal to all Rent (as defined
in Section 5.2) payments to be made by Tenant during one (l) year
next ensuing as reasonably determined by Landlord.
D. Tenant shall not do or suffer to be done, or keep or suffer to be
kept, anything in, on or about the Demised Premises which shall
contravene Landlord's policies of hazard or liability insurance
or which will prevent Landlord from procuring such policies from
companies acceptable to Landlord. If anything done, omitted to
be done or suffered by Tenant to be kept in, upon or about the
Demised Premises shall cause the rate of fire or other insurance
on the Demised Premises to be increased beyond the existing rate
from time to time applicable to the Demised Premises for the use
or uses made thereof, Tenant shall pay, as Additional Rent, the
amount of any such increase upon Landlord's demand,
notwithstanding that which is done or kept by Tenant is otherwise
permitted under this Lease.
Section l2.2. Tenant to Pay Landlord's Insurance Premiums.
Landlord shall obtain all insurance required pursuant to Section l2.l
hereof, and Tenant shall pay its pro rata share of the cost thereof
(including, if and when applicable, any deductible), upon demand, as
Additional Rent. Tenant shall be liable for the
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payment of any deductible amount under Landlord's insurance policies.
Section l2.3. Tenant's Insurance.
Tenant shall take out and maintain during the Term the following
insurance coverages:
A. Public liability insurance, including insurance against assumed
or contractual liability with respect to the Demised Premises, to
afford protection with respect to personal injury or death and
property damage in the amount of $2,000,000.00 combined single
limit for personal injury or death and $500,000.00 for property
damage.
B. All-risk casualty insurance, written at replacement cost value
and with replacement cost endorsement, covering all of Tenant's
personal property in the Demised Premises (including, without
limitation, inventory, trade fixtures, floor coverings, furniture
and other property removable by Tenant under the provisions of
this Lease) and all Leasehold Improvements installed in the
Demised Premises by Tenant.
Section l2.4. Tenant's Contractor's Insurance.
Tenant shall require any contractor of Tenant performing work on the
Demised Premises to take out and keep in force, at no expense to Landlord:
A. Comprehensive general liability insurance, including contractor's
liability coverage, contractual liability coverage, completed
operations coverage, broad form property damage endorsement and
contractor's protective liability coverage, to afford protection
with respect to personal injury or death and property damage in
the amount of $5,000,000.00 combined single limit.
B. Worker's compensation or similar insurance in form and amounts
required by law.
Section l2.5. Policy Requirements.
The company or companies writing any insurance which Tenant is required
to take out and maintain or cause to be taken out or maintained pursuant to
Sections l2.3 and l2.4 as well as the form of such insurance shall at all
times be subject to Landlord's reasonable approval and any such company or
companies shall be licensed to do business in New Jersey. Each policy
evidencing such insurance shall name Landlord and, if required by Landlord,
Landlord's mortgagee, as additional insureds and shall also contain a
provision by which the insurer agrees that such policy shall not be cancelled
or otherwise subject to modification except after ten (l0) days' prior
written notice to Landlord. Each such policy, or a certificate thereof,
shall be deposited with Landlord by Tenant promptly upon commencement of
Tenant's obligation to procure the same. If Tenant shall fail to perform any
of its obligations under Sections l2.3 and l2.4, Landlord may perform the
same and the cost of same shall be deemed Additional Rent and shall be
payable by Tenant upon demand.
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Section l2.6. Waiver of Subrogation.
Each party shall cause each insurance policy obtained by it to provide
that the insurance company waives all right of recovery by way of subrogation
against either party in connection with any damage covered by any policy. If
any insurance policy cannot be obtained with a waiver of subrogation, or is
obtainable only by the payment of an additional premium charge above that
charged by insurance companies issuing policies without waiver of
subrogation, the party undertaking to obtain the insurance shall notify the
other party of this fact. The other party shall have a period of ten (l0)
days after receiving the notice either to place the insurance with a company
that is reasonably satisfactory to the other party and that will carry the
insurance with a waiver of subrogation, or to agree to pay the additional
premium if such a policy is obtainable at additional cost. If the insurance
cannot be obtained or the party in whose favor a waiver of subrogation is
desired refuses to pay the additional premium charge, the other party is
relieved of the obligation to obtain a waiver of subrogation rights with
respect to the particular insurance involved.
Section l2.7. Indemnity by Tenant/Landlord.
A. Tenant agrees to indemnify and save Landlord and Landlord's
agents harmless of and from all losses, costs, liabilities,
claims, damages and expenses, including reasonable attorneys'
fees, penalties and fines, incurred in connection with or arising
from (i) any default by Tenant in the observance or performance
of any of the terms, covenants or conditions of this Lease on
Tenant's part to be observed or performed, or (ii) the use,
occupancy, control or management, or manner of use, occupancy,
control or management of the Demised Premises by Tenant or any
person claiming through or under Tenant, or (iii) any acts,
omissions or negligence of Tenant or contractors, agents,
servants, employees, visitors, invitees or licensees of Tenant or
any such person, in or about the Demised Premises either prior
to, during, or after the expiration of, the Term.
B. Landlord agrees to indemnify and save Tenant and Tenant's agents
harmless of and from all losses, costs, liabilities, claims,
damages and expenses, including reasonable attorneys' fees,
penalties and fines, incurred in connection with Landlord making
repairs or replacements to the roof and structural components of
the Demised Premises; however, specifically and expressly
excluded herefrom are any and all consequential, indirect or
punitive damages and any damages due to the negligence of Tenant,
its employees, contractors, agents, servants, licensees or
invitees.
C. Any party claiming indemnification must provide notice and
opportunity to defend to the indemnifying party.
Section l2.8. Indemnity Payments by Tenant.
Tenant shall pay to Landlord, as Additional Rent, within ten (l0) days
next following receipt by Tenant of bills or statements therefor, sums equal
to all losses, costs, liabilities, claims, damages and expenses referred to
in Section l2.7. Tenant's obligations under this Section shall survive the
termination of the Term.
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Section l2.9. Non-Liability of Landlord.
A. Excepting for negligence or misconduct of Landlord, its
contractors, agents and employees, it is expressly understood and
agreed by and between the parties that Tenant shall assume all
risk of damage and casualty to its property, equipment and
fixtures occurring in or about the Demised Premises, whatever the
cause of such damage or casualty. It is further understood and
agreed that, in any event, Landlord, in its capacity as Landlord
and, if applicable, as builder or general contractor of the
Demised Premises, and Landlord's agent, servants and employees
shall not be liable to Tenant, Tenant's agents, employees,
contractors, visitors, invitees, licensees or any other occupant
of the Demised Premises for any damage or injury to person or
property or for any inconvenience or annoyance to Tenant or any
other occupant of the Demised Premises or injury to or
interruption of Tenant's or such other occupant's business,
arising out of or attributable to (i) the design and construction
of the Demised Premises, (ii) any maintenance, repairs,
replacements, additions, alterations, substitutions and
installations made to the Demised Premises, (iii) the failure of
Landlord or others to perform any such maintenance or to make any
such repairs, replacements, additions, alterations, substitutions
and installations to the Demised Premises or to provide any
utilities or services, (iv) steam, electricity, gas, water,
sewerage, rain, ice or snow, or any leak or flow from or into the
Demised Premises, and (v) any other cause or happening
whatsoever.
B. Notwithstanding anything to the contrary provided in this Lease,
each and every term, covenant, condition and provision of this
Lease is hereby made specifically subject to the provisions of
this Section l2.9. It is expressly further understood and agreed
that there shall be no personal liability whatsoever on the part
of Landlord or any successor in interest of Landlord (or on the
part of the officers, directors and shareholders of any
corporation or the members of any firm, partnership or joint
venture which may be the Landlord or any successor in interest of
the Landlord at any time or from time to time) with respect to
any of the terms, covenants, conditions and provisions of this
Lease, and Tenant shall look solely to the equity of Landlord or
such successor in interest in the fee estate of Landlord in the
Demised Premises for the satisfaction of each and every remedy of
Tenant in the event of any breach by Landlord or by any successor
in interest of any of the terms, covenants, conditions and
provisions of this Lease to be performed by Landlord, such
exculpation of corporate and/or personal liability to be absolute
and without any exception whatsoever.
ARTICLE THIRTEEN
ASSIGNMENT AND SUBLETTING.
Section l3.l. Landlord's Consent Required.
A. Tenant shall not assign this Lease, in whole or in part, nor
sublet all or any part of the Demised Premises nor license
concessions or lease departments therein, without first obtaining
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the written consent of Landlord. This prohibition includes any
subletting or assignment which would otherwise occur by operation
of law, merger, consolidation, reorganization, transfer or other
change of Tenant's corporate or proprietary structure, or any
assignment, subletting to or by a receiver or trustee in any
federal or state bankruptcy, insolvency, or other proceedings.
If Tenant is a corporation or partnership (other than a
corporation, the outstanding voting stock of which is listed on a
"national securities exchange", as defined in the Securities
Exchange Act of l934) and at any time after the execution of this
Lease any part or all of the corporate or partnership shares of
interest shall be transferred by sale, assignment, bequest,
inheritance, operation of law or other disposition (including
such a transfer to or by a receiver or trustee in federal or
state bankruptcy, insolvency, or other proceedings) so as to
result in a change in the control of said corporation or
partnership by the person or persons owning a majority of said
corporate or partnership shares of interest upon the execution of
this Lease, such change in control shall constitute a prohibited
assignment for the purpose of applying the provisions of this
paragraph. Consent by Landlord to any assignment or subletting
shall not constitute a waiver of any obligation of the Tenant to
Landlord (it being understood that Tenant shall remain liable
notwithstanding any assignment or subletting) nor shall consent
by the Landlord constitute a waiver of the requirement for such
consent to any subsequent assignment or subletting.
B. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, ll U. S. C. Section l0l et
seq. (the Bankruptcy Code), any and all monies or other
considerations payable or otherwise to be delivered in connection
with such assignment shall be paid or delivered to Landlord and
shall be and remain the exclusive property of Landlord or of the
estate of Landlord within the meaning of the Bankruptcy Code.
Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or
delivered to Landlord shall be held in trust for the benefit of
Landlord and be promptly paid or delivered to Landlord.
C. Anything contained herein to the contrary notwithstanding, Tenant
may assign this Lease (with Tenant remaining liable and there
being no change in Use of the Premises regardless of such
assignment) or sublet the Premises, or any portion thereof, with
Landlord's consent, which consent shall not be unreasonably
withheld, to any corporation which controls, is controlled by or
is under common control with Tenant, or to any corporation
resulting from a merger or consolidation with Tenant, or to any
person or entity which acquires all the assets of Tenant's
business as a going concern and further providing Tenant is not
in default of any monetary or non-monetary obligation hereunder
and any such assignee assumes all obligations in writing.
D. Notwithstanding the foregoing, Landlord shall not unreasonably
withhold its consent to an assignment
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subject to compliance with all of the conditions enumerated below:
(i) Tenant is in actual occupancy of the Demised Premises;
and
(ii) The operation being conducted in the Premises shall
remain unaffected and any such assignee or other
transferee shall use the Premises only for the
Permitted Use; and
(iii) The assignment must be all of Tenant's leasehold
interests and of the entire Demised Premises, and shall
also transfer to the assignee all of the Tenant's
rights in, and interest under, this Lease including the
security, if any, deposited hereunder; and
(iv) At the time of such assignment this Lease must be in
full force and effect without any breach or default
thereunder on the part of the Tenant; and
(v) The assignee shall assume, by written recordable
instrument, in form and content satisfactory to
Landlord, the due performance of all of Tenant's
obligations under the Lease, including any accrued
obligations at the time of the assignment; and
(vi) Any such assignee shall have had substantial and
adequate business experience and such assignee shall be
financially qualified to carry on such business in the
Premises; and
(vii) A copy of the assignment and the original assumption
agreement (both in form and content satisfactory to the
Landlord) fully executed and acknowledged by the
assignee shall be mailed to the Landlord ten (l0) days
prior to the effective date of such assignment; and
(viii) Such assignment shall be upon and subject to all the
provisions, terms, covenants and conditions of this
Lease and the Tenant (and any assignee) shall continue
to be and remain liable thereunder; and
(ix) Tenant shall reimburse Landlord for Landlord's
attorneys' fees for examination of and/or preparation
of any documents in connection with such assignment;
and
(x) Landlord shall have the right to recapture any surplus
from any assignment and as such rent comes due in
excess of the rent Tenant is obligated to pay Landlord
under this Lease, after Tenant's costs and expenses
incident to such transaction have been deducted from
the amount of such excess payable to Landlord,
including brokerage, attorney, fix-up and moving fees;
and
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(xi) Landlord shall revisit the issue of an increase in
Security Deposit and the necessity of a Guaranty(ies),
which shall be determined in Landlord's reasonable
commercial discretion; and
(xii) Any such assignment agreement shall contain an express
and specific prohibition against any additional
assignment by such assignee, except as otherwise
expressly permitted under this Lease; and
(xiii) No assignment shall be permitted which will be
violative of any exclusive or restrictive rights
granted to any present or future tenant, assignor or
subtenant; and
(xiv) Landlord shall have the option to cancel and terminate
this Lease in connection with any written requests for
an assignment of the Lease. Landlord may exercise said
option in writing within thirty (30) days after its
receipt from Tenant of such request, and such
cancellation and termination shall occur as of the date
set forth in Landlord's notice of exercise of such
option, which shall not be less than sixty (60) days
nor more than ninety (90) days following the receipt of
such notice; and
(xv) Tenant's failure to comply with all the provisions and
conditions of this Section, and all the subsections
hereof, shall, at Landlord's option, render any
purported assignment null and void and of no force and
effect.
ARTICLE FOURTEEN
DAMAGE OR DESTRUCTION
Section l4.l. Excessive Damage or Destruction.
In case of any damage to or destruction of the Demised Premises by fire
or other insured casualty which shall render the Demised Premises
substantially untenantable and unfit for occupancy and which damage cannot be
repaired within one hundred twenty (l20) days from the happening of such
casualty, then this Lease shall terminate at the option of either party by
written notice to the other; provided, however, that such written notice is
mailed within fifteen (l5) days of such fire or casualty. Landlord shall
determine whether the Demised Premises can be repaired within the one hundred
twenty (l20) day period, and Landlord's determination shall be conclusive on
Tenant. The period of time during which Landlord is prevented from
performing any act required to be performed hereunder by reason of
unavoidable delays as defined in Section 24.2l shall be added to the time for
performance of such act. In the event of such termination, Tenant shall
immediately surrender possession of the Demised Premises and shall pay Rent
only to the date of such damage or destruction; and Landlord may re-enter and
repossess the Demised Premises discharged from this Lease. If neither party
elects to terminate this Lease within such
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fifteen l5) day period, Landlord shall thereupon repair and restore the
Demised Premises with reasonable speed and dispatch. The Fixed Rent and
Additional Rent due and payable hereunder shall xxxxx proportionately, but
only to the extent of any proceeds received by Landlord from rental abatement
insurance described in Section l2.l C, which rental abatement insurance
Landlord represents is adequate and shall, from time to time, be increased so
as to remain adequate. Such abatement shall continue for the period
commencing with such damage or destruction and ending with substantial
completion by Landlord of its repair or reconstruction work or until business
is totally or partially resumed, whichever is the earlier.
Section l4.2. Partial Damage or Destruction.
In case of any damage or destruction as described in the preceding
Subsection which shall not be tantamount to total destruction and which can
be repaired and restored within one hundred twenty (l20) days from the
happening of such casualty, then Landlord shall repair and restore the
Demised Premises with reasonable speed and dispatch. The Fixed Rent and
Additional Rent due and payable hereunder shall xxxxx proportionately, but
only to the extent of any proceeds received by Landlord from rental abatement
insurance described in Section l2.l C. Such abatement shall continue for the
period commencing with such damage or destruction and ending with substantial
completion by Landlord of such repair or reconstruction work or until
business is totally or partially resumed, whichever is the earlier.
Section l4.3. Uninsured Casualty.
Notwithstanding anything contained herein to the contrary, in the event
of damage to or destruction of all or any portion of the Demised Premises
which is not fully covered by the insurance proceeds received by Landlord or
which has not been insured under the insurance policies required under
Section l2.l above, Landlord may terminate this Lease by written notice to
Tenant, given within thirty (30) days after the date of notice to Landlord
that said damage or destruction is not so covered. If Landlord does not
elect to terminate this Lease, this Lease shall remain in full force and
effect and the Demised Premises shall be repaired and rebuilt and the Fixed
Rent shall xxxxx in the same manner as hereinbefore in this Article provided.
Section l4.4. Reasonable Speed and Dispatch.
For the purposes of this Article, in determining what constitutes
reasonable speed and dispatch, consideration shall be given for delays which
would be excuses for nonperformance as hereinafter provided in the Section
entitled "Effect of Unavoidable Delays".
Section l4.5. Damage Near End of Term.
Notwithstanding anything contained herein to the contrary, if the Demised
Premises are partially destroyed or damaged during the last six (6) months of
the Term of this Lease, Landlord/Tenant may, at Landlord's/Tenant's option,
cancel and terminate this Lease as of the date of occurrence of such damage
by giving written notice to Tenant/Landlord of Landlord's/Tenant's election
to do so within thirty (30) days after the date of occurrence of such damage.
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ARTICLE FIFTEEN
CONDEMNATION
Section l5.l. Total Condemnation of Demised Premises.
If the whole of the Demised Premises is acquired or condemned by eminent
domain, inversely condemned or sold in lieu of condemnation, for any public
or quasi-public use or purpose ("Condemned") then the Term shall terminate as
of the date of title vesting in such proceeding and Rent shall be adjusted to
the date of termination.
Section l5.2. Partial Condemnation.
If any part of the Demised Premises is partially Condemned, and such
partial condemnation renders the Demised Premises unusable for the business
of the Tenant, then the Term of this Lease shall terminate as of the date of
title vesting in such proceeding and Rent shall be adjusted to the date of
termination. If such condemnation is not extensive enough to render the
Demised Premises unusable for the business of Tenant, this Lease shall
continue in full force and effect except that after the date of such title
vesting the Fixed Rent and Additional Rent shall be reduced as reasonably
determined by Landlord. A determination with respect to the partial
condemnation rendering the Demised Premises unusable shall be made mutually
by Landlord and Tenant. If not, it shall be the subject of arbitration as
set forth in Section ll.5C.
Section l5.3. Landlord's Award.
If the Demised Premises are wholly or partially Condemned, then, subject
to the provisions of Section l5.4, Landlord shall be entitled to the entire
award paid for such condemnation, and Tenant waives any right or claim in any
part thereof from Landlord or the condemning authority.
Section l5.4. Tenant's Award.
Tenant shall have the right to claim and recover from the condemning
authority, but not from Landlord, such compensation as may be separately
awarded or recoverable by Tenant in Tenant's own right on account of any and
all costs or loss (including loss of business) to which Tenant might be put
in removing Tenant's merchandise, furniture, fixtures, Leasehold Improvements
and equipment to a new location.
Section l5.5. Notice and Execution.
Landlord shall, immediately upon service of process in connection with
any condemnation or potential condemnation, give Tenant notice in writing
thereof. Tenant shall immediately execute and deliver to the Landlord all
instruments that may be required to effect the provisions of this Article
Fifteen.
ARTICLE SIXTEEN
EASEMENTS
Section l6.l. Reservation of Easements to Landlord.
Landlord reserves the right, easement and privilege to enter on the
Demised Premises in order to install, at its own cost and expense, any storm
drains and sewers and/or utility lines in connection therewith as may be
required by Landlord. It is understood and agreed that if such work as may
be required requires
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an installation which may displace any paving, lawn, seeded area or shrubs,
Landlord shall, at its own cost and expense, restore said paving, lawn,
seeded area or shrubs. Landlord further reserves the right to grant
easements on the lot on which the Demised Premises are located ("Lot"), make
boundary adjustments to the Lot and dedicate for public use portions of the
Lot without Tenant's consent provided that no such grant or dedication shall
interfere with Tenant's use of the Demised Premises or otherwise cause Tenant
to incur cost or expense. From time to time upon Landlord's demand, Tenant
shall execute, acknowledge and deliver to Landlord in accordance with
Landlord's instructions, any and all documents or instruments necessary to
effect Tenant's covenants herein, provided, however, that such documents and
instruments shall not materially alter the terms and conditions of this
Lease. If such grant or dedication materially and adversely affects Tenant's
use of the Demised Premises, then the Rent and Additional Rent shall be
reduced accordingly.
ARTICLE SEVENTEEN
DEFAULT
Section l7.l. "Event of Default" Defined.
Any one or more of the following events shall constitute an "Event of
Default":
A. The sale of Tenant's interest in the Demised Premises under
attachment, execution or similar legal process.
B. The filing of any petition in bankruptcy or insolvency by Tenant,
or any guarantor of Tenant's obligations hereunder, or the
reorganization of Tenant or any such guarantor or an arrangement
by Tenant or any such guarantor with its creditors, whether
pursuant to the Federal Bankruptcy Act or any similar federal or
state proceeding, unless such petition is filed by a party other
than Tenant or any such guarantor and is withdrawn or dismissed
within thirty (30) days after the date of its filing.
C. The admission, in writing, by Tenant or any such guarantor of its
inability to pay its debts when due.
D. The appointment of a receiver or trustee for the business or
property of Tenant, or any such guarantor, unless such
appointment shall be vacated within ten (l0) days of its entry.
E. DELETED PRIOR TO EXECUTION.
F. The failure of Tenant to pay any Rent within ten (l0) days of its
due date. However, in no event, shall this relieve Tenant of its
obligations to pay late charges and interest as set forth in
Sections 5.3 and 5.4.
G. Default by Tenant in the performance or observance of any
covenant or agreement of this Lease (other than a default
involving the payment of money), which default is not cured
within thirty (30) days after the giving of notice thereof by
Landlord, unless such default is of such nature that it cannot be
cured within such thirty (30) day period, in which case no Event
of Default shall occur so long as Tenant shall commence the
curing of the default within such thirty (30) day period and shall
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shall thereafter diligently prosecute the curing of same.
Section l7.2. Remedies.
A. Upon the occurrence of an Event of Default, Landlord, without
notice to Tenant in any instance (except where expressly provided
for below) may do any one or more of the following:
(i) DELETED PRIOR TO EXECUTION.
(ii) Landlord may perform, on behalf and at the expense of
Tenant, any obligation of Tenant under this Lease which
Tenant has failed to perform and of which Landlord
shall have given Tenant notice, the cost of which
performance by Landlord, together with interest thereon
at the average of the prime rate set forth in the Wall
Street Journal during the five (5) business days
precedent Landlord's performance plus two (2%) percent,
shall be deemed Additional Rent and shall be payable by
Tenant to Landlord upon demand.
(iii) Landlord may elect to terminate this Lease and the
tenancy created hereby by giving seven (7) days' notice
of such election to Tenant, and/or may re-enter the
Demised Premises, by summary proceedings or otherwise,
and may remove Tenant and all other persons and
property from the Demised Premises, and may store such
property in a public warehouse or elsewhere at the cost
of and for the account of Tenant without resort to
legal process and without Landlord being deemed guilty
of trespass or conversion or becoming liable for any
loss or damage occasioned thereby.
(iv) If Tenant shall default (i) in the payment of any Rent,
and such default shall continue or be repeated for two
(2) consecutive months, or for a total of four (4)
months in any period of twelve (l2) months, or (ii) in
the performance of any other covenant of this Lease
more than six (6) times in the aggregate, in any period
of twelve (l2) months then, notwithstanding that such
defaults have been cured within any period after notice
if applicable, as above provided, any further similar
default shall be deemed deliberate and an immediate
Event of Default and Landlord may thereafter serve a
three (3) day notice of termination without offering
Tenant an opportunity to cure such default.
(v) Landlord may exercise any other legal or equitable
right or remedy which it may have.
B. Notwithstanding the provisions of Clause A (ii) above, and
regardless of whether an Event of Default shall have occurred,
Landlord may exercise the remedy described in Clause A (ii)
without any notice to Tenant if Landlord, in its good faith
judgment, believes it would be materially injured by failure to
take rapid action or if
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the unperformed obligation of Tenant constitutes an emergency.
Section l7.3. Bankruptcy.
A. In the event Tenant becomes the subject debtor in a case pending
under the Bankruptcy Code, or in any Bankruptcy Court of
Division, Landlord's right to terminate this Lease shall be
subject to the rights of the Trustee in Bankruptcy to assume or
assign this Lease. To the extent permitted or allowed by law,
the Trustee shall not have the right to assume or assign this
Lease until the Trustee (i) promptly cures all defaults under
this Lease, (ii) promptly compensates Landlord for monetary
damages incurred as a result of such default, and (iii) provides
"adequate assurance of future performance" which shall mean (in
addition to any other statutory requirements) that all of the
following have been satisfied: (i) in addition to the Rent
payable under the Lease, the Trustee shall establish with
Landlord a Security Deposit equal to three (3) months' Fixed
Rent, (ii) maintain said Security Deposit in said amount whenever
it is drawn upon by Landlord, (iii) Trustee must agree that
Tenant's business shall be conducted in a first class manner, and
(iv) use of the Demised Premises shall not change. If all of the
foregoing are not satisfied, Tenant shall be deemed not to have
provided Landlord with adequate assurance of future performance
of this Lease.
B. In addition, if Tenant becomes the subject debtor under the
Bankruptcy Code or in any Bankruptcy Court or Division, any
person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code, ll U.S.C. Section l0l et seq.,
shall be deemed without further act or deed to have assumed all
of the obligations arising under this Lease on and after the date
of such assignment. Any such assignee shall, upon demand,
execute and deliver to Landlord an instrument confirming such
assumption.
Section l7.4. Damages.
A. If this Lease is terminated by Landlord pursuant to Section l7.2
A (iii), Tenant, nevertheless, shall remain liable for any Rent
and damages which may be due or sustained prior to such
termination, and all reasonable costs, fees and expenses incurred
by Landlord in pursuit of its remedies hereunder, or in renting
the Demised Premises to others from time to time (all such Rent,
damages, costs, fees and expenses being referred to herein as
"Termination Damages") and additional damages (the "Liquidated
Damages") equal to the Rent which, but for the termination of
this Lease, would have become due during the remainder of the
Term, less the amount of Rent, if any, which Landlord may receive
during such period from others to whom the Demised Premises may
be rented (other than any Additional Rent received by Landlord as
a result of any failure of such other person to perform any of
its obligations to Landlord).
B. Termination Damages shall be due and payable immediately upon
demand by Landlord following any termination of this Lease
pursuant to Section l7.2 A (iii). Liquidated Damages shall be
computed and payable in monthly
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installments, in advance, on the first day of each calendar month
following the termination of the Lease and continuing until the date
on which the Term would have expired but for such termination. Any
suit or action brought to collect any Liquidated Damages for any
month shall not, in any manner, prejudice the right of Landlord to
collect any Liquidated Damages for any subsequent month by a similar
proceeding.
C. If this Lease is terminated pursuant to Section l7.2 A (iii),
Landlord may relet the Demised Premises, or any part thereof,
alone or together with other premises, for such term of terms
(which may be greater or less than the period which otherwise
would have constituted the balance of the Term) and on such terms
and conditions (which may include rent concessions, or free rent
and alterations of the Demised Premises) as Landlord, in its
absolute discretion, may determine, but Landlord shall not be
liable for, nor shall Tenant's obligations hereunder, be
diminished by reason of, any failure by Landlord to relet, or to
attempt to relet, the Demised Premises or any failure of Landlord
to collect any Rent due upon such reletting.
D. Whether or not Landlord shall have collected any monthly
deficiencies as aforesaid, Landlord shall, at its sole option, be
entitled to recover from Tenant, and Tenant shall pay Landlord,
on demand, as and for Total Liquidated and Agreed Final Damages,
a sum equal to the amount by which the Rent payable hereunder for
the period which otherwise would have constituted the unexpired
portion of the Term exceeds the then fair and reasonable rental
value of the Demised Premises for the same period, both
discounted to present worth at the rate of eight (8%) percent per
annum. If, before presentation of proof of such Total Liquidated
and Agreed Final Damages, to any court, commission or tribunal,
the Demised Premises, or any part thereof, shall have been relet
by Landlord for the period which otherwise would have constituted
the unexpired portion of the Term, or any part thereof, the
amount of Rent upon such reletting shall be deemed, prima facie,
to be the fair and reasonable rental value for the part or the
whole of the Demised Premises so relet during the term of the
reletting.
E. Landlord shall use reasonable efforts to relet the Demised
Premises and mitigate its damages. Notwithstanding the
foregoing, this does not require Landlord to give preference or
priority to the letting or reletting of the Demised Premises.
ARTICLE EIGHTEEN
SECURITY DEPOSIT
Section l8.l. Security Deposit.
A. Landlord acknowledges receipt of the Security Deposit from Tenant
as security for the performance by Tenant of all of the terms,
covenants and conditions required to be performed by Tenant under
this Lease, which sum shall be paid as follows: (i) the sum of
Fifty-One Thousand Two Hundred Fifty-Seven and 82/l00 Dollars
($5l,257.82) in
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cash upon execution of this Lease Agreement; and (ii) a Letter of
Credit ("LC"), in the principal amount of Fifty-One Thousand Two
Hundred Fifty-Seven and 82/l00 Dollars ($5l,257.82), within thirty
(30) calendar days of the execution of this Lease Agreement, time
specifically and expressly hereby being made of the essence for the
procuring and delivery of said Letter of Credit to Landlord, in lieu
of cash, for a total of One Hundred Two Thousand Five Hundred Fifteen
and 64/l00 Dollars ($l02,5l5.64) (said cash and LC collectively
referred to as the "Security Deposit"), subject to all of the following
terms and conditions:
(i) The LC shall be a one-year irrevocable, automatically
renewable and unconditional for each year during the
Term of this Lease; and
(ii) The LC shall be issued by an established and recognized
banking institution approved by Landlord and in form
reasonably acceptable to Landlord; and
(iii) Said LC shall be delivered to Landlord no later than
thirty (30) days from execution of the within Lease
Agreement, time hereby specifically and expressly being
made of the essence for the delivery of said LC to
Landlord; and
(iv) The LC shall provide that the amount for which the LC
was issued shall be paid to Landlord by the issuer no
later than five (5) business days of receipt of a
statement from Landlord, in affidavit form asserting,
the existence of a default by Tenant under this Lease.
No other action shall be required by Landlord. Tenant
shall secure an acknowledgment to this effect from the
issuer and provide Landlord with said; and
(v) The full amount of the LC, when paid to Landlord by the
issuer, as herein provided, shall thereafter be
retained by Landlord as Security Deposit, subject to
disposition in accordance with the provisions of this
Lease; and
(vi) Tenant's failure to fully, completely and punctually
comply with all of the requirements set forth in
subparagraphs (i) through (v) above, time being
specifically and expressly hereby made of the essence,
shall constitute a material and financial default of
the within Lease Agreement under the provisions of this
Lease. However, in the event Landlord receives a
Letter of Credit, which Landlord believes does not
comply with the terms of this Lease, then, and in such
case, Landlord shall give Tenant notice of such
deficienty and a reasonable period of time, not
exceeding thirty (30) calendar days, in which to cure
such deficieny, which cure shall constitute providing
either additional cash, a proper Letter of Credit or other
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collateral satisfactory to Landlord.
(vii) In the event of a transfer of the Demised Premises by
Landlord, Landlord shall receive and forward to Tenant
an acknowledgment of receipt by the transferee of the
Security Deposit.
Such sum shall be returned to Tenant after the expiration of the
Term of this Lease provided Tenant has performed all of such
terms, covenants and conditions. Prior to the time when Tenant
shall be entitled to the return of the Security Deposit, Landlord
shall be entitled to commingle such deposit with its own funds
and to use such sum for such purposes as the Landlord may
determine. Tenant shall not be entitled to any interest on the
Security Deposit.
B. In the Event of Default by Tenant in respect of any of the terms,
covenants and conditions of this Lease, including, but not
limited to, the payment of any Rent, the Landlord may use, apply
or retain all or any part of such Security Deposit for the
payment of any unpaid Rent or for any other amount which the
Landlord may be required to spend by reason of a default of
Tenant, including any damages or deficiency in the reletting of
the Demised Premises, regardless of whether the accrual of such
damages or deficiency occurs before or after an eviction or a
summary re-entry or other re-entry by Landlord.
C. Tenant agrees that in the event Landlord applies any portion of
the Security Deposit in accordance with the provisions of this
Lease, Tenant shall immediately upon demand of Landlord reimburse
or pay Landlord for the amount of the Security Deposit so applied
or, for any increase in the amount of Fixed Rent which may occur
during the Term, so that the amount constituting the Security
Deposit during the Term shall always be equal to six (6) months'
Fixed Rent.
D. In the event of a sale of the Demised Premises, Landlord shall
have the right to transfer the Security Deposit to the vendee and
Landlord shall thereupon be released by Tenant from all liability
for the return of the Security Deposit, and Tenant agrees to look
solely to the new landlord for the return of the Security Deposit
and it is agreed that the provisions hereof shall apply to every
transfer or assignment made of the Security Deposit to a new
Landlord.
E. The Security Deposit shall not be assigned or encumbered by
Tenant without the written consent of the Landlord, and any such
assignment or encumbrance without such consent shall not bind the
Landlord. Regardless of any assignment of this Lease by Tenant,
the Landlord may return the Security Deposit to the original
Tenant in the absence of evidence satisfactory to the Landlord of
an assignment of the right to receive such Security Deposit or
any part of the balance thereof.
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ARTICLE NINETEEN
SUBORDINATION AND ATTORNMENT
Section l9.l Subordination.
A. Unless a Mortgagee (as hereinafter defined) shall otherwise
elect, as provided in Section l9.2, Tenant's rights under this
Lease are and shall remain subject and subordinate to the
operation and effect of: (i) any Lease of the Lot only, or of the
Lot and Building, in a sale-leaseback transaction involving the
Demised Premises, or (ii) any mortgage or other security
instrument constituting a lien upon the Premises, whether the
same shall be in existence on the date hereof or created
hereafter, any such lease, mortgage or other security instrument
being referred to herein as a "Mortgage" and the party or parties
having the benefit of the same, whether as lessor, mortgagee or
note holder, being referred to herein as a "Mortgagee". Tenant's
knowledge of and agreement to subordination provided for in this
Section is self-operative and no further instrument of
subordination shall be required; however, Tenant shall execute
such further assurances thereof as shall be required or as may be
requested, from time to time, by Landlord or a Mortgagee.
B. Tenant agrees to give any mortgagee of Landlord, by certified
mail, return receipt requested, a copy of any notice of default
served upon Landlord, provided that prior to such notice Tenant
has been notified of the address of such mortgagee. Tenant
further agrees that if Landlord shall fail to cure such default
within the time allowed by this Lease, then such mortgagee shall
have an additional thirty (30) days within which to cure such
default (but shall in no event be obligated 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 such mortgagee has commenced and diligently
pursued the remedies necessary to cure such default, in which
event Tenant shall continue to be bound by the terms of this
Lease while such remedies are being so diligently pursued.
Section l9.2. Mortgagee's Unilateral Subordination.
If a Mortgagee shall so elect by notice to Tenant or by the recording
of a unilateral declaration of subordination, this Lease and Tenant's
rights hereunder shall be superior and prior in right to the Mortgage of
which such Mortgagee has the benefit, with the same force and effect as if
this Lease had been executed, delivered and recorded prior to the
execution, delivery and recording of such Mortgage, subject, nevertheless,
to such conditions as may be set forth in any such notice of declaration.
Section l9.3. Attornment.
If any person shall succeed to all or part of Landlord's interest in
the Demised Premises, whether by purchase, foreclosure, deed in lieu of
foreclosure, power of sale, termination of Lease or otherwise, and if so
requested or required by such successor in interest, Tenant shall attorn to
such successor in interest and shall execute such agreement and
confirmation of such attornment as such successor in interest shall
reasonably request.
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ARTICLE TWENTY
NOTICES
Section 20.l. Sending of Notices.
Any notice, request, demand, approval or consent given, or required to
be given, under this Lease shall be in writing and shall be deemed to have
been given on the third (3rd) day following the day on which the same shall
have been mailed by United States registered or certified mail, return
receipt requested, with all postal charges prepaid, and shall be addressed,
if intended for Landlord, to Princeton South at Lawrenceville One, 0
Xxxxxxxx Xxxx Xxxxx, Xxxxxxxxxxxxx, Xxx Xxxxxx 00000, with copy to Xxxxxxx
& Xxxxxx, l23 Xxxxxxxx Xxxxxx Xxxx, Xxxxxx x00-xxx, Xxxxxxxxxxxxx, Xxx
Xxxxxx 00000, or, if intended for the Tenant, to Tenant, at the Demised
Premises, with copy to Xxxxxxx X. Xxxxx, Esquire, Smith, Stratton, Wise,
Xxxxx & Xxxxxxx, 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000.
Either party may, at any time, change its address for the above purposes by
sending a notice to the other party stating the change of and setting forth
the new address.
ARTICLE TWENTY ONE
INDUSTRIAL SITE RECOVERY ACT
Section 2l.l. Tenant shall, at Tenant's own expense, comply with the
Industrial Site Recovery Act, N.J.S.A. l3:lK-6, et seq. and the regulations
promulgated thereunder ("ISRA"). Tenant shall not, however, have any
obligation or liability whatsoever in respect of any spill or discharge of
hazardous substances or wastes or any other non-compliance with ISRA which
is caused by any person other than Tenant. Tenant shall, at Tenant's own
cost and expense, make all submissions to, provide all information to, and
comply with all requirements of, the Industrial Site Evaluation Element
("The Element" of the New Jersey Department of Environmental Protection
("NJDEP"). Should the Element or any other division of NJDEP determine
that a clean up plan be prepared and that a clean up be undertaken because
of any spills or discharges of hazardous substances or wastes at the
Premises occurring or arising from Tenant's use and occupancy, then Tenant
shall, at Tenant's own expense, prepare and submit the required plans and
financial assurances, and carry out the approved plans. Tenant's
obligations under this paragraph shall arise if there is any closing,
terminating or transferring of Tenant's operation at the Premises pursuant
to ISRA or other triggering event by Tenant. At no expense to Landlord,
Tenant shall promptly provide all information reasonably requested by
Landlord for preparation of non-applicability affidavits, de minimis
quantity exemption application, or other required submissions, and shall
promptly sign such affidavits when reasonably requested by Landlord.
Tenant shall indemnify, defend and save harmless Landlord from all fines,
suits, procedures, claims and actions of any kind arising out of or in any
way connected with any spills or discharges or hazardous substances or
wastes at the Premises occurring or arising from Tenant's use and
occupancy, and from all fines, suits, procedures, claims and actions of any
kind arising out of Tenant's failure to comply with this Paragraph.
Tenant's obligations and liabilities under this Paragraph shall continue so
long as Landlord remains responsible for any spills or discharges of
hazardous substances or wastes by Tenant at the Premises occurring or
arising from Tenant's use and occupancy. Tenant's failure to abide by the
terms of this Paragraph shall be restrainable by injunction.
Section 2l.2. Landlord shall, at Landlord's own expense, comply with ISRA
in all instances beyond Tenant's responsibility as set
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forth above. To the extent the Element or any other Division of NJDEP
requires information from Landlord, Landlord shall promptly provide all
information requested. Should the Element or any other Division of NJDEP
determine that a clean up plan be prepared and that a clean up be undertaken
because of any spills or discharges of hazardous substances or waste at the
Premises, by any party other than Tenant, then and in such case, Tenant shall
not be responsible and the party who is responsible, Landlord, other tenant
or other party, shall, at its own expense prepare and submit required plans
and financial assurances and carry out the approved plans. Landlord shall
indemnify, defend and save harmless Tenant from all fines, suits, procedures,
claims and actions of any kind arising out of or any way connected with any
spillages, discharges of hazardous substances or waste or other action by
Landlord at the Premises and not occurring or arising from Tenant's use and
occupancy, and from all fines, suits, procedures, claims and actions of any
kind arising out of Landlord's failure to comply with this Paragraph.
Landlord's obligations under this Paragraph shall survive the expiration or
termination of this Lease. Landlord's failure to abide by the terms of this
Paragraph shall be restrainable by injunction.
Section 2l.3. In the event any of the foregoing has not been complied
with, then and in such event, Tenant shall be responsible to continue to
pay monthly Base Rental and all Additional Rental until said DEP approval
is delivered to Landlord, notwithstanding Tenant may not be in possession.
Section 2l.4. In the event that Landlord shall require from Tenant
information and evidence of Tenant's Standard Industrial Classification
number, the nature of Tenant's business being operated upon the Leased
Premises, the use Tenant made of the Leased Premises or like information to
be submitted to DEP or any successor governmental department or agency in
connection with a proposed sale, leasing, exchange, financing, refinancing
or other disposition of the Leased Premises, or of any part thereof, or of
the building in which or land upon which the Leased Premises is located, or
any part thereof, then Tenant shall upon written request of Landlord
furnish such information and evidence in Affidavit or other form required
by DEP without unreasonable delay.
Section 2l.5. Tenant shall commence its ISRA submission in anticipation of
the end of its Lease Term at least six (6) months prior to the expiration
of the Term.
ARTICLE TWENTY TWO
ESCROWS
Section 22.l. Escrows for Insurance Premiums and Real Property Taxes.
If requested by any mortgage lender to whom Landlord has granted a
security interest in the Demised Premises, Tenant shall pay such mortgage
lender or Landlord a sum equal to one twelfth (l/l2) of the annual real
property taxes and/or insurance premiums payable by Tenant under this
Lease, together with each payment of Fixed Rent. Such payment shall be
held by such mortgage lender or Landlord in a non-interest bearing escrow
account. The amount of real property taxes and insurance premiums when
unknown shall be reasonably estimated by Landlord. Funds held by Landlord
in the escrow account shall be applied by Landlord to the payment of real
property taxes and insurance premiums when due. Any deficiency of funds in
the escrow account shall be paid by Tenant to the mortgage
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lender or Landlord upon a written request. If Tenant commits an Event of
Default under this Lease, Landlord may apply any funds held by it in the
escrow account to any obligations then due under this Lease.
ARTICLE TWENTY THREE
PARKING
Section 23.l. General Provisions.
Tenant shall have the non-exclusive right to use sixty-four (64)
non-designated, non-exclusive, parking areas designated by Landlord in
common with other uses permitted by Landlord. All such parking shall be
done within the lines of lined parking spaces and entering and exiting from
such parking areas and the use thereof shall be in accordance with all
directions and regulations of Landlord. Such use of parking areas shall be
limited to passenger automobiles and small vans or commercial vehicles.
Section 23.2. Landlord's Option.
Landlord reserves the right to restrict such parking rights of Tenant
to such spaces and such location as Landlord shall designate by written
notice to Tenant; and upon Landlord giving Tenant such notice, Tenant's
right to use the parking areas shall be limited to the designated parking
spaces and locations.
ARTICLE TWENTY FOUR
MISCELLANEOUS
Section 24.l. Tenant's Certificate.
Tenant/Landlord shall, without charge at any time and from time to
time, within ten (l0) days after request by Landlord/Tenant, certify by
written instrument, duly executed, acknowledged and delivered, to
Landlord/Tenant and to such Mortgagee or other party as may be designated
by Landlord/Tenant: (i) that this Lease is unmodified and in full force and
effect (or, if there has been modification, that the same is in full force
and effect as modified and stating the modification); (ii) whether or not
there are then exiting any set-offs or defenses against the enforcement of
any of the agreements, terms, covenants or conditions hereof upon the part
of Tenant/Landlord to be performed or complied with (and, if so, specifying
the same); and (iii) the dates, if any, to which Rent hereunder has been
paid in advance.
Section 24.2. Lender's Requirements.
Tenant hereby agrees to make any reasonable revisions to this Lease
which may be required in good faith by a bona fide construction, interim or
permanent lender in connection with the financing of the Demised Premises,
provided, however, that such revisions do not, in Tenant's reasonable
judgment, increase the obligations of Tenant hereunder or materially affect
the leasehold interest hereby created or Tenant's use and enjoyment of the
Demised Premises.
Section 24.3. Financial Statements.
At any time during the term, Tenant shall, upon ten (l0) days' prior
written notice from Landlord, provide Landlord with a current financial
statement and financial statements for each of the two years prior to the
current financial statement year. Such statements shall be prepared in
accordance with generally accepted
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accounting principles and, if such is the normal practice of Tenant, shall be
audited by an independent certified public accountant. The foregoing shall
be required only once per Lease Year if necessary or required by any present
or future mortgagee or purchaser.
Section 24.4. Short Form Lease.
It is understood and agreed that this Lease shall not be recorded.
Either party shall, however, have the right to record a short form of this
Lease containing only such provisions as shall be necessary to give
adequate notice of the existence of the leasehold interest of Tenant in the
Demised Premises. Either party desiring to record such short form lease
shall submit the same to the other party for approval prior to record. Such
approval shall not be unreasonably withheld or delayed. Recording, filing
and like charges shall be paid by the party requesting execution of the
same.
Section 24.5. Waiver of Redemption.
Tenant expressly waives any and all rights of redemption granted by or
under any present or future laws in the event Tenant shall be evicted or
dispossessed from the premises for any cause, or if Landlord re-enters the
premises following the occurrence of an Event of Default hereunder, or if
this Lease is terminated before the expiration date originally fixed
herein.
Section 24.6. Remedies Cumulative.
No reference to any specific right or remedy shall preclude Landlord
from exercising any other right or from having any other remedy or from
maintaining any action to which it may otherwise be entitled at law or in
equity. No failure by Landlord to insist upon strict performance of any
agreement, term, covenant or condition hereof, 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
present or future waiver of any such breach, agreement, term, covenant or
condition. No waiver by Landlord of any breach by Tenant under this Lease
shall affect or alter this Lease in any way whatsoever, nor shall
constitute a waiver for the future of any such breach of any provision
hereof.
Section 24.7. Bind and Inure.
This Lease and the covenants and conditions herein contained shall
inure to the benefit of and be binding upon Landlord, its successors,
administrators, heirs, successors and assigns and shall inure to the
benefit of Tenant and to only such assigns of Tenant to whom the assignment
of this Lease by Tenant has been consented to by Landlord. Upon any sale
or other transfer by Landlord of its interest in the Demised Premises,
Landlord shall be relieved of all obligations under this Lease occurring
thereafter.
Section 24.8. Captions and Section Headings.
The captions, section numbers, article numbers and table of contents
appearing in this Lease are inserted only as a matter of convenience and in
no way define, limit, construe or describe the scope or intent of such
sections or articles of this Lease nor in any way affect this Lease.
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Section 24.9. Joint and Several Liability.
DELETED PRIOR TO EXECUTION
Section 24.l0. Broker.
Tenant warrants and represents that no real estate broker or other
person entitled to payment of a commission or other compensation showed the
Demised Premises to Tenant or participated in any way in the negotiation or
execution of this Lease between the parties. Tenant hereby agrees that it
will indemnify and save harmless the Landlord against and from all
liabilities, obligations, claims, costs, charges and expenses, including,
without limitation, reasonable attorneys' fees, connected in any way with
any claim by a real estate broker or other person for a commission or other
compensation for services rendered in effecting this Lease transaction on
behalf of Tenant. The provisions of this Section shall be subject to all
exceptions set forth in Exhibit C annexed hereto, if any.
Section 24.ll. Relationship of Parties.
Nothing contained in this Lease shall be construed to create the
relationship of principal and agent, partnership, joint venture or any
other relationship between the parties hereto other than the relationship
of Landlord and Tenant.
Section 24.l2. No Option.
The submission of this Lease for examination does not constitute a
reservation of or option to lease the Demised Premises, and this Lease
shall become effective only upon execution and delivery thereof by both
parties.
Section 24.l3. No Modification.
This writing is intended by the parties as a final expression of their
agreement and as a complete and exclusive statement of the terms thereof;
all negotiations, considerations and representations between the parties
have been incorporated herein. No course of prior dealings between the
parties or their officers, employees, agent or affiliates shall be relevant
or admissible to supplement, explain or vary any of the terms of this
Lease. Acceptance of, or acquiescence in, a course of performance rendered
under this or any prior agreement between the parties or their affiliates
shall not be relevant or admissible to determine the meanings of any of the
terms of this Lease. No representations, understandings or agreements have
been made or relied upon in the making of this Lease other than those
specifically set forth herein. This Lease can be modified only by a
writing signed by the party against whom the modification is enforceable.
Section 24.l4. Severability.
If any term or provision, or any portion thereof, 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 term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term and provision of this Lease shall be valid
and be enforced to the fullest extent permitted by law.
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Section 24.l5. Third Party Beneficiary.
Nothing contained in this Lease shall be construed so as to confer
upon any other party the rights of a third party beneficiary except rights
contained herein for the benefit of a Mortgagee.
Section 24.l6. Corporate Tenants.
In the event Tenant is a corporation, the persons executing this Lease
on behalf of Tenant hereby covenant and warrant that (i) Tenant is a duly
constituted corporation qualified to do business in New Jersey and all of
Tenant's franchise and corporate taxes have been paid to date, (ii) all
future forms, reports, fees and other documents necessary for Tenant to
comply with applicable laws shall be filed when due, and (iii) such persons
are duly authorized by the Board of Directors of such corporation to
execute and deliver this Lease on behalf of this corporation.
Section 24.l7. Applicable Law.
This Lease and the rights and obligations of the parties hereunder
shall be construed in accordance with the internal laws of the State of New
Jersey applicable to leases made and to be performed in the State of New
Jersey without regard to principles of conflict of law.
Section 24.l8. Construction of Lease.
A. This Lease shall be construed without regard to any presumption
or other rules requiring construction against the party causing
this Lease to be drafted.
B. Words and phrases used in the singular shall be deemed to include
the plural and vice versa, and nouns and pronouns used in any
particular gender shall be deemed to include any other gender.
C. The rule of "ejusdem generis" shall not be applicable to limit a
general statement following or referable to any enumeration of
specific matters to matters similar to the matters specifically
mentioned.
Section 24.l9. Performance of Landlord's Obligations by Mortgagee.
Tenant shall accept performance of any of Landlord's obligations
hereunder by any Mortgagee.
Section 24.20. Security Measures.
Tenant acknowledges that Rent payable to Landlord does not include the
cost of guard services or other security measures and Landlord has no
obligation to provide such services or measures. Tenant assumes all
responsibility for security of Tenant, its agent and invitees.
Section 24.2l. Effect of Unavoidable Delays.
The provisions of this Section shall be applicable, with respect to
non-monetary occurrences, if there shall occur, during or prior to the
Term, any: (i) strikes, lockouts or labor disputes; (ii) inability to
obtain labor or materials or reasonable substitutes therefor; (iii) Acts of
God, governmental restrictions, regulations or contracts, enemy or hostile
governmental action,
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civil commotion, insurrection, revolution, sabotage or fire or other
casualty; or (iv) other conditions similar to those enumerated or which are
beyond the reasonable control of Landlord. If Landlord shall, as a result
of any such event, fail punctually to perform any lease obligation, then
such obligation shall be punctually performed as soon as practicable after
such event shall xxxxx. If Landlord shall, as a result of any such event,
be unable to exercise any right or option within any time limit provided
therefor in this Lease, such time limit shall be deemed extended for a
period equal to the duration of such event.
Section 24.22. Landlord's Consent or Approval.
With respect to any provision of this Lease which requires Landlord's
consent or approval, Landlord shall give or withhold such consent or
approval in Landlord's sole and absolute discretion.
Section 24.23. Transfer of Title.
Upon the transfer by Landlord of the fee simple title hereunder,
Landlord shall advise Tenant in writing, by certified mail, return receipt
requested, of the name of Landlord's transferee. In such event, the then
Landlord shall be automatically freed and relieved from and after the date
of such transfer of title of all liability with respect to the performance
of any of the covenants and obligations on the part of Landlord herein
contained to be performed subsequent to the date of such transfer of title,
provided any such transfer and conveyance by the Landlord is expressly
subject to the assumption by the grantee or transferee of the obligations
of the Landlord performed pursuant to the terms and conditions of the
within Lease, including an express assumption by the said grantee or
transferee of the obligation to repay any security which has been or may be
deposited with the Landlord pursuant to the terms and conditions of the
within Lease.
Section 24.24. Payment Upon Execution of this Lease.
Tenant shall pay over and deposit with Landlord prior to or upon the
execution of this Lease the Fixed Rent for the first Rental Period and the
Security Deposit, the latter as set forth in Article Eighteen.
Section 24.25. Delivery of Possession.
DELETED PRIOR TO EXECUTION
Section 24.26. Standard Industrial Classification Number.
Tenant does hereby notify Landlord that Tenant's Standard
Industrial Classification Number ("SIC") is 7389. Tenant shall not perform
nor agree to perform any act which will cause its SIC number to fall within
an SIC number to which ISRA (as defined in Section 48 of the Lease) may be
applicable.
Section 24.27. Medical Waste.
If applicable, in addition to any other obligations imposed upon
Tenant under the provisions above, it is expressly understood and agreed that
Tenant shall comply with the provisions of the Comprehensive Regulated
Medical Waste Management Act, N.J.S.A. l3:lE-48.l, et seq., and any rules and
regulations
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promulgated thereunder, applicable to Tenant's use of the Leased Premises.
Tenant shall, in addition, comply with all other laws, statutes, rules and
regulations pertaining to medical waste which are applicable to Tenant or to
Tenant's use of the Leased Premises which may be now or hereafter enacted or
adopted. All of the foregoing shall be at Tenant's own cost and expense.
ARTICLE TWENTY FIVE
TENANT'S OPTION TO RENEW
Section 25.l Option to Renew.
A. Upon the expiration of the initial Term reserved herein, Tenant
shall have the right to renew this Lease for two additional terms
of five (5) years respectively (referred to herein as the "First
Renewal Term" and "Second Renewal Term"). Tenant's right to renew
this Lease for the period(s) referred to above shall be subject
to:
(i) Tenant being in actual possession of the Premises; and
(ii) This Lease then being in full force and effect and
Tenant's not being in default hereunder when such
option(s) to renew may be exercised and at the time of
commencement of such applicable Renewal Term; and
(iii) Tenant is current in payment of all monetary
obligations under this Lease constituting Rent and
Additional Rent; and
(iv) Tenant is not in default of any other terms,
conditions, covenants, and provisions set forth in this
Lease; and
(v) Tenant providing Landlord with prior written notice of
the intention to exercise such option. The requisite
written notice(s) to be furnished by Tenant to Landlord
shall be delivered to Landlord not later than six (6)
months prior to the respective termination of the
initial term or First Renewal Term, as applicable, time
specifically and expressly hereby being made of the
essence for such notice(s). Upon proper exercise by
Tenant of its right to First Renewal Term or Second
Renewal Term, the Term of the Lease shall be deemed
extended to include said First Renewal Term or Second
Renewal Term subject to the provisions of the Lease,
except that (a) there shall be no further option to
renew after the Second Renewal Term; (b) there shall be
no further Landlord's Work; and (c) during the First
Renewal Term or Second Renewal Term the Annual Fixed
Rent and Additional Rent shall be adjusted as set forth
below; and
(vi) Tenant's failure to comply with all of the foregoing
shall render said option(s) to renew, at Landlord's
discretion, null and void.
(vii) The Annual Fixed Rent for the First Renewal
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Term shall be the Annual Fixed Rent in effect for the Fifth
Lease Year, plus the percentage of increase, if any, in the
Consumer Price Index, computed as follows:
There shall be compared the Consumer Price Index for
All Urban Consumers, New York, N.Y. -Northeastern New
Jersey Local Area, All Items, published by the Bureau
of Labor Statistics, Revised Consumer Price Index,
effective January, l987 (l982-84 = l00) (the Index) for
the first month of the First Lease Year of the initial
term of this Lease with the first month of the First
Lease Year of the First Renewal Term. The percentage
of increase in such Index for the first month of the
First Lease Year of the First Renewal Term over the
first month of the First Lease Year of the initial Term
shall be the percentage of increase in the Index for
the purpose of determining the increase in the Fixed
Rent payable during the First Renewal Term of this
Lease. Notwithstanding the foregoing, the Annual Fixed
Rent for the First Renewal Term shall not be less than
that in effect for the Fifth Lease Year.
(viii) The Annual Fixed Rent for the Second Renewal Term shall
be determined in the same manner as that set forth in
Paragraph (vii) above for the First Renewal Term,
excepting the percentage of increase in such Index for
the first month of the First Lease Year of the Second
Renewal Term over the first month of the Fifth Lease
Year of the First Renewal Term shall be the percentage
of increase in the Index for the purpose of determining
the increase in the Fixed Rent payable during the
Second Renewal Term of this Lease. Notwithstanding the
foregoing, the Annual Fixed Rent for the Second Renewal
Term shall not be less than that in effect for the
First Renewal Term.
(ix) It is understood and agreed that in the event the Index
figure required to make the foregoing comparison shall
not be published for the particular month when the same
shall be applicable, then the like Index figure
published in any preceding month shall be used provided
such figure is published within three (3) months of the
month required in accordance with the foregoing. In
the event that the applicable Index figure is not
published within three (3) months of the required month
or if such figure or the entire index shall become
unavailable by reason of discontinuance of publication
or any other reason, then in any such event, the
parties shall agree on an equivalent and substituted
Consumer Price Index to be applied in the same manner
as herein provided.
(x) The parties covenant and agree that as soon as
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the Index figure for the first month of the First Lease
Year of the initial Term of this Lease is published
they will set forth such figure in writing signed by
both parties; and thereafter, when the figure is
published for any succeeding month to be used for
comparison as hereinabove provided, they will likewise
set forth such figure in writing signed by both
parties. The failure to set forth such figures in
writing shall not diminish Tenant's obligations
hereunder.
(xi) All conditions and provisions in this Lease applicable
to the Fixed Rent shall likewise be applicable to the
Fixed Rent as hereby increased during the First and
Second Renewal Term.
C. All covenants, terms, provisions and conditions of this Lease,
other than the provisions granting Tenant an option to renew and
the provision stating the increased amount of Fixed Rent payable
by Tenant, shall remain in full force and effect during the
Renewal Terms of this Lease unless clearly and expressly
inapplicable thereto.
ARTICLE TWENTY-SIX
RIGHT OF FIRST OFFER
Section 26.l Adjoining Space.
A. Tenant shall be granted the right of first offer for the space
adjoining the Demised Premises in the Building in which the
Demised Premises is located if any should become available, upon
the same terms and conditions of the within Lease Agreement and
Schedules, except as set forth below.
B. Said right of first offer shall be granted provided Tenant is (i)
in actual occupancy of the Demised Premises; (ii) the Lease is in
full force and effect; (iii) Tenant is not in default of any
monetary or non-monetary terms, covenants, conditions and
provisions of the this Lease Agreement both at the time such
right of first offer may be exercised and at the commencement of
the term for said adjoining space; (iv) Tenant shall execute and
deliver to Landlord a written exercise of the within right of
first offer which must be delivered to Landlord within thirty
(30) days of Landlord's notice that said space is available, time
being specifically and expressly made of the essence for said
delivery to Landlord of the written exercise, together with such
additional Security Deposit as determined by Landlord.
C. If Tenant properly exercises its right of first offer, pursuant
to the terms of subparagraph B above, then, and in such event,
the Term for said adjacent space shall commence and run
concurrent with the Term for Tenant's present Premises.
D. Tenant's failure to fully and completely comply with the
foregoing shall render said right of first offer null and
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void and of no force and effect and said right of first offer shall
be deemed waived. Furthermore, Tenant's right of first offer
specifically and expressly is subject and subordinate to any
present tenant's rights to extend its term as provided for in its
written lease.
ARTICLE TWENTY-SEVEN
SATELLITE DISH
Section 27.l Satellite Dish
Landlord hereby grants to Tenant the permission to acquire, install,
operate, maintain, repair and replace a Satellite Dish on the roof of the
Building in which the Demised Premises is located for Tenant's sole use.
Such acquisition, installation, operation, maintenance, repair and
replacement specifically are subject to and conditioned upon the following:
A. Tenant shall obtain all necessary Federal, State, County,
municipal and any other requisite governmental and regulatory
agency permits, consents, approvals, and the like, for the
acquisition, installation and operation of the said Satellite
Dish. Tenant shall provide Landlord with documentary proof of
compliance with the foregoing, and further, shall, at all times,
secure and obtain the foregoing required permits, consents,
approvals, and the like, at Tenant's sole cost and expense. Any
and all penalties or fines imposed with respect to the foregoing
shall be the sole responsibility of Tenant. Landlord shall
cooperate with Tenant and shall sign any required applications or
forms necessary for Tenant to obtain the necessary approvals; and
B. Landlord shall have no liability or responsibility whatsoever to
Tenant, or to any other persons, arising from said permission,
and Landlord and Tenant are not intending to create any
relationship of bailment, agency or the like; and
C. Tenant agrees and represents that it solely and completely shall
be responsible for the acquisition, installation, operation,
replacement, supervision, maintenance and repair of the said
Satellite Dish. Furthermore, Tenant hereby acknowledges and
accepts sole and complete responsibility and liability for any
and all direct, indirect or consequential damages or injury to
any and all persons and property (real or personal) arising from
the acquisition, installation, operation, replacement,
supervision, maintenance and repair of the said Satellite Dish.
This includes but specifically is not limited to any and all
personal injury and all damage to the Demised Premises, Building,
all parking areas, any and all adjacent, contiguous or
neighboring buildings, walkways, streets or property (real or
personal) and any and all inconvenience or interruption of
business incurred by any person or entity; and
D. Tenant further acknowledges and agrees that any efforts by
Landlord (if any at all do or shall exist) to assist Tenant with
respect to the said Satellite Dish totally shall be on a
voluntary basis by Landlord and shall not impose, either
expressly or impliedly, any responsibility upon Landlord to
undertake such efforts, to continue such efforts or any
responsibility or liability for the manner
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in which such efforts are done; and
E. Tenant further acknowledges and agrees that neither Landlord, nor
any tenants, contractors, employees, guests, business invitees
nor licensees shall have any responsibility or liability to
Tenant, or to any other party, with respect to the acquisition,
installation, operation, replacement, supervision, maintenance or
repair of the said Satellite Dish or with respect to the removal,
loss, damage or destruction of the said Satellite Dish.
Furthermore, Tenant does hereby indemnify, save, hold and keep
Landlord harmless from any and all claims, from any persons
whatsoever, arising directly, indirectly or consequentially from
the acquisition, installation, operation, replacement,
supervision, maintenance or repair of the said Satellite Dish or
with respect to any removal, loss, damage or destruction of said
Satellite Dish. This indemnification also includes any claims
made by any person against Landlord, any tenants, contractors,
employees, guests, business invitees or licensees with respect to
any such real or personal property damage or any physical or
other damage, harm or injury to any person or entity. This is
intended to be and hereby constitutes a total and complete,
unconditional and continuing indemnification, including, but not
limited to, all attorneys', accountants', appraisers', experts'
and other professional fees and costs and expenses either
incurred with or without litigation and also in connection with
the enforcement of the within terms and conditions; and
F. Tenant warrants and represents that it shall secure, with
companies and in amounts reasonably satisfactory to Landlord, all
required insurance, with waiver of subrogation by carrier, to
effectuate the within agreement so that Tenant adequately has
provided insurance coverage for all damage to the said Satellite
Dish as well as any and all other real and personal property
damage and personal injury which is the subject of Tenant's
complete indemnification as set forth above. Tenant shall, at
all times, provide Landlord, immediately upon request, with
proper documentary evidence of the payment of all insurance
policies together with copies of the policies or certified
certificates thereof with Landlord added as named insured; and
G. Tenant agrees that, at all times, the within terms and
conditions, and the permission granted hereunder, shall be
subject to the permits, consents, approvals, laws, ordinances and
regulations of all Federal, State, County and municipal bodies
and regulatory agencies, and Tenant shall move or remove, repair
or modify, all such items, if required to do so, at its sole cost
and expense; and
H. Tenant agrees that, contemporaneous with Tenant vacating the
Premises, Tenant shall remove all installations pertaining to
the Satellite Dish and the entire Building and all areas located
therein shall be restored to the original condition existing
prior to the installation of the said Satellite Dish at Tenant's
sole cost and expense; and
I. Except as may be modified herein with respect to any
non-liability and indemnification provisions, the terms,
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provisions, covenants and conditions of the said Lease Agreement shall
control and govern the rights of Landlord and the responsibilities and
obligations of Tenant; and
J. Tenant acknowledges and agrees that it shall secure the prior
written approval of Landlord with respect to the size, location
and installation of the Satellite Dish, and any replacement
thereof, which approval shall not be unreasonably withheld. As
set forth above, none of the foregoing shall impose any liability
or responsibility upon the Landlord; and
K. Tenant shall not create nor permit any security interest or lien
to attach to or remain on any portion of the Building or Demised
Premises as a result of this Lease Agreement or as a result of
the acquisition, installation, operation, maintenance or removal
of the Satellite Dish; and
L. Tenant shall comply in all respects with the requirements of
Section 7.2 and Article Twelve of the Lease Agreement.
IN WITNESS WHEREOF, the parties have executed this Lease as of the
date first above written.
PRINCETON SOUTH AT
LAWRENCEVILLE ONE, a New Jersey
Limited Partnership, LANDLORD
/s/ Xxxxxxx Xxxxxxxx BY: /s/ Xxxxxxx X. Xxxxx
------------------------- --------------------------------
Xxxxxxx Xxxxxxxx, Witness Xxxxxxx X. Xxxxx, Partner
of Princeton South at
Lawrenceville, General
Partner
PRINCETON VIDEO IMAGE, INC.,
a New Jersey Corporation,
TENANT
/s/ Xxxxxxxxx X. Xxxxxx By:/s/ Xxx XxXxxxxx
------------------------- --------------------------------
Xxxxxxxxx X. Xxxxxx, Controller Xxx XxXxxxxx, Vice President
(CORPORATE SEAL)
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EXHIBIT A
[FLOOR PLAN OF PREMISES]
EXHIBIT B
PLAN OF LEASEHOLD IMPROVEMENTS
Plan signed by Tenant on July l5, l997 incorporated herein by
reference.
EXHIBIT C
Exceptions to Section 24.l0
Tenant represents that no real estate broker or other person entitled
to payment of commission or other compensation showed the subject premises
to Tenant or participated in any way in the negotiation or execution of
this Lease between the parties excepting Xxxxxx, Xxxxx & Xxxxxxxxx, Inc.
(Xxxxx Xxxxx, Representative). Landlord shall pay the commissions of
Xxxxxx, Xxxxx & Xxxxxxxxx, Inc. pursuant to separate agreement between
Landlord and Xxxxxx, Xxxxx & Xxxxxxxxx, Inc.
