EXHIBIT 10.1
LEASE
FROM:
XXXX-XXXX PROPERTIES CO. NO. 11 L.P.
LESSOR
TO:
XXXX LABORATORIES, INC.
LESSEE
BUILDING:
000 XXXXXXXX XXXXX XXXX
XXXXXXXXX XXXX, XXX XXXXXX
TABLE OF CONTENTS
1. DESCRIPTION:............................................................... 3
2. TERM:...................................................................... 3
3. BASIC RENT:................................................................ 3
4. USE AND OCCUPANCY:......................................................... 3
5. CARE AND REPAIR OF PREMISES;ENVIRONMENTAL:................................. 3
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:.................................... 7
7. ACTIVITIES INCREASING FIRE INSURANCE RATES:................................ 7
8. ASSIGNMENT AND SUBLEASE:................................................... 7
9. COMPLIANCE WITH RULES AND REGULATIONS:..................................... 12
10. DAMAGE TO BUILDING:........................................................ 12
11. EMINENT DOMAIN:............................................................ 13
12. INSOLVENCY OF LESSEE:...................................................... 14
13. LESSOR'S REMEDIES ON DEFAULT:.............................................. 14
14. DEFICIENCY:................................................................ 14
15. SUBORDINATION OF LEASE:.................................................... 15
16. INTENTIONALLY OMITTED:..................................................... 15
17. RIGHT TO CURE LESSEE'S BREACH:............................................. 16
18. CONSTRUCTION LIENS:........................................................ 16
19. RIGHT TO INSPECT AND REPAIR:............................................... 16
20. SERVICES TO BE PROVIDED BY LESSOR;LESSOR'S EXCULPATION:.................... 16
21. INTERRUPTION OF SERVICES OR USE:........................................... 17
22. UTILITIES:................................................................. 18
23. ADDITIONAL RENT:........................................................... 19
24. ESTOPPEL:.................................................................. 24
25. HOLDOVER TENANCY:.......................................................... 25
26. RIGHT TO SHOW PREMISES:.................................................... 25
27. LESSOR'S WORK;LESSEE'S DRAWINGS:........................................... 25
28. WAIVER OF TRIAL BY JURY:................................................... 26
29. LATE CHARGE:............................................................... 26
30. LESSEE'S INSURANCE:........................................................ 26
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31. NO OTHER REPRESENTATIONS:.................................................. 28
32. QUIET ENJOYMENT:........................................................... 28
33. INDEMNITY:................................................................. 28
34. ARTICLE HEADINGS:.......................................................... 29
35. APPLICABILITY TO HEIRS AND ASSIGNS:........................................ 29
36. OUTSIDE PARKING SPACES:.................................................... 29
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY:................................... 29
38. PARTIAL INVALIDITY:........................................................ 29
39. LESSEE'S BROKER:........................................................... 30
40. PERSONAL LIABILITY:........................................................ 30
41. NO OPTION:................................................................. 30
42. DEFINITIONS:............................................................... 30
43. INTENTIONALLY OMITTED:..................................................... 31
44. NOTICES:................................................................... 31
45. ACCORD AND SATISFACTION:................................................... 31
46. EFFECT OF WAIVERS:......................................................... 31
47. LEASE CONDITION:........................................................... 32
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE:................................ 32
49. LESSOR'S RESERVED RIGHT:................................................... 32
50. AUTHORITY:................................................................. 32
51. AFTER-HOURS USE:........................................................... 32
52. INTENTIONALLY OMITTED:..................................................... 33
53. ADDITIONAL PARKING:........................................................ 33
54. MISCELLANEOUS:............................................................. 33
55. OPTION TO RENEW:........................................................... 34
56. LESSEE'S RIGHT OF FIRST OFFER:............................................. 36
57. GENERATOR:................................................................. 37
58. ROOF RIGHTS;TELECOM PROVIDER:.............................................. 37
59. LESSOR'S INSURANCE:........................................................ 38
60. ATTORNEY'S FEES:........................................................... 39
61. PLANNING BOARD APPROVAL:................................................... 39
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LEASE, is made the 6th day of February, 2003 ("Lease"), between
XXXX-XXXX PROPERTIES CO. NO. 11 L.P. ("Lessor") whose address is c/o Xxxx-Xxxx
Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000-0000 and XXXX
LABORATORIES, INC. ("Lessee") whose address is 0 Xxxxxx Xxxx, Xxxxxx, Xxx Xxxx
00000-0000.
PREAMBLE
BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the following terms
whenever used in this Lease shall have only the meanings set forth in this
section, unless such meanings are expressly modified, limited or expanded
elsewhere herein.
1. ADDITIONAL RENT shall mean all sums in addition to Fixed Basic Rent
payable by Lessee to Lessor pursuant to the provisions of this Lease.
2. BASE PERIOD COSTS shall mean the following:
A. Base Operating Costs: Operating Costs incurred during calendar
year 2004.
B. Base Real Estate Taxes: Real Estate Taxes incurred during
calendar year 2004.
C. Base Insurance Cost Expenses: Insurance Costs incurred during
calendar year 2004.
3. BUILDING shall mean 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxxx Xxxx, Xxx
Xxxxxx.
4. BUILDING HOLIDAYS shall be those shown on Exhibit E attached hereto and
made a part hereof.
5. BUILDING HOURS shall be Monday through Friday, 8:00 a.m. to 6:00 p.m.
and on Saturdays from 8:00 a.m. to 1:00 p.m., but excluding those
holidays as set forth on Exhibit E attached hereto and made a part
hereof. Notwithstanding anything hereinabove to the contrary, Lessee
shall have access to the Premises, the Building, the Common Facilities
and the parking areas, twenty-four (24) hours per day, seven (7) days
per week, fifty-two (52) weeks per year, subject to laws and
requirements of public authorities.
6. COMMENCEMENT DATE is June 1, 2003.
7. DEMISED PREMISES OR PREMISES shall be deemed to be eighty-nine thousand
five hundred ten (89,510) gross rentable square feet, which includes an
allocable share of the Common Facilities (as defined in Article 42(b)
hereof).
8. EXHIBITS shall be the following, attached to this Lease and
incorporated herein and made a part hereof.
Exhibit A Location of Premises
Exhibit X-0 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxx X Rules and Regulations
Exhibit C Lessor's Work; Lessee's Work
Exhibit C-1 Air Conditioning and
Heating Design Standards
Exhibit D Cleaning Services
Exhibit E Building Holidays
Exhibit F Lessee Estoppel Certificate
Exhibit G Commencement Date Agreement
9. EXPIRATION DATE shall be May 31, 2015.
10. FIXED BASIC RENT shall be payable as follows:
Period Yearly Rate Monthly Installment
------ ----------- -------------------
6/1/03 - 5/31/04 $ 0.00 $ 0.00
6/1/04-5/31/07 $ 2,030,086.90 $ 169,173.90
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6/1/07-5/31/11 $ 2,119,596.80 $ 176,633.07
6/1/11-5/31/15 $ 2,209,106.80 $ 184,092.23
11. LESSEE'S BROKER shall mean Xxxxxxx & Xxxxxxxxx of New Jersey, Inc.
12. LESSEE'S PERCENTAGE shall be one hundred percent (100%).
13. OFFICE BUILDING AREA is as set forth on Exhibit A-1 attached hereto and
made a part hereof.
14. PARKING SPACES shall mean all of the existing garage and outdoor
parking spaces in the Office Building Area, plus an additional
seventy-seven (77) parking spaces to be constructed by Lessor pursuant
to Article 53 hereof.
15. PERMITTED USE shall be general, executive and administrative office
use, and such uses incidental thereto, including, without limitation,
cafeteria, storage, training, computer room and fitness center/gym, and
for no other purpose.
16. SECURITY DEPOSIT shall be none.
17. TERM shall mean the period commencing on the Commencement Date through
and including the Expiration Date, unless extended pursuant to any
option contained herein.
18. LESSEE'S CONSTRUCTION PERIOD shall be defined as the period of time
prior to the Commencement Date in which Lessee takes possession of the
Premises in order to perform Lessee's Work in accordance with Exhibit C
attached hereto and made part hereof. Lessee's Construction Period
shall commence on the date hereof and shall end at 11:59 p.m. on the
day before the Commencement Date. All terms and conditions contained in
the Lease, except for those applicable to the payment of Fixed Basic
Rent and Additional Rent, shall apply during Lessee's Construction
Period. Lessor shall deliver the Premises to Lessee on the commencement
of Lessee's Construction Period, vacant and free of all tenancies and
occupancies.
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W I T N E S S E T H
For and in consideration of the covenants herein contained, and upon the terms
and conditions herein set forth, Lessor and Lessee agree as follows:
1. DESCRIPTION:
Lessor hereby leases to Lessee, and Lessee hereby hires from Lessor,
the Premises as defined in the Preamble which includes an allocable
share of the Common Facilities, as shown on the plan or plans,
initialed by the parties hereto, marked Exhibit A attached hereto and
made part of this Lease in the Building as defined in the Preamble
("Building") which is situated on that certain parcel of land ("Office
Building Area") as described on Exhibit A-1 attached hereto and made
part of this Lease, together, with the right to use in common with
other lessees of the Building, if any, their invitees, customers and
employees, those public areas of the Common Facilities as hereinafter
defined.
2. TERM:
The Premises are leased for a term to commence on the Commencement
Date, and to end at 12:00 midnight on the Expiration Date, all as
defined in the Preamble.
3. BASIC RENT:
Lessee shall pay to Lessor during the Term, the Fixed Basic Rent as
defined in the Preamble ("Fixed Basic Rent") payable in such coin or
currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts. The
Fixed Basic Rent shall accrue at the Yearly Rate as defined in the
Preamble and shall be payable, in advance, on the first (1st) day of
each calendar month during the Term at the Monthly Installments as
defined in the Preamble, except that a proportionately lesser sum may
be paid for the first and last months of the Term of this Lease if the
Term commences on a day other than the first (1st) day of the month, in
accordance with the provisions of this Lease herein set forth. Lessor
acknowledges receipt from Lessee of the first (1st) Monthly Installment
by check, subject to collection, for Fixed Basic Rent for the first
month of the Term. Lessee shall pay Fixed Basic Rent and any Additional
Rent as hereinafter provided, to Lessor at Lessor's above stated
address, or at such other place as Lessor may designate in writing,
without demand and without counterclaim, deduction or set off, except
as otherwise provided herein.
4. USE AND OCCUPANCY:
Lessee shall use and occupy the Premises for the Permitted Use as
defined in the Preamble. Lessor represents that the Permitted Use is
permitted by the current certificate of occupancy covering the
Building. Lessor represents that, to the best of its knowledge, there
are no violations currently affecting the Building and/or the Office
Building Area. In any event, Lessor shall, at its sole cost and
expense, be responsible for removing any violations currently affecting
the Building and/or the Office Building Area, unless Lessee has caused
same. Lessee, at its sole cost and expense, shall comply with the
Americans With Disabilities Act of 1990, as amended, within the
Premises necessitated by Lessee's particular manner of use of the
Premises or Lessee's alterations, additions or improvements within the
Premises, except for Lessor's Work (as defined in Exhibit C).
5. CARE AND REPAIR OF PREMISES;ENVIRONMENTAL:
(a) Lessee shall commit no act of waste and shall take good care
of the interior, non-structural portions of the Premises and
the fixtures and appurtenances therein, and shall, in the use
and occupancy of the Premises, conform to all laws, orders and
regulations of the federal, state and municipal governments or
any of their departments affecting Lessee's particular use or
manner of use of the Premises (as distinguished from its mere
use of the Premises) and with any and all environmental
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requirements resulting from Lessee's use of the Premises, this
covenant to survive the expiration or sooner termination of
this Lease. However, Lessee shall have the right to contest,
by appropriate proceedings diligently conducted in good faith
in the name of Lessee or, with the prior consent of Lessor,
which consent shall not be unreasonably withheld, conditioned
or delayed, in the name of Lessor or both, and without cost or
expense to Lessor, the validity or application of any law,
ordinance, order, rule, regulation or legal requirement of any
nature whatsoever having applicability to this Lease and
Lessee's obligations or rights hereunder. Lessee may also
postpone compliance with any such law, ordinance, order, rule,
regulation or legal requirement pending the outcome of any
contest proceedings, even if Lessee incurs a lien, charge or
liability by reason of such postponement, to the extent that
and for so long as: (i) such contest or postponement does not
subject Lessor to criminal or civil liability; (ii) Lessee
furnishes to Lessor security, reasonably satisfactory to
Lessor, against any lien, loss, fine, penalty, interest or
inquiry by reason of any contest or postponement; and (iii)
such contest does not impair or negatively affect any pending
sale or financing (current or prospective) involving the
Building. Lessor will not be required to join any proceedings
referred to in this Section unless the provision of any
applicable law, rule or regulation at the time in effect
requires such proceedings be brought by or in the name of
Lessor. In that event, Lessor will join the proceedings or
permit them to be brought in its name if Lessee pays all
related expenses (including Lessor's reasonable attorney's
fees). Lessor shall, subject to the same being included in
Operating Costs to the extent provided in Article 23 hereof,
make all necessary repairs (including maintenance and
replacements, if necessary) to the Premises, the Building,
HVAC, and the Building's mechanical, electrical, plumbing,
sprinkler and life safety and/or other utility systems, the
Common Facilities and to the assigned parking areas, if any
(including structure, roof and exterior), except where the
repair has been made necessary by misuse or neglect by Lessee
or Lessee's agents, servants, visitors or licensees, in which
event Lessor shall nevertheless make the repair but Lessee
shall pay to Lessor, as Additional Rent, within thirty (30)
days after demand, the actual out-of-pocket reasonable costs
therefor, together with appropriate supporting documentation.
In addition, Lessor shall be responsible for any repairs
necessitated by any misuse or neglect by Lessor, or its
agents, employees or contractors. All improvements made by
Lessee to the Premises, which are so attached to the Premises
that they cannot be removed without material injury to the
Premises, shall become the property of Lessor upon
installation. Not later than the last day of the Term, Lessee
shall, at Lessee's expense, remove all Lessee's personal
property and those improvements made by Lessee which have not
become the property of Lessor, including trade fixtures,
cabinetwork, movable paneling, partitions and the like, repair
all injury done by or in connection with the installation or
removal of said property and improvements, and surrender the
Premises in as good condition as they were at the beginning of
the Term, reasonable wear and damage by fire, the elements,
casualty, condemnation, eminent domain or other cause not due
to the misuse or neglect by Lessee, Lessee's agents, servants,
visitors or licensees excepted. All property of Lessee
remaining on the Premises after the last day of the Term of
this Lease shall be conclusively deemed abandoned and may be
removed by Lessor, and Lessee shall reimburse Lessor for the
actual out-of-pocket reasonable cost of such removal. Lessor
may have any such property stored at Lessee's risk and
expense, provided such expense is commercially competitive.
All existing cooling towers not being utilized by Lessee in
the Building shall remain the property of Lessor and may be
removed by Lessor, at its sole cost and expense, at any time.
Lessor shall comply with all laws, ordinances, orders, rules,
regulations or legal requirements affecting the Building with
which Lessee is not required to comply hereunder; provided,
however, that the cost of such compliance shall be included in
Operating Costs to the extent provided in Article 23 hereof.
Notwithstanding the foregoing, Lessor shall inform Lessee at
the time Lessor grants its consent to any alteration, addition
or improvement, including Lessee's Work (as defined in Exhibit
C), whether Lessor shall require Lessee to remove the
alteration, addition or improvement at the end of the Term.
Lessor hereby approves the plans for Lessee's Work dated
January 20, 2003, prepared by The Xxxxxxxx Group, except
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that notwithstanding anything contained in such plans,
Lessor's Work shall only include Lessor's Work as set forth in
Exhibit C, and in the event of any conflict between such plans
and Exhibit C hereof, Exhibit C shall control. If Lessor fails
to designate an item for removal at the time it consents to
such alteration, addition or improvement, such item may remain
in the Premises at the expiration or earlier termination of
this Lease. In no event shall Lessee be required to remove any
part of Lessee's Work or any future alterations, additions or
improvements that constitute typical and customary office
improvements, including, but not limited to, the data,
telephone, telecommunications and computer wiring and cabling,
computer room, additional staircase in atrium and cafeteria.
In addition, Lessee shall have no obligation to restore the
loading dock on the second (2nd) floor of the Building.
ENVIRONMENTAL
(b) COMPLIANCE WITH ENVIRONMENTAL LAWS. Lessee shall, at Lessee's
own expense, promptly comply with each and every federal,
state, county and municipal law, ordinance, rule, regulation,
order, directive and requirement, now or hereafter existing
relating to the environment, health and human safety
(collectively, "Environmental Laws"), applicable to Lessee's
use of the Premises, Lessee, Lessee's operations at the
Premises, or all of them. Lessee shall not be responsible for
the remediation of: (i) any preexisting environmental
conditions; or (ii) Contaminants (as hereinafter defined) in
violation of Environmental Laws, except to the extent that
Lessee or Lessee's Representative (as hereinafter defined) has
caused such condition or violation, or exacerbated such
condition or violation, in which event, Lessee shall only be
responsible to the extent such condition or violation has been
caused by Lessee or Lessee's Representative or exacerbated by
Lessee or Lessee's Representative. To the best of Lessor's
knowledge, there are no Contaminants present in the Building
and the Office Building Area which are in violation of
Environmental Laws, except as may be set forth in that certain
report dated October 15, 2002, prepared for Lessee by Xxxxxxx
Environmental Group. To the extent there may be Contaminants
present in the Building and the Office Building Area which are
in violation of Environmental Laws (not caused by or
exacerbated by Lessee or Lessee's Representative as set forth
above), Lessor shall, as part of Lessor's Work, take all steps
and/or perform all work necessary to remove such Contaminants
or remediate the condition in compliance with Environmental
Laws, and thereafter deliver to Lessee copies of all
reasonable documentation evidencing such compliance with
Environmental Laws. Nothing contained herein shall be deemed
to prevent Lessee from using ordinary office and cleaning
supplies in reasonable quantities in the Premises.
(c) ISRA COMPLIANCE. To the extent necessary, Lessee shall, at
Lessee's own expense, comply with the Industrial Site Recovery
Act, N.J.S.A. 13:1K-6 et seq., the regulations promulgated
thereunder, and any amending and successor legislation and
regulations (collectively, "ISRA") arising out of Lessee's
acts or omissions.
To the extent necessary, Lessor shall, at Lessor's own
expense, comply with ISRA arising out of Lessor's acts or
omissions.
(d) INFORMATION. At no expense to Lessor, Lessee shall promptly
provide all information and sign all reasonable documents
requested by Lessor with respect to compliance with
Environmental Laws.
At no expense to Lessee, Lessor shall promptly provide all
information and sign all reasonable documents requested by
Lessee with respect to compliance with Environmental Laws.
(e) LESSOR AUDIT. Lessee shall permit Lessor and its
representatives access to the Premises, from time to time,
upon reasonable prior notice, to conduct an environmental
assessment, investigation and sampling. Such entry shall be
performed in a manner using reasonable efforts to minimize
interference with Lessee's use of the Premises, and Lessor
shall be accompanied by a representative of Lessee. If it is
determined that Lessee has violated the provisions of this
Article, and such violation has not been remedied, after the
expiration of applicable notice and cure periods, the actual
out-of-pocket reasonable cost of the assessment, investigation
5
and sampling shall be borne by Lessee, after delivery to
Lessee of reasonable documentation evidencing such violation.
(f) LESSEE REMEDIATION. Should any assessment, investigation or
sampling reveal the existence of any spill, discharge or
placement of Contaminants in, on, under, or about, or
migrating from the Premises, the Building or the Office
Building Area, caused by Lessee or a Lessee's Representative
(as hereinafter defined), then, in addition to being in
default under this Lease, after the expiration of the
applicable notice and cure periods, and Lessor having all
rights available to Lessor under this Lease and by law by
reason of such default, Lessee shall, at Lessee's own expense,
in accordance with Environmental Laws, undertake all action
reasonably required by any governmental authority, including,
without limitation, promptly obtaining and delivering to
Lessor, copies of reasonable documentation evidencing such
compliance with Environmental Laws. For purposes of this
Article, the term "Lessee's Representative" shall mean any
shareholder, officer, director, member, partner, employee,
agent, licensee, assignee, sublessee or invitee of Lessee
(other than Lessor or Lessor's Representatives or any lessee
or other occupant of the Building (other than a Lessee's
Representative)) for whom Lessee is legally responsible.
Lessee's remedial action may involve engineering or
institutional controls, a groundwater classification exception
area or well restriction area, and Lessee's remedial action
shall meet the least stringent published or unpublished
remediation standards for soil, surface water, groundwater and
drinking water for continued use of the Building as commercial
(i.e., "non-residential standards"). Promptly upon completion
of all required investigatory and remedial activities, Lessee
shall, at Lessee's own expense, to Lessor's reasonable
satisfaction, restore the affected areas of the Premises, the
Building or the Office Building Area, as the case may be, from
any damage or condition caused by the investigatory or
remedial work performed by Lessee.
(g) ENVIRONMENTAL QUESTIONNAIRE. Within fifteen (15) days
following Lessor's request, Lessee shall complete, execute and
deliver to Lessor an environmental questionnaire in form and
substance reasonably satisfactory to Lessor.
(h) ENVIRONMENTAL DOCUMENTS AND CONDITIONS. For purposes of this
Article, the term "Environmental Documents" shall mean all
environmental documentation concerning the Building or the
Office Building Area, in the possession or under the control
of Lessee, including, without limitation, plans, reports,
correspondence and submissions. During the Term of this Lease
and subsequently thereafter, promptly upon receipt by Lessee
or Lessee's Representative, Lessee shall deliver to Lessor,
copies of all Environmental Documents concerning or generated
by or on behalf of Lessee, whether currently or hereafter
existing, to the extent then in Lessee's possession or
control. In addition, if either party knows that there is an
environmental condition within the Building and/or the Office
Building Area that poses a threat to health or human safety,
such party shall promptly notify the other party.
(i) LESSOR'S RIGHT TO PERFORM LESSEE'S OBLIGATIONS.
Notwithstanding anything to the contrary set forth in this
Lease, in the event, pursuant to this Lease, Lessee is
required to undertake any sampling, assessment, investigation
or remediation to the extent required by Environmental Laws,
with respect to the Premises, the Building or the Office
Building Area, as the case may be, then, at Lessor's
reasonable discretion, Lessor shall have the right, upon
notice to Lessee, and after the expiration of the applicable
notice and cure periods, from time to time, to perform such
activities at Lessee's expense, and all actual out-of-pocket
reasonable sums incurred by Lessor shall be paid by Lessee, as
Additional Rent, within thirty (30) days after written
request, together with reasonable documentation.
(j) INDEMNITY. Lessee shall indemnify, defend and hold harmless
Lessor, Lessor's officers, directors, shareholders, employees
and personal or legal representatives from and against any and
all claims, liabilities, losses, damages (excluding
consequential damages), penalties and costs, foreseen or
unforeseen, including, without limitation, reasonable counsel,
engineering and other professional or expert fees, which an
indemnified party may incur, resulting directly or indirectly,
wholly or partly from Lessee's obligations under this Article.
In no event shall this indemnity
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be deemed to cover: (i) preexisting environmental conditions;
or (ii) Contaminants in violation of Environmental Laws in the
Premises, unless such violation is caused by, or exacerbated
by Lessee, its agents, employees, contractors or invitees, in
which event, Lessee shall only be responsible to the extent
the violation has been caused by, or exacerbated by Lessee,
its agents, employees, contractors or invitees.
Lessor shall indemnify, defend and hold harmless Lessee,
Lessee's officers, directors, shareholders, employees and
personal or legal representatives from and against any and all
claims, liabilities, losses, damages (excluding consequential
damages), penalties and costs, foreseen or unforeseen,
including, without limitation, reasonable counsel, engineering
and other professional or expert fees, which an indemnified
party may incur, resulting directly or indirectly, wholly or
partly from Lessor's obligations under this Article.
(k) SURVIVAL. This Article shall survive the expiration or earlier
termination of this Lease. Lessee's failure to abide by the
terms of this Article shall be restrainable or enforceable, as
the case may be, by injunction.
(l) INTERPRETATION. As used in this Article, the term
"Contaminants" shall include, without limitation, any
regulated substance, mold, fungus, mildew, toxic substance,
hazardous substance, hazardous waste, pollution, pollutant,
contaminant, petroleum, asbestos or polychlorinated biphenyls,
as defined or referred to in any Environmental Laws. Where a
law or regulation defines any of these terms more broadly then
another, the broader definition shall apply.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:
Lessee shall not make any alterations, additions or improvements in, to
or about the Premises, with the exception of decorative or
non-structural alterations, additions or improvements costing less than
FIFTY THOUSAND AND 00/100 DOLLARS ($50,000.00) for each alteration,
addition or improvement, without first obtaining the written consent of
Lessor, which consent will not be unreasonably withheld, conditioned or
delayed if they do not affect the Building structure or systems or
require a Building permit. If Lessor does not consent, Lessor shall
specify in writing, the reason(s) therefor. Lessor hereby approves the
closing off of the loading dock on the second (2nd) floor, and Lessee's
installation of a second (2nd) point of entry on the south side of the
Building.
However, Lessor will, at Lessee's sole cost and expense, assist Lessee
in and execute any reasonable documents required for the procurement of
any licenses, permits, "sign-offs", approvals or certificates which may
be required by any governmental agency or authority with respect to any
alterations, additions or improvements in, to or about the Premises
consented to by Lessor, and/or for obtaining any services, utilities or
facilities from any public utility or other provider supplying the same
to the Building.
7. ACTIVITIES INCREASING FIRE INSURANCE RATES:
Lessee shall not do or suffer anything to be done on the Premises which
will increase the rate of fire insurance on the Building unless Lessee
pays to Lessor, within thirty (30) days after written demand and
delivery to Lessee of reasonable documentation evidencing such
increased fire insurance rate , the full amount of any increase in the
rate of fire insurance on the Building resulting therefrom. However,
Lessor represents and warrants to Lessee that, to the best of Lessor's
knowledge, Lessee's use of the Premises for the purposes permitted by
this Lease will not subject Lessee to any obligations (including, but
not limited to, payment of increased premiums) regarding Lessor's fire
insurance policies.
8. ASSIGNMENT AND SUBLEASE:
Provided Lessee is not in default of any provisions of this Lease,
after the expiration of the applicable notice and cure periods, Lessee
may assign this Lease or sublease all or any part of the Premises to
any party subject to the following:
7
a. In the event Lessee desires to assign this Lease or sublease
all or part of the Premises to any other party, the terms and
conditions of such assignment or sublease shall be
communicated to Lessor in writing no less than thirty (30)
days prior to the effective date of any such sublease or
assignment, and, prior to such effective date, Lessor shall
have the option, exercisable in writing to Lessee within
twenty (20) days following Lessor's receipt of Lessee's
communication, to: (i) sublease such space from Lessee at the
lower rate of (a) the rental rate per rentable square foot of
Fixed Basic Rent and Additional Rent then payable pursuant to
this Lease, or (b) the terms set forth in the proposed
sublease; (ii) recapture in the case of subletting, that
portion of the Premises to be sublet or all of the Premises in
the case of an assignment ("Recapture Space") so that such
prospective sublessee or assignee shall then become the sole
Lessee of Lessor hereunder; or (iii) recapture the Recapture
Space for Lessor's own use, in either of the aforesaid events,
Lessee shall be fully released from any and all obligations
hereunder with respect to the Recapture Space. Notwithstanding
the foregoing, Lessor shall have no right to exercise its
rights pursuant to clauses (i), (ii) or (iii) above, if (x)
the space that Lessee proposes to sublet is less than fifty
percent (50%) of the Premises, without regard to the term of
such subletting, or (y) the space that Lessee proposes to
sublet is equal to or greater than fifty percent (50%) of the
Premises and the term of such subletting (including renewal
options, if any) is to expire at any time prior to the last
twelve (12) months of the Term or the Extension Term (as
hereinafter defined).
b. In the event that Lessor elects not to recapture this Lease or
sublease the Premises as hereinabove provided, Lessee may
nevertheless assign this Lease or sublet the whole or any
portion of the Premises, subject to Lessor's prior written
consent, which consent shall not be unreasonably withheld,
conditioned or delayed on the basis of the following terms and
conditions:
i. Lessee shall provide to Lessor the name and address
of the assignee or sublessee.
ii. The assignee shall assume, by written instrument, all
of the obligations of this Lease, and a copy of such
assumption agreement shall be furnished to Lessor
within ten (10) business days of its execution. Any
sublease shall expressly acknowledge that sublessee's
rights against Lessor shall be no greater than those
of Lessee. Lessee further agrees that notwithstanding
any such subletting, no other and further subletting
of the Premises by Lessee or any person claiming
through or under Lessee shall or will be made except
upon compliance with and subject to the provisions of
this Article 8.
iii. Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which
this Lease is or shall be subordinate, and that in
the event of default by Lessee under this Lease,
after the expiration of the applicable notice and
cure periods, Lessor may, at its option, take over
all of the right, title and interest of Lessee, as
sublessor, under such sublease, and such sublessee
shall, at Lessor's option, attorn to Lessor pursuant
to the then executory provisions of such sublease,
except that Lessor shall not: (1) be liable for any
previous act or omission of Lessee under such
sublease; or (2) be subject to any offset not
expressly provided in such sublease which theretofore
accrued to such sublessee to which Lessor has not
specifically consented in writing or by any previous
prepayment of more than one (1) month's rent.
iv. Lessee and each assignee shall be and remain liable
for the observance of all the covenants and
provisions of this Lease, including, but not limited
to, the payment of Fixed Basic Rent and Additional
Rent reserved herein, through the entire Term of this
Lease, as the same may be renewed, extended or
otherwise modified; provided, however, that Lessee
shall have no liability during any extension to the
Term beyond twenty-two (22) years from the
Commencement Date, unless the assignee is an
Affiliate of Lessee, or for any property other than
the Building.
v. Lessee shall promptly pay to Lessor, fifty percent
(50%) of any consideration received for any
assignment (excluding goodwill and purchase price of
stock
8
or business/assets) and/or fifty percent (50%) of the
rent, as and when received, in excess of the rent
required to be paid by Lessee for the area sublet
computed on the basis of an average square foot rent
for the gross square footage Lessee has leased, after
first deducting on a ratable basis over the term of
any sublease or the remaining Term of this Lease, all
reasonable costs and expenses incurred by Lessee
(including, without limitation, brokerage fees,
attorney's fees, advertising costs, rent concessions,
work and improvement allowances) and Lessee's
unamortized costs of any alterations and improvements
to the Premises made by Lessee. Any consideration for
this Lease reasonably allocated to Lessee's
furniture, fixtures and equipment may be retained by
Lessee in its entirety.
vi. In any event, the acceptance by Lessor of any rent
from the assignee or from any sublessee or the
failure of Lessor to insist upon the strict
performance of any of the terms, conditions and
covenants herein, shall not release Lessee herein,
nor any assignee assuming this Lease, from any and
all of the obligations herein during and for the
entire Term of this Lease.
vii. In Lessor's reasonable judgment, the proposed
assignee or sublessee is engaged in a business or
activity, and the Premises, or the relevant part
thereof, will be used in a manner, which: (a) is in
keeping with the then standard of the Building; and
(b) is limited to the use of the Premises as set
forth in the Preamble.
viii. The proposed assignee or sublessee shall not then be
an occupant of any part of the Building or any other
building then owned by Lessor or its affiliates
within a three (3) mile radius of the Building,
provided that Lessor has equivalent space available
in the Building or in any other building then owned
by Lessor or its affiliates within a three (3) mile
radius of the Building.
ix. The proposed assignee or sublessee is not an entity
or a person with whom Lessor is or has been, within
the preceding three (3) month period, negotiating to
lease space in the Building or any other building
owned by Lessor or its affiliates within a three (3)
mile radius of the Building, provided that Lessor has
equivalent space then available.
x. There shall not be more than eight (8) sublessees,
other than Affiliates of Lessee (as hereinafter
defined), in the Premises.
xi. Lessee shall not advertise the subtenancy for less
than the then current market rent per rentable square
foot for the Premises as though the Premises were
vacant.
xii. Lessee shall not have: (a) publicly advertised the
availability of the Premises without prior notice to
and approval by Lessor (which approval shall not be
unreasonably withheld, conditioned or delayed),; or
(b) listed the Premises for subletting or assignment
with a broker, agent or representative who does not
waive any entitlement to a commission or other fee
from Lessor in the event of a recapturing of the
Premises.
xiii. The proposed occupancy shall not, in Lessor's
reasonable opinion, increase the density of
population using the Premises to exceed one (1)
person per one hundred (100) gross rentable square
feet of space or exceed the parking allocation
presently provided for in this Lease.
xiv. The proposed assignee or sublessee shall only use the
Premises for the Permitted Use; provided, however,
that such assignee or sublessee shall not use the
Premises as a medical or dental treatment facility.
xv. The proposed assignee or sublessee shall not be
entitled, directly or indirectly, to diplomatic or
sovereign immunity and shall be subject to the
service of process in, and the jurisdiction of, the
state courts of New Jersey.
9
xvi. Lessor shall require a FIVE HUNDRED AND 00/100 DOLLAR
($500.00) payment to cover its handling charges for
each request for consent to any sublet or assignment
prior to its consideration of the same. Lessee
acknowledges that its sole remedy with respect to any
assertion that Lessor's failure to consent to any
sublet or assignment is unreasonable shall be the
remedy of specific performance and Lessee shall have
no other claim or cause of action against Lessor as a
result of Lessor's actions in refusing to consent
thereto, plus reasonable attorney's fees if Lessee
prevails. Lessee's waiver as to no other claims or
causes of action as a result of Lessor's actions in
refusing to consent hereunder shall not apply if it
is judicially determined that Lessor acted in bad
faith or maliciously with respect to its refusal to
consent hereunder. The parties agree that the
question of Lessor's reasonableness in refusing to
consent hereunder may be submitted to expedited
arbitration in accordance with the rules of the
office of the American Arbitration Association (or
any successor) nearest to the Building.
xvii. Within thirty (30) days after Lessor receives
Lessee's notice requesting Lessor's consent to a
specific subletting or assignment, Lessor shall
notify Lessee whether it consents to such subletting
or assignment. If Lessor denies Lessee's request for
consent to a specific subletting or assignment,
Lessor shall specify in writing, the reason(s)
therefor. If Lessor fails to respond within such
thirty (30) day period, Lessee may send Lessor a
second notice which notice shall provide in
capitalized and bold type letters that Lessor's
failure to respond to such request within five (5)
business days shall be deemed Lessor's consent to
such subletting or assignment, and if Lessor fails to
respond to such request within five (5) business days
after Lessor's receipt of such second notice, Lessor
shall be deemed to have consented to such subletting
or assignment.
c. If Lessee is a corporation other than a corporation whose
stock is listed and traded on a nationally recognized stock
exchange, the provisions of Section a. shall apply to a
transfer (however accomplished, whether in a single
transaction or in a series of related or unrelated
transactions) of stock (or any other mechanism such as, by way
of example, the issuance of additional stock, a stock voting
agreement or change in class(es) of stock) which results in a
change of "control" (as hereinafter defined) of Lessee as if
such transfer of stock (or other mechanism) which results in a
change of control of Lessee were an assignment of this Lease,
and if Lessee is a partnership or joint venture, said
provisions shall apply with respect to a transfer (by one or
more transfers) of an interest in the distributions of profits
and losses of such partnership or joint venture (or other
mechanism, such as, by way of example, the creation of
additional general partnership or limited partnership
interests) which results in a change of control of such a
partnership or joint venture, as if such transfer of an
interest in the distributions of profits and losses of such
partnership or joint venture which results in a change of
control of such partnership or joint venture were an
assignment of this Lease. The provisions of clauses (a) and
(b) of this Article shall not apply to transactions entered
into by Lessee with: (i) a Lessee Affiliate (as hereinafter
defined); or (ii) a corporation into or with which Lessee is
merged or consolidated, or with an entity to which all or
substantially all of Lessee's business/assets are transferred
or to any sale of all or substantially all of Lessee's stock,
or a transfer of all or substantially all of partnership or
membership interests, provided (a) Lessee is not then in
monetary default under this Lease, or in materially
non-monetary default under this Lease, after the expiration of
the applicable notice and cure periods, (b) in the case of
clause (ii) above, such merger, consolidation or transfer of
business/assets, sale of stock or transfer of partnership or
membership interests is for a good business purpose and not
principally for the purpose of transferring the leasehold
estate created hereby, and (c) in the case of clause (ii)
above, the assignee or successor entity has a net worth as
evidenced by financial statements delivered to Lessor and
certified by an independent certified public accountant in
accordance with generally accepted accounting practices
consistently applied ("Net Worth") after such merger,
consolidation or acquisition and assumption equal to or
greater than the Net Worth of Lessee on the date hereof.
Lessee shall deliver to Lessor proof reasonably satisfactory
as to Lessee's Net Worth within ten (10) days prior to the
effective date of the transaction. In determining the Net
Worth of the assignee or successor for purposes of this
Section, Lessee may, at
10
its option, include the Net Worth of any surviving predecessor
Lessee continuing to have liability on or under this Lease
and/or any guarantor of Lessee's obligations under this Lease.
A "Lessee Affiliate" or "Affiliate of Lessee" means a
corporation or other entity controlled by, controlling or
under common control with Lessee. As used in this Lease, the
terms "control", "controlled by" or "under common control
with" shall mean ownership of (x) more than fifty percent
(50%) of the outstanding voting stock of a corporation (or
other majority equity and control interest if not a
corporation), and (y) the possession of power to direct or
cause the direction of the management and policy of such
corporation or other entity, whether through the ownership of
voting securities, by statute or according to the provisions
of a contract. Lessee may sublet all or any portion of the
Premises or assign this Lease to an Affiliate of Lessee
without Lessor's consent or recapture rights, provided that
Lessee shall continue to be liable under this Lease.
Notwithstanding anything contained herein, Lessee shall have
the right, without being required to obtain the consent of
Lessor or being subject to Lessor's recapture rights
hereunder, to permit portions of the Premises to be used under
so called "desk sharing" arrangements by persons or entities
which are an Affiliate of Lessee (any such person or entity, a
"User"), and which User shall only use desk space in the
Premises for the purposes permitted by this Lease, and subject
to and in compliance with the following terms and conditions:
(1) A User shall have no rights under this Lease;
(2) no separate entrances to the Premises from public
areas shall be constructed to access the space used
by any User;
(3) any breach or violation of this Lease by a User shall
be deemed to be and shall constitute a default by
Lessee under this Lease, and any act or omission of a
User shall be deemed to be and shall constitute the
act or omission of Lessee under this Lease;
(4) the right of a User to occupy a portion of the
Premises shall not be deemed to be an assignment of,
or sublease under, this Lease and any occupancy of
the Premises shall automatically terminate upon
expiration or earlier termination of this Lease;
(5) Lessee hereby indemnifies and holds harmless Lessor,
any lessor and any mortgagee against loss, claim or
damage (excluding consequential) arising from the
acts or omission of any User; and
(6) no User shall be entitled, directly or indirectly, to
diplomatic or sovereign immunity, and each User shall
be subject to the service of process at and the
jurisdiction of the courts of, the State of New
Jersey.
The provisions herein restricting transfers of Lessee's stock
shall not apply to any stock transfers among the existing
shareholders of Lessee or their immediate family members by
reason of estate planning, inheritance, gift , devise, bequest
or otherwise, provided that the Net Worth of Lessee shall
remain unchanged as a result of such transfer(s).
d. In the event that any or all of Lessee's interest in the
Premises and/or this Lease is transferred by operation of law
to any trustee, receiver, or other representative or agent of
Lessee, or to Lessee as a debtor in possession, and
subsequently any or all of Lessee's interest in the Premises
and/or this Lease is offered or to be offered by Lessee or any
trustee, receiver, or other representative or agent of Lessee
as to its estate or property (such person, firm or entity,
"Grantor"), for assignment, conveyance, lease, or other
disposition to a person, firm or entity other than Lessor
(each such transaction, a "Disposition"), it is agreed that
Lessor has and shall have a right of first refusal to
purchase, take, or otherwise acquire, the same upon the same
terms and conditions as Grantor thereof shall accept upon such
Disposition to such other person, firm, or entity, and as to
each such Disposition, Grantor shall give written notice to
Lessor in reasonable detail of all of the terms and conditions
of such Disposition within twenty (20) days next following its
determination to accept the
11
same but prior to accepting the same, and Grantor shall not
make the Disposition until and unless Lessor has failed or
refused to accept such right of first refusal as to the
Disposition as set forth herein.
Lessor shall have thirty (30) days next following its receipt
of the written notice as to such Disposition in which to
exercise the option to acquire Lessee's interest by such
Disposition, and the exercise of the option by Lessor shall be
effected by notice to that effect sent to the Grantor, but
nothing herein shall require Lessor to accept a particular
Disposition or any Disposition, nor does the rejection of any
one such offer of first refusal constitute a waiver or release
of the obligation of the Grantor to submit other offers
hereunder to Lessor. In the event Lessor accepts such offer of
first refusal, the transaction shall be consummated pursuant
to the terms and conditions of the Disposition described in
the notice to Lessor. In the event Lessor rejects such offer
of first refusal, Grantor may consummate the Disposition with
such other person, firm, or entity, but any decrease in price
of more than five percent (5%) of the price sought from Lessor
or any change in the terms of payment for such Disposition
shall constitute a new transaction requiring a further option
of first refusal to be given to Lessor hereunder.
e. Without limiting any of the provisions of Articles 12 and 13
hereof, if pursuant to the Federal Bankruptcy Code ( "Code"),
or any similar law hereafter enacted having the same general
purpose, Lessee is permitted to assign this Lease
notwithstanding the restrictions contained in this Lease,
adequate assurance of future performance by an assignee
expressly permitted under such Code shall be deemed to mean
the deposit of cash security in an amount equal to the sum of
one (1) year's Fixed Basic Rent plus an amount equal to the
Additional Rent for the calendar year preceding the year in
which such assignment is intended to become effective, which
deposit shall be held by Lessor for the balance of the Term,
as security for the full performance of all of Lessee's
obligations under this Lease, to be held and applied in the
manner specified for the Security Deposit in Article 16
hereof.
f. Except as specifically set forth herein, no portion of the
Premises or of Lessee's interest in this Lease may be acquired
by any other person or entity, whether by assignment,
mortgage, sublease, transfer, operation of law or act of
Lessee, nor shall Lessee pledge its interest in this Lease or
in any Security Deposit required hereunder.
9. COMPLIANCE WITH RULES AND REGULATIONS:
Lessee shall observe and comply with the rules and regulations
hereinafter set forth in Exhibit B attached hereto and made a part
hereof, and with such further reasonable rules and regulations as
Lessor may prescribe, on written notice to Lessee, for the safety, care
and cleanliness of the Building, and the comfort, quiet and convenience
of other occupants of the Building, if any. Lessor agrees to enforce
each rule and regulation in a uniform and nondiscriminatory manner.
Lessee shall not place a load upon any floor of the Premises exceeding
the floor load per square foot area which it was designed to carry and
which is allowed by law. Lessor reserves the right to reasonably
prescribe the weight and position of all safes, business machines and
mechanical equipment. Such installations shall be placed and maintained
by Lessee, at Lessee's expense, in settings sufficient, in Lessor's
reasonable judgment, to absorb and prevent vibration, noise and
annoyance.
10. DAMAGE TO BUILDING:
If the Building or the parking area(s) servicing the Building is
damaged by fire or any other cause to such extent the cost of
restoration, as reasonably estimated by Lessor, will equal or exceed
twenty-five percent (25%) of the replacement value of the Building
(exclusive of foundations) just prior to the occurrence of the damage,
then Lessor may, no later than the thirtieth (30th) day following the
date of damage, give Lessee a notice of election to terminate this
Lease (provided that Lessor shall not discriminate against Lessee in
its decision to terminate this Lease), or if the cost of restoration
will equal or exceed fifty percent (50%) of such replacement value and
if the Premises shall not be reasonably usable for the purpose for
which they are leased hereunder, or if restoration of the damage will
require more than nine (9) months to complete based upon Lessor's
estimate or that of its architect/engineer (a copy
13
of which shall be delivered by Lessor to Lessee within thirty (30) days
after the date of such damage), or if such damage is not fully repaired
and reasonable access to the Premises restored within nine (9) months
from the date of damage, then, in any such event Lessee may, no later
than the thirtieth (30th) day following the date of damage or following
the end of said nine (9) month period, give Lessor a notice of election
to terminate this Lease. In either of said events, this Lease shall be
deemed to terminate on the thirtieth (30th) day after the giving of
said notice, and Lessee shall surrender possession of the Premises
within a reasonable time thereafter, and the Fixed Basic Rent and any
Additional Rent, shall be apportioned as of the date of said surrender,
and any Fixed Basic Rent or Additional Rent paid for any period beyond
said date shall be repaid to Lessee (such obligation to survive the
termination of this Lease). If the cost of restoration shall not
entitle Lessor to terminate this Lease, or if, despite the cost, Lessor
does not elect to terminate this Lease, Lessor shall restore the
Building and the Premises with reasonable promptness and Lessee shall
have no right to terminate this Lease, except as set forth above. The
time period set forth above for completion of the restoration shall be
extended for a period not to exceed ninety (90) days for Force Majeure
(as hereinafter defined). Lessor need not restore fixtures and
improvements owned by Lessee; provided, however, that any improvements
that were installed by Lessee and became the property of Lessor upon
installation pursuant to the terms of this Lease, shall be insured by
Lessor and restored by Lessor pursuant to the terms and provisions
hereof. Notwithstanding anything to the contrary contained herein, if
more than twenty-five percent (25%) of the Premises shall be rendered
untenantable for the normal conduct of Lessee's business as a result of
a fire or casualty during the last twelve (12) months of the Term, then
the terms and conditions of this Article 10 shall continue to control
and be binding upon Lessor and Lessee except that: (i) Lessee shall
have the right to terminate this Lease by giving notice to Lessor in
accordance with this Article 10 if Lessor's estimated time of
restoration provides that the substantial completion of the repairs of
the Premises which are Lessor's responsibility will take longer than
one hundred twenty (120) days from the date of the casualty; and (ii)
the time period during which Lessor shall substantially complete the
restoration shall be the later of (x) the date specified in Lessor's
estimate and (y) one hundred twenty (120) days after the date of such
casualty, as either such date may be extended for a period not to
exceed thirty (30) days for Force Majeure.
In any case in which use of the Premises is affected by any damage to
the Building, there shall be either an abatement or an equitable
reduction in Fixed Basic Rent and Additional Rent, and an equitable
adjustment in the Base Period Costs as established in the Preamble,
depending on the period for which and the extent to which the Premises
are not reasonably usable for the purpose for which they are leased
hereunder. The words "restoration" and "restore" as used in this
Article 10 shall include repairs. If the damage results from the gross
negligence or willful misconduct of Lessee, Lessee's agents, servants,
visitors or licensees, Lessee shall not be entitled to any abatement or
reduction in Fixed Basic Rent, except to the extent of any rent
insurance received by Lessor.
11. EMINENT DOMAIN:
If Lessee's use of the Premises is materially affected due to the
taking by eminent domain of: (a) the Premises or any part thereof or
any estate therein; or (b) any other part of the Building (including
the parking area(s) servicing the Building), then, in either event,
this Lease shall terminate on the date when title vests pursuant to
such taking. The Fixed Basic Rent and any Additional Rent, shall be
apportioned as of said termination date and any Fixed Basic Rent or
Additional Rent paid for any period beyond said date, shall be repaid
to Lessee (such obligation to survive the termination of this Lease).
Lessee shall not be entitled to any part of the award for such taking
or any payment in lieu thereof, but Lessee may file a separate claim
for any taking of fixtures and improvements owned by Lessee which have
not become Lessor's property, and for moving expenses, provided the
same shall, in no way, affect or diminish Lessor's award. In the event
of a partial taking which does not effect a termination of this Lease
but does deprive Lessee of the use of a portion of the Premises, there
shall either be an abatement or an equitable reduction of the Fixed
Basic Rent and Additional Rent, and an equitable reduction of the Base
Period Costs as established in the Preamble depending on the period for
which and the extent to which the Premises so taken are not reasonably
usable for the purpose for which they are leased hereunder.
13
12. INSOLVENCY OF LESSEE:
Either: (a) the appointment of a receiver to take possession of all or
substantially all of the assets of Lessee; or (b) a general assignment
by Lessee for the benefit of creditors; or (c) any action taken or
suffered by Lessee under any insolvency or bankruptcy act, shall
constitute a default of this Lease by Lessee, and Lessor may terminate
this Lease forthwith and upon notice of such termination Lessee's right
to possession of the Premises shall cease, and Lessee shall then quit
and surrender the Premises to Lessor but Lessee shall remain liable as
hereinafter provided in Article 14 hereof.
13. LESSOR'S REMEDIES ON DEFAULT:
If Lessee defaults in the payment of Fixed Basic Rent, or any
Additional Rent, or defaults in the performance of any of the other
covenants and conditions hereof or permits the Premises to become
deserted, abandoned or vacated, Lessor may give Lessee notice of such
default, and if Lessee does not cure any Fixed Basic Rent or Additional
Rent default within ten (10) days or other default within thirty (30)
days after giving of such notice (or if such other default is of such
nature that it cannot be completely cured within such period, if Lessee
does not commence such curing within such thirty (30) days and
thereafter proceed with reasonable diligence and in good faith to cure
such default), then Lessor may terminate this Lease on not less than
ten (10) days' notice to Lessee, and on the date specified in said
notice, Lessee's right to possession of the Premises shall cease but
Lessee shall remain liable as hereinafter provided. If this Lease shall
have been so terminated by Lessor pursuant to Articles 12 or 13 hereof,
Lessor may at any time thereafter resume possession of the Premises by
any lawful means and remove Lessee or other occupants and their
effects. Lessee shall pay to Lessor, within thirty (30) days after
demand and delivery of reasonable documentation therefor, such actual
out-of-pocket reasonable expenses as Lessor may incur, including,
without limitation, court costs and reasonable attorney's fees and
disbursements, in enforcing the performance of any obligation of Lessee
under this Lease. Notwithstanding anything contained herein, Lessee's
vacating of the Premises shall not be deemed a default of this Lease,
if Lessee submits to Lessor then current financial statements,
certified by Lessee's chief financial officer or a certified public
accountant, evidencing to Lessor's reasonable satisfaction, that Lessee
has the financial resources to meet its obligations under this Lease.
14. DEFICIENCY:
In any case where Lessor has recovered possession of the Premises by
reason of Lessee's default, Lessor may, at Lessor's option, occupy the
Premises or cause the Premises to be redecorated, altered, divided,
consolidated with other adjoining premises, or otherwise changed or
prepared for reletting, and may relet the Premises or any part thereof,
as agent of Lessee or otherwise, for a term or terms to expire prior
to, at the same time as or subsequent to, the original Expiration Date
of this Lease, at Lessor's option and receive the rent therefor. Rent
so received shall be applied first to the payment of such actual
out-of-pocket reasonable expenses as Lessor may have incurred in
connection with the recovery of possession, redecorating, altering,
dividing, consolidating with other adjoining premises, or otherwise
changing or preparing for reletting, and the reletting, including
brokerage and reasonable attorney's fees, and then to the payment of
damages in amounts equal to the Fixed Basic Rent and Additional Rent
hereunder and to the reasonable costs and expenses of performance of
the other covenants of Lessee as herein provided. Lessee agrees, in any
such case, whether or not Lessor has relet, to pay to Lessor damages
equal to the Fixed Basic Rent and Additional Rent from the date of such
default to the date of expiration of the Term hereof and other sums
herein agreed to be paid by Lessee, less the net proceeds of the
reletting, if any, received by Lessor during the remainder of the
unexpired Term hereof, as ascertained from time to time, and the same
shall be payable by Lessee on the several rent days above specified.
Lessee shall not be entitled to any surplus accruing as a result of any
such reletting. In reletting the Premises as aforesaid, Lessor may
grant rent concessions, and Lessee shall not be credited therewith. No
such reletting shall constitute a surrender and acceptance or be deemed
evidence thereof. If Lessor elects, pursuant hereto, actually to occupy
and use the Premises or any part thereof during any part of the balance
of the Term as originally fixed or since extended, there shall be
allowed against Lessee's obligation for rent or damages as herein
defined, during the period of Lessor's occupancy, the reasonable value
of such occupancy, not to exceed, in any event, the Fixed Basic Rent
and Additional Rent herein
14
reserved, and such occupancy shall not be construed as a release of
Lessee's liability hereunder.
Alternatively, in any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may at Lessor's option,
and at any time thereafter, and without notice or other action by
Lessor, and without prejudice to any other rights or remedies it might
have hereunder or at law or equity, become entitled to recover from
Lessee, as damages for such breach, in addition to such other sums
herein agreed to be paid by Lessee, to the date of re-entry, expiration
and/or dispossess, an amount equal to the difference between the Fixed
Basic Rent and Additional Rent reserved in this Lease from the date of
such default to the date of expiration of the original Term hereof, and
the then fair and reasonable rental value of the Premises for the same
period. Said damages shall become due and payable to Lessor upon such
recovery of possession of the Premises by Lessor and without regard to
whether this Lease be terminated or not, and if this Lease be
terminated, without regard to the manner in which it is terminated. In
the computation of such damages, the difference between an installment
of Fixed Basic Rent and Additional Rent thereafter becoming due, and
the fair and reasonable rental value of the Premises for the period for
which such installment was payable, shall be discounted to the date of
such default at the rate of six percent (6%) per annum.
Lessee hereby waives all right of redemption to which Lessee or any
person under Lessee might be entitled by any law now or hereafter in
force. In addition, in the event of a default which results in Lessor
recovering possession of the Premises, Lessor shall be under a duty
only to make reasonable efforts to relet the Premises to the extent
Lessor does not have other space available for lease within a three (3)
mile radius of the Building, in order to mitigate Lessee's damages as
provided for in this Article.
Lessor's remedies hereunder are in addition to any remedy allowed by
law.
Lessor agrees to subordinate its right of distraint on Lessee's
furniture, fixtures and equipment to any institutional lender of
Lessee. For purposes hereof, an "institutional lender" shall mean a
bank, trust company, life insurance company or similar lending
institution in the business of providing commercial loans.
15. SUBORDINATION OF LEASE:
This Lease shall, at Lessor's option, or at the option of any holder of
any underlying lease or holder of any mortgages or trust deed, be
subject and subordinate to any such underlying leases and to any such
mortgages or trust deed which may now or hereafter affect the real
property of which the Premises form a part, and also to all renewals,
modifications, consolidations and replacements of said underlying
leases and said mortgages or trust deed, provided that Lessor shall
obtain a non-disturbance agreement from the holder of any such
underlying lease, mortgage or trust deed. Any expenses charged by the
mortgagee in connection with the obtaining of the aforesaid agreement
shall be paid by Lessor. Although no instrument or act on the part of
Lessee shall be necessary to effectuate such subordination, Lessee
will, nevertheless, execute and deliver such further instruments
confirming such subordination of this Lease as may be reasonably
desired by the holders of said mortgages or trust deed or by any of the
lessor's under such underlying leases. If any underlying lease to which
this Lease is subject terminates, Lessee shall, on timely request,
attorn to the owner of the reversion.
Lessor represents that there is currently a mortgage encumbering the
Building and no underlying lease encumbering the Building.
16. INTENTIONALLY OMITTED:
17. RIGHT TO CURE LESSEE'S BREACH:
If Lessee breaches any covenant or condition of this Lease, Lessor may,
after the expiration of the applicable notice and cure periods (except
that no notice need be given in case of emergency), cure such breach at
the expense of Lessee and the actual out-of-pocket reasonable amount of
all expenses, including reasonable attorney's fees, incurred by Lessor
in so
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doing (whether paid by Lessor or not) shall be deemed Additional Rent
payable within thirty (30) days after written demand from Lessor,
together with supporting documentation.
18. CONSTRUCTION LIENS:
Lessee shall, within thirty (30) days after notice from Lessor,
discharge or satisfy by payment, bonding or otherwise, any construction
liens for materials or labor claimed to have been furnished to the
Premises on Lessee's behalf.
19. RIGHT TO INSPECT AND REPAIR:
Lessor may enter the Premises but shall not be obligated to do so
(except as required by any specific provision of this Lease) for the
purpose of inspection or the making of such repairs, replacement or
additions in, to, on and about the Premises or the Building, as Lessor
deems reasonably necessary or desirable. Provided that Lessor uses
diligence, temporarily partitions any work area, repairs any damage to
the Premises and makes reasonable efforts to minimize interference with
Lessee's quiet enjoyment of the Premises in the first instance, and
provided any additions or replacements are permanently boxed in and do
no reduce the square footage of the Premises except to a de minimis
extent, Lessee shall have no claims or cause of action against Lessor
by reason thereof. Lessor need not notify Lessee for ordinary, routine
work and maintenance to be performed by Lessor at the Building on a
regular basis; provided, however, Lessor shall give Lessee reasonable
notice (which notice may be oral) prior to Lessor's performance of any
extraordinary work or maintenance in the Building. In any event, Lessor
and Lessee shall cooperate with each other to establish reasonable
standards for Lessor's access to the Premises and the Building. In no
event shall Lessee have any claim against Lessor for interruption of
Lessee's business, however occurring, including, but not limited to,
that arising from the negligence of Lessor, its agents, servants or
invitees, or from defects, errors or omissions in the construction or
design of the Premises and/or the Building, including the structural
and non-structural portions thereof.
20. SERVICES TO BE PROVIDED BY LESSOR;LESSOR'S EXCULPATION:
Subject to intervening laws, ordinances, regulations and executive
orders, Lessor agrees to furnish, except on holidays, as set forth on
Exhibit E attached hereto and made a part hereof:
a. The cleaning services, as set forth on Exhibit D attached
hereto and made a part hereof, and subject to the conditions
therein stated, consistent with a first-class office building.
Such cleaning to be performed during non-Building Hours.
Except as set forth on Exhibit D, Lessee shall pay the cost of
all other cleaning services required by Lessee. Lessee shall
have the right to request that the cleaning specifications for
the Premises be modified and in such event Lessee shall pay,
as Additional Rent, the increased cost for such modified
cleaning services. Lessee shall also have the right, at its
option, at Lessee's sole cost and expense, to elect to have
the Premises cleaned by a contractor selected by Lessee,
subject to Lessor's approval, which approval shall not be
unreasonably withheld, conditioned or delayed. Said contractor
shall comply with reasonable requirements imposed by Lessor,
including furnishing and maintaining insurance reasonably
required by Lessor. In the event Lessee so elects, from and
after the date said cleaning contractor commences cleaning the
Premises, Lessor shall have no further obligation to provide
cleaning services pursuant to Exhibit D, and Lessor shall pay
to Lessee an amount equal to $.61 per rentable square foot per
annum. Such payment shall be made monthly in advance on the
first day of each month. If Lessor fails to pay such amount to
Lessee within thirty (30) days after notice to Lessor, Lessee
may send Lessor a second notice, which notice shall provide in
capitalized and bold type letters that, if Lessor fails to pay
such amount within five (5) business days after Lessor's
receipt of such second notice, then Lessee may set off, deduct
and recoup such amount from the Fixed Basic Rent payable by
Lessee hereunder.
b. Heating, ventilating and air conditioning ("HVAC") as
appropriate for the season, and as set forth on Exhibit C-1
attached hereto and made a part hereof, subject to Article 51
hereof.
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c. Cold and hot water for drinking, cleaning, lavatory, pantry,
cafeteria (provided that Lessee, at its sole cost and expense,
shall be responsible for the installation of drains and traps
particular to cafeteria use) and fitness center/gym purposes.
d. Elevator service twenty-four (24) hours per day, seven (7)
days per week, except in the case of an emergency or when work
is being performed in the Building by Lessor.
e. Intentionally omitted.
f. Snow removal and landscaping as reasonably necessary,
consistent with a first-class office building.
g. Notwithstanding the requirements of Exhibit C-1 (as to HVAC)
or Exhibit D or any other provision of this Lease, Lessor
shall not be liable for failure to furnish any of the
aforesaid services when such failure is due to Force Majeure
(as hereinafter defined). Lessor shall not be liable, under
any circumstances, including, but not limited to, that arising
from the negligence of Lessor, its agents, servants or
invitees, or from defects, errors or omissions in the
construction or design of the Premises and/or the Building,
including the structural and non-structural portions thereof,
for loss of or injury to Lessee or to property, however
occurring, through or in connection with or incidental to the
furnishing of, or failure to furnish, any of the aforesaid
services or for any interruption to Lessee's business, however
occurring, except as otherwise provided herein.
h. To the extent permitted by law, Lessor shall provide
twenty-four (24) hours per day, seven (7) days per week,
fifty-two (52) weeks per year access to the Premises, the
Building, the Office Building Area, the Common Facilities and
the parking areas, except in the case of an emergency.
i. Lessor shall clean the interior and exterior of the outside
windows of the Premises and the atrium glass at least two (2)
times per year.
21. INTERRUPTION OF SERVICES OR USE:
Notwithstanding anything to the contrary contained herein, interruption
or curtailment of any service maintained in the Building or at the
Office Building Area, if caused by Force Majeure (as hereinafter
defined) shall not entitle Lessee to any claim against Lessor or to any
abatement in rent, and shall not constitute a constructive or partial
eviction, unless Lessor fails to take measures as may be reasonable
under the circumstances to restore the service without undue delay. If
the Premises are rendered untenantable in whole or in part, for a
period of three (3) consecutive business days, by: (i) the making of
repairs, replacements or additions, other than those made with Lessee's
consent or caused by misuse or neglect by Lessee, or Lessee's agents,
servants, visitors or licensees; or (ii) the failure of Lessor to
provide any services required to be provided by Lessor hereunder, there
shall be a proportionate abatement of Fixed Basic Rent and Additional
Rent payable by Lessee pursuant to Article 23 hereof from and after
said third (3rd) consecutive business day and continuing for the period
of such untenantability. In no event, shall Lessee be entitled to claim
a constructive eviction from the Premises unless Lessee shall first
have notified Lessor in writing of the condition or conditions giving
rise thereto, and, unless Lessor shall have failed, within a reasonable
time after receipt of such notice, to remedy, or commence and proceed
with due diligence to remedy such condition or conditions, all subject
to Force Majeure. Supplementing the foregoing, if the Premises are
rendered untenantable for a period of more than ten (10) days during a
calendar year, and the Premises are again rendered untenantable for the
same reason (other than Force Majeure or misuse or neglect by Lessee,
its agents, servants, visitors or licensees) during such calendar year,
then Lessee shall be entitled to an abatement of Fixed Basic Rent and
Additional Rent payable by Lessee pursuant to Article 23 hereof from
the first (1st) day that the Premises were again rendered untenantable.
22. UTILITIES:
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Lessor shall cause all utilities (i.e., electricity, gas, sewer, water,
etc.) (collectively, "utilities") to be supplied to the Premises, the
Building and the Office Building Area, and to permit Lessee to receive
utilities for Lessee's use of the heating, ventilation and air
conditioning ("HVAC") system ("Building Standard Utility Service").
Upon the earlier of (i) June 1, 2003; or (ii) the date Lessee or anyone
claiming under or through Lessee shall occupy the Premises for the
conduct of business, Lessee shall obtain and pay for Lessee's separate
supply of such utilities by direct application to, and arrangement
with, the public utility companies servicing the Building. Lessor or
the applicable public utility company shall provide such meters used to
measure such utilities service. Lessee shall pay all charges with
respect to consumption of utilities directly to the public utility
companies servicing the Building. If, pursuant to a legal requirement
or the policies or operating practices of the public utility company
servicing the Building, Lessee is no longer permitted to obtain
utilities directly from the public utility company, Lessor will furnish
utilities to the Premises, the Building and the Office Building Area as
measured by the meter(s), at utility rates at which Lessor is paying
for such utilities for the Building (i.e., no "xxxx up"). Lessee shall
defend, indemnify and hold harmless Lessor from all liability, damages
(excluding consequential), costs, fees, expenses, penalties and charges
(including, but not limited to, reasonable attorney's fees and
disbursements) incurred in connection with: (i) Lessee's failure to pay
for any utilities provided to Lessee hereunder; or (ii) misuse or
neglect by Lessee of the meters(s) and equipment supplying the
utilities. In no event shall Lessor have any liability for its failure
to provide any service required to be provided by Lessor hereunder, if
such failure is caused by: (a) Lessee's failure to pay for any
utilities or (b) any act or omission of Lessee, its agents, employees,
contractors or invitees.
a. Lessee's use of electric current in the Premises, the Building
and the Office Building Area shall not exceed the capacity of
any electrical conductors and equipment in or otherwise
serving the Premises, the Building and the Office Building
Area.
b. Lessee shall not, without the prior consent of Lessor, which
consent shall not be unreasonably withheld, conditioned or
delayed, make or perform or permit any alteration to wiring
installations (other than telephone, computer, data and
telecommunications wiring and/or cabling) or other electrical
facilities for the supply of electric current located in or
serving the Premises, the Building and the Office Building
Area. If Lessor grants such consent, all additional conduit,
feeders and wiring and other equipment or other facilities
required therefor shall be provided and/or installed by Lessor
and the actual out-of-pocket reasonable cost thereof shall be
paid by Lessee as Additional Rent, within thirty (30) days
after demand therefor and delivery to Lessee of reasonable
documentation therefor.
x. Xxxxxx shall not be liable in any way to Lessee for any loss,
damage or expense which Lessee may sustain or incur as a
result of any failure, defect or change in the quantity or
character of utilities available for redistribution to the
Premises, the Building or the Office Building Area pursuant to
this Article nor for any interruption in the supply, unless
caused by the willful misconduct of Lessor, and Lessee agrees
that such supply may be interrupted for inspection, repairs
and replacement and in emergencies. In any event, the full
measure of Lessor's liability for any interruption in the
supply due to Lessor's acts or omissions shall be an abatement
ofFixed Basic Rent and Additional Rent. In no event shall
Lessor be liable for any business interruption suffered by
Lessee.
x. Xxxxxx, at Lessee's expense, and at Lessee's option, shall
furnish and install all replacement lighting tubes, lamps,
ballasts and bulbs required in the Premises, provided the cost
thereof is commercially competitive. Lessee, however, shall
have the right to furnish and/or install any or all of the
items mentioned in this Article 22(d).
23. ADDITIONAL RENT:
It is expressly agreed that Lessee will pay in addition to the Fixed
Basic Rent provided in Article 3 hereof, Additional Rent to cover
Lessee's Percentage as defined in the Preamble, of the increased cost
to Lessor, for each of the categories enumerated herein, over the "Base
Period Costs" (as defined in the Preamble).
a. OPERATING COST ESCALATION -- If the Operating Costs incurred
for the Building in which the Premises are located and the
Office Building Area for any Lease Year (as hereinafter
defined) or Partial Lease Year (as hereinafter defined) during
the Term,
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shall be greater than the Base Operating Costs (adjusted
proportionately for periods less than a Lease Year), then
Lessee shall pay to Lessor, as Additional Rent, Lessee's
Percentage of all such excess Operating Costs. Operating Costs
shall mean any and all costs and expenses paid by Lessor for
the repair, maintenance, operation and management of the
Building in a first- class manner, and shall include, by way
of illustration and not of limitation: cleaning as set forth
in Exhibit D; personal property taxes; management fees in an
amount not to exceed the management fees incurred by
comparable owners of comparable buildings in Bergen County,
New Jersey; labor, including all wages and salaries for
employees of Lessor at the grade of Property Manager and
below; social security taxes, and other taxes which may be
levied against Lessor upon such wages and salaries; supplies;
repairs and maintenance; maintenance and service contracts;
painting; wall and window washing; laundry and towel service;
tools and equipment (which are not required to be capitalized
for federal income tax purposes); trash removal; lawn care;
snow removal; and all other items properly constituting direct
operating costs according to standard accounting practices
(collectively, "Operating Costs"), but not including any
expenditures required to be capitalized for federal income tax
purposes, unless said expenditures are for the purpose of
reducing Operating Costs within the Building and Office
Building Area, or those which under generally applied real
estate practice are expensed or regarded as deferred expenses
or are required under any governmental or quasi-governmental
law, statute, ordinance, rule, order, requirements or
regulation hereafter adopted, in which event the costs thereof
shall be included to the extent as hereinafter set forth.
Notwithstanding anything herein to the contrary, any
additional costs incurred by Lessor during the 2004 calendar
year by reason of Lessor or any of its vendors entering into
new labor contracts or renewals or modifications of existing
labor contracts, shall not be included in Base Operating
Costs. The Base Operating Costs shall be as defined in the
Preamble. The Base Operating Costs shall include $.61 per
gross rentable square foot of the Premises for the cleaning
component of Operating Costs. If Lessee elects to perform its
own cleaning services pursuant to Section 20a. hereof, the
Base Operating Costs and Operating Costs for each year
thereafter shall continue to include $.61 per gross rentable
square foot of the Premises. Notwithstanding anything
hereinabove to the contrary, Operating Expenses shall exclude
the following:
(1) Lessor's gross receipts taxes, special
assessments, franchise, income, excess
profits and other business taxes;
(2) rentals or increases in rentals from any
ground lease, if any, that affects the
Building or the Office Building Area;
(3) consulting costs and expenses paid by Lessor
unless they relate exclusively to the
improved management or operation of the
Building or the Office Building Area;
(4) the cost of any "tap fees" or one time sewer
or water connection fees for the Building or
the Office Building Area;
(5) the cost of repair or replacement for any
item covered by a warranty in favor of
Lessor;
(6) the cost of tools, equipment and material
used in the rehabilitation of the Building
or the Office Building Area;
(7) costs directly resulting from the gross
negligence or willful misconduct of Lessor
or its agents, contractors or employees;
(8) costs for which Lessor is reimbursed (or has
a contractual right to be reimbursed) by any
insurance or from any other source, refunded
or indemnified;
(9) leasing commissions, legal fees and other
expenses incurred by Lessor or its agents in
connection with the procurement of, or
negotiations or disputes with lessees or
prospective lessees for the Building;
(10) costs or expenses associated with the
enforcement of any leases by Lessor;
(11) costs or fees relating to the defense of
Lessor's title to or interest in the real
estate of which the Building is a part;
(12) costs incurred by Lessor in connection with
the construction of the Building and related
facilities;
(13) expenses for the correction of defects in
Lessor's construction of the Building;
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(14) any costs or expense relating to Lessor's
obligations under any workletter to
construct lessee improvements, including
Lessor's Work;
(15) costs (including permit, license and
inspection fees) incurred in renovating or
otherwise improving or decorating space for
any lessee or prospective lessee in the
Building;
(16) costs for renovating or improving vacant or
unleased space in the Building (including
rent concessions and improvement
allowances);
(17) Lessor's costs of any services sold or
provided to a lessee for which Lessor is
entitled to be reimbursed by such lessee
under the lease with such lessee (e.g.,
overtime services);
(18) depreciation or other "non-cash" expense
items;
(19) expenses in connection with services or
other benefits of a type which are not
provided to Lessee but which are provided to
another lessee or occupant;
(20) damages or costs incurred due to violation
by Lessor or any lessee of the terms and
conditions of any lease;
(21) payments for overhead and/or profit to
subsidiaries or affiliates of Lessor, or to
any party as a result of a non-competitive
selection process, for management or other
services on or to the project, or for
supplies or other materials to the extent
that the costs of such services, supplies,
or materials exceed the costs that would
have been paid had the services, supplies or
materials been provided by parties
unaffiliated with Lessor on a competitive
basis;
(22) principal or interest on debt or
amortization payments on any mortgages or
deeds of trust for the Building or the
Office Building Area;
(23) Lessor's general corporate overhead and
general administrative expenses;
(24) any compensation paid to clerks, attendants
or other persons working in or managing
commercial concessions operated by Lessor;
(25) rentals and other related expenses incurred
in leasing air conditioning systems,
elevators or other equipment ordinarily
considered to be a capital nature, except
(i) such expenses shall be included in
Operating Costs to the extent the cost for
such equipment would have been included
therein had the equipment been purchased,
and (ii) for equipment which is used in
providing janitorial services and which is
not affixed to the Building or the Office
Building Area;
(26) all items and services for which Lessee
reimburses Lessor or pays third parties or
which Lessor provides selectively to one or
more lessees or occupants of the Building or
the Office Building Area (other than Lessee)
without reimbursement or payment;
(27) any expense for Lessor's advertising and
promotional program for the Building;
(28) repairs or other work caused by fire,
windstorm or other casualty;
(29) repairs or other work made necessary by the
exercise of eminent domain or condemnation;
(30) costs attributable to another property of
Lessor;
(31) costs incurred with respect to any sale,
financing/refinancing or other transfer of
the Building or the Office Building Area, or
Lessor's interest therein;
(32) costs of maintaining Lessor's corporate
existence;
(33) attorney's fees and disbursements;
(34) rent concessions;
(35) bad debt loss, rent losses and reserves for
bad debts or rent losses;
(36) fines, penalties, interest and other costs
resulting directly from violations by Lessor
or its agents, contractors, employees or
other lessees, if any;
(37) costs to comply with Environmental Laws
enacted prior to the date hereof;
(38) Real Estate Taxes (as hereinafter defined);
(39) sculpture, paintings and art (but not
maintenance of, or security for, such
items);
(40) charitable and political contributions;
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(41) rent or imputed rent for on-site
management/leasing office;
(42) purchasing air rights; and
(43) the costs incurred by Lessor in providing
the valet/attendant parking as provided in
Article 53 hereof.
If any repair, replacement or improvement within the
definition of Operating Costs is capitalized under generally
accepted accounting principles, then: (A) the cost of any such
repair, replacement or improvement shall only be included in
Operating Costs if such repair, replacement or improvement (i)
is necessary to comply with any governmental or
quasi-governmental law, statute, ordinance, rule, order,
requirements or regulation, which is enacted or promulgated
after the date hereof, (ii) is reasonably intended to reduce
Operating Costs, or (iii) constitutes a replacement which in
Lessor's reasonable judgment is economically prudent to make
in lieu of repairs; (B) the cost thereof shall be amortized on
a straight-line basis over the useful life of such repair; and
(C) there shall be included in Operating Costs in each Lease
Year such portion of the amortization period which occurs
during the Term; provided, however, that all amounts thereof
included in Operating Costs in any Lease Year subsequent to
the year paid shall have added thereto interest (at the rate
equal to two (2) percentage points in excess of the prime rate
as established by Chase Manhattan Bank, or its successor) from
the date Lessor incurred such cost.
It is understood that Operating Costs shall be reduced by all
cash discounts, trade discounts or quantity discounts received
by Lessor in the purchase of any goods, utilities or services
in connection with the operation of the Building. Lessor shall
make payments for goods, utilities and services in a timely
manner to obtain the maximum possible discount.
In the calculation of Operating Costs, it is understood that
no expense shall be charged more than once.
Notwithstanding anything contained herein to the contrary, any
costs and expenses incurred by Lessor in maintaining the
existing roof on the Building shall be excluded from Operating
Costs. The costs incurred by Lessor in replacing the existing
roof shall be excluded from Operating Costs. If Lessor
replaces the roof on the Building and Lessor obtains a fifteen
(15) year warranty from the roofing contractor, then the
reasonable and customary costs and expenses in maintaining and
inspecting the new roof shall be included in Operating Costs.
Lessor shall obtain a ten (10) year warranty on the
waterproofing of the roof planters on the Building. The cost
of waterproofing the roof planters shall not be included in
Operating Costs, but the reasonable and customary costs and
expenses in maintaining and inspecting the planters shall be
included in Operating Costs.
b. FUEL, UTILITIES AND ELECTRIC COST ESCALATION ("Utility and
Energy Costs") -- Intentionally omitted.
c. TAX ESCALATION -- If the Real Estate Taxes for the Building
and the Office Building Area at which the Premises are located
for any Lease Year or Partial Lease Year, during the Term,
shall be greater than the Base Real Estate Taxes (adjusted
proportionately for periods less than a Lease Year), then
Lessee shall pay to Lessor as Additional Rent, Lessee's
Percentage (as hereinafter defined), of such excess Real
Estate Taxes.
As used in this Article 23(c), the words and terms which
follow mean and include the following:
i. "Base Real Estate Taxes" shall be as defined in the
Preamble.
If Lessor obtains a reduction in Base Real Estate
Taxes, Base Real Estate Taxes shall be reduced (such
reduction to include the actual out-of-pocket
reasonable expenses incurred by Lessor in obtaining
such reduction, including legal, appraisers' and
consultants' fees, provided that the expenses
incurred in obtaining the reduction shall not exceed
the amount of the reduction), prior Real Estate Tax
escalation payments (if any) by Lessee shall be
recalculated
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and Lessee shall pay Lessor Lessee's Percentage of
the increased amount of Real Estate Tax escalation
payments for each prior Lease Year. Lessee's payment
under this paragraph shall be made within thirty (30)
days after Lessor's billing therefor. Notwithstanding
the foregoing, Lessor shall have a one-time right to
reduce Base Real Estate Taxes, provided that Lessor
shall have no right to reduce Base Real Estate Taxes
after December 31, 2005.
ii. "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building and the Office
Building Area, or upon the rent, as such, payable to
Lessor, including, but not limited to, real estate,
city, county, village, school and transit taxes, or
taxes, assessments, or charges levied, imposed or
assessed against the Building and the Office Building
Area by any other taxing authority, whether general
or specific, ordinary or extraordinary, foreseen or
unforeseen. Real Estate Taxes shall be determined as
if the Building were the sole asset of Lessor, and
assessments payable in installments shall be included
in Real Estate Taxes for a Lease Year only to the
extent of the installments payable during that Lease
Year. Lessor will timely pay all Real Estate Taxes in
the maximum number of installments permitted by law.
If due to a future change in the method of taxation,
any franchise, income or profit tax shall be levied
against Lessor in substitution for, or in lieu of, or
in addition to, any tax which would otherwise
constitute Real Estate Taxes, such franchise, income
or profit tax shall be deemed to be Real Estate Taxes
for the purposes hereof; conversely, any additional
real estate tax hereafter imposed in substitution
for, or in lieu of, any franchise, income or profit
tax (which is not in substitution for, or in lieu of,
or in addition to, Real Estate Taxes as hereinbefore
provided) shall not be deemed Real Estate Taxes for
the purposes hereof. Real Estate Taxes shall not
include:
(1) inheritance taxes;
(2) gift taxes;
(3) transfer taxes;
(4) franchise taxes;
(5) excise taxes;
(6) income taxes (gross or net);
(7) profit taxes;
(8) capital levies/stock taxes;
(9) late charges, interest and
penalties;
(10) increases in taxes resulting from
financing/refinancing or a sale or
transfer of ownership of the
Building or the Office Building
Area or any interest therein;
(11) estate taxes;
(12) gains taxes;
(13) unincorporated business taxes;
(14) rent taxes;
(15) assessments in connection with
original site plans;
(16) assessments levied against another
lessee due to improvements made by
such lessee;
(17) succession taxes; and
(18) increases due to additions to the
Building or the Office Building
Area for the sole benefit of
Lessor.
Lessor represents that: (i) the Building is assessed as a
fully completed building; (ii) the Building is not in a
business improvement district or economic redevelopment zone;
(iii) there are no abatements/exemptions currently in effect;
and (iv) there are no special or other assessments currently
in effect.
If Lessor elects not to contest Real Estate Taxes for any
Lease Year, Lessee may request that Lessor contest Real Estate
Taxes for such Lease Year, provided that Lessor shall have no
obligation to do so. If Lessor elects not to contest Real
Estate Taxes after Lessee has requested Lessor to do so,
Lessee shall have the right to contest Real Estate Taxes, at
its sole cost and expense, provided that Lessee shall give
Lessor not less than fifteen (15) days notice of its intention
to do so. Lessor shall cooperate with Lessee in Lessee's
contest of Real Estate Taxes, provided that Lessor shall have
no obligation to expend any monies in connection therewith.
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d. INSURANCE COST ESCALATION - If the Insurance Costs for the
Building and the Office Building Area for any Lease Year or
Partial Lease Year, during the Term, shall be greater than the
Base Insurance Expenses (adjusted proportionately for periods
less than a Lease Year), then Lessee shall pay to Lessor as
Additional Rent, Lessee's Percentage of such excess Insurance
Costs.
As used in this Article 23(d), the words and terms which
follow mean and include the following:
i. "Base Insurance Expenses" shall be as defined in the
Preamble.
ii. "Insurance Costs" shall mean all fire and other
insurance costs incurred by Lessor in connection with
its operation and maintenance of the Building and the
Office Building Area, for any Lease Year or Partial
Lease Year, during the Term, not in excess of that
maintained by comparable owners of comparable
buildings in Bergen County and commercially
competitive.
e. LEASE YEAR -- As used in this Article 23, Lease Year shall
mean a calendar year. Any portion of the Term which is less
than a Lease Year as hereinbefore defined, that is, from the
Commencement Date through the following December 31, and from
the last January 1, falling within the Term to the end of the
Term, shall be deemed a "Partial Lease Year". Any reference in
this Lease to a Lease Year shall, unless the context clearly
indicates otherwise, be deemed to be a reference to a Partial
Lease Year if the period in question involves a Partial Lease
Year.
f. PAYMENT -- At any time, and from time to time, after the
establishment of the Base Period Costs for each of the
categories referred to above, Lessor shall advise Lessee in
writing of Lessee's Percentage with respect to each of the
categories as estimated for the next twelve (12) month period
(or proportionate part thereof if the last period prior to the
expiration of this Lease is less than twelve (12) months) as
then known to Lessor, and thereafter, Lessee shall pay as
Additional Rent, Lessee's Percentage of these costs for the
then current period affected by such advice (as the same may
be periodically revised by Lessor (but no more often than four
(4) times per year) as additional costs are incurred), in
equal monthly installments, such new rates being applied to
any months, for which the Additional Rent shall have already
been paid which are affected by the Operating Cost Escalation,
Tax Escalation Costs and/or Insurance Cost Escalation, as well
as the unexpired months of the current period, the adjustment
for the then expired months to be made at the payment of the
next succeeding monthly rental, all subject to final
adjustment at the expiration of each Lease Year (or Partial
Lease Year, if the last period prior to the termination of
this Lease is less than twelve (12) months).
In the event the last period prior to the termination of this
Lease is less than twelve (12) months, the Base Period Costs
during said period shall be proportionately reduced to
correspond to the duration of said final period.
g. BOOKS AND REPORTS -- For the protection of Lessee, Lessor
shall maintain books of account which shall be open to Lessee
and its representatives at all reasonable times so that Lessee
can determine that such Operating Costs, Real Estate Taxes and
Insurance Costs have, in fact, been paid or incurred. Lessee's
representatives shall mean only: (i) Lessee's employees; or
(ii) a Certified Public Accounting firm, and neither Lessee's
employees nor any Certified Public Accounting firm shall be
permitted to (A) perform such inspection and/or audit on a
contingency basis, or (B) perform such an inspection and/or
audit for any other lessee in the Building. At Lessor's
request, Lessee shall execute a confidentiality agreement
reasonably acceptable to Lessor prior to any examination of
Lessor's books and records. In the event Lessee disputes any
one or more of said charges, Lessee shall attempt to resolve
such dispute with Lessor, provided that if such dispute shall
not be satisfactorily settled between Lessor and Lessee, the
dispute shall be referred by either party to an independent
certified public accountant to be mutually agreed upon, and if
such an accountant cannot be agreed upon, The American
Arbitration Association (or successor thereto) may be asked by
either party to select an arbitrator,
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whose decision of the dispute will be final and binding upon
both parties, who shall jointly share any cost of such
arbitration. Pending resolution of said dispute, Lessee shall
pay to Lessor the sum so billed by Lessor under protest and
without prejudice subject to its ultimate resolution as
aforesaid. If, based upon Lessee's inspection, it is
determined (either by agreement of the parties or by a final
unappealable arbitration award) that based upon Lessor's books
and records for Operating Costs, Real Estate Taxes and/or
Insurance Costs for any Lease Year, the sums paid by Lessee
hereunder in such Lease Year exceeded Lessee's actual
Operating Costs, Real Estate Taxes and/or Insurance Costs for
such Lease Year by more than five percent (5%), then Landlord
will reimburse Tenant for the reasonable costs it incurred to
outside, independent auditors to conduct such inspection. Such
reimbursement shall be made within thirty (30) days after
demand based upon reasonable substantiation by Lessee of such
costs. If Lessee is entitled to a refund on account of any
overpayment, then, at Lessor's option, the overpayment shall
be either refunded directly to Lessee or applied against
future payment(s) of Additional Rent. Lessor's obligation to
reimburse Lessee hereunder shall survive the expiration or
earlier termination of this Lease.
h. RIGHT OF REVIEW -- Once Lessor shall have finally determined
Operating Costs, Real Estate Taxes and Insurance Costs, at the
expiration of a Lease Year, then as to the item so
established, Lessee shall only be entitled to dispute said
charge as finally established for a period of nine (9) months
after such charge is finally established, and Lessee
specifically waives any right to dispute any such charge at
the expiration of said nine (9) month period.
i. OCCUPANCY ADJUSTMENT -- If, with respect to the Operating Cost
Escalation, the Building is less than one hundred percent
(100%) leased during the establishment of the respective Base
Periods, then the Base Costs incurred with respect to said
Operating Costs shall be adjusted during any such period
within the Base Period so as to reflect one hundred percent
(100%) leasing. Similarly, if during any Lease Year or Partial
Lease Year, subsequent to the Base Period the Building is less
than one hundred percent (100%) leased, then the actual costs
incurred for Operating Costs shall be increased during any
such period to reflect one hundred percent (100%) leasing so
that at all times after the Base Period the Operating Costs
shall be actual costs, but in the event less than one hundred
percent (100%) of the Building is leased during all or part of
the Lease Year involved, the Operating Costs shall not be less
than that which would have been incurred had one hundred
percent (100%) of the Building been leased. The aforesaid
adjustment shall only be made with respect to those items that
are in fact affected by variations in occupancy levels.
24. ESTOPPEL:
Lessee shall, from time to time, on not less that ten (10) business
days prior written request by Lessor, execute, acknowledge and deliver
to Lessor a written statement certifying that this Lease is unmodified
and in full force and effect, or that this Lease is in full force and
effect as modified and listing the instruments of modification; the
dates to which the rent has been paid; and, to the best of Lessee's
knowledge, whether or not Lessor is in default hereunder, and if so,
specifying the nature of the default. It is intended that any such
statement delivered pursuant to this Article 24 may be relied on by a
prospective purchaser of Lessor's interest or mortgagee of Lessor's
interest or assignee of any mortgage of Lessor's interest. Lessee shall
also execute and deliver the form "Lessee Estoppel Certificate"
attached hereto and made a part hereof as Exhibit F.
Upon Lessee's request, Lessor shall deliver an estoppel certificate to
Lessee certifying the foregoing, mutatis mutandis.
25. HOLDOVER TENANCY:
a. If Lessee holds possession of the Premises after the
Expiration Date of this Lease, Lessee shall: (i) become a
lessee from month-to-month under the provisions herein
provided, but at one hundred fifty percent (150%) of the
monthly Fixed Basic Rental
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for the last month of the Term, plus the Additional Rent, for
the first (1st) month of Lessee's holding over and two hundred
percent (200%) of the monthly Fixed Basic Rent for the last
month of the Term, plus the Additional Rent, thereafter, which
shall continue as provided in this Lease and which sum shall
be payable in advance on the first (1st) day of each month,
and without the requirement for demand or notice by Lessor to
Lessee demanding delivery of possession of said Premises, and
such tenancy shall continue until terminated by Lessor, or
until Lessee shall have given to Lessor, at least thirty (30)
days prior to the intended date of termination, a written
notice of intent to terminate such tenancy, which termination
date must be as of the end of a calendar month; and (ii)
indemnify Lessor against loss or liability resulting from the
delay by Lessee in so surrendering the Premises, including,
without limitation, any claims made by any succeeding occupant
founded on such delay, provided that Lessor notifies Lessee
thereof. Lessee's obligations under this Section shall survive
the expiration or sooner termination of the Lease. The time
limitations described in this Article 25 shall not be subject
to extension for Force Majeure.
b. Notwithstanding anything hereinabove to the contrary, Lessee
shall have the one-time right to holdover in the Premises for
a period of four (4) months ("Holdover Term") commencing on
the day immediately following the Expiration Date. Lessee may
exercise its option in respect of such holdover by giving
notice of the exercise thereof to Lessor not later than nine
(9) months prior to the Expiration Date, TIME BEING OF THE
ESSENCE in connection with the exercise of Lessee's holdover
option pursuant to this Article. Such holdover shall be upon
the same covenants and conditions, as herein set forth except
for the Fixed Basic Rent, which shall one hundred twenty-five
percent (125%) of the monthly Fixed Basic Rent for the last
month of the Term, plus the Additional Rent which shall
continue as provided in this Lease and which sum shall be
payable in advance on the first day of each month, and without
the requirement for demand, and except that Lessee shall have
no further right to extend the Term of this Lease. From and
after the expiration of the Holdover Term, the provisions of
Section 25a. hereof shall be applicable. If Lessee shall
exercise its option under this Section 25b., then Lessee shall
no longer have any options pursuant to Articles 55 and 56
hereof.
26. RIGHT TO SHOW PREMISES:
Lessor may show the Premises to prospective purchasers and mortgagees;
and during the nine (9) months prior to termination of this Lease, to
prospective lessees, during Building Hours on reasonable notice to
Lessee. In connection with the foregoing, Lessor shall endeavor to
minimize interference with Lessee's use of the Premises.
27. LESSOR'S WORK;LESSEE'S DRAWINGS:
Lessee shall accept the Premises "as is", except for latent and/or
structural defects and except that Lessor shall perform Lessor's Work
(defined in Paragraph A.1. of Exhibit C attached hereto and made a part
hereof, at Lessor's sole cost and expense. Any other work, changes or
improvements made to the Premises shall be performed at Lessee's
expense in accordance with the terms of this Lease. Lessor's Work shall
be performed at the same time Lessee is performing Lessee's Work (as
defined in Exhibit C) in the Premises, and Lessee and Lessor shall
coordinate the performance and scheduling of Lessor's Work and Lessee's
Work so as not to interfere with each other. Lessor shall commence
Lessor's Work promptly and use due diligence to complete Lessor's Work
by June 30, 2003.
Notwithstanding anything contained herein to the contrary, if Lessor
shall not have substantially completed Lessor's Work on or before June
30, 2003 and provided the reason therefor has not been as a result of
Lessee's act or omissions or Force Majeure, then, and in such event,
Lessee shall be entitled to a credit in the amount of $2,500.00 per day
against the Fixed Basic Rent payable by Lessee for the period
commencing July 1, 2003 through and including the day Lessor shall have
substantially completed Lessor's Work. Lessor's Work shall not include
the construction of the Additional Parking (as defined in Article 53
hereof).
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28. WAIVER OF TRIAL BY JURY:
To the extent such waiver is permitted by law, the parties waive trial
by jury in any action or proceeding brought in connection with this
Lease or the Premises.
29. LATE CHARGE:
Anything in this Lease to the contrary notwithstanding, at Lessor's
option, Lessee shall pay a "late charge" of five percent (5%) ("Late
Charge") of any installment of Fixed Basic Rent or Additional Rent paid
more than five (5) business days after the due date thereof, to cover
the extra expense involved in handling delinquent payments, said Late
Charge to be considered Additional Rent. With respect to non-recurring
Additional Rent charges under this Lease, Lessor shall not assess a
Late Charge unless Lessee's payment of such non-recurring Additional
Rent is paid more than five (5) business days after Lessee receives
Lessor's notice that such payment was due. Notwithstanding anything in
this Section to the contrary, Lessor shall waive a Late Charge one time
during each Lease Year; provided, however, the installment of Fixed
Basic Rent or Additional Rent so due is paid by the fifteenth (15th)
day of the month. Payment received subsequent to the fifteenth (15th)
of the month during these grace periods shall require a Late Charge to
be reassessed and added to Lessee's obligations hereunder.
30. LESSEE'S INSURANCE:
a. Lessee covenants to provide, at Lessee's cost and expense, on
or before the commencement of Lessee's Construction Period,
and to keep in full force and effect during the entire Term
and so long thereafter as Lessee, or anyone claiming by,
through or under Lessee, shall occupy the Premises, insurance
coverage as follows:
i. Commercial General Liability insurance with
contractual liability endorsements with respect to
the Premises and the business of Lessee under limits
of liability of not less than FIVE MILLION AND 00/100
DOLLARS ($5,000,000.00) combined single limit per
occurrence for bodily or personal injury (including
death) and property damage. Such insurance may be
carried: (x) under a "blanket policy" covering the
Premises and other locations of Lessee, if any,
provided that each such policy shall in all respects
comply with this Article and shall specify that the
portion of the total coverage of such policy that is
allocated to the Premises is in the amounts required
pursuant to this Article 30; and (y) under a primary
liability policy of not less than ONE MILLION AND
00/100 DOLLARS ($1,000,000.00) and the balance under
an "umbrella"/"excess" policy. Notwithstanding
anything to the contrary contained in this Lease, the
carrying of insurance by Lessee in compliance with
this Article 30 shall not modify, reduce, limit or
impair Lessee's obligations and liability under
Article 33 hereof.
ii. Fire and Extended Coverage, Vandalism, Malicious
Mischief, Sprinkler Leakage and Special Extended
Coverage Insurance in an amount adequate to cover the
cost of replacement of all personal property,
decorations, trade fixtures, furnishings, equipment
in the Premises and all contents therein. Lessor
shall be responsible for insuring all alterations,
additions and improvements that become Lessor's
property under this Lease upon installation. Lessor
shall not be liable for any damage to such property
of Lessee by fire or other peril includable in the
coverage afforded by the standard form of fire
insurance policy with extended coverage endorsement
attached (whether or not such coverage is in effect),
no matter how caused; it being understood that Lessee
will look solely to its insurer for reimbursement.
Lessee, at its option, may self-insure for the
coverages set forth in this subparagraph (ii).
iii. Worker's Compensation Insurance in the minimum
statutory amount covering all persons employed by
Lessee.
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iv. Said limits shall be subject to periodic review and
Lessor reserves the right to increase said coverage
limits if, in the reasonable opinion of Lessor, said
coverage becomes inadequate and is less than that
commonly maintained by lessees in similar buildings
in the area by lessees making similar uses. On or
before the Commencement Date, and thereafter at
Lessor's request, Lessee shall provide Lessor
evidence of the insurance coverage required herein in
the form of an insurance binder (countersigned by the
insurer), or evidence of insurance (in form XXXXX
25-S with respect to liability insurance) for each of
the insurance policies Lessee is required to carry in
compliance with its obligations under this Lease.
b. All of the aforesaid insurance shall: (i) be written by one or
more responsible insurance companies licensed in the State of
New Jersey reasonably satisfactory to Lessor and in form
reasonably satisfactory to Lessor; (ii) contain endorsements
substantially as follows: "It is understood and agreed that
the insurer will give to Lessor, or any successor lessor, c/o
Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx, ten (10) days' prior written notice of any material
change in or cancellation of this policy."; and (iii) shall be
written on an "occurrence" basis and not on a "claims made"
basis. The policy referred to in subparagraph a.i. hereof
shall name Lessor as an additional insured.
c. Lessee shall be solely responsible for payment of premium and
Lessor (or its designee) shall not be required to pay any
premium for such insurance. Lessee shall deliver to Lessor at
least fifteen (15) days prior to the expiration of such
policy, a certificate; it being the intention of the parties
hereto that the insurance required under the terms hereof
shall be continuous during the entire Term of this Lease and
any other period of time during which said insurance is
required. Any insurance carried by Lessee shall be in excess
of and will not contribute with the insurance carried by
Lessor for injuries or damage arising out of the Premises.
d. Lessee agrees, at its own cost and expense, to comply with all
rules and regulations of the National Fire Protection
Association (NFPA) National Fire Code. If, at any time or from
time to time, as a result of or in connection with any failure
by Lessee to comply with the foregoing sentence or any act or
omission by Lessee, its employees, agents, contractors or
licensees, or a result of or in connection with the use to
which the Premises are put (notwithstanding that such use may
be for the purposes hereinbefore permitted or that such use
may have been consented to by Lessor), the fire insurance
rate(s) applicable to the Premises shall be higher than that
which would be applicable for a business office legally
permitted therein, Lessee agrees that it will pay to Lessor as
Additional Rent, such portion of the premiums for Lessor's
fire insurance policies in force with respect to the Building
attributable to such higher rate(s).
x. Xxxxxx makes no representation that the limits of liability
specified to be carried by Lessee or Lessor under the terms of
this Lease are adequate to protect Lessee against Lessee's
undertaking under this Article 30, and in the event Lessee
believes that any such insurance coverage required under this
Lease is insufficient, Lessee shall provide, at is own
expense, such additional insurance as Lessee deems adequate.
f. In the event the Premises or its contents are damaged or
destroyed by fire or other insured casualty: (i) Lessor, to
the extent of the coverage of Lessor's policies of fire
insurance with extended coverage, hereby waives its rights, if
any, against Lessee with respect to such damage or
destruction, even if said fire or other casualty shall have
been caused, in whole or in part, by the negligence of Lessee;
and (ii) Lessee, to the extent of the coverage of Lessee's
policies of fire insurance with extended coverage, hereby
waives its rights, if any, against Lessor with respect to such
damage, or destruction, even if said fire or other casualty
shall have been caused, in whole or in part, by the negligence
of Lessor; provided, however, such waivers of subrogation
shall only be effective with respect to loss or damage
occurring during such time as Lessor's or Lessee's policies of
fire insurance (as the case may be) shall contain a clause or
endorsement providing in substance, that the aforesaid waiver
of subrogation shall not prejudice the type and amount of
coverage under such policies or the right of Lessor or Lessee
(as the case may be) to recover thereunder. If, at any
27
time, Lessor's or Lessee's insurance carrier refuses to write
insurance which contains a consent to the foregoing waiver of
subrogation, Lessor or Lessee (as the case may be), shall
notify the party thereof in writing, and upon the giving of
such notice, the provisions of this Section shall be null and
void as to any casualty which occurs after such notice. If
Lessor's or Lessee's insurance carrier shall make a charge for
the incorporation of the aforesaid waiver of subrogation in
its policies, then the party requesting the waiver shall
promptly pay such charge to the other party upon demand. In
the event the party requesting their waiver fails to pay such
charge upon demand, the other party shall be released of its
obligation to supply such waiver.
g. Should Lessee fail to maintain the insurance coverage as set
forth in this Article 30, then Lessee shall be in default
hereunder and shall be deemed to have breached its covenants
as set forth herein.
31. NO OTHER REPRESENTATIONS:
No representations or promises shall be binding on the parties hereto
except those representations and promises contained herein or in some
future writing signed by the party making such representation(s) or
promise(s).
32. QUIET ENJOYMENT:
Lessor covenants that if, and so long as, Lessee pays Fixed Basic Rent
and any Additional Rent as herein provided, and performs Lessee's
covenants herein, Lessor shall do nothing to affect Lessee's right to
peaceably and quietly have, hold and enjoy the Premises for the Term
herein mentioned, subject to the provisions of this Lease.
33. INDEMNITY:
Lessee shall defend, indemnify and save harmless Lessor and its agents
against and from: (a) any and all claims (i) arising from (x) the
conduct or management by Lessee, its sublessees, licensees, its or
their employees, agents, contractors or invitees on the Premises or of
any business therein, or (y) any work or thing whatsoever done, or any
condition created (other than by Lessor for Lessor's or Lessee's
account) in or about the Premises by Lessee during the Term of this
Lease, or during the period of time, if any, prior to the Commencement
Date that Lessee may have been given access to the Premises, or (z) any
default by Lessee under the terms, covenants and conditions of this
Lease, or (ii) arising from any negligent or otherwise wrongful act or
omission of Lessee, its sublessees or licensees, or its or their
employees, agents, contractors or invitees; and (b) all costs, expenses
and liabilities, including reasonable attorney's fees and disbursements
incurred in or in connection with each such claim, action or proceeding
brought thereon. In case any action or proceeding be brought against
Lessor by reason of any such claim, Lessee, upon notice from Lessor,
shall resist and defend such action or proceeding.
Lessor shall indemnify, defend and save harmless Lessee and Lessee's
shareholders, officers, directors, employees, agents and contractors
(collectively, "Lessee's Indemnitees") from and against: (a) any and
all claims of whatever nature against Lessee and/or Lessee's
Indemnitees arising from (i) any accident, injury or damage occurring
within the Office Building Area or the Building but outside of the
Premises where such accident, injury or damage results from the
negligent or otherwise wrongful act or omission of Lessor, its agents,
employees or contractors, or (ii) any default by Lessor in the
performance of Lessor's obligations under this Lease; and (b) all
costs, expenses and liabilities, including reasonable attorney's fees
and disbursements incurred in or in connection with each such claim,
action, or proceeding brought thereon. In case any action or proceeding
be brought against Lessee by reason of such claim, Lessor, upon notice
from Lessee, shall request or defend such action or proceeding.
34. ARTICLE HEADINGS:
28
The article headings in this Lease and position of its provisions are
intended for convenience only and shall not be taken into consideration
in any construction or interpretation of this Lease or any of its
provisions.
35. APPLICABILITY TO HEIRS AND ASSIGNS:
The provisions of this Lease shall apply to, bind and inure to the
benefit of Lessor and Lessee, and their respective heirs, successors,
legal representatives and assigns. It is understood that the term
"Lessor" as used in this Lease means only the owner, a mortgagee in
possession, or a lessee of the Building, so that in the event of any
sale of the Building or of any lease thereof, or if a mortgagee shall
take possession of the Premises, Lessor herein shall be and hereby is
entirely freed and relieved of all covenants and obligations of Lessor
hereunder accruing thereafter, and it shall be deemed without further
agreement that the purchaser, the lessee of the Building, or the
mortgagee in possession (as the case may be), has assumed and agreed to
carry out any and all covenants and obligations of Lessor hereunder.
36. OUTSIDE PARKING SPACES:
Lessee's occupancy of the Premises shall include the use of the number
of outside parking spaces as set forth in the Preamble. Lessor shall
not be responsible for any damage or theft of any vehicle in the
parking area and shall not be required to keep parking spaces clear of
unauthorized vehicles or to otherwise supervise the use of the parking
area. Lessee shall, upon request, promptly furnish to Lessor the
license numbers of the cars operated by Lessee and its sublessees,
licensees, invitees, concessionaires, officers and employees. If any
vehicle of Lessee, or of any sublessee, licensee, concessionaire, or of
their respective officers, agents or employees, is parked in any
restricted area other than the employee parking area(s) designated
therefor by Lessor, Lessee shall pay to Lessor such reasonable penalty
as may be fixed by Lessor from time to time. All amounts due under the
provisions of this Article 36 shall be deemed to be Additional Rent.
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY:
Lessor shall not be liable for any loss of property from any cause
whatsoever, including, but not limited to, theft or burglary from the
Premises, and any such loss arising from the negligence of Lessor, its
agents, servants or invitees, or from defects, errors or omissions in
the construction or design of the Premises and/or the Building,
including the structural and non-structural portions thereof, and
Lessee covenants and agrees to make no claim for any such loss at any
time.
38. PARTIAL INVALIDITY:
If any of the provisions of this Lease, or the application thereof to
any person or circumstances, shall to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
provision or provisions to persons or circumstances other than those as
to whom or which it is held invalid or unenforceable, shall not be
affected thereby, and every provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
39. LESSEE'S BROKER:
Lessor and Lessee each represents and warrants to the other that
Lessee's Broker (as defined in the Preamble), is the sole broker with
whom each party has negotiated in bringing about this Lease (whose
commission Lessor shall pay pursuant to a separate agreement), and
Lessor and Lessee each agrees to indemnify and hold the other and
Lessor's mortgagee(s) harmless from any and all claims of other brokers
and expenses in connection therewith arising out of or in connection
with the negotiation of or the entering into this Lease by Lessor and
Lessee. In no event shall Lessor's mortgagee(s) have any obligation to
any broker involved in this transaction.
29
40. PERSONAL LIABILITY:
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed, such agreement being a primary
consideration for the execution of this Lease by Lessor, that there
shall be absolutely no personal liability on the part of Lessor, its
constituent members (to include, but not be limited to, officers,
directors, partners and trustees), their respective successors, assigns
or any mortgagee in possession (for the purposes of this Article,
collectively, "Lessor"), with respect to any of the terms, covenants
and conditions of this Lease, and that Lessee shall look solely to the
"equity of Lessor in the Building and the Office Building Area" (as
hereinafter defined), for the satisfaction of each and every remedy of
Lessee in the event of any breach by Lessor of any of the terms,
covenants and conditions of this Lease to be performed by Lessor, such
exculpation of liability to be absolute and without any exceptions
whatsoever.
For purposes of the preceding sentence, "equity of Lessor in the
Building and the Office Building Area" shall be deemed to include: (i)
all rents, issues and profits received by Lessor (but only to the
extent such rents, issues and profits are not used to pay Operating
Costs of, or debt service (including principal and interest) on, the
Building and the Office Building Area); (ii) "net proceeds of sale" (as
hereinafter defined); and (iii) proceeds of fire and extended coverage
insurance or condemnation awards received by Lessor (to the extent in
excess of any restoration costs and net of all costs of obtaining such
proceeds or awards), provided, in each case that Lessee (A) shall have
delivered a notice to Lessor asserting a claim for a breach of Lessor's
obligations under this Lease prior to the receipt by Lessor of such
rent or other consideration, proceeds or awards, (B) shall have
commenced an appropriate proceeding against Lessor asserting such
breach within six (6) months after the date such notice was delivered
to Lessor and (C) shall have obtained a final non-appealable judgment
against Lessor, and Lessee shall have the right to look to such rent,
consideration, proceeds or awards only as to the subject matter of such
action. "Net proceeds of sale" means the proceeds received by the
transferor Lessor from the sale of the Building after payment of all
costs of sale and all indebtedness on the Building.
41. NO OPTION:
The submission of this Lease for examination does not constitute a
reservation of, or option for, the Premises, and this Lease becomes
effective as a lease only upon execution and delivery thereof by Lessor
and Lessee.
42. DEFINITIONS:
a. COMMON FACILITIES -- Common Facilities shall mean the
non-assigned parking areas; lobby; elevator(s); fire stairs;
public hallways; public lavatories; all other general Building
facilities that service all Building lessees; air conditioning
rooms; fan rooms; janitors' closets; electrical closets;
telephone closets; elevator shafts and machine rooms; flues;
stacks; pipe shafts and vertical ducts with their enclosing
walls. Lessor may at any time, upon reasonable prior notice to
Lessee, close temporarily any Common Facilities to make
repairs or changes therein, or to effect construction, repairs
or changes within the Building, or to discourage non-lessee
parking, and may do such other acts in and to the Common
Facilities as in its reasonable judgment may be desirable to
improve the convenience thereof, but shall always in
connection therewith, endeavor to minimize any inconvenience
to Lessee and provide comparable access, parking and
visibility. Notwithstanding anything hereinabove to the
contrary, so long as Lessee shall be the only lessee in the
Building leasing space from Lessor (as opposed to subtenants
subleasing space from Lessee), there shall be no Common
Facilities in the Building; it being understood that such
portion of the Building and the Office Building Area shall be
deemed a part of the Premises, and Lessor shall have the same
obligations that it has with respect to the balance of the
Premises.
b. FORCE MAJEURE -- Force Majeure shall mean and include those
situations beyond Lessor's reasonable control, including by
way of example and not by way of
30
limitation: acts of God; accidents; repairs; strikes;
shortages of labor, supplies or materials; inclement weather;
or, where applicable, the passage of time while waiting for an
adjustment or insurance proceeds. Any time limits required to
be met by either party hereunder, whether specifically made
subject to Force Majeure or not, except those related to the
payment of Fixed Basic Rent or Additional Rent, shall, unless
specifically stated to the contrary elsewhere in this Lease,
be automatically extended by the number of days by which any
performance called for is delayed due to Force Majeure. Any
party claiming that its performance of any obligation under
this Lease is delayed or excused, as the case may be, by
reason of Force Majeure, shall notify the other party promptly
after it has knowledge that Force Majeure has or will delay or
excuse such performance.
43. INTENTIONALLY OMITTED:
44. NOTICES:
Any notice, demand, request or other communication by either party to
the other shall be in writing and shall be deemed to have been duly
given only if: (i) delivered personally; or (ii) sent by registered
mail or certified mail, return receipt requested, with postage prepaid;
or (iii) sent by nationally recognized overnight delivery service, with
a receipt provided therefor and charges prepaid, addressed: (a) if to
Lessee, at the Building, Attention: Xxxxxxxxx X. Xxxxxxx, Esq., Senior
Vice President and General Counsel, with a copy to Cole, Schotz,
Meisel, Xxxxxx & Xxxxxxx, P.A., Court Plaza North, 00 Xxxx Xxxxxx, X.X.
Xxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, Attention: Jan Xxxx Xxxxx,
Esq.; and (b) if to Lessor, at Lessor's address as set forth above; or,
to either at such other address as Lessee or Lessor, respectively, may
designate in writing. Notices shall be deemed to have been duly given,
if delivered personally, on delivery thereof, if mailed, upon receipt
or rejection of receipt, or if sent by overnight delivery service, the
next business day.
45. ACCORD AND SATISFACTION:
No payment by Lessee or receipt by Lessor of a lesser amount than the
Fixed Basic Rent and Additional Rent payable hereunder shall be deemed
to be other than a payment on account of the earliest stipulated Fixed
Basic Rent and Additional Rent, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment for Fixed
Basic Rent or Additional Rent be deemed an accord and satisfaction, and
Lessor may accept such check or payment without prejudice to Lessor's
right to recover the balance of such Fixed Basic Rent and Additional
Rent or pursue any other remedy provided herein or by law.
46. EFFECT OF WAIVERS:
No failure by Lessor or Lessee to insist upon the strict performance of
any covenant, agreement, term or condition of this Lease, or to
exercise any right or remedy consequent upon a breach thereof, and no
acceptance of full or partial rent during the continuance of any such
breach, shall constitute a waiver of any such breach or of such
covenant, agreement, term or condition. No consent or waiver, express
or implied, by Lessor or Lessee to or of any breach of any covenant,
condition or duty of Lessor or Lessee shall be construed as a consent
or waiver to or of any other breach of the same or any other covenant,
condition or duty, unless in writing signed by Lessor or Lessee, as the
case may be.
47. LEASE CONDITION:
This Lease is expressly conditioned upon Lessor receiving the consent
and approval of Lessor's mortgagee not later than ten (10) business
days after execution by Lessee and delivery to Lessor. Should said
consent not be received within the aforesaid time period, either party
may, on notice to the other, cancel this Lease, whereupon Lessor shall
return the first month's Fixed Basic Rent to Lessee, which Lessee has
deposited with Lessor upon execution of this Lease, and thereafter the
parties shall have no further obligations to each other with respect to
this Lease.
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48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE:
Lessee agrees to give any mortgagees and/or trust deed holders, by
notice, a copy of any notice of default served upon Lessor, provided
that, prior to such notice, Lessee has been notified in writing (by way
of notice of assignment of rents and leases or otherwise) of the
address of such mortgagees and/or trust deed holders. Lessee further
agrees that, if Lessor shall have failed to cure such default within
the time provided for in this Lease, then the mortgagees and/or trust
deed holders shall have an additional thirty (30) days within which to
cure such default, or if such default cannot be cured within that time,
then such additional time as may be reasonably necessary, if within
such thirty (30) days, any mortgagee and/or trust deed holder has
commenced and is diligently pursuing the remedies necessary to cure
such default (including, but not limited to, commencement of
foreclosure proceedings if necessary to effect such cure), in which
event this Lease shall not be terminated while such remedies are being
so diligently pursued.
49. LESSOR'S RESERVED RIGHT:
Lessor and Lessee acknowledge that the Premises are in a Building which
is not open to the general public. Access to the Building is restricted
to Lessor, Lessee, their agents, employees and contractors and to their
invited visitors. In the event of a labor dispute including a strike,
picketing, informational or associational activities directed at Lessee
or any other lessee, Lessor reserves the right unilaterally to alter
Lessee's ingress and egress to the Building or make any change in
operating conditions to restrict pedestrian, vehicular or delivery
ingress and egress to a particular location, upon reasonable notice to
Lessee, but to the extent permitted by law, Lessor shall always provide
a reasonable means of access to and from the Premises and shall
endeavor in connection therewith to minimize any inconvenience to
Lessee. This Article 49 is inapplicable if Lessee is the sole lessee of
the Building.
50. AUTHORITY:
If Lessee is a corporation, Lessee represents and warrants that this
Lease has been duly authorized and approved by the corporation's Board
of Directors. The undersigned officers and representatives of the
corporation represent and warrant that they are officers of the
corporation with authority to execute this Lease on behalf of the
corporation.
The undersigned officer, partner, manager or other representative of
the entity executing this Lease on behalf of Lessor represents and
warrants to Lessee that he or she is an officer, partner, manager or
other representative of the entity with authority to execute this Lease
on behalf of Lessor.
51. AFTER-HOURS USE:
Lessee shall be entitled to make use of Building Standard Utility
Service and HVAC beyond the Building Hours, at Lessee's sole cost and
expense, provided, if applicable, Lessee shall notify Lessor
telephonically or in person or in writing, by 3:00 p.m. on the day that
Lessee shall require said overtime use if said overtime use is required
on any weekday, and by 3:00 p.m. on Friday for Saturday and/or Sunday
overtime use. It is understood and agreed that, if Lessee shall request
that maintenance and repair work on the HVAC system be performed during
other than Building Hours in order to provide HVAC service to the
Building during times other than Building Hours, Lessee shall pay for
the additional actual out-of-pocket reasonable costs incurred by Lessor
in providing such maintenance and repair work on the HVAC system during
hours other than Building Hours. In addition, if Lessor's Building
engineer is required to operate the HVAC system beyond Building Hours,
then Lessee shall pay the actual out-of-pocket reasonable costs
incurred by Lessor in providing such engineer.
52. INTENTIONALLY OMITTED:
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53. ADDITIONAL PARKING:
Lessor, at its sole cost and expense, shall use good faith, diligent
efforts to construct an additional seventy-seven (77) parking spaces on
the south side of the Building as shown on the attached site plan
("Additional Parking"). Lessor shall use reasonable efforts to complete
the Additional Parking by June 1, 2003. If Lessor fails to complete
construction of the Additional Parking by June 1, 2004,, then
commencing within fifteen (15) business days after Lessee gives notice
to Lessor, Lessor, at its sole cost and expense, shall provide Lessee,
its agents, employees, contractors, licensees, invitees, Affiliates of
Lessee, User, permitted assignees and sublessees, visitors or anyone
claiming under or through Lessee, with valet/attendant parking service
as reasonably requested by Lessee from time to time. Such
valet/attendant parking service shall be during Building Hours
(excluding Saturdays) for the parking of no more than seventy-seven
(77) non-commercial vehicles in reasonably close proximity to the
Building until such time as Lessor has completed the construction of
the Additional Parking. Lessor shall ensure that the valet/attendant
service provided to Lessee shall be consistent with a first-class
valet/attendant service in the County of Bergen. Lessor's
valet/attendant service shall be professionally and adequately staffed
with uniformed personnel. Lessee shall have no liability for damage to
any persons or property arising out of such valet/attendant service,
and Lessor shall indemnify, defend and hold Lessee harmless against any
liabilities, damages, costs and expenses arising from the
valet/attendant service being provided by Lessor hereunder. In no event
shall such indemnity be deemed to cover any negligent or wrongful acts
and/or omissions of Lessee, its agents, employees, contractors,
licensees or invitees. Lessor shall have no liability and shall not
incur a penalty of any kind (including, but not limited to, the rent
credit for failure to perform Lessor's Work in Article 27 hereof) for
its failure to construct the Additional Parking, except its obligation
to provide the valet/attendant parking hereunder.
Any vehicular easement given by Lessor to any third party over the
Office Building Area shall not: (i) unreasonably interfere with
Lessee's use and occupancy of the Building; (ii) go through the
Building's parking areas; or (iii) jeopardize Lessee's ability to
obtain any building permits for Lessee's Work (e.g., rooftop equipment,
generator pad, etc.).
54. MISCELLANEOUS:
a. This Lease shall not be recorded. Lessor or Lessee shall, at
the request of the other party, execute and deliver a
memorandum of this Lease sufficient for recording. Said
memorandum shall not be deemed to modify or change any of the
provisions of this Lease.
b. This Lease contains the entire agreement between Lessor and
Lessee relating to the leasing of the Premises. Lessee
expressly acknowledges and agrees that Lessor has not made and
is not making, and, in executing and delivering this Lease,
Lessee is not relying upon, any warranties, representations,
promises or statements, except to the extent that the same may
be expressly set forth in this Lease.
c. This Lease shall be deemed to have been made in Bergen County,
and shall be construed according to, and governed by, the laws
of the State of New Jersey.
55. OPTION TO RENEW:
(a) If this Lease shall then be in full force and effect,
and Lessee is not in monetary default or material non-monetary default
under this Lease, after the expiration of the applicable notice and
cure periods, Lessee shall have the option to extend the Term of this
Lease for two (2) successive periods of five (5) years (each, an
"Extension Term"). The first Extension Term shall commence on the day
immediately following the Expiration Date; provided, however, that
Lessee shall give Lessor notice of its election to extend the Term no
earlier than twenty-four (24) months prior to the Expiration Date nor
later than twelve (12) months prior to the Expiration Date. The second
Extension Term shall commence on the day immediately following the
expiration date of the first Extension Term; provided, however, that
Lessee shall give Lessor notice of its election to extend the Term no
earlier than twenty-four (24) months prior to the expiration date of
the first Extension Term nor later than twelve (12) months prior to the
expiration date of the first Extension Term. TIME SHALL BE OF THE
ESSENCE in connection
33
with the exercise of Lessee's option pursuant to this Article.
(b) Such extension of the Term of this Lease shall be
upon the same covenants and conditions, as herein set forth except for
the Fixed Basic Rent (which shall be determined in the manner set forth
below), the Base Period Costs shall be the calendar year during which
the commencement of the Extension Term occurs, and Lessee shall have no
further right to extend the Term of this Lease after the exercise of
the two (2) options described in paragraph (a) hereof. If Lessee shall
duly give notice of its election to extend the Term of this Lease, such
Extension Term (for which notice of election has been given) shall be
added to and become a part of the Term of this Lease (but shall not be
considered a part of the initial Term), and any reference in this Lease
to the "Term of this Lease", the "Term hereof", or any similar
expression shall be deemed to include such Extension Term, and, in
addition, the term "Expiration Date" shall thereafter mean the last day
of such Extension Term. Lessor shall have no obligation to perform any
alteration or preparatory work in and to the Premises and Lessee shall
continue possession thereof in its "as is" condition.
(c) If Lessee exercises its option for an Extension Term, the
Fixed Basic Rent during the Extension Term in question shall be
ninety-five percent (95%) of the fair market rent for the Premises, as
hereinafter set forth.
(d) Lessor and Lessee shall use their reasonable efforts,
within thirty (30) days after Lessor receives Lessee's notice of its
election to extend the Term of this Lease for an Extension Term
("Negotiation Period"), to agree upon the Fixed Basic Rent to be paid
by Lessee during such Extension Term in question. If Lessor and Lessee
shall agree upon the Fixed Basic Rent for the Extension Term in
question, the parties shall promptly execute an amendment to this Lease
stating the Fixed Basic Rent for the Extension Term in question.
(e) If the parties are unable to agree on the Fixed Basic Rent
for the Extension Term in question during the Negotiation Period, then
within fifteen (15) days after notice from the other party, given after
expiration of the Negotiation Period, each party, at its cost and upon
notice to the other party, shall appoint a person to act as an
appraiser hereunder, to determine the fair market rent for the Premises
for the Extension Term. Each such person shall be a real estate broker
or appraiser with at least ten (10) years' active commercial real
estate appraisal or brokerage experience (involving the leasing of
office space as agent for both lessors and lessees) in Bergen County,
New Jersey. If a party does not appoint a person to act as an appraiser
within said fifteen (15) day period, the person appointed by the other
party shall be the sole appraiser and shall determine the aforesaid
fair market rent. Each notice containing the name of a person to act as
appraiser shall contain also the person's address. Before proceeding to
establish the fair market rent, the appraisers shall subscribe and
swear to an oath fairly and impartially to determine such rent.
If the two (2) appraisers are appointed by the parties as stated in the
immediately preceding paragraph, they shall meet promptly and attempt
to determine the fair market rent. If they are unable to agree
withinthirty (30) days after the appointment of the second appraiser,
they shall attempt to select a third person meeting the qualifications
stated in the immediately preceding paragraph within fifteen (15) days
after the last day the two (2) appraisers are given to determine the
fair market rent. If they are unable to agree on the third person to
act as appraiser within said fifteen (15) day period, the third person
shall be appointed by the American Arbitration Association (or any
successor thereto) ("Association"), upon the application of Lessor or
Lessee to the office of the Association nearest to the Building. The
person appointed to act as appraiser by the Association shall be
required to meet the qualifications stated in the immediately preceding
paragraph. Each of the parties shall bear fifty percent (50%) of the
cost of appointing the third person and of paying the third person's
fees. The third person, however selected, shall be required to take an
oath similar to that described above.
The third appraiser shall conduct such hearing and investigations as
he/she may deem appropriate and shall, within thirty (30) days after
the date of his /her appointment, determine the fair market rent by
selecting the fair market rent determined by either the appraiser
selected by Lessor or the appraiser selected by Lessee. The third
appraiser shall have no discretion other than to choose the fair market
rent determined by one of the other two appraisers by the process
commonly known as "baseball arbitration".
(f) After the fair market rent for the Extension Term in
question has been determined
34
by the appraiser or appraisers and the appraiser or appraisers shall
have notified the parties, at the request of either party, both parties
shall execute and deliver to each other an amendment of this Lease
stating the Fixed Basic Rent for the Extension Term in question.
(g) If the Fixed Basic Rent for the Extension Term in question
has not been agreed to or established prior to the commencement of the
Extension Term, then Lessee shall pay to Lessor an annual rent
("Temporary Rent"), which Temporary Rent shall be equal to one hundred
twenty-five percent (125%) of the Fixed Basic Rent payable by Lessee
for the last year of the Term immediately preceding the Extension Term
in question. Thereafter, if the parties shall agree upon a Fixed Basic
Rent, or the Fixed Basic Rent shall be established upon the
determination of the fair market rent by the appraiser or appraisers,
at a rate at variance with the Temporary Rent: (i) if such Fixed Basic
Rent is greater than the Temporary Rent, Lessee shall promptly pay to
Lessor the difference between the Fixed Basic Rent determined by
agreement or the appraisal process and the Temporary Rent; or (ii) if
such Fixed Basic Rent is less than the Temporary Rent, Lessor shall
credit to Lessee's subsequent monthly installments of Fixed Basic Rent,
the difference between the Temporary Rent and the Fixed Basic Rent
determined by agreement or the appraisal process.
(h) In determining the fair market rent during the Extension
Term, the appraiser or appraisers shall be required to take into
account that Lessee will be given newBase Period Costs, Lessee shall
continue possession of the Premises in its "as is" condition and the
rentals at which leases are then being concluded (as of the last day of
the initial Term or first Extension Term, as the case may be), for five
(5) year leases without renewal options with the lessor and lessee each
acting prudently, with knowledge and for self-interest, and assuming
that neither is under undue duress, for comparable space in the
Building and in comparable office buildings in Bergen County, New
Jersey (including quality and age of the Building) for lessees of
similar size and credit, which comparable rentals will be adjusted to
reflect the difference, if any, between the construction allowance and
other inducements those lessees received as compared to the allowance
and inducements which Lessee is then to receive hereunder (e.g., free
rent, brokerage commissions, procurement costs, work, etc.)
(i) The option granted to Lessee under this Article may
be exercised only by Lessee, an Affiliate of Lessee, permitted
successors and assigns, and not by any sublessee or any successor to
the interest of Lessee by reason of any action under the Bankruptcy
Code, or by any public officer, custodian, receiver, United States
Trustee, trustee or liquidator of Lessee or substantially all of
Lessee's property. Lessee shall have no right to exercise this option
subsequent to the date Lessor shall have the right to give the notice
of termination referred to in Article 13 hereof unless Lessee cures the
default within the applicable notice and cure period. Notwithstanding
the foregoing, Lessee shall have no right to extend the Term unless, at
the time it gives notice of its election, Lessee or Affiliates of
Lessee shall be in occupancy of at least fifty percent (50%) of the
Premises.
56. LESSEE'S RIGHT OF FIRST OFFER:
a. If, at any time during the Term of this Lease, Lessor
shall desire to sell the Office Building Area and the Building as a
single asset sale as set forth in Section d hereof, Lessor shall notify
Lessee in writing of the terms pursuant to which it is willing to make
such sale ("Lessor's Availability Notice"). Lessee shall have the
right, so long as this Lease shall remain in full force and effect, and
Lessee is not in monetary or material non-monetary default hereunder,
after the expiration of the applicable notice and cure periods, within
fifteen (15) business days after such notification or delivery (TIME
BEING OF THE ESSENCE), to agree in writing to purchase the Office
Building Area and the Building upon the terms and conditions set forth
in Lessor's Availability Notice. If Lessee shall exercise its right to
purchase the Office Building Area and the Building upon the terms and
conditions contained in Lessor's Availability Notice, then the closing
of the transaction shall take place within ninety (90) days after
Lessor's receipt of Lessee's notice of such election. If Lessee shall
not so elect, Lessee's right of first offer hereunder shall be null and
void, and of no further force or effect, and this Lease shall continue
otherwise on all the other terms, covenants and conditions herein set
forth. In no event shall Lessor be required to ultimately sell the
Office Building Area and the Building to any third party on the terms
and conditions set forth in Lessor's Availability Notice.
b. The option granted to Lessee under this Article may
be exercised only by
35
Lessee, Affiliates of Lessee, permitted successors and assigns, and not
by any sublessee or any successor to the interest of Lessee by reason
of any action under the Bankruptcy Code, or by any public officer,
custodian, receiver, United States Trustee, trustee or liquidator of
Lessee or substantially all of Lessee's property. Lessee shall have no
right to exercise this option subsequent to the date Lessor shall have
the right to give the notice of termination referred to in Article 13
hereof unless Lessee cures the default within the applicable notice and
cure periods. Notwithstanding the foregoing, Lessee shall have no right
to exercise this option unless, at the time it gives notice of its
election, Lessee or Affiliates of Lessee shall be in occupancy of at
least fifty percent (50%) of the Premises.
c. The right of first offer referred to above shall be
inapplicable to a transfer as a result of foreclosure or deed in lieu
of foreclosure or to a transfer, by way of sale, gift, or devise
(including a trust) to or for a "related party" (as hereinafter
defined)(or any of the general partners, shareholders or members of
Lessor), or to any transfer from one such related party to another, or
to any transfer among the general partners, shareholders or members of
Lessor, or to any designee of a mortgagee of the Office Building Area
and Building. A "related party" shall be deemed to include: (1) a
spouse, lineal descendant or spouse of such descendant, ancestor or
child; (2) a partnership, corporation or limited liability company of
which Lessor (or any of the general partners, shareholders or members
of Lessor) is a member; (3) any entity controlling, controlled by or
under common control with Lessor, or the controlling persons or
entities of Lessor, or to any entity into which Lessor may be merged or
consolidated, or any person or entity which is a successor to the
business of Lessor, by purchase thereof or by arrangement effected
pursuant to any law or regulatory agency action having or asserting
such authority; (4) any member, partner or shareholder of Lessor, or
any person or entity that controls, or will be controlled by, or under
common control with, any such member, partner or shareholder; (5) a
joint ownership or ownership in common, which includes the then Lessor
of the Office Building Area and Building; or (6) a corporation the
majority of whose voting stock is owned by the then Lessor of the
Office Building Area and the Building, or any one or more of the
foregoing parties. If the then Lessor of the Office Building Area and
the Building shall be a corporation, a related party shall include a
related corporation and a successor corporation (but the right of first
offer shall be enforceable with respect to any further transfer by any
of the foregoing except a grantee or transferee as a result of a
foreclosure or deed in lieu thereof). Unless the Office Building Area
and the Building are the sole assets of Lessor, the transfer of the
majority of the voting stock of a corporate Lessor of the Office
Building Area and the Building or of the majority of the total interest
in any partnership, limited liability company or joint venture owning
the Office Building Area and Building shall not be deemed a sale of the
Office Building Area and Building.
d. Anything herein to the contrary notwithstanding,
Lessee's right of first offer under this Article shall be limited to a
transaction in which Lessor intends a "single asset sale" of the Office
Building Area and the Building to a third party that is not a related
party of Lessor or a related party of Xxxx-Xxxx Realty Corporation. If
the sale of the Office Building Area and the Building is part of the
sale or lease of other property owned by Lessor, a related party of
Lessor or a related party of Xxxx-Xxxx Realty Corporation as one
transaction or a series of transactions, then Lessee shall have no
right of first offer pursuant to this Article.
57. GENERATOR:
Lessor acknowledges that Lessee, at its sole cost and expense, may
install an emergency generator outside of the Building, the exact
location of which to be subject to Lessor's prior approval, which
approval shall not be unreasonably withheld, conditioned or delayed.
Lessee, at its sole cost, shall be responsible for obtaining any
governmental approvals necessary with respect to the installation and
operation of the generator. Lessor shall have no obligation to perform
any maintenance or repairs with respect to the generator, the cost of
which shall be borne solely by Lessee. The area upon which the
emergency generator is situated shall not increase Lessee's Percentage
for purposes of calculating Additional Rent pursuant to Article 23
hereof. The generator shall be properly screened to Lessor's reasonable
satisfaction.
36
58. ROOF RIGHTS;TELECOM PROVIDER:
A. Without limiting any other provision of this Lease,
Lessee shall have the exclusive right to install (i) multiple satellite
dishes or antennae (collectively, the "Dish"); and (ii) condensors and
supplemental HVAC units (collectively, "HVAC Unit") on the roof of the
Building (including necessary connection to the Premises) for use by
Lessee, provided any such installations shall be subject to Lessor's
prior consent, which consent shall not be unreasonably withheld,
conditioned or delayed. Any such facilities shall be installed in
accordance with all applicable laws and building codes. Lessee shall
remove such facilities at the expiration or earlier termination of this
Lease, provided Lessee shall repair any damage to the roof caused by
such removal. Prior to making any installations on the roof of the
Building, Lessee shall use a roofing contractor for all work to be
performed by Lessee on the roof of the Building approved by Lessor,
which approval shall not be unreasonably withheld, conditioned or
delayed. The Dish and HVAC Unit shall be properly screened to Lessor's
reasonable satisfaction.
Lessee shall furnish detailed plans and specifications for the Dish and
HVAC Unit (or any modifications thereof) to Lessor for its approval,
which approval shall not be unreasonably withheld, conditioned or
delayed. The parties agree that neither party shall permit the use of
any other portion of the roof to any third person (other than an
Affiliate of Lessee) for any use, including installation of other
satellite dishes, antennae, HVAC units and equipment, and support
equipment. Lessee shall secure and keep in full force and effect, from
and after the time Lessee begins construction and installation of the
Dish or HVAC Unit, such supplementary insurance with respect to the
Dish or HVAC Unit (as the case may be), as Lessor may reasonably
require, provided that the same shall not be in excess of that which
would customarily be required from time to time by Lessors of buildings
of similar class and character in Bergen County, New Jersey with
respect to similar installations.
In connection with the installation, maintenance and operation of the
Dish or HVAC Unit, Lessee, at Lessee's sole cost and expense, shall
comply with all legal requirements and shall procure, maintain and pay
for all permits required therefor, and Lessor makes no warranties
whatsoever as to the permissibility of a Dish or HVAC Unit under
applicable legal requirements or the suitability of the roof of the
Building for the installation thereof. If Lessor's structural engineer
reasonably deems it advisable that there be structural reinforcement of
the roof in connection with the installation of the Dish or HVAC Unit,
Lessor shall perform same at Lessee's cost and expense and Lessee shall
not perform any such installation prior to the completion of any such
structural reinforcement. The installation of the Dish or HVAC Unit
shall be subject to the provisions of Articles 5 and 6 hereof
applicable to alterations and installations. For the purpose of
installing, servicing or repairing the Dish or HVAC Unit, Lessee shall
have access to the rooftop of the Building at twenty-four (24) hours a
day, seven (7) days per week, upon reasonable notice to Lessor (which
notice may be telephonic), and Lessor shall have the right to require,
as a condition to such access, that Lessee (or its employee, contractor
or other representative) at all times be accompanied by a
representative of Lessor. Lessee shall pay for all electrical service
required for Lessee's use of the Dish or HVAC Unit in accordance with
the provision set forth in Article 22 hereof.
Lessee, at its sole cost and expense, shall promptly repair any and all
damage to the roof or to any other part of the Building caused by the
installation, maintenance and repair, operation or removal of the Dish
or HVAC Unit. Lessee shall be responsible for all costs and expense for
repairs of the roof which result from Lessee's use of the roof for the
construction, installation, maintenance, repair, operation and use of
the Dish or HVAC Unit. All installations made by Lessee on the roof or
in any other part of the Building pursuant to the provisions of this
Article 58 shall be at the sole risk of Lessee, and neither Lessor, nor
any agent or employee of Lessor, shall be responsible or liable for any
injury or damage to, or arising out of, the Dish or HVAC Unit. Lessee's
indemnity under Article 33 hereof shall apply with respect to the
installation, maintenance, operations, presence or removal of the Dish
or HVAC Unit by Lessee.
Upon the expiration of the Term, the Dish or HVAC Unit shall be removed
by Lessee at its sole cost and expense, and Lessee shall repair any
damage to the roof or any other portions of the Building to
substantially their condition immediately prior to Lessee's
installation of the Dish or HVAC Unit (ordinary wear and tear, fire and
other casualty, condemnation, eminent domain and repairs that are not
Lessee's responsibility under this Lease excepted).
Notwithstanding anything to the contrary contained in this Article 58,
Lessor shall have the right, at Lessor's expense, on not less than
thirty (30) days' prior notice, to have Lessee relocate
37
the Dish or HVAC Unit to another location on the roof of the Building,
such expense to include, without limitation, the removal of the
existing Dish or HVAC Unit, the purchasing of labor, materials and
equipment necessary for the relocation thereof and the reinstallation
of the Dish or HVAC Unit, at such other location as reasonably
designated by Lessor on the roof of the Building, provided that Lessor
does not, except if work is reasonably required to be performed on the
roof or in the Building, either materially interferes with or adversely
affects the receipt of and/or transmittal of microwaves or other
similar signals, and Lessee shall reasonably cooperate in all
reasonable respects with Lessor in any such relocation; provided,
however, that if such relocation is done pursuant to any legal
requirement, the cost thereof shall be borne by Lessee (unless such
legal requirement relates to, or results from, other actions taken, or
permitted to be taken, by Lessor, in which event Lessor shall bear all
of the costs and expenses of such relocation).
The rights granted in this Article 58 are given in connection with, and
as part of the rights created under this Lease and are not separately
transferable or assignable.
If the installation of the Dish or HVAC Unit or act or omission of
Lessee relating thereto should revoke, negate or in any manner impair
or limit any roof warranty or guaranty obtained by Lessor, then Lessee
shall reimburse Lessor for any loss or damage (excluding consequential)
sustained or actual out-of-pocket reasonable costs or expenses incurred
by Lessor as a result of such impairment or limitation, after Lessor's
delivery of reasonable documentation therefor.
B. Lessee, at its sole cost and expense, may use its own
telephone or telecommunications provider, provided that Lessee shall
first obtain Lessor's consent, which consent shall not be unreasonably
withheld, conditioned or delayed. Any damage to the Building and/or the
Office Building Area caused by Lessee's telecommunications installation
shall be repaired by Lessee at its sole cost and expense.
59. LESSOR'S INSURANCE:
During the Term, Lessor shall maintain the following insurance,
insuring Lessor and any mortgagee, as their respective interests may
appear: (i) fire and extended coverage insurance against damage to the
Building and the Office Building Area (including all alterations,
additions and improvements that become Lessor's property upon
installation) by all risks of direct physical loss in an amount
equivalent to the full replacement cost thereof; (ii) commercial
general liability insurance against claims for bodily injury and
property damage occurring in or about the Common Facilities in amounts
customarily carried by owners of similar buildings in the Bergen
County, New Jersey area; and (iii) insurance against such other hazards
as, from time to time, are then commonly insured against for buildings
similarly situated in amounts normally carried with respect thereto.
All insurance maintained pursuant to this Article 59 may be effected by
"blanket" insurance policies. Notwithstanding anything contained herein
to the contrary, the carrying of insurance by Lessor in compliance with
this Article 59 shall not modify, reduce, limit or impair Lessor's
obligations and liability under Article 33 hereof.
60. ATTORNEY'S FEES:
In the event that either party shall prevail in any litigation pursuant
to this Lease, the prevailing party shall be entitled to recover from
the other party reasonable attorney's fees fixed by the court and part
of any final judgment rendered.
61. PLANNING BOARD APPROVAL:
Lessee, at its sole cost and expense, shall attempt to procure approval
from the Planning Board of the Borough of Woodcliff Lake for a change
of occupancy permit ("Permit"). If Lessee fails to obtain the Permit
after using its due diligence within forty-five (45) days from the date
hereof, Lessee shall so notify Lessor ("Lessee's Notice"). Upon receipt
of Lessee's Notice, Lessor may elect to procure the Permit, at Lessee's
sole cost and expense, provided that Lessor shall have no obligation to
do so. If Lessor shall elect to procure the Permit, Lessor shall so
notify Lessee and shall then have thirty (30) days ("Initial Thirty
(30) Day Period") from receipt
38
of Lessee's Notice to procure the Permit. If Lessor fails to procure
the Permit within the Initial Thirty (30) Day Period, Lessor may elect
to extend the time period within which to procure the Permit for an
additional thirty (30) days upon notice to Lessee ("Additional Thirty
(30) Day Period").
If Lessor elects not to procure the Permit or fails to procure the
Permit within the Initial Thirty (30) Day Period or Additional Thirty
(30) Day Period, as the case may be, Lessee may elect to terminate this
Lease within ten (10) days (TIME BEING OF THE ESSENCE) after Lessee
receives Lessor's notice of election not to procure the Permit or
notice of its failure the procure the Permit.
In addition to the foregoing, if Lessor elects to use the Additional
Thirty (30) Day Period, fails to procure the Permit and Lessee
terminates this Lease, then Lessor shall reimburse Lessee for Lessee's
actual out-of-pocket reasonable costs incurred by Lessee in connection
with Lessee's Work. Such reimbursement shall be made by Lessor within
thirty (30) days after Lessor's receipt of Lessee's reasonable
documentation therefor. In no event shall Lessor have any obligation to
reimburse Lessee for any such costs incurred by Lessee in connection
with Lessee's Work, unless Lessor has elected to use the Additional
Thirty (30) Day Period. Lessor's obligation to make such reimbursement
to Lessee shall survive the termination of this Lease.
In no event shall this Lease be conditioned upon Lessee obtaining any
other permit, variances or approvals from any governmental authorities.
Each party shall cooperate with the other in good faith in procuring
the Permit.
Neither party shall intentionally cause the Borough of Woodcliff Lake
to rescind or withdraw any verbal approval for the Permit issued on January 27,
2003.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under this Lease or make any claim that this Lease is invalid or
unenforceable due to any failure of this document to comply with ministerial
requirements, including, but not limited to, requirements for corporate seals,
attestations, witnesses, notarizations, or other similar requirements, and each
party hereby waives the right to assert any such defense or make any claim of
invalidity or unenforceability due to any of the foregoing.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
LESSOR: LESSEE:
XXXX-XXXX PROPERTIES CO. NO. 11 X.X. XXXX LABORATORIES, INC.
By: Xxxx-Xxxx Sub III, Inc.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. XxXxx
----------------------- --------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. XxXxx
Title: Executive Vice President Title: Chief Financial Officer
39
EXHIBIT A
LOCATION OF PREMISES
Exhibit A - Page 1
EXHIBIT A-1
OFFICE BUILDING AREA
Exhibit A-1 - Page 1
EXHIBIT B
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS: The sidewalks, entrance, passages, courts,
elevators, vestibules, stairways, corridors and public parts of the
Building shall not be obstructed or encumbered by Lessee or used by
Lessee for any purpose other than ingress and egress. If the Premises
are situated on the ground floor with direct access to the street, then
Lessor shall, at Lessor's expense, keep the sidewalks and curbs
directly in front of the Premises clean and free from ice, snow and
refuse.
2. WINDOWS: Windows in the Premises shall not be covered or obstructed by
Lessee. No bottles, parcels or other articles shall be placed on the
windowsills, in the halls, or in any other part of the Building other
than the Premises. No article shall be thrown out of the doors or
windows of the Premises.
3. PROJECTIONS FROM BUILDING: Except as otherwise provided in the Lease,
no awnings, air conditioning units, or other fixtures shall be attached
to the outside walls or the windowsills of the Building or otherwise
affixed so as to project from the Building, without prior written
consent of Lessor, which consent shall not be reasonably withheld,
conditioned or delayed.
4. SIGNS: No sign or lettering shall be affixed by Lessee to any part of
the outside of the Premises, or any part of the inside of the Premises
so as to be clearly visible from the outside of the Premises, without
the prior written consent of Lessor, which consent shall not be
unreasonably withheld, conditioned or delayed. However, Lessee shall
have the right to place its name on any door leading into the Premises,
the size, color and style thereof to be subject to Lessor's approval,
which approval shall not be unreasonably withheld, conditioned or
delayed. Lessee shall not have the right to have additional names
placed on the Building directory without Lessor's prior consent.
Notwithstanding the foregoing, Lessee shall have Lessee's Percentage of
any Building directory (e.g., lobby and/or floor). So long as Lessee is
leasing at least fifty percent (50%) of the Building, Lessee, at its
sole cost and expense, may install its name on the Building and on the
existing monument signs facing the Garden State Parkway and Chestnut
Ridge Road the size, design and location of which shall be subject to
Lessor's prior approval, which approval shall not be unreasonably
withheld, conditioned or delayed. Approval by Lessor shall not
constitute approval for purposes of complying with laws and
requirements of public authorities. It shall be Lessee's obligation to
secure such approvals at Lessee's expense.
5. FLOOR COVERING: Lessee shall not lay linoleum or other similar floor
covering so that the same shall come in direct contact with the floor
of the Premises. If linoleum or other similar floor covering is desired
to be used, an interlining of builder's deadening felt shall first be
fixed to the floor by a paste or other material that may easily be
removed with water, the use of cement or other similar adhesive
material being expressly prohibited.
6. Intentionally omitted.
7. LOCK KEYS: No additional locks or bolts of any kind shall be placed on
any of the doors or windows by Lessee. Lessee shall, on the termination
of Lessee's tenancy, deliver to Lessor all keys to any space within the
Building either furnished to or otherwise procured by Lessee, and in
the event of the loss of any keys furnished, Lessee shall pay to Lessor
the reasonable cost thereof. Lessee, before closing and leaving the
Premises, shall ensure that all windows are closed and entrance doors
locked. Nothing in this Paragraph 7 shall be deemed to prohibit Lessee
from installing a burglar alarm within the Premises, provided: (a)
Lessee obtains Lessor's consent, which consent shall not be
unreasonably withheld, conditioned or delayed; (b) Lessee supplies
Lessor with copies of the plans and specifications of the system; (c)
such installation shall not damage the Building; and (d) all costs of
installation shall be borne solely by Lessee.
8. CONTRACTORS: Except as otherwise provided in the Lease, Lessee shall
not employ any persons other than Lessor's janitors or Lessee's
employees for the purpose of cleaning the Premises without prior
written consent of Lessor, which consent shall not be unreasonably
withheld, conditioned or delayed. Lessor shall not be responsible to
Lessee for any loss of
Exhibit B - Page 1
property from the Premises however occurring, or for any damage to the
effects of Lessee by such janitors or any of its employees, or by any
other person or any other cause, unless caused by the willful
misconduct of Lessor.
9. PROHIBITED ON PREMISES: Lessee shall not conduct, or permit any other
person to conduct, any auction upon the Premises, manufacture or store
goods, wares or merchandise upon the Premises without the prior written
approval of Lessor, except the storage of usual supplies and inventory
to be used by Lessee in the conduct of its business, permit the
Premises to be used for gambling, make any unusual noises in the
Building or permit any unusual odors to be produced on the Premises.
Lessee shall not permit any portion of the Premises to be occupied for
the storage, manufacture, or sale of intoxicating beverages (except in
connection with Lessee's business), narcotics (except in connection
with Lessee's business), tobacco in any form or as a xxxxxx or manicure
shop. Canvassing, soliciting and peddling in the Building and the
Office Building Area are prohibited, and Lessee shall reasonably
cooperate to prevent the same. No bicycles, vehicles or animals (other
than seeing-eye) of any kind shall be brought into or kept in or about
the Premises.
10. PLUMBING, ELECTRIC AND TELEPHONE WORK: Plumbing facilities shall not be
used for any purpose other than those for which they were constructed,
and no sweepings, rubbish, ashes, newspaper or other substances of any
kind shall be thrown into them. Nuisance and waste is prohibited.
11. MOVEMENT OF FURNITURE, FREIGHT OR BULKY MATTER: If Lessee is not the
sole occupant of the Building, the carrying in or out of freight,
furniture or bulky matter of any description must take place during
such hours as Lessor may from time to time reasonably determine and
only after reasonable advance notice (which notice may be telephonic)
to the superintendent of the Building. The persons employed by Lessee
for such work must be reasonably acceptable to Lessor. Lessee may,
subject to these provisions, move freight, furniture, bulky matter, and
other material into or out of the Premises on Saturdays between the
hours of 9:00 a.m. and 1:00 p.m., provided Lessee pays additional
actual out-of-pocket reasonable costs, if any, incurred by Lessor for
elevator operators or security guards, and for any other expenses
occasioned by such activity of Lessee. There shall not be used in the
Building or Premises, either by Lessee or by others in the delivery or
receipt of merchandise, any hand trucks except those equipped with
rubber tires and side guards, and no hand trucks will be allowed in the
elevators without the consent of the superintendent of the Building.
Notwithstanding the foregoing, Lessee shall not incur any costs with
respect to its initial move-in to the Premises.
12. SAFES AND OTHER HEAVY EQUIPMENT: Lessor reserves the right to
reasonably prescribe the weight and position of all safes and other
heavy equipment so as to distribute properly the weight thereof and to
prevent any unsafe condition from arising.
13. ADVERTISING: Lessor shall have the right to prohibit the use of Lessor,
Xxxx-Xxxx Realty Corporation, or any of its affiliates in Lessee's
advertising.
14. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER LESSEES: Lessor shall not
be responsible to Lessee for non-observance or violation of any of
these rules and regulations by any other lessee, if any. Lessor shall
not discriminate against Lessee in its enforcement of the rules and
regulations.
15. Intentionally omitted.
16. PARKING: If Lessee is not the sole occupant of the Building, Lessee and
its employees shall park their cars only in those portions of the
parking area reasonably designated by Lessor.
17. Lessor hereby reserves to itself any and all rights not granted to
Lessee hereunder, including, but not limited to, the following rights
which are reserved to Lessor for its purposes in operating the
Building:
a) the right to change the name or address of the Building,
without incurring any liability to Lessee for doing so;
provided, however, if Lessor shall unilaterally elect to
change the address of the Building, Lessor shall reimburse
Lessee for Lessee's actual
Exhibit B - Page 2
out-of-pocket reasonable expenses in reprinting existing
stationery, business cards, etc. (such reimbursement to be
made within thirty (30) days after Lessor's receipt of
Lessee's invoice, together with reasonable documentation
evidencing Lessee's expenses);
b) the right to install and maintain a sign on the exterior of
the Building identifying the Building as a "Xxxx-Xxxx"
building; and
c) the right to grant to anyone the right to conduct any
particular business or undertaking in the Building; provided,
however, that, so long as Lessee is leasing at least fifty
percent (50%) of the Building, Lessor shall not lease any part
of the Building to a competing pharmaceutical company of
Lessee. In any event Lessor shall not lease any part of the
Building for a use other than the Permitted Use.
18. Lessee shall be responsible for initiating, maintaining and supervising
all health and safety precautions and/or programs required by law in
connection with Lessee's use and occupancy of the Premises.
Exhibit B - Page 3
EXHIBIT C
LESSOR'S WORK; LESSEE'S WORK
RE: Workletter Agreement for office space at 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxxx
Xxxx, Xxx Xxxxxx.
, 2003
XXXX LABORATORIES, INC., LESSEE:
You ("Lessee") and we ("Lessor") are executing simultaneously with this
Workletter Agreement a written lease ("Lease"), covering the space referred to
above, as more particularly described in the Lease ("Premises").
To induce Lessee to enter into the Lease (which is hereby incorporated by
reference) and in consideration of the covenants hereinafter contained, Lessor
and Lessee mutually agree as follows:
A. LESSOR'S WORK:
1. Lessor agrees, at its expense and without charge to Lessee (unless
otherwise provided), to perform the work in the Premises (collectively,
"Lessor's Work"), consisting of the following: (i) refurbish the
existing elevator cabs, including the replacement of the cab's ceiling,
lights, wall paneling, carpeting and call buttons, installation of a
new control system, shunt tip breaker and associated heat sensors, and
ADA compliance; (ii) reseal and re-stripe the existing parking lot, as
necessary; (iii) relamp and repair, as necessary, all lighting in the
indoor and outdoor parking areas, as necessary; (iv) provide new
ceiling tiles, where necessary, in the existing ceiling grid in the
indoor parking area; (v) complete the waterproofing of the atrium
skylights and planters (planters to be installed with plantings or
another aesthetically comparable alternative consistent with a
first-class office building, based upon a mutually agreed upon plan;
(vi) recaulk and repair as necessary, the facade and foundation of the
Building and level the existing pavers at the front entrance; (vii)
take all steps to remove or remediate any Contaminants in violation of
Environmental Laws which may be present in the Premises; (viii) meet
Americans with Disabilities Act requirements for the exterior of the
Building and garage area including restoring and repairing the ramp in
the front of the Building in a first-class manner; (ix) inspect and
repair, as necessary, the existing sewer ejector pumps; (x) repair and
replace, as necessary, the plenum heaters in the garage, clean the
garage floor, and restripe and repair the existing overhead access
doors; and (xi) ensure that the HVAC servicing the atrium complies with
all laws. Lessor's Work shall be performed in a good and workmanlike
manner in accordance with applicable laws, and Lessor's Work shall
comply with all applicable laws. Lessor shall obtain all permits
required in connection with Lessor's Work, at its sole cost and
expense. All mechanical, electrical, plumbing, HVAC, sprinkler and life
safety, and utility systems and meters in the Building, which will not
be modified by Lessee's Work, shall be in good working order and
condition. Lessor shall enforce and/or assign to Lessee any
guaranty/warranty received by Lessor in connection with Lessor's Work.
2. "Building Standard" shall mean the type and grade of material,
equipment and/or device designated by Lessor as standard for the
Building. All items are Building Standard unless otherwise noted. The
provisions of Article 6 of the Lease shall apply to any alterations
made to the Premises after the initial work to be performed herein.
3. All low partitioning, workstation modules, bank screen partitions and
prefabricated partition systems shall be furnished and installed by
Lessee.
4. The installation or wiring of telephone, computer, data and
telecommunications outlets is not part of Lessor's Work. Lessee shall
bear the responsibility to provide its own telephone and data systems,
at Lessee's sole cost and expense.
5. Changes in Lessor's Work, if necessary or requested by Lessee, shall be
accomplished after the execution of the Lease, and without invalidating
any part of the Lease, by written
Exhibit C - Page 1
agreement between Lessor and Lessee ("Change Order"). Each Change Order
shall be prepared by Lessor and signed by both Lessee and Lessor
stating their agreement upon all of the following:
a. the scope of the change in the Lessor's Work; and
b. the cost of the change; and
c. manner in which the cost will be paid or credited; and
d. the estimated extent of any adjustment to the Commencement
Date as a result of the change in the Lessor's Work.
Each and every Change Order shall be signed by Lessor's and Lessee's
respective construction representatives. In no event shall any Change
Order(s) be permitted without such authorizations. A ten percent (10%)
supervision plus ten percent (10%) overhead charge will be added to the
cost of any Change Order. If Lessee shall fail to approve any such
Change Order within one (1) week, the same shall be deemed disapproved
in all respects by Lessee, and Lessor shall not be authorized to
proceed thereon. Any increase in the cost of Lessor's Work or the
change in Lessor's Work stated in a Change Order which results from
Lessee's failure to timely approve and return said Change Order shall
be paid by Lessee. Lessee agrees to pay to Lessor the cost of any
Change Order promptly upon receipt of an invoice for same.
6. Upon completion of Lessor's Work, Lessee shall identify and list any
portion of Lessor's Work which does not conform hereto ("Punch List").
Lessor shall review with Lessee all of the items so listed and promptly
correct or complete any portion of Lessor's Work which fails to conform
to the requirements hereof.
7. The terms contained in the Lease (which include all exhibits attached
thereto) constitute Lessor's agreement with Lessee with respect to
Lessor's Work to be performed by Lessor on Lessee's behalf.
8. All materials and installations constructed for Lessee within the
Premises shall become the property of Lessor upon installation. No
refund, credit or removal of said items is to be permitted at the
termination of the Lease.
9. Intentionally omitted.
10. With respect to the construction work being conducted in or about the
Premises, each party agrees to be bound by the approval and actions of
their respective construction representatives. Unless changed by
written notification, the parties hereby designate the following
individuals as their respective construction representatives:
FOR LESSOR: Xxxx-Xxxx Properties Co. No. 11 L.P.
c/o Xxxx-Xxxx Realty Corporation
000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxx
FOR LESSEE: Xxxx Laboratories, Inc
0 Xxxxxx Xxxx
X.X. Xxx 000
Xxxxxx, XX 00000
Attn:_Mr. Xxx Xxxxx
Senior Director -
Engineering and
Maintenance
B. LESSEE'S WORK:
1. Lessee may make alterations required for Lessee's use of the Premises
("Lessee's Work"), subject to the following:
a. Lessee, at its sole cost and expense, shall prepare and submit
to Lessor, for Lessor's approval, which approval shall not be
unreasonably withheld, conditioned or delayed, and
governmental approval, the following descriptive information,
detailed
Exhibit C - Page 2
architectural and engineering drawings and specifications
(collectively, "Plans") for Lessee's Work. The Plans shall be
as complete and finished as required to completely describe
Lessee's Work and shall include, but not be limited to, the
following:
i. Demolition Plans depicting all existing conditions to
be removed, abandoned or cut patched.
ii. Architectural floor plans depicting partition
locations and types, and door location, size and
hardware types.
iii. Structural plans, if required, depicting new
structural components and their connections to
existing elements.
iv. Electrical plans depicting all new and existing
electrical wiring, devices, fixtures, meters and
equipment and written scope of work on system design
and capabilities for the Building management system.
v. Mechanical plans depicting all new plumbing, piping,
heating, ventilating, air conditioning equipment and
duct work, and their connection to existing elements.
vi. Life Safety System plans depicting all new or altered
alarm system fixtures, devices, detectors and wiring
within the Premises, and their connections to
existing systems.
vii. Coordinated reflected ceiling plan showing ceiling
systems and materials, and all of the above items and
their proximity to one another.
viii. Finish plans showing locations and types of all
interior finishes with a schedule of all proposed
materials and manufacturers.
The Plans shall provide for all systems and construction
components complying with the requirements of all governmental
authorities and insurance bodies having jurisdiction over the
Building.
b. The Plans for Lessee's Work and Lessee's Additional Work (as
hereinafter defined) are subject to Lessor's prior written
approval, which approval shall not be unreasonably withheld,
conditioned or delayed; provided, however, that Lessor may in
any event disapprove the Plans if they are incomplete,
inadequate or inconsistent with the terms of the Lease or with
the quality and architecture of the Building. Lessor agrees to
approve or disapprove the Plans within three (3) business days
of receipt of same ("Lessor's Approval Period"). If Lessor
disapproves the Plans or any portion thereof, Lessor shall
notify Lessee within three (3) business days of receipt of the
Plans and of the revisions which Lessor reasonably requires in
order to obtain Lessor's approval. Lessee shall, at its sole
cost and expense, submit the Plans, in such form as may be
necessary, with the appropriate governmental agencies for
obtaining required permits and certificates, copies of which
shall be delivered to Lessor prior to the commencement of
Lessee's Work and Lessee's Additional Work. Any changes
required by any governmental agency affecting Lessee's Work or
the Plans shall be complied with by Lessee in completing said
Lessee's Work, at Lessee's sole cost and expense. Lessee shall
submit completed Plans to Lessor simultaneously with Lessee's
submission of said Plans to the local building department. If
Lessor has not responded to Lessee's request within such three
(3) business day period, Lessee may deliver to Lessor a second
notice requesting Lessor's consent, which notice shall provide
in capitalized and bold type letters Lessor's failure to
respond to such second request within five (5) days shall be
deemed Lessor's approval of the request contained therein. In
the event Lessor fails to respond to such second notice within
five (5) days, then, provided Lessee's notice complies with
the requirements of the preceding sentence, Lessor shall be
deemed to have consented to the request contained therein.
Exhibit C - Page 3
2. Lessor shall permit Lessee to solicit competitive pricing and select
its own general and/or individual subcontractors to perform Lessee's
Work, at its sole cost, subject to the following:
a. All general contractors and Base Building Sub-Contractors
shall be subject to Lessor's prior written approval, which
approval shall not be unreasonably withheld, conditioned or
delayed;
x. Xxxxxx may be requested, but not required, to submit a price
for Lessee's Work;
c. Lessee notifies Lessor in writing of Lessee's selection of
general and subcontractors; and
d. All costs associated with the biding process soliciting
competitive pricing will be at the sole cost and expense of
Lessee.
Lessor hereby approves The Xxxx Company as Lessee's general contractor
for Lessee's Work.
3. If Lessee accepts the pricing of Lessor's general contractor and elects
to use Lessor's general contractor to perform Lessee's Work: (i) Lessee
and Lessor's general contractor will enter into a separate agreement,
substantially similar to AIA Document A101, and Lessor's general
contractor shall become Lessee's agent; and (ii) Lessor hereby waives
all supervisory fees. Lessor hereby agrees that Change Orders shall be
on the basis of cost plus ten percent (10%) for supervision services
plus ten percent (10%) for overhead.
4. Lessee shall complete Lessee's Work through its own contractors in
accordance with the following terms and conditions:
a. Lessor and Lessee shall coordinate the performance of Lessor's
Work and Lessee's Work so as not to unreasonably interfere
with each other. Lessee's workmen and mechanics shall work in
harmony and not unreasonably interfere with the labor employed
by Lessor, Lessor's mechanics or contractors. If at any time
Lessee and/or its contractors cause disharmony or unreasonable
interference with the operation of the Building, Lessor shall
give forty-eight (48) hours' prior written notice to Lessee
and within twenty-four (24) hours, Lessee shall resolve any
dispute so that the tenor of the construction process and the
operation of the Building is returned to that which existed
prior to Lessor's notice. Such entry by Lessee's contractors
shall be deemed controlled by all of the terms, covenants,
provisions and conditions of the Lease.
b. Prior to the commencement of Lessee's Work, Lessee shall
provide Lessor with evidence of Lessee's contractors and
sub-contractors carrying such worker's compensation,
commercial general liability insurance required by law and in
amounts no less than the amounts set forth in Paragraph 8
hereof. Lessor shall not be liable in any way for any injury,
loss or damage which may occur to any portion of Lessee's
Work, Lessee's decorations, or installations so made, the same
being solely at Lessee's risk, unless such damage is caused by
Lessor's willful misconduct.
c. All proposed Building System work, including the preparation
of the Plans, shall be approved by Lessor's engineers (the
"Engineering Review"), which approval shall not be
unreasonably withheld, conditioned or delayed. Lessor shall
use in-house personnel for such Engineering Review to the
extent practicable; provided, however, if it is necessary to
retain outside engineers for said Engineering Review, the
actual out-of-pocket reasonable cost thereof shall be Lessee's
responsibility, subject to subparagraph e. below.
x. Xxxxxx shall afford Lessee and its contractors the opportunity
to use the Building facilities in order to enable Lessee and
its contractors to perform Lessee's Work; provided, however,
that Lessee and its contractors shall remain responsible for
the scheduling and transportation of materials and equipment
used in the performance of such work. If applicable, Lessee
shall give Lessor adequate prior notice with regard to the
scheduling and transportation of materials in and out of the
Building. Lessor shall furnish, at Lessor's expense, all
utilities, including elevator, water, electricity
Exhibit C - Page 4
and HVAC) during the performance of the work, until the
earlier of: (i) June 1, 2003; or (ii) the date Lessee or
anyone claiming under or through Lessee shall occupy the
Premises for the conduct of business; provided, however, that
Lessor shall not be required to provide such services if it is
impractical to do so given Lessor's Work and/or Lessee's Work
being performed (e.g., Lessor's Work being performed in the
elevator or Lessee's Work being performed on the HVAC system).
e. All Plans, changes to the plans and work installed by Lessee
and its sub-contractors for HVAC Building System work shall
require inspections to be made by Lessor's Base Building HVAC
Sub-Contractor, at Lessee's or Lessee's contractor's expense
("Inspection Fees"). The Inspection Fees, together with the
costs referenced in the last sentence of subparagraph c.
above, shall not exceed $35,000.00. Lessor's HVAC Base
Building Sub-Contractor shall supply Lessor with certification
that work so preformed has been completed in accordance with
the Plans which have been previously approved by Lessor. If
Lessor's HVAC Base Building Sub-Contractor is selected and
actually performs the work, the Inspection Fees described in
this Paragraph with respect to such work shall not be
required. Lessor shall be not entitled to any supervisory or
construction management fees whether or not Lessor performs
Lessee's Work.
f. Lessee shall be responsible for all cleaning and removal of
debris necessitated by the performance of Lessee's Work. If
Lessee fails to provide such cleaning and removal, the same
may be performed by Lessor on Lessee's behalf and Lessee will
pay Lessor, the actual out-of-pocket reasonable cost incurred
by Lessor therefor, after delivery to Lessee of reasonable
documentation in connection therewith.
g. Neither the outside appearance nor the strength of the
Building or of any of its structural parts shall be adversely
affected by Lessee's Work.
h. The proper functioning of any of the Building Systems shall
not be adversely affected or the usage of such systems by
Lessee shall not be materially increased above the projected
usage of such systems indicated by the current plans and
specifications of the Building.
i. Lessee and its general and sub-contractors shall be bound by
and observe all of the conditions and covenants contained in
the Lease and this Exhibit X.
x. Xxxxxx shall designate a "Project Manager" as its
representative in the Building who shall be responsible for
coordination and supervision of the work as it pertains to the
daily operation of the Building, at no cost or expense to
Lessee. The Project Manager and his subordinates shall be
granted access to the Premises at all times during the
construction period.
5. Except as otherwise provided in the Lease, any part of Lessee's Work
within the Premises shall become the property of Lessor upon
installation. Furthermore, with respect to any material and
installation which is part of Lessee's Work, Lessee shall not be
entitled to remove, pledge or sell same unless otherwise agreed to in
writing by Lessor and Lessee. No refund, credit or removal of said
items shall be permitted at the termination of the Lease. Items
installed that are not integrated in any such way with other common
building materials do not fall under this provision (e.g., shelving,
furniture and trade fixtures). Lessee may install additional or
supplemental HVAC systems, appliances and equipment as part of Lessee's
Work, which supplemental HVAC systems, appliances and equipment shall
be connected to the meters measuring Lessee's consumption of and demand
for electricity in the Premises, and Lessee shall be responsible for
all costs related to the repairs and maintenance of any additional or
supplemental HVAC systems, appliances and equipment installed by
Lessee. Lessee shall purchase a service contract for this equipment so
that the equipment is covered by such service contract each year of the
Term of the Lease. Nothing contained herein shall be deemed to prohibit
Lessee from granting security interests in Lessee's furniture,
fixtures,equipment and other personal property.
6. Lessor shall provide a cash contribution of THREE MILLION ONE HUNDRED
THIRTY TWO THOUSAND EIGHT HUNDRED FIFTY AND 00/100 DOLLARS
($3,132,850.00))
Exhibit C - Page 5
("Lessor's Construction Allowance") for payment of the costs associated
with the completion of Lessee's Work. Lessee shall be obligated to
perform the following additional work (collectively, "Lessee's
Additional Work") consisting of: (i) renovation of all existing
restrooms in a "Class A" manner, including, but not limited to, upgrade
of finishes to "Class A" standards and compliance with ADA
requirements; (ii) installation of an addressable fire alarm panel
capable of meeting code including the required strobes, speakers, smoke
detectors or other device as required and their tie-in to said panel;
(iii) replacement of the existing circuit breakers in the Building's
electrical sub-panels and replace the existing transformers by
providing and installing new hung K-rated transformers capable of
supplying 4 xxxxx per square foot; (iv) install a new base building
HVAC system or refurbish the existing HVAC system capable of meeting
the design criteria in Exhibit C-1, including a building management
system by either Automated Logic Corporation or Andover Controls
Corporation, which use industry standard BAC-net protocols without the
obligation of a future maintenance contract. Lessor shall provide a
cash contribution of ONE MILLION FOUR HUNDRED THOUSAND AND 00/100
DOLLARS ($1,400,000.00) ("Lessor's Additional Construction Allowance")
for payment of the costs associated with the completion of Lessee's
Additional Work. Lessor's Construction Allowance and Lessor's
Additional Construction Allowance shall be payable by progress payments
to Lessee on a monthly basis, for the work performed to date and/or for
materials delivered to the Premises during the previous month, less a
retainage of ten percent (10%) of each progress payment ("Retainage").
Each of Lessor's progress payments shall be limited to that fraction of
the total amount of such payment, the numerator of which shall be the
amount of Lessor's Construction Allowance or Lessor's Additional
Construction Allowance, as the case may be, and the denominator of
which shall be the total contract (or estimated) price for the
performance of all of Lessee's Work or Lessee's Additional Work, as the
case may be. Provided that Lessee delivers requisitions to Lessor on or
prior to the tenth (10th) day of any month, such progress payments
shall be made within thirty (30) days next following the compliance by
Lessee of the Payment Conditions (as hereinafter defined). Any such
requisition made following the tenth (10th) day of any month shall be
paid no later than the last day of the month following the month in
which such requisition is made. If Lessee does not pay any contractor
as required by this provision, Lessor shall have the right, but not the
obligation, to promptly pay to such contractor all sums so due from
Lessee, and Lessee agrees the same shall be deemed Additional Rent, and
Lessor shall have all remedies available under this Lease, at law or in
equity for collection from Lessee of all sums so paid by Lessor. For
purposes of this paragraph, "Payment Conditions" shall mean: (i) a
requisition signed by an officer of Lessee, which requisition shall set
forth the names of each contractor and subcontractor to whom payment is
due and the amount thereof; (ii) copies of partial waivers of lien from
all contractors, subcontractors and materialman associated with
Lessee's Work and Lessee's Additional Work; and (iii) a written
certification from Lessee's architect that the work for which the
requisition is being made has been completed substantially in
accordance with the Plans approved by Lessor. The final payment,
including the Retainage, of Lessor's Construction Allowance and
Lessor's Additional Construction Allowance, shall be payable upon
substantial completion of one hundred (100%) of Lessee's Work and
Lessee's Additional Work and within fifteen (15) days of Lessor's
receipt of the following:
a. Copy of the Certificate of Occupancy (temporary or permanent)
issued by the local construction official;
b. AIA Document G704, Certificate of substantial completion
issued and signed by Lessee's architect;
c. Release of Lien statements from the general contractor,
sub-contractors, architects, consultants and engineers
associated with Lessee's Work and Lessee's Additional Work;
d. Lessee shall provide Lessor a set of reproducible drawings of
the Plans and a "CAD" file (in .DWG or .DXF format) of the
"as-built" Plans; and
e. Applicable to the new base building HVAC system: all
warranties (in form so as to be enforceable by Lessor);
certified balancing report; completion check list of the
Building management system; signoff from the HVAC contractor
for the commissioning of the equipment; operation and
maintenance manuals; and signed
Exhibit C - Page 6
and sealed "as-built" mechanical drawings.
Notwithstanding anything hereinabove to the contrary, If Lessee does
not utilize all of Lessor's Construction Allowance for Lessee's Work,
Lessee shall have the right to use up to ten percent (10%) of Lessor's
Construction Allowance for cabling, consultant fees, permits or
permanently attached furniture installed in the Premises.
Lessee shall not be entitled to any installment of Lessor's
Construction Allowance or Lessor's Additional Construction Allowance if
this Lease is not in full force and effect or Lessee is then in
monetary or material non-monetary default under the Lease, after the
expiration of applicable notice and cure periods. Provided that Lessee
has fully complied with this Paragraph 6, if Lessor fails to timely pay
any installment of Lessor's Construction Allowance and/or Lessor's
Additional Construction Allowance, then Lessee shall so notify Lessor,
which notice shall state in bold capital letters, that if Lessor fails
to pay such installment within fifteen (15) days, Lessee may set off,
deduct and recoup the amount so due against the Fixed Basic Rent
payable under the Lease. If Lessor fails to pay the amount so due
within such fifteen (15) day period, then Lessee may set off the amount
due against the Fixed Basic Rent payable under the Lease.
7. Intentionally omitted.
8. Lessee's Contractor's Insurance:
a. Lessee shall require any and all contractors of Lessee
performing Lessee's Work on or about the Premises to obtain
and/or maintain specific insurance coverage for events which
could occur while operations are being performed and which
could occur after the completion of Lessee's Work. The
insurance coverage of the contractor shall be at least equal
to the coverage required by Article 30 of the Lease and the
contractor shall name Lessor and, if requested, any mortgagee
as additional insureds on all policies of liability insurance.
b. The contractor shall purchase and maintain such insurance as
will protect itself and Lessor and Lessee from claims set
forth below which may arise out of or result from its
operations under the contract and after completion of the
contract with Lessee, whether such operations are performed by
the contractor or by any subcontractor or by anyone directly
or indirectly employed by any of them or by anyone for whose
acts any of them may be liable. The insurance coverage shall
include, but not be limited to, protection for:
i. Claims under Workers or Workmens Compensation,
Disability Benefits, and other Employee Benefit Acts;
ii. Claims for damages because of bodily injury,
occupational sickness, disease or death of its
employees;
iii. Claims for damages because of bodily injury,
sickness, disease, or death of any person other than
its employees;
iv. Claims for damages insured by the usual personal
injury liability coverages which are sustained by (i)
any person as a result of an offense directly or
indirectly related to the employment of such person
by the contractor, or (ii) by any other person;
v. Claims for damages, other than to Lessee's Work
itself, because of injury to or destruction of
tangible property, including loss of use resulting
therefrom;
vi. Claims for damages because of bodily injury or death
of any person and/or property damage arising out of
the ownership, maintenance, or use of any motor
vehicle; and
vii. Claims which include the foregoing, but not limited
thereto, which may occur
Exhibit C - Page 7
while operations are being performed and claims which
may occur after operations are completed.
c. Lessee shall secure evidence of Lessee's contractor's
insurance coverage.
d. The contract between Lessee and its contractor shall require
that Lessee's contractor hold Lessor harmless in a form and
manner equal to the indemnity agreement in Article 33 of the
Lease.
e. Lessee shall cause to be executed a waiver of all rights their
contractors have or may have against Lessor and any mortgagee
involved in the Premises in any way, for damages caused by
fire or other perils so insured.
x. Xxxxxx shall cooperate and assist Lessee to enable Lessee to
obtain any required building permits, approvals, etc. in
connection with Lessee's Work and Lessee's Additional Work;
provided, however, that Lessor shall have no obligation to
expend any monies in connection therewith.
Exhibit C - Page 8
EXHIBIT C-1
AIR CONDITIONING AND HEATING DESIGN STANDARDS
The following are design standards for the Building air conditioning system for
cooling and heating in the air in the subject Building:
1. During the normal heating season to maintain an average indoor dry bulb
temperature of not less than 72 degrees F or more than 76 degrees F
when the outdoor dry bulb temperature is lower than 65 degrees F (18
degrees C) but not lower than 5 degrees F.
2. To maintain comfort cooling for an average indoor dry bulb temperature
of 75 degrees F dry bulb, but not more than 78 degrees F dry bulb with
no more than fifty percent (50%) relative humidity when the outside dry
bulb temperature is 91 degrees F with seventy-five percent (75%) FWB.
3. During the intermediate seasons, when the outside dry bulb temperature
is below 55 degrees F (13 degrees C), cooling will be provided by
outside air usage in conjunction with operating of return air, outside
air and exhaust air dampers.
4. To furnish not less than .10 cubic foot of fresh air per minute per
square foot of rentable area, and between .20 and 1.0 cubic feet of
total air per minute, per square foot of rentable occupied space.
5. The air conditioning system shall be capable of meeting the temperature
ranges set forth above based upon the following: (i) the occupancy of
the Premises with more than an average of one (1) person for each one
hundred (100) rentable square feet of floor area; (ii) the installation
or operation of Lessee's machines and appliances, the installed
electrical load of which when combined with the load of all lighting
fixtures exceeds five (5) xxxxx demand per square foot of floor area;
and (iii) rearrangement of partitioning after the initial preparation
of the Premises. If interference with normal operation of the air
conditioning system in the Premises results, necessitating changes in
the air conditioning system servicing the Premises, such changes shall
be made by Lessor upon written notice to Lessee, at Lessee's sole cost
and expense. Lessee agrees to lower and close window coverings when
necessary because of the sun's position whenever the air conditioning
system is in operation, and Lessee agrees at all times to reasonably
cooperate with Lessor and to abide by all the Rules and Regulations
attached hereto as well as reasonable rules and regulations which
Lessor may hereafter reasonably prescribe involving the air
conditioning system. Lessor shall not be responsible for failures of
the Building air conditioning system for cooling and heating if
Lessee's installation of the system does not meet the aforementioned
design criteria.
Exhibit C-1 - Page 1
EXHIBIT D
CLEANING SERVICES
(Five Nights Per Week)
LESSEE'S PREMISES
1. Vacuum clean all carpeted areas.
2. Sweep and dust mop all non-carpeted areas. Wet mop whenever necessary.
3. All office furniture such as desks, chairs, files, filing cabinets,
etc. shall be dusted with a clean treated dust cloth whenever necessary
and only if such surfaces are clear of Lessee's personal property
including but not limited to plants.
4. Empty and wash ashtrays.
5. Empty wastepaper baskets and remove waste to the designated areas.
6. All vertical surfaces within arms reach shall be spot cleaned to remove
finger marks and smudges. Baseboard and window xxxxx are to be spot
cleaned whenever necessary.
7. All cleaning of cafeterias, vending areas, kitchen facilities are
excluded. Lessee may make necessary arrangements for same directly with
Lessor's cleaning maintenance company.
8. Cleaning hours shall be Monday through Friday between 5:30 p.m. and
11:00 p.m.
9. No cleaning service is provided on Saturday, Sunday and Building
Holidays.
10. Cartons or refuse in excess which can not be placed in wastebaskets
will not be removed. Lessee is responsible to place such unusual refuse
in trash dumpster.
11. Cleaning maintenance company will not remove nor clean tea, office cups
or similar containers. If such liquids are spilled in waste baskets,
the waste baskets will be emptied but not otherwise cleaned. Lessor
will not be responsible for any stained carpet caused from liquids
leaking or spilling from Lessee's wastepaper receptacles.
12. Upon completion of cleaning, all lights will be turned off and doors
locked leaving the Premises in an orderly condition.
13. Glass entrance doors and Interior glass doors or glass partitions will
be cleaned nightly.
COMMON AREAS
1. Vacuum all carpeting in entrance lobbies, outdoor mats and all
corridors.
2. Wash glass doors in entrance lobby with a clean damp cloth and dry
towel.
3. Clean cigarette urns. Sweep and/or wet mop all resilient tile flooring.
Hard surface floors such as quarry tile, etc., shall be cleaned
nightly.
4. Wash, clean and disinfect water fountains.
5. Clean all elevators and stairwells.
6. Lavatories - Men and Women.
a. Floors in all lavatories shall be wet mopped each evening with a
germicidal detergent to ensure a clean and germ free surface.
b. Wash and polish all mirrors, shelves, bright work including any
piping and toilet seats.
c. Wash and disinfect wash basins and sinks using a germicidal
detergent.
d. Wash and disinfect toilet bowls and urinals.
e. Keep lavatory partitions, tiled walls, dispensers and receptacles
in a clean condition using a germicidal detergent when necessary.
f. Empty and sanitize sanitary disposal receptacles.
g. Fill toilet tissue holders, towel dispensers and soap dispensers.
Refills to be supplied by Lessor.
7. Clean all air ventilation grill work in ceilings.
Exhibit D - Page 1
EXHIBIT E
BUILDING HOLIDAYS
NEW YEAR'S DAY
MEMORIAL DAY
INDEPENDENCE DAY
LABOR DAY
THANKSGIVING DAY
CHRISTMAS DAY
Exhibit E - Page 1
EXHIBIT F
LESSEE ESTOPPEL CERTIFICATE
TO: MORTGAGEE and/or its affiliates and/or whom else it may concern:
1. The undersigned is lessee under that certain Lease dated , 2003
("Lease"), by and between ____________, as Lessor, and ____________, as
Lessee, covering those certain premises consisting of approximately
________ (_______) gross rentable square feet in of the building
commonly known as ______________, New Jersey ("Premises").
2. The Lease has not been modified, changed, altered or amended in any
respect (except as indicated following this sentence) and is the only
lease or agreement between the undersigned and Lessor affecting said
Premises. If none, state "none".
3. The undersigned has made no agreements with Lessor or its agents or
employees concerning free rent, partial rent, rebate of rental payments
or any other type of rental concession (except as indicated following
this sentence). If none, state "none".
4. The undersigned has accepted and now occupies the PremisesThe Lease
term began________________, 2003, and the rent for said Premises has
been paid to and including ______________, 200_, in conformity with the
Lease. No rent has been prepaid for more than two (2) months. The Fixed
Basic Rent is $________________ per month. If Lessee is not in full
possession, whether Lessee has assigned the Lease, sublet all or any
portion of the Premises, or otherwise transferred any interest in the
Lease or the Premises, Lessee agrees to provide a copy of such
assignment, sublease, or transfer upon written request.
5. Lessee is not in default and the Lease is in full force and effect. As
of the date hereof, the undersigned is entitled to no credit, no free
rent and no offset or deduction in rent.
6. All alterations, improvements, additions, build-outs, or construction
required to be performed under the Lease have been completed in
accordance with the terms of the Lease.
7. Intentionally omitted.
8. No actions, whether voluntary or otherwise, are pending against the
undersigned under the bankruptcy laws of the United States or any State
thereof.
9. There are currently no valid defenses, counterclaims, off-sets,
credits, deductions in rent, or claims against the enforcement of any
of the agreements, terms or conditions of the Lease.
10. The undersigned acknowledges that all the interest of Lessor in and to
the above-mentioned Lease is being duly assigned to MORTGAGEE or one of
its affiliates hereunder, and that pursuant to the terms thereof: (i)
all rental payments under said Lease shall continue to be paid to
Lessor in accordance with the terms of the Lease unless and until
Lessee is otherwise notified in writing by MORTGAGEE, or its successors
or assigns; and (ii) no modification, revision or cancellation of the
Lease or amendments thereto shall be effective unless a written consent
thereto of such MORTGAGEE is first obtained.
11. The undersigned is authorized to execute this Lessee Estoppel
Certificate on behalf of Lessee.
Dated this ________ day of __________________, 200_
LESSEE:
___________________________________________
Name:
Title:
Exhibit F - Page 1
EXHIBIT G
COMMENCEMENT DATE AGREEMENT
1.0 PARTIES
THIS AGREEMENT made the _________day of ________, 2003 (hereinafter
"Agreement"), is by and between ________________ (hereinafter "Lessor")
whose address is c/o Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 and _________________________ (hereinafter
"Lessee") whose address is ________________________________________.
2.0 STATEMENT OF FACTS
2.1 Lessor and Lessee entered into a Lease dated ____________,
2003 (hereinafter "Lease"), setting forth the terms of
occupancy by Lessee of approximately _____________(________ )
gross rentable square feet (hereinafter "Premises") at
_____________________________ (hereinafter "Building"); and
2.2 The Term of the Lease is for ____________ (__)years with the
Commencement Date of the initial Term being defined in the
Preamble to the Lease as being subject to change under
Articles 27 and 43 thereof; and
2.3 It has been determined in accordance with the provisions of
Articles 27 and 43 of the Lease that ___________, 2003 is the
Commencement Date of the Term of the Lease.
3.0 STATEMENT OF TERMS
NOW, THEREFORE, in consideration of the Premises and the
covenants hereinafter set forth, it is agreed:
3.1 The Commencement Date of the Term of the Lease is ___________,
2003 and the Expiration Date thereof is _____________ ,
200_, and Paragraphs 6 and 9 of the Preamble to the Lease
shall be deemed modified accordingly.
3.2 Paragraph 10 of the Preamble to the Lease shall be deemed
modified as follows:
3.3 This Agreement is executed by the parties hereto for the
purpose of providing a record of the Commencement Date and
Expiration Date of the Lease, adjust the Term of the Lease and
Fixed Basic Rent amount accordingly.
EXCEPT as modified herein, the Lease covering the Premises shall remain
in full force and effect as if the same were set forth in full herein, and
Lessor and Lessee hereby ratify and confirm all the terms and conditions
thereof.
THIS AGREEMENT shall be binding upon and inure to the benefit of the
parties hereto, and their respective legal representatives, successors and
permitted assigns.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under the Lease or this Agreement or make any claim that the Lease or
this Agreement is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements, including, but not limited to,
requirements for corporate seals, attestations, witnesses, notarizations, or
other similar requirements, and each party hereby waives the right to assert any
such defense or make any claim of invalidity or unenforceability due to any of
the foregoing.
IN WITNESS THEREOF, Lessor and Lessee have hereunto set their hands and
seals the date and year first above written and acknowledge one to the other
they possess the requisite authority to enter into this transaction and to sign
this Agreement.
LESSOR LESSEE
XXXX-XXXX PROPERTIES CO. NO. 11 X.X. XXXX LABORATORIES, INC.
By: Xxxx-Xxxx Sub III, Inc.,
its General Partner
By: ________________________________ By: _______________________
Xxxxxxx X. Xxxxxxxx Name:
Executive Vice President Title:
