LEASE AGREEMENT
BETWEEN
LANDLORD: XXXXXX LAWRENCEVILLE REALTY ASSOCIATES, L.L.C.,
a New Jersey Limited Liability Company
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxx, X.X. 00000
TENANT: NEW JERSEY STATE MEDICAL UNDERWRITERS, INC.,
a New Jersey corporation
Xxx Xxxxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
DATED: November 25, 2003
PREMISES: Suite No. 2 consisting of approximately 33,432 s.f. of net
leasable office space on the first and second floors and approximately 1,568
s.f. of warehouse space (the "Premises") located at the 71,733 +- s.f. office
building (the "Building") on the premises located in the Township of Xxxxxxxx,
County of Xxxxxx, State of New Jersey, described as Lot 1 in Block 3901 on the
Tax Map of the Township of Xxxxxxxx (the "Property"). The Property and the
Building are hereinafter collectively referred to as the "Project". The Premises
shall expressly exclude any and all rights to use any space which is located
within any other tenant's premises.
ATTACHMENTS AS FOLLOWS:
1. Exhibit A - Building Plan Indicating Tenant's Premises
2. Exhibit B - Intentionally Deleted
3. Exhibit C - Landlord/Tenant Work Letter
4. Exhibit D - Floor Load Rendering
5. Exhibit E - Hazardous Substances Used, Generated, Released,
Processed, Transported, Handled, Treated, Stored or
Disposed of by Tenant.
6. Exhibit F- Intentionally Deleted
7. Exhibit G- Intentionally Deleted
8. Exhibit H- Parking Plan and Pylon Sign Detail
THIS LEASE AGREEMENT (THE "LEASE"), made as of this ____ day of
________, 2003, by and between XXXXXX LAWRENCEVILLE REALTY ASSOCIATES, L.L.C., a
New Jersey limited liability company, having an address at 0000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000 (the "Landlord"); and NEW JERSEY STATE MEDICAL
UNDERWRITERS, INC., a New Jersey corporation, having an address at Two Princess
Road, Lawrenceville, New Jersey 08648 (the "Tenant"). The Effective Date of this
Lease shall be the date of the Closing on Landlord's purchase of all the right,
title and interest in and to the Property and delivery of the deed to the
Property to Landlord.
PARAGRAPH 1ST - PREMISES
The Landlord does hereby lease to Tenant and the Tenant does hereby rent from
Landlord, Suite No. 2, consisting of approximately 33,432 s.f. of net leasable
office space on the first and second floors, and 1,568 s.f. of warehouse space
(the "Premises") in the Building located on the Property. The Premises shall be
measured by the Landlord's architect in accordance with Paragraph 50 of this
Lease. Until such time as the Landlord's Work described in the Landlord/Tenant
Work Letter is completed, it is understood that Tenant may remain in the space
which it occupied at the time of execution of this Lease; PROVIDED, HOWEVER,
that all rent is paid in accordance with this Lease and the insurance and
indemnity provisions in this Lease shall apply. In addition, Tenant shall
cooperate to the fullest extent possible to complete a transition into occupancy
of the Premises only within seven (7) to fourteen (14) days of the issuance of
any required Certificate of Occupancy for the Premises or any part thereof.
Tenant shall have access to the Premises 24 hours a day, 7 days a week; however,
Tenant understands that access may be limited due to the initial construction.
Landlord shall not be responsible for any limitation of access for reasons out
of its control, including, but not limited to, off-site limitations or bad
weather.
PARAGRAPH 2ND - TERM
The term of the Lease shall be five (5) years (the "Lease Term"), commencing on
the Effective Date (the "Commencement Date") and terminating on that date which
is the fifth anniversary of the Commencement Date (the "Termination Date").
PARAGRAPH 3RD - USE
The Premises are to be used and occupied only and for no other purpose than a
business office and limited warehouse, in the specified square footage, subject
to the restrictions specified in Paragraph 49th of this Lease. The Landlord
represents that the Tenant's use as an office is permitted under the Township of
Xxxxxxxx Zoning Code. The Tenant understands and acknowledges that it is the
Landlord's intent to establish the Property and the Building thereon in the
future as a medical office building, and the Landlord will undertake any such
requirements in conjunction with such conversion. Landlord acknowledges that
Tenant will be utilizing the conference rooms and cafeteria that are located in
the space of the Medical Society of New Jersey pursuant to a
separate written agreement to be entered into between Tenant and the Medical
Society of New Jersey, which rights shall not run with this Lease but for
Permitted Assignees and Sublessees, and pursuant to which, Landlord shall not in
any way be bound, obligated or responsible, and to or upon which this Lease
shall not be subject or conditioned.
PARAGRAPH 4TH PAYMENT OF RENT
The Tenant agrees to pay the basic rent set forth immediately hereinbelow (the
"Basic Rent"). It is understood that the annual and monthly net rental amounts
are estimated and that the actual amounts are a function of the measurement
results conducted pursuant to Paragraph 50th. The Basic Rent shall be due and
payable monthly, in advance, on the first (1st) day of each month of the Lease
Term, as specified below, subject to no setoff or deduction of any kind or
nature whatsoever in addition to all other obligations hereinafter provided.
YEAR RENT ANNUAL MONTHLY
RENTAL PER S.F. NET RENTAL NET RENTAL
------ -------- ---------- ----------
1st Year $15.00*(subject to the stated decrease adjustment set forth
below)
$ 7.00 $ 10,976 $ 914.66
2nd Year $15.00 $501,480 $41,790.00
$ 7.00 $ 10,976 $ 914.66
3rd Year $15.00 $501,480 $41,790.00
$ 7.00 $ 10,976 $ 914.66
4th Year $15.00 $501,480 $41,790.00
$ 7.00 $ 10,976 $ 914.66
5th Year $15.00 $501,480 $41,790.00
$ 7.00 $ 10,976 $ 914.66
The Basic Rent shall be $13.50 per square foot for office space and $7.00 per
square foot for warehouse space from the Commencement Date until that date which
is six (6) months after the Effective Date (the "First Stage"). The Basic Rent
shall be $14.50 per square foot for office space and $7.00 per square foot for
warehouse space from the first day after the end of the First Stage until such
time as each item of Landlord's Work as listed on the Landlord/Tenant Work
Letter attached hereto and made a part hereof is certified by Landlord's
Architect as being substantially complete (the "Second Stage"). The First Stage
and the Second Stage, collectively, shall not exceed one (1) year, such that
commencing on a date not later than the first day of the second year of this
Lease, the Base Rent shall be $15.00 per square foot for office space and $7.00
per square foot for warehouse space. If the Landlord's Architect does not issue
a certificate that the Landlord's Work in the Landlord/Tenant Work Letter is
substantially complete in the aggregate, then the Basic Rent will remain at
$14.50 per square foot, and not increase to $15.00 per square foot for each day
that the Landlord's Architect is unable to issue a certificate as to substantial
completion.
It is the purpose and intent of Landlord and Tenant that the net rental shall be
absolutely net to Landlord so that the Lease shall yield, net to Landlord, the
net rent herein specified in each year during the Lease Term, free of any
charges, assessments or impositions of any kind charged, assessed, or imposed on
or against the Project, and without abatement, deduction, or setoff by Tenant,
except as specifically otherwise provided, and Landlord shall not be expected or
required to pay any such charge, assessment or imposition, or be under any
obligation or liability except as herein expressly set forth, and that all
costs, expenses and obligations of any kind relating to the maintenance and
operation of the Project, including all alterations, repairs and replacements as
hereinafter provided, which may arise or become due during the Lease Term, shall
be paid by Tenant, and Landlord shall be indemnified and held harmless by Tenant
from and against such costs, expenses and obligations, except as may be herein
provided.
If the Commencement Date occurs on a day other than the first day of a calendar
month, the rent for such calendar month shall be pro-rated for such partial
month.
PARAGRAPH 5TH - OPTION TO EXTEND TERM
Tenant shall have the option to extend this Lease beyond the Termination Date on
the following terms and conditions:
(a) Provided Tenant has fully and faithfully performed all
of the terms and conditions of this Lease, Tenant may extend the term of this
Lease for one (1) five (5) year term (the "Renewal Term"). The Renewal Term
shall begin on the day immediately following the Termination Date. However, if,
on the Termination Date, the Tenant is in default beyond any grace period
provided in this Lease or in the performance of any of the terms or provisions
of this Lease, the option to exercise the Renewal Term shall be null and void.
All the terms, covenants, and provisions of the Lease Term shall apply to the
Renewal Term, except that the monthly rental rate shall be determined as
hereinafter provided.
(b) Tenant may exercise its option for the Renewal Term by
giving Landlord notice of its intention to do so not later than one hundred
twenty (120) days prior to the Termination Date, and not sooner than one hundred
eighty (180) days prior to the Termination Date. To constitute effective notice
of an intention to exercise the Renewal Term, the notice must be sent by
Certified or Registered Mail, or by reputable overnight carrier to Landlord, at
the address provided hereinabove and must be postmarked no later than the latest
date provided in this Paragraph 5th for Tenant's exercise of the Renewal Term.
PARAGRAPH 6TH - DETERMINATION OF MONTHLY RENTAL FOR RENEWAL TERM
The monthly rental rate for each year of the Renewal Term shall be as set forth
below. It is understood that the annual and monthly net rental amounts are
estimated and that the actual amounts are a function of the measurement results
pursuant to Paragraph 50th.
FIRST
RENEWAL RENT ANNUAL MONTHLY
TERM PER S.F. NET RENTAL NET RENTAL
---- -------- ---------- ----------
6th Year $16.25 $543,270.00 $45,272.50
$ 7.00 $ 10,976.00 $ 914.00
7th Year $16.25 $543,270.00 $45,272.50
$ 7.00 $ 10,976.00 $ 914.66
8th Year $16.25 $543,270.00 $45,272.50
$ 7.00 $ 10,976.00 $ 914.66
9th Year $16.25 $543,270.00 $45,272.50
$ 7.00 $ 10,976.00 $ 914.66
10th Year $16.25 $543,270.00 $45,272.50
If the beginning of the Renewal Term occurs on a day other than the first (1st)
day of a calendar month, then the rent for such calendar month shall be
pro-rated for such partial month.
PARAGRAPH 7TH - REPAIRS AND CARE
Tenant shall take good care of the Premises and, except as expressly provided in
this paragraph below, shall make, at Tenant's sole cost and expense, all
maintenance repairs, including, but not limited to, painting and decorating, and
will maintain the Premises in good condition and state of repair, and on the
Termination Date, expiration of the Renewal Term or other expiration of the
Lease, shall deliver the Premises in good order and condition, except for
reasonable wear and tear, casualty and damage by the elements, not resulting
from the neglect or fault of the Tenant. Tenant shall neither encumber nor
obstruct the sidewalks, driveways, yards, entrances, hallways or stairs of the
Project. Tenant shall be responsible, at its own cost and expense, for any
cleaning or janitorial services for the Premises. Tenant shall also be
responsible, at its own cost and expense, for the care and maintenance of the
elevator between the first and second floors of the Premises, which shall
include keeping in effect a maintenance contract for such elevator. Tenant
represents that, to its knowledge, the elevator is currently in good working
order and has no knowledge of any repairs being required during its occupancy
pursuant to its lease with the Medical Society of New Jersey other than ordinary
maintenance, and has no knowledge or belief that the elevator is in any state of
disrepair at the time of execution of this Lease. Landlord represents to Tenant
that, to Landlord's knowledge, the elevator is in good working order on the
Effective Date of this Lease.
In case of the destruction of or any damage to the glass in the Premises, or the
destruction of or damage of any kind whatsoever to the Premises, caused by the
carelessness, negligence or improper conduct on the part of Tenant or Tenant's
agents, employees, guests, licensees, invitees, subtenants, assignees or
successors, Tenant
shall repair the said damage or replace or restore any destroyed parts of the
Premises, as speedily as possible, at the Tenant's sole cost and expense.
Landlord shall be responsible for structural, gutters, downspouts and roof
maintenance repairs for the Building and all electrical system, plumbing system,
HVAC system and fire sprinkler repairs throughout the Building during the Lease
Term and the Renewal Term, except that (1) Tenant shall be responsible for the
cost of such repairs if damage is caused by Tenant's officers, agents, servants,
employees, invitees or licensees, and (2) Tenant shall be responsible for
making, at its own expense, electrical and plumbing maintenance and repairs
within the Premises. The Landlord shall also make any repairs necessitated by
water seepage or by other causes not under Tenant's control. Landlord shall also
be responsible for the maintenance of the common areas, including exterior
elements, which shall be maintained consistent with a first class office
building. Notwithstanding anything herein to the contrary, Tenant shall be
exclusively responsible for any damage or repairs to the cooling system or
apparatus located on the roof, which services Tenant's computer room, and for
any damage to any portion of the Building that may result from the
malfunctioning or disrepair of said cooling unit.
PARAGRAPH 8TH - COMPLIANCE WITH LAWS, ETC.
Landlord represents to Tenant that, at the Commencement Date, except with
respect to work that may be included within the Landlord/Tenant Work Letter, the
Premises is in material compliance with all requirements of all applicable
governmental laws, order, rules, regulations, ordinances or other directives or
applicable codes of any nature of all federal, state, county and municipal
authorities and Board of Fire Underwriters.. Likewise, Tenant represents to
Landlord that, at the date of execution of this Lease, Tenant has no knowledge
or belief that there are any material violations of any of the aforesaid
standards with respect to the Premises. The Landlord shall make any necessary
repairs or changes to cause the Project to comply with applicable governmental
and insurance requirements.
Except for those items for which Landlord is responsible as expressly set forth
in the Landlord/Tenant Work Letter, the Tenant shall make all repairs and
changes necessary to comply with applicable laws, ordinances, orders or
regulations of any federal, state, county or municipal authority now or
hereafter in effect, with all requirements of the Board of Fire Underwriters or
similar authority, and with all requirements of any insurance companies which
have issued or are about to issue policies insuring the Premises, if such
repairs or changes are made necessary by the nature of the Tenant's use of the
Premises and/or by any work described in the Landlord/Tenant Work Letter. The
Landlord represents that Landlord's Work and its impact upon the Premises shall
comply with all applicable laws; Landlord makes no representations regarding
compliance with respect to any work performed by or to be performed by Tenant or
that which is Tenant's responsibility under this Lease.
PARAGRAPH 9TH - FIRE AND OTHER CASUALTY
In case of fire or other casualty, the Tenant shall give immediate notice to
Landlord. If the Premises are partially damaged by fire, the elements or other
casualty, the Landlord shall repair same as speedily as practicable, but the
Tenant's obligation to pay rent hereunder will not cease; PROVIDED, HOWEVER,
that the Tenant is practicably able to
continue using the Premises until said repairs are complete. If, in the
reasonable opinion of Landlord, the Premises, or any portion thereof, are so
extensively and substantially damaged so as to render same untenantable, then
the payment of rent will be abated in proportion to the extent that Tenant is
unable to use such damaged portion of the Premises for a business office or
warehouse space, as the case may be, until such time as the Premises are made
tenantable by the Landlord. However, if, in the reasonable opinion of the
Landlord, the Premises are totally destroyed or so extensively and substantially
damaged as to require practically a rebuilding of same, then the rent will be
paid up to the time of such destruction and from that point forward this Lease
shall be terminated. In no event, however, shall the preceding three (3)
sentences become effective or applicable if the fire or other casualty and
damage are as a result of the carelessness, negligence or improper conduct of
the Tenant or Tenant's agents, employees, guests, licensees, subtenants,
assignees or successors. In such case, the Tenant's liability for the payment of
rent and the Tenant's obligation to perform all of the covenants, conditions and
terms of this Lease shall continue and the Tenant will be liable to the Landlord
for the damage and loss suffered by Landlord to the extent that Landlord is not
covered under any insurance policy for such damage or loss. If the Tenant was
insured against any of the risks covered herein, then the proceeds of such
insurance shall be paid over to the Landlord to the extent of the Landlord's
costs and expenses to make the repairs hereunder, and such insurance carriers
will have no recourse against the Tenant for reimbursement to the extent such
provisions do not void or effect such coverage.
If within one (1) year prior to the expiration of the Lease Term or the Renewal
Term, as applicable, more than fifty (50%) percent of the Premises shall be
damaged or destroyed by fire or other casualty of any kind or nature, foreseen
or unforeseen, then Tenant or Landlord may terminate this Lease by providing
written notice to the other party within thirty (30) days of any fire or other
casualty.
In the event of a fire or other casualty, the time for such repairs or
restoration shall not exceed one hundred fifty (150) days after such fire or
other casualty. Rent and all other charges shall xxxxx from the date of such
damage until such time as the Landlord has substantially restored or repaired
the Premises and the Tenant can reasonably resume its business operations and
the Premises shall have a Certificate of Occupancy. If the time for such repairs
or restoration exceeds one hundred fifty (150) days, then in that event, Tenant
shall have the right to terminate this Lease by providing sixty (60) days
advance written notice to Landlord.
PARAGRAPH 10TH - INSTALLATION OF ALTERATIONS/IMPROVEMENTS BY TENANT
Tenant may make non-structural alterations, additions or improvements to the
Premises that Tenant deems necessary or desirable. All such alterations,
additions or improvements shall be in accordance with Paragraph 33rd of this
Lease. Any structural alterations, additions or improvements shall be made only
with Landlord's prior written consent. Said alterations are to be performed by
Tenant at Tenant's expense. Notwithstanding subparagraph 33(g) below, if
Landlord requires Tenant to do so, Tenant shall restore the Premises to the
condition existing prior to such alterations, additions or improvements,
reasonable wear and tear excepted. Should Tenant wish to have Landlord waive
such restoration requirement with respect to any specific alteration,
addition or improvement, Tenant shall request, in writing, Landlord's waiver
prior to performing any such alteration, addition or improvement, which waiver
may be withheld in Landlord's sole discretion. Notwithstanding anything
contained to the contrary herein, Landlord shall not unreasonably withhold,
delay or condition its consent for any alterations proposed and done by Tenant.
Landlord consents to the alterations and improvements set forth in the
Landlord/Tenant Work Letter attached to this Lease as Exhibit "C" as well as the
initial construction of a large conference room within the Premises, and
Landlord waives such restoration requirement with respect to such work.
PARAGRAPH 11TH - INSPECTION AND REPAIR
The Tenant agrees that the Landlord and the Landlord's agents, employees or
other representatives, shall have the right to enter into and upon the Premises
or any part thereof, at all reasonable hours, for the purpose of examining the
same or making such repairs or alterations therein as may be necessary for the
safety and preservation thereof. The preceding sentence shall not be deemed to
be a covenant by the Landlord nor be construed to create an obligation on the
part of the Landlord to make such inspection or repairs, and no liability shall
arise from the failure of Landlord to inspect. Except in the case of
emergencies, the Landlord shall provide the Tenant with forty eight (48) hours
prior notice, during reasonable business hours of the Tenant, of said inspection
or repairs. Said inspection or repairs shall not unreasonably interfere with
Tenant's business operations.
PARAGRAPH 12TH - RIGHT TO EXHIBIT
The Tenant agrees to permit the Landlord and the Landlord's agents, employees or
other representatives to show the Premises to persons wishing to rent same, and
the Tenant agrees that on or after six (6) months prior to the expiration of the
Lease Term or the Renewal Term, as applicable, the Landlord or the Landlord's
agents, employees or other representatives shall have the right to place notices
on the front of the Premises or any part of the Project offering the Premises
for rent, and the Tenant hereby agrees to permit such notice to remain thereon
without hindrance or molestation, provided such notice does not obstruct
Tenant's signage or access to the Premises.
Notwithstanding anything contained to the contrary herein, the Landlord shall
not place any sign or notice on the Premises or any part thereof while the
Tenant remains in possession of the Premises, provided Tenant is not in default
of any of its obligations pursuant to the terms of this Lease.
PARAGRAPH 13TH - SIGNS
Landlord shall use its best efforts to obtain all required approvals for the
installation, at its own cost and expense, of one (1) free-standing pylon sign
identifying the Building as per Exhibit H annexed hereto. Identification of
Tenant on such sign shall be permitted as set forth on Exhibit H attached
hereto. Landlord will relocate the one existing sign above the entrance to
Tenant's existing leased premises, at Landlord's expense, to above the relocated
main entrance to the Premises, subject to obtaining any approvals that may be
required from the Township of Xxxxxxxx.
Landlord shall have the right to amend the signage at its sole discretion,
provided that it does not obstruct Tenant's signage. In addition, in accordance
with the building standard established by Landlord, Landlord shall install, at
its own cost and expense, building directories in any common lobby and on each
floor within the Building on which more than one tenant is located, which
specifically identify the Tenant's and other tenants' locations within the
Building, and shall install a sign outside of the Premises, within the Building,
identifying Tenant.
At Tenant's sole expense, Tenant may install additional signs within the
Building only (but NOT at any other tenant's exclusive entrance or lobby area),
provided that such signage shall not cause damage to the Premises within the
Building. Prior to any installation, Tenant shall provide Landlord with detailed
drawings of such sign installation for approval by Landlord. If the Landlord or
the Landlord's agents, employees or representatives deem it necessary to remove
any such signs in order to paint or make any repairs, alterations or
improvements in or upon the Premises or any part thereof, the signs may be
removed by Landlord, but will be replaced, at the Landlord's sole cost and
expense, when the said repairs, alterations or improvements are completed.
Tenant shall remove such additional signs, if any, at the expiration of the
Lease Term, or a Renewal Term, as applicable, and shall restore the Premises to
its original condition. Tenant shall indemnify and hold Landlord harmless with
respect to any claims for damaged persons or property arising out of the
installation and maintenance of signs installed by Tenant.
PARAGRAPH 14TH - NON-LIABILITY OF LANDLORD
Landlord shall have no responsibility or liability to the Tenant for any damage
to the contents of the Premises for any reason whatsoever and in the event the
Tenant elects to obtain insurance on the contents of the Premises said insurance
is to provide for a Waiver of Subrogation as to the Landlord.
Landlord shall not be liable for any damage or injury which may be sustained by
the Tenant or any other person, as a consequence of the failure, breakage,
leakage or obstruction of the water, plumbing, steam, sewer, waste or soil
pipes, roof, drains, leaders, gutters, valleys, down-spouts or the like or of
the electrical, gas, power, conveyor, refrigeration, sprinkler, air-conditioning
or heating systems, elevators or hoisting equipment; or by reason of the
elements; or resulting from the carelessness, negligence or improper conduct on
the part of any other tenant, the Landlord, or the Landlord's, Tenant's or any
other tenants' agents, employees, guests, licensees, invitees, subtenants,
assignees or successors; or attributable to any interference with, interruption
of or failure, beyond the control of the Landlord, or any services to be
furnished or supplied by the Landlord, except if caused solely by the gross
negligence or willful misconduct of the Landlord. Notwithstanding anything
contained to the contrary in this Lease, the Landlord shall be liable for any
damage or injury resulting from the gross negligence or intentional acts of
Landlord.
Tenant acknowledges that Landlord shall have no responsibility whatsoever with
respect to any responsibilities or obligations of the landlord under the lease
made by and between Tenant and the Medical Society of New Jersey dated as of
October 1, 2000, as
amended, and hereby expressly releases Landlord from any and all responsibility
with respect to Article 20 thereunder.
PARAGRAPH 15TH - MORTGAGE PRIORITY
This Lease will not be a lien against the Project with respect to any mortgages
that may hereafter be placed upon the Project. The recording of such mortgage or
mortgages will have preference and precedence and be superior and prior in lien
to this Lease, irrespective of the date of recording and the Tenant agrees to
execute any instruments, without cost, which may be deemed necessary or
desirable, to further effect the subordination of this Lease to any such
mortgage or mortgages. A refusal by the Tenant to execute such instruments will
give the Landlord the option to terminate this Lease, and the Lease Term and the
Renewal Term are expressly limited accordingly. Tenant's obligation to
subordinate to financing is conditioned upon the Landlord's mortgagee's
agreement, in a commercially reasonable form, not to disturb the leasehold.
PARAGRAPH 16TH - SECURITY DEPOSIT
On the Effective Date of this Lease simultaneously with the Closing, Tenant
shall deposit in good funds with the Landlord the sum equal to six (6) months
rent as security for the payment of rent hereunder and the full and faithful
performance by the Tenant of the covenants and conditions of the Tenant under
this Lease. Said sum will be returned to the Tenant, without interest, after the
expiration of the Lease Term or Renewal Term, as applicable, provided that
Tenant has fully and faithfully performed all of the covenants and conditions of
the Lease and is not in arrears in the payment of rent. During the Lease Term
and the Renewal Term, if applicable, the Landlord may, if Landlord so elects,
have recourse to such security, to make good any uncured default by the Tenant,
in which event Tenant shall, on demand, promptly restore said security to its
original amount. Liability to repay said security to Tenant will run with the
reversion and title to the Project, whether any change in ownership thereof be
by voluntary alienation or as the result of judicial sale, foreclosure or other
proceedings, or the exercise of a right of taking or entry by any mortgagee.
Landlord will assign or transfer said security, for the benefit of Tenant, to
any subsequent owner or holder of the reversion or title to the Project, in
which case the assignee will become liable for the repayment thereof as herein
provided, and the assignor will be deemed to be released by Tenant from all
liability to return such security. This provision will be applicable to every
alienation or change in title and will not be deemed to permit Landlord to
retain the security after termination of the Landlord's ownership of the
reversion of title. Tenant may not mortgage, encumber or assign said security
without the advance written consent of Landlord, which may be withheld in
Landlord's absolute discretion. In the event that Tenant effectively exercises
its right to renew pursuant to Paragraph 5th of this Lease, Landlord agrees to
reduce the security deposit to that sum which is equal to three (3) months rent
for the Renewal Term. In the event that all or any portion of the Security
Deposit is due to Tenant either at the expiration of the Lease Term or Renewal
Term, as the case may be, Landlord will return that portion of the Security
Deposit which is due to Tenant within thirty (30) days of the expiration of the
Lease Term or Renewal Term, as the case may be; however, in the event Tenant
believes that any amount due to Tenant
remains unpaid after said thirty-day period, Tenant shall give prompt written
notice to Landlord of same, and Landlord shall have ten (10) days from receipt
of Tenant's written notice to return any portion of the Security Deposit which
is due to Tenant. The failure of Tenant to provide such notice to Landlord shall
not be a waiver of Tenant's right to receive any refund which is due to Tenant
under this provision.
PARAGRAPH 17TH - REAL ESTATE TAXES
As additional rent, Tenant shall pay to Landlord its Proportionate Share (as
defined in Paragraph 19th) of real estate taxes and assessments with respect to
the Property which are assessed by the Township of Xxxxxxxx or such other
governmental entity, as the case may be ("Real Estate Taxes"). Tenant shall pay
to Landlord on the first day of each and every month of the Lease Term or
Renewal Term, together with the Base Rent, that amount which is one-twelfth of
Tenant's Proportionate Share of the annual Real Estate Taxes. The amount of
Tenant's monthly payment for Real Estate Taxes for the ensuing year shall be
adjusted annually as of January 1st of such year using as a base the preliminary
tax xxxx for such year and projecting said amount over that full year. Within
ninety (90) days after the end of each calendar year, Landlord shall furnish to
Tenant a statement showing a reconciliation of the previous year's Real Estate
Taxes billing and Tenant's payments. In the event that the total amount of Real
Estate Taxes paid by Tenant for the previous calendar year was deficient, then
Tenant shall pay the amount of such deficiency to Landlord on the due date of
the next monthly rental installment which shall not be less than thirty (30)
days after receipt by Tenant of such written statement from Landlord. In the
event the estimated monthly payments are in excess of actual Real Estate Taxes
due and payable for said period, then the amount of such overpayment shall be
credited to the next monthly installment or installments of Tenant's
Proportionate Share of Real Estate Taxes until fully exhausted. If the amount
paid is in excess of the Real Estate Taxes payment due from Tenant through the
end of the term of the Lease, Landlord will reimburse Tenant for the excess
within thirty (30) days of the expiration of the term of the Lease.
Subject to the aforesaid proportionate payment by Tenant to Landlord pursuant to
this Paragraph 17th, Landlord shall pay to the taxing authority all Real Estate
Taxes relative to the Project.
PARAGRAPH 18TH - INSURANCE COVERAGE AND AMOUNT
(a) Tenant covenants and agrees to pay Landlord as
additional rent during the Lease Term and the Renewal Term, as applicable, its
pro rata share, to be calculated pursuant to Paragraph 19th, of premiums for
insurance to be procured in the first instance by Landlord, insuring Landlord,
the coverage to be as follows:
(1) Insurance on the Building and Building
equipment, fixtures, and appurtenances, against all loss and damage, including,
but not limited to, coverage by an all risk form of insurance policy with agreed
amount endorsement and replacement cost endorsement, in an amount no less than
one hundred (100%) percent of the full replacement value thereof (exclusive of
cost of foundation, excavation and land) from time to time;
(2) Rent insurance covering the risks described in
Sub-paragraph (1) above in an amount equal to the Basic Rent and additional rent
payable for one year;
(3) Provide, keep and maintain in force, if and when
obtainable, at reasonable costs and on reasonable terms, and generally carried
on buildings of the type to be leased hereunder, war risks and nuclear damage,
as well as flood and earthquake insurance for the full replacement value of the
Building if such insurance is required by any institutional/commercial first
mortgagee of the Project;
(4) Provide any additional insurance coverages as
may be reasonably required from time to time by any institutional first
mortgagee of the Project; and
(5) Comprehensive general public liability insurance
against claims arising out of ownership, operation and control of the Project as
to liability of the Landlord in limits not less than ten million
($10,000,000.00) dollars combined single limit arising out of one occurrence.
The Landlord may insure its liability under its blanket comprehensive general
liability policy and umbrella liability policy, and the Tenant will reimburse
the Landlord for the Tenant's pro rata share of the premium.
(b) Tenant's pro rata share of insurance premiums shall be
calculated in accordance with Paragraph 19th of this Lease. In addition to the
premiums to be paid as aforesaid by Tenant, in the event of loss as a result of
an insured casualty, any deductible amount on the policy coverage in question
shall be paid by Tenant to the extent of its pro rata share of the premium
responsibility calculated as aforesaid.. Landlord agrees that the deductible
amount for any policy shall not exceed five thousand ($5,000.00) dollars. Tenant
shall not be responsible for any deductible if Tenant has no liability for the
insured casualty.
(c) On an annual basis, and one additional time per year if
requested by Tenant in writing, Landlord shall furnish to Tenant statements with
calculations of the actual premiums paid by the Landlord for the coverage
aforesaid, and the pro rata share thereof which is Tenant's responsibility under
this Lease.
(d) INSURANCE PROCURED BY TENANT.
(1) Tenant covenants and agrees to provide on or
before the earlier of (i) the Commencement Date; or (ii) Tenant's entering upon
the Premises for the purpose of doing all or any part of Tenant's work, and to
keep in force during the Lease Term and the Renewal Term, as applicable,
comprehensive general liability insurance relating to the Premises and its
appurtenances on an occurrence basis, including, but not limited to, contractual
liability in connection with Tenant's indemnity of Landlord herein, with minimum
limits of liability in the amount of one million ($1,000,000.00) dollars in
respect of bodily injury or death and/or property damage combined.
(2) Tenant covenants and agrees to provide insurance
coverage of any and all trade fixtures and personal property (including, but not
limited to any furniture, machinery, goods or supplies) of Tenant, which Tenant
may have upon or within the Premises.
(3) Tenant covenants and agrees that the aforesaid
liability insurance coverage shall be issued in the name of Tenant and shall be
written by one or more responsible insurance companies reasonably satisfactory
to Landlord and satisfactory to
Landlord's mortgagee(s), in form reasonably satisfactory to Landlord and
satisfactory to Landlord's mortgagee(s); all such insurance may be carried under
a blanket policy covering the Premises or any other of Tenant's facilities. The
minimum limits of such insurance shall in no way limit or diminish Tenant's
liability pursuant to Paragraph 33rd of this Lease, and Tenant shall deliver to
Landlord a Certificate of Insurance, naming Landlord as an additional insured,
to show compliance with its obligations hereunder prior to the Commencement Date
and thereafter at least thirty (30) days prior to the expiration of each policy,
together with reasonably satisfactory evidence of the payment of premiums
thereof.
(e) The limits of all insurance contemplated in this
Lease shall be subject to change at any time and from time to time after the
Commencement Date, upon ten (10) days advance written notice to Tenant, as any
mortgagee holding a security interest in the Property may deem the same
reasonably necessary for adequate protection. If the percentage increase is in
excess of fifty (50%) percent, Tenant shall have the right to terminate this
Lease upon one hundred twenty (120) days notice to Landlord, but within said
notice period, shall obtain and maintain such insurance as may be required by
Landlord or its mortgagee(s).
(f) Tenant agrees, at its own cost and expense, to
comply with all reasonable requirements of the insurance carriers providing the
insurance coverage in force pursuant to the provisions hereof and to the
applicable sections of the "National Fire Codes" as published by the National
Fire Protective Association. If, at any time, and from time to time, as a result
of or in connection with any failure by Tenant to comply with the foregoing
sentence or any act of omission or commission by Tenant, its employees, agents,
contractors or licensees, or as a result of or in connection with the use to
which the Premises are put (notwithstanding that such use may be for the
purposes herein permitted or that such use may have been consented to by
Landlord) the fire insurance premium(s) applicable to the Premises, or the
Building in which same are located, or to any other premises in the Building
(including rent insurance relating thereto) shall be increased as a result of
such act, use, or occupancy, Tenant agrees that it will pay to Landlord, on
demand, as additional rent, such portions of the premiums for all fire insurance
policies in force with respect to the Building of the Landlord of which the
Premises are a part (including rent insurance relating thereto) as shall be
attributable to such act, use or occupancy.
(g) Landlord shall not be liable for any damage by
fire or other peril in the coverage afforded by the Standard All Risk Policy
(whether or not such coverage is in effect), no matter how caused, it being
understood that the Tenant will look solely to its insurer for reimbursement.
Tenant shall not be liable for any damage by fire or other peril included in the
coverage afforded by the Standard All Risk Policy (whether or not such coverage
is in effect), no matter how caused, it being understood the Landlord will look
solely to its insurer for reimbursement, except as set forth in Paragraph 9th.
Each party, as applicable, shall obtain a Waiver of Subrogation Endorsement, if
necessary, to permit the Waiver of Subrogation and mutual release as set forth
herein in connection with any applicable insurance policy carried by it.
PARAGRAPH 19TH - OBLIGATION OF TENANT FOR COMMON OPERATING AND MAINTENANCE
EXPENSES
In addition to all other obligations imposed upon Tenant under the terms of this
Lease, Tenant shall be responsible for Tenant's pro rata share of all common
operating and maintenance expenses for the Project in which the Premises are
located during the Lease Term and the Renewal Term, as applicable, including,
but not limited to, the following ("Common Area Maintenance Charges");
Site lighting, including cost of electricity in the parking lot and other common
areas; maintenance and repairs and replacements of fixtures and bulbs in the
parking lot and other common areas; insurance premiums for insurance coverage,
as specified in Paragraph 18th of this Lease, maintained by Landlord, including,
but not limited to, public liability, property damage, fire insurance with
extended coverage and vandalism and rental loss; landscaping, gardening, grass
cutting, leaf removal, planting, and maintenance replanting shrubbery, trees and
other landscape improvements at the Property; stand-by sprinkler charges;
elevator service for common elevator(s) and maintenance charges therefor; paving
maintenance, repairs and striping; trash and refuse removal (except medical
waste); recycling charges; common water charges (unless billed separately to
each Tenant); sewer charges (unless billed separately to each Tenant); painting
and decorating in common areas; policing and regulating automobile and
pedestrian traffic; sanitary control; extermination; security, if any, for the
Project; all utilities, including heating, ventilating and air-conditioning
relating to common areas, janitorial service and maintenance relating to common
area; cost of personnel relating to maintenance and operation of common areas,
including salaries, fringe benefits, taxes, and workmen's compensation
insurance; management fees; all HVAC system service, maintenance and repair
charges; and all other costs relating to the maintenance and operation of the
common areas, but not including debt service. In the event there are capital
costs for such items as parking lot re-paving, and/or HVAC equipment
replacement, and said costs exceed Twenty-Five Thousand ($25,000.00) dollars in
any one (1) year, the costs for same shall be included in the common operating
and maintenance expenses but said costs shall be amortized and charged over a
seven (7) year period. Common operating and maintenance costs to which this
provision may be applicable shall not include leasing commissions, structural
repairs for which the Landlord is responsible, depreciation interest, points and
fees on and amortization of mortgages, franchise, income and other such taxes
based upon the income of Landlord, provided the same shall not have been levied
as a substitute for real property taxes and shall not include any items
otherwise constituting such expense to the extent payment therefor is received
from or payable by another tenant of the Building, or any costs associated with
preparing, improving or altering space for any leasing or re-leasing of any
space within the Building, costs incurred by Landlord for the repair or damage
to the Building to the extent that Landlord is reimbursed by insurance proceeds,
attorney's fees in connection with the negotiation and preparation of leases
with prospective tenants or other occupants of the Building, costs incurred by
Landlord due to a violation by any other tenant of the terms and conditions of
its lease, utility costs for which any tenant directly pays, costs for which
Landlord has been compensated, taxes or other penalties incurred as a result of
Landlord's negligence, inability or unwillingness to make payments when due, and
costs incurred curing a violation of environmental laws regarding the storage,
use or disposal of hazardous materials or substances unless such violation or
environmental laws are caused by Tenant.
Notwithstanding anything contained to the contrary provided herein, however, it
is agreed that Tenant will not be charged for any maintenance and repairs to the
extent the
same are covered by written guarantees or written warranties covering new
construction and new equipment.
Within ninety (90) days after the end of each calendar year, Landlord shall
furnish to Tenant a written statement (the "CAM Statement") showing in
reasonable detail the relevant information concerning the calculation and
determination of Landlord's operating and maintenance expenses as hereinabove
defined during such period. Landlord agrees to provide Tenant with back-up
documentation, if requested by Tenant. In the event the total amount of the
estimated operating and maintenance expenses, paid by Tenant, during the
preceding calendar year is deficient, then Tenant shall pay to Landlord the
amount of such deficiency on the due date of the next monthly rental installment
which shall not be less than thirty (30) days after receipt by Tenant of such
written statement from Landlord. In the event the amount of such estimated
payments is in excess of the actual operating and maintenance expenses, then the
amount of such overpayment shall be credited to the next monthly installment or
installments of Tenant's rent until fully exhausted. If the amount paid is in
excess of the payment due through the end of the term of the Lease, Landlord
will reimburse Tenant for the excess within thirty (30) days of the expiration
of the term of the Lease.
Tenant shall have thirty (30) days after receipt of the CAM Statement to notify
Landlord that it disputes the correctness thereof; however, such dispute shall
not relieve Tenant of the responsibility of making timely payment of all such
amounts as noticed to Tenant in the CAM Statement. Unless resolved by the
parties, such dispute shall be determined by arbitration in accordance with the
then prevailing rules of the American Arbitration Association. If the
arbitration proceedings result in a determination that the CAM Statement
contains in the aggregate a discrepancy greater than eight (8%) percent,
Landlord shall bear the cost of the arbitrators; otherwise, Tenant shall bear
all costs of the arbitration. Tenant, for a period of thirty (30) days after
receipt of the CAM Statement in each calendar year and upon written notice to
Landlord, shall have reasonable access, at Landlord's office, during normal
business hours, to only the CAM records of Landlord for the purpose of verifying
the common operating and maintenance expenses. Should Tenant pursue this review,
it shall constitute one annual request for insurance statements as permitted in
subparagraph 18th (c).
During the period commencing with the Commencement Date of the Lease Term and
continuing until the end of the first full calendar year of the Lease Term,
Tenant shall pay to Landlord the estimated sum of Eleven Thousand Six Hundred
Sixty-Six and 66/100 ($11,666.66) dollars per month, which has been computed
based upon an estimated rate of $4.00 per square foot of the after-construction
77,175+- s.f. Building for a twelve (12) month period. Notwithstanding anything
herein to the contrary, CAM Charges shall not be in excess of $4.00 per square
foot for the first and second years of this Lease. Within ninety (90) days after
the end of the first full calendar year of the Lease Term, Landlord shall
furnish to Tenant a written statement as above set forth showing the operating
and maintenance expenses for the Building, and in the event of any deficiency or
excess payments, the same shall be adjusted in the manner described above.
Subject to the limitation with respect to the maximum CAM Charges to be charged
to Tenant for years one and two of this Lease, Landlord may adjust annually the
estimated rate per square foot and Tenant's monthly payment for common operating
and maintenance expenses at Landlord's reasonable discretion. All adjustments
shall be made as of the beginning of the new calendar year as soon as the
computation
becomes available, and any deficiency for such new calendar year shall be due
and payable with the next monthly installment of rent, which shall not be less
than thirty (30) days after receipt of Landlord's notice. In the event the
estimated monthly payments are in excess of the amount reflected on the subject
year's CAM Statement, then the amount of such overpayment shall be credited to
the next monthly installment or installments of Tenant's Proportionate Share of
CAM Charges until fully exhausted. If the amount paid is in excess of the
payment due through the end of the Lease Term or Renewal Term, the Landlord will
reimburse Tenant for the excess within thirty (30) days of the expiration of the
term of the Lease. In the event the Tenant's Lease Term or the Renewal Term, as
applicable, commences or terminates within a calendar year, then the Tenant's
obligation shall be proportionately adjusted for the fraction of the calendar
year involved.
For purposes of this Lease, the Tenant's pro rata share is hereby fixed at
Forty-Seven and 71/100 (47.71%) percent from the Commencement Date through the
last day of the Second Stage (as defined in Paragraph 4th), and thereafter the
Tenant's pro rata share shall be fixed at Forty-Four and 35/100 (44.35%) percent
("Tenant's Proportionate Share") for purposes of billing the CAM Charges of the
Project (subject to adjustment after measurement in accordance with Paragraph 50
of this Lease).
The following utility related costs are not included in the aforesaid Common
Area Maintenance Charges and shall be billed to and paid by Tenant, as
additional rent within ten (10) days of invoicing:
1. ELECTRIC SERVICE. Electric service shall be separately metered
for the Premises and Tenant shall pay the utility company directly; however,
until such time as all of Tenant's electric services is on a separate meter or
meters billed to Tenant directly, any such service provided on a meter shared
with another tenant or tenants shall be shared in proportion to the tenant's
respective square footage, unless any tenant's usage is of a greater intensity
than another tenant on the same meter (e.g. Tenant's computer room). The hot
water heater for the Premises shall be connected to Tenant's electric service.
2. HVAC. Landlord shall xxxx Tenant and Tenant shall pay for HVAC
costs as specified in Paragraph 47th of this Lease.
3. SEWERAGE. Landlord shall xxxx the Tenant and Tenant shall pay
for its sewerage costs as reasonably determined by Landlord at regular intervals
as established by Landlord or as billed by the Township of Xxxxxxxx. For
information, Xxxxxxxx Township bills for sewer twice a year and that xxxx is
based upon water usage that registers on the meter at the Building; the first
half invoice billed in 2003 was for $1,134.60 and the second half invoice billed
in 2003 was for $991.32. Any such invoices shall be billed by Landlord to Tenant
in its proportionate share based on square footage of the Premises.
4. SNOW AND ICE REMOVAL. Landlord shall xxxx Tenant and Tenant
shall pay to Landlord Tenant's Proportionate Share of all charges for snow and
ice removal for the Project ("Snow and Ice Removal Charges"). Tenant
acknowledges and understands that these charges can only be estimated at this
time and on an annual basis hereafter. Therefore, Tenant shall pay to Landlord
on the first day of each and every month of the Lease Term or Renewal Term,
together with the Base Rent, that amount which is one-twelfth of Tenant's
Proportionate Share of the annual estimated Snow and Ice Removal Charges. The
amount of Tenant's monthly payment for Snow and Ice Removal Charges
for the ensuing year may be adjusted annually as of January 1st of such year, in
the reasonable discretion of Landlord. Within ninety (90) days after the end of
each calendar year, Landlord shall furnish to Tenant a statement showing a
reconciliation of the previous year's Snow and Ice Removal Charges and Tenant's
payments. In the event that the total amount of Snow and Ice Removal Charges
paid by Tenant for the previous calendar year was deficient, then Tenant shall
pay the amount of such deficiency to Landlord on the due date of the next
monthly rental installment which shall not be less than thirty (30) days after
receipt by Tenant of such written statement from Landlord. In the event the
estimated monthly payments are in excess of actual Snow and Ice Removal Charges
paid for said period, then the amount of such overpayment shall be credited to
the next monthly installment or installments of Tenant's Proportionate Share of
Snow and Ice Removal Charges until fully exhausted. If the amount paid is in
excess of the payment due through the expiration of the term of the Lease,
Landlord will reimburse Tenant for the excess within thirty (30) days of the
expiration of the term of the Lease. Tenant understands and acknowledges that
the Snow and Ice Removal Charges for which it is responsible shall be its
proportionate share of the actual costs and not subject to any limitation during
any year of this Lease.
PARAGRAPH 20TH - CONDEMNATION AND EMINENT DOMAIN
If the Premises, the Project of which the Premises are a part, or any portion
thereof, are taken under eminent domain or condemnation proceedings, or if suit
or other action is instituted for the taking or condemnation thereof, or if in
lieu of any formal condemnation proceedings or actions, the Landlord grants an
option to purchase and/or sells and conveys the Premises, the Project of which
the Premises are a part, or any portion thereof, to the governmental or other
public authority, agency, body or public utility seeking to take the said
Premises, Project or any portion thereof, then this Lease, at the option of the
Landlord, will terminate and the Lease Term or the Renewal Term, as applicable,
will end as of the date Landlord fixes by notice in writing, unless the taking
involves less than twenty (20%) percent of the Property or ten (10%) of the
Building, in which case the Landlord shall have the option to continue the
Lease; and the Tenant shall have no claim or right to claim or be entitled to
any portion of any amount which may be awarded as damages or paid as a result of
such condemnation proceedings or paid as the purchase price for such option,
sale or conveyance in lieu of formal condemnation proceedings; and all rights of
the Tenant to damages, if any, are hereby assigned to the Landlord. Should the
square footage of the Premises be reduced pursuant to this Paragraph 20th, then
the applicable rent shall xxxxx accordingly therefor for the remainder of the
Lease Term or Renewal Term, as the case may be. In the event of a taking for
which Landlord has the right to terminate this Lease, such right to terminate
shall not be effective, if Tenant elects to continue this Lease by giving
written notice to that effect to Landlord within ten (10) days of Landlord's
giving the aforesaid notice to Tenant; however, such election to continue shall
not be effective if Tenant's continued occupancy of the Premises will be in
violation of applicable laws or ordinances. In addition, if Tenant elects to
continue the Lease, any costs involved in restoring the Premises to a tenantable
space shall be borne by Tenant. Tenant agrees to execute and deliver any
reasonable instruments, at the expense of the Landlord, as may be deemed
necessary or required to expedite any condemnation proceedings or to effectuate
a proper transfer of title to such governmental or other public authority,
agency, body or public utility seeking to take or acquire the Premises, the
Project of which the Premises are a part, or any portion thereof. Tenant
covenants and agrees to
vacate the Premises, remove all of Tenant's personal property therefrom and
deliver up peaceable possession thereof to Landlord or to such other party
designated by the Landlord in the aforementioned notice. Failure by Tenant to
comply with any provision of this clause will subject Tenant to such costs,
expenses, damages and losses as the Landlord may incur by reason of Tenant's
breach hereof.
Notwithstanding anything contained to the contrary herein, Tenant shall be
entitled to any separate award for moving expenses and for fixtures installed by
Tenant at its own cost and expense which do not become part of the Building.
PARAGRAPH 21ST - REMEDIES UPON TENANT'S DEFAULT
If any default on the part of Tenant in the performance of any conditions and
covenants contained in this Lease occurs, or if during the Lease Term or the
Renewal Term, as applicable, the Premises or any part thereof are abandoned or
deserted, vacated or vacant, or should Tenant be evicted by summary proceedings
or otherwise, the Landlord, in addition to any other remedies contained herein
or as may be permitted by law, may, either by force or otherwise, without being
liable for prosecution therefor, or for damages, re-enter the Premises and the
same have and again possess and enjoy; and as agent for Tenant or otherwise,
re-let the Premises and receive the rents therefor and apply the same, first to
the payment of such expenses, reasonable attorney fees and costs, as Landlord
may have been expended in re-entering and repossessing the same and in making
such repairs and alterations as may be necessary; and second to the payment of
the rents due hereunder. Tenant shall remain liable for any rents as may be in
arrears and for any rents which may accrue subsequent to Landlord's re-entry of
the Premises, to the extent of the difference between the rents reserved
hereunder and the rents, if any, received by Landlord during the remainder of
the unexpired Lease Term or the Renewal Term, as applicable, after deducting the
aforementioned expenses, fees and costs; the same to be paid as such
deficiencies arise and are ascertained each month. Landlord shall use its best
reasonable efforts to mitigate its damages.
With respect to any monetary payment requirements of Tenant pursuant to this
Lease, if such payment remains outstanding, then Tenant shall be deemed to be in
default five (5) days after any such payment is due; no notice of monetary
default from Landlord shall be required. With respect to non-monetary
performance requirements, Landlord agrees to provide Tenant with notice of such
non-performance and an opportunity to cure such non-performance; however, if
Tenant has not cured such non-performance within thirty (30) days of the receipt
of such notice, then Tenant shall be deemed to be in default under this Lease.
If such non-performance is of a nature that the same cannot in good faith and
with due diligence be cured within said thirty (30) day period, and if Tenant
has commenced to cure and diligently proceeded to cure, such non-performance to
completion, then Tenant shall have a reasonable period beyond said thirty (30)
days to complete the required cure, and shall provide Landlord with timely
status updates regarding its efforts to cure the noticed default.
PARAGRAPH 22ND - TERMINATION ON DEFAULT
Upon the occurrence of any of the contingencies set forth in Paragraph 21st of
this Lease, or if Tenant is adjudicated bankrupt, insolvent or placed in a
receivership, or if
proceedings are instituted by or against Tenant for bankruptcy, insolvency,
receivership, agreement of composition or assignment for the benefit of
creditors, or if this Lease or the estate of Tenant hereunder passes to another
by virtue of any court proceedings, writ of execution, levy, sale or by
operation of law, not cured within said thirty (30) days, Landlord may, if the
Landlord so elects, at any time thereafter, terminate this Lease, upon giving
Tenant or any trustee, receiver, assignee or other person in charge of or acting
as custodian of the assets or property of Tenant, five (5) days prior written
notice of the Landlord's intention to do so. Upon the giving of such notice,
this Lease will terminate on the date set forth in such notice as if the said
date was the Termination Date or expiration date of the Renewal Term, as
applicable; and the Landlord shall have the right to remove all persons, goods,
fixtures and chattels therefrom, by force or otherwise, without liability for
damages.
PARAGRAPH 23RD - REMOVAL OF TENANT'S PROPERTY
Any equipment, fixtures, goods or other property of Tenant not removed by Tenant
upon the termination of this Lease, or upon any quitting, vacating or
abandonment of the Premises by Tenant, or upon Tenant's eviction, will be
considered as abandoned and the Landlord shall have the right, without any
notice to Tenant, to sell or otherwise dispose of the same, at the expense of
Tenant, and will not be accountable to Tenant for any part of the proceeds of
such sale, if any. Tenant shall have thirty (30) days to remove Tenant's
property.
PARAGRAPH 24TH - REIMBURSEMENT OF LANDLORD
If Tenant fails or refuses to comply with and perform all of the terms and
conditions of this Lease, the Landlord may, if the Landlord so elects after
giving notice and an opportunity to cure to Tenant pursuant to Paragraph 21st of
this Lease, carry out and perform such terms and conditions, at the sole cost
and expense of Tenant, and the said cost and expense shall be payable upon
demand or, at the option of the Landlord, shall be added to the installment of
rent due immediately thereafter, but in no case later than one (1) month after
such demand, whichever occurs sooner, and shall be due and payable as such. This
remedy shall be in addition to such other remedies as the Landlord may have
hereunder by reason of the breach by Tenant of any of the terms and conditions
of this Lease.
PARAGRAPH 25TH - NON-PERFORMANCE BY LANDLORD
This Lease and the obligation of Tenant to pay the rent hereunder and to comply
with the terms and conditions hereof, shall not be affected, curtailed, impaired
or excused as a result of the Landlord's inability to supply any service or
material called for herein, by reason of any rule, order, regulation or
preemption by any governmental entity, authority, department, agency or
subdivision or for any delay which may arise by reason of negotiations for the
adjustment of any fire or other casualty loss or because of strikes or other
labor trouble or for any cause beyond the control of the Landlord, provided
Tenant's operations can be conducted.
Notwithstanding the foregoing, Tenant shall have the right to perform the
obligations of Landlord and obtain reimbursements from Landlord for the
reasonable cost of same, provided Tenant gives Landlord ten (10) days prior
written notice of Tenant's intent to exercise said right. If Tenant actually
performs, or causes to be performed, at Tenant's expense, any such obligation of
Landlord, then Tenant shall promptly provide to Landlord all documentation and
invoices relating to such undertaking and its written request for such
reimbursement to which Tenant believes it is entitled. If Tenant does not submit
its written request to Landlord within sixty (60) days of its performance of
such item that it alleges is Landlord's responsibility, then Tenant shall waive
its right to any reimbursement under this provision. If the parties are unable
to agree to a resolution of this item within sixty (60) days of Landlord's
receipt of Tenant's notice accompanied by the required documentation and
invoices, then Tenant may submit the matter to arbitration and such dispute
shall be determined in accordance with the then-prevailing rules of the American
Arbitration Association. The fees of the arbitrators shall be paid by Tenant
and/or Landlord in proportion to allocated responsibility of the disputed cost.
PARAGRAPH 26TH - CONSTRUCTION OF IMPROVEMENTS BY LANDLORD
Landlord intends to renovate the existing 71,733+/- s.f. two-story building,
including parking lot and related improvements, suitable for use as a
professional medical office building. The Premises shall be reconfigured in
substantial accordance with the specifications as set forth on Exhibit A annexed
hereto. Landlord's Work with respect to the Project shall be constructed or
performed by Landlord, at Landlord's cost, in substantial conformance with the
Landlord/Tenant Work Letter attached hereto and made a part hereof as Exhibit
"C," which shall be performed in compliance with all laws applicable to the
Project. Any sitework shall be constructed in accordance with the Site Plans
approved the by Township of Xxxxxxxx Planning Board. Tenant Work with respect to
the Premises shall be constructed by Tenant in substantial accordance with
Landlord/Tenant Work Letter as set forth on Exhibit "C" attached hereto and made
a part hereof, which, together with any other work within the Premises that is
not Landlord's Work described in the Landlord/Tenant Work Letter, shall be the
exclusive responsibility of Tenant. Landlord and Tenant each represent to the
other that they will commence construction as soon as practical after receipt of
any required approvals and/or permits to perform the Landlord Work or the Tenant
Work, respectively, and will diligently pursue same. On the Commencement Date
and upon Landlord's receipt of full payment of the Security Deposit and the
first month's rent hereunder, Landlord shall pay to Tenant the sum of $50,000.00
as its full and complete contribution to Tenant's Work upon or within the
Premises.
Regarding the square footage designated on Exhibit "A" as "Proposed File Storage
Space" and those noted areas particularly described in the Landlord/Tenant Work
Letter, as well as other areas generally depicted on the second floor of the
Premises shown on the Floor Load Rendering attached to and made a part of this
Lease as Exhibit "D", due to structural specifications, floor load weight
limitations shall be implemented with respect to Tenant's use of these areas.
Engineering work has revealed the appropriate limitations as set forth on the
Floor Load Rendering. Landlord covenants to Tenant as to the structural
soundness of such Areas and the maximum floor load noted relative thereto.
Tenant covenants and agrees to comply with such floor load specifications and
not to exceed the floor load limitations specified in the Floor Load Rendering.
Such
Areas shall be subject to inspection by Landlord during normal business hours
throughout the term of this Lease.
PARAGRAPH 27TH - LATE CHARGES
In the event that the rent is not received on or before the expiration of
fifteen (15) days after the rental due dates set forth herein, then in addition
to any other measures set forth herein, there shall be an added late charge of
five (5%) percent of the monthly rent payment per month of delinquency.
PARAGRAPH 28TH - HOLDOVER /FAILURE TO SURRENDER POSSESSION
(a) If Tenant holds over and continues in possession of the Premises
after the Termination Date or expiration of the Renewal Term, as applicable,
Tenant shall be deemed to be occupying the Premises on the basis of a
month-to-month tenancy, subject to all terms and conditions of this Lease.
(b) The parties recognize and agree that the damage to Landlord
resulting from any failure by Tenant to timely surrender possession of the
Premises shall be substantial, shall exceed the amount of the monthly
installments of the rent payable hereunder, and shall be impossible to measure
accurately.
(c) Tenant therefore agrees that if possession of the Premises is
not surrendered to Landlord upon the Termination Date or expiration of the
Renewal Term, as applicable, or sooner termination of the Lease, in addition to
any other rights or remedies Landlord may have hereunder or at law, Tenant shall
pay to Landlord, as liquidated damages, for each month and for each portion of
any month during which Tenant holds over in the Premises, after the Termination
Date or expiration of the Renewal Term, as applicable, or sooner termination of
this Lease, a sum equal to One Hundred Fifty (150%) percent of the monthly rent
in effect at the Termination Date or expiration of the Renewal Term, as
applicable, or prior month in the event of earlier termination, plus any
additional rental obligations.
(d) Nothing herein contained shall be deemed to permit Tenant to
retain possession of the Premises after the Termination Date or expiration of
the Renewal Term, as applicable, or sooner termination of the Lease.
(e) The provisions of this Paragraph 28th shall survive the
Termination Date or expiration of the Renewal Term, as applicable, or sooner
termination of this Lease.
PARAGRAPH 29TH - ASSIGNMENT OF LEASE OR SUBLET BY TENANT
Landlord agrees, only after the last day of the Second Stage as described in
Paragraph 4th of this Lease, not to unreasonably withhold or delay its consent
to the assignment of this Lease or sublet a portion of the Premises as described
in a written advance notice sent by Tenant to the Landlord, to be accompanied by
a detailed term sheet, including, but not limited to, a drawing of the exact
location and square footage to be the subject of the assignment or sublet, the
rental amounts and the amounts of any and all costs for
which Tenant may be seeking to apply against any Excess Rent, at least
forty-five (45) days prior to the contemplated effective date of such assignment
or sublet; PROVIDED, HOWEVER, unless expressly released in writing, no
assignment shall relieve Tenant of any present or future obligation or liability
under this Lease; and FURTHER PROVIDED that the assignee or sublessee shall, in
writing, accept the assignment or sublet of this Lease and agree to be bound by
the terms hereof; and FURTHER PROVIDED that the area within the Premises
contemplated for assignment or sublet shall be configured and located within the
Premises consistent with proper safety, security and access standards for any
potential tenant of Landlord should Landlord exercise its recapture option; and
further PROVIDED, HOWEVER, that no such assignment or subletting shall be made
to any tenant who shall occupy the Building for any purpose which may be deemed
disreputable, which would not be consistent with the nature of the building as a
medical office building, which would violate any covenants by Landlord to other
tenants in the Building regarding primary use restrictions, or which would, in
any way, violate the applicable ordinances, rules and regulations of applicable
governmental boards and bureaus having jurisdiction thereof, or of the carrier
of the fire insurance to be provided as hereinabove set forth. Landlord
covenants to ensure that Tenant's leasehold shall be secure notwithstanding any
sale of the Project, provided that Tenant is not at that time in default of any
provision of this Lease. Landlord agrees to respond to Tenant's request for
assignment or sublease within fifteen (15) days of receipt by Landlord of
Tenant's request, together with all information and references as required
herein or reasonably requested by Landlord with respect to the assignee or
sublessee. Provided that Landlord's mortgagee does not withhold its consent,
Tenant shall be relieved of any future liability, under the Lease, and the
security deposit shall be returned, in the event of an assignment to a Tenant
that is creditworthy in the reasonable judgment of Landlord and Landlord's
mortgagee. A fully executed copy of any assignment or sublet shall be provided
to Landlord by Tenant at least ten (10) days prior to any occupancy by any
assignee or sublessee.
Any assignment or sublet is subject to Landlord's right to recapture any rent
charged by Tenant to the assignee or sublessee for any portion of the Premises
which is in excess of that rent charged by Landlord to Tenant pursuant to this
Lease ("Excess Rent"). Tenant shall pay to Landlord all Excess Rent by the fifth
day of each period that any rent is paid by the assignee or sublessee to Tenant.
Tenant may retain from the Excess Rent paid to Tenant by the assignee or
sublessee, any reasonable real estate commission paid by Tenant to procure such
assignee or sublessee. However, if any assignment of this Lease is such that
Tenant is relieved of any future liability under this Lease, then Tenant shall
bear all of its costs to obtain such assignee.
If a default should occur while the Premises, or any part thereof, are assigned
or sublet, Landlord, in addition to any other remedies available to it, may, at
its option, collect all payments due directly from such assignee or sublessee
and credit any such collections against any sums due to Landlord by Tenant
hereunder. Tenant hereby authorizes and directs any such assignee or sublessee
to pay such rent directly to Landlord upon receipt from Landlord of a demand
therefor. No direct collection by Landlord from any such assignee or sublessee
shall be construed to constitute a novation or a release of Tenant from the
further performance of its obligations hereunder.
After the Second Stage as described in Paragraph 4th of this Lease, the
prohibition against assignment of this Lease and subletting of any portion of
the Premises shall not be construed to prohibit any change or series of changes
in the controlling interest of the
Tenant, whether that change be effected by operation of law, acquisition,
merger, consolidation, change of controlling interest of stock or partnership
interests, or otherwise ("Permitted Assignment or Sublet"). Provided that at
effective date of any contemplated assignment or sublet, Tenant has a
contractual relationship with one or both of the Companies, a Permitted
Assignment or Sublet shall also include an assignment or sublet to the following
Companies: (i) MIIX Advantage Holdings, Inc., and (ii) MIIX Advantage Insurance
Company of New Jersey (collectively, the "Companies"); provided that (i) the use
will remain substantially the same; (ii) the number of employees will remain
substantially the same; and (iii) the manner in which the assignee or sublessee
conducts its business will remain substantially the same as Tenant's business.
All Permitted Assignments or Sublets shall be subject to timely notice and
Landlord's receipt of all required or requested information with respect to such
assignee or sublessee, as well as a true copy of the executed assignment or
sublease document at least ten (10) days prior to such assignee's or sublessee's
taking occupancy, but is not subject to the express written consent of Landlord;
however, if a Permitted Assignment or Sublet occurs prior to the expiration of
the Lease Term, then the Security Deposit as set forth in Paragraph 26th of this
Lease shall not be reduced as provided herein.
Notwithstanding anything in this Paragraph 29th to the contrary, in the event
that Tenant gives notice to Landlord of a contemplated assignment or sublet of
all or a portion of the Premises, which assignment or sublet is not a Permitted
Assignment or Sublet, then in that event, the Landlord shall have a right of
first refusal to recapture that portion of the Premises which is the subject of
the contemplated assignment or sublet. Landlord shall have fifteen (15) days
from receipt of Tenant's notice to accept Tenant's offer in writing, and if no
acceptance is forthcoming within said fifteen-day period, then Landlord shall be
deemed to have rejected such right of first refusal to recapture. Landlord's
right of first refusal to recapture shall be a continuing right throughout the
entire term of this Lease. To the extent that Landlord elects to recapture that
portion of the Premises which is the subject of the contemplated assignment or
sublet and remove same from Tenant's Premises, then this Lease shall be modified
by a written amendment made by and between Landlord and Tenant, and upon
execution thereof, this Lease and Tenant's obligations hereunder shall be
thereby modified accordingly.
PARAGRAPH 30TH - BROKERS COMMISSIONS
The parties acknowledge to each other that they have not dealt with any
realtor/broker to whom a commission may be due in connection with the
negotiation and consummation of this Lease. The parties agree that in the event
any realtor/broker claims a commission as a result of dealings with either party
to this Lease, then such party having such dealings shall hold the other party
harmless and indemnify such party against such claim and shall be responsible
for all expenses of litigation related to such claim, including legal fees and
costs of suit.
PARAGRAPH 31ST - TENANT'S RESPONSIBILITY REGARDING HAZARDOUS MATERIALS
(a) DEFINITIONS. As used herein, the following terms shall have the
following meanings:
(1) "Hazardous Material" includes any pollutant, dangerous
substance, toxic substances, flammables, explosives, radioactive materials,
asbestos, chemicals known to cause cancer or reproductive toxicity, petroleum,
petroleum products, any hazardous pollutant, hazardous waste or any similar term
as defined in or pursuant to the Comprehensive Environmental Response
Compensation and Liability Act of 1980, 42 U.S.C. 9601 ET SEQ., ("CERCLA"); the
Industrial Site Recovery Act, N.J.S.A. 13:1K-6 ET SEQ., ("ISRA"); the New Jersey
Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 ET SEQ., ("Spill Act");
the Solid Waste Management Act , N.J.S.A. 13:1E-1 ET SEQ., "SWMA"); the Resource
Conservation and Recovery Act, 42 U.S.C. 6901 ET SEQ., ("RCRA"); the New Jersey
Underground Storage of Hazardous Substances Act, N.J.S.A. 58:10A-21 ET SEQ.,
("USTA"), the Clean Air Act, 42 U.S.C. Section 7401 ET SEQ., ("CAA"); the Air
Pollution Control Act, N.J.S.A. 26:2C-1 ET SEQ., ("APCA"); the New Jersey Water
Pollution Control Act, N.J.S.A. 58:10A-1 ET SEQ., ("WPCA"); the Toxic Substance
Control Act, 15 U.S.C. 2601 ET SEQ., ("TSCA") and any rules or regulations
promulgated thereunder or in any other applicable federal, state or local law,
rule or regulation pertaining to environmental protection. It is understood and
agreed that the provisions contained in this Lease shall be applicable
notwithstanding whether any substance shall not have been deemed to be a
hazardous material at the time of its use or Release but shall thereafter be
deemed to be a Hazardous Material.
(2) "Release" means spilling, leaking, disposing, pumping,
pouring, discharging, emitting, emptying, ejecting, depositing, injecting,
leaching, escaping or dumping however defined, and whether intentional or
unintentional, of any Hazardous Material.
(3) "Notice" means any summons, citation, directive, order,
claim, litigation, investigation, proceeding, judgment, letter or other
communication, written or oral, actual or threatened, from the New Jersey
Department of Environmental Protection ("NJDEP"), the United States
Environmental Protection Agency ("USEPA"), the United States Occupational Safety
and Health Administration ("OSHA") or other federal, state or local agency or
authority, or any other entity or any individual, concerning any act or omission
resulting or which may result in the Releasing of Hazardous Materials into the
waters or onto the lands of the State of New Jersey, or into the environment.
(4) "Environmental Laws" means any and all present or future
federal, state or local laws, statutes, ordinances, regulations and executive
orders in any way related to the protection of human health or the environment
including but not limited to (i) CERCLA; (ii) RCRA; (iii) ISRA; (iv) Spill Act;
(v) USTA; (vi) WPCA; (vii) APCA; (viii) SWMA; (ix) CAA; and (x) TSCA.
(b) TENANT'S RESTRICTIONS. Tenant shall not cause or permit to occur
at or from the Premises, Project or thereabouts by its agents, employees or
invitees:
(1) Any violation of any Environmental Laws, ordinances or
regulations now or hereafter enacted, related to environmental conditions on,
under, migrating from or about the Premises, or arising from Tenant's use or
occupancy of the Premises, including but not limited to soil and ground water
conditions; or
(2) The existence, use, generation, release, manufacture,
refining, production, processing, transport, handling, treatment, storage, or
disposal of any
Hazardous Materials on, under, migrating from, or about the Project or Premises
or the transportation to or from the Project or Premises of any Hazardous
Materials, except for de minimis amounts of oils, greases, office products, and
cleaning products providing same is in conformance with all Environmental Laws
or as specifically disclosed on Exhibit E annexed hereto.
(c) TENANT'S ENVIRONMENTAL REQUIREMENTS.
(1) The term "Environmental Requirements" means all
applicable present and future Environmental Laws, statutes, regulations,
ordinances, rules, codes, judgments, permits, authorizations, orders, policies
or other similar requirements of any governmental authority, agency or court
regulating or relating to health, safety or environmental conditions on, under
or about the Premises or the environment, including, without limitation, the
following: CERCLA, RCRA, ISRA, The Spill Act, USTA, WPCA, APCA, SWMA, CAA and
TSCA and all state and local counterparts thereto, and any common or civil law
obligations, including, without limitation, nuisance or trespass, and any other
requirements of this Lease. For the purposes of Environmental Requirements, to
the extent authorized by law, Tenant is and shall be deemed to be the
responsible party, including, without limitation, the "owner" and "operator" of
Tenant's "facility" and the "owner" of all Hazardous Materials brought on the
Premises by Tenant, its agents, employees, contractors or invitees, and the
wastes, by-products or residues generated, resulting, or produced therefrom.
(2) Tenant shall, at Tenant's own expense, comply with all
laws regulating the use, generation, storage, transportation or disposal of
Hazardous Materials.
(3) Tenant, at its sole cost and expense, shall operate its
business at the Premises in strict compliance with all Environmental
Requirements and Environmental Laws as well as all requirements of this Lease.
Tenant shall complete and certify to disclosure statements as requested by
Landlord from time to time relating to Tenant's transportation, storage, use,
generation, manufacture, or release of Hazardous Materials on the Premises, and
Tenant shall promptly deliver to Landlord a copy of any notice of violation
relating to the Premises or Project of any Environmental Requirement.
(4) Tenant, at its sole cost and expense, shall remove all
Hazardous Materials stored, disposed of or otherwise released by Tenant, its
assignees, subtenants, agents, employees, contractors or invitees onto or from
the Project or Premises, in a manner and to a level satisfactory to Landlord in
its sole reasonable discretion, but in no event to a level and in a manner less
than that which complies with all Environmental Requirements and Environmental
Laws and does not limit any future uses of the Project or Premises or require
the recording of any deed restriction or notice regarding the Project or
Premises. Tenant shall perform such work at any time during the period of the
Lease upon written request by Landlord or, in the absence of a specific request
by Landlord, before Tenant's right to possession of the Premises terminates or
expires. If Tenant fails to perform such work within the time period specified
by Landlord or before Tenant's right to possession terminates or expires
(whichever is earlier), Landlord may at its discretion, and without waiving any
other remedy available under this Lease or at law or equity (including without
limitation an action to compel Tenant to perform such work), perform such work
at Tenant's cost. Tenant shall pay all costs incurred by Landlord in performing
such work within ten (10) days after Landlord's
request therefore. Such work performed by Landlord is on behalf of Tenant and
Tenant remains the owner, generator, operator, transporter, and/or arranger of
the Hazardous Materials for purposes of Environmental Requirements. Tenant
agrees not to enter into any agreement with any person, including without
limitation any governmental authority, regarding the removal of Hazardous
Materials that have been disposed of or otherwise released onto or from the
Project or Premises without the written approval of the Landlord.
(5) Landlord shall have access to, and a right to perform
inspections and tests of, the Premises to determine Tenant's compliance with
Environmental Laws and Environmental Requirements, its obligations under this
Paragraph 31st, or the environmental condition of the Premises. Access shall be
granted to Landlord upon Landlord's prior notice to Tenant and at such times so
as to minimize, so far as may be reasonable under the circumstances, any
disturbance to Tenant's operations. Such inspections and tests shall be
conducted at Landlord's expense, unless such inspections or tests reveal that
Tenant has not complied with any Environmental Requirement or Environmental Law,
in which case Tenant shall reimburse Landlord for the reasonable cost of such
inspection and tests. Landlord's receipt of or satisfaction with any
environmental assessment in no way waives any rights that Landlord holds against
Tenant. Tenant shall promptly notify Landlord of any communication or report
that Tenant makes to any governmental authority regarding any possible violation
of Environmental Laws or Environmental Requirements or release or threat of
release of any Hazardous Materials onto or from the Premises or Project. Tenant
shall, within five (5) days of receipt thereof, provide Landlord with a copy of
any documents or correspondence received from any governmental agency or other
party relating to a possible violation of Environmental Laws or Environmental
requirements or claim or liability associated with the release or threat of
release of any Hazardous Materials onto or from the Premises or Project.
(6) If applicable, prior to termination of the lease of the
Premises it shall be the obligation of Tenant to deactivate any identification
number, permit, license, etc. issued by the USEPA, the NJDEP or any other
federal, state or local entity dealing with generation, treatment, storage or
disposal of regulated hazardous or solid waste or Hazardous Materials related to
Tenant and comply with any concomitant notification requirements pursuant to
RCRA, the Spill Act, the SWMA and any rules or regulations promulgated
thereunder or in any other applicable federal, state or local law, rule or
regulation dealing with hazardous waste, Hazardous Materials, solid waste or
environmental protection related to Tenant.
(7) In the event there shall be filed a lien against the
Premises or the Property arising out of the claim(s) by the NJDEP pursuant to
the provisions of the Spill Act or by the USEPA pursuant to the provisions of
CERCLA due to an alleged act of Tenant, Tenant shall immediately (which shall be
within thirty (30) days of the date Tenant first receives notice of such lien)
notify Landlord of the lien and either: (i) pay the claim and remove the lien
from the Premises or the Property; or (ii) furnish a bond, cash receipt or other
security satisfactory to the Landlord sufficient to discharge the claim out of
which the lien arises.
(8) In addition to all other rights and remedies available
to the Landlord under this Lease or otherwise, Landlord may, in the event of a
breach of the requirements of this Paragraph 31st and Paragraph 32nd that is not
cured within thirty
(30) days following notice of such breach to Landlord, require Tenant to provide
financial assurance (such as insurance, escrow of funds or third party
guarantee) in an amount and form satisfactory to Landlord. The requirements of
this Paragraph 31st and Paragraph 32nd are in addition to and not in lieu of any
other provision in the Lease.
(9) Tenant's obligations and liabilities under this
Sub-paragraph (c) shall survive the expiration of this Lease.
(10) Tenant shall have no responsibility for the clean-up of
any environmental conditions (i) existing on the Property prior to taking
occupancy of the Premises or any portion thereof, whether such occupancy takes
place in accordance with this Lease or pursuant to Tenant's prior lease with the
prior owner of record, (ii) caused by Landlord, its, agents, employees, invitees
or licensees, and not in any way caused by Tenant, or (iii) caused by any other
tenant or occupant of the Building, and not in any way caused by Tenant.
(d) ENVIRONMENTAL CLEANUP.
(1) Tenant shall, at Tenant's own expense, make all
submissions to, provide all information required by, and comply with all
requirements of all governmental authorities (the "Governmental Authority")
under all applicable Environmental Laws and Environmental Requirements
pertaining to Tenant's occupancy and/or operations at the Premises.
(2) Should any Governmental Authority or any third party
demand that a cleanup plan be prepared and that a cleanup plan be undertaken
because of any deposit, spill, discharge, or other release of Hazardous
Materials that occurs during the term of this Lease at or from the Premises, or
from the Project emanating from the Premises, or which arises at any time from
Tenant's use or occupancy of the Premises, then Tenant shall, at Tenant's sole
expense, prepare and submit the required plans and all related agreements,
documents, bonds and other financial assurances, and Tenant shall carry out all
such cleanup plans.
(3) Tenant shall promptly provide all information regarding
the use, generation, storage, transportation, disposal, release, spill or
discharge of Hazardous Materials that is reasonably requested by Landlord. If
Tenant fails to fulfill any duty imposed under this Sub-paragraph (d) within the
time provided or specified by any Governmental Authority or third party or
within the time period specified by Landlord, or before Tenant's right to
possession terminates or expires (whichever is earlier), Landlord may, at its
sole discretion, do so at Tenant's cost; and in such case, Tenant shall
cooperate with Landlord in order to prepare all documents Landlord deems
reasonably necessary or appropriate to determine the applicability of the
Environmental Laws and Environmental Requirements to the Premises and Tenant's
use thereof, and for compliance therewith, and Tenant shall execute all
documents promptly upon Landlord's request. No such action by Landlord and no
attempt made by Landlord to mitigate damages under any Environmental Laws shall
constitute a waiver of any of Tenant's obligations under this Sub-paragraph (d)
or any other remedy available at law or equity (including without limitation an
action to compel Tenant to perform such work).
(4) In no event shall Tenant agree to effectuate or engage
in any cleanup or remediation that shall involve the installation or
construction of any monitoring well, building, structure or equipment that
shall, in the reasonable judgment of Landlord, interfere with the operations of
other tenants at the Project or render the Project or Premises unavailable or
unfit for its intended use. To the extent that any investigation or remediation
conducted by Tenant shall render either the Premises, the Project or any part
thereof unavailable for the uses for which it is intended, Tenant shall be
liable for the payment of rent for whatever portion of the Premises or Project
are rendered unfit for their intended use.
(5) In no event shall Tenant agree to any remediation,
investigations, etc. that would result in the imposition of a Deed Notice,
Classification Exception Area, or any other similar instrument or notice or that
would involve an institutional or engineering control without the express
approval of the Landlord.
(6) Tenant's obligations and liabilities under this
Sub-paragraph (d) shall survive the expiration of this Lease.
(7) In no event shall Tenant be responsible for any
clean-up, or costs of Landlord or another tenant associated with such cleanup,
of an environmental condition due to events or actions not caused by Tenant, its
agents, employees, contractors, subtenants, assignees or invitees.
(e) TENANT'S INDEMNITY.
(1) Tenant shall indemnify, defend, and hold harmless
Landlord, Landlord's mortgagee, the manager of the Project or Property, and
their respective officers, directors, members, beneficiaries, shareholders,
partners, agents and employees from all fines, suits, procedures, claims, and
actions of every kind, and all costs associated therewith, including, but not
limited to, reasonable attorneys' and consultants' fees, arising out of or in
any way connected with any deposit, spill, discharge, or other release of
Hazardous Materials or substances that occurs during the term of this Lease (or
any prior lease with any previous record owner of the Property), at or from the
Premises, or from the Project emanating from the Premises, or which arises at
any time from Tenant's use or occupancy of the Premises by Tenant, its agents,
employees, contractors, subtenants, assignees or invitees; or from Tenant's
failure to provide any information, make all submissions, and take all steps
required by all Governmental Authorities under Environmental Laws and
Environmental Requirements applicable to Tenant; or from Tenant's failure to
comply with ISRA (as required herein); or from Tenant's failure to comply with
all applicable Environmental Laws and Environmental Requirements; or which arise
from any breach of the requirements under this Paragraph 31st or Paragraph 32nd
by Tenant, its agents, employees, contractors, subtenants, assignees or
invitees.
(2) Tenant's obligations and liabilities under this
Sub-paragraph (d) shall survive the expiration of this Lease.
(f) LANDLORD'S INDEMNITY.
(1) Landlord shall indemnify, defend and hold harmless
Tenant and Tenant's respective officers, directors, members, beneficiaries,
shareholders, partners,
agents, and employees (i) from all fines, suits, procedures claims, and actions
of any kind, and all costs associated therewith, including, but not limited to,
reasonable attorneys' and consultants' fees, arising out of or in any way
connected with any deposit, spill, discharge, or other release of Hazardous
Materials or substances that may have occured at or from the Project prior to
the commencement of this Lease of the Premises, but this provision shall in no
way apply with respect to any deposit, spill, discharge, or other release of
Hazardous Materials or sustances which occurred during Tenant's occupancy of all
or any portion of the Premises prior to the Commencement Date which was caused
by the act or omission of Tenant, or(ii) due to the act or omission of Landlord,
its agents, employees, licensees or invitees, resulting in the failure to take
all steps required by all Governmental Authorities under Environmental Laws and
Environmental Requirements. Notwithstanding the aforesaid, Landlord's indemnity
shall expressly exclude any surviving obligations (i) of the prior record owner
of the Property as landlord to indemnify Tenant in such circumstances, and (ii)
of Tenant to indemnify the prior record owner in accordance with the lease.
(2) Landlord's obligations and liabilities under this
Sub-paragraph (f) shall survive the expiration of this Lease.
PARAGRAPH 32ND - ISRA COMPLIANCE
(a) If Tenant's operations on the Premises now or hereafter
constitute an "Industrial Establishment" as that term is defined in ISRA then
prior to (i) closing operations or transferring ownership or operations of
Tenant at the Premises (as defined under ISRA), (ii) the expiration or sooner
termination of the Lease, (iii) any assignment of the Lease or any subletting of
any portion of the Premises, or (iv) any event caused by Tenant occurs which may
trigger ISRA; Tenant shall at its sole cost and expense, comply with all
requirements of ISRA pertaining thereto. Should the NJDEP determine that a
cleanup plan be prepared and that cleanup be undertaken because of any spills or
discharges of Hazardous Materials or substances at the Premises or Project which
such discharges occurred during Tenant's occupancy of any portion of the
Premises, the Lease Term or Renewal Term and which were caused by Tenant, Tenant
shall, at Tenant's sole expense, prepare and submit the required plans and
financial assurances, and carry out the approved plans. Without limitation of
the foregoing, Tenant's obligations shall include (i) the proper filing, with
the NJDEP, of an initial notice under N.J.S.A. 13:1K-9(a) and (ii) the
performance of all remediation and other requirements of ISRA, including without
limitation all requirements of N.J.S.A. 13:1K-9(b) through and including (l).
Tenant's obligation to pay rent shall continue until such time as Tenant obtains
and delivers to the Landlord a Negative Declaration or No Further Action Letter
and Covenant Not to Xxx as defined by ISRA, or such other proof, reasonably
satisfactory to the Landlord, that the Premises may be sold and/or comply
without violation of ISRA.
(1) The parties acknowledge and agree that pursuant to the
provisions of ISRA, after the Commencement Date, Tenant shall be, and is hereby,
designated the party responsible to comply with the requirements of ISRA with
respect to the Premises and conditions at the Premises caused by Tenant, its
employees and/or agents. In addition, any failure of Tenant to provide any
information and submission as required under ISRA shall constitute a default
under this Lease. Any assignee or subtenant of Tenant shall be deemed to have,
and by entering into such assignment or sublease,
and/or by entering into possession of the Premises, does hereby acknowledge that
they shall be the party responsible, jointly and severally, with Tenant under
the provisions of this Lease.
(b) In the event Tenant is not obligated to comply with the
requirements of ISRA, then prior to the Termination Date, expiration of the
Renewal Term or sooner termination of the Lease or any subletting of any portion
of the Premises, Tenant shall, at Tenant's expense, and at Landlord's option,
obtain from the NJDEP a "Non-Applicability Letter" confirming that the proposed
termination, assignment or subletting shall not be subject to the requirements
of ISRA. Any representation or certification made by Tenant in connection with
the Non-Applicability Letter request shall constitute a representation and
warranty by Tenant in favor of Landlord and any misrepresentation or breach of
warranty contained in Tenant's request shall constitute a default under this
Lease.
(c) In no event shall Tenant agree to effectuate or engage in any
cleanup or remediation that shall involve the installation or construction of
any monitoring well, building, structure or equipment that shall, in the
reasonable judgment of Landlord, interfere with the operations of other tenants
at the Project or render the Project or Premises unavailable or unfit for its
intended use. To the extent that any investigation or remediation conducted by
Tenant shall render either the Premises, the Project or any part thereof
unavailable for the uses for which it is intended, Tenant shall be liable for
the payment of rent for whatever portion of the Premises or Project are rendered
unfit for their intended use.
(d) In no event shall Tenant agree to any remediation,
investigation, etc. that would result in the imposition of a Deed Notice,
Classification Exception Area, or any other similar instrument or notice or that
would involve an institutional or engineering control without the express
approval of the Landlord.
(e) In the event of Tenant's failure to comply in full with the
foregoing provisions, Landlord may, at its option, upon prior written notice to
Tenant and providing Tenant with an opportunity to cure of not less than ten
(10) days, perform any and all of Tenant's obligations as aforesaid and all
reasonable costs and expenses incurred by Landlord in the exercise of this right
shall be deemed to be additional rent payable on demand and with interest until
payment. Such costs and expenses include but are not limited to state agency
fees, engineering fees, cleanup costs, filing fees and financial assurance
expenses.
(f) Tenant shall promptly provide Landlord with copies of all
correspondence, reports, notices, orders, findings, declarations and other
materials pertinent to Tenant's compliance and the NJDEP's requirements under
ISRA as they are issued or received by Tenant.
(g) Tenant's obligations and liabilities under this Paragraph 32nd
shall survive the expiration of this Lease.
PARAGRAPH 33RD - CONSTRUCTION OF OTHER WORK, CONDITIONS AS TO REPAIRS,
ALTERATIONS OR OTHER WORK
Whenever any repairs, alterations, changes or other work in, on, to or about the
Premises shall be made by either Landlord or Tenant, as provided in this Lease.
(a) The work shall be done in a good and workmanlike manner in
compliance with all applicable laws, ordinances and codes, and all applicable
governmental rules, regulations and requirements, and in accordance with the
standards, if any, of the Board of Fire Underwriters, or other organizations
exercising the functions of a board of fire underwriters whose jurisdiction
includes the Project;
(b) All materials and workmanship shall be of good quality, and in
case of repairs, restoration, changes, additions, alterations or improvements,
shall be at least equal to the original;
(c) All said work shall be paid for as promptly as practicable and
consistent with good business practices under the then existing circumstances;
(d) Such work shall be done as promptly as is possible and
practicable under the existing circumstances;
(e) The comprehensive general liability insurance provided for in
Paragraph 18th shall be extended by Tenant or Landlord (as applicable), if
necessary, to apply to the work being done, and evidence thereof shall be
delivered to the Landlord or Tenant, respectively, prior to commencement of such
work;
(f) The party doing or having the work done shall carry or cause its
contractors, if any, to carry xxxxxxx'x compensation insurance, as required by
law in connection with such work, and evidence thereof shall be delivered to the
other party prior to commencement of such work;
(g) Title to all buildings, building fixtures and improvements
erected and installed by Tenant (but not Tenant's trade fixtures, however the
same may be attached to the realty) shall become the property of Landlord upon
the expiration or earlier termination of this Lease;
(h) The contractor or other party performing the work shall obtain
an official Certificate of Occupancy (the "Certificate(s)") or an amended
Certificate upon completion of the work in each instance, if under local
practice such Certificates are issued or required in connection with such work.
The party performing the work shall also obtain the Certificate from the Board
of Fire Underwriters, or other organization exercising the same functions, whose
jurisdiction includes the Project in each instance, certifying that the electric
work has been properly completed whenever the work done involves any electrical
work for which such a Certificate is issued under local practice. If under local
practice official Certificates are not issued or required by a governmental
officer or department, or if the Board of Fire Underwriters or other such
organization does not issue Certificates on proper completion of electrical
work, this covenant shall be satisfied upon issuance of such certifications by
an architect or engineer licensed in the state in which the Project is located;
and,
(i) Landlord agrees to join in the application for all permits and
authorizations whenever necessary.
PARAGRAPH 34TH - MECHANIC'S LIENS
Tenant shall not suffer any mechanic's liens to be filed against the Project by
reason of work, labor, services or materials performed or furnished to Tenant or
to anyone holding the Premises, or any part thereof, through or under Tenant. If
any mechanic's lien or any notice of intention to file a mechanic's lien shall
at any time be filed against the Project (unless the labor or materials were
actually performed for or furnished to Landlord in connection with its
obligations under this Lease), Tenant shall, at Tenant's cost, within thirty
(30) days after knowledge or notice of the filing of any mechanic's lien, cause
the same to be removed or discharged of record by payment, bond, order of a
court of competent jurisdiction, or otherwise.
PARAGRAPH 35TH - INDEMNIFICATION OF LANDLORD
Tenant agrees to indemnify and save Landlord harmless from and against all
liability, and all loss, cost and expense, including reasonable attorneys' fees,
arising out of Tenant's operation, maintenance, management and control of the
Premises or in connection with (a) any loss, injury or damage whatsoever caused
by Tenant, its employees or agents; (b) any breach of this Lease by Tenant; (c)
any act or omission of Tenant occurring in, on or about the Project or on the
sidewalks adjoining the same; or (d) any contest or proceeding brought by Tenant
as provided for herein. However, notwithstanding anything contained to the
contrary herein, Tenant shall not be obligated or required hereunder, to hold
harmless or indemnify Landlord from or against any liability, loss, cost
expense, or claim to the extent arising from any act, omission or negligence of
Landlord or its agents, servants, employees or contractors. The provisions
hereof are not intended to abrogate the provisions regarding the Waiver of
Subrogation by the parties to this Lease.
PARAGRAPH 36TH - LEASE NOT TO BE RECORDED
Tenant agrees not to record this Lease and any violation thereof shall be
considered a default on the part of Tenant, and in addition thereto, at the
option of the Landlord, it may render this Lease null and void and of no effect.
In any event, a recording in violation of this covenant shall be ineffective and
shall not be construed as a cloud on or a condition of title.
Upon written request of Tenant, Landlord agrees to execute a Memorandum of Lease
for filing provided said Memorandum is in a form acceptable to Landlord and
Tenant pays all of Landlord's reasonable attorneys' fees and expenses in
connection with the filing of said Memorandum of Lease.
PARAGRAPH 37TH - PARKING AREAS
(a) Each Tenant and its officers, agents, and employees shall
utilize parking stalls as reasonably designated by the Landlord, which Landlord
will endeavor to designate in closest proximity to Tenant's main entrance.
Tenant's employees shall park
at such locations as designated by the Landlord from time to time. A sketch of
the Parking Plan is attached hereto as Exhibit H.
(b) Tenant shall be responsible to require the use by Tenant and its
officers, agents, and employees of such designated parking stalls for their use,
and shall direct its employees not to use any other parking area of the Project.
Tenant shall be responsible for the enforcement of these provisions.
(c) Suppliers, invitees and customers of all tenants at the Building
shall utilize parking stalls designated by Landlord, in Landlord's sole
discretion from time to time, on a first come first serve basis for vehicular
parking under the terms and conditions set forth hereinbelow. This right is
nonexclusive and is shared in common and on the same terms with the other
tenants in the Building.
(d) Vehicles may be parked only in spaces designated by Landlord as
parking spaces, either by painted lines or otherwise, as Landlord deems fit.
(e) Landlord shall maintain the parking lot and be responsible for
snow and ice removal at Tenant's sole cost and expense as provided in Paragraph
19th hereof.
PARAGRAPH 38TH - EFFECTIVE DATE
The Effective Date is defined as stated in the preamble to this Lease. In the
event that (I) the Contract between the Medical Society of New Jersey and
Landlord is terminated at any time before October 31, 2004, or (ii) the Closing
does not occur on or prior to October 31, 2004, then either Landlord or Tenant
shall have the right to terminate this Lease in writing by notice to the other
party, and thereafter, this Lease shall be deemed cancelled and of no force or
effect, and neither party shall have any obligation or liability to the other
hereunder. However, prior to any such termination becoming effective, the party
wishing to terminate this Lease shall give the other party and Tenant's current
landlord at least a thirty (30) day written notice of such party's intent to
terminate this Lease.
PARAGRAPH 39TH - SORTING AND SEPARATION OF REFUSE AND TRASH
(a) COMPLIANCE BY TENANT. Tenant covenants and agrees, at its sole
cost and expense, to comply with all present and future laws, orders, and
regulations of all state, federal, municipal, and local governments,
departments, commissions, and boards regarding the collection, sorting,
separation, and recycling of waste products, garbage, refuse and trash. Tenant
shall sort and separate such waste products, garbage, refuse, and trash into
such categories as provided by law. Each separately sorted category of waste
products, garbage, refuse, and trash shall be placed in separate receptacles
reasonably approved by Landlord. Such separate receptacles may, at Landlord's
option, be removed from the Project in accordance with a collection schedule
prescribed by law.
(b) LANDLORD'S RIGHTS IN EVENT OF NONCOMPLIANCE. Landlord reserves
the right to refuse to collect or accept from Tenant any waste products,
garbage, refuse, or trash that is not separated and sorted as required by law,
and to require Tenant to arrange for
such collection at Tenant's sole cost and expense, utilizing a contractor
satisfactory to Landlord. Tenant shall pay all costs, expenses, fines,
penalties, or damages that may be imposed on Landlord or Tenant by reason of
Tenant's failure to comply with the provisions of this Paragraph 39th, and, at
Tenant's sole cost and expense, shall indemnify, defend and hold Landlord
harmless (including reasonable legal fees and expenses) from and against any
actions, claims, and suits arising from such noncompliance, utilizing counsel
reasonably satisfactory to Landlord.
PARAGRAPH 40TH - REMOVAL OF GARBAGE AND DEBRIS
(a) Tenant agrees to remove all garbage and debris from Tenant's
Premises and transport the same to the receptacle (dumpster or compactor)
provided by Landlord. Tenant shall not permit its garbage or debris to be placed
or remain outside the Building, except as designated by the Landlord.
(b) For purposes of this Paragraph 40th, garbage and debris shall
refer to waste generated by office facilities, except for any Hazardous
Materials as defined in Paragraph 31st of this Lease or any medical related
hazardous substances.
(c) Removal of all such garbage and debris, except for any Hazardous
Materials as defined in Paragraph 31st of this Lease or any medical related
hazardous substances, shall be at Tenant's expense in accordance with Paragraph
19th of this Lease.
(d) In the event Tenant is specifically permitted to use, generate,
release, manufacture, refine, produce, process, transport, handle, treat, store,
or dispose of any Hazardous Materials in accordance with the provisions of
Paragraph 31st of this Lease or any medical related hazardous substances. Tenant
shall not dispose of said Hazardous Materials in the common garbage receptacles
and/or containers provided by Landlord for Tenants. Tenant shall dispose of said
Hazardous Materials in accordance with all applicable laws at Tenant's own cost
and expense.
(e) In the event Tenant produces garbage and debris for disposal in
the common garbage receptacles and/or containers provided by Landlord for
Tenant, that is in excess of Tenant's pro rata share, as defined in Paragraph
19th of this Lease, of the aggregate garbage and debris for the Project,
Landlord may assess Tenant and Tenant shall be responsible for the excess
disposal costs.
PARAGRAPH 41ST - ROOF SPACE
In the event that Tenant desires to utilize roof space for purposes of the
installation of communication equipment for Tenant's use only, Landlord shall
not unreasonably withhold or delay its consent; provided, however, that same is
not prohibited by any local, state, federal, or other governmental authority and
Tenant utilizes contractors approved by Landlord and pays for all costs in
connection with the installation of said communications equipment. Landlord
acknowledges and consents to Tenant's prior installation of a Liebert cooling
system on the roof of the Building which is used to cool Tenant's computer room
in the Premises approximately to some degree beneath the location of the cooling
system. Tenant shall be responsible for any and all repairs and/or replacements
of the said cooling system as may be required by Tenant, all at its own
risk, cost and expense. In addition, Tenant shall be responsible for any and all
damage that may result to the Building as a result of any malfunctioning of the
cooling system or any work performed thereon. Tenant, its contractors and agents
shall have access to that portion of the roof upon which the cooling system is
installed, and shall indemnify, defend and hold the Landlord harmless from and
against any and all losses and damages resulting from or arising out of any
claims or causes of action made or filed by or on behalf of any injured or
damaged party in connection with the cooling system and its existence on the
roof.
PARAGRAPH 42ND - REMOVAL OF SNOW AND ICE
Notwithstanding anything contained to the contrary herein, it shall be the
Landlord's responsibility for removal of snow and ice, although the Landlord
shall incur no liability whatsoever to Tenant for failure to immediately remove
the same. Removal of snow and ice shall be at Tenant's expense in accordance
with Paragraph 19th of this Lease (billed separately, not included with CAM
charges).
PARAGRAPH 43RD - DESTRUCTION OR CONDEMNATION
Notwithstanding anything provided to the contrary in Paragraphs 9th and 20th of
this Lease, in the event of damage, destruction, taking or condemnation of the
Building, or any portion thereof, with respect to which the reasonable cost of
repairing, restoring, replacing or reconstructing the Building to its condition
immediately prior to such event equals or exceeds one million ($1,000,000.00)
dollars. Landlord reserves the right to terminate this Lease upon thirty (30)
days written notice to Tenant after the occurrence of such event regardless of
whether any repairs, restoration, replacement, or reconstruction is required to
the Premises.
PARAGRAPH 44TH - PAYMENT OF TAXES, ASSESSMENTS, ETC.
Nothing contained in this Lease shall require Tenant to pay any franchise,
estate, inheritance, succession, capital levy or transfer tax of Landlord, or
any income, excess profits or revenue tax or any other tax, assessment, charge
or levy upon the net rent payable by Tenant under this Lease.
PARAGRAPH 45TH - ESTOPPEL CERTIFICATE
Tenant agrees at any time and from time to time, upon not less than ten (10)
days' prior written request by Landlord, to execute, acknowledge and deliver to
Landlord, and Landlord agrees at any time and from time to time, upon not less
than ten (10) days' prior written request by Tenant, to execute, acknowledge and
deliver to Tenant a statement in writing certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications),
and the dates to which the net and additional rent and other charges have been
paid in advance, if any, and whether or not there is any existing default by
Tenant or notice of default served by Landlord, it being intended that any such
statement delivered pursuant to this Paragraph 45th may be relied upon by any
prospective purchaser of the fee or leasehold by any prospective mortgagee or
assignee of any mortgage upon the fee of the Project.
PARAGRAPH 46TH - INTENTIONALLY DELETED
PARAGRAPH 47TH - HVAC UTILITY COSTS
Tenant shall pay as additional rent, the utility costs (gas and electric)
associated with the HVAC for the Premises. Until such time as the Premises is
equipped with an HVAC system servicing only Tenant's Premises within the
Building, the HVAC utility costs for HVAC use on weekdays from 7:30 AM to 8:00
PM and on Saturdays from 9:00 AM to 1:00 PM, shall be pro rated with the other
tenants, as reasonably determined by Landlord and Landlord's HVAC Engineer. For
HVAC usage for time periods other than weekdays from 7:30 AM to 8:00 PM and on
Saturdays from 9:00 AM to 1:00 PM, Tenant shall be billed at an hourly rate set
by Landlord based upon the estimate by Landlord's HVAC Engineer of HVAC
operating costs for the Building, which shall be $50.00 per hour unless
otherwise reasonably adjusted by Landlord. Tenant shall be billed on a monthly
basis for such HVAC operating costs by Landlord and said Tenant shall pay same
within ten (10) days of such xxxxxxxx. At such time as the Premises is equipped
with an HVAC system servicing only Tenant's Premises, then henceforth Tenant
shall pay all charges for HVAC service and maintenance.
PARAGRAPH 48TH - INTENTIONALLY DELETED
PARAGRAPH 49TH - LIMITATIONS ON USE
Tenant acknowledges and agrees that Landlord shall enter into certain leases
that prohibit certain uses by tenants within the Building. Tenant shall use the
Premises for the Permitted Use only and shall not use or permit the Premises to
be used for any other purpose without the prior written consent of Landlord.
Tenant agrees, upon written notice from Landlord, to immediately refrain from
any use of the Premises which violates such Exclusives. Any breach of this
Paragraph 49th shall constitute an event of default by Tenant of its Lease
obligations.
Tenant further acknowledges that Landlord has granted exclusives (the
"Exclusives") to other tenants within the Building as follows:
1. OB-GYN Physician Services, Infertility Services, Midwifery and
Acupuncture
2. Per future amendment to Lease.
Tenant further agrees not to seek consent from the Landlord for an assignment or
sublease of Tenant's Premises for any of the following uses:
1. OB-GYN Physician Services, Infertility Services, Midwifery and
Acupuncture
2. Per future amendment to Lease.
Landlord reserves the right to add additional exclusivity rights for additional
physician Tenants as and when it deems necessary as Landlord adds or replaces
tenants occupying the Building. Tenant agrees to cooperate with Landlord in this
regard and to execute an amendment to this Lease to add such additional
exclusivity provision, which amendment shall be prepared by Landlord at its
expense.
PARAGRAPH 50TH - AMENDMENTS TO NET LEASABLE AREA, RENT & CAMS
In the event Tenant's net leasable space is different than as specified in this
Lease, Tenant's Premises net leasable area, rent, Real Estate Taxes, Common Area
Maintenance Charges, and Snow and Ice Removal Charges shall be amended
accordingly. The Building's Architect of Record shall do all such measurements
of the Building and the Premises in accordance with the guidelines set forth in
the Building Owners & Managers Association Guidelines. Landlord shall provide
Tenant with the measurements and calculations of the Building's Architect of
Record within sixty (60) days of the Commencement Date, or such later date that
is within sixty (60) days of the completion of the work referred to in Paragraph
26th of this Lease. It is anticipated that the ultimate square footage to be
determined will not deviate from 500 square feet more than or less than the
estimated square footage set forth in Paragraph 1st of this Lease.
PARAGRAPH 51ST - VALIDITY OF LEASE
The terms, conditions, covenants and provisions of this Lease shall be deemed to
be severable. If any clause or provision contained herein is adjudicated to be
invalid or unenforceable by a court of competent jurisdiction or by operation of
any applicable law, it will not affect the validity of any other clause or
provision herein, but such other clauses or provisions shall remain in full
force and effect.
PARAGRAPH 52ND - NON-WAIVER
The various rights, remedies, options and elections of the Landlord expressed
herein are cumulative and the failure of the Landlord to enforce strict
performance by Tenant of the terms and conditions of this Lease or to exercise
any election or option or to resort or have recourse to any remedy herein
conferred or the acceptance by the Landlord of any installment of rent after any
breach by Tenant, in any one or more instances, shall not be construed or deemed
to be a waiver or relinquishment for the future by the Landlord of any such
terms and conditions, options, elections or remedies, but the same shall
continue in full force and effect. No waiver by the Tenant of any violation or
breach of condition by the Landlord shall constitute or be construed as a waiver
of any other violation or breach of condition.
PARAGRAPH 53RD - NOTICES
All notices, demands, consents, approvals and other communications which are
required or desired to be given hereunder must be in writing and shall be sent
by United States certified mail, postage prepaid, return receipt requested or by
private mail courier guaranteeing next day delivery, addressed as follows:
If to the Tenant: New Jersey State Medical Underwriters, Inc.
Xxx Xxxxxxxx Xxxx
Xxxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxxxx,
Senior Vice President/Corp. Secretary
Attention: Xxxxxx X. Xxxxx,
Senior Vice President/Corp. Counsel
FAX: (000) 000-0000
FAX: (000) 000-0000
With a Copy to: Xxxxx Xxxxxxxxxxx, Esquire
Saiber Xxxxxxxxxxx Xxxx & Xxxxxxxxx, LLC
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
FAX: (000)000-0000
If to the Landlord: Xxxxxx Lawrenceville Realty Associates, L.L.C.
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx, III, Esquire
FAX: (000) 000-0000
With a Copy to: Xxxx Xxxxxxxx XxXxxxxxx, Esquire
0000 Xxxxx 00, Xxxxx 0
Xxxxxxxxxxxx, XX 00000
FAX: (000) 000-0000
or such other person or place as either party hereto may designate by notice
given as aforesaid. Notice or other correspondence given by personal delivery
shall be deemed effectively given and received immediately upon such delivery,
and any of the same given by overnight courier in the foregoing manner shall be
deemed effectively given and received one (1) business day after delivery to the
courier, and any of the same given by mail in the foregoing manner shall be
deemed effectively given and received two (2) business days after mailing.
Notice may be given by electronically-confirmed fax, by a party's attorney to
the other party's attorney. Notice by fax will be effective upon
electronically-confirmed receipt. Any and all notices required hereunder may be
exchanged between the attorneys for Landlord and Tenant.
PARAGRAPH 54TH - TITLE AND QUIET ENJOYMENT
The Landlord covenants and represents that the Landlord is the owner of the
Project and the Premises located therein and has the right and authority to
enter into, execute and deliver this Lease; and does further covenant that
Tenant on paying the rent and performing the conditions and covenants contained
in this Lease shall and may peaceably and quietly have, hold and enjoy the
Premises for the Lease Term and the Renewal Term, as applicable.
PARAGRAPH 55TH - ENTIRE AGREEMENT
This Lease contains the entire agreement between the parties. No representative,
agent or employee of the Landlord has been authorized to make any
representations or promises with respect to the leasing of the Premises or to
vary, alter or modify the terms hereof. No additions, changes or modifications,
renewals or extensions hereof will be binding unless reduced to writing and
executed by both the Landlord and Tenant.
PARAGRAPH 56TH - CONFORMITY WITH LAWS AND REGULATIONS
Landlord may pursue the relief or remedy sought in any invalid clause or
provision of this Lease, by conforming the said clause or provision with the
provisions of the statutes or regulations of any governmental agency in such
case made and provided as if the particular provisions of the applicable
statutes or regulations were set forth herein at length.
PARAGRAPH 57TH - NUMBER AND GENDER
In all references herein to any parties, persons or entities, the use of any
particular gender or the plural or singular number is intended to include the
appropriate gender or number as the text of the within instrument may require.
All the terms, covenants and conditions herein contained shall be for and shall
inure to the benefit of and shall bind the respective parties hereto, and their
heirs, executors, administrators, personal or legal representatives, successors
and assigns.
PARAGRAPH 58TH - CHOICE OF LAW
This Lease and all matters relating to same shall be governed and construed in
accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
day and year first written above.
WITNESS: XXXXXX LAWRENCEVILLE REALTY
ASSOCIATES, L.L.C.,
a New Jersey Limited Liability
Company, Landlord
BY:
--------------------------
XXXXX XXXXXX, MANAGER
WITNESS: NEW JERSEY STATE MEDICAL
UNDERWRITERS, INC.,
a New Jersey corporation
Tenant
BY:
--------------------------
XXXXXXXX X. XXXXXXXX
CHAIRMAN AND CHIEF
EXECUTIVE OFFICER
EXHIBIT A
BUILDING PLAN INDICATING TENANT'S PREMISES
EXHIBIT B
INTENTIONALLY DELETED
EXHIBIT C
LANDLORD/TENANT WORK LETTER
EXHIBIT D
FLOOR LOAD
EXHIBIT E
HAZARDOUS SUBSTANCES USED, GENERATED, RELEASED, PROCESSED,
TRANSPORTED, HANDLED, TREATED, STORED OF DISPOSED OF BY TENANT
ONLY ORDINARY OFFICE SUPPLIES.
EXHIBIT F
INTENTIONALLY DELETED
EXHIBIT G
INTENTIONALLY DELETED
EXHIBIT H
PARKING PLAN AND PYLON SIGN DETAIL
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE (THIS "AMENDMENT"), made as of the 22nd day of
June, 2004, by and between XXXXXX LAWRENCEVILLE REALTY ASSOCIATES, L.L.C., a New
Jersey limited liability company, having an address at 0000 Xxxx Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000 (the "Landlord"); and NEW JERSEY STATE MEDICAL
UNDERWRITERS, INC., a New Jersey corporation, having an address at 0 Xxxxxxxx
Xxxxx, Xxxxxxxxxxxxx, Xxx Xxxxxx 00000 (the "Tenant").
WHEREAS, the parties entered into a Lease for the Premises (as described
in said Lease) at 0 Xxxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx
(the "Property"), as of November 25, 2003; and
WHEREAS, Landlord has entered into a lease with East Windsor Pediatric
Group, P.A., a New Jersey professional corporation, dated June 22, 2004, for
space at the Property, which contains an exclusivity provision for the medical
practice of pediatrics; and
WHEREAS, Paragraph 49th of Landlord's Lease with Tenant requires Tenant
to observe use restrictions as Landlord enters into leases with additional
physician tenants and to amend its Lease accordingly; and
WHEREAS, the parties wish to amend the Lease and hereby make this
Amendment to Lease;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and promises hereinbelow contained, the sum of One ($1.00) Dollar in hand paid
by each party hereto to the other, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
each party hereto to the other, the parties hereto, intending to be legally
bound hereby, agree and do hereby amend the Lease as follows:
1. Paragraph 49th of the Lease is hereby modified to include
"pediatric medical services" within the uses that are protected by exclusivity
provisions in other tenants' leases covering certain premises leased at the
Property and as such are prohibited uses to Tenant.
2. All other terms of the Lease as amended are hereby ratified and
confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
Witness: NEW JERSEY STATE MEDICAL UNDERWRITERS,
INC., A New Jersey corporation
_____________________________ By:________________________________
Xxxxxxxx X. Xxxxxxxxx, Chairman and
Chief Executive Officer
Witness: XXXXXX LAWRENCEVILLE REALTY ASSOCIATES,
L.L.C.,a New Jersey limited liability
company
_____________________________ By:________________________________
Xxxxx Xxxxxx, Manager
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (THIS "AMENDMENT"), made as of the 1st
day of October, 2004, by and between XXXXXX LAWRENCEVILLE REALTY ASSOCIATES,
L.L.C., a New Jersey limited liability company, having an address at 0000 Xxxx
Xxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000 (the "Landlord"); and NEW JERSEY
STATE MEDICAL UNDERWRITERS, INC., a New Jersey corporation, having an address at
0 Xxxxxxxx Xxxx, Xxxxx 0, Xxxxxxxxxxxxx, Xxx Xxxxxx 00000 (the "Tenant").
WHEREAS, the parties entered into a Lease for the Premises (as described
in said Lease) at 0 Xxxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx
(the "Property"), as of November 25, 2003, with an Effective Date of April 27,
2004; and
WHEREAS, the parties entered into an Amendment to Lease dated as of June
22, 2004, modifying the exclusivity provision (the Lease and this amendment are
collectively hereinafter referred to as the "Lease"); and
WHEREAS, the Tenant has requested that the Landlord recapture a portion
of the Premises; and
WHEREAS, the parties wish to amend the Lease and hereby make this Second
Amendment to Lease;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and promises hereinbelow contained, the sum of One ($1.00) Dollar in hand paid
by each party hereto to the other, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
each party hereto to the other, the parties hereto, intending to be legally
bound hereby, agree and do hereby amend the Lease as follows:
1. Paragraph 1st of the Lease and Exhibit "A" attached to and made
a part of the Lease describe the Premises as approximately 33,432 s.f. of net
leasable space on the first and second floors, and 1,568 s.f. of warehouse
space. Subject to the terms and conditions of this Second Amendment, Landlord
and Tenant agree that, effective as of October 1, 2004, the Premises shall
consist of 5,014 s.f. of net leasable space on the first floor, 18,700 s.f. of
net leasable space on the second floor, and 1,568 s.f. of warehouse
space, and the Premises shall thereafter be so defined. Exhibit "A" shall be
deleted and the new Exhibit "A" attached to and made a part of this Second
Amendment shall be substituted in its place. Notwithstanding the substitution of
a new Exhibit "A" which sets forth Phase I proposed recovered square footage and
Phase II proposed recovered square footage, nothing herein shall obligate
Landlord to recapture any Phase II proposed square footage unless and until an
additional amendment to the Lease is entered into by and between the parties. To
the extent that Tenant is physically occupying the space identified as Phase I
proposed recovered square footage, Tenant shall vacate and surrender said Phase
I square footage prior to October 15, 2004, provided however, Tenant shall not
be in default of this Lease, if it has not fully vacated the space identified as
Phase I proposed recovered square footage, provided that Tenant does not
interfere with any other tenant's space or tenant or visitors to such space and
further provided that Tenant diligently pursues vacating the space and has, in
fact, vacated said space by November 12, 2004.
2. Paragraph 4th of the Lease shall be modified such that,
effective as of October 1, 2004, Tenant shall commence the payment to Landlord
of basic rent at the rate of $14.50 per square foot for office space and $7.00
per square foot for warehouse space, for a total basic rent of $354,829 per year
and $29,569.08 per month. Paragraph 4th shall be further modified to delete the
table of basic rent therein and substitute the following revised table:
YEAR RENT ANNUAL MONTHLY
RENTAL PER S.F. NET RENTAL NET RENTAL
1st Year $15.00* (subject to the stated decrease adjustment as modified)
$ 7.00 $ 10,976 $ 914.66
2nd Year $ 15.00 $ 355,710 $29,642.50
$ 7.00 $ 10,976 $ 914.66
3rd Year $ 15.00 $ 355,710 $29,642.50
$ 7.00 $ 10,976 $ 914.66
4th Year $ 15.00 $ 355,710 $29,642.50
$ 7.00 $ 10,976 $ 914.66
5th Year $ 15.00 $ 355,710 $29,642.50
$ 7.00 $ 10,976 $ 914.66
3. Paragraph 6th Renewal Term Rent shall be modified as follows:
FIRST
RENEWAL RENT ANNUAL MONTHLY
TERM PER S.F. NET RENTAL NET RENTAL
6th Year $ 16.25 $385,352.50 $32,112.71
$ 7.00 $ 10,976.00 $ 914.66
7th Year $ 16.25 $385,352.50 $32,112.71
$ 7.00 $ 10,976.00 $ 914.66
8th Year $ 16.25 $385,352.50 $32,112.71
$ 7.00 $ 10,976.00 $ 914.66
9th Year $ 16.25 $385,352.50 $32,112.71
$ 7.00 $ 10,976.00 $ 914.66
10th Year $ 16.25 $385,352.50 $32,112.71
$ 7.00 $ 10,976.00 $ 914.66
4. Paragraph 7th Repairs and Care shall be modified to delete the
sentence "Tenant shall also be responsible, at its own cost and expense, for the
care and maintenance of the elevator between the first and second floors of the
Premises, which shall include keeping in effect a maintenance contract for such
elevator." As of October 1, 2004, the said care and maintenance of the elevator,
including the maintenance contract, shall fall within the Common Area
Maintenance Charges to be paid for on a prorata basis by the tenants using such
elevator. The elevator maintenance contract shall be assigned by Tenant to
Landlord.
5. Paragraph 16th Security Deposit shall be modified to provide
that, as a condition of Landlord's agreement to recapture the Phase I recovered
square footage, Landlord and Tenant agree that Tenant shall pay to Landlord from
the Security Deposit, and release all rights thereto, that amount which
represents the difference in the original square footage of office space
included in the Premises and the square footage of the Premises after giving
effect to the recapture of the Phase I recovered square footage multiplied by
three (3) months. Paragraph 26th of the Lease is modified to provide that of the
$50,000 previously paid by Landlord to Tenant for Tenant's Work, the amount of
$12,188.92 shall be returned to Landlord from the Security Deposit. The amount
paid over to Landlord is $48,631.42 ($36,442.50 + $12,188.92) and the remaining
Security Deposit is $207,596.54. In the event that Tenant does not remain as a
Tenant at the Premises for the full initial five-year term of the Lease, then,
in addition to any other remedies that may be available to Landlord, if any, an
amount equal to three (3) months' rent on the Phase I recovered square footage
(i.e. $36,442.50) shall be due and payable to Landlord as consideration for the
above-noted recapture.
6. Paragraph 19th of the Lease is modified to provide that,
effective as of October 1, 2004, Tenant's Proportionate Share shall be 35.245%
percent from October 1, 2004, through the last day of the Second Stage, and
thereafter shall be fixed at 32.759% percent for purposes of billing the CAM
Charges of the Project (subject to adjustment after measurement in accordance
with Paragraph 50 of the Lease). Effective October 1, 2004, the revised monthly
amount payable by Tenant for CAM Charges is $8,427.33
7. Paragraph 26th of the Lease incorporating Exhibit "C" into the
Lease is hereby amended to include a revised Exhibit "C" showing (by line
crossouts) items noted thereon to either be completed or no longer required as a
result of the recapture of the Phase I recovered square footage. The new Exhibit
"C" is attached hereto and made a part hereof.
8. All other terms of the Lease as amended are hereby ratified and
confirmed.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
Witness: NEW JERSEY STATE MEDICAL UNDERWRITERS,
INC.,
A New Jersey corporation
_____________________________ By:________________________________
Xxxxxxxx X. Xxxxxxxxx, Chairman and
Chief Executive Officer
Witness: XXXXXX LAWRENCEVILLE REALTY ASSOCIATES,
L.L.C.,
a New Jersey limited liability company
_____________________________ By:________________________________
Xxxxx Xxxxxx, Manager
