LEASE AGREEMENT
Exhibit
10.1.4
THIS LEASE AGREEMENT, dated as of June 30, 2017, between
LMR USA LLC, a New York
limited liability company, having an address at X.X. Xxx 000000,
Xxxxxxxx, Xxx Xxxx 00000 ("Landlord"), and NETWORK BILLING SYSTEMS LLC D/B/A
FUSION, a New Jersey limited
liability company, as of the date of this agreement having
an address at 000 XX Xxxxx 00 Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000
("Tenant").
1.
Premises.
The Landlord does hereby lease to the Tenant and the Tenant does
hereby rent from the Landlord, the premises known as: approximately
13,511 rentable square feet
on the Second (2) floor,
Northwest corner and described on the schedule attached hereto as
Exhibit "A"
(“Premises”) and up to 1,467 of windowless storage
space located on the first floor of the building known as 000 Xxxxx
00, Xxxxxxxxx, Xxx Xxxxxx (herein designated as the
“Building”). All space and building areas shall be in
accordance with BOMA ANSI Z 65.1
1980 (Reaffirmed 1996). In addition thereto, Tenant shall
have the right to use, on a non-exclusive basis, and in common with
the other tenants of the Building, the Common Areas of the
Building, which include the lobby seating area, fitness center,
cafeteria, common conference rooms to be built and the number of
parking spaces identified elsewhere herein.
2. Term.
Ten (10) years
and Ten (10) months (“Term”)
commencing on the Commencement Date
(as defined in Section 3 herein).
3. Commencement
Date.
3.1 This
Lease shall commence on the Commencement Date and shall be for the
Term, plus the portion of a calendar month, if any, from the
Commencement Date to the last day of the calendar month in which
such Commencement Date occurs. As used in this Lease, the term
“Commencement Date", as advanced or postponed pursuant to the
terms hereof, shall be defined as the last to
occur of:
(a)
November 1, 2017; or
(b) the
date on which the Tenant shall receive a certificate of occupancy
or a temporary certificate of occupancy for the Premises;
or
(c) the
date on which the Premises are "substantially completed" (as
defined in Section 3.3).
3.2 Notwithstanding
anything herein to the contrary, if this Lease is fully executed on
or before June 30, 2017, Landlord shall use all commercially
reasonable efforts to Substantially Complete (as defined below) the
Premises on or before October 15,
2017 (hereinafter the “Target Date”), without
penalty.
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3.3. Substantial
Completion. Subject to the provisions of Section 34,
Landlord shall use all commercially reasonable efforts to
"substantially complete" the Premises by the Target Date.
"Substantially Complete” means that: (i) the construction of
the improvements described in Section 34 have been completed so
that Tenant can legally occupy and use the Premises for their
intended purposes without material interference to Tenant
conducting its ordinary business activities in and from the
Premises, (ii) Tenant has ready access to the Building and Premises
through the lobby, hallways and elevators, (iii) the Premises are
ready for installation of any equipment, furniture, fixtures or
decoration that Tenant will install, and (iv) Tenant shall have
received three (3) business days prior written notice that the
Premises are available for its occupancy.
4.
Use of
Premises. Tenant
covenants that Tenant shall use and occupy the Premises
continuously during the Term and solely as general office use, warehousing of telecom
equipment (in storage space) or any other affiliated lawful
use in accordance with applicable zoning regulations and for
no other purpose; however Tenant shall be responsible for all c/o
applications associated with work performed following Tenant taking
possession of the Premises. C/o applications associated with work
to be performed by Landlord shall be obtained by Landlord. For
purposes of this Lease, the term “general office use”
shall not include use as a school, college, university, or
educational institution of any type, use for any purpose which in
not consistent with the operation of the Building as a first-class
office building, use as a recruitment or temporary help service or
agency, or any use involving regular traffic by the general public.
The Tenant shall not, and shall not allow others, to occupy or use
the Premises or any part thereof for any purposes other than as
herein limited, nor for any purpose deemed unlawful, disreputable,
or extra hazardous, on account of fire or other
casualty.
Tenant
shall not use or occupy the Premises in violation of any
certificate of occupancy, permit, or other governmental consent
issued for the Building, a copy of which will be delivered to
Tenant promptly upon request but in no event later than five (5)
business days. If any governmental authority, after the
commencement of the Term, shall contend or declare that the
Premises are being used for a purpose which is in violation of such
certificate of occupancy, permit, or consent, then Tenant shall,
upon five (5) business days’ written notice from Landlord
immediately discontinue such use of the Premises. If thereafter the
governmental authority asserting such violation threatens,
commences or continues criminal or civil proceedings against
Landlord for Tenant's failure to discontinue such use, in addition
to any and all rights, privileges and remedies given to Landlord
under this Lease for a default, Landlord shall have the right to
terminate this Lease forthwith. Tenant shall indemnify and hold
Landlord harmless of and from any and all liability for any such
violation or violations.
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5.
“Annual Base
Rent" shall mean the amount set forth herein below which
does not include the 1,467 sq. feet of window less storage space
located on the first floor of the Building.
|
YEAR
|
ANNUAL BASE RENT
|
MONTHLY BASE RENT
|
Amount P.S.F
|
|
Year 1
|
$32,651.58
|
$16,325.79
|
14.50
|
|
Year 2
|
$202,665.00
|
$16,888.75
|
15.00
|
|
Year 3
|
$209,420.50
|
$17,451.71
|
15.50
|
|
Year 4
|
$216,176.00
|
$18,014.67
|
16.00
|
|
Year 5
|
$222,931.50
|
$18,577.63
|
16.50
|
|
Year 6
|
$229,687.00
|
$19,140.58
|
17.00
|
|
Year 7
|
$236,442.50
|
$19,703.54
|
17.50
|
|
Year 8
|
$243,198.00
|
$20,266.50
|
18.00
|
|
Year 9
|
$249,953.50
|
$20,829.46
|
18.50
|
|
Year 10
|
$256,709.00
|
$21,392.42
|
19.00
|
|
10 months
|
$219,553.75
|
$21,955.38
|
19.50
|
5.1
Free
Rent:
5.1.1
Tenant shall receive the following months free of
rent:
Ten (10) months’ free rent starting on the Commencement
Date.
Free
rent excludes electricity charges associated with the Premises but
includes CAM, utility taxes or any other additional rent for which
Tenant is responsible to pay.
5.1.2
If the Premises are not accessible due
to flooding, Tenant shall receive five (5) days of free rent for
each day the Premises are not accessible. In
addition, if Building
services are interrupted to all or any part of the Premises as a
result of Landlord’s fault or negligence, for more than ten
(10) consecutive days, then Tenant shall have the right to cease
paying its Base Rent and Additional Rent payments (pro-rated based
upon the portion of the Premises not receiving the services)
beginning with the day of interruption, until such services are
reinstated.
5.2
Storage
space,
5.2.1.
Landlord will provide Tenant with windowless storage space located
on the first (1st) floor of the Building, consisting of
approx. 1,467square
feet.
5.2.2 The Base rent
for this “storage ” space shall initially be charged at
an annual rate of $8.00 per square feet, and shall be subject to
annual increase at the same rate as provided for the other space
leased hereunder by Tenant.
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5.2.3
In addition to the Base rent for the storage space, Tenant agrees
to pay Landlord an additional sum of $1.75 per square feet per month for
electricity usage within the “storage
space.”
5.2.4
Tenant shall be responsible for all other CAM and other expenses,
as contemplated by section 7.
5.3
Renewal
Option.
5.3.1 Exercise
of Option. Tenant shall have the right, at its sole option,
to renew the term of the Lease for all or a portion of the Premises
(each a "Renewal
Option" and collectively, the “Renewal Options”)
for two additional terms of five (5) years each (each a "Renewal
Term" and collectively, the “Renewal Terms”). The
Renewal Options may be exercised by Tenant by delivering a written
notice to Landlord (the "Renewal Notice") stating that Tenant is
exercising the Renewal Option, which notice must be delivered to
Landlord no less than nine (9) months prior to the end of the then
applicable Lease Term . Upon the giving of the Renewal Notice, the
Lease shall be deemed renewed for the applicable Renewal Term with
the same force and effect as if such Renewal Term had originally
been included in the original term, and the Lease expiration date
shall be appropriately extended. Each Renewal Term shall commence
on the day after the then existing Lease expiration date (the
"Renewal Terms Commencement Date") and shall expire at 11:59 p.m.
on the date preceding the fifth (5th) anniversary of the
Renewal Term Commencement Date
5.3.2 Terms.
All of the terms, covenants and conditions of the Lease shall
continue in full force and effect during each Renewal Terms, except
that (i) the rent for the first year of each Renewal Term shall be
based on 100% of the fair market value as defined by reasonable
brokers with the average. of 3 broker opinions used for the
valuation, (ii) the rent for each subsequent year of the Renewal
Term will increase by $.50 p.s.f, (iii) the Tax Base (as defined
elsewhere herein) for the Renewal Term will change at the beginning
of each Renewal Term, (iv) in the event that Tenant elects to renew
the Lease for a portion of the Premises only, then for the purposes
of calculating Tenant's Tax Payment (as defined elsewhere herein)
allocable to the Renewal Term Tenant's Proportionate Share as
defined elsewhere herein) shall be deemed to be the fraction,
expressed as a percentage, the numerator of which shall be the
number of rentable square feet included within such portion of the
Premises so renewed and the denominator of which shall be the
number of rentable square feet in the Building, and (v) there shall
be no rent free periods or other agreed periods of rent
abatement.
5.4
Right of First Offer:
5.4.1 Landlord
hereby grants Tenant an ongoing Right of First Offer
(“ROFO”) of any space that becomes available throughout
the entire Building. Once a tenant gives notice of a vacancy,
Landlord shall promptly give notice to the Tenant with priority of
the availability. (“offer notice”). Upon receipt Tenant
of the offer notice, Tenant shall provide Landlord with a written
notice (“acceptance or rejection notice”) within ten
(10) business days. Should Tenant fail provide the required notice
or specifically accept the additional space, the Landlord may
market the vacated space.
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5.4.2
The Base rent for the “ROFO” space (the “Offer
Space”) shall be based on 100% of fair market value as
determined in accordance with the mechanism set forth in paragraph
5.3.2 above.
5.4.3
For purposes of calculating Tenant's Tax Payment and Building
Operating Expenses allocable to the Offer Space, Tenant's Share (as
defined elsewhere herein) shall be deemed to be the fraction,
expressed as a percentage, the numerator of which shall be the
number of rentable square feet included within the Offer Space
calculated using the same loss factor as the denominator, and the
denominator of which shall be the number of rentable square feet in
the Building
5.4.4
This ROFO is subject to the ROFO rights of other existing
tenants.
6
..
Security.
6.1 In
lieu of the cash security required by this Lease, Tenant shall
provide to Landlord an irrevocable transferable Letter of Credit in
the amount of $450,000.00, in form and substance reasonably
satisfactory to Landlord and issued by a financial institution
reasonably approved by Landlord. Landlord shall have the right,
upon written notice to Tenant and regardless of the exercise of any
other remedy the Landlord may have by reason of a default by
Tenant, to draw upon said Letter of Credit to cure any default of
Tenant or for any purpose authorized by this Lease and, if Landlord
does so, Tenant shall, upon Landlord’s written demand but
subject to the table below, fund the Letter of Credit to the full
amount then required. In the event of a sale of the Building or a
lease of the Building subject to this Lease, Landlord shall have
the right to transfer the security to the new owner or Building
lessee.
After
22 months the Letter of Credit shall be reduced to
$250,000.00
After
34 months the Letter of Credit shall be reduced to
$200,000.00
After
46 months the Letter of Credit shall be lowered to
$100,000.00
After
58 months the Letter of Credit shall be lowered to $
50,000.00
The
required Letter of Credit shall expire not earlier that thirty (30)
days after the expiration date of the Lease. Upon Landlord’s
prior consent, the Letter of Credit may be of the type which is
automatic renewed on an annual basis (annual renewal date),
provided however, in such event Tenant shall maintain the Letter of
Credit and its renewals in full force and effect during the entire
Term of this Lease (including any renewals or extensions) and for a
period of thirty (30) days thereafter. The Letter of Credit will
contain a provision requiring this issuer thereto give the Landlord
no less than sixty (60) days’ advance written notice of the
Tenant’s intention not to renew the Letter of Credit on the
next annual renewal date.
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7.
Rent, Operating Expense and Property Taxes.
7.1 Base
Rent. As rent for the Premises during each year of the Term,
Tenant shall pay to Landlord the Annual Base Rent, in equal monthly
installments, in advance on the first day of each calendar month
during the Term, and without deduction, setoff or demand in
accordance with the schedule set forth in Section 5.
7.2. Definitions.
For the purposes
hereof, the following definitions shall apply:
7.2.1
“Property" shall mean the Building, the land upon which same
is situated and all fixtures and equipment thereon or therein, all
commonly owned or shared appurtenances, including but not limited
to, parking areas, walkways, landscaping and utilities, whether
located on the land upon which the Building is situated or
elsewhere.
7.2.2
"Building Expenses" shall be all those expenses paid or incurred by
Landlord in connection with the owning, maintaining, operating and
repairing of the Property or any part thereof, in a manner deemed
reasonable and appropriate by Landlord and shall include, without
limitation, the following:
7.2.2.1
All costs and expenses of operating, repairing, lighting, cleaning,
and insuring (including liability for personal injury, death and
property damage and workers' compensation insurance covering
personnel) the Property or any part thereof, as well as all costs
incurred in removing snow, ice and debris therefrom and of policing
and regulating traffic with respect thereto, and depreciation of
all machinery and equipment used therein or thereon, replacing or
repairing of pavement, parking areas, curbs, walkways, drainage,
lighting facilities, landscaping (including replanting and
replacing flowers and other planting);
7.2.2.2.
Electricity, steam and fuel used in lighting, heating, ventilating
and air conditioning (which are not reimbursed by Tenant and other
tenants of the Building pursuant to the provisions Section 24
below) and all costs, charges, and expenses incurred by Landlord in
connection with any change of any company providing electricity
service including, without limitation, maintenance, repair,
installation and service costs associated therewith;
7.2.2.3
Maintenance and repair of mechanical and electrical equipment
including heating, ventilating and air conditioning
equipment;
7.2.2.4
Window cleaning and janitor service, including equipment, uniforms
and supplies and sundries as described in the applicable schedule
hereto;
7.2.2.5
Maintenance of elevators, stairways, rest rooms, lobbies, hallways
and other Common Areas;
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7.2.2.6
Repainting and redecoration of all Common Areas;
7.2.2.7
Repair and maintenance of the parking areas, including without
limitation the resurfacing and striping of said areas;
7.2.2.8
Sales or use taxes on supplies or services;
7.2.2.9 Costs incurred to ensure that any
systems serving the Building (including, without limitation,
elevator equipment security devices, alarm systems, HVAC equipment
and utility equipment) will accurately process date and/or time
data;
7.2.2.10 Management
fees, administrative fee, wages, salaries and compensation of all
persons engaged in the maintenance, operation or repair of the
Property (including Landlord's share of all payroll taxes and the
cost of an on-site or near-site office and segregated storage area
for Landlord's parts, tools and supplies); The foregoing expenses of 7.2.2.10 shall not
exceed three percent (3%).
7.2.2.11 Legal,
accounting and engineering fees and expenses, except for those
related to disputes with tenants or which are a result of and/or
are based on the negligence, willful misconduct or other tortuous
conduct of Landlord or any of its employees, representatives or
agents;
7.2.2.12 Costs and
expenses that may result from compliance with any governmental laws
or regulations that were not applicable to the Common Areas at the
time same were originally constructed;
7.2.2.13 All other
expenses which under U.S. generally accepted accounting principles
would be considered as an expense of maintaining, operating or
repairing the Property. Notwithstanding the foregoing, all expenses
(whether or not such expenses are enumerated on items 1 through 12
of this Section 7.2.2) which would be considered capital in nature
under U.S. generally accepted accounting principles shall be
excluded from Building Expenses; and
7.2.2.14
Business Expenses. Controllable operating expenses shall not
include the items listed on Exhibit A attached hereto.
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7.2.3
“Taxes" shall
mean all real property taxes including currently due installments
of assessments, sewer rents, ad valorem, charges, water rates,
rents and charges, front foot benefit charges, and all other
governmental impositions in the nature of any of the foregoing.
Excluded from Taxes are (i) federal, state or local income taxes,
(ii) franchise, gift, transfer, excise, capital stock, estate or
inheritance taxes, and (iii) penalties or interest charged for late
payment of Taxes. If at any time during the Term the method of
taxation prevailing on the Commencement Date shall be altered so as
to cause the whole or any part of the items listed in the first
sentence of this subparagraph to be levied, assessed or imposed,
wholly or partly as a capital levy, or otherwise, on the rents
received from the Building, wholly or partly in lieu of imposition
of, or in addition to, the increase of taxes in the nature of real
estate taxes issued against the Property, then the charge to
Landlord resulting from such altered additional method of taxation
shall be deemed to be within the definition of
"Taxes."
7.2.4
"Common Areas" shall mean those areas and facilities which may be
from time to time furnished to the Building by Landlord for the
non-exclusive general common use of tenants and other occupants of
the Building, their officers, employees and invitees, including
(without limitation) the lobby seating area, hallways, stairs,
parking facilities, washrooms, and elevators.
7.2.5
"Lease Year" shall
mean the first twelve (12) month period following the Commencement
Date and each succeeding twelve (12) month period thereafter up to
the end of the Term; provided, however, that if the Commencement
Date shall occur on a day other than the first day of a
calendar month, then the first Lease Year shall
include
that
portion of a calendar month in which the Commencement Date occurs
in addition to the first twelve (12) month period.
7.2.6
“Lease Term” means the Term and all Renewal
Terms.
7.2.7
“Rentable Area of the Building" means approximately
158,348 rentable square
feet, subject to adjustment in accordance with BOMA
standards.
7.2.8
"Rentable Area of the Premises" means 13,511 rentable square
feet.
7.2.9
"Tenant's Proportionate Share" means that percentage which is
computed by a fraction, the numerator of which is the Rentable Area
of the Premises and the denominator of which is the Rentable Area
of the Building. As of the date of this Lease, Tenant's
Proportionate Share is approximately 9.45%.
7.2.10
“Base Year Building Expenses" shall mean the actual Building
Expenses per rentable square foot incurred by Landlord for the
2018 calendar
year.
7.2.11
"Base Year Taxes” shall mean the actual Taxes incurred by
Landlord per rentable square foot for the 2018 calendar year.
7.3. Rent
Adjustments for Taxes.
7.3.1 On
or before April 30 of each Lease Year, Landlord shall total the
Taxes and shall allocate such Taxes to the Rentable Area of the
Building in the following manner: Taxes for the foregoing calendar
year shall be totaled and such total shall be divided by the total rentable
square feet in the Building thereby deriving the "Cost of Taxes Per
Square Foot" of rentable area.
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7.3.2 In
the event that the Cost of Taxes Per Square Foot assessed for any
calendar year which is wholly or partly within the Term are greater
than the Base Year Taxes, Tenant shall pay to Landlord, as
additional rent at the time such Taxes are due and payable,
Tenant’s Proportionate Share (which, as of the date hereof,
is 9.45%) of such excess.
Any additional rent due Landlord under this Section shall be due
and payable within thirty (30) days after Landlord shall have
submitted a written statement to Tenant showing the amount due
together with a copy of the tax xxxx. For Tenant's obligation for
such additional rent at the beginning or end of the Lease, see
Section 7.5. Landlord may,
in its reasonable discretion, make a reasonable estimate of such
additional rent with respect to Taxes, and require Tenant to pay
each month during such year 1/12 of such amount, at the time of
payment of monthly installments of Base Rent. In such event, Tenant
shall pay, or Landlord shall refund or credit to Tenant's account,
any underpayment or overpayment of such additional rent within
thirty (30) days of Landlord's annual written statement of Taxes
due. Tenant shall have the right to examine, at Tenant's sole
expense, Landlord's records with respect to any such increases in
rent; provided, however, that unless Tenant shall have given
Landlord written notice of objection to any such statement within
ninety (90) days after delivery thereof, the same shall be
conclusive and binding on Tenant. No credit shall be given to
Tenant if the cost of Taxes Per Square Foot are less than the Base
Year Taxes.
All
reasonable expenses incurred by Landlord (including attorneys',
appraisers' and consultants' fees, and other costs) in contesting
any increase in Taxes or any increase in the assessment of the
Property shall be included as an item of Taxes for the purpose of
computing additional rent due hereunder. Tenant shall receive its
prorated share of any tax refunds resulting from contesting said
increases.
7.3.3 Tenant’s
pro rata share of real estate taxes based on the percentage set
forth in Section 7.3.2 above shall not increase by more than three
percent (3%) per year during the Lease Term and any renewal
thereof.
7.4
Rent Adjustments for Building
Expenses.
7.4.1
On or before April 30 of each Lease Year, Landlord shall compute
the Building Expenses for such year and shall allocate such
expenses to the Rentable Area of the Building in the following
manner: Building Expenses shall be totaled and such total shall be
divided by the total Rentable Area of the Building thereby deriving
the "Cost of Building Expenses Per Square Foot" of rentable
area.
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7.4.2
In the event that the cost of Building Expenses Per Square Foot of
rentable area for any year which is wholly or partly within the
Lease Term are greater than the Base Year Building Expenses, Tenant
shall pay to Landlord, as additional rent, Tenant’s
Proportionate Share (which as of the date hereof is 9.45%) of such excess. Such additional rent shall be computed
on a year-to-year basis. Any such additional rent shall be due
within forty-five (45) days after Landlord has submitted a written
statement to Tenant showing the amount due. Landlord may, in its
discretion, make a reasonable estimate of such additional rent with
respect to any calendar year, and require Tenant to pay each month
during such year 1/12 of such amount, at the time of payment of
monthly installments of Base Rent. In such event, Tenant shall pay,
or Landlord shall refund or credit to Tenants account, any
underpayment or overpayment of such additional rent within thirty
(30) days of Landlord's written statement of actual Building
Expenses for the applicable calendar year. Tenant, at Tenant's sole
expense, shall have the right to examine Landlord's records with
respect to any such increases in rent; provided, however, that
unless Tenant shall have given Landlord written notice of objection
to any such statement within ninety (90) days after delivery
thereof, the same shall be conclusive and binding on Tenant. No
credit shall be given to Tenant if the cost of Building Expenses
Per Square Foot are less than the Base Year Building Expenses.
Notwithstanding anything to the contrary contained herein, Landlord
shall use diligent efforts to keep Building Expenses at reasonable
amounts, while maintaining the Building as a first class office
building.
7.4.3 Controllable
operating expenses shall not increase by more than three percent
(3%) per year during the Lease Term and any renewal
thereof.
7.5 Additional
Rent Payments. Tenant’s obligation to pay any
additional rent accruing during the Lease Term pursuant to sections
7.3, 7.4 and 24 hereof shall apply pro rata to the proportionate
part of a calendar year as to Taxes and Building Expenses, in which
this Lease begins or ends, for the portion of each such year during
which this Lease is in effect. Such obligation to make payments of
such additional rent shall survive the expiration or sooner
termination of the Lease Term, whether or not this Lease is
superseded by a subsequent lease of the Premises or of any other
space or Tenant leaves the Building; any such superseding lease
shall not serve to supersede Tenant's obligation for any such
additional rent unless it makes express reference thereto and
recites that such additional rent is abated in consideration of the
superseding lease.
8.
Payments.
All payments or
installments of any rent hereunder and all sums whatsoever due
under this Lease (including but not limited to court costs and
reasonable attorney’s fees) shall be deemed rent, shall be
paid to Landlord at the address designated by Landlord. If any
amount of Annual Base Rent or additional rent shall remain unpaid
for ten (10) calendar days after such payment becomes due, Landlord
shall be entitled to charge interest at the rate of 12% per annum
until paid. Additionally, if any of Tenant's checks for payment of
rent or additional rent are returned to Landlord for insufficient
funds, Tenant shall pay to Landlord as additional rent $50.00 for
each such check returned for insufficient funds. Time is of the
essence in this Lease.
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9.
Tenant’s
Improvements.
Subsequent to the initial Leasehold improvements, Tenant
shall
have
the right to make minor alterations up to $10,000 to the Premises
which are not structural in nature, including but not limited to,
all finishes and decorations and similar items without
Landlord’s consent. Landlord will not unreasonably withhold
its consent to any other alterations, other than
structural.
Landlord
shall not charge Tenant any fees associated with alterations as
described above. Tenant shall provide Landlord with a written plan
describing the nature and scope of any work sixty (60) days in
advance of commencement.
Except
as provided above, Tenant shall make such improvements to the
Premises as it may deem necessary at its sole cost and expense.
Except as provided above in this section, Tenant shall not make any
alterations, decorations, installations, additions or improvements
to the Premises, including but not limited to, the installation of
any fixtures, equipment or other apparatus, without Landlord's
prior written consent, and then only by contractors or mechanics as
reasonably approved by Landlord; provided that in all events,
Landlord shall not unreasonably withhold, condition or delay its
consent. All such additional work, alterations, decorations,
installations, additions or improvements shall be done at
Tenant’s sole expense and at such times and in such manner as
Landlord may from time to time reasonably designate. Landlord's
consent to and/or approval of Tenant's plans and specifications for
any improvements shall create no responsibility or liability on the
part of Landlord for their completeness, design sufficiency, or
compliance with all laws, rules and regulations of governmental
agencies or authorities. All permanent alterations, decorations,
installations, additions or improvements made by either Landlord or
Tenant upon the Premises, except movable office furniture put in at
the expense of Tenant and other items as mutually agreed upon in
writing, shall be the property of Landlord and shall remain upon
and be surrendered with the Premises at the termination of this
Lease without molestation or injury. Tenant shall be required to
restore any alterations or installations made under Section 58
hereof.
10.
Repairs and
Maintenance.
10.1
Tenant's Care of the
Premises and Building. During the Lease Term Tenant
shall:
(i) keep the Premises
and the fixtures, appurtenances and improvements therein in good
order and condition;
(ii) make
repairs and replacements to the Premises required because of
Tenant's misuse or primary negligence, except to the extent that
the repairs or replacements are covered by Landlord's insurance as
required hereunder;
(iii) repair
and replace special equipment or decorative treatments installed by
or at Tenant's request and that serve the Premises only, except to
the extent the repairs or replacements are needed because of misuse
or negligence by the Landlord of any of its agents, contractors or
employees, and are not covered by Tenant's insurance as required
hereunder;
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(iv) pay
for all damage to the Building, its fixtures and appurtenances, as
well as all damages sustained by tenants or occupants of the
Building due to any waste, misuse or neglect of the Premises, its
fixtures and appurtenances by Tenant, except to the extent that the repair of such
damage is covered by Landlord's insurance as required hereunder;
and
(v) not commit
waste.
In
addition Tenant shall not place a load upon any floor of the Premises exceeding
the floor load per square foot area which such floor was designed
to carry and which may be allowed under applicable laws. Landlord
reserves the right to prescribe the weight and position of all
heavy equipment brought onto the Premises and prescribe any
reinforcing required under the circumstances, all such reinforcing
to be at Tenant's expense.
10.2
Landlords Repairs.
Except for the repairs and replacements that Tenant is required to
make pursuant to Section 10.1 above, Landlord shall make all other
repairs and replacements to the Premises, Common Areas and Building
(including Building fixtures and equipment) as shall be reasonably
deemed necessary to maintain the Building in a condition comparable
to other first class suburban office buildings in New Jersey. This
maintenance shall include the roof, foundation, exterior walls,
interior structural walls, all structural components, and all
systems such as mechanical, electrical, multi-tenant HVAC, and
plumbing. The costs associated with such repairs shall be deemed a
part of Building Expenses; provided, however, that costs of all of
such repairs which would be considered capital in nature under U.S. generally
accepted accounting principles shall be paid by Landlord. There
shall be no allowance to Tenant for a diminution of rental value,
no abatement of rent, and no liability on the part of Landlord by reason of
inconvenience, annoyance or injury to business arising from
Landlord, Tenant or others making any repairs or performing
maintenance as provided for herein, unless such inconvenience,
annoyance or injury to business is caused by the gross negligence
or willful misconduct of Landlord or its employees, agents and
representatives.
10.3
Time for Repairs.
Repairs or replacements required pursuant to Section 10.1 and 10. 2
above shall be made within a reasonable time (depending on the
nature of the repair or replacement needed; generally no more than
fifteen (15) days) after receiving notice or having
actual knowledge of
the need for a repair or replacement.
11.
Surrender of the
Premises. Upon the termination of this Lease, Tenant shall
surrender the Premises to Landlord in the same broom clean
condition that the Premises were in on the Commencement Date except
for:
(i)
ordinary wear and
tear;
(ii) damage
by the elements, fire, and other casualty unless Tenant would be
required to repair under the provisions of this Lease;
(iii) damage
arising from any cause not required to be repaired or replaced by
Tenant; and
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(iv) alterations
as permitted by this Lease unless consent was conditioned on their
removal.
On
surrender, Tenant shall remove from the Premises its personal
property, trade fixtures and any alterations required to be removed
pursuant to the terms of this Lease and repair any damage to the
Premises caused by this removal. Any items not removed by Tenant as
required above shall be considered abandoned. Landlord may dispose
of abandoned items as Landlord chooses and xxxx Tenant for the cost
of their disposal.
12.
Insurance.
12.1 Tenant's
Insurance. Tenant shall keep in force at its own expense, so
long as this Lease remains in effect, (a) public liability
insurance, including insurance against assumed or contractual
liability under this Lease, with respect to the Premises, to afford
protection with limits, per person and for each occurrence, of not
less than Two Million Dollars ($2,000,000), combined single limit,
with respect to personal injury and death and property damage, such
insurance to provide for only a reasonable deductible, (b) all-risk
property and casualty insurance, including theft, and water
insurance, written at replacement cost value and with replacement
cost endorsement, covering all of Tenant's personal property in the
Premises and all improvements installed in the Premises by or on
behalf of Tenant whether pursuant to the terms of Section 9, or
otherwise, (c) if, and to the extent, required by law, workmen's
compensation or similar insurance offering statutory coverage and
containing statutory limits, (d) and (d) business interruption
insurance in an amount sufficient to reimburse Tenant for loss of
earnings attributable to prevention of access to the Building or
the Premises for a period of at least twelve (12) months. Such
policies shall be maintained in companies and in form reasonably
acceptable to Landlord and shall be written as primary policy
coverage and not contributing with, or in excess of, any coverage
which Landlord shall carry. Tenant shall provide the policy or
policies of such required insurance or certificates thereof to
Landlord upon its written request, which policies shall name
Landlord or its designee and, at the request of Landlord, its
mortgagees, as additional named insured and shall also contain a
provision stating that such policy or policies shall not be
canceled except after thirty (30) day's written notice to Landlord
or its designees. All such policies of insurance shall be effective
as of the Commencement Date and shall be maintained in force at all
times during the Lease Term. Any insurance required of Tenant
hereunder may be furnished by Tenant under a blanket policy carried
by it, provided that such blanket policy shall contain an
endorsement that names Landlord as an additional insured,
specifically references the Premises, and guarantees a minimum
limit available for the Premises equal to or greater than the
insurance amounts required under this Article.
In
addition to the foregoing insurance coverage, Tenant shall require
any contractor retained by it to perform work on the Premises to
carry and maintain, at no expense to Landlord, during such times as
contractor is working in the Premises, a non-deductible (i)
comprehensive general liability insurance policy, including, but
not limited to, contractor's liability coverage, contractual
liability coverage, completed operations coverage, broad form
property damage endorsement and contractor's protective liability
coverage, to afford protection with limits per person and for each
occurrence, of not less than Two Hundred Thousand Dollars
($200,000.00), combined single limit, with respect to personal
injury and death and property damage, such insurance to provide for
no deductible, and (ii) workmen's compensation insurance or similar
insurance in form and amounts as required by law.
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In the
event of damage to or destruction of the Premises and the
termination of this Lease by Landlord pursuant to Section 18
herein, Tenant agrees that it shall pay Landlord all of its
insurance proceeds relating to improvements made in the Premises by
or on behalf of Tenant whether pursuant to the terms of Section 9,
or otherwise. If Tenant fails to comply with its covenants made in
this Section, if such insurance would terminate or if Landlord has
reason to believe such insurance is about to be terminated,
Landlord may at its option cause such insurance as it in its sole
judgment deems necessary to be issued, and in such event Tenant
agrees to pay promptly upon Landlord's demand, as additional rent
the premiums for such insurance.
12.2 Landlord's
Insurance. Landlord shall keep in force at its own expense (a)
contractual and comprehensive general liability insurance,
including public liability and property damage, with a minimum
combined single limit of liability of Two Million Dollars
($2,000,000.00) for personal injuries or death of persons occurring
in or about the Building and Premises, and (b) all-risk property
and casualty insurance written at replacement cost value covering
the Building and all of Landlord's improvements in and about
same.
12.3 Waiver
of Subrogation. Each party hereto waives claims arising in any
manner in its favor and against the other party and agrees that
neither party hereto shall be liable to the other party or to any
insurance company (by way of subrogation or otherwise) insuring the
other party for any loss or damage to the Building, the Premises or
other tangible property, or any resulting loss of income, or losses
under worker's compensation laws and benefits, or against liability
on or about the Building, even though such loss or damage might
have been occasioned by the negligence of such party, its agents or
employees if any such loss or damage is covered by insurance
benefiting the party suffering such loss or damage as was required
to be covered by insurance carried pursuant to this Lease. Landlord
shall cause each insurance policy carried by it insuring against
liability on or about the Building or insuring the Premises and the
Building or income resulting therefrom against loss by fire or any
of the casualties covered by the all-risk insurance carried by it
hereunder to be written in such a manner as to provide that the
insurer waives all right of recovery by way of subrogation against
Tenant in connection with any loss or damage covered by such
policies. Tenant shall cause each insurance policy carried by it
insuring against liability or insuring the Premises (including the
contents thereof and Tenant's Improvements installed therein by
Tenant or on its behalf) against loss by fire or any of the
casualties covered by the all-risk insurance required hereunder to
be written in such a manner as to provide that the insurer waives
all right of recovery by way of subrogation against Landlord in
connection with any loss or damage covered by such
policies.
12.4 Conduct
on Premises. Tenant shall not do, or permit anything to be
done in the Premises, or bring or keep anything therein which
shall, in any way, increase the rate of fire insurance on the
Building, or invalidate or conflict with the fire insurance
policies on the Building, fixtures or on property kept therein, or
obstruct or interfere with the rights of Landlord or of other
tenants, or in any other way injure or annoy Landlord or the other
tenants, or subject Landlord to any liability for injury to persons
or damage to property, or interfere with the good order of the
Building, or conflict with applicable laws, or the New Jersey Fire
Underwriters Rating Bureau, Tenant agrees that any increase of fire
insurance premiums on the Building or contents caused by the
occupancy of Tenant and any expense or cost incurred in consequence
of negligence or carelessness or the willful action of Tenant,
Tenant's employees, agents, servants, or invitees shall, as they
accrue be added to the rent heretofore reserved and be paid as
apart thereof; and Landlord shall have all the rights and remedies
for the collection of same as are conferred upon Landlord for the
collection of rent provided to be paid pursuant to the terms of
this Lease.
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13.
Rules and
Regulations. Tenant shall be bound by the rules and
regulations set forth and made apart hereof. Landlord shall have
the right, from time to time, to issue additional or amended rules
and regulations regarding the use of the Building, so long as the
rules shall be reasonable and non-discriminatory between tenants.
When so issued and after ten (10) business days' notice to Tenant,
the same shall be considered a part of this Lease and Tenant
covenants that the additional or amended rules and regulations
shall likewise be faithfully observed by Tenant, and shall use its
reasonable efforts to insure that such rules and regulations shall
be observed by the employees, clients and service providers of
Tenant, provided, that the additional or amended rules are made
applicable to all office tenants similarly situated as Tenant.
Landlord shall not be liable to Tenant for the violation of any of
the rules and regulations, or the breach of any covenant or
condition in any lease, by any other tenant in the
Building.
14.
[Intentionally omitted]
15.
Mechanics'
Liens. Tenant shall not do or suffer to be done any act,
matter or thing whereby Tenants interest in the Premises, or any
part thereof, may be encumbered by any mechanics' lien. Tenant
shall discharge, or bond within sixty (60) days after the date of
filing, any mechanics' liens filed against Tenant's interest in the
Premises, or any part thereof, purporting to be for labor or
material furnished or to be furnished to Tenant. Landlord shall not
be liable for any labor or materials furnished or to be furnished
to Tenant upon credit, and no mechanics' or other lien for labor or
materials shall attach to or affect the reversionary or other
estate or interest of Landlord in and to the Premises, or the
Property.
16.
Tenants Failure to
Repair. In the
event that Tenant fails after thirty (30) days' prior written
notice from Landlord (or fails to commence to cure within thirty
(30) days and diligently prosecute the completion if such repair is
not capable of cure within thirty (30) days), to keep the Premises
in a good state of condition and repair pursuant to Section 10
above, or to do any act or make any payment required under this
Lease or otherwise fails to comply herewith, Landlord may, at its
option (but without being obliged to do so) immediately, or at any
time thereafter and without notice, perform the same for the
account of Tenant, including the right to enter upon the Premises
at all reasonable hours to make such repairs, or do any act or make
any payment or compliance which Tenant has failed to do, and upon
demand, Tenant shall reimburse Landlord for any such expense
incurred by Landlord including but not limited to any costs,
damages and counsel fees. Any moneys expended by Landlord, as
aforesaid, shall be deemed additional rent, collectible as such by
Landlord. All rights given to Landlord in this Section shall be in addition to
any other right or remedy of Landlord herein
contained.
17.
Eminent
Domain. If (1) the whole or more than fifty percent (50%) of
the floor area of the Premises shall be taken or condemned by
Eminent Domain for any public or quasi-public use or purpose, and
either Landlord or Tenant shall elect, by giving written notice to
the other, or (2) more than twenty-five percent (25%) of the
rentable floor area of the Building shall be so taken, and Landlord
elects to terminate the leases allocable to at least 25% of the
rentable area of the Building, and Landlord shall elect, in its
sole discretion, by giving written notice to Tenant, any written
notice to be given not more than sixty (60) days after the date on
which title shall vest in such condemnation proceeding, to
terminate this Lease, then, in either such event, the Term of this
Lease shall cease and terminate as of the date of title vesting. In
case of any taking or condemnation, whether or not the Term of this
Lease shall cease and terminate, the entire award shall be the
property of Landlord, and Tenant hereby assigns to Landlord all its
right, title and interest in and to any such award, except that
Tenant shall be entitled to claim, prove and receive in the
proceedings such awards as may be allowed for moving expenses, loss
of profit and fixtures and other equipment installed by it which
shall not, under the terms of this Lease, be or become the property
of Landlord at the termination hereof, but only if such awards
shall be made by the condemnation, court or other authority in
addition to, and be stated separately from, the award made by it
for the Property or part thereof so taken .
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18.
Fire and Other
Casualty. In case of partial damage to the Premises by fire
or other casualty insured against by Landlord, Tenant shall give
immediate notice thereof to Landlord, who shall thereupon cause
damage to all property owned by it to be repaired with reasonable
speed at expense of Landlord, due allowance being made for
reasonable delay which may arise by reason of adjustment of loss
underinsurance policies on the part of Landlord and or Tenant, and
for reasonable delay on account of "labor troubles" or any other
cause beyond Landlord's reasonable control, and to the extent that
the Premises are rendered untenantable the rent shall
proportionately xxxxx from the date of such casualty, provided the
damage above mentioned occurred without the fault or neglect of
Tenant, Tenant's servants, employees, agents or visitors. If such
partial damage is due to the fault or neglect of Tenant, or
Tenant's servants, employees, agents, clients or service providers,
the damage shall be repaired by Landlord to the extent of
Landlord's insurance coverage, but there shall be no apportionment
or abatement of rent. In the event the damage shall be so extensive
to the whole Building as to render it uneconomical, in Landlord's
reasonable opinion, to restore for its present uses and Landlord
shall decide not to repair or rebuild the Building, this Lease, at
the option of Landlord, shall be terminated upon written notice to
Tenant and the rent shall, in such event, be paid to or adjusted as
of the date of such damage, and the terms of this Lease shall
expire by lapse of time and conditional limitation upon the third
day after such notice is mailed, and Tenant shall thereupon vacate
the Premises and surrender the same to Landlord and such
termination shall release Tenant.
19.
Property Loss or
Damage. Landlord, its agents and employees shall not be
liable to Tenant for (i) any damage or loss of property of Tenant
placed in the custody of persons employed to provide services for
or stored in or about the Premises and/or the Building, unless such
damage or loss is the result of the willful misconduct of Landlord,
its agents, contractors or employees, (ii) any injury or damage to
persons, property or the business of Tenant resulting from a latent
defect in the condition of the Building, and (iii) interference
with the light, air, or other incorporeal hereditaments of the
Premises.
20.
Assignment and
sublease. So long as Tenant is not in monetary default of
any of the terms and conditions hereof, and further provided that
Tenant has fully and faithfully performed all material terms and
conditions of this Lease, Landlord shall not unreasonably withhold,
condition or delay its consent to an assignment of this Lease or
sublease of the Premises for any of the then remaining portion of
the unexpired Lease Term provided: (i) the assignee shall assume
the obligations of the existing Letter of Credit or provide a
substitute letter of credit reasonably acceptable to Landlord and
the net assets of the assignee or sublessee shall not be less than
the net assets of Tenant at the time of the signing of this Lease;
(ii) in the event of an assignment, such assignee shall assume in
writing all of Tenant's obligations under this Lease for the
remainder of the Lease Term; and (iii) in the event of a sublease,
such sublease shall in all respects be subject to and in
conformance with the terms of this Lease. If this Lease be
assigned, or if the Premises or any part thereof be underlet or
occupied by anybody 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 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 observance and performance
by Tenant of the covenants herein contained. In addition, in the
event of a proposed assignment, Landlord shall have the right, but
not the obligation, to terminate this Lease by giving Tenant thirty
(30) days' advance written notice ("Landlord's Termination
Notice"); provided, however, that Tenant shall have the right to
abrogate Landlord's Termination Notice by notifying Landlord within
ten (10) business days after receipt of Landlord's Termination
Notice of the withdrawal of the consent to the assignment. For
purposes of the foregoing, a transfer by operation of law or
transfer of controlling interest in Tenant as same exists as of the
date hereof, shall be deemed to be an assignment of this Lease.
Landlord's acceptance of any name submitted by Tenant, an agent of
Tenant, or anyone acting by, through or under Tenant for the
purpose of being listed on the Building directory will not be
deemed, nor will it substitute for, Landlord's consent, as required
by this Lease, to any sublease, assignment, or other occupancy of
the Premises by anyone other than Tenant or Tenant's employees.
Fifty percent (50%) of any net profit or additional consideration
or rent (taking into consideration the costs incurred by Tenant to
sublease or assign the Premises, including, without limitation,
brokerage commissions, reasonable legal fees and remodeling costs)
in excess of the Base Rent or Additional Rent payable by Tenant
hereunder which is payable to Tenant as a result of any assignment
or subletting shall be paid to Landlord as Additional Rent when
received by Tenant. All the foregoing notwithstanding, Tenant shall
not enter into any lease, sublease, license, concession or other
agreement for the use, occupancy or utilization of the Premises or
any portion thereof, which provides for a rental or other payment
for such use, occupancy or utilization based in whole or in part on
the income or profits derived by any person or entity from the
property leased, used, occupied or utilized. Any such purported
lease, sublease, license, concession or other agreement shall be
absolutely void and ineffective as a conveyance of any right or
interest in the possession, use or occupancy of any part of the
Premises. Any consent by Landlord hereunder shall not constitute a
waiver of strict future compliance by Tenant with the provisions of
this Section.
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Notwithstanding
anything herein to the contrary, Tenant shall have the right to
assign the Lease or sublet all or a portion of the Premises to a
parent, affiliate or subsidiary, or related company, or to a
successor-in-interest resulting from a merger, consolidation, joint
venture or reorganization, or to any entity which acquires all or
substantially all of Tenant's interest, without obtaining
Landlord's consent, provided that (i) to the extent that Tenant
continues to exist after such corporate event or reorganization,
Tenant shall remain liable under the terms hereof, and (ii) Tenant
notifies Landlord in advance of such event and delivers to Landlord
written evidence that such new entity assumes all of the
liabilities and obligations hereunder.
21.
Event of
Default. Any one or more of the following events shall
constitute an "Event of Default" hereunder, at Landlord's
election:
(a)
the sale of
Tenant's interest in the Premises under attachment, execution or
similar legal process or, the adjudication of Tenant as a bankrupt
or insolvent, unless such adjudication is vacated within ninety
(90) days;
(b)
the filing of a
voluntary petition proposing the adjudication of Tenant (or any
guarantor of Tenant's obligations hereunder) as a bankrupt or
insolvent, or the reorganization of Tenant (or any such guarantor),
or an arrangement by Tenant (or any such guarantor) with its
creditors, whether pursuant to the Federal Bankruptcy Code or any
similar federal or state proceeding, unless such petition is filed
by a party other than Tenant (or any such guarantor) and is
withdrawn or dismissed within ninety (90) days after the date of
its filing;
(c)
the admission, in
writing, by Tenant (or any such guarantor) of its inability to pay
its debts when due;
(d)
the appointment of
a receiver or trustee for the business or property of Tenant (or
any such guarantor), unless such appointment is vacated within
ninety (90) days of its entry;
(e)
the making by
Tenant (or any such guarantor) of an assignment for the benefit of
its creditors, or if, in any other manner, Tenant's interest in
this Lease shall pass to another by operation of law;
(f)
the failure of
Tenant to pay, more than once in any calendar year, any rent,
additional rent or other sum of money when due and such failure
continues for a period of seven (7) days after receipt of written
notice that the same is past due hereunder;
(g)
Tenant shall fail
to move into or take possession of the Premises within thirty (30)
days after the Commencement Date or having taken possession shall
thereafter abandon and/or vacate the Premises, unless it continues
to pay the then prevailing rent; and
(h)
the default by
Tenant in the performance or observance of any covenant or
agreement of this Lease (other than a default involving the payment
of money), which default is not cured within thirty (30) days after
the giving of notice thereof by Landlord, unless such default is of
such nature that it cannot be cured within such thirty (30) day
period, in which case no Event of Default shall occur so long as
Tenant shall commence the curing of the default within such thirty
(30) day period and shalt thereafter diligently prosecute the
curing of same.
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22.
Landlord’s
Remedies. Upon the occurrence of any Event of Default,
Landlord at any time thereafter may, at its option, exercise any
one or more of the following remedies:
(a) terminate
this Lease, by written notice to Tenant, without any right by
Tenant to reinstate its rights by payment of rent due or other
performance of the terms and conditions hereof. Upon such
termination Tenant shall immediately surrender possession of the
Premises to Landlord, and Landlord shall immediately become
entitled to receive from Tenant an amount equal to the difference
between the aggregate of all Base Rent and additional rent reserved
under this Lease for the balance of the Lease Term.
(b) at
Landlord's option, with or without terminating this Lease, enter
upon the Premises and remove any and all persons therefrom and take
and retain possession thereof by any legal means available to
Landlord, including summary dispossess proceedings. If Landlord
elects to terminate Tenants right to possession only, without
terminating the Lease, Landlord may, at the Landlord's option,
enter into the Premises, remove Tenant's signs and other evidences
of tenancy, and take and hold possession thereof as hereinabove
provided, without such entry and possession terminating the Lease
or releasing Tenant, in whole or in part, from Tenant's obligations
to pay the rent hereunder for the full term or for any other of its
obligation under this Lease. Landlord may, but will not be under
obligation to, relet all or any part of the Premises in any manner,
for any term, for such rent and upon terms satisfactory to Landlord
and may decorate or make any repairs, changes, alterations or
additions in or to the Premises that may be necessary or
convenient. If Landlord does not relet the Premises, Tenant will
pay the Landlord on demand all amounts due from Tenant to Landlord
under this Lease for the remainder of the Lease Term. If the
Premises are relet, Tenant shall pay any excess of the rent over
the actual proceeds of such reletting, net of all expenses,
including repairs or construction costs and leasing commissions.
Landlord and Tenant agree that Landlord shall have no obligation to
mitigate Landlord's damages under this Lease. If the Premises are
at the time of any Event of Default sublet or leased by Tenant to
others, Landlord may, as Tenant's agent, collect rents due from any
subtenant or other tenant and apply such rents to the rent and
other amounts due hereunder without in any way affecting Tenants
obligation to Landlord hereunder. Such agency, being given for
security, is hereby declared to be irrevocable.
(c)
declare Base Rent and all items of additional rent (the amount
thereof
to be
based on historical amounts and Landlord's estimates for future
amounts) for the entire balance of the then current Lease Term
immediately due and payable, together with all other charges,
payments, costs, and expenses payable by Tenant as though such
amounts were payable in advance on the date the Event of Default
occurred.
(d)
remove all persons and property from the Premises, and store such
property in a public warehouse or elsewhere at the cost of and for
the account of Tenant, without service of notice or resort to legal
process (all of which Tenant expressly waives) and without being
deemed guilty of trespass or becoming liable for any loss or damage
which may be occasioned thereby.
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(e)
No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy, and every
right and remedy shall be cumulative and in addition to any other
right or remedy given hereunder or now or hereafter existing at law
or equity. Without limitation of the foregoing, Landlord shall be
entitled to injunctive relief in case of the violation, or
attempted or threatened violation, of any covenant, agreement,
condition or provision of this Lease, or to a decree compelling
performance of any covenant, agreement, condition or provision of
this Lease, or to any other remedy allowed by law or
equity.
If
proceedings shall be commenced by Landlord to recover possession of
the Premises, either at the end of the Lease Term or upon the
earlier termination of this Lease, or for non-payment of rent or
any other reason, Tenant specifically waives the right to any
notices now or hereafter required by law, and agrees that no
notices other than those set forth in this Lease shall be
required.
No
expiration or termination of the Lease Term by operation of law or
otherwise (except as expressly provided herein), and no
repossession of the Premises or any part thereof shall relieve
Tenant of its liabilities and obligations hereunder, all of which
shall survive such expiration, termination or repossession, and
Landlord may, at its option, xxx for and collect all rent and other
charges due hereunder at any time as and when such charges
accrue.
Tenant
hereby expressly waives any and all rights of redemption granted by
or under any present or future law in the event this Lease is
terminated, or in the event of Landlord obtaining possession of the
Premises, or in the event Tenant is evicted or dispossessed for any
cause, by reason of violation by Tenant of any of the provisions of
this Lease The receipt by Landlord of any rent or other sum payable
hereunder, with knowledge of the breach of any covenant or
agreement (other than the prior failure to pay such rent or other
sum) shall not constitute a waiver or cure of such breach or
prevent Landlord from exercising any of its rights or remedies
hereunder on account of Tenant's breach.
In the
event that Landlord commences suit for the repossession of the
Premises, for the recovery of rent or any other amount due under
the provisions of this Lease, or because of the breach of any other
covenant herein contained on the part of Tenant to be kept or
performed, and a breach shall be established, Tenant shall pay to
Landlord all expenses incurred in connection therewith, including
reasonable attorneys’ fees.
TO THE
EXTENT PERMITTED BY LAW, TENANT HEREBY EXPRESSLY WAIVES ANY AND ALL
RIGHTS OF REDEMPTION, GRANTED BY OR UNDER ANY PRESENT OR FUTURE
LAWS IN THE EVENT OF TENANT'S BEING EVICTED OR DISPOSSESSED FOR ANY
CAUSE, OR IN THE EVENT OF LANDLORD'S OBTAINING POSSESSION OF THE
PREMISES, BY REASON OF THE VIOLATION BY TENANT OF ANY OF THE
COVENANTS AND CONDITIONS OF THIS LEASE, OR OTHERWISE. LANDLORD AND
TENANT HEREBY EXPRESSLY WAIVE TRIAL BY JURY IN ANY ACTION OR
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO AGAINST
THE OTHER PARTY ON ANY AND EVERY MATTER, DIRECTLY OR INDIRECTLY
ARISING OUT OF OR WITH RESPECT TO THIS LEASE, INCLUDING, WITHOUT
LIMITATION, THE RELATIONSHIP OF LANDLORD AND TENANT, THE USE AND
OCCUPANCY BY TENANT OF THE PREMISES, ANY STATUTORY REMEDY AND/OR
CLAIM OF INJURY OR DAMAGE REGARDING THIS LEASE.
[Insert
Page Number] LL INITIAL____JW________
TENANT
INITIAL___GH_____________
23.
Services and
Utilities. Landlord shall provide the following services and
utilities, namely:
(a) heating,
ventilation, and air conditioning ("HVAC") for the Premises during
"Normal Business Hours" (as defined below) to maintain temperatures
for comfortable use and occupancy. The heat and air conditioning
equipment shall maintain a uniform indoor temperature of 76 degrees
Fahrenheit when outside temperature is 95 degrees Fahrenheit in the
summer and an indoor temperature of at least 68 degrees Fahrenheit
in the winter with outside temperature conditions of 10 degrees
Fahrenheit.
(b) electric
power in accordance with Section 24 herein;
(c) automatic
passenger elevators providing adequate service leading to the floor
on which the Premises are located;
(d) cleaning:
evening, unescorted janitorial services to the Premises including
removal of trash in accordance with Exhibit B attached
hereto;
(e) hot
and cold water sufficient for drinking, lavatory toilets and daily
cleaning of fixtures either within the Premises (if provided
pursuant to this Lease) or on the floor on which the Premises
are located;
(f) extermination
and pest control when and if necessary; and
(g) maintenance
of Common Areas in a manner comparable to other first class
suburban office buildings in New Jersey.
(h)
Security and access:
Landlord shall at all times provide adequate security to the
Building. Landlord shall provide Tenant with a monitored cards or
key access system to the Building. Landlord shall supply access
card/keys for the above to all of Tenant’s employees, which
access cards or keys shall provide for twenty-four (24) hours
access to the Building.
In the
event Landlord will need to supply a replacement access card or key
to Tenant or its employees, due to Tenant’s negligence,
Tenant shall pay for reasonable costs involved in the replacement
of the access card/keys.
The
Access to the Building is controlled by a card key access system
that Tenant may tie into concurrently with the installation of its
own security system. In Addition, the Building is fully equipped
with a CCTV surveillance system.
Notwithstanding
the foregoing, if at any time during the Term, Landlord shall,
after reasonable investigation determine that trash and similar
waste generated by Tenant and/or emanating from the Premises is
materially in excess of that of other standard office tenants
within the Building leasing premises of the same or similar size to
that of the Premises, Landlord shall xxxx Tenant and Tenant shall
pay to Landlord as additional rent hereunder within thirty (30)
days of the date of Landlord's invoice for the same, those costs
and expenses of trash removal which are reasonably attributable to
such excess trash and similar waste generated by Tenant and/or
emanating from the Premises.
LL
INITIAL____JW________
TENANT
INITIAL___GH_____________
"Normal Business Hours"
shall mean between 6:00 a.m. to 6:00
p.m. on business days (excluding New Year’s Day, Memorial
Day, July 4, Labor Day, Thanksgiving Day and Christmas Day) and
9:00 a.m. to 1:00 p.m. on Saturday. If Tenant requires
air-conditioning or heat outside of Normal Business Hours, then
Landlord shall furnish the same provided Tenant gives Landlord
advance notice of such requirement by 2:00 p.m. of the same day for
extra services required Monday through Friday (other than
holidays), by 2:00 p.m. on Friday for extra service be required on
a Saturday or Sunday, or by 2:00 p.m. on the prior business day in
the case of a holiday. Tenant shall pay for such extra service in
accordance with Landlord’s then current rate schedule
applicable to all Building Tenants ($65.00 per hour per floor at
the time this Lease is signed), which costs shall reflect
Landlord’s cost of providing such service (including a
reasonable activation fee but without any other markup) Landlord
reserves the right to stop service of the HVAC, elevator, plumbing
and electric systems, when necessary, by reason of accident, or
emergency, or for repairs, alterations, replacements, or
improvements, which in the reasonable judgment of Landlord are
desirable or necessary to be made, until the repairs, alterations,
replacements, or improvements shall have been completed. Landlord
shall have no responsibility or liability for failure to supply
HVAC, elevator, plumbing, cleaning, and electric service, during
the period or when prevented from so doing by laws, orders, or
regulations of any Federal, State, County or Municipal authority or
by strikes, accidents or by any other cause whatsoever beyond
Landlord's control. Landlord's obligations to supply HVAC are
subject to applicable laws and regulations as to energy
conservation and other such restrictions. In the event that Tenant
should require supplemental HVAC for the Premises, any maintenance
repair, utility charge and/or replacement required for such
supplemental service shall be performed by Landlord upon
Tenant’s notification but the cost of such maintenance
repair, utility charge and/or replacement (including labor and
materials) shall be paid by Tenant without markup as additional
rent. Notwithstanding the foregoing,
Tenant shall have access to the Premises twenty-four (24) hours per
day, seven (7) days per week.
24.
Electric
Current. Throughout the Term
Landlord shall furnish Tenant during Normal Business Hours (as
defined in Section 23 herein a reasonable amount of electric
current at 110 volts ("Normal Usage Amount") for lighting purposes
within the Premises and the powering of a normal amount of office
equipment and appliances. "Normal Usage Amount" is defined for
purposes of this Lease to mean electric power supplied at the rate
of five (5) xxxxx per square foot of Premises, In this regard
Tenant agrees as follows:
(1)
Landlord will
install a sub-meter to measure Tenant’s exact electric usage.
Tenant shall pay for the electric it consumes as measured by
existing sub meter at the same rate
charged to the Landlord with no xxxx up. The foregoing rates
shall increase in the same percentage as any percentage increase in
the billing to the Landlord for electricity, by reason of increase
in electric rates, charges or service classifications, or by taxes
or charges of any kind imposed thereon (in addition to the fuel
adjustment hereinabove described). Bills therefore shall be
rendered each month as Landlord may elect and the amount as
computed, and shall be paid by Tenant each and every month as
additional rent.
LL
INITIAL____JW________
TENANT
INITIAL___GH_____________
(2) If
Landlord reasonably determines based upon engineering studies of
electrical load consumed that Tenant is materially
exceeding the Normal
Usage Amount, Tenant shall pay to Landlord such amounts as
additional rent as will reimburse Landlord for the cost of the
extra electric power so
consumed by Tenant at the same rate charged to Landlord with no
markup;
(3) If
Tenant shall desire to place and install in the Premises electric
equipment or
appliances
other than normal and typical to general office usage, it shall pay
for such installations including any additional electric lines and
facilities required and shall pay for the electric power used in
such equipment if same exceeds Normal Usage Amount.
(4) Landlord
has advised Tenant that presently Public Service Electric and Gas
("Electric Service Provider") is the utility company selected by
Landlord to provide electricity to the Building. Notwithstanding
the foregoing, if permitted by law, Landlord shall have the right
at any time and from time to time during the Term to either
contract for service from a different company or companies
providing electricity service (each such company shall hereinafter
be referred to as an "Alternative Service Provider") or continue to
contract for service from the Electric Service
Provider.
Tenant
shall cooperate with Landlord, the Electric Service Provider and
any Alternate Service Provider at all times and, as reasonably
necessary, shall allow Landlord, the Electric Service Provider, and
any Alternative Service Provider reasonable access to the
Building's electric lines feeders, risers wiring and any other
machinery within the Premises, provided that Landlord shall use all
commercially reasonable efforts to minimize its interference with
Tenant's business in the Premises.
25.
Telephone and
Telecommunications. Landlord has arranged for the
Installation of telephone service to the Building. Tenant shall be
responsible for contacting its utility company supplying the
telephone service and arranging to have such telephone facilities
as it may desire to be extended and put into operation in the
Premises, including without limitation, obtaining a low voltage
permit for phone and data wiring. Tenant acknowledges and agrees
that all telephone and telecommunications services desired by
Tenant shall be ordered and utilized at the sole expense of Tenant.
All costs related to installation and the provision of such service
shall be borne and paid for directly by Tenant. Upon request by
Landlord, Tenant, at Tenant's expense, shall remove the telephone
facilities located within the Demised Premises at the expiration or
sooner termination of the Term. Tenant shall obtain the requisite
permits and complete the installation of its telephone facilities
in cooperation with Landlord in order not to interfere with or
delay the completion of the Tenant Improvements by Landlord
pursuant to Section 34, including, without limitation, the closing
of the ceiling and the carpet installation, if
applicable.
LL
INITIAL____JW________
TENANT
INITIAL___GH_____________
In the
event Tenant wishes to utilize the services of a telephone or
telecommunications provider (other than service required by Tenant
that is itself a telecommunications service provider) whose
equipment is not servicing the Building at such time or Tenant
wishes to install its telecommunications equipment serving the
Premises ("Provider), no such Provider shall be permitted to
install its lines or other equipment without first securing the
prior written consent of Landlord, which consent shall not be
unreasonably withheld, conditioned or delayed. Prior to the
commencement of any work in or about the Building by the Provider,
the Provider shall agree to abide by such rules and regulations,
job site rules, and such other requirements as reasonably
determined by Landlord to be necessary to protect the interest of
the Building and Property, the other tenants and occupants of the
Building and Landlord, including, without limitation, providing
security in such form and amount as reasonably determined by
Landlord. Each Provider must be duly licensed, insured and
reputable. Landlord shall incur no expense whatsoever with respect
to any aspect of Provider's provision of its services, including
without limitation, the costs of installation, materials and
service.
In
addition, Landlord reserves exclusively to itself and its
successors and assigns the right to install, operate, maintain,
repair, replace and remove fiber optic cable and conduit and
associated equipment and appurtenances within the Building and the
Premises so as to provide telecommunications service to and for the
benefit of tenants and other occupants of the
Building.
26.
Acceptance of
Premises. Tenant shall have reasonable opportunity, provided
it does not thereby interfere with Landlord's work, to examine the
Premises to determine the condition thereof. Upon taking possession
of the Premises, Tenant shall be deemed to have accepted same as
being satisfactory and in the condition called for hereunder,
except for latent defects and punch list items previously noted to
Landlord.
27.
Inability to
Perform. This Lease and the obligation of both Tenant and
Landlord hereunder to be performed by each such party shall in no
way be affected, impaired or excused because Landlord is unable to
fulfill any of its obligations under this Lease or to supply, or is
delayed in supplying, any service to be supplied by it under the
terms of this Lease or is unable to make, or is delayed in making
any repairs, additions, alterations, or decorations or is unable to
supply, or is delayed in supplying, any equipment or fixtures if
the Tenant or the Landlord is prevented or delayed from so doing by
reason of strikes or labor troubles or any outside cause whatsoever
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 of any
government agency or by reason of the conditions of supply and
demand which have been or are affected by war or other emergency.
Similarly, Landlord shall not be liable for any interference with
any services supplied to Tenant by others if such interference is
caused by any of the reasons contemplated by this Section. Nothing
contained in this Section shall be deemed to impose any obligation
on either Tenant or Landlord not expressly imposed by other
sections of this Lease.
LL
INITIAL____JW________
TENANT INITIAL___GH_____________
28.
Access to Premises
and Change in Services. Landlord shall have the right,
without abatement of rent, to enter the Premises upon twenty-four
(24) hours advance written notice (except in the event of
emergency, in which case no advance notice shall be required) at
any hour to examine the same, or to make such repairs and
alterations as Landlord shall deem necessary for the safety and
preservation of the Building, and also to exhibit the Premises to
be let (solely during the last year of the Lease Term); provided,
however, that except in the case of emergency such entry shall only
be after notice first given to Tenant. Landlord shall also have the
right at any time, without the same constituting an actual or
constructive eviction and without incurring any liability to Tenant
therefor, to change the arrangement and/or location of entrances or
passageways, doors and doorways, and corridors, stairs, toilets,
elevators, or other public parts of the Building, provided access
to the Premises is not impaired, and to change the name by which
the Building is commonly known and/or its mailing
address.
29.
Estoppel
Certificates. Tenant shall execute, acknowledge and deliver
to Landlord, promptly upon written request, an estoppel certificate
on a reasonable form requested by Landlord which certifies that:
(a) this Lease is unmodified and in full force and effect (or, if
there have been modifications, that this Lease is in full force and
effect, as modified, and identifying the modifications); (b) the
commencement and expiration dates of the term of this Lease; (c)
the dates through which base rent and additional rent have been
paid; (d) whether or not there is any existing default by Landlord
or Tenant with respect to which a notice of default has been
delivered, and if there is any such default, specifying the nature
and extent thereof; (e) that this Lease is subordinate to any
existing or future mortgage placed by Landlord on the building; and
(f) whether or not there are any setoffs, defenses or counterclaims
against the enforcement of any of the agreements, terms, covenants
or conditions of this Lease to be paid, complied with or performed
by Tenant. Any such certificate may be relied upon by Landlord and
any mortgagee, purchaser or other person with whom Landlord may
deal.
30.
Modifications
Requested By Lender. If, in connection with obtaining
financing or refinancing for the Building, a banking, insurance or
other institutional lender shall request reasonable modifications
to this Lease as a condition to such financing or refinancing,
Tenant shall not unreasonably withhold or delay its consent
thereto, provided such modifications do not materially adversely
affect the leasehold interest hereunder or increase Tenant's
obligations hereunder, except to the extent that Tenant may be
required to give notices of any defaults by Landlord to such lender
or permit the curing of such defaults by such lender together with
the granting of such additional time for such curing as may be
required for such lender to get possession of the Building. In no
event shall a requirement that the consent of any such lender be
given for any modification of this Lease or for any assignment or
sublease be deemed to materially adversely affect the leasehold
interest hereby created.
LL
INITIAL____JW________
TENANT
INITIAL___GH_____________
31.
Subordination.
Tenant accepts this Lease, and the tenancy created hereunder,
subject and subordinate to any mortgages, overleases, leasehold
mortgages or other security interests now or hereafter a lien upon
or affecting the Building or the Property or any part thereof.
Tenant shall, at any time hereafter, within ten (10) days after
request from Landlord, execute a reasonable and customary
Subordination, Non-Disturbance Agreement or any instruments or
leases or other documents that may be required by any mortgage or
mortgagee or overlandlord (herein a "Mortgagee") for the purpose of
subjecting or subordinating this Lease and the tenancy created
hereunder to the lien of any such mortgage or mortgages or
underlying lease, and the failure of Tenant to execute any such
instruments, releases or documents shall constitute a default
hereunder. Landlord shall obtain a SNDA from the existing Mortgagee
and shall use its reasonable efforts to obtain SNDA from all future
Mortgagees.
In the
event that the Landlord encumbers the Premises with a Mortgage in
the future, the Landlord shall provide the Tenant with a
Subordination, Non-Disturbance Agreement from the Mortgagee, and
the Lease will be subordinate to any future mortgage only if said
Subordination, Non-Disturbance agreement is provided.
32.
Attornment.
Tenant agrees that upon any termination of Landlord's interest in
the Premises, Tenant shall, upon request, attorn to the person or
organization then holding title to the reversion of the Premises
(the "Successor") and to all subsequent Successors, and shall pay
to the Successor all of the rents and other monies required to be
paid by Tenant hereunder and perform all of the other terms,
covenants, conditions and obligations in this Lease contained;
provided, however, that if in connection with such attornment
Tenant shall so request from such Successor in writing, such
Successor shall execute and deliver to Tenant an instrument wherein
such Successor agrees that as long as Tenant performs all of the
terms, covenants and conditions of this Lease, on Tenants part to
be performed, Tenant's possession under the provisions of this
Lease shall not be disturbed by such Successor. In the event that
the Mortgagee succeeds to the interest of Landlord hereunder and is
advised by its counsel that all or any portion of the Base Rent or
additional rent payable by Tenant hereunder is or may be deemed to
be unrelated business income within the meaning of the United
States Internal Revenue Code or regulations issued thereunder,
Mortgagee, as Landlord, shall have the right at any time, from time
to time, to notify Tenant in writing of the required changes to the
Lease. Tenant shall execute all documents necessary to effect any
such amendment within ten (10) business days after written request
from Mortgagee, as landlord, provided that in no event shall such
amendment increase Tenant's payment obligations or other liability
under this Lease or reduce Landlord's obligations
hereunder.
33.
Notices. All
notices and other communications to be made hereunder shall be in
writing and shall be delivered to the addresses set forth below by
any of the following means: (a) personal service or receipted
courier service; (b) registered or certified first
class mail, return receipt requested, or (c) nationally-recognized
overnight delivery service. Such addresses may be changed by notice
to the other party
given in the same manner as provided above. Any notice or other
communication sent pursuant to clause (a) hereof shall be deemed
received upon such personal service, if sent pursuant to subsection
(b) shall be deemed received five (5) days following deposit in the
mail and/or if sent pursuant to subsection (c) shall be deemed received the next
succeeding business day following deposit with such nationally
recognized overnight delivery service.
LL
INITIAL____JW________
TENANT
INITIAL___GH_____________
If to
Landlord:
LMR
USA LLC
X.X.
Xxx 000000
Xxxxxxxx, XX
00000
Tel:
000-000-0000
OVERNIGHT ADDRESS:
0000
00xx
Xxxxxx
Xxxxx
000
Xxxxxxxx, XX
00000
If to
Tenant:
Network
Billing Systems LLC D/B/A Fusion
c/o
_Fusion
00000
Xxxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxx, XX
00000
Attn:
President and Chief Operating Officer
Tel:
000-000-0000
With a copy
to:
Fusion
Telecommunications International, Inc.
000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxx, Xxx Xxxx 00000
Tel:
000-000-0000
Attn:
General Counsel
Any
party may designate a change of address by written notice to the
above parties, given at least ten (10) days before such change of
address is to become effective.
34.
Landlord’s Work
(i) Tenant
has inspected the demised Premises and agrees to accept same in its
“as is” condition and state of repair as of the date
hereof and agrees that Landlord shall not be obligated to perform
any work except for the following: (to be specified in a floor plan
attached hereto)
Landlord shall provide Tenant with a turn-key build out,
not to
exceed $50.00/RSF for a total of $675,550.00 (“Tenant Improvement Dollars”) this
amount includes the first-floor storage
buildout, utilizing
Building standard finishes and materials and based upon on a
mutually agreed plan. Landlord shall not charge Tenant any fee or
other charges for the supervision and or overhead associated with
Tenant’s build-out. Tenant at its election may request
Landlord to secure bids from three (3) reputable and qualified
contractors and shall select the one that provides the lowest cost.
Tenant acknowledges that if the final work is completed for a price
that is below the Tenant Improvement Dollars Tenant shall receive a
rent credit which shall be credited on a pro-rata basis over the
first 12 months that Tenant is making rent
payments.
(ii) Test
Fit: Landlord shall Provide
Tenant with one (1) test fit and two (2)
revision.
LL
INITIAL____JW________
TENANT INITIAL___GH_____________
(iii)
Beneficial
Occupancy Period: Notwithstanding anything herein to the
contrary, Tenant shall have the right to enter the Premises,
forty-five (45) days prior to the estimated Commencement Date in
order to install its cabling and wiring for telephone service and
modular furniture, provided that Tenant shall not materially
interfere with Landlord's substantial completion of the Premises.
Tenant will not be required to pay for rent, utilities or operating
expenses until the Commencement Date, but shall not be allowed to
conduct business operations in the Premises during the forty five
(45) day period contemplated by this section.
35.
Quiet
Enjoyment. Tenant, upon the payment of rent and the
performance of all the terms of this Lease, shall, at all times
during the Lease Term, peaceably and quietly enjoy the Premises
without any disturbance from Landlord or any other person claiming
through Landlord.
36.
Vacation of
Premises. Tenant shall vacate the Premises at the end of the
Lease Term. If Tenant fails to vacate at such time there shall be
payable to Landlord an amount equal to one hundred twenty five
percent (125%) of the monthly Base Rent paid immediately prior to
the holding over period for each month or part of a month that
Tenant holds over, plus all other payments provided for herein, and
the payment and acceptance of such payments shall not constitute an
extension or renewal of this Lease. In event of any such holdover,
Landlord shall also be entitled to all non-monetary remedies
provided by law for the speedy eviction of tenants, and to the
payment of all attorneys' fees and expenses incurred in connection
therewith. Tenant shall in no event be subject to consequential
damages.
37.
Extent of
Liability. Tenant shall look solely to the Building and
rents derived therefrom for enforcement of any obligation hereunder
or by law assumed or enforceable against Landlord, and no other
property or other assets of Landlord shall be subjected to levy,
execution or other enforcement proceeding for the satisfaction of
Tenant's remedies or with respect to this Lease, the relationship
of landlord and tenant hereunder or Tenant's use and occupancy of
the Premises.
38.
Indemnification.
Tenant shall indemnify and hold harmless Landlord and all of its
partners, directors, officers, agents and employees from any and
all liability, loss, cost or expense arising from all third-party
claims resulting from or in connection with:
(a) the
conduct or management of the Premises or of any business therein,
or any work or thing whatsoever done, or any condition created in
or about the Premises by Tenant, its agents, contractors or
employees during the Term of this Lease or during the period of
time, if any, prior to the Commencement Date that Tenant may have
been given access to the Premises;
(b) any
act, omission or negligence of Tenant or any of its subtenants or
licensees or its or their partners, directors, officers, agents,
employees, clients, service providers or contractors;
(c) any
accident, injury or damage whatever occurring in, at or upon the
Premises, unless due to the willful or negligent act or omission of
Landlord, its agents, contractors or employees; and
(d) any
breach or default by Tenant in the full and prompt performance of
Tenant's obligations under this Lease; together with all costs and
expenses reasonably incurred or paid in connection with each such
claim or action or proceeding brought thereon, including, without
limitation, all reasonable attorney's fees and
expenses.
LL
INITIAL____JW________
TENANT
INITIAL___GH_____________
In case
any action or proceeding is brought against Landlord and/or any of
its partners, directors, officers, agents or employees and such
claim is a claim from which Tenant is obligated to indemnify
Landlord pursuant to this Section 38, Tenant, upon notice from
Landlord shall resist and defend such action or proceeding (by
counsel reasonably satisfactory to Landlord). The obligations of
Tenant under this Section shall survive termination of this
Lease.
39.
Brokers.
Tenant represents that Tenant has dealt only with the Brokers,
Colliers International and Avison Young – New York LLC, as
brokers in connection with this Lease, and Tenant warrants that
no other brokers
negotiated this Lease or is entitled to any commissions in
connection with this Lease. Landlord shall pay the Brokers pursuant
to the terms of a separate written agreement by and between
Landlord and Broker.
40.
Recordation.
Tenant covenants that it shall not, without Landlord's prior
written consent, record this Lease or any memorandum of this Lease
or offer this Lease or any memorandum of this Lease for
recordation. If at any time Landlord or any Mortgagee shall require
the recordation of this Lease or any memorandum of this Lease, such
recordation shall be at Landlord's sole cost and expense. If at any
time Tenant shall require the recordation of this Lease or any
memorandum of this Lease, such recordation shall be at Tenant's
sole cost and expense.
41.
Captions.
All headings anywhere contained in this Lease are intended for
convenience or reference only and are not to be deemed or taken as
a summary of the provisions to which they pertain or as a
construction thereof.
42.
Successors and
Assigns. The covenants, conditions and agreements contained
in this Lease shall bind and inure to the benefit of Landlord and
Tenant, and their respective heirs, personal representatives,
successors and permitted assigns (subject, however, to the terms of
Section 20 hereof).
43.
Integration of
Agreements. This writing is intended by the Parties as a
final expression of their agreement and is a complete and exclusive
statement of its terms, and all negotiations, considerations and
representations between the parties are incorporated. No course of
prior dealings between Landlord and Tenant or their affiliates
shall be relevant or admissible to supplement, explain, or vary any
of the terms of this Lease. Acceptance of, or acquiescence to, a
course of performance rendered under this Lease or any prior
agreement between the Landlord and Tenant or their affiliates shall
not be relevant or admissible to determine the meaning of any of
the terms or covenants of this Lease. Other than as specifically
set forth in this Lease, no representations, understandings, or
agreements have been made or relied upon in the making of this
Lease.
LL
INITIAL____JW________
TENANT
INITIAL___GH_____________
44.
Hazardous Material
Indemnity: Tenant further agrees to the
following:
44.1 As
used in this Lease, the following terms shall have the following
meanings:
44.1.1 "Environmental
Laws" shall mean all federal, state or local statutes, regulations,
rules, ordinances, codes, licenses, permits, orders, approvals,
authorizations, agreements, ordinances, administrative or judicial
rulings or similar items relating to the protection of the
environment or the protection of human health, including, without
limitation, all requirements pertaining to reporting, licensing,
permitting, investigation and remediation of emissions, discharges,
Releases or Threats of Releases (as defined below) of Hazardous
Materials into the air, surface water, groundwater or land, or
relating to (i) the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of Hazardous
Materials, (ii) relating to storage tanks, or (iii) the transfer of
industrial facilities, including, without limitation, ISRA (as
defined below).
44.1.2 "Hazardous
Materials" shall mean (i) any substance, gas, material or chemical
which is defined as or included in the definition of "hazardous
substances", "toxic substances', "hazardous materials", "hazardous
wastes' under any federal, state or local statute, law, or
ordinance or under the regulations adopted or guidelines
promulgated pursuant thereto, including, but not Limited to, the
Comprehensive Environmental Response Compensation and Liability Act
of 1980, as amended, 42 U.S.C. §§9061 et seq. ("CERCLA");
the Hazardous Materials Transportation Act, as amended 49 U.S.C.
§§1801, et seq.; the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. §§6901, et seq; the New Jersey Spill
Compensation and Control Act; and the New Jersey Industrial Site
Recovery Act, N.J.S.A. 13:1K-6 et seq. ("ISRA"), (ii) radon
gas in excess of four (4) picocuries per liter, friable asbestos,
urea formaldehyde foam insulation, petroleum products, transformers
or other equipment which contain dielectric fluid containing levels
of polychlorinated biphenyls in excess of federal, state or local
safety guidelines, whichever are more stringent; and (iii) any
other substance, gas, material or chemical, exposure to or release
of which is prohibited, limited or regulated by any governmental or
quasigovernmental entity or authority that asserts or may assert
jurisdiction over the Premises, the Building or the
Property.
44.1.3
"Hazardous Materials Inventory" shall mean a comprehensive
inventory of all Hazardous Materials used, generated, stored,
treated or disposed of by Tenant at the Premises.
44.1.4 "Losses"
shall mean all claims, liabilities, obligations, losses (including,
without limitation, diminution in the value of the Premises, the
Building, or the Property, damages for the loss or restriction on
use of rentable or usable space or of any amenity of the Premises,
the Building and/or the Property, damages arising from any adverse
impact on marketing of space), damages, penalties, fees, actions,
judgments, lawsuits, costs, expenses, disbursements, orders or
decrees, including, without limitation, attorneys' and consultants'
fees and expenses.
44.1.5
"Release" means any releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping into soil, surface waters, groundwaters, land,
stream sediments, surface or subsurface strata, ambient air and any
environmental medium comprising or proximate to and affecting the
Premises, the Building or the Property.
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44.1.6 "Threat
of Release" means a substantial likelihood of a Release which
requires action to prevent or mitigate damage to the soil, surface
waters, groundwaters, land, stream sediments, surface or subsurface
strata, ambient air and any environmental medium comprising or
proximate to and affecting the Premises, the Building or the
Property.
44.2 Tenant
shall not generate, use, manufacture, recycle, handle, store,
place, transport, treat, discharge or dispose of any Hazardous
Materials at, on, in or near the Premises, the Building or the
Property or cause any of the foregoing to occur at, on, in, or near
the Premises, the Building or the Property, shall comply with all
Environmental Laws in connection with Tenant's use or occupancy of
the Premises and the Building, and promptly shall take all remedial
action, at Tenant's sole cost and expense, but with Landlord's
prior approval, necessary or desirable to remedy, cleanup and
remove the presence of any Hazardous Materials resulting from
Tenant's violation of the prohibitions set forth in this sentence
or Tenant's failure to comply with Environmental Laws.
Notwithstanding the foregoing, Tenant shall not be deemed to be
prohibited from using products containing Hazardous Materials so
long as such products are commonly found in an office environment
and are handled, stored, used and disposed of in compliance with
all applicable Environmental Laws. In addition, Tenant shall (i)
obtain, maintain in full force and effect, and comply with, all
permits required under applicable Environmental Laws; (ii) comply
with all record keeping and reporting requirements imposed by
Environmental Laws concerning the use, handling, treatment,
storage, disposal or release of Hazardous Materials on the
Premises, the Building and the Property; (iii) report to Landlord
any release or discharge of Hazardous Materials within two (2)
business days of such discharge or release; (iv) provide to
Landlord copies of all written reports concerning such discharge of
Hazardous Materials that are required to be filed with governmental
or quasi-governmental entities under applicable Environmental Laws;
(vi) maintain and annually update a Hazardous Materials Inventory
with respect to Hazardous Materials used, generated, treated,
stored or disposed of at the Premises, the Building and the
Property; and (vii) make available to Landlord for inspection and
copying, at Landlord's expense, upon reasonable notice and at
reasonable times, such Hazardous Materials Inventory and any other
reports, inventories or other records required to be kept under
Environmental Laws concerning the use, generation, treatment,
storage, disposal or release of Hazardous Materials.
In the
event that Tenant’s operations at the Premises, the Building
or the Property cause any part of the Premises, the Building or the
Property, to be deemed an industrial establishment (as such terra
is defined by ISRA) and such Tenant takes any action that triggers
the applicability of ISRA, Tenant shall: (i) take all steps
necessary to achieve compliance with ISRA with respect to such
transaction or event; (ii) pay all costs and fees allocable to its
designation and associated with achieving compliance with ISRA in
connection with such matter; and (iii) provide Landlord with copies
of: (a) all correspondence with the New Jersey Department of
Environmental Protection ("NJDEP"); (b) all field and laboratory
data generated by or on behalf of Tenant; and (c) all reports,
summaries proposals and recommendations submitted to the NJDEP in
connection with such matter.
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44.3
Without limitation on any other indemnities by or obligations of
Tenant to Landlord under this Lease or otherwise, Tenant hereby
covenants and agrees to indemnify, defend and hold harmless
Landlord from and against any Losses incurred by Landlord as a
result of Tenant's breach of any representation, covenant or
warranty hereof; or as a result of any claim, demand, liability,
obligation, right or cause of action, including, but not limited to
governmental action or other third party action (collectively,
"Claims"), that is asserted against Landlord, the Premises, the
Building or the Property as a result of or which arises directly or
indirectly, in whole or in part, out of the Release, Threat of
Release, discharge, deposit, presence, treatment, transport,
handling or disposal of any Hazardous Materials at, on, under, in,
about, or from the Premises, the Building or the Property
attributable to or arising out of the operations or activities or
presence of Tenant or agent or representative of Tenant at or about
the Premises, the Building or the Property. This indemnification of
Landlord and its Mortgagee(s) by Tenant includes, without
limitation, costs incurred in connection with any investigation of
site conditions or any cleanup, remedial, removal, or restoration
work required by any federal, state or local governmental agency or
political subdivision because of Hazardous Material present in the
soil or ground water on or under the Building.
44.4 The
indemnities, warranties and covenants contained in this Article
shall survive termination of this Lease.
45.
Americans With
Disabilities Act. Notwithstanding any other provisions
contained in this Lease and with the purpose of superseding any
such provisions herein that might be construed to the contrary, it
is the intent of Landlord and Tenant that at all times while this
Lease shall be in effect that the following provisions shall be
deemed their specific agreement as to how the responsibility for
compliance (and cost) with the Americans With Disabilities Act and
amendments to same ("ADA") both as to the Premises and the
Property, shall be allocated between them, namely:
45.1 Landlord
and Tenant agree to cooperate together in the initial design,
planning and preparation of specifications for construction of the
Premises so that same shall be in compliance with the ADA. Any
costs associated with assuring that the plans and specifications
for the construction of the Premises are in compliance with the ADA
shalt be borne by the party whose responsibility it is hereunder to
bear the cost of preparation of the plans and specifications.
Similarly those costs incurred in the initial construction of the
Premises so that same are built in compliance with the ADA shall be
included within Tenant's Improvements and handled in the manner as
provided for in other Sections of this Lease.
45.2
Modifications, alterations and/or other changes required to and
within the Common Areas which are not capital in nature shall be
the responsibility of Landlord to perform and the cost of same
shall be considered a part of the Building Expenses and treated as
such.
45.3
Modifications, alterations and/or other changes required to and
within the Common Areas which are capital in nature shall be the
responsibility of Landlord and at its cost and
expense.
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45.4 Modifications,
alterations and/or other changes required to and within the
Premises (after the initial construction of same), whether capital
in nature or non-capital in nature, shall be the responsibility of
Tenant and at its cost and expense; unless the changes are
structural in nature and result from the original design of the
Building, in which instance they shall be the responsibility of
Landlord and at its cost and expense.
Each
party shall indemnify and hold harmless the other party from any
and all liability, loss, cost or expense arising as a result of
such party not fulfilling its obligations as to compliance with the
ADA as set forth in this Section.
46.
Several
Liability. If Tenant shall be one or more individuals,
corporations or other entities, whether or not operating as a
partnership or joint venture, then each such individual,
corporation, entity, joint venturer or partner shall be deemed to
be both jointly and severally liable for the payment of the entire
rent and other payments specified herein.
47.
Financial
Statements. Tenant represents and warrants to Landlord that
the financial statements heretofore delivered by Tenant to Landlord
are true, correct and complete in all respects, have been prepared
in accordance with generally accepted accounting principles, and
fairly represent the financial condition of Tenant as of the date
thereof, and that no material change has thereafter occurred in the
financial conditions reflected therein. Within fifteen (15) days
after request from Landlord, Tenant agrees to deliver to Landlord
such future financial statements and other information as Landlord
from time to time may reasonably request, provided that in no event
shall Landlord request such statements or information more than
once in any twelve (12) month period. Landlord shall maintain the
confidentiality of such financial statements and shall only share
copies thereof with Landlord's Mortgagees, underwriters and
investment advisors to the extent required by such entities/persons
and shall require such other entities/persons to maintain the
confidentiality of any such information.
48.
Parking.
Landlord, at no additional cost to Tenant, shall make available for
Tenant's exclusive use, eight (8) reserved parking spaces in the
underground parking area to be mutually agreed by Landlord and
Tenant. In addition, Tenant shall be entitled to use five (5)
parking spots per 1,000 square feet in the outside parking area
which shall be available on a first come first serve basis. In
addition, Tenant shall have the right to park overnight, up to four
(4) company vehicles in the Building parking lot, which location
shall be mutually agreed between Landlord and
Tenant.
49.
Signage.
Landlord shall provide Tenant its prorated share of directory
signage, and suite signage. Throughout the Lease Term and any
renewal term(s) Tenant shall have the right to change such signage
to reflect the name of a subsidiary or affiliate of Tenant with
Landlord’s, prior consent, which shall not be unreasonably
withheld, conditioned or delayed.
Landlord
shall include Tenant on the Building’s digital directory and
Tenant shall have the right to install corporate graphics at the
entry to the Premises as part of Tenant’s Incentive
Allowance, subject to Landlord’s reasonable approval, which
shall not be unreasonably withheld, conditioned or delayed.
In the event Landlord constructs an
exterior monument sign, Tenant shall have the right, along with
other similarly situated tenants of the Building, to a
proportionate share of the signage area.
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50.
Right to
Exhibit. The Tenant
agrees to permit the Landlord and the Landlord’s agents,
employees or other, within 12 months of the Tenant vacating the
Premises on the front of said Premises or any part thereof,
offering the Premises for rent or for sale; and the Tenant hereby
agrees to permit the same to remain thereon without hindrance or
molestation.
51.
[intentionally
omitted]
52.
Non-Waiver by
Landlord. The various rights, remedies, options and
elections of the Landlord, expressed herein, are cumulative. The
failure of the Landlord to enforce strict performance by the Tenant
of the conditions and covenants of this Lease or to exercise any
election or option, or to resort or have recourse to any remedy
herein conferred or the acceptance by the Landlord of any
installment of rent after any breach by the Tenant, in any one or
more instances, shall not be construed or deemed to be a waiver or
a relinquishment for the future by the Landlord of any such
conditions and covenants, options, elections or remedies, but the
same shall continue in full force and effect.
53.
Validity of
Lease. The terms, conditions, covenants and provisions of
this Lease shall be deemed to be severable. If any clause or
provision herein contained shall be adjudged to be invalid or
unenforceable by a court of competent jurisdiction or by operation
of any applicable law, it shall not affect the validity of any
other clause or provision herein, but such other clauses or
provisions shall remain in full force and effect.
54.
Conformation with
Laws and Regulations. The Landlord may pursue the relief or
remedy sought in any invalid clause, by conforming the said clause
with the provisions of the statutes or the regulations of any
governmental agency as if the particular provisions of the
applicable statutes or regulations were set forth herein at
length.
55.
Number and
Gender. In all references herein to any parties, persons,
entities or corporations the use of any particular gender or the
plural or singular number is intended to include the appropriate
gender or number as the text of the within instrument may require.
All the terms, covenants and conditions herein contained shall be
for and shall inure to the benefit of and shall bind the respective
parties hereto, and their heirs, executors, administrators,
personal or legal representatives, successors and
assigns.
56.
Licenses and
Permits. Tenant
agrees to secure and maintain, at its own expense, all licenses and
permits from Federal, State and local authorities as may be
necessary for the conduct of Tenant's business, and shall comply
with all applicable laws, rules and regulations. Landlord does not
represent that any license or permit which may be required will be
granted or, if granted, will continue in effect or be renewed.
Tenant's obligations under this Lease shall in no way be affected
by Tenant's inability to secure or maintain any license or
permit.
57.
Miscellaneous.
Tenant shall reimburse Landlord for all reasonable attorneys' fees
incurred in connection with actions to compel compliance by Tenant
with any provision of this Lease or to recover damages resulting
from non-compliance. Such amounts shall be deemed additional rent
and shall be paid on demand.
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The
submission of this Lease to Tenant shall not be construed as an
offer or option, and Tenant shall not have any rights hereunder
unless and until Landlord shall execute a copy of this Lease and
deliver the same to Tenant.
58.
Penetration Points
/ Roof Rights. Tenant shall have the right to use the
existing point of penetration in the Building to bring services
into the Building, and/or to penetrate at some other location of
the Building as part of Tenant Improvement Dollars and subject to
Landlord’s reasonable approval and supervision.
Tenant
may install antennas and/or receivers on the roof of the Building
subject to Landlord’s reasonable approval. Landlord’s
reasonable approval shall not be withheld, conditioned, or
delayed.
59.
Relocation:
Landlord shall not have the right to relocate Tenant under any
circumstances.
[Signatures appear on the next page]
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In Witness Whereof, the parties have set their hands, or
caused these presents to be signed by their duly authorized
representatives as of the day and year first above
written.
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LMR USA LLC.
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NETWORK BILLING SYSTEMS, LLC D/B/A FUSION
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/s/ Xxxxxx Xxxxx
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/s/ Xxxxxx Xxxxxxxx, Xx.
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Name:
Xxxxxx
Xxxxx
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Name: Xxxxxx Xxxxxxxx, Xx.
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Title:
Manager
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Title: Executive Vice President
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STATE
OF NEW YORK, COUNTY OF KINGS, ss.
On the
16th day
of August, 2017, before me, the undersigned, personally appeared
Xxxxxx Xxxxx personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he executed
the same in his capacity, and that by his signature on the
instrument, the individual, or the person upon behalf of which the
individual acted, executed the instrument.
/s/
Xxxxxxx Xxxxx
Notary
Public
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STATE
OF NEW JERSEY, COUNTY OF BERGEN, ss.
On the
24th day of July, 2017, before me, the undersigned, personally
appeared Xxxxxx Xxxxxxxx, Xx. personally known to me or proved to
me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me
that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon
behalf of which the individual acted, executed the
instrument.
/s/
Xxxx Capanello
Notary
Public
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EXHIBIT A
OPERATING EXPENSES - EXCLUSIONS
(a)
Cost of decorating,
redecorating, or special cleaning or other services not provided on
a regular basis to tenants of the building;
(b)
Wages, salaries,
fees, and fringe benefits paid to executive personnel or officers
or partners of landlord;
(c)
Any charge for
depreciation of the building or equipment and any interest or other
financing charge;
(d)
Any charge for
landlord’s income taxes, excess profit taxes, franchise
taxes, or similar taxes on landlord’s business;
(e)
All costs relating
to activities for the solicitation and execution of leases of space
in the building;
(f)
All costs and
expenses of operation the garage space and commercial space in the
building;
(g)
All costs for which
tenant or any other tenant in the building is being charged other
than pursuant to the operating expense clauses;
(h)
The cost of any
electric current furnished to the Premises or any rentable area of
the building for purposes other than the operation of building
equipment and machinery and the lighting of public toilets,
stairways, shaftways, and building machinery or fan
rooms;
(i)
The cost of
correcting defects in the construction of the building or in the
building equipment, except that conditions (not occasioned by
construction defects) resulting from ordinary wear and tear will
not be deemed defects for the purpose of this
category;
(j)
The cost of any
repair made by landlord because of the total or partial destruction
of the building or the condemnation of a portion of the
building;
(k)
Any increase in
insurance premium to the extent that such increase is caused or
attributable to the use, occupancy or act of another
tenant;
(l)
The cost of any
items for which landlord is reimbursed by insurance or otherwise
compensated by parties other than tenants of the building pursuant
to clauses similar to this paragraph;
(m)
The cost of any
additions or capital improvements to the building subsequent to the
date of original construction;
(n)
The cost of any
repairs, alterations, additions, changes, replacements, and other
items which under generally accepted accounting principles are
properly classified as capital expenditures to the extent they
upgrade or improve the building as opposed to replace existing
items which have worn out;
(o)
Any operating
expense representing any amount paid to a related corporation,
entity, or person which is in excess of the amount which would be
paid in the absence of such relationship;
(p)
The cost of tools
and equipment used initially in the construction, operation, repair
and maintenance of the building;
(q)
The cost of any
work or service performed for or facilities furnished to any tenant
of the building to a greater extent or in a manner more favorable
to such tenant than that performed for or furnished to
tenant;
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(r)
The cost
alterations of space in the building leased to other
tenants;
(s)
The cost of
overtime or other expense to landlord in curing its defaults or
performing work expressly provided in this lease to be borne at
landlord’s expenses;
(t)
Capital
improvements or expenditures incurred to reduce operating expenses
except that such improvements or expenditures shall be included in
operating expenses to the lesser of the annual amortized amount of
said improvements or expenditures (over the useful life of the
improvement or item) or the actual savings; and
(u)
Ground rent or
similar payments to a ground Lessor;
(v)
The cost of
removal, abatement, or treatment of asbestos or any other hazardous
substance or gas.
REAL
ESTATE TAXES - EXCLUSIONS
1.
Inheritance
taxes
2.
Gift
taxes
3.
Transfer
taxes
4.
Franchise
taxes
5.
Excise
taxes
6.
Net income
taxes
7.
Profit
taxes
8.
Capital
levies
9.
Late payment
charges and penalties
10.
Special Assessments
levied against property other than real estate. Assessments payable
hereunder may be payable by Tenant in installments if the Landlord
is permitted to do so.
Any
rental tax or any tax in substitution of a rental tax shall not be
excluded.
EXHIBIT B
CLEANING SPECIFICATIONS
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EXHIBIT C
RULES AND REGULATIONS
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