Exhibit 4.10
LEASE
Between
XXXXXXXXXX ASSOCIATES, L.P., Landlord
and
FUNDTECH CORP, INC., Tenant
Dated: August 30, 1999
TABLE OF CONTENTS
ARTICLE 1. DEMISE OF PREMISES.........................................2
ARTICLE 2. TERM.......................................................2
ARTICLE 3. RENT.......................................................2
ARTICLE 4. BASE RENT ADJUSTMENT.......................................3
ARTICLE 5. SECURITY...................................................4
ARTICLE 6. COMPLETION AND POSSESSION..................................5
ARTICLE 7. USE OF PREMISES............................................5
ARTICLE 8. REPAIRS, REPLACEMENTS, ALTERATIONS.........................6
ARTICLE 9. TENANT COVENANTS...........................................7
ARTICLE 10. LANDLORD'S SERVICES........................................8
ARTICLE 11. ASSIGNMENT, SUBLETTING, ETC...............................11
ARTICLE 12. LANDLORD'S RIGHTS.........................................12
ARTICLE 13. DAMAGE BY FIRE, ETC.......................................13
ARTICLE 14. CONDEMNATION..............................................14
ARTICLE 15. COMPLIANCE WITH LAWS......................................15
ARTICLE 16. DAMAGE TO PROPERTY........................................15
ARTICLE 17. SUBORDINATION.............................................15
ARTICLE 18. NOTICES...................................................16
ARTICLE 19. CONDITIONS OF LIMITATION..................................16
ARTICLE 20. RE-ENTRY BY LANDLORD......................................17
ARTICLE 21. DAMAGES...................................................18
ARTICLE 22. WAIVER OF TRIAL BY JURY...................................19
ARTICLE 23. NO WAIVERS................................................19
ARTICLE 24. PARTIES BOUND.............................................19
ARTICLE 25. CURING TENANT'S DEFAULTS..................................20
ARTICLE 26. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE................20
ARTICLE 27. TENANT'S ENVIRONMENTAL RESPONSIBILITIES...................20
ARTICLE 28. MISCELLANEOUS.............................................22
ARTICLE 29. INABILITY TO PERFORM......................................23
ARTICLE 30. ABANDONED PERSONAL PROPERTY...............................23
ARTICLE 31. EXCULPATION...............................................23
ARTICLE 32. ARTICLE HEADINGS..........................................24
ARTICLE 33. QUIET ENJOYMENT...........................................24
ARTICLE 34. HOLDING OVER..............................................24
ARTICLE 35. DEFAULT RATE OF INTEREST AND ATTORNEYS FEES...............24
ARTICLE 36. RELOCATION................................................24
ARTICLE 37. SUBMETERING OF SUITE 501..................................24
ARTICLE 38. ADDITIONAL WORK...........................................24
ARTICLE 39. DEMISE OF SUITES 501 AND 505..............................25
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AGREEMENT OF LEASE
------------------
Between XXXXXXXXXX ASSOCIATES, L.P., a limited partnership of the State of New
Jersey (hereinafter called "Landlord"), and FUNDTECH CORP., INC. (hereinafter
called "Tenant").
PREAMBLE
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BASIC LEASE PROVISIONS AND DEFINITIONS.
In addition to other terms elsewhere defined in this Lease, the following
terms whenever used in this Lease should have only the meanings set forth in
this section, unless such meanings are expressly modified, limited or expanded
elsewhere herein.
(1) Date of Lease:
(2) Exhibits:
The following Exhibits attached to this Lease are
incorporated herein and made a part hereof:
Exhibit A: Floor Plan(s)
Exhibit B: Landlord's Work
Exhibit C: Omit
Exhibit D: Rules and Regulations
Exhibit E: Building Maintenance Specification
Exhibit F: Building Holidays
(3) Building: 00 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
(4) Premises or Demised Premises: Outlined on Exhibit A - 3,505 gross rentable
square feet in Xxxxx 000 ("Xxxxx 000") and 1,396 gross rentable square feet in
Suite 690 (Suite "690").
(5) Land: On Tax Assessment Map of the City of Jersey City, Xxxxxx
County, New Jersey. Block 8, Lot C2.
(6) Term: 5 years
(7) Base Rent:
Suite 505 $82,367.50 per annum, payable $6,863.96 per
month for the period from October 1, 1999
through September 30, 2004.
Suite 690 $34,900.00 per annum, payable $2,908.33 per month
for the period October 1, 1999 through September 30, 2004.
(8) Utility Charge:
Suite 505: To be submetered and paid by Tenant monthly.
Suite 690: $2,443.00 per annum; $203.58 monthly for the period
October 1, 1999 through September 30, 2004.
(9) Tenant's Percentage: 1.23% on Suite 505
.49% on Suite 690
(10) Base Year: 2000
(11) Security: $19,544.58
(12) Commencement Date: October 1, 1999
(13) Termination Date: September 30, 2004
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(14) Permitted Use: General Office
(15) Tenant's Address: 00 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx
(16) Landlord's Address: c/x Xxxxxxxx Associates
X.X. Xxx 0000
0000 Xx. Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
(17) Broker: Xxxxxxx & Wakefield of New Jersey, Inc.
(18) Option: None
W I T N E S S E T H:
1. DEMISE OF PREMISES. Landlord does hereby lease and demise to Tenant,
and Tenant does hereby hire and take from Landlord, upon and subject to the
covenants, agreements, terms, provisions and conditions of this Lease, the
Premises for the Term together with the non-exclusive right of Tenant to all of
the common areas of the Property.
2. Term. The Term shall commence on the commencement date (subject to
Article 6 hereof) and shall end on the Termination date or on such other date as
the Term may expire or be terminated pursuant to the provisions of this Lease or
pursuant to law. Whenever reference is made in this Lease to "Lease Year", the
same shall mean each twelve (12) month period commencing January 1 and
terminating December 31, except that in the event of the termination of this
Lease on any day other than the last day of a Lease Year, then the last lease
year shall be the period from the preceding January 1 to such date of
termination, and in the event that the commencement date is other than January
1, then the first year shall be on the period from the commencement date until
the following December 31.
3. RENT.
A. The Base Rent shall be payable in equal monthly installments in
advance on the first day of each and every calendar month during the Term
(except that Tenant shall pay the first monthly installment on the execution
hereof), plus such additional rent and other charges as shall become due and
payable hereunder, which additional rent and other charges shall be payable as
hereinafter provided; all of which shall be paid to Landlord at Landlord's
address, or at such other place or to such other person as Landlord may
designate, in lawful money of the United States of America. Base Rent,
additional rent and other charges hereunder are sometimes collectively referred
to herein as "rent".
B. Tenant does hereby covenant and agree to pay the rent herein
reserved as and when the same shall become due and payable, without demand
therefore and without any counterclaim, set-off or deduction whatsoever, and to
keep and perform, and to permit no violation of, each and every one of the
covenants, agreements, terms, provisions and conditions herein contained on the
part and on behalf of Tenant to be kept and performed.
C. There shall be a late charge equal to ten (10%) percent on all
payments of Base Rent hereunder which are made more than ten (10) days after the
due date thereof. For any other charges due hereunder for which a xxxx must be
rendered, the late charges of ten percent (10%) shall not be imposed unless and
until ten (10) days have passed since notice of the charges have been given to
Tenant. In the event Tenant fails or refuses to pay rent hereunder and Landlord
institutes suit for the collection of same, Tenant agrees to reimburse Landlord,
as additional rent hereunder, for all reasonable expenses incurred by Landlord
in connection therewith, including, but not limited to, reasonable attorney's
fees.
D. Intentionally Omitted.
E. If, by reason of any of the provisions of this Lease, the obligation
of Tenant to commence the payment of rent under this Lease shall be on any day
other than the first day of a calendar month, the rent for such calendar month
shall be prorated based upon one-thirtieth (1/30th) thereof per diem.
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4. BASE RENT ADJUSTMENT
A. As used in, and for the purposes of this Article:
(i) "Taxes" shall mean the taxes and assessments imposed upon the
Building and the Land, or upon the Base Rent and additional rent, as such,
payable by Landlord, including, but not limited to, real estate, city, county,
village, school and transit taxes, or taxes, assessments or charges levied,
imposed, or assessed against the Building and the Land by any other taxing
authority, whether general or specific, ordinary or extraordinary, foreseen or
unforeseen. If due to a future change in the method of taxation, any franchise,
income or profit tax shall be levied against Landlord in substitution for, or in
lieu of, or in addition to, any tax which would otherwise constitute a real
estate tax, such franchise, income or profit tax shall be deemed to be a tax for
the purposes hereof; conversely, any additional real estate tax hereafter
imposed in substitution for, or in lieu of, any franchise, income or profit tax
(which is not in substitution for, or in lieu of, or in addition to, a real
estate tax as hereinbefore provided) shall not be deemed a tax for the purposes
hereof. Notwithstanding anything contained herein to the contrary, Tenant shall
assume and pay to Landlord in full at the time of paying the Base Rent any
excise, sales, use, gross receipts or other taxes (other than a net income or
excess profits tax) which may be imposed on or measured by such Base Rent or
additional rent or may be imposed on Landlord or on account of the letting or
which Landlord may be required to pay or collect under any law now in effect or
hereafter enacted
(ii) "Operating Expenses" shall mean and include those expenses
incurred in respect to the operation, maintenance, including the maintenance of
elevators, management and safekeeping of the Land and Building, including
building personnel, in accordance with generally accepted accounting principles
and sound management practices as applied to the operation, maintenance and
safekeeping of first class office buildings.
(iii) "Base Expenses "shall mean the Operating Expenses for the Base
Year.
(iv) "Lease Year" shall mean each calendar year in which occurs any
part of the Term subsequent to the Base Year.
(v) "Tax Year" shall mean each calendar year in which occurs any part
of the Term.
B. As soon as practicable after each Lease Year, Landlord will furnish
Tenant a statement which shall show a comparison of the Operating Expenses for
the preceding Lease Year to the Base Expenses. On the first day for the payment
of Base Rent hereunder following the furnishing of such comparative statement,
(i) Tenant shall pay to Landlord a sum (the "Operating Expense Increase") equal
to the Operating Expenses for the preceding calendar year less the Base Expenses
multiplied by Tenant's Percentage, (ii) Tenant shall pay to Landlord a sum equal
to one-twelfth (1/12th) of the expense increase multiplied by the number of
months then elapsed commencing with the first day of the current Lease Year and,
in advance, one-twelfth (1/12th) of the expense increase in respect of the then
current month; and (iii) thereafter, until a different comparative statement
shall be submitted to Tenant as above provided, the monthly installments of Base
Rent payable under this Lease shall be increased by an amount equal to
one-twelfth (1/12th) of the expense increase.
C. As soon as practicable after the Base Year, Landlord will furnish
Tenant a statement which shall show a comparison of the Taxes for the then
current Taxes for the Base Year. The increase, if any, of Taxes for the then
current tax year over the tax base, when multiplied by Tenant's Percentage, is
herein referred to as the "tax increase". On the first day for the payment of
Base Rent hereunder following the furnishing of such comparative statement, (i)
Tenant shall pay to Landlord a sum equal to one-twelfth (1/12th) of the tax
increase multiplied by the number of months elapsed commencing with the first
day of the then current Tax Year and, in advance, one-twelfth (1/12th) of the
tax increase in respect of the then current month; and (ii) thereafter, until a
different comparative statement shall be submitted to Tenant as above provided,
the monthly installments of Base Rent payable under this Lease be increased by
an amount equal to one-twelfth (1/12th) of the tax increase.
D. If prior to the receipt by Tenant of a comparative statement from
Landlord pursuant to sub-paragraphs B or C above, Tenant has paid any expense
increase or tax increase
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with respect to the Lease Year for which that comparative statement was
submitted, then appropriate credits and/or adjustments shall be made to reflect
the expenses which Tenant may have previously paid in whole or in part or may
then be paying.
E. In the event Landlord shall obtain a refund for any Taxes or
Operating Expenses after payment by Tenant of any tax increase or expense
increase relative thereto, Landlord shall give Tenant an appropriate credit or
reimbursement which shall reflect any reasonable costs and expenses incurred by
Landlord in obtaining the refund.
F. If Tenant shall dispute in writing any specific item or items
included by Landlord in any statement furnished by Landlord to Tenant and such
dispute is not amicably settled between Landlord and Tenant within sixty (60)
days after statement therefor has been rendered, either party may, during the
sixty (60) days (upon written notice to the other party accompanied by a copy of
its letter of submission setting forth the items of dispute) refer such disputed
item or items to arbitration in accordance with the provisions of this Lease and
the decision rendered in such arbitration shall be conclusive and binding upon
Landlord and Tenant. The expenses involved in such determination shall be borne
by the party against whom a decision is rendered unless otherwise determined in
such arbitration. Landlord shall have the right, for a period of twelve (12)
months after the rendering of any statements (or for a longer period, if
reasonably required in order to ascertain the facts) to send corrected
statements to Tenant, and any rent required thereby shall be paid by Tenant
within thirty (30) days thereafter. If Tenant shall not so dispute any item or
items of any statement or corrected statement within thirty (30) days after such
statement or corrected statement has been rendered, Tenant shall be deemed to
have approved such statement or corrected statement.
G. If, with respect to Operating Expenses, as established in Article
4(a) hereof, the Building is not ninety-five (95%) percent occupied during the
establishment of the Base Year then the Base Expenses incurred with respect to
said Operating Expenses shall be adjusted so as to reflect ninety-five (95%)
percent occupancy. Similarly, if, during any Calendar Year or proportionate part
thereof subsequent to the Base Year the Building is less than ninety-five (95%)
percent occupied then the actual costs incurred for Operating Expenses shall be
increased during any such period to reflect ninety-five (95%) percent occupancy
so that at all times after the base Period the Operating Expenses shall be
actual costs, but in the event less than ninety-five (95%) percent of the
Building is occupied during all or part of the Calendar Year involved, the
Operating Costs shall not be less than that which would have been incurred had
ninety-five (95%) percent of the Building been occupied. The aforesaid
adjustment shall only be made with respect to those items that are in fact
affected by variations in occupancy levels. To the extent any Operating Expenses
or Utility and Energy Cost is separately billed or metered or paid for directly
by any Building tenant, to include but not be limited to Tenant, or for which
Landlord received reimbursements, said space shall be considered vacant space
for purposes of the aforesaid adjustment.
H. Landlord shall keep, for a period of sixty (60) days after
statements are rendered as provided in this Article 4, records in reasonable
detail of the items covered by such statements and shall permit Tenant, upon the
giving of reasonable prior notice, to examine and audit such records to verify
such statements, at reasonable times during business hours.
5. SECURITY. Tenant has deposited the Security with Landlord as security
for the faithful performance and observance by Tenant of the terms, provisions
and conditions of this Lease. It is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this Lease, including,
but not limited to, the payment of rent, Landlord may use, apply or retain the
whole or any part of the Security to the extent required for the payment of any
rents as to which Tenant is in default or for any sum which Landlord may expend
or may be required to expend by reason of Tenant's default in respect of any of
the terms, covenants and conditions of this Lease, including, but not limited
to, any damages or deficiency in the re-letting of the Premises, whether such
damages or deficiency accrued before or after summary proceedings or other
re-entry by Landlord. To the extent that Landlord, during the Term hereof, so
uses, applies or retains all or any part of the Security, Tenant shall, on
demand, promptly restore the Security to its original amount. The Security (less
any portions thereof used, applied as retained by Landlord in accordance with
the provisions of this Article 5) shall be returned to Tenant after the
termination date (or after such other date when the Term may expire or be
terminated, without the fault of Tenant, pursuant to the provisions of this
Lease or pursuant to law) and after delivery of entire possession of the
Premises to Landlord in accordance with the
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provisions of this Lease. In the event of a sale or leasing of the Land and
Building, Landlord shall have the right to transfer the Security to the vendee
or Tenant and Landlord shall thereupon be released by Tenant from all liability
for the return of such Security, and Tenant agrees to look to the new Landlord
solely for the return of said Security. It is agreed that the provisions hereof
shall apply to every such transfer or assignment made of the Security. Tenant
further covenants that it will not assign or encumber or attempt to assign or
encumber the Security and that neither Landlord nor its successors and assigns
shall be bound by any such assignment, encumbrance, attempted assignment or
attempted encumbrance.
6. COMPLETION AND POSSESSION.
A. Landlord shall exercise reasonable diligence and shall endeavor to
have the Premises ready for Tenant's possession on or before the commencement
date designated in the Preamble to this Lease, subject to delay by causes beyond
the reasonable control of Landlord or by the action or inaction of Tenant. If
the Premises are not ready for Tenant's possession within the meaning of this
Article 6 on such commencement date, then this Lease shall not be affected
thereby but, in such case, the commencement date shall be deemed to be postponed
until the date when the Premises are ready for Tenant's possession but the
Termination Date shall remain the same and Tenant shall not have any claim
against Landlord, and Landlord shall have no liability to Tenant, by reason of
any such postponement. The parties hereto agree that this Article 6 constitutes
an express provision as to the time at which Landlord may deliver possession of
the Premises to Tenant, and Tenant hereby waives any rights to rescind this
Lease which Tenant might otherwise have pursuant to any law now or hereafter in
force.
B. The Premises shall be conclusively deemed ready for Tenant's
possession as soon as (1) a certificate (temporary or final) permitting
occupancy of the Premises for the permitted use has been issued by the required
governmental body, and (2) the substantial completion of Landlord's Work, at
which time the rent reserved and covenanted to be paid by Tenant under this
Lease shall commence. The Premises shall not be deemed to be unready for
Tenant's possession or incomplete if (i) only minor or insubstantial details of
construction, decoration or mechanical adjustments remain to be done in the
Premises, (ii) the delay in the availability of the Premises for possession
shall be due to special work, changes, alterations or additions required or made
by Tenant in the Premises, (iii) caused in whole or in part by Tenant through
the delay of Tenant in submitting any plans and/or specifications, supplying
information, approving plans, specifications or estimates, giving authorizations
or otherwise, (iv) caused in whole or in part by delay and/or default of the
part of Tenant and/or its subtenant or subtenants, or (v) the telephone
installation in the Premises has not been completed.
C. Tenant, by entering into possession of the Premises, shall be
conclusively deemed to have agreed that Landlord up to the time of such
possession has performed all of its obligations hereunder and that the Premises
are in satisfactory condition as of the date of such possession.
D. In the event possession of the Premises (herein referred to as the
"possession date") is delivered to Tenant pursuant to this Article 6 on a day
other than the commencement date set forth in the Preamble to this Lease, then
the commencement date shall be deemed to be the same day as the possession date
but the Termination Date shall remain the same.
7. USE OF PREMISES.
A. The Premises shall be used and occupied only for the permitted use
described in the Preamble to this Lease and for no other use or purpose. Tenant
shall not use or permit the use of the Premises or any part thereof in any way
which would violate any certificate of occupancy for the Building or Premises,
or any of the covenants, agreements, terms, provisions and conditions of this
Lease or for any unlawful purposes or in any unlawful manner and Tenant shall
not suffer or permit the Premises or any part thereof to be used in any manner
or anything to be done therein or suffer or permit anything to be brought into
or kept in the Premises which, in the reasonable judgement of Landlord, shall in
any way impair or interfere with any of the Building services or the proper and
economical heating, cleaning, air conditioning or other servicing of the
Building or the Premises, or impair or interfere with the use of any of the
other areas of the Building by, or occasion discomfort, inconvenience or
annoyance to, any of the other tenants or occupants of the Building.
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B. If any governmental license or permit (other than the certificate of
occupancy required to be obtained by Landlord pursuant to Article 6 hereof)
shall be required for the proper and lawful conduct of Tenant's business or
other activity carried on in the Premises, and if the failure to secure such
license or permit would, in any way, affect Landlord, Tenant, at Tenant's
expense, shall duly procure and thereafter maintain such license or permit and
submit the same to inspection by Landlord. Tenant, at Tenant's expense, shall,
at all times, comply with the terms and conditions of each such license or
permit.
C. If by reason of failure of Tenant to comply with the provisions of
this Lease, including but not limited to the manner in which Tenant uses or
occupies the Premises, the insurance rates shall at the commencement of the Term
or at any time thereafter be higher than it otherwise would be, then Tenant
shall reimburse Landlord, as additional rent hereunder, for that part of all
insurance premiums thereafter paid or incurred by Landlord, which shall have
been charged because of such failure or use by Tenant, and Tenant shall make
such reimbursement upon the first day of the month following the billing to
Tenant of such additional cost by Landlord.
8. REPAIRS, REPLACEMENTS, ALTERATIONS.
A. Tenant shall take good care of the Demised Premises and the fixtures
and appurtenances therein. Tenant shall make, at its own expense, all repairs
and replacements required to keep the Demised Premises and fixtures in good
working order and condition except (1) structural repairs, (2) repairs required
to be made by Landlord pursuant to Article 13 hereof, and (3) such repairs as
may be required of Landlord in furnishing the services specified in Article 10
hereof. Landlord shall maintain, at its own expense, (which expense shall be
deemed an operating expense) all light bulbs, fluorescent tubes, and lighting
fixtures in the Demised Premises, including all component parts such as
starters, ballasts, and lenses or grills. All repairs made by Tenant shall be at
least equal in quality to the original work. Tenant shall not make any
installations, alterations, additions or improvements in or to the Demised
Premises without first obtaining Landlord's written consent thereto, and shall
make the same and all repairs only between such hours and by such contractors or
mechanics as may be supplied or approved by Landlord. All alterations,
decorations, installations, additions or improvements upon the Demised Premises
made by either party (including but not limited to paneling, partitions,
railings, and the like), except Tenant's movable fixtures and furniture, shall,
unless Landlord elects otherwise (by notice in writing to Tenant given not less
than twenty (20) days prior to the expiration or other termination of this Lease
or of any renewal or extension thereof) become the property of Landlord and
shall remain upon, and be surrendered with, said Premises, as a part thereof, at
the end of said Term or renewal Term, as the case may be. If Landlord shall
elect otherwise, then Tenant shall remove, at its expense, such alterations,
installations, additions or improvements made by Tenant upon the Premises as
Landlord shall specify, and Tenant shall repair and restore the Premises to its
original condition at Tenant's sole expense prior to the termination date.
B. If, because of any acts or omission of Tenant or anyone claiming
through or under Tenant, any mechanic's or other lien or order for the payment
of money shall be filed against the Demised Premises, the Land or the Building,
or against Landlord (whether or not such lien or order is valid or enforceable
as such), Tenant shall, at Tenant's own cost and expense, cause the same to be
canceled and discharged of record within ten (10) days after the date of filing
thereof, and shall also indemnify and save harmless Landlord from and against
any and all costs, expenses, claims, losses or damages, including reasonable
counsel fees, resulting therefrom or by reason thereof.
C. In the event Tenant makes any repairs, replacements, or alterations
in or to the Demised Premises, any contractors or subcontractors employed by
Tenant shall employ only such labor as will not result in jurisdictional
disputes with any labor unions or strikes against or involving the Landlord or
the Building. Tenant will inform Landlord, in writing, of the names of
contractors and/or subcontractors Tenant proposes using to do work on its behalf
within the Building at least seven (7) days prior to the beginning of any
permitted work. Landlord reserves the right to reject any and all of the
proposed contractors and/or subcontractors. In the event of any strike or
dispute, Tenant will cause any persons involved in such work to leave the
Demised Premises immediately after receipt of notice from Landlord demanding the
same.
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9. TENANT COVENANTS. Tenant covenants and agrees that Tenant will:
A. Faithfully observe and comply with the Rules and Regulations and
such additional reasonable Rules and Regulations as Landlord hereafter at any
time or from time to time may make and may communicate in writing to Tenant,
which, in the reasonable judgment of Landlord, shall be necessary or desirable
for the reputation, safety, care or appearance of the Land and Building, or the
preservation of good order therein, or the operation, maintenance or safekeeping
of the Land and Building, or the equipment thereof, or the comfort of tenants or
others in the Building; provided, however, that (I) in the case of any conflict,
the provisions of this Lease shall control, (ii) nothing contained in this Lease
shall be construed to impose upon Landlord any duty or obligation to enforce the
Rules and Regulations upon any other tenant, its servants, employees, agents,
visitors, invitees, subtenants or licensees.
B. Permit Landlord and any mortgagee of the Building or of the Building
and the Land or of the interest of Landlord therein and any Landlord under any
ground or underlying lease, and their representatives, to enter the Premises at
all reasonable hours, for the purposes of inspection, or of making repairs,
replacements or improvements in or to the Premises or the Building or equipment,
or of complying with any laws, orders, and requirements of governmental or other
authority or of exercising any right reserved to Landlord by this Lease
(including the right during the progress of any such repairs, replacements or
improvements or while performing work and furnishing materials in connection
with the compliance with any such laws, orders or requirements to keep and store
within the Premises all necessary materials, tools and equipment). Nothing
herein contained, however, shall be deemed or construed to impose upon Landlord
or any mortgagee of Landlord's interest in the Land and/or Building, any
obligation, responsibility or liability whatsoever for the care, supervision or
repair of the Premises or Building or any parts thereof other than as herein
provided.
C. Make no claim against Landlord for any injury or damage to Tenant or
to any other person for any damage to, or loss (by theft or otherwise) of, or
loss of use of, any property of Tenant or of any other person, unless caused by
the negligence of Landlord, its employees, agents or servants.
D. Not bring or keep in the Premises any property other than such as
might normally be brought upon or kept in the Premises as an incident to the
reasonable use of the Premises for the purposes herein specified.
E. Not violate, or permit the violation of, any reasonable conditions
imposed by Landlord's insurance carriers, and not do anything or permit anything
to be done, or keep anything or permit anything to be kept, in the Premises,
which would increase the insurance rates on the Building or the property
therein, or which would result in insurance companies of good standing refusing
to insure the Building or any such property in amounts and against risks as
reasonably determined by Landlord.
F. Permit Landlord, during business hours with the six (6) month period
next preceding the termination date with respect to all or any part of the
Premises, to show the same to prospective new tenants.
G. Quit and surrender the Premises at the expiration or earlier
termination of the Term broom clean and in as good condition as ordinary wear
and reasonable use will permit, except for repairs caused by fire or other
casualty, and, subject to Landlord's exercise of the election provided in
Article 8, with all installations, alterations, additions and improvements,
including partitions which may have been installed by either of the parties upon
the Premises (except that Tenant's removable fixtures and furniture shall remain
Tenant's property, and Tenant shall remove the same). Tenant's obligations to
observe and perform this covenant shall survive the said expiration or earlier
termination of this Lease.
H. At any time and from time to time upon not less than ten (10) days
prior notice by Landlord to Tenant, execute, acknowledge and deliver to
Landlord, or to anyone Landlord shall designate, a statement of Tenant (or if
Tenant is a corporation, an appropriate officer of Tenant) in writing certifying
that this Lease is unmodified and in full force and effect except as modified
and stating the modifications), and the dates to which rent has been paid in
advance, if any, and stating whether or not, to the best knowledge of the signer
of such certificate Landlord is in default in performance of any covenant,
agreement, term, provision or condition
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contained in this Lease and, if so, specifying each such default of which the
signer may have knowledge; it being intended that any such statement delivered
pursuant hereto may be relied upon by any Landlord under any ground or
underlying lease, or any Tenant or mortgagee, or any prospective purchaser,
Tenant, mortgagee, or assignee of any mortgage, of the Building and/or the Land
or of Landlord's interest therein.
I. Indemnify and save harmless Landlord against and from any and all
claims by or on behalf of any person or persons, firm or firms, corporations,
arising from the conduct or management of or from any work or thing whatsoever
done by or on behalf of Tenant in or about the Demised Premises as well as from
the use and occupancy of the Premises by Tenant, and further indemnify and save
Landlord harmless against and from any and all claims arising from breach or
default on the part of Tenant in the performance of any covenant or agreement on
the part of Tenant to be performed pursuant to the terms of this Lease, or
arising from any act or negligence of Tenant, or any of its agents, contractors,
servants, employees or licensees, and from and against all costs, counsel fees,
expenses and liabilities incurred in or about any such claim or action or
proceeding brought thereon; and in case any action or proceeding be brought
against Landlord by reason of any such claim, Tenant, upon notice from Landlord,
covenants to resist or defend at Tenant's expense such action or proceeding by
counsel reasonably satisfactory to Landlord.
J. Not record this Lease in the County Clerk's Office without the prior
written consent of Landlord. At the request of Landlord, Tenant will execute a
memorandum of lease for recording purposes containing references to such
provisions of this Lease as Landlord, in its sole discretion, shall deem
necessary.
K. The recording of this Lease or a memorandum thereof in violation of
J. above by Tenant without Landlord's prior written consent shall constitute a
default hereunder.
L. Indemnify, defend and hold Landlord harmless from and against any
and all liability, claims, suits, demands, judgments, costs, interest and
expenses (including but not limited to, counsel fees incurred in the defense of
any action or proceeding) to which Landlord may be subject or suffer by reason
of Tenant's having had dealings with respect to the Premises or this Lease with
any real estate agent or broker, other than Broker named herein.
M. During the Term hereof, maintain and deliver to Landlord public
liability and property damage insurance policies (or certificates thereof) with
respect to the Premises, in which Landlord, Tenant and Landlord's mortgagee
and/or ground Landlord, if required, shall be named as additional insureds, for
a minimum of One Million ($1,000,000) Dollars combined single limit for coverage
purposes only, with no obligation on the part of Landlord, Landlord's mortgagee
and/or ground Landlord to pay premiums. Such policy or policies shall be in such
form and with such insurance companies as shall be reasonably satisfactory to
Landlord with provision for at least fifteen (15) days notice to Landlord of
cancellation and shall name Landlord as additional insured. At least ten (10)
days before the expiration of any such policy, Tenant shall supply Landlord with
a substitute therefor with evidence of payment of the premiums thereof. If such
premiums shall not be so paid and/or the policies therefor shall not be so
delivered, then Landlord may procure and/or pay for the same and the amounts so
paid by Landlord shall be added to the installment of rent becoming due on the
first of the next succeeding month and shall be collected as additional rent
hereunder.
10. LANDLORD'S SERVICES. Provided Tenant is not in default under any of the
covenants, terms, conditions or provisions of this Lease beyond the applicable
grace period provided herein, Landlord shall furnish the following services:
A. Air cooling during "Business Hours" on "Business Days" (as those
terms are hereinafter defined) when, in the reasonable judgment of Landlord, it
maybe required for the comfortable occupancy of the Demised Premises. At other
times during Business Days and similar hours, Landlord shall provide ventilation
for the Demised Premises. Tenant at all times agrees to cooperate fully with
Landlord and to abide by all regulations and requirements which Landlord may
reasonably prescribe for the proper functioning and protection of its heating,
air conditioning and ventilation systems. Landlord shall have free access to any
and all mechanical installations of Landlord, including but not limited to air
conditioning, fans ventilating and machine rooms and electrical closets; and
Tenant agrees that there shall be no construction of partitions or other
obstructions which might interfere with Landlord's full access thereto, or
8
interfere with the moving of Landlord's equipment to and from the enclosures
containing said installations. Tenant agrees that Tenant, its agents, employees
or contractors shall not at any time enter the said enclosures or tamper with,
adjust, touch or otherwise in any manner affect Landlord's said mechanical
installations.
B. Automatic operator less elevator.
C. Heat, when and as required by law, on Business Days during Business
Hours.
D. Janitorial Services for the Demised Premises. Tenant shall pay to
Landlord the cost of removal from the Building of any of Tenant's refuse and
rubbish which exceeds the refuse and rubbish usually attendant upon the use of
such Premises as offices. Bills for the same shall be rendered by Landlord to
Tenant and shall be due and payable when rendered, and the amount of such bills
shall be deemed to be, and be paid, as additional rent. Alternatively, Tenant
shall use Landlord's contractors or employees, at the option of the Landlord,
for the removal of such excess rubbish and refuse and Tenant agrees to pay
reasonable charges therefor.
E. Cold and hot water at standard building temperatures to all
lavatories, public or private, for ordinary drinking, cleaning, sanitary and
lavatory purposes.
F. 1. Electric current, with the understanding, however, that the Base
Rent described in the Preamble to this Lease does not include the cost of
electricity consumed by Tenant in the Demised Premises (except for the cost of
electricity consumed for heating and cooling which shall be paid for by
Landlord) and Tenant shall, in addition to such Base Rent, be required to pay
the costs of the electric current ("electric energy charge") set forth in
Preamble (8) together with its Base Rent as a condition for the furnishing by
Landlord of electric current to the Demised Premises. Such charges shall include
the costs of supplying electricity for (a) all lighting fixtures in the Demised
Premises, and (b) all receptacles in the Demised Premises. The electric energy
charge shall be fixed for the entire Term except that Landlord, at Landlord's
sole option, may elect at any time during the lease Term to have an electric
survey completed in which event the electric energy charge shall be calculated
in accordance with subparagraph 10. F 2.
2. Landlord shall submeter Suite 505 for Tenant Electric use via
Emon meter or equal. The cost of such submeter shall be at Landlord's expense.
Landlord, or its consultant, shall read said meter and shall charge Tenant for
its actual usage at Landlord's actual cost based on Tenant's consumption and
demand at the average demand cost and kilowatt hour cost for the entire
building. Such charge shall be at a seven and one half percent (71/2%),
administrative markup. If Landlord chooses, Tenant shall pay on a monthly
estimated charge with periodic reconciliation based on actual usage.
3. Landlord may cause a survey to be made of Suite 690 by a
reputable independent electrical engineer or similar agency of the estimated use
of electric energy (other than for heat and air conditioning) to the Suite 690,
and such survey shall compute the cost thereof for the quantity so determined at
prevailing retail rates. Tenant shall pay Landlord the electric energy charge,
as so calculated, on a monthly basis, as the electric energy charge, together
with its payment of Base Rent.
Until such time as Landlord shall complete the aforedescribed survey
and determine the electric energy charge, Tenant shall pay to Landlord, each and
every month, the sum set forth in Preamble (8). Landlord shall have the right,
at any time during the Term of this Lease, to cause Suite 690 to be resurveyed.
In the event that such resurvey shall indicate increased electrical consumption
by Tenant to Landlord for Suite 690, there shall be an adjustment in the amount
paid by Tenant to Landlord for Tenant's electrical energy charge in accordance
with the survey.
Landlord shall submit to Tenant the results of any electrical survey
and the same shall be deemed binding upon Tenant unless Tenant shall object to
same within thirty (30) days of the date that Landlord shall furnish Tenant with
the results of the survey. In the event that Landlord and Tenant cannot agree
upon the results of a survey the same shall be submitted to arbitration by an
independent expert appointed jointly by a representative of Tenant and Landlord.
However, until such time as the arbitration shall have been concluded, the
results of
9
Landlord's survey shall be utilized for the purposes of determining Tenant's
electrical consumption with an appropriate adjustment to be made based upon the
results of the arbitration.
If the public utility rate schedule for the supply of electric
current to the Building shall be increased during the Term of this Lease, the
additional rent payable pursuant to Section 15.02 hereof shall be equitably
adjusted to reflect the resulting increase in Landlord's cost of furnishing
electric service to Suite 690 effective as of the date of any increase.
4. Tenant shall make no substantial alterations or additions to the
electric equipment and/or appliances.
5. Landlord shall not in any way be responsible or liable to Tenant
at any time for any loss, damage or expense resulting from any change in the
quantity or character of the electric service or for its being no longer
suitable for Tenant's requirements or from any cessation or interruption of the
supply or current, nor shall any such loss, damage or expense, or non-supply of
electric service or current in any way affect the tenancy or in any way relieve
Tenant of any obligation under the terms of this Lease.
6. Tenant shall make no changes, alterations, additions,
substitutions ("changes") to any risers, conduits, meters, panel boxes, switch
gear, wiring or any other part of the electric service without the express prior
written consent of Landlord. Any changes requested by Tenant shall be sent in
writing to Landlord, and if, in the sole judgment of Landlord, such changes will
not cause or create a dangerous or hazardous condition or damage or injury to
the Building, or entail excessive or unreasonable alterations or repairs, or
interfere with or disturb other tenants or occupants and/or the service then or
thereafter to be supplied to tenants or occupants, Landlord will, at the sole
cost and expense of Tenant, make such changes. Tenant covenants and agrees to
pay Landlord for such costs and expenses, as additional rent hereunder, upon the
rendition of a xxxx indicating the amount due therefor.
G. Electrical lighting, cleaning and maintenance of the common areas of
the Building and Land.
H. 1. Tenant acknowledges that Landlord is required to furnish
electricity, elevators, water, air conditioning, heat, ventilation, building
maintenance and other facilities and services (herein collectively referred to
as "building services") only during Business Hours, Landlord shall provide
building services to Tenant beyond business hours provided that (i) Tenant pays
to Landlord, as additional rent, a special charge (herein referred to as "extra
hours charge"), (ii) Tenant's request for the same shall be received by Landlord
prior to 2:00 P.M. on the day on which extra hours service is required after
Business Hours on weekdays, prior to 2:00 P.M. on the day preceding any required
extra hours service before Business Hours on weekdays, and prior to 2:00 P.M. of
the prior Business Day if extra hours service is required before or after
Business Hours on a Saturday, Sunday or holiday.
2. The extra hours charge shall be at a rate to be determined.
I. The term "Business Days", as used in this Lease, shall mean Monday
to Friday, inclusive, and Saturday from 8:00 A.M. to 1:00 P.M. excluding all
days observed by the State or Federal governments (herein called "holidays")
Tenant shall, however, have access to the Premises 24 hours a day, 7 days a
week, but Landlord shall not be required to furnish building services during
other than Business Hours on Business Days unless Tenant has requested the same
in accordance with sub-section (H)(I) above.
J. The term "Business Hours", as used in this Lease, shall mean all
times between 8:00 A.M. and 6:00 P.M. on Monday to Friday, inclusive, excluding
holidays, and Saturday from 8:00 A.M. to 1:00 P.M., excluding holidays.
K. Landlord reserves the right, without being liable to Tenant and
without abatement or diminution in rent, to suspend, delay or stop any of the
building services to be furnished and provided by Landlord under this Lease
whenever necessary by reason of fire, storm, explosion, strike, lockout, labor
dispute, casualty or accident, lack or failure of sources of supply of labor or
fuel (or inability in the exercise of reasonable diligence to obtain any
required fuel), acts of God or the public enemy, riots, interferences by civil
or military authorities in compliance with the laws of the United States of
America or with the laws, orders or regulations
10
of any governmental authority, or by reason of any other cause beyond Landlord's
control, or for emergency, or for inspection, cleaning, repairs, replacements,
alterations, improvements or renewals which in Landlord's reasonable judgment
are desirable or necessary to be made. Landlord agrees, however, to use
commercially reasonable efforts and to act with all due diligence to restore or
have restored any services which may be suspended, delayed or stopped pursuant
to this subparagraph K. If Landlord fails to take such measures as may be
reasonable under the circumstances to restore the curtailed service, Tenant's
remedies shall be limited to an equitable abatement of Base Rent and Additional
Rent for the duration of the curtailment beyond said reasonable period, to the
extent such Premises are not reasonably usable by Tenant or to a claim of
constructive eviction. If the Premises are rendered untenantable in whole or in
part, for a period of ten (10) consecutive business days, by the making of
repairs, replacements or additions, other than those made with Tenant's consent
or caused by misuse or neglect by Tenant, or Tenant's agents, servants, visitors
or licensees, there shall be a proportionate abatement of Term Basic Rent and
Additional Rent from and after said tenth (10th) consecutive business day and
continuing for the period of such untenantability. In no event shall Tenant be
entitled to claim a constructive eviction from the Premises unless Tenant shall
first have notified Landlord in writing of the condition or conditions giving
rise thereto, and, if the complaints be justified, unless Landlord shall have
failed, within a reasonable time after receipt of such notice, to remedy, or
commence and proceed with due diligence to remedy, such condition or conditions,
all subject to force majeure or by reason of any other cause beyond Landlord's
control. The remedies provided for in this Section 11 shall be Tenant's sole
remedies for any interruption of service or use as described above.
11. ASSIGNMENT, SUBLETTING, ETC.
A. Tenant, for itself, its heirs, executors, administrators, successors
and assigns, expressly covenants that it shall not assign, mortgage or encumber
this Lease, nor underlet, or suffer or permit the Demised Premises or arty part
thereof to be used by others, without the prior written consent of Landlord in
each instance. Similarly, the sale or transfer of membership interests in a
limited liability company or of partnership interests in a partnership when such
sale or transfers change control of the entity shall also be deemed an
assignment of this Lease. If this Lease be assigned, or if the Demised Premises
or any part thereof be underlet or occupied by anyone other than Tenant,
Landlord may, after default by Tenant, collect rent from the assignee,
undertenant or occupant and apply the net amount collected to the rent herein
reserved, but no such assignment, underletting, occupancy or collection shall be
deemed a waiver of this covenant, or the acceptance of the assignee, undertenant
or occupant as Tenant, or a release of Tenant from the further performance by
Tenant of all covenants on the part of Tenant herein contained. The consent by
Landlord to an assignment or underletting shall not in any wise be construed to
relieve Tenant from obtaining the express consent in writing of Landlord to any
further assignment or underletting, nor shall the same release or discharge
Tenant from any liability, past, present or future, under this Lease, and Tenant
shall continue fully liable in all respects hereunder.
B. If Tenant intends to and has entered into a proposed sublease of all
or a portion of the Premises or assignment of this Lease, such sublease or
assignment shall be subject to the provisions of this Article 11 and Tenant
shall send Landlord a written notice ("Tenant's Notice of Intention") advising
Landlord of Tenant's intention to finalize the sublease or assignment in
accordance with the terms of that instrument and an executed copy of the
proposed sublease or assignment. Landlord shall have a period of fifteen (15)
days after receipt from Tenant of such Notice to elect to terminate this Lease
and the unexpired Term hereof ("recapture") or to advise Tenant that Landlord
consents or refuses to consent to such proposed sublease or assignment. In the
event Landlord elects to recapture the Demised Premises, Tenant shall vacate and
surrender possession of the Demised Premises by not later than the date set
forth in Tenant's Notice of Intention or the date upon which the proposed
sublease or assignment (as the case may be) was intended to become effective,
which date shall not be prior to one hundred twenty (120) nor later than one
hundred and eighty (180) days after sending of Tenant's Notice of Intention
("termination date"). Upon Tenant's vacating and surrendering possession of the
Demised Premises as of the aforesaid termination date this lease will terminate
as if said date were the termination date set forth in the Preamble to this
Lease.
C. Landlord agrees that if it does not elect to recapture the Demised
Premises in accordance with subparagraph B, Landlord shall not unreasonably
withhold its consent to the proposed sublease or assignment, provided, however,
that Landlord shall not be deemed
11
unreasonable if it refuses to consent to any proposed sublease or an assignment
of the Lease to a tenant, subtenant or other occupant of the Building (or to a
subsidiary or affiliate), or if, in the reasonable judgment of Landlord, the
business of such proposed subtenant or assignee is not compatible with the type
of occupancy of the Building, or such business will create material increased
use of the common facilities of the Building or conflict with the provisions of
any other lease or agreement affecting the Building.
D. It is expressly agreed that Landlord shall have the right to
negotiate directly with any proposed subtenant or assignee, whether the
identification thereof shall have been disclosed to Landlord by Tenant or
others, and Landlord shall have the right to enter into a direct lease with any
proposed subtenant, its parent, affiliate or subsidiary, either with respect to
the sublet area or any other Premises or space in the Building for such Term and
upon such rentals and other provisions or agreements as Landlord elects,
including the same terms and conditions set forth in the proposed sublease or
assignment submitted to Landlord with Tenant's Notice of Intention.
E. Tenant, without Landlord's prior written consent thereto and without
being subject to the provisions of Paragraph B of this Article 11, shall have
the right to assign this Lease or sublet the Premises to, or allow the Premises
to be otherwise occupied by, any parent, subsidiary, affiliate, group or
division of Tenant, provided, however, that no such assignment or subletting
shall be deemed to relieve it of liability for the full and faithful performance
of all the terms and conditions on its part to be performed under this Lease
unless said assignee's net worth (excluding good will) exceeds Tenant's
remaining rental obligation for Base Rent by ten (10) times or more, in which
event Tenant shall be released of liability hereunder on the effective date of
the assignment. For example, if Tenant's remaining Base Rent obligation is
$160,000.00, Tenant will be released from liability if, on the effective date of
the assignment, assignee has a net worth (excluding good will) in excess of
$1,600,000.00.
F. In the event Tenant assigns this Lease, as permitted by this Article
11, such assignment shall not be deemed effective or binding on Landlord unless
there is delivered to Landlord within five (5) days of the execution of such
assignment, a duplicate, executed copy of such assignment and a duplicate,
executed copy of an agreement on the part of the assignee, satisfactory to
Landlord, to the effect that the assignee agrees to and shall assume all of the
obligations on the part of Tenant to be kept, observed and performed pursuant to
this Lease. Consent by Landlord to any assignment or sublease shall not, nor
shall it be deemed to, relieve or release the assigning Tenant from liability
for the full and faithful performance of all the terms, covenants, provisions
and conditions required to be performed under this Lease by "Tenant" for the
remainder of the Term. No oral or verbal assignment, or sublease or receipt by
Landlord of any payment of rental or other amounts, or acceptance by Landlord of
performance of Tenant's obligations hereunder by any purported assignee or
subTenant, shall be deemed a waiver of any obligation of Tenant hereunder.
12. LANDLORD'S RIGHTS. Without abatement or diminution in rent, Landlord
reserves and shall have the following additional rights:
A. To change the street address and/or the name of the Building and/or
the arrangement and/or location of entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets, or other public parts of the Building
without liability to Tenant, provided that Tenant's use and enjoyment of the
Premises are not adversely affected thereby.
B. To approve in writing all signs and all sources furnishing sign
painting and lettering, drinking water, towels and toilet supplies or other like
services used in the Demised Premises and to approve all sources furnishing
cleaning services, painting, repairing and maintenance, which approval shall not
be unreasonably withheld or delayed.
C. To enter the Demised Premises at all reasonable times upon
reasonable notice (1) for the making of such inspections, alterations,
improvements and repairs, as Landlord may deem reasonably necessary or
desirable, (2) for any purpose whatsoever relating to the safety, protection or
preservation of the Demised Premises or of the Building, and (3) to take
material into and upon said Premises. If a representative of Tenant shall not be
personally present to open and permit an entry into the Premises at any time
when an entry shall be reasonably necessary or permissible hereunder, Landlord
or its agents may enter by a master key or may, in case of emergency, forcibly
enter the same without rendering Landlord or its agents liable
12
therefor (provided that, during such entry, reasonable care shall be accorded to
avoid damage or injury to Tenant's property), and without in any manner
affecting the obligations and covenants of this Lease. Without incurring any
liability to Tenant, Landlord may permit access to the Premises and open the
same, whether or not Tenant shall be present, upon demand of any receiver,
trustee, assignee for the benefit of creditors, sheriff, marshal or court
officer entitled to, or reasonably purporting to be entitled to, such access for
the purpose of taking possession of, or removing, Tenant's property or for any
other lawful purpose (but this provision and any action by Landlord hereunder
shall not be deemed a recognition by Landlord that the person or official making
such demand has any right or interest in or to this Lease, or in or to the
Premises), or upon demand of any representative of the fire, police, building,
sanitation or other department of the city, state or federal governments.
D. At any time or times Landlord, either voluntarily or pursuant to
governmental requirement, may, at Landlord's own expense, make repairs,
alterations or improvements in or to the Building or any part thereof and during
alterations, may close entrances, doors, windows, corridors, elevators or other
facilities, provided that such acts shall not unreasonably interfere with
Tenant's use and occupancy of the Premises.
E. To erect, use and maintain pipes, ducts, shafts and conduits in and
through the Demised Premises, provided same do not unreasonably interfere with
Tenant's use and occupancy of the Demised Premises.
F. To charge to Tenant any expense, as additional rent, including
overtime cost, incurred by Landlord in the event that repairs, alterations,
decorating or other work in the Premises are made or done after ordinary
business hours at Tenant's request.
G. If during the last six months of the Term or of a renewal Term,
Tenant shall have removed all or substantially all of Tenant's property
therefrom, Landlord may enter and alter, renovate, and redecorate the Premises
without reduction or abatement of rent or incurring any liability to Tenant for
compensation.
H. To grant to anyone the exclusive right to conduct any particular
business or undertaking in the Building, provided that Tenant's permitted use of
the Premises shall not be adversely affected thereby.
Landlord may exercise any or all of the foregoing rights thereby
reserved to Landlord without being deemed guilty of an eviction, actual or
constructive, or disturbance or interruption of Tenant's use or possession and
without limitation or abatement of rent or other compensation and such acts
shall have no effect on this Lease.
13. DAMAGE BY FIRE, ETC.
A. If the entire Premises or any part thereof shall be damaged by fire
or other casualty and Tenant shall give prompt written notice thereof to
Landlord and adequate insurance proceeds shall be available to Landlord,
Landlord shall proceed with reasonable diligence to repair or cause to be
repaired such damage, and if the Premises, or any part thereof, shall be
rendered untenantable by reason of such damage, the rent hereunder, or an amount
thereof apportioned according to the area of the Premises so rendered
untenantable if less than the entire Premises shall be abated for the period
from the date of such damage to the date when the damage shall have been
repaired as aforesaid; provided, however, that if Landlord or mortgagee of the
Building and the Land shall be unable to collect the insurance proceeds
(including rent insurance proceeds) applicable to such damage because of some
action or inaction on the part of Tenant, or the employees, licensees or
invitees of Tenant, the cost of repairing such damage shall be paid by Tenant
and there shall be no abatement of rent. Landlord shall not be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting in any way from such damage or the repair thereof. Tenant understands
that Landlord will not carry insurance of any kind on Tenant's furniture or
furnishings or on any fixtures, equipment, improvements, installations or
appurtenances made or removable by Tenant as provided in this Lease, and that
Landlord shall not be obligated to repair any damage thereto or replace the
same.
B. In case the Building shall be so damaged by such fire or other
casualty that substantial alteration or reconstruction of the Building or the
Premises shall, in Landlord's reasonable opinion, be required (whether or not
the Premises shall have been damaged by such
13
fire or other casualty) or if such damage occurs during the last twelve (12)
months of the Term, then Landlord may, at its option, terminate this Lease and
the Term and estate hereby granted by notifying Tenant in writing of such
termination within thirty (30) days after the date of such damage. In the event
that such a notice of termination shall be given, this Lease and the Term and
estate hereby granted shall expire as of the date of such termination with the
same effect as if that were the date hereinbefore set for the expiration of the
Term of this Lease, and the rent payable hereunder shall be apportioned as of
such date. In the event of such casualty, Tenant shall have the right to
terminate this Lease if Landlord is unable to provide reasonable assurances that
the Premises will be restored within one hundred and eighty (180) days.
C. Each of Landlord and Tenant hereby releases the other from any and
all liability or responsibility (to the other or anyone claiming through or
under it by way of subrogation or otherwise) under fire and extended coverage or
supplementary contract casualties or any other insurance coverages obtained, if
such fire or other casualty or other insured event shall have been caused by the
fault or negligence of the other party or anyone for whom such party may be
responsible; provided, however, that this release shall be applicable and in
force and effect only with respect to loss or damage occurring during such time
as the releasor's policies shall contain a clause or endorsement to the effect
that any such release shall not adversely affect or impair such policies or
prejudice the right of the releasor to recover thereunder. Each of Landlord and
Tenant agrees that its policies will include such a clause or endorsement so
long as the same shall be obtainable without extra cost, or if such cost shall
be charged therefor, so long as the other party pays such extra cost.
14. CONDEMNATION.
A. In the event that any part of the Premises or the whole of the Land
and Building shall be lawfully condemned or taken in any manner for any public
or quasi-public use, this Lease, and the Term and estate hereby granted shall
forthwith cease and terminate as of the date of vesting of title. In the event
that a part of the Land or Building shall be so condemned or taken, then
Landlord (whether or not the Premises be affected) may, at Landlord's option,
terminate this Lease and the Term and estate hereby granted as of the date of
such vesting of title by notifying Tenant in writing of such Termination within
thirty (30) days following the date on which Landlord shall have received notice
of vesting of title. If Landlord does not so elect to terminate this Lease, as
aforesaid, this Lease shall be and remain unaffected by such condemnation or
taking, and the rent payable hereunder shall not be abated. In the event that
only apart of the Building shall be so condemned or taken and this Lease and the
Term and estate hereby granted are not terminated as hereinbefore provided,
Landlord will, with reasonable diligence and at its expense, restore the
remaining portion of the Building as nearly as practicable to the same condition
as it was in prior to such condemnation or taking.
B. In the event of their termination in any of the cases hereinbefore
provided, this Lease and the Term and estate hereby granted shall expire as of
the date of such termination with the same effect as if that were the
termination date of this Lease, and the rent payable hereunder shall be
apportioned as of such date.
C. In the event of any condemnation or taking hereinbefore mentioned of
all or a part of the Land and Building (including the Premises), Landlord (or
the mortgagee of any interest in the Land and/or the Building, if pursuant to
the terms of the mortgage, or if pursuant to law, mortgagee is entitled to
receive all or a portion of the condemnation award), shall be entitled to
receive the entire aware in the condemnation proceeding, including any and all
right, title and interest of Tenant now or hereafter arising in or to any such
award or any part thereof. Tenant shall not be entitled to receive any part of
such award from Landlord, the mortgagee, or the condemning authority, except
that Tenant shall have the right to assert a claim against the condemning
authority for the value of movable fixtures and equipment installed and paid for
by Tenant and for relocation expenses, provided that the payment of any award to
Tenant does not diminish the amount which would otherwise be paid to Landlord or
the mortgagee by that condemning authority.
D. It is expressly understood and agreed that the provisions of this
Article 14 shall not be applicable to any condemnation or taking for
governmental occupancy for a limited period.
14
15. COMPLIANCE WITH LAWS. Tenant, at Tenant's expense, shall comply with
all laws and ordinances, and all rules, orders and regulations of all
governmental authorities and of all insurance bodies, at any time duly issued or
in force, applicable to the Premises or any part thereof or to Tenant's use
thereof, except that Tenant shall not hereby be under any obligation to comply
with any law, ordinance, order or regulation requiring any structural alteration
of or in connection with the Premises, unless such alteration is required by
reason of a condition which has been created by, or at the instance of, Tenant,
or is attributable to the use or manner of use to which Tenant puts the
Premises, or is required by reason of a breach of any of Tenant's covenants and
agreements hereunder. Where any structural alteration of or in connection with
the Premises is required by any such law, ordinance, rule, order or regulation,
and, by reason of the express exception hereinabove contained, Tenant is not
under any obligation to make such alteration, then Landlord shall have the
option of making such alteration and paying the cost thereof, or of terminating
this Lease and the Term and estate hereby granted by giving to Tenant not less
than thirty (30) days' prior written notice of such termination.
16. DAMAGE TO PROPERTY.
A. Tenant shall give to Landlord prompt written notice of any damage
to, or defective condition in, any part or appurtenance of the Building's
sanitary, electrical, heating, air conditioning or other similar or dissimilar
systems serving, located in, or passing through, the Premises, and the damage or
defective condition shall be remedied by Landlord with reasonable diligence, but
if such damage or defective condition was caused by, or resulted from the use
by, Tenant or by the employees, licensees or invitees of Tenant, the cost of the
remedy thereof shall be paid by Tenant, as additional rent, upon the rendition
of a xxxx indicating the amount due therefor.
B. All personal property belonging to Tenant, its servants, employees,
suppliers, consignors, customers, licensees, located in or about the Building or
Demised Premises shall be there at sole risk of Tenant and neither Landlord nor
Landlord's agents shall be liable for the theft, loss or misappropriation
thereof nor for any damage or injury thereto, nor shall Landlord be considered
the voluntary or involuntary bailee of such personal property, nor for damage or
injury to Tenant or any of its officers, agents or employees or to any other
persons or to any other property caused by fire, explosion, water, rain, snow,
frost, steam, gas, electricity, heat or cold, dampness, falling plaster, sewers
or sewage odors, noise, leaks from any part of said Building or roof, the
bursting or leaking of pipes, plumbing, electrical wiring and equipment and
fixtures of all kinds, or by any act or neglect of other tenants or occupants of
the Building or of any other person.
C. All damage or injury to the Premises or to its fixtures,
appurtenances and equipment or to the Building, its fixtures, appurtenances or
equipment caused by Tenant's moving property in or out of the Building or by
installation or removal of furniture, fixtures or other property or from any
cause of any kind or nature whatsoever of which Tenant, its servants, employees,
agents, visitors or licensees shall be the cause, shall be repaired, restored
and replaced promptly by Tenant at its sole cost and expense, in quality and
class at least equal to the original work or installations, and to the
satisfaction of Landlord. If Tenant fails to make such repairs, restorations or
replacements, the same may be made by Landlord for the account of Tenant and the
cost thereof shall be collectible as additional rent or otherwise after
rendition of a xxxx or statement and payable simultaneously with the next
monthly installment of rent due and payable hereunder.
17. SUBORDINATION.
A. This Lease is subject and subordinate in all respects to all ground
leases and/or underlying leases now or hereafter covering the Land and to all
mortgages which may now or hereafter be placed on or affect such leases and/or
the Land, Buildings, improvements, or any part thereof and/or Landlord's
interest therein, and to each advance made and/or hereafter to be made under any
such mortgages and to all renewals, modifications, consolidations, replacements
and extensions thereof and all substitutions of and for such ground leases
and/or underlying leases and/or mortgages. This subparagraph (a) shall be
self-operative and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall execute and deliver promptly
any instrument that Landlord and/or any mortgagee and/or the Landlord under any
ground or underlying lease and/or their respective successors in interest may
request.
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B. Tenant agrees, at the election and upon demand of any owner of the
Land, or of any mortgagee in possession thereof, or of any holder of a leasehold
hereafter affecting the Land, to attorn, from time to time, to any such owner,
mortgagee or holder, upon the terms and conditions set forth herein for the
remainder of the Term of this Lease. The foregoing provisions shall enure to the
benefit of any such owner, mortgagee or holder, shall apply to the tenancy of
Tenant notwithstanding that this Lease may terminate upon the termination of any
such leasehold estate, and shall be self-operative upon any such demand, without
requiring any further instrument to give effect to said provisions. Tenant,
however, upon demand of any such owner, mortgagee or holder, agrees to execute,
from time to time, an instrument in confirmation of the foregoing provisions,
satisfactory to owner, mortgagee or holder, in which Tenant shall acknowledge
such attornment and shall set forth herein and shall apply for the remainder of
the Term of this Lease. Nothing contained in this subparagraph B shall be
construed to impair any right, privilege or option of any such owner, mortgagee
or holder.
C. Tenant agrees that, in the event that the interest of the Landlord
becomes vested in the holder of any mortgage or in any ground Landlord, to
anyone claiming by, through or under either of them, then such holder shall not
be:
1. liable for any act or omission of any prior landlord (including
Landlord herein); or
2. subject to any offsets or defenses which Tenant may have against
any prior landlord (including Landlord herein); or
3. bound by any rent which Tenant may have paid for more than the
current month to any landlord (including Landlord herein).
D. No alteration or modification of any provision hereof, nor any
cancellation or surrender of this Lease shall be valid or binding as against any
holder of any mortgage unless the same shall have been approved in writing by
such holder, or unless specific provision therefor is set forth in this Lease.
E. Tenant agrees that, upon the request of Landlord, Tenant will
execute, acknowledge and deliver such document or instrument as may be requested
by the holder of any mortgage on the Landlord's interest in the Land and/or the
Building confirming or agreeing that this Lease is assigned to such mortgagee as
collateral security for such mortgage and agreeing to abide by such assignment,
provided that a copy of such assignment has in fact been delivered to Tenant.
18. NOTICES. Any notice, consent, approval, request or demand hereunder by
either party to the other party shall be in writing and shall be deemed to have
been duly given if sent by registered or certified mail with return receipt
requested, postage prepaid, addressed to Landlord at Landlord's address and to
Tenant at Tenant's address, or of the address of such other party for such
notices, consents, approvals, requests or demands shall have been duly changed
as hereinafter provided, if mailed, as aforesaid, to such other party at such
changed address. Either party may at any time change the address for such
notices, consents, approvals, requests or demands by setting forth the changed
address. If the term "Tenant" as used in this Lease refers to more than one
person, any notice, consent, approval, request or demand given as aforesaid to
any one of such persons shall be deemed to have been duly given to Tenant. All
bills, statements and building communications from Landlord to Tenant maybe
served by ordinary mail or otherwise delivered to Tenant or left at the
Premises. For the purpose hereof, the term "building communications" shall be
deemed to by any notices not specifically referred to in this Lease which relate
to the operation or maintenance of the Building, including amendments to the
Rules and Regulations, and is given to all or substantially all of the tenants
in the Building. The time of rendition of any xxxx, statement or building
communication and of the giving of any other notice, consent, approval, request
or demand shall be deemed to be the time when the same is delivered to Tenant,
left at the Premises, or deposited in the U.S. Postal Service facility, postage
prepaid, as the case may be.
19. CONDITIONS OF LIMITATION. This Lease and the Term and estate hereby
granted are subject to the limitation that if prior to or during the Term of
this Lease:
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A. Tenant shall make an assignment of its property for the benefit of
creditors or shall file a voluntary petition under any bankruptcy or insolvency
law, or an involuntary petition under any bankruptcy or insolvency law shall be
filed against Tenant and such involuntary petition is not dismissed within
ninety (90) days after the filing thereof,
B. A petition is filed by or against Tenant under the reorganization
provisions of the United State Bankruptcy Act or under the provisions of any law
of like import, unless such petition under said reorganization provisions be one
filed against Tenant which is dismissed within ninety (90) days after its
filing,
C. Tenant shall file a petition under the arrangement provisions of the
United States Bankruptcy Act or under the provisions of any law of like import,
D. A permanent receiver, trustee or liquidator shall be appointed for
Tenant or of or for the property of Tenant, and such receiver, trustee or
liquidator shall have not been discharged within ninety (90) days from the date
of his appointment,
E. Tenant shall default in the payment of Base Rent payable hereunder
by Tenant to Landlord on any date upon which the same becomes due, and such
default shall continue for ten (10) days,
F. Tenant shall default in the due keeping, observing or performance of
any covenant, agreement, term, provision or condition of this Lease on the part
of Tenant to be kept, observed or performed, and if such default shall continue
and shall not be remedied by Tenant within thirty (30) days after Landlord shall
have given to Tenant a written notice specifying same, or, in the case of such a
default which for causes beyond Tenant's control cannot with due diligence be
cured within said period of thirty (30) days, if Tenant (1) shall not, promptly
upon giving such notice, advise Landlord in writing of Tenant's intention to
duly institute all steps necessary to remedy such default, (2) shall not duly
institute and thereafter diligently prosecute to completion all steps necessary
to remedy the same, or (3) shall not remedy the same within a reasonable time
after the date of the giving of said notice by Landlord,
G. Any event shall occur or any contingency shall arise whereby this
Lease or the estate hereby granted or the unexpired balance of the Term hereof
would, by operation of law or otherwise, devolve upon or pass to any person,
firm, association or corporation other than Tenant except as expressly permitted
under Article II hereof, or whenever Tenant shall desert or abandon the Premises
or the same shall become vacant (whether the keys be surrendered or not and
whether the rent be paid or not).
Then, in any of the aforesaid cases, Landlord may give to Tenant a
notice of intention to end the Term of this Lease at the expiration of five (5)
days with the same effect as if that day were the date hereinbefore set for the
expiration of the Term of this Lease, but Tenant shall remain liable for damages
as provided in Article 21 hereof. If the term "Tenant", as used in this Lease,
refers to more than one person, then, as used in subparagraphs A, B, C, D and G
of this Article 19, said Term shall be deemed to include all of such persons or
any one of them; if any of the obligations of Tenant under this Lease is
guaranteed, the term "Tenant," as used in said paragraphs, shall be deemed to
include also the guarantor or, if there be more than one guarantor, all or any
one of them; and if this Lease shall have been assigned, the term "Tenant," as
used in said subparagraphs, shall be deemed to include the assignee and the
assignor or either of them under any such assignment, release the assignor from
any further liability under this Lease, in which event the term "Tenant," as
used in said subparagraphs, shall not include the assignor so released.
20. RE-ENTRY BY LANDLORD.
A. If Tenant shall default in the payment of any rent payable hereunder
by Tenant to Landlord on any date upon which the same becomes due, and if such
default shall continue for ten (10) days after Landlord shall have given to
Tenant a written notice specifying such default, or if this Lease shall expire
and terminate as in Article 19 provided, Landlord or Landlord's agents and
servants may immediately or at any time thereafter re-enter into or upon the
Premises, or any part thereof, either by summary dispossess proceedings or by
any suitable action or proceeding at law, or by force or otherwise, without
being liable to indictment, prosecution or damages therefor, and may repossess
the same, and may remove any persons
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therefrom, to the end that Landlord may have, hold and enjoy the Premises again
as and of its first estate and interest therein. The words "re-enter,"
"re-entry," and "re-entered" as used in this Lease are not restricted to their
technical legal meanings. In the event of any termination of this Lease under
the provisions of Article 19, or in the event that Landlord shall re-enter the
Premises under the provisions of this Article 20 or in the event of the
termination of this Lease (of re-entry) by or under any summary dispossess or
other proceeding or action or any provision of law, Tenant to Landlord up to the
time of such termination of this Lease, or of such recovery of possession of the
Premises by Landlord, as the case may be, and shall also pay to Landlord damages
as provided in Article 21.
B. In the event of a breach or threatened breach on the part of Tenant
with respect to any of the covenants, agreements, terms, provision or conditions
on-the part of or on behalf of Tenant to be kept, observed or performed,
Landlord shall also have the right of injunction. The specified remedies to
which Landlord may resort hereunder are cumulative and are not intended to be
exclusive of any other remedies or means or redress to which Landlord may
lawfully be entitled at any time, and Landlord may invoke any remedy allowed at
law or in equity as if specific remedies were not herein provided for.
C. In the event of (1) the termination of this Lease under the
provisions of Article 19 hereof, (2) the re-entry of the Premises by Landlord
under the provisions of this Article 20, or (3) the termination of this Lease
(or re-entry) by or under any summary dispossess or other proceeding or action
or any provision of law by reason of default hereunder on the part of Tenant,
Landlord shall be entitled to retain all moneys, if any, paid by Tenant at the
time of such termination or re-entry or, at Landlord's option, against any
damages payable by Tenant under Article 21 or pursuant to law.
21. DAMAGES.
A. In the event of any termination of this Lease under the provisions
of Article 19 in the event that Landlord shall re-enter the Premises under the
provisions of Article 20 or in the event of the termination of this Lease (or of
re-entry) by or under any summary dispossess or other proceeding or action or
any provision of law, Tenant will pay to Landlord as damages, at the election of
Landlord, either:
1. a sum which at the time of such termination of this Lease or at
the time of any such re-entry by Landlord, as the case may be, represents the
excess, if any, of (I) the aggregate of all rent which would have been payable
hereunder by Tenant had this Lease not so terminated for the period commencing
with such earlier termination of this Lease or the date of any such re-entry, as
the case may be, and ending with the date hereinbefore set for the expiration of
the full Term hereby granted, over (ii) the aggregate of all rent of the
Premises for the same period based upon the then local market rental value of
the Premises; or
2. sums equal to the aggregate of all rent which would have been
payable by Tenant had this Lease not so terminated, or had Landlord not so
re-entered the Premises, payable upon the due dates therefore specified herein
following such termination or such re-entry and until the date hereinbefore set
for the expiration of the full Term hereby granted; provided, however, that if
Landlord shall re-let all or any part of the Premises for all or any part of
said period, Landlord shall credit Tenant with the net rents received by
Landlord from such re-letting, such net rents to be determined by first
deducting from the gross rents as and when received by Landlord from such
re-letting the reasonable expenses incurred or paid by Landlord in thereof, as
well as the reasonable expenses of re-letting, including altering and preparing
the Premises for new tenants, brokers' commissions and all other similar or
dissimilar expenses properly chargeable against the Premises and the rental
therefrom in connection with such re-letting, it being understood that any such
re-letting may be for a period equal to or shorter or longer than the remaining
Term of this Lease; provided, further, that (i) in no event shall Tenant be
entitled to receive any excess of such net rents over the sums payable by Tenant
to Landlord hereunder, (ii) in no event shall Tenant be entitled in any suit for
the collection of damages pursuant to this subsection (2) to a credit in respect
of any net rents from a re-letting except to the extent that such net rents are
actually received by Landlord prior to the commencement of such suit, and (iii)
if the Premises or any part thereof should be relet in combination with other
space, then proper apportionment on a square foot area basis shall be made of
the rent received from such re-letting and of the expenses of re-letting.
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B. Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the Term of this Lease would have expired if it had not been
terminated under the provisions of Article 19, or under any provision of law, or
had Landlord not re-entered the Premises.
C. Nothing herein contained shall be construed as limiting or
precluding the recovery by Landlord against Tenant of any sums or damages to
which, in addition to the damages particularly provided above, Landlord may
lawfully be entitled by reason of any default hereunder on the part of Tenant.
22. WAIVER OF TRIAL BY JURY. It is mutually agreed by and between
Landlord and Tenant that, except in the case of any action, proceeding or
counterclaim brought by either of the parties against the other for personal
injury or property damage, the respective parties hereto shall and they hereby
do waive trial by jury in any action, proceeding or counterclaim brought by
either of the parties hereto against the other on any matters whatsoever arising
out of or in any way connected with this Lease.
23. NO WAIVERS.
A. No receipt of money by Landlord from Tenant with knowledge of the
breach of any covenant or agreement of this Lease, or after the termination
hereof, or after the service of any notice, or after the commencement of any
suit, or after final judgement for possession of the Demised Premises, shall be
deemed a waiver of such breach, nor shall it reinstate, continue or extend the
Term of this Lease, or affect any such notice, demand or suit.
B. No delay on the part of the Landlord or Tenant in exercising any
right, power or privilege hereunder or to seek any covenant or condition of this
Lease, or of any of the Rules and Regulations, shall operate as a waiver thereof
nor shall any single or partial exercise of any right, power or privilege,
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.
C. No act done or thing said by Landlord or Landlord's agents shall
constitute a cancellation, termination or modification of, or eviction or
surrender under, this Lease, or a waiver of any covenant, condition or provision
hereof, nor relieve Tenant of Tenant's obligation to pay the rent hereunder. Any
acceptance of surrender, waiver or release by Landlord and any cancellation,
termination or modification of this Lease must be in writing signed by Landlord,
by its duly authorized representative. The delivery of keys to any employee or
agent of Landlord shall not operate as a surrender or as a termination of this
Lease, and no such employee or agent shall have any power to accept such keys
prior to the termination of this Lease.
D. Tenant hereby expressly waives service of any notice of Landlord's
intention to re-enter. Tenant hereby further waives any and all rights to
recover or regain possession of the Demised Premises or to reinstate or to
redeem the Lease as permitted or provided by or under any statute, law or
decision now or hereafter in force and effect.
E. No failure by Landlord to enforce any of the Rules and Regulations
against Tenant and/or other tenant or occupant of the Building shall be deemed a
waiver thereof. No provision of this Lease shall be deemed waived by Landlord
unless such waiver be in writing signed by Landlord.
F. No payment by Tenant or receipt by Landlord of a lesser amount than
the rent herein stipulated and reserved shall be deemed to be other than on
account of the earliest stipulated rent then due and payable, nor shall any
endorsement or statement on any check, or letter accompanying any rent check or
payment be deemed an accord and satisfaction, and Landlord may accept the same
without prejudice to Landlord's right to recover any balance due or to pursue
any other remedy in this Lease provided.
24. PARTIES BOUND. The covenants, agreement, terms, provisions and
conditions of this Lease shall bind and benefit the respective successors,
assigns and legal representatives of the parties hereto with the same effect as
if mentioned in each instance where a party hereto is named or referred to,
except that no violation of the provisions of Article 11 hereof shall operate to
vest any rights in any successor, assignee or legal representative of Tenant and
that the
19
provisions of this Article 25 shall not be construed as modifying the conditions
of limitation contained in Article 19 hereof. It is understood and agreed,
however, that the covenants and obligations on the part of the Landlord under
this Lease shall not be binding upon Landlord herein named with respect to any
period subsequent to the transfer of its interest in the Building, that in the
event of such transfer said covenants and obligations shall thereafter be
binding upon each transferee of such interest of Landlord herein named, but only
with respect to the period ending with a subsequent transfer of such interest,
and that a lease of the entire interest shall be deemed a transfer within the
meaning of this Article 24.
25. CURING TENANT'S DEFAULTS. If Tenant shall default in the
performance of any covenant, agreement, terms, provision or condition herein
contained, Landlord, without thereby waiving such default, may perform the same
for the account and at the expense of Tenant, without notice in a case of
emergency and in any other case if such default continues after the expiration
of the applicable grace period provided for in Article 19 of this Lease or if an
emergency exists. Bills for any expense incurred by Landlord in connection with
any such performance by Landlord for the account of Tenant, and bills for all
costs, expenses and disbursements of every kind and nature whatsoever,
including, but not limited to, reasonable counsel fees, involved in collecting
or endeavoring to collect the rent or any part thereof or enforcing or
endeavoring to enforce any rights against Tenant, under or in connection with
this Lease, or pursuant to law, including (without being limited to) any such
costs, expense and disbursement involved in instituting and prosecuting summary
proceedings, as well as bills for any property, material, labor or services
provided, furnished or rendered, or caused to be provided, furnished or
rendered, by Landlord to Tenant including (without being limited to) electric
lamps and other equipment, construction work done for the account of Tenant, as
well as for any charges for other similar or dissimilar services incurred under
this Lease, may be sent by Landlord to Tenant monthly, or immediately, at
Landlord's option, and shall be due and payable in accordance with the terms of
said bills, and if not paid when due, the amounts thereof shall immediately
become due and payable as additional rent under this Lease.
26. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE. Tenant agrees to give
any Mortgagees and/or Trust Deed Holders, by certified mail, return receipt
requested, a copy of any Notice of Default served upon the Landlord, provided
that, prior to such notice, Tenant has been notified in writing by way of Notice
of Assignment of Rents and Leases, or otherwise, of the address of such
Mortgagees and/or Trust Deed Holders. Tenant further agrees that, if Landlord
shall have failed to cure such default within the time provided for in this
Lease, then the Mortgagees shall have thirty (30) days from Mortgagee's and/or
Trust Deed Holder's receipt of such Notice of Default to cure such default,
provided, however, in the event such default is not capable of being cured
within thirty (30) days, Mortgagee and/or Trust Deed Holder shall have such
additional time as may be necessary to cure such default it within said thirty
(30) day period, any Mortgagee and/or Trust Deed Holder has commenced and is
diligently pursuing the remedies necessary to cure such default (including but
not limited to commencement of foreclosure proceedings, if necessary to effect
such cure) in which event this Lease shall not be terminated while such remedies
are being so diligently pursued.
27. TENANT'S ENVIRONMENTAL RESPONSIBILITIES
A. 1. "Hazardous Substances" shall include all pollutants, dangerous
substances, toxic substances, hazardous waste, hazardous materials, or hazardous
substances as defined in or pursuant to the Industrial Site Recovery Act, as
amended, N.J.S.A. 13:1 K-6, et seq. ("ISRA"), the Spill Compensation and Control
Act, as amended, N.J.S.A. 58:10-23.11, et Seq. ("Spill Act"), the Solid Waste
Management Act, as amended N.J.S.A. 13:1 E-1, et Seq. ("Solid Waste Management
Act"), the Resource and Conservation Recovery Act, as amended, 42 U.S.C. ss.6901
et seq. ("RCRA"), the Comprehensive Environment Response, Compensation and
Liability Act, as amended, 42 U.S.C. ss.9601 et seq. ("CERCLA"), or any other
present or future federal, state or local Environmental Laws, as hereinafter
defined.
2. "Environmental Law(s)" shall include (1) CERCLA; (2) RCRA, (3)
ISRA;(4) the Spill Act; (5) the New Jersey Underground Storage of Hazardous
Substance Act, as amended, N.J.S.A. 58:10A-21 et seq.; (6) the Solid Waste
Management Act; (7) the New Jersey Water Pollution Control Act, as amended,
N.J.S.A. 58:10A-1 et seq. ("WPCA"); (8) the Air Pollution Control Act, as
amended, N.J.S.A. 26.2C-1 et seq. ("APCA"); and (9) any and all present or
future laws, statutes, ordinances, regulations and executive orders, federal and
state and local in any way related to the protection of human health or the
environment.
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B. Tenant acknowledges the existence of Environmental Laws affecting
the Demised Premises and agrees to comply with all such Environmental Laws.
Tenant represents to Landlord that Tenant's Standard Industrial Classification
(SIC) Number as designated in the Standard Industrial Classification Manual
prepared by the Office of Management and Budget in the Executive Office of the
President of the United States will not subject the Demised Premises to ISRA
applicability. Any change by Tenant to an operation with an SIC Number subject
to ISRA shall require Landlord's written consent. Any such proposed change shall
be sent in writing to Landlord sixty (60) days prior to the proposed change.
Landlord, at its sole option, may deny consent.
Tenant hereby agrees to execute such documents as Landlord
reasonably deems necessary and to make such applications as Landlord reasonably
requires to assure compliance with ISRA. Tenant shall bear all costs and
expenses incurred by Landlord associated with any required ISRA compliance
resulting from Tenant's use of the Demised Premises including but not limited to
state agency fees, engineering fees, clean-up costs, filing fees and suretyship
expenses. As used in this Lease, ISRA compliance shall include applications for
determinations of nonapplicability by the appropriate governmental authority.
The foregoing undertaking shall survive the termination or sooner expiration of
the Lease and surrender of the Demised Premises and shall also survive sale, or
lease or assignment of the Demised Premises by Landlord. Tenant agrees to
indemnify and hold Landlord harmless from any violation of ISRA and any other
Environmental Law occasioned by Tenant's use of the Demised Premises. The Tenant
shall immediately provide the Landlord with copies of all correspondence,
reports, notices, orders, findings, declarations and other materials pertinent
to the Tenant's compliance and the requirements of ("NJDEP") under ISRA or any
other Environmental Law, as they are issued or received by the Tenant.]
C. Tenant agrees not to generate, store, manufacture, refine,
transport, treat, dispose of, release, or otherwise permit to be present on or
about the Demised Premises, any Hazardous Substances. It is understood and
agreed that the provisions contained in this Section shall be applicable
notwithstanding the fact that any substance shall not be deemed to be a
Hazardous Substance at the time of its use by the Tenant but shall thereafter be
deemed to be a Hazardous Substance.
In the event Tenant fails to comply with ISRA as stated in this
Section or any other Environmental Law as of the termination or sooner
expiration of this Lease and as a consequence thereof Landlord is unable to rent
the Demised Premises, then the Landlord shall treat the Tenant as one who has
not removed at the end of its Term, and thereupon be entitled to all remedies
against the Tenant provided by law in that situation including a monthly rental
of two hundred (200%) percent of the monthly Base Rent for the last month of the
Term of this Lease or any renewal term, payable in advance on the first day of
each month, until such time as Tenant provides Landlord with a negative
declaration or confirmation that any required clean-up plan has been
successfully completed.
Tenant agrees to indemnify and hold harmless the Landlord and each
mortgagee of the Demised Premises from and against any and all liabilities,
damages, claims, losses, judgments, causes of action, costs and expenses
(including the reasonable fees and expenses of counsel) which may be incurred by
the Landlord or any such mortgagee or threatened against the Landlord or such
mortgagee, relating to or arising out of any breach by Tenant of the
undertakings set forth in this Section, said indemnity to survive the expiration
or sooner termination of this Lease.
B) Upon either expiration or termination of the lease, or the
expiration or termination of any renewal Term provided for herein, whichever is
later, whether such termination is voluntary or involuntary, or upon the sale of
the Demised Premises by Landlord, or upon any other action by either Landlord or
Tenant which would constitute a "closing, terminating or transferring
operations" pursuant to ISRA and regulations promulgated thereunder, Tenant
shall at its sole cost and expense promptly comply with ISRA and obtain approval
of a Negative Declaration, or a cleanup plan from the New Jersey Department of
Environmental Protection or obtain a letter from the DEP stating that the
Demised Premises are not subject to ISRA. Tenant shall bear the sole cost and
expense for such compliance including performance of any cleanup plan and
compliance with any other environmental law or regulation. Tenant shall be
solely responsible for the preparation of documents to be filed, and all
sampling, analysis and ISRA review fees and costs shall be the obligation of
Tenant.
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C) In the event that the approval of a Negative Declaration, or
approval and completion of a cleanup/closure plan, or a letter of
nonapplicability of ISRA is not received and delivered to Landlord by the
expiration or termination date of this lease, then this lease shall be extended
and continued at the option of the Landlord and Tenant shall pay the base rent
(i.e., real estate taxes, water, sewer and other utilities) and other charges
set forth herein, which shall be due and payable until such approvals are
received and delivered to Landlord. Notwithstanding the foregoing, Tenant shall
not be permitted to occupy or use the leased Premises except for the purpose of
compliance with ISRA.
D) In the event that Tenant is not exerting reasonable efforts to
comply with ISRA, then Landlord shall have the option, but not the obligation,
to comply with ISRA, and all costs of compliance including attorney's fees shall
be the responsibility of Tenant and shall constitute additional rentals.
E) Tenant shall be solely responsible for all penalties, fines or
administrative orders imposed by the New Jersey Department of Environmental
Protection and Energy and shall indemnify and hold Landlord harmless from same,
to the extent permitted by law.
F) Tenant shall be responsible for cleanup by reason of ISRA
compliance, as required under this article, pertaining to the leased Premises or
any other part of the Premises of which the leased Premises is a part, only to
the extent that such cleanup is due and the Tenant's use of the leased Premises
during the Term of this lease agreement or any renewals or extensions thereof.
Tenant shall not be responsible for any cleanup due to the use of the leased
Premises or any other part of the Premises, of which the leased Premises is a
part, by any previous tenant or tenants, or by the Landlord.
28. MISCELLANEOUS.
A. If in connection with obtaining financing for the Building, a
bank, insurance company or other recognized institutional lender or the New
Jersey Economic Development Authority or its nominee shall request reasonable
modifications in this Lease as a condition to such financing, Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder or materially
decrease the obligations of Landlord hereunder. In addition thereto, Tenant
shall furnish to any mortgagee or proposed mortgagee of the Building, copies of
Tenant's latest financial statements duly certified by an independent certified
public accountant, or if no such certified statement is available, then such
statements shall be certified by the Tenant, its duly certified officer or
partner, as the case may be.
B. Tenant shall not be entitled to exercise any right of termination
or other option granted to it by this Lease at any time when Tenant is in
default in the performance or observance of any of the covenants, agreements,
terms, provisions or conditions on its part to be performed or observed beyond
the applicable grace period provided in this Lease.
C. Tenant shall not sublet, take by assignment, or otherwise occupy
any space in the Building other than the Premises hereby demised, except with
the prior written consent of Landlord in each instance.
D. If this Lease is offered to Tenant by the managing agent of the
Building, such offer is made solely in the capacity as such agent and subject to
Landlord's acceptance and approval; and Tenant has executed this Lease upon the
understanding that this Lease shall not in any way bind Landlord until such time
as the same has been approved and executed by Landlord and a counterpart
delivered to or received by Tenant.
E. The laws of the State of New Jersey shall govern the validity,
performance and enforcement of this Lease. The invalidity or unenforceability of
any provision hereof shall not affect or impair any other provision.
F. Whenever a neutral singular pronoun refers to Tenant, same shall
be deemed to refer to Tenant if Tenant be an individual, a corporation, a
partnership or two or more individuals or corporations.
G. The term "Landlord" as used in this Lease shall mean the owner
for the time being of the Building, and if such Building be sold or transferred,
the seller or assignor shall
22
be entirely relieved of all covenants and obligations under this Lease
subsequent to such sale or transfer and it shall be deemed, without further
agreement between the parties hereto and their successors, that the purchaser on
such sale has assumed and agreed to carry out all covenants and obligations of
Landlord arising on and after such sale or transfer.
H. The words "herein" "hereof," " "hereunder," "hereafter," and the
words of similar import refer to this Lease as a whole and not to any particular
section or subdivision thereof.
I. In all cases where Landlord's consent or approval is required
under this Lease, Landlord covenants and agrees that such covenant or approval
shall not be unreasonably withheld or delayed at such times as Tenant is not in
default in the performance of any of its obligations under this Lease beyond the
applicable grace period provided herein.
J. Landlord does not, in any way for any purpose, become a partner
of Tenant in the conduct of business, or otherwise, a joint venturer or a member
of a joint enterprise with Tenant.
K. Landlord hereby reserves the right at any time to make
alterations or additions to and to build additional stories on the building in
which the Premises are contained and to build adjoining the same. Landlord also
reserves the right to construct other buildings or improvements in the Demised
Premises from time to time and to make alterations thereof or additions thereto
and to build adjoining same and to construct double-deck or elevated parking
facilities.
L. Tenant specifically acknowledges that the demise of the Premises
set forth herein does not include the right or privilege to use the parking
facilities of the Premises. Rather, the right or privilege to use such parking
facilities shall be by separate agreement, if at all, and subject to separate
charge in the sole discretion of the Landlord.
29. INABILITY TO PERFORM. This Lease and the obligations of Tenant to
pay rent hereunder and perform all of the other covenants, agreements, terms,
provisions and conditions hereunder on the part of Tenant to be performed shall
in no ways be affected, impaired or excused because Landlord is unable to
fulfill any of its obligations under this Lease or is unable to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make or is delayed in making any repairs, replacements, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Landlord is prevented or delayed from doing to by
reason of strikes or labor troubles or any other similar or dissimilar cause
whatsoever beyond Landlord's control, including, but not limited to,
governmental preemption in connection with a national emergency or by reason of
any rule, order or regulation of any department or subdivision thereof of any
governmental agency or by reason of the conditions of supply and demand which
have been or are affected by war or other emergency, or by reason of any fire or
other casualty or act of God.
30. ABANDONED PERSONAL PROPERTY. Any personal property (other than any
fixture, equipment, improvement, installation or appurtenance of the character
referred to in Article 8 hereof), which shall remain in the Premises or any part
thereof after the expiration or termination of the Term of this Lease shall be
deemed to have been abandoned, and either may be retained by Landlord as its
property or may be disposed of in such manner as Landlord may see fit; provided,
however, that notwithstanding the foregoing, Tenant will, upon request of
Landlord made not later than ten (10) days after the expiration or termination
of the Term hereof, promptly remove from the Building any such personal property
at Tenant's own cost and expense. If such personal property or any part thereof
shall be sold by Landlord, Landlord may receive and retain the proceeds of such
sale as Landlord's property.
31. EXCULPATION. Notwithstanding anything to the contrary set forth in
this Lease, it is specifically understood and agreed by Tenant that there shall
be absolutely no personal liability on the part of Landlord or on the part of
the partners of Landlord with respect to any of the terms, covenants and
conditions of this Lease, and Tenant shall look solely to the equity, if any, of
Landlord in the Land and Building for the satisfaction of each and every remedy
of Tenant in the event of any breach by Landlord; such exculpation of personal
liability to be absolute and without any exception whatsoever.
23
32. ARTICLE HEADINGS. The Article headings of this Lease are for
convenience only and are not to be considered in construing the same.
33. QUIET ENJOYMENT. Landlord covenants that if, and so long as, Tenant
is not in default beyond the applicable grace period provided herein with
respect to the performance of the terms and conditions on its part to be
performed under this Lease, Tenant shall quietly enjoy the Premises without
hindrance or molestation by Landlord or by any other person lawfully claiming
the same, subject to the covenants, agreements, terms, provisions and conditions
of this Lease and to any ground leases and/or underlying leases and/or
mortgages, extensions, renewals, modifications, alterations and substitutions
thereof, to which this Lease is now and may hereafter be subject and
subordinate, as hereinbefore set forth.
34. HOLDING OVER. If the Tenant retains possession of the Demised
Premises or any part thereof after the termination of the Term by lapse of time
or otherwise, without prior written approval of Landlord, the Tenant shall pay
the Landlord Base Rent at double the rate specified in Article 3, together with
additional rent and other charges as provided herein, for the time the Tenant
thus remains in possession, and, in addition thereto, shall pay the Landlord all
damages, consequential as well as direct, sustained by reason of the Tenant's
retention of possession. If the Tenant remains in possession of the Demised
Premises, or any part thereof, after the termination of the Term by lapse of
time or otherwise, such holding over shall, at the election of the Landlord
expressed in a written notice to the Tenant and not otherwise, constitute an
extension of this Lease on a month-to-month basis at double the monthly rental
set forth in Article 3, together with additional rent and other charges as
provided herein. The provisions of this Article 35 do not exclude the Landlord's
rights of re-entry or any other right hereunder.
35. DEFAULT RATE OF INTEREST AND ATTORNEYS FEES.
A. In the event of default by Tenant or Landlord hereunder, then and
in such event, any and all amounts due and owing Landlord from Tenant or from
Landlord to Tenant shall accrue interest thereafter at the lesser of 18% percent
per annum or the maximum rate permitted at law, which interest shall continue to
accrue and be added to the amounts due. It is expressly agreed between the
parties that the aforesaid default rate of interest shall survive entry of
judgment.
B. In the event of a default under this Lease, the defaulting party
will be responsible for reimbursement of all reasonable legal fees, costs and
expenses incurred in connection with such default.
36. RELOCATION.
Landlord hereby reserves the right, at its sole expense and on at least
thirty (30) days' prior written notice, to require Tenant to move from the
Premises to other space within the Building. The aforesaid relocated space shall
be of comparable size and decor, in order to permit Landlord to consolidate the
space leased to Tenant with any other space leased or to be leased to another
tenant. In the event of any such relocation, Landlord will pay all expenses of
preparing and decorating the relocated space so that it will be substantially
similar to the Premises from which Tenant is moving and Landlord will also pay
the expense of moving Tenant's furniture and equipment to the relocated space.
In such event, this Lease and each and all of the terms, covenants and
conditions hereof, shall remain in full force and effect and thereupon be deemed
applicable to such new space except that the description of the Premises shall
be revised and if applicable Tenant's Percentage shall likewise be revised.
37. SUBMETERING OF SUITE 501.
Landlord has agreed as part of Landlord's Work as set forth on Exhibit B
hereto attached, to submeter Tenant's electric usage in Suite 501 and 505 on a
single submeter. Tenant shall pay for the cost of electricity as defined in
Article 10.F.2. Accordingly, the charge that Tenant is currently paying for
Tenant Electric for Suite 501, via survey, shall be deleted.
38. ADDITIONAL WORK.
Tenant has requested approximately $64,513.04 worth of additional work in
Suite 505. This work is included in Landlord's Work as set forth on Exhibit B
hereto attached, but Tenant
24
has agreed to pay for this work as follows a) $32,356.52 upon execution of this
Lease Agreement and b) $32,356.52 upon commencement of the Lease.
39. DEMISE OF SUITES 501 AND 505.
Pursuant to a separate lease and amendments dates June 14, 1995, February
14, 1997, April 15, 1997, August 14, 1997, and November 24, 1997 (the "Other
Lease") for Suite 501, which is contiguous to Suite 505, Tenant has a
termination date of February 4, 2001. The Other Lease and this Lease therefore
have a different termination date. As part of Landlord's Work, Landlord has
agreed to combine Suites 501 and 505 into one unit. If this Lease or the Other
Lease do not terminate on the same date, then Tenant agrees, at Tenant's sole
cost and expense, to pay for the cost of erecting the demising wall between
Suites 501 and 505.
IN WITNESS WHEREOF, Landlord and Tenant have executed or caused to be
executed, these presents, as of the date first hereinabove set forth.
Signed, Sealed and Delivered XXXXXXXXXX ASSOCIATES, LP (Landlord)
in the presence of: By: Denzar at Xxxxxxxxxx, L.L.C., its
General Partner
By:
------------------------------ -----------------------------------
Xxxxxx X. Xxxxxxxx, Co-Manager
FUNDTECH CORP. INC. (Tenant)
------------------------------ BY:___________________________________
25
EXHIBIT A-1
[Graphic Omitted]
EXHIBIT A-2
[Graphic Omitted]
EXHIBIT "B"
LANDLORD'S WORK
Landlord shall, at no additional cost to Tenant, except as noted in
Article 38 of the Lease, provide Tenant with all of the items provided below and
as shown on the attached drawing as Exhibit A hereto attached. In the event that
Tenant requests additional work beyond that set forth in "LANDLORD'S WORK" or
requests an upgrade in the quality of any of the items in "LANDLORD'S WORK then
Tenant shall pay for the additional work.
LANDLORD'S WORK A (Suite 505)
-----------------------------
1) All required partitioning as shown on Exhibit A-1 hereto attached.
2) All required interior doors building standard 3'0" X 7'0" solid core birch.
3) Supply and install two (2) frameless glass entrance doors Herculite or
equal.
4) Supply and install four (4) junction boxes electric for system furniture.
Voice and data lines by Tenant.
5) Supply and install ten (10) 2X4 recessed fluorescent lights in room 510.
6) Supply and install six (6) 2X4 light fixtures 18 cell parabolic in rooms
507, 508, and 509.
7) Supply and install nine (9) 2X4 4 lamp recessed fluorescent lighting
fixtures with curved neoray in rooms 502, 503, 504.
8) Supply and install eighteen (18) 2X2 4 lamp recessed fluorescent lighting
fixtures with curved neoray in rooms 501 and 506.
9) Supply and install thirty four (34) hi hats in rooms 501, 502, 503, and
504.
10) 2X2 regular ceiling tile in rooms 501, 502, 503, 504, 505, and 506.
11) 2X4 white grid with lay in ceiling tiles in rooms 507, 508, 509, 510, and
511.
12) One (1) floor outlet.
13) Supply and install building standard sink in room 501. Tenant to provide
millwork.
14) Paint - Xxxxxxxx Xxxxx Color #1590 flat.
15) Duplex outlets - 2 per room.
16) Signage on door and lobby directory.
17) Supply and install variable speed exhaust fan in room 501.
18) Supply and install Maharani Polytech/Linen or equal wallcovering in rooms
501, 502, 503, and 504. Color to determined by Tenant.
19) Supply and install 36 oz Xxxx Copperhill cut pile or equal carpeting in
rooms 507, 508, and 509.
20) Supply and install Interface carpet tile to match existing in room 511.
21) Supply and install Patkraft Legends or equal carpeting in rooms 501, 502,
503, 504, and 506. Color to be determined by Tenant.
22) Supply and install 36 oz Xxxx or Copperhill cut pile or equal carpet border
in rooms 502, 503, and 504. Color to be determined by Tenant.
23) Supply and install granite and granite base to match Building Manager's
existing office in room 505.
24) Supply and install granite base to match Building Manager's existing office
in rooms 501 and 505.
25) Supply and install Xxxxxxxxx or equal vinyl base cove in rooms 507, 508,
509, and 511. Color to be determined by Tenant.
LANDLORD'S WORK (Suite 690)
---------------------------
1) All required partitioning as shown on Exhibit A-2 hereto attached.
2) Philadelphia Marketplace, Winchester or comparable carpeting with Xxxxxx
vinyl base or Azrock VCT tile.
3) Duplex outlets - 2 per room,
4) 2 X 4 recessed fluorescent lights.
5) Ceilings - 2 X 4 white grid with lay in ceiling tiles.
6) Gypsum wall painted with building standard paint (any one color).
7) Signage on door and lobby directory.
8) All required interior doors building standard 3'0" X 7'0" solid core birch.
EXHIBIT D
RULES AND REGULATIONS
1. Lessee shall not obstruct or permit its employees, agents, servants,
invitees or licensees to obstruct, in any way, the sidewalks, entry passages,
corridors, halls, stairways or elevators of the Building, or use the same in any
other than as a means of passage to and from the Premises; bring in, store, test
or use any materials in the Building which could cause a fire or an explosion or
produce any fumes or vapor; make or permit any improper noises in the Building;
smoke in any elevator; throw substances of any kind out of the windows or doors,
or down the passages of the Building, or in the halls or passageways; sit on or
place anything upon the window xxxxx; or clean the windows.
2. Water closets and urinals shall not be used for any purpose other than
those for which they were constructed, and no sweepings, rubbish, ashes,
newspaper or any other substances of any kind shall be thrown into them. Waste
and excessive or unusual use of electricity or water is prohibited.
3. The windows, doors, partitions and lights that reflect or admit light
into the halls or other places of the Building shall not be obstructed. NO
SIGNS, ADVERTISEMENTS OR NOTICES SHALL BE INSCRIBED, PAINTED, AFFIXED OR
DISPLAYED IN, OR UPON OR BEHIND ANY WINDOWS, except as may be required by law or
agreed upon by the parties; and no sign, advertisement or notice shall be
inscribed, painted or affixed on any doors, partitions or other part of the
inside of the Building, without the prior written consent of the Lessor. If such
consent be given by Lessor, any such sign, advertisement, or notice shall be
inscribed, painted or affixed by Lessor, or a company approved by Lessor, but
the cost of the same shall be charged to and be paid by Lessee, and Lessee
agrees to pay the same promptly, on demand.
4. No contract of any kind with any supplier of towels, water, ice, toilet
articles, waxing, rug shampooing, venetian blind washing, furniture polishing,
lamp servicing, cleaning of electrical fixtures, removal of waste paper, rubbish
or garbage, or other like service shall be entered into by Lessee, nor shall any
vending machine of any kind be installed in the Building, without the prior
written consent of Lessor.
5. When electric wiring of any kind is introduced, it must be connected as
directed by Lessor, and no stringing or cutting of wires will be allowed, except
with the prior written consent of Lessor, and shall be done only by contractor
approved by Lessor. The number and location of telephones, telegraph
instruments, electric appliances, call boxes, etc., shall be approved by Lessor.
No tenant shall lay floor covering so that the same shall be in direct contact
with the floor of the Premises; and if floor covering is desired to be used, an
interlining of builder's deadening felt shall be first affixed to the floor by a
paste or other material, the use of cement or other similar adhesive material
being expressly prohibited.
6. Lessor shall have the right to prescribe the weight, size and position
of all safes and other bulky or heavy equipment and all freight brought into the
Building by any tenant; and the time of moving the same in and out of the
Building. All such moving shall be done under the supervision of Lessor. Lessor
will not be responsible for loss of or damage to any such equipment or freight
from any cause; but all damage done to the Building by moving or maintaining any
such equipment or fright shall be repaired at the expense of Lessee. All safes
shall stand on a base of such size as shall be designated by Lessor. Lessor
reserves the right to inspect all freight to be brought into the Building and to
exclude from the Building freight which violates any of these Rules and
Regulations or the Lease of which these Rules and Regulations are a part.
7. No machinery of any kind or articles of unusual weight or size will be
allowed in the Building, without the prior written consent of Lessor. Business
machines and mechanical equipment shall be placed and maintained by Lessee, at
Lessee's expense, in settings sufficient, in Lessor's judgment, to absorb and
prevent vibration, noise and annoyance to the other tenants.
8. No additional lock or locks shall be placed by Lessee on any door in
the Building, without the prior written consent of Lessor. Two keys will
initially be furnished to Lessee by Lessor; two additional keys will be supplied
to Lessee by Lessor, upon request, without charge;
any additional keys requested by Lessee shall be paid for by Lessee. Lessee, its
agents and employees, shall not have any duplicate keys made and shall not
change any lock. All keys to doors and washrooms shall be returned to Lessor on
or before the Termination Date, and, in the event of a loss of any keys
furnished, Lessee shall pay Lessor the costs thereof.
9. Lessee shall not employ any person or persons for the purpose of
cleaning the Premises, without the prior written consent of Lessor. Lessor shall
not be responsible to Lessee for any loss of property from the Premises however
occurring, or for any damage done to the effects of Lessee by such janitors or
any of its employees, or by any other person or any other cause.
10. No vehicles or animals of any kind shall be brought into or kept in or
about the Premises, except animals such as seeing-eye dogs, etc., as may be
reasonably required to accommodate the needs of individuals with disabilities.
Bicycles may be brought into the building, but shall not be left in front of the
building.
11. The requirements of Lessee will be attended to only upon application
at the office of the Lessor. Employees of Lessor shall not perform any work for
Lessee or do anything outside of their regular duties, unless under special
instructions from Lessor.
12. The Premises shall not be used for lodging or sleeping purposes, and
cooking therein is prohibited. The use of a microwave oven shall not be
prohibited.
13. Lessee shall not conduct, or permit any other person to conduct, any
auction upon the Premises; manufacture or store goods, wares or merchandise upon
the Premises, without the prior written approval of Lessor, except the storage
of usual supplies and inventory to be used by Lessee in the conduct of its
business; permit the Premises to be used for gambling; making any unusual noises
in the Building; permit to be played any musical instruments in the Premises;
permit to be played any radio, television, recorded or wired music in such a
loud manner as to disturb or annoy other tenants; or permit any unusual odors to
be produced upon the Premises.
14. Between 7:00 P.M. and 7:30 A.M. on weekdays, before 8:00 A.M. and
after 1:00 P.M. on Saturdays, and all day Sunday and Building Holidays, the
Building is closed.
15. No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades or screens shall be attached to or
hung in, or used in connection with, any window or door of the Premises, without
the prior written consent of Lessor. Such curtains, blinds and shades must be of
a quality, type, design and color and attached in a manner approved by Lessor.
16. Canvassing, soliciting and peddling in the Building are prohibited,
and Lessee shall cooperate to prevent the same.
17. There shall not be used in the Premises or in the Building either by
Lessee or by others in the delivery or receipt of merchandise, supplies or
equipment, any hand trucks except those equipped with rubber tires and side
guards. No hand trucks will be allowed in passenger elevators.
18. Each tenant, before closing and leaving the Premises shall ensure that
all windows are closed and all entrance doors locked.
19. Lessor hereby reserves to itself any and all rights not granted to
Lessee hereunder, including but not limited to, the following rights which are
reserved to Lessor for its purposes in operating the Building: (a) the exclusive
right to the use of the name of the Building for all purposes, except that
Lessee may use the name as its business address and for no other purpose; (b)
the right to change the name or address of the Building, without incurring any
liability to Lessee for so doing; (c) the right to install and maintain a sign
or signs on the exterior of the Building; (d) the exclusive right to use or
dispose of the roof of the Building; (e) the right to limit the space of the
directory of the Building; (f) the right to grant to anyone the right to conduct
any particular business or undertaking in the Building.
20. Lessee shall list all articles to be taken from the Building (other
than those taken out in the usual course of business of Lessee) on Lessee's
letterhead, or a blank which will be
furnished to Lessor. Such list shall be presented at the office of the Building
for approval before such articles are taken from the Building.
21. Lessee shall not use the Premises or permit the Premises to be used
for the sale of food or beverages.
EXHIBIT E
BUILDING MAINTENANCE SPECIFICATION
A. GENERAL (Five Nights Per Week)
------------------------------
1. All Ceramic, tile and other unwaxed flooring to be swept nightly and
washed as necessary.
2. All composition tile to be swept.
3. All carpeting and rugs to be vacuumed.
4. All furniture, fixtures, pictures, ledges, chair rails and other furniture
and window xxxxx to be hand-dusted and cleaned. All window xxxxx to be
washed when necessary.
5. All ash trays to be emptied and damp-wiped clean.
6. All waste receptacles to be emptied and refuse removed to a designated
area of the Building.
7. Interiors of all waste disposal cans and baskets will be kept clean by
inserting a plastic liner in each. Wash disposal units and replace liners
upon request.
8. All water coolers to be washed.
9. All door louvers and other ventilating louvers within reach to be
hand-dusted.
10. All telephones to be hand-dusted.
11. All bright work to be wiped clean and polished.
12. All fingerprints and smudges to be removed from painted vertical surfaces
whenever and wherever practicable.
13. All stairways to be swept and dusted nightly and mopped or scrubbed
weekly.
14. The elevators to be swept, dusted, washed nightly and waxed as necessary.
15. Clear writing surfaces shall be wiped (or washed).
B. LAVATORIES (Five Nights Per Week)
---------------------------------
1. All lavatory rooms to be swept and washed nightly with Phenolic or
Quaternary disinfectant and power machine scrubbed monthly.
2. All mirrors, shelves, bright work and enameled surfaces in lavatories to
be washed and polished.
3. All basins, bowls and urinals to be scour-washed with a Phenolic or
Quaternary disinfectant.
4. All toilet seats to be scour-washed and disinfected.
5. All partitions, tile walls, dispensers and receptacles to be had-dusted
and washed when necessary.
6. All paper towel receptacles to be emptied.
7. All sanitary napkin disposal receptacles to be emptied.
8. All wall tile and stall surfaces to be washed and polished as often as
necessary.
C. HIGH DUSTING
------------
1. All pictures, frames, charts, graphs and similar wall hangings not reached
in daily cleaning to be dusted at least twice per month.
2. All vertical surfaces such as walls, partitions, doors, bucks and other
surfaces not reached in daily cleaning to be dusted at least twice per
month.
3. All pipes, ventilating and air conditions louvers, ducts, high moldings,
and other high areas not reached in daily cleaning to be dusted at least
once per month.
D. LOBBY
-----
1. Floors of entrance lobby to be swept and washed as necessary.
2. Lobby wall surfaces, to be hand-dusted as often as necessary.
EXHIBIT F
BUILDING HOLIDAYS
New Year's Day
Washington's Birthday
Memorial Day
Fourth of July
Labor Day
Thanksgiving Day
Christmas Day
FIRST AMENDMENT TO LEASE AND CONSOLIDATION AGREEMENT
----------------------------------------------------
THIS FIRST AMENDMENT TO LEASE AND CONSOLIDATION AGREEMENT, made as
of October 1, 2000 (this "Amendment") between XXXXXXXXXX ASSOCIATES, L.P.
("Landlord") and FUNDTECH CORPORATION, INC. ("Tenant").
RECITALS:
A. Landlord and Tenant entered into a lease dated August 30, 1999 (the
"Lease") which Lease demises approximately 3,505 gross rentable square feet in
Suite 505 and approximately 1,396 gross rentable square feet in Suite 690
(Suites 505 and 690 together referred to as the "Existing Premises") of the
building located at 00 Xxxxxxxxxx Xxxxxx in Jersey City, New Jersey (the
"Building").
B. Landlord's predecessor in interest and Tenant entered into a standard
office building lease dated June 14, 1995, as amended by lease amendment and
endorsement dated February 14, 1997, as further amended by lease amendment and
endorsement dated April 15, 1997, as further amended by third amendment to lease
dated August 14, 1997, as further amended by fourth amendment to lease dated
November 24, 1997 (as so amended, the "Other Lease") which Other Lease demises
approximately 10,254 gross rentable square feet in Suite 501 of the Building
(the "Other Premises"; the Existing Premises and the Other Premises
collectively, the "Demised Premises").
C. Landlord and Tenant wish to extend the term of the Existing Lease and
the term of the Other Lease and to consolidate the Other Lease with the Existing
Lease to the effect that Tenant will have a single lease demising the Demised
Premises.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby conclusively acknowledged, Landlord and Tenant hereby agree as
follows as of the date hereof:
1. Capitalized terms not defined herein shall have the meanings ascribed
to such terms in the Existing Lease.
2. The Other Lease is hereby deemed merged into the Existing Lease to the
effect that the Other Premises and the Existing Premises shall be demised under
the Existing Lease, the Other Lease and the terms, conditions and provisions
under the Other Lease shall be of no further effect and the terms, conditions
and provisions of the Existing Lease, as modified hereby, shall apply with the
same force to the Existing Premises and the Other Premises. The term "Lease" as
used herein shall mean the Existing Lease as amended and consolidated herein.
3. The Preamble of the Lease is hereby deleted and replaced with the
following:
"BASIC LEASE PROVISIONS AND DEFINITIONS.
In addition to other terms elsewhere defined in this Lease, the following
terms whenever used in this Lease should have only the meanings set forth in
this section, unless such meanings are expressly modified, limited or expanded
elsewhere herein.
(1) Date of Lease: August 30, 1999
(2) Exhibits: The following Exhibits attached to this Lease are
incorporated herein and made a part hereof:
Exhibit A: Floor Plan(s)
Exhibit B: Landlord's Work
Exhibit C: Omitted
Exhibit D: Rules and Regulations
Exhibit E: Building Maintenance Specifications
Exhibit F: Building Holidays
(3) Building: 00 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
(4) Premises or Demised Premises:
Outlined on Exhibit A - 3,505 gross rentable square feet in
Xxxxx 000 ("Xxxxx 000"); - 1,396 gross rentable square feet in
Xxxxx 000 ("Xxxxx 000"); and 10,254 gross rentable square feet
in Xxxxx 000 ("Xxxxx 000"); total gross rentable square
footage is 15,155.
(5) Land: On Tax Assessment Map of the City of Jersey City,
Xxxxxx County, New Jersey. Xxxxx 0, Xxx X0.
(6) Term: Suite 501 - July 1, 1995 to September 30, 0000
Xxxxx 000 xxx Xxxxx 000 - October 1, 1999 to September
30, 2014.
(7) Base Rent: Suite 501
---------
(a) as paid from March 1, 1997 through February 4, 1998
(b) $199,056.00 per annum, payable $16,588.00 per month for
the period from February 5, 1998 through February 4,
2001
(c) $317,874.00 per annum, payable $26,489.50 per month for
the period from February 5, 2001 through September 30,
2004
(d) $348,636.00 per annum, payable $29,053.00 per month for
the period from October 1, 2004 through September 30,
2009
(e) $389,652.00 per annum, payable $32,471.00 per month for
the period from October 1, 2009 through September 30,
2014
Suite 505
---------
(a) $82,367.50 per annum, payable $6,863.96 per month for
the period from October 1, 1999 through September 30,
2004
2
(b) $119,170.00 per annum, payable $9,930.84 per month for
the period from October 1, 2004 through September 30,
2009
(c) $133,190.00 per annum, payable $11,099.17 per month for
the period from October 1, 2009 through September 30,
2014
Suite 690
---------
(d) $34,900.00 per annum, payable $2,908.33 per month for
the period from October 1, 1999 through September 30,
2004
(e) $47,464.00 per annum, payable $3,955.34 per month for
the period from October 1, 2004 through September 30,
2009
(f) $53,048.00 per annum, payable $4,420.67 per month for
the period from October 1, 2009 through September 30,
2014
(8) Utility Charge: Xxxxx 000 xxx Xxxxx 000: Submetered and paid
by Tenant monthly in accordance with Article 10F.
Suite 690: - $2,433.00 per annum, payable $203.58 per
month for the period from October 1, 1999 through
September 30, 2014, subject to Landlord's right to survey
Suite 690 provided in Article 10F of the Lease
(9) Tenant's
Percentage: Xxxxx 000- 3.38% for to February 4, 2001; 3.60%
thereafter
Xxxxx 000 - 1.23%
Suite 690 - 0.49%
(10) Base Year: Suite 501 - 1997 until February 4, 2001; 2001 thereafter
Suite 505 - 2000 until September 30, 2004; 2004
thereafter
Suite 690 - 2000 until September 30, 2004; 2004
thereafter
(11) Security: $44,453.54
(12) Commencement
Date: Xxxxx 000 - July 1, 1995 Suite 505
and Suite 690 - October 1, 1999
(13) Termination
Date: September 30, 2014
(14) Permitted Use: General Office
(15) Tenant's
Address: 00 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx
(16) Landlord's
Address: x/x Xxxxxxxx Xxxxxxxxxx Xxxx.
X.X. Xxx 0000
0000 Xx. Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
3
(17) Broker: Xxxxxxx & Wakefield of New Jersey, Inc. and Xxxxx
& Xxxxx Company
4. Landlord and Tenant agree that the correct size of Suite 501 is 10,254
gross rentable square feet.
5. Tenant is leasing the Demised Premises in its AS IS condition subject
to the terms of this Amendment. The text in Exhibit B of the Existing Lease is
hereby deleted and replaced with the words "AS IS".
6. The words and number "and/or Suite 501" is hereby added after the word
and number "Suite 505" in Article 10.F.2. of the Existing Lease.
7. The reference to Article 25 in Article 24 of the Lease is hereby
corrected to read "Article 24".
8. Articles 37, 38 and 39 of the Existing Lease are hereby deleted.
9. Landlord shall provide Tenant with a rent credit in the total amount of
$100,000.00 (the "Rent Credit") toward the cost of improving the Demised
Premises or any other premises in the Building that may be leased by Tenant
subsequent to the execution of this Amendment (such other leased premises
referred to herein as the "Additional Leased Premises") (collectively, the "
Premises") as hereinafter provided. Landlord shall apply up to $20,000.00 of the
Rent Credit toward the cost of improving the Premises in February 2001, provided
such upgrade is completed and all of the requirements for such credit are
submitted by Tenant to Landlord prior to June 30, 2001. The balance of the Rent
Credit shall be applied toward Tenant's improvement expenses for the Premises
incurred during the period commencing on October 1, 2004 and terminating
September 30, 2005 provided such upgrade is completed and all of the
requirements for such credit are submitted by Tenant to Landlord prior to
September 30, 2005. Notwithstanding the foregoing, up to $5,000 of the Rent
Credit may be applied on account of Tenant's out-of-pocket expenses incurred for
architectural services for the Premises provided during the period from October
1, 2004 to September 30, 2005. Tenant's request for application of the Rent
Credit may be made only once during the period commencing on the date of
February 4, 2001 and terminating on June 30, 2001 (for up to a $20,000 credit)
and once during the period commencing on October 1, 2004 and terminating on
September 30, 2005 (the remaining balance of the Rent Credit). The Rent Credit,
or applicable portions thereof, shall be applied to the next occurring
installments of Base Rent payable under the Lease after Landlord receives from
Tenant in form and content reasonably satisfactory to Landlord: (a) paid
invoices reflecting the expenditure of at least the amount of Rent Credit being
requested on account of the aforementioned work (b) final lien waivers duly
executed by all contractors and subcontractors performing such work indicating
that such work has been completed and paid for in full and (c) a certification
from Tenant stating the amount of the Rent Credit requested, a description of
the work performed, a listing of all contractors and subcontractors that
performed such work and a certification that such work has been completed in
accordance with the terms of the Lease.
10. Tenant shall have the rights to lease the following suites in the
Building as specifically set forth in this paragraph. Suite 604 consisting of
approximately 6,798 gross rentable square feet and/or Suite 685 in the Building
consisting of approximately 2,385 gross
4
rentable square feet ("Suite 604", and "Suite 685" respectively). The Term of
the existing lease on Suite 604 expires on July 31, 2005. The Term of the
existing lease on Suite 685 expires on October 31, 2001. There are no renewal
options available to the current tenant of Suite 604. The current tenant of
Suite 685 has one (1) five (5) year renewal option. Tenant's rights hereunder
are in all respects subject to the renewal rights of the tenant in Suite 685. If
Tenant desires to lease Xxxxx 000 xxx/xx Xxxxx 000 in the Building, Tenant shall
notify Landlord in writing (a) no later than October 31, 2004 if it desires to
lease Suite 604 and (b) no later than April 2, 2001 if it desires to lease Suite
685. Each such notice must specify the Suite Tenant desires to lease. Provided
(i) Landlord receives Tenant's notice(s) of intention within the timeframes for
such suite(s) set forth above, (ii) Tenant is not in default under this Lease at
the time Landlord receives such notice(s) and (iii) Landlord has not leased and
is not then in active discussions to lease Xxxxx 000 xx Xxxxx 000 to prospective
tenants, Landlord shall offer to lease to Tenant the Suite(s) requested by
Tenant in whole and not in part on the terms and conditions then being offered
by Landlord to prospective tenants for comparable space. Such offer shall be
made by Landlord in writing within thirty (30) days after Landlord's receipt of
Tenant's notice(s). Tenant shall have five (5) business days from the date of
Landlord's offer to accept Landlord's terms and conditions as offered, it being
understood that if Tenant does not give Landlord notice of such acceptance
within such five (5) business day period, Tenant shall be deemed to have
rejected Landlord's offer and Landlord shall be free to lease the applicable
Suite(s) to prospective tenant(s) other than Tenant. If Tenant accepts
Landlord's offer within such five (5) business day period, Landlord and Tenant
shall use commercially reasonable efforts to enter into a lease for such
suite(s) or an amendment to this Lease including such space as part of the
Demised Premises, provided, however, if such lease or amendment covering such
Suite(s) is not executed and delivered by Landlord and Tenant within twenty (20)
days after Landlord's original offer, Landlord shall be free to lease such space
to prospective tenant(s) other than Tenant.
11. Subject to availability, if Tenant requests in writing up to two (2)
Building parking spaces, Landlord shall offer to Tenant for use the number of
spaces so requested in such notice on the terms then being offered by Landlord
for available Building parking spaces. Such terms are subject to change from
time to time and may, among other things, require Tenant to enter into an
amendment to the Lease setting forth the terms and conditions of such parking
rights.
12. Supplementing Article 11.C. of the Lease, Landlord shall not
unreasonably withhold its consent to a proposed sublease or assignment to
another tenant in the Building; or any prospective Building tenant first
identified as such by Landlord when presented in writing by notice to Landlord
by Tenant, unless at the date of Tenant's request for Landlord's consent and as
of the effective date of such assignment or sublease, both (a) Landlord has any
comparable size space in the Building available for lease or coming available
for lease within the four (4) month period succeeding each such date and (b) the
term of such Building tenant's lease (or any of its leases) has less than twelve
(12) full calendar months remaining as of each such date. Landlord's
determination with respect to the nature and character of the prospective
tenant's business set forth in Article 11.C. shall remain unaffected by this
paragraph 14.
13. Landlord and Tenant each warrant and represent to the other that
neither employed, dealt with nor negotiated with any broker in connection with
this transaction other than Xxxxxxx & Xxxxxxxxx of New Jersey and Xxxxx & Xxxxx
Company ("Broker") and each
5
agrees to indemnify and hold harmless the other against any loss, cost or
expense (including reasonable attorneys' fees) arising out of a breach of such
representation by the indemnitor. Landlord shall pay any commission owing Broker
pursuant to a separate agreement.
14. Except as expressly modified herein, Landlord and Tenant affirm that
the Lease is in full force and effect, and Tenant certifies that all obligations
of Landlord under the Lease as of this date have been fully performed and
complied with by Landlord. By entering into this Modification, Landlord does not
and shall not be deemed either (i) to waive or forgive any default, rent arrears
or other conditions with respect to the Leases or the use of the Demised
Premises, whether or not in existence or known to Landlord at the date hereof,
or (ii) to consent to any matter as to which Landlord's consent is required
under the terms of the Leases, except such as may heretofore have been waived in
writing or consented to in writing by Landlord.
15. Tenant represents and warrants that it has obtained all required
consents to enter into this Amendment.
16. As expressly amended by this Amendment, all of the terms, covenants
and conditions of the Lease are hereby ratified and confirmed and, except
insofar as reference to the contrary is made in any such instrument, all
references to the "Lease" in any future correspondence or notice shall be deemed
to refer to the Lease as amended by this Amendment.
IN WITNESS WHEREOF, the parties have this day set their hands and seals.
Signed, Sealed and Delivered
In the presence of LANDLORD:
XXXXXXXXXX ASSOCIATES, LP (Landlord)
By: Denzar at Xxxxxxxxxx, L.L,C.
General Partner
___________________________ By:_____________________________
Xxxxxx X. Xxxxxxxx, Co-Manager
TENANT:
FUNDTECH CORP., INC.
___________________________ By:___________________________________
Name:
Title:
6
EXHIBIT A
[GRAPHIC OMITTED]
7
SECOND AMENDMENT TO LEASE
-------------------------
THIS SECOND AMENDMENT TO LEASE, made as of March 29, 2001 (this
"Amendment"), between XXXXXXXXXX ASSOCIATES, L.P. ("Landlord") and FUNDTECH
CORPORATION, INC. ("Tenant").
RECITALS:
A. Landlord's predecessor in interest and Tenant entered into a standard
office building lease dated June 14, 1995; as amended by lease amendment and
endorsement dated February 14, 1997, as further amended by lease amendment and
endorsement dated April 15, 1997, as further amended by third amendment to lease
dated August 14, 1997, as further amended by fourth amendment to lease date
November 24, 1997 and Landlord and Tenant entered into a lease, dated August 30,
1999, as amended by First Amendment to Lease and Consolidation Agreement dated
October 1, 2000 (as so amended and consolidated, the "Lease") which Lease
demises approximately 3,505 gross rentable square feet in Suite 505,
approximately 1,396 gross rentable square feet in Suite 690, and approximately
10,254 gross rentable square feet in Suite 501 (collectively, the "Existing
Premises").
B. Tenant desires to hire from Landlord additional space in the Building
comprising approximately 10,603 gross rentable square feet in Suite 800, as such
additional space is depicted on Exhibit A attached hereto (the "New Premises";
the New Premises and the Existing Premises together, the "Demised Premises"),
and Landlord is willing to lease the New Premises to Tenant on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby conclusively acknowledged, Landlord and Tenant hereby agree as
follows:
1. Landlord shall provide Tenant with a rent credit in the total amount of
S7500.00 (the "Rent Credit") toward the cost of improving the New Premises. The
Rent Credit, or applicable portions thereof, shall be applied to the next
occurring installments of Base Rent payable under the Lease after Landlord
receives from Tenant in form and content reasonably satisfactory to Landlord:
(a) paid invoices reflecting the expenditure of at least the amount of Rent
Credit being requested on account of the aforementioned work (b) final lien
waivers duly executed by all contractors and subcontractors performing such work
indicating that such work has been completed and paid for in full and (c) a
certification from Tenant stating the amount of the Rent Credit requested, a
description of the work performed, a listing of all contractors and
subcontractors that performed such work and a certification that such work has
been completed in accordance with the terms of the Lease.
2. Commencing on April 1, 2001 (the "New Premises Commencement Date") and
continuing until March 31, 2009 (the "New Premises Term") the Lease shall be
deemed modified to include the following:
(a) Base Rent for the New Premises shall be:
Period: Monthly Installment:
------ -------------------
April 1, 2001 to March 31, 2009: $30,925.42
(b) Tenant's electricity shall continue to be directly sub-metered in
accordance with Article 10F.
(c) Tenant's Percentage for the New Premises shall be 3.72%.
(d) Tenant's Base Year for the New Premises shall be calendar year 2001
in accordance with Article 4 of the Lease.
(e) Tenant shall pay its percentage of any expense increase or tax
increase over its Base Year.
(f) Exhibit A of the Lease shall be modified to include Exhibit A
attached hereto, and the "Premises" and the "Demised Premises"
under the Lease shall include the New Premises hereunder.
3. Concurrently herewith, Tenant has deposited with Landlord a letter of
credit in a form satisfactory to Landlord in the amount of $250,000.00. Provided
Tenant is not in default of any of the terms of the Lease on the 1st, 2nd, 3rd,
or 4th anniversary of the New Premises Commencement Date, the letter of credit
may be reduced by $50,000.00 on each of the four (4) anniversary dates so that
after four (4) years the balance of the letter of credit shall be $50,000.00
for, the remainder of the New Premises Term.
4. Provided Tenant is not in default of any of the terms of the Lease at
the end of the New Premises Term, Tenant shall have the option to renew the
Lease with respect to the New Premises only (the "Renewal Option") as set forth
on Exhibit B hereto attached.
5. Tenant shall have the right, subject to any rights that the existing
tenant may have to renew, to lease an additional 6,692 gross rentable square
feet on the 80th floor ("Additional Space") in the Building. The term of the
existing lease on the Additional Space expires on February 28, 2003. If Tenant
desires to lease the Additional Space, Tenant shall notify Landlord in writing
no later than February 28, 2002. Provided (i) Landlord receives Tenant's notice
of intention within the timeframe set forth herein, (ii) Tenant is not in
default under the Lease at the time Landlord receives such notice and (iii)
Landlord has not leased and is not then in active discussions to lease the
Additional Space to prospective tenants, Landlord shall offer to lease to Tenant
the Additional Space in whole or in part on the terms and conditions then being
offered by Landlord to prospective tenants for comparable space. Such offer
shall be made by Landlord in writing within thirty (30) days after Landlord's
receipt of Tenant's notice. Tenant shall have five (5) business days from the
date of Landlord's offer to accept Landlord's terms and conditions as offered,
it being understood that if Tenant does not give Landlord notice of such
acceptance within such five (5) business day period, Tenant shall be deemed to
have rejected Landlord's offer and Landlord shall be free to lease the
Additional Space to prospective tenants other than Tenant, If Tenant accepts
Landlord's offer within such five (5) business day period, Landlord and Tenant
shall use commercially reasonable efforts to enter into a lease for the
Additional Space or an amendment to the Lease including the Additional Space as
part of the Demised Premises, provided, however, if such lease or amendment
covering the Additional Space is not executed and delivered by Landlord and
Tenant within twenty (20) days after
2
Landlord's original offer, Landlord shall be free to lease such space to
prospective tenants other than Tenant.
6. Landlord and Tenant each warrant and represent to the other that
neither employed, dealt with nor negotiated with any broker in connection with
this transaction other than Xxxxx & Xxxxx and Xxxxxxxx Associates ("Brokers")
and each agrees to indemnify and hold harmless the other against any loss, cost
or expense (including reasonable attorneys' fees) arising out of a breach of
such representation by the indemnitor. Landlord shall pay any commission owing
Brokers pursuant to a separate agreement.
7. Except as expressly modified herein, Landlord and Tenant affirm that
the Lease is in full force and effect, and Tenant certifies that all obligations
of Landlord under the Lease as of this date have been fully performed and
complied with by Landlord. By entering into this Amendment, Landlord does not
and shall not be deemed either (i) to waive or forgive any default, rent arrears
or other conditions with respect to the Lease or the use of the Demised
Premises, whether or not in existence or known to Landlord at the date hereof,
or (ii) to consent to any matter as to which Landlord's consent is required
under the terms of the Lease, except such as may heretofore have been waived in
writing or consented to in writing by Landlord.
8. All capitalized terms and other terms not otherwise defined herein
shall have the meanings ascribed to them in the Lease,
9. Tenant represents and warrants that it has obtained all required
consents to enter into this Amendment.
10. Except as expressly modified or amended by this Amendment, all of the
terms, covenants and conditions of the Lease are hereby ratified and confirmed
and, except insofar as reference to the contrary is made in any such instrument,
all references to the "Lease" in any future correspondence or notice shall be
deemed to refer to the Lease as modified by this Amendment.
3
IN WITNESS WHEREOF, the parties have this day set their hands and seals.
Signed, Sealed and Delivered
In the presence of LANDLORD:
XXXXXXXXXX ASSOCIATES, LP (Landlord)
By: Denzar at Xxxxxxxxxx, L.L,C.
General Partner
____________________________ By:_______________________________
Xxxxxx X. Xxxxxxxx, Co-Manager
TENANT:
FUNDTECH CORPORATION, INC.
____________________________ By:_______________________________
Name:
Title:
4
Exhibit A
New Premises
[GRAPHIC OMITTED]
5
Exhibit B
---------
Renewal Option
OPTION TO RENEW. If Tenant is not in default of any of the terms and
conditions of the Lease, Tenant shall have the option ("Option") to renew the
Lease with respect to Suite 800 only for a period of five (5) years from the
expiration date of the New Premises Term (the "Renewal Term") all upon the terms
and conditions herein set forth. The option shall be exercised, if at all, by
Tenant giving written notice of exercise to Landlord, which notice must be
received by Landlord no less than twelve (12) months prior to the expiration
date of the New Premises Term.
Tenant's rights to renew the Lease as set forth above shall be voidable by
Landlord if:
(a) the notice referred to in the preceding paragraph is not
received by Landlord on or before the date which is twelve
(12) months prior to the expiration date of the New Premises
Term; or
(b) prior to the first day of the Renewal Term there occurs a
default which is not cured by Tenant under the Lease.
During the Renewal Term all of the terms, covenants and conditions of the
Lease shall continue to apply, except as specifically otherwise provided herein.
Tenant shall pay the Base Rent hereinafter specified plus the Additional
Rent as set forth in the Lease. During the first year of the Renewal Term there
shall be paid annually the Base Rent payable in the last month of initial New
Premises Term increased; if applicable, in the event of an increase in the Cost
of Living Index based on an application of the cost of living formula which is
hereinafter defined as follows:
At the inception of the Renewal Term, there shall be compared the
"All Items" Index figures, New York, Northeastern New Jersey - of
the "Consumer Price Index for All Urban Consumers" (revised CPI-U)
(1982-1984 equals 100) published by the Bureau of Labor Statistics
of the United States Department of Labor (in this paragraph
hereinafter referred to as the "Index") for the first month of the
original New Premises Term with the first month of the Renewal Term.
If there is an increase in the Index for the first month of the
Renewal Term compared to the Index for the first month of the New
Premises Term said increase in Index figures shall be used to
determine the applicable percentage of increase in the first year of
the Renewal Term which shall be the basis for determining the Base
Rent increase over the Base Rent payable in the initial term in
accordance with the formula set forth, and as shown in the following
example:
6
EXAMPLE: If the Index Figure for the first month of the term is 100 (the
denominator) and the Index figure for the first month of the Renewal
Term is 110, the increase in the Index figures will produce an
increase of 10% in Base Rent during the first year of the Renewal
Term.
(110-100)
---------
100
Since the rent payment for at least the first month of the Renewal Term
will have been paid prior to the determination of any applicable rent increase,
any increase for months already elapsed after commencement of the Renewal Term
shall then be added to the next monthly rent payment then becoming due and
payable.
Anything herein contained to the contrary notwithstanding, it is expressly
understood and agreed that the minimum Base Rent during the Renewal Term shall
not be less than the Base Rent in the initial New Premises Term.
It is understood and agreed that should the applicable Index figure not be
published for any particular month when the same shall be applicable under the
terms of the Lease, the last published figure prior to the date shall be used,
but such prior figure shall not be retroactive for a period in excess of three
(3) months. In the event that the applicable Index figure is discontinued by way
of publication with respect to the Index, then and in that event, there shall be
substituted an equivalent and substituted Cost of Living Index satisfactory to
both parties to be applied in the same manner- as in the Lease provided. In the
event the parties cannot mutually agree as to the equivalent substituted Index,
then and in that event the question should be submitted for arbitration to the
American Arbitration Association.
If the base year (1982-1984 equal to 100) herein above referred to with
respect to the "Index" shall be changed after the execution of the Lease,
appropriate adjustments based on such new Index shall be made by Landlord so as
to have a proper application of the Cost of Living formula.
7
THIRD AMENDMENT
---------------
This Third Amendment to Lease is dated this 14th day of August 1997 by and
between UKRAINIAN NATIONAL URBAN RENEWAL CORPORATION ("UNURC") as "Current
Landlord", XXXXXXXXXX ASSOCIATES, L.P. as "New Landlord" and FUNDTECH
CORPORATION, INC. as "Tenant".
1. By agreements dated June 14, 1995, February 14, 1997 and April 15, 1997
(all hereinafter referred to as "the Lease") Current Landlord and UNURC entered
into a Lease for Suite 501.
2. Pursuant to the Lease, Tenant rents 6,325 rentable square feet at 00
Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx for a term of three years which
commenced June 1, 1997 and terminates May 31, 2000.
3. Tenant is currently in arrears in the amount of approximately $100,000.
Tenant and Current Landlord agree that this arrearage shall be settled by
payment from Tenant to Current Landlord in the amount of $50,000 payable in
twelve (12) equal monthly installments, each in the amount of $4,166.66. Should
Tenant default in any payment due hereunder, the obligation of Current Landlord
to accept $50,000 as full payment shall be voided and Current Landlord shall be
entitled to the full $100,000 together with all costs, including reasonable
attorneys fees, for collecting same.
4. Current Landlord, New Landlord and Tenant acknowledge that rent for the
month of August has been paid in the amount of $10,542 in fixed rent plus
$922.40 in tenant electric. Tenant shall continue to make timely rental payments
of this amount not withstanding the absence of a certificate of occupancy for
its most recently renovated space.
5. New Landlord agrees that it shall solve tenant's air conditioning problems.
Within the sixty (60) days of the date hereof, New Landlord shall provide Tenant
with a program to air condition Tenant's space during business hours on business
days as defined in the Lease to temperatures consistent with a first class
office building. All work necessary to correctly air condition the space shall
be completed by Landlord at Landlord's sole cost and expense promptly
thereafter. Tenant acknowledges that there is no other unfinished work at the
Premises other than a) small re-tiling need front entrance, b) replacement of
missing ceiling tiles, c) wallpapering of partially prepared wall, d) painting
of one wall, e) recarpeting of conference room. UNURC shall complete items (a)
through (e) within sixty (60) days.
6. Except as modified herein, all terms and conditions of the Lease shall
remain in full force and effect.
UKRAINIAN NATIONAL URBAN RENEWAL
CORPORATION, Current Landlord
-------------------------------------------
XXXXXXXXXX ASSOCIATES, L.P.
BY: DENZAR AT XXXXXXXXXX, L.L.C.,
New Landlord
___________________________________________
By: Xxxxxx X. Xxxxxxxx, Co-Manager
FUNDTECH CORPORATION, INC., Tenant
-------------------------------------------
FOURTH AMENDMENT
This Fourth Amendment to Lease is made this 24th day of November, 1997 by
and between XXXXXXXXXX ASSOCIATES, L.P. successor in interest to Ukrainian
National Urban Renewal Corporation (the "Landlord") and FUNDTECH CORPORATION,
INC. (the "Tenant").
1. By agreements dated June 14, 1995, February 14, 1997, April 15, 1997, and
August 14, 1997 (the "Lease"), Landlord's predecessor in interested leased to
Tenant 6,325 rentable square feet (the "Demised Premises") in Suite 501 at 00
Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx for a term commencing on June 1, 1995
and terminating on May 31, 2000.
2. For value received and mutual consent, Tenant and Landlord desire to expand
Tenant's Demised Premises and extend Tenant's Lease all on the terms and
conditions set forth herein.
3. Landlord shall lease to Tenant an additional 3,298 rentable square feet
(the "Additional Premises") adjoining the Demised Premises. Tenant's total
square footage shall be 9,623.
4. Landlord's Work with respect to the Additional Premises as outlined on
Exhibit A hereto attached shall include the following:
A. Build eight (8) private offices.
B. Paint to match Demised Premises.
C. Match carpeting and base in Demised Premises.
D. 2X4 lay in ceiling with fluorescent lights.
E. Duplex outlets - 2 per room.
F. Create "finished" connection between Demised Premises and
Additional Premises.
G. Install HVAC distribution.
5. Landlord also agrees to balance the air distribution in the Demised
Premises by adding the necessary diffusers. Landlord shall also install by
December 31, 1998, an energy management system which will control and monitor
the heating and cooling systems more efficiently and effectively.
6. Upon completion of the items outlined in Item #4, estimated to be on or
about December 1, 1997, a new three (3) year term shall commence (the
"Commencement Date") on all of Tenant's space. This term shall terminate on the
third (3rd) anniversary of the Commencement Date, estimated to be on or about
November 30, 2000. Tenant's Base Rent shall be $199,056.00 per annum; $16,588.00
per month and Tenant Electric shall be $16,840.25 per annum; $1,403.35 per month
unless Landlord elects to resurveyed as provided in item 6f of the Lease.
7. Item 32 of the Lease shall be amended to read Xxxxxxx & Xxxxxxxxx of NJ,
Inc. Tenant represents that it has dealt with no other broker in connection with
this transaction other than Xxxxxxx & Wakefield of NJ, Inc. Based upon this
representation, Landlord represents that Tenant shall not be responsible for
brokerage fees relating to this transaction.
8. Tenant's percentage shall be 3.38% based upon 285,000 square feet.
9. Landlord currently holds $12,816.30 as Tenant's Security Deposit. Tenant
shall increase its Security Deposit by $12,092.66 for a total Security Deposit
of $24,908.96. Tenant shall not be entitled interest on its Security Deposit.
10. All payments of rent or additional rent which are made more than ten (10)
days after the due date thereof shall be assessed a late charge equal to five
percent (5%).
11. Tenant's right to cancel the Lease on June 1, 1999 shall no longer be
valid.
12. Landlord represents that the following item remains uncompleted from the
Third Amendment and said item shall be completed on or before the Commencement
Date of the Additional Premises.
A. Recarpeting of conference room.
13. Except as modified herein, all terms, conditions, covenants, and
stipulations of the Lease shall remain in full force and effect.
14. This Fourth Amendment shall be attached to and made part of the Lease.
XXXXXXXXXX ASSOCIATES, L.P.
BY: DENZAR AT XXXXXXXXXX, L.L.C., Landlord
_______________________________________
By: Xxxxxx X. Xxxxxxxx, Managing Member
FUNDTECH CORP., INC., Tenant
_______________________________________
By:
