Exhibit 10.2
LEASE
BETWEEN
XXXX PARAMUS AFFILIATES, Lessor
- and -
LONG BEACH ACCEPTANCE CORP., LESSEE
Dated: March 5th, 1997
TABLE OF CONTENTS
DESCRIPTION ...............................................................1
TERM ......................................................................1
BASIC RENT ................................................................1
USE AND OCCUPANCY .........................................................2
CARE AND REPAIR OF PREMISES/ENVIRONMENTAL .................................2
ALTERATIONS, ADDITIONS OR IMPROVEMENTS ....................................4
ACTIVITIES INCREASING FIRE INSURANCE ......................................4
ABANDONMENT ...............................................................4
ASSIGNMENT AND SUBLEASE ...................................................5
COMPLIANCE WITH RULES AND REGULATIONS .....................................7
DAMAGES TO BUILDING/WAIVER OF SUBROGATION .................................8
EMINENT DOMAIN ............................................................8
INSOLVENCY OF LESSEE ......................................................9
LESSOR'S REMEDIES ON DEFAULT ..............................................9
DEFICIENCY ................................................................9
SUBORDINATION OF LEASE ...................................................10
SECURITY DEPOSIT .........................................................10
RIGHT TO CURE LESSEE'S BREACH ............................................11
LIENS ....................................................................11
RIGHT TO INSPECT AND REPAIR ..............................................11
SERVICES TO BE PROVIDED BY LESSOR ........................................11
ELECTRICITY ..............................................................12
ADDITIONAL RENT ..........................................................13
(A) OPERATING COST ESCALATION ............................................13
(B) FUEL, UTILITIES AND ELECTRIC COST ESCALATION .........................13
(C) TAX ESCALATION .......................................................14
(D) LEASE YEAR ...........................................................14
(E) PAYMENT ..............................................................14
(F) BOOKS AND RECORDS ....................................................15
(G) RIGHT OF REVIEW ......................................................15
(H) OCCUPANCY ADJUSTMENT .................................................15
INTERRUPTION OF SERVICES OR USE ..........................................16
LESSEE'S ESTOPPEL ........................................................16
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HOLDOVER TENANCY .........................................................16
LESSOR'S WORK - LESSEE'S DRAWINGS ........................................17
RIGHT TO SHOW PREMISES ...................................................17
WAIVER OF JURY TRIAL/NON-MANDATORY COUNTERCLAIMS ........................ 17
LATE CHARGE ..............................................................17
NO OTHER REPRESENTATIONS .................................................17
QUIET ENJOYMENT ..........................................................17
INSURANCE ................................................................18
(A) LESSEE'S INSURANCE ...................................................18
(B) LESSOR'S INSURANCE ...................................................20
(C) WAIVER OF SUBROGATION ................................................20
RULES OF CONSTRUCTION/APPLICABLE LAW .....................................20
INDEMNITY ................................................................21
APPLICABILITY TO HEIRS AND ASSIGNS .......................................21
PARKING SPACES ...........................................................21
LESSOR'S EXCULPATION .....................................................21
BROKER ...................................................................21
PERSONAL LIABILITY .......................................................22
NO OPTION ................................................................22
DEFINITIONS ..............................................................22
(A) PROPORTIONATE SHARE ..................................................22
(B) COMMON FACILITIES ....................................................22
(C) FORCE MAJEURE ........................................................23
(D) BUILDING HOURS .......................................................23
(E) ADDITIONAL RENT ......................................................23
(F) AFFILIATED COMPANY ...................................................23
LEASE COMMENCEMENT .......................................................23
NOTICES ..................................................................24
MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE ...............................24
LEASE CONDITION ..........................................................24
ACCORD AND SATISFACTION ..................................................24
EFFECT OF WAIVERS ........................................................24
NUMBER AND GENDER ........................................................24
LESSOR'S RESERVED RIGHT ..................................................24
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CORPORATE AUTHORITY .....................................................25
GOVERNMENT REQUIREMENTS .................................................25
GUARANTY ................................................................25
RENEWAL OPTIONS .........................................................25
RIGHT OF FIRST OFFER ....................................................26
CANCELLATION OPTION .....................................................26
ADDITIONAL SPACE OPTION .................................................27
OVERTIME HVAC USE .......................................................27
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LEASE, made the 5th day of March, 1997, between XXXX PARAMUS
AFFILIATES, whose address is 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxx
Xxxxxx 00000 (hereinafter referred to as "Lessor"); and LONG BEACH ACCEPTANCE
CORP., a corporation of the State of Delaware, whose address is 000
Xxxxxxxxxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as
"Lessee").
1. DESCRIPTION. Lessor hereby leases to Lessee and Lessee hereby
hires from Lessor, the following space: Approximately 34,759 gross rentable
square feet consisting of approximately 15,504 gross rentable square feet on
the first (1st) floor (the "First Floor Space") and approximately 19,255
gross rentable square feet on the fourth (4th) floor (the "Fourth Floor
Space") (the First Floor Space and the Fourth Floor Space being hereinafter,
collectively, referred to as "Demised Premises" or "Premises") approximately
as shown on the plan or plans, initialed by the parties hereto, marked
"Exhibit A" and made a part of this Lease, which includes an allocable share
of the Common Facilities, in the building known as Xxxx Centre II located at
Xxx Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx (hereinafter referred to as
"Building"), which is situated on that certain parcel of land (hereinafter
referred to as "Office Building Area"), as described on Exhibit A-1 attached
hereto and made a part of this Lease, together with the right to use in
common with other lessees of the Building, their invitees, customers and
employees, those public areas of the Common Facilities as hereinafter
defined. Notwithstanding the foregoing, from and after the commencement of
the thirteenth (13th) month following the Commencement Date, as hereinafter
defined (the "6,150 Commencement Date"), through the remainder of the Term,
as the same may be extended or renewed, Lessee shall lease from Lessor
additional space consisting of approximately 6,150 gross rentable square feet
on the fourth (4th) floor, as shown on Exhibit A attached hereto and made a
part hereof (the "6,150 Space"), which space shall not be contiguous to the
Fourth Floor Space, and from and after the 6,150 Commencement Date, Lessee's
Premises shall consist of a total of approximately 40,909 gross rentable
square feet of space, comprised of the First Floor Space, the Fourth Floor
Space, and the 6,150 Space, and all of the terms and provisions of this
Lease, to include the work to be performed by Lessor pursuant to Exhibit C,
shall be deemed applicable to the 6,150 Space, and the Term Basic Rent
payable as of the 6,150 Commencement Date shall be increased to reflect the
inclusion of the 6,150 Space, as more particularly described in Section 3.
2. TERM. The Premises are leased for a term of seven (7) years and two
(2) months to commence on March 1, 1997 and to end at 11:59 p.m. on April 30,
2004 (hereinafter referred to as the "Term" or "Lease Term").
3. BASIC RENT. The Lessee shall pay to the Lessor during the Term, with
respect to both the original Premises and the 6,150 Space, basic rent in the
amount of Seven Million Thirty-one Thousand Seven Hundred Twenty-four and 69/100
($7,031,724.69) Dollars (hereinafter referred to as "Term Basic Rent") payable
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts.
(a) The Term Basic Rent with respect to the Premises only shall
accrue as follows:
--------------------------------------------------------------------------
PERIOD ANNUAL BASIC RENT MONTHLY BASIC RENT
--------------------------------------------------------------------------
Commencement Date - 12th $712,907.09 $59,408.92
month of Term
--------------------------------------------------------------------------
13th - 24th months of Term $730,286.59 $60,857.22
--------------------------------------------------------------------------
25th - 36th months of Term $747,666.09 $62,305.51
--------------------------------------------------------------------------
37th - 48th months of Term $765,045.59 $63,753.80
--------------------------------------------------------------------------
49th - 60th months of Term $782,425.09 $65,202.09
--------------------------------------------------------------------------
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---------------------------------------------------------------------------
61st - 72nd months of Term $791,114.84 $65,926.24
---------------------------------------------------------------------------
73rd - 86th months of Term $799,804.59 $66,650.38
---------------------------------------------------------------------------
(b) The Term Basic Rent with respect to the 6,150 Space only
shall accrue as follows:
-------------------------------------------------------------------------------
PERIOD ANNUAL BASIC RENT MONTHLY BASIC RENT
-------------------------------------------------------------------------------
6,150 Space
Commencement Date - 12th
month following 6,150
Space Commencement Date $124,230.00 $10,352.50
-------------------------------------------------------------------------------
13th - 24th months
following 6,150 Space
Commencement Date $127,305.00 $10,608.75
-------------------------------------------------------------------------------
25th - 36th months
following 6,150 Space
Commencement Date $130,380.00 $10,865.00
-------------------------------------------------------------------------------
37th - 48th months
following 6,150 Space
Commencement Date $133,455.00 $11,121.25
-------------------------------------------------------------------------------
49th - 60th months
following 6,150 Space
Commencement Date $136,530.00 $11,377.50
-------------------------------------------------------------------------------
61st - 72nd months
following 6,150 Space
Commencement Date $138,067.50 $11,505.63
-------------------------------------------------------------------------------
73rd month following 6,150
Space Commencement Date
- expiration of Term $139,605.00 $11,633.75
-------------------------------------------------------------------------------
The aforesaid installments of Monthly Basic Rent shall be payable in advance
on the first day of each calendar month during the Term, except that a
proportionately lesser sum may be paid for the first and last months of the
Term of this Lease if the Lease Term commences on a date other than the first
day of the month, in accordance with the provisions of this Lease herein set
forth. Lessor acknowledges receipt from Lessee of the sum of Fifty-nine
Thousand Four Hundred Eight and 92/100 ($59,408.92) Dollars by check, subject
to collection, for Monthly Basic Rent for the first month of the Lease Term.
Lessee shall pay Basic Rent, and any Additional Rent as hereinafter provided,
to Xxxx Management Corp., as agent for Lessor, at Lessor's above stated
address, or to such other agent as Lessor may designate in writing, without
demand and without counterclaim, deduction or setoff. As used in this Lease,
Basic Rent shall mean either Term Basic Rent, Annual Basic Rent or Monthly
Basic Rent as appropriate.
4. USE AND OCCUPANCY. Lessee shall use and occupy the Premises as
general offices and for no other purpose.
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL. Lessee covenants to
commit no act of waste and to take good care of the Premises and the fixtures
and appurtenances therein, and shall, in the use and occupancy of the
Premises, comply with all present and future laws, orders and regulations of
the federal, state and municipal governments or any of their departments
affecting the Premises and with any and all environmental requirements
resulting from the Lessee's use of the Premises; this covenant to
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survive the expiration or sooner termination of the Lease. Lessor shall, at
Lessee's expense, make all necessary repairs to the Premises. Lessor shall
make all necessary repairs to the Common Facilities and to the parking areas,
if any, the same to be included as an Operating Cost, except where the repair
has been made necessary by misuse by Lessee or Lessee's agents, servants,
visitors or licensees, in which event Lessor shall nevertheless make the
repair but Lessee shall pay to Lessor, as Additional Rent, within thirty (30)
days of demand, the costs therefor. All improvements made by Lessee to the
Premises, which are so attached to the Premises that they cannot be removed
without material injury to the Premises, shall become the property of Lessor
upon installation. Not later than the last day of the Term, Lessee shall, at
Lessee's expense, remove all Lessee's personal property and those
improvements made by Lessee which have not become the property of Lessor,
including trade fixtures, cabinetwork, movable paneling, partitions and the
like; repair all injury done by or in connection with the installation or
removal of said property and improvements; and surrender the Premises in as
good condition as they were at the beginning of the Term, reasonable wear and
damage by fire, the elements, casualty, or other cause not due to the misuse
or neglect by Lessee, Lessee's agents, servants, visitors or licensees
excepted. All other property of Lessee remaining on the Premises after the
last day of the Term of this Lease shall be conclusively deemed abandoned and
may be removed by Lessor, and Lessee shall reimburse Lessor for the cost of
such removal. Lessor may have any such property stored at Lessee's risk and
expense.
Notwithstanding anything contained herein to the contrary,
Lessor represents and warrants to Lessee that Lessor has received no notice
of a violation of any law, order or regulation of any federal, State or
municipal government or of any environmental requirement with respect to the
Premises, the 6,150 Space, the Building or the Office Building Area.
Lessee acknowledges the existence of environmental laws,
rules and regulations, including but not limited to the provisions of ISRA,
as hereinafter defined. Lessee shall comply with any and all such laws, rules
and regulations. Lessee represents to Lessor that Lessee's Standard
Industrial Classification (SIC) Number as designated in the Standard
Industrial Classification Manual prepared by the Office of Management and
Budget in the Executive Office of the President of the United States will not
subject the Premises to ISRA applicability. Any change by Lessee to an
operation with a SIC Number subject to ISRA shall require Lessor's written
consent. Any such proposed change shall be sent in writing to Lessor sixty
(60) days prior to the proposed change. Lessor, at its sole option, may deny
consent.
Lessee hereby agrees to execute such documents as Lessor
reasonably deems necessary and to make such applications as Lessor reasonably
requires to assure compliance with ISRA. Lessee shall bear all costs and
expenses incurred by Lessor associated with any required ISRA compliance
resulting from Lessee's use of the Demised Premises including but not limited
to state agency fees, engineering fees, clean-up costs, filing fees and
suretyship expenses. As used in this Lease, ISRA compliance shall include
applications for determinations of nonapplicability by the appropriate
governmental authority. The foregoing undertaking shall survive the termination
or sooner expiration of the Lease and surrender of the Demised Premises and
shall also survive sale, or lease or assignment of the Demised Premises by
Lessor. Lessee agrees to indemnify and hold Lessor harmless from any violation
of ISRA occasioned by Lessee's use of the Demised Premises. The Lessee shall
immediately provide the Lessor with copies of all correspondence, reports,
notices, orders, findings, declarations and other materials pertinent to the
Lessee's compliance and the requirements of the
New Jersey Department of
Environmental Protection ("NJDEP") under ISRA as they are issued or received by
the Lessee.
Lessee agrees not to generate, store, manufacture, refine,
transport, treat, dispose of, or otherwise permit to be present on or about the
Premises, any Hazardous Substances. As used herein, Hazardous Substances shall
be defined as any "hazardous chemical," "hazardous substance" or similar term
as defined in the Comprehensive Environmental Responsibility Compensation and
Liability Act, as amended (42 U.S.C. 9601,
3
ET SEQ.), the
New Jersey Environmental Cleanup Responsibility Act, as amended,
N.J.S.A. 13:1K-6 ET SEQ. and/or the Industrial Site Recovery Act ("ISRA"), the
New Jersey Spill Compensation and Control Act, as amended, N.J.S.A.
58:10-23.11b, ET SEQ., any rules or regulations promulgated thereunder, or in
any other applicable federal, state or local law, rule or regulation dealing
with environmental protection. It is understood and agreed that the provisions
contained in this Section shall be applicable notwithstanding the fact that any
substance shall not be deemed to be a Hazardous Substance at the time of its use
by the Lessee but shall thereafter be deemed to be a Hazardous Substance.
Notwithstanding anything contained herein to the contrary, Lessee shall be
permitted to keep small quantities of normal office supplies which may be
included as Hazardous Substances such as cleaning supplies and copier supplies,
provided the same are properly stored, handled and disposed of in full
compliance with all environmental laws.
In the event Lessee fails to comply with ISRA as stated in
this Section or any other governmental law as of the termination or sooner
expiration of the Lease and as a consequence thereof Lessor is unable to rent
the Demised Premises, then the Lessor shall treat the Lessee as one who has not
removed at the end of its Term, and thereupon be entitled to all remedies
against the Lessee provided by law in that situation including a monthly rental
of one hundred fifty (150%) percent of the Monthly Basic Rent for the last month
of the Term of this Lease or any renewal term, payable in advance on the first
day of each month, until such time as Lessee provides Lessor with a negative
declaration or confirmation that any required clean-up plan has been
successfully completed.
Lessee agrees to indemnify and hold harmless the Lessor and
each mortgagee of the Premises from and against any and all liabilities,
damages, claims, losses, judgments, causes of action, costs and expenses
(including the reasonable fees and expenses of counsel) which may be incurred by
the Lessor or any such mortgagee relating to or arising out of any breach by
Lessee of the undertakings set forth in this Section, said indemnity to survive
the Lease expiration or sooner termination.
Notwithstanding anything contained herein to the contrary,
Lessee shall have no responsibility for any cost or expense for any Hazardous
Substance or environmental condition caused or created by Lessor or determined
to have been in existence at the Demised Premises prior to the Commencement Date
of this Lease to the extent Lessee has not exacerbated any such pre-existing
condition. Lessee agrees to notify Lessor immediately upon the discovery of any
such pre-existing Hazardous Substance or environmental condition.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS. Lessee shall not, without
first obtaining the written consent of Lessor, make any alterations, additions
or improvements in, to or about the Premises. Notwithstanding anything contained
herein to the contrary, Lessor's consent shall not be required with respect to
alterations, additions or improvements, the aggregate cost of which does not
exceed Ten Thousand and 00/100 ($10,000.00) Dollars in any one (1) Lease Year
provided same do not affect any structural portions of the Building or any HVAC,
electrical, plumbing or other Building systems. In any event, Lessee shall
notify Lessor of any such proposed alteration, addition or improvement and, if
requested by Lessor, Lessee shall provide Lessor with plans and specifications
of any such alterations, additions or improvements.
7. ACTIVITIES INCREASING FIRE INSURANCE. Lessee shall not do or suffer
anything to be done on the Premises which will increase the rate of fire
insurance on the Building.
8. ABANDONMENT. Lessee shall not, without first obtaining the written
consent of Lessor, abandon the Premises, or allow the Premises to become vacant
or deserted. Notwithstanding the foregoing, no event of default shall be deemed
to have occurred by virtue of Lessee's abandonment of the Demised Premises
provided Lessee continues to fulfill all of its obligations under this Lease
including by way of example but not limitation, the payment of all Term Basic
Rent and Additional Rent and the maintenance of all insurance required under
Section 33. If the costs of any insurance are increased resulting
4
from Lessee's abandonment of the Demised Premises, Lessee shall pay such
increased insurance costs.
9. ASSIGNMENT AND SUBLEASE. Lessee may not mortgage, pledge,
hypothecate, assign, transfer, sublet or otherwise deal with this Lease or the
Premises in any manner except as specifically provided for in this Section 9:
(A) In the event that Lessee desires to sublease the whole or
any portion of the Premises or assign the within Lease to any other
party, the terms and conditions of such sublease or assignment shall be
communicated to Lessor in writing not less than thirty (30) days prior
to the effective date of any such sublease or assignment, and, prior to
such effective date, Lessor shall have the option, exercisable in
writing to Lessee within ten (10) business days of Lessor's receipt of
such written communication, to recapture the within Lease so that
such prospective sublessee or assignee shall then become the sole
lessee of Lessor hereunder or alternatively to recapture said space and
the within Lessee shall be fully released from any and all obligations
hereunder.
(B) In the event that Lessor elects not to recapture the Lease
as hereinabove provided, Lessee may nevertheless assign this Lease or
sublet the whole or any portion of the Premises, subject to Lessor's
prior written consent, which consent shall not be unreasonably
withheld, delayed or denied and subject to the consent of any
mortgagee, trust deed holder or ground lessor, on the basis of the
following terms and conditions:
(1) The Lessee shall provide to Lessor the name and
address of the assignee or sublessee.
(2) The assignee or sublessee shall assume, by
written instrument, all of the obligations of this Lease, and
a copy of such assumption agreement shall be furnished to
Lessor within ten (10) days of its execution. Any sublease
shall expressly acknowledge that said sublessee's rights
against the Lessor shall be no greater than those of the
Lessee.
(3) The Lessee and each assignee shall be and remain
liable for the observance of all the covenants and provisions
of this Lease, including, but not limited to, the payment of
Term Basic Rent reserved herein as and when required to be
paid, through the entire Term of this Lease, as the same may
be renewed, extended or otherwise modified.
(4) The Lessee and any assignee shall promptly pay to
Lessor one-half (1/2) of any net consideration received for
any assignment or one-half (1/2) of the net rent (Basic and
Additional), as and when received in excess of the Term Basic
Rent and Additional Rent required to be paid by Lessee for the
period affected by said assignment or sublease for the area
sublet, computed on the basis of an average square foot rent
for the gross square footage Lessee has leased. As used
herein, net consideration and/or net rent shall mean gross
rent (basic and additional rent) or gross consideration less
any reasonable brokerage or tenant work paid by Lessee in
connection with the assignment or sublet, said brokerage or
tenant work to be amortized over the term of the assignment or
sublet.
(5) In any event, the acceptance by Lessor of any
rent (Basic and Additional) from the assignee or from any of
the subtenants or the failure of Lessor to insist upon a
strict
5
performance of any of the terms, conditions and covenants
herein shall not release Lessee herein, nor any assignee
assuming this Lease, from any and all of the obligations
herein during and for the entire Term of this Lease.
(6) Lessee shall reimburse Lessor for Lessor's actual
costs in connection with the handling charges for each request
for consent to any sublet or assignment prior to its
consideration of the same; however, in no event shall such
payment exceed Five Hundred and 00/100 ($500.00) Dollars in
any one instance.
(7) Lessee shall have no claim, and hereby waives the
right to any claim, against Lessor for money damages by reason
of any refusal, withholding or delaying by Lessor of any
consent, and in such event, Lessee's only remedies therefor
shall be an action for specific performance, injunction or
declaratory judgment to enforce any such requirement. Lessor
acknowledges that Lessee may commence such action by means of
an Order to Show Cause before the Superior Court of
New
Jersey, in which event Lessor acknowledges Lessee's rights to
an expedited proceeding and to notify Lessor of the
institution of the Order to Show Cause by telephonic means.
Lessor and Lessee further agree that the determination of such
Court shall be conclusive and nonappealable.
(C) Any sublet or assignment to an Affiliated Company shall
not be subject to the provisions of Subsections 9(A), 9(B)(4) or
9(B)(6) hereof and shall not require Lessor's prior written consent,
but all other provisions of this Section shall apply.
(D) In the event that any or all of Lessee's interest in the
Premises and/or this Lease is transferred by operation of law to any
trustee, receiver, or other representative or agent of Lessee, or to
Lessee as a debtor in possession, and subsequently any or all of
Lessee's interest in the Premises and/or this Lease is offered or to be
offered by Lessee or any trustee, receiver, or other representative or
agent of Lessee as to its estate or property (such person, firm or
entity being hereinafter referred to as the "Grantor"), for assignment,
conveyance, lease, or other disposition to a person, firm or entity
other than Lessor (each such transaction being hereinafter referred to
as a "Disposition"), it is agreed that Lessor has and shall have a
right of first refusal to purchase, take, or otherwise acquire, the
same upon the same terms and conditions as the Grantor thereof shall
accept upon such Disposition to such other person, firm, or entity; and
as to each such Disposition the Grantor shall give written notice to
Lessor in reasonable detail of all of the terms and conditions of such
Disposition within twenty (20) days next following its determination to
accept the same but prior to accepting the same, and Grantor shall not
make the Disposition until and unless Lessor has failed or refused to
accept such right of first refusal as to the Disposition, as set forth
herein.
Lessor shall have sixty (60) days next following its receipt
of the written notice as to such Disposition in which to exercise the
option to acquire Lessee's interest by such Disposition, and the
exercise of the option by Lessor shall be effected by notice to that
effect sent to the Grantor; but nothing herein shall require Lessor to
accept a particular Disposition or any Disposition, nor does the
rejection of any one such offer of first refusal constitute a waiver or
release of the obligation of the Grantor to submit other offers
hereunder to Lessor. In the event Lessor accepts such offer of first
refusal, the transaction shall be consummated pursuant to the terms and
conditions of the Disposition described in the notice to Lessor. In the
event
6
Lessor rejects such offer of first refusal, Grantor may consummate the
Disposition with such other person, firm, or entity; but any decrease
in price of more than two (2%) percent of the price sought from Lessor
or any change in the terms of payment for such Disposition shall
constitute a new transaction requiring a further option of first
refusal to be given to Lessor hereunder.
(E) Without limiting any of the provisions of Sections 13 and
14, if pursuant to the Federal Bankruptcy Code (herein the "Code") or
any similar law hereafter enacted having the same general purpose,
Lessee is permitted to assign this Lease notwithstanding the
restrictions contained in this Lease, adequate assurance of future
performance by an assignee expressly permitted under such Code shall be
deemed to mean the deposit of cash security in an amount equal to one
(1) year's Annual Basic Rent and Additional Rent for the next
succeeding twelve (12) months (which Additional Rent shall be
reasonably estimated by Lessor), which deposit shall be held by Lessor
for the balance of the Term, without interest, as security for the full
performance of all of Lessee's obligations under this Lease, to be held
and applied in the manner specified for security in Section 17.
(F) Except as specifically set forth above, no portion of the
Demised Premises or of Lessee's interest in this Lease may be acquired
by any other person or entity, whether by assignment, mortgage,
sublease, transfer, operation of law or act of the Lessee, nor shall
Lessee pledge its interest in this Lease or in any security deposit
required hereunder.
(G) If Lessee is a corporation other than a corporation whose
stock is listed and traded on a nationally recognized stock exchange,
the provisions of this Section 9 shall apply to a transfer (however
accomplished, whether in a single transaction or in a series of related
or unrelated transactions) of stock [or any other mechanism such as, by
way of example, the issuance of additional stock, a stock voting
agreement or change in class(es) of stock] which results in a change of
control of Lessee as if such transfer of stock (or other mechanism)
which results in a change of control of Lessee were an assignment of
this Lease, and if Lessee is a partnership or joint venture, said
provisions shall apply with respect to a transfer (by one or more
transfers) of an interest in the distributions of profits and losses of
such partnership or joint venture (or other mechanism, such as, by way
of example, the creation of additional general partnership or limited
partnership interests) which results in a change of control of such a
partnership or joint venture as if such transfer of an interest in the
distributions of profits and losses of such partnership or joint
venture which results in a change of control of such partnership or
joint venture were an assignment of this Lease; but said provisions
shall not apply to transactions with a corporation into or with which
Lessee is merged or consolidated or to which all or substantially all
of Lessee's assets are transferred or to any corporation which controls
or is controlled by Lessee or is under common control with Lessee,
provided that in the event of such merger, consolidation or transfer of
all or substantially all of Lessee's assets, (i) the successor to
Lessee has a net worth computed in accordance with generally accepted
accounting principles at least equal to the greater of (a) the net
worth of Lessee immediately prior to such merger, consolidation or
transfer or (b) the net worth of Lessee herein named on the date of
this Lease, and (ii) proof satisfactory to Lessor of such net worth
shall have been delivered to Lessor at least ten (10) days prior to the
effective date of any such transaction.
10. COMPLIANCE WITH RULES AND REGULATIONS. Lessee shall observe and
comply with the rules and regulations hereinafter set forth in Exhibit B
attached hereto and made a part hereof and with such further reasonable rules
and regulations as Lessor may prescribe, on written notice to Lessee, for the
safety, care and cleanliness of the
7
Building and the comfort, quiet and convenience of other occupants of the
Building. Lessee shall not place a load upon any floor of the Demised
Premises exceeding the floor load per square foot area which it was designed
to carry and which is allowed by law. Lessor reserves the right to reasonably
prescribe the weight and position of all safes, machines and equipment. Such
installations shall be placed and maintained by Lessee, at Lessee's expense,
in settings sufficient, in Lessor's judgment, to absorb and prevent
vibration, noise and annoyance.
11. DAMAGES TO BUILDING/WAIVER OF SUBROGATION. If the Building is
damaged by fire or any other cause to such extent that the cost of
restoration as reasonably estimated by Lessor, will equal or exceed
twenty-five (25%) percent of the replacement value of the Building (exclusive
of foundations) just prior to the occurrence of the damage, then Lessor may,
no later than the sixtieth (60th) day following the damage, give Lessee a
notice of election to terminate this Lease; or if the cost of restoration
will equal or exceed fifty (50%) percent of such replacement value and if the
Premises shall not be reasonably usable for the purpose for which they are
leased hereunder, then Lessee may, no later than the sixtieth (60th) day
following the damage, give Lessor a notice of election to terminate this
Lease. In either said event of election, this Lease shall be deemed to
terminate on the thirtieth (30th) day after the giving of said notice, and
Lessee shall surrender possession of the Premises within a reasonable time
thereafter, and the Term Basic Rent and any Additional Rent, shall be
apportioned as of the date of said surrender and any Term Basic Rent or any
Additional Rent paid for any period beyond the later of the thirtieth (30th)
day after said notice or the date Lessee surrenders possession shall be
repaid to Lessee. If the cost of restoration shall not entitle Lessor to
terminate this Lease, or if despite the cost, Lessor does not elect to
terminate this Lease, Lessor shall restore the Building and the Premises with
reasonable promptness, subject to Force Majeure, as hereinafter defined, and
except as stated above, Lessee shall have no right to terminate this Lease.
Lessor need not restore fixtures and improvements owned by Lessee.
In any case in which use of the Premises is affected by any
damage to the Building, there shall be either an abatement or an equitable
reduction in Term Basic Rent and an equitable reduction in the Base Period
Costs as established in Section 23 depending on the period for which and the
extent to which the Premises are not reasonably usable for the purpose for
which they are leased hereunder. The words "restoration" and "restore" as
used in this Section 11 shall include repairs. If the damage results from the
fault of the Lessee, or Lessee's agents, servants, visitors or licensees,
Lessee shall not be entitled to any abatement or reduction in Term Basic
Rent, except to the extent of any rent insurance received by Lessor.
Except as provided in Section 5 hereof with respect to
environmental matters only, notwithstanding the provisions of this Section or
any other provision of this Lease, in the event of any loss or damage to the
Building, the Premises and/or any contents (herein "property damage"), each
party waives all claims against the other and its or their agents, servants,
employees and partners for any such loss or damage and each party shall look
only to any insurance which it has obtained to protect against such loss (or
in the case of Lessee, waives all claims against any tenant of the Building
that has similarly waived claims against such Lessee), and each party shall
obtain, for each policy of such insurance, provisions waiving any claim
against the other party [and against any other tenant(s) in the Building that
has waived subrogation against the Lessee] for loss or damage within the scope
of such insurance.
12. EMINENT DOMAIN. If Lessee's use of the Premises is materially
affected due to the taking by eminent domain of (a) the Premises or any part
thereof or any estate therein; or (b) any other part of the Building; then,
in either event, this Lease shall terminate on the date when title vests
pursuant to such taking. The Term Basic Rent, and any Additional Rent, shall
be apportioned as of said termination date and any Term Basic Rent or
Additional Rent paid for any period beyond said date shall be repaid to
Lessee. In the event of a partial taking which does not effect a termination
of this Lease but does deprive Lessee of the use of a portion of the demised
premises, there shall either be an abatement or an
8
equitable reduction of the Term Basic Rent, and an equitable adjustment
reducing the Base Period Costs as hereinafter defined depending on the period
for which and the extent to which the Premises so taken are not reasonably
usable for the purpose for which they are leased hereunder. Lessee shall not
be entitled to any part of the award for such taking or any payment in lieu
thereof, but Lessee may file a separate claim for any taking of fixtures and
improvements owned by Lessee which have not become Lessor's property, and for
moving expenses, provided the same shall in no way affect or diminish
Lessor's award.
13. INSOLVENCY OF LESSEE. Either (a) the appointment of a receiver
to take possession of all or substantially all of the assets of Lessee, or
(b) a general assignment by Lessee for the benefit of creditors, or (c) any
action taken or suffered by Lessee under any insolvency or bankruptcy act,
shall constitute a default of this Lease by Lessee, and Lessor may terminate
this Lease forthwith and upon notice of such termination Lessee's right to
possession of the Demised Premises shall cease, and Lessee shall then quit
and surrender the Premises to Lessor but Lessee shall remain liable as
hereinafter provided in Section 15 hereof.
14. LESSOR'S REMEDIES ON DEFAULT. If Lessee defaults in the payment
of Term Basic Rent, or any Additional Rent, or defaults in the performance of
any of the other covenants and conditions hereof, Lessor may give Lessee
notice of such default, and if Lessee does not cure any Term Basic Rent or
Additional Rent default within five (5) days of the giving of such notice or
other default within thirty (30) days after giving of such notice
[or if such other default is of such nature that it cannot be completely cured
within such period, if Lessee does not commence such curing within such thirty
(30) days and thereafter proceed with reasonable diligence and in good faith
to cure such default], then Lessor may terminate this Lease on not less than
ten (10) days' notice to Lessee, and on the date specified in said notice,
Lessee's right to possession of the Demised Premises shall cease, and Lessee
shall then quit and surrender the Premises to Lessor, but Lessee shall remain
liable as hereinafter provided. If this Lease shall have been so terminated by
Lessor pursuant to Sections 13 or 14 hereof, Lessor may at any time thereafter
resume possession of the Premises by any lawful means and remove Lessee or
other occupants and their effects.
15. DEFICIENCY. In any case where Lessor has recovered possession of
the Premises by reason of Lessee's default, Lessor may, at Lessor's option,
occupy the Premises or cause the Premises to be redecorated, altered,
divided, consolidated with other adjoining premises, or otherwise changed or
prepared for reletting, and may relet the Premises or any part thereof as
agent of Lessee or otherwise, for a term or terms to expire prior to, at the
same time as, or subsequent to, the original expiration date of this Lease,
at Lessor's option, and receive Term Basic Rent and Additional Rent therefor.
Term Basic Rent and Additional Rent so received shall be applied first to the
payment of such expenses as Lessor may have incurred in connection with the
recovery of possession, redecorating, altering, dividing, consolidating with
other adjoining premises, or otherwise changing or preparing for reletting,
and the reletting, including brokerage and reasonable attorney's fees, and
then to the payment of damages in amounts equal to the Term Basic Rent and
Additional Rent hereunder and to the costs and expenses of performance of the
other covenants of Lessee as herein provided. Lessee agrees, in any such
case, whether or not Lessor has relet, to pay to Lessor damages equal to the
Term Basic Rent and Additional Rent and other sums herein agreed to be paid
by Lessee, as and when due, less the net proceeds of the reletting, if any,
as ascertained from time to time, as of the due date, and the same shall be
payable by Lessee on the several rent days above specified. Lessee shall not
be entitled to any surplus accruing as a result of any such reletting, nor
shall any surplus be applied to offset the damages referred to in the
preceding sentence. In reletting the Premises as aforesaid, Lessor may grant
rent concessions, and Lessee shall not be credited therewith. No such
reletting shall constitute a surrender and acceptance or be deemed evidence
thereof. If Lessor elects, pursuant hereto, actually to occupy and use the
Premises or any part thereof during any part of the balance of the Term as
originally fixed or since extended, there shall be allowed against Lessee's
obligation for Term Basic Rent and Additional Rent or damages as herein
defined, during the period of Lessor's occupancy, the reasonable value of
such occupancy, not to exceed in any
9
event the Term Basic Rent and Additional Rent herein reserved and such
occupancy shall not be construed as a release of Lessee's liability hereunder.
Alternatively, in any case where Lessor has recovered
possession of the Premises by reason of Lessee's default, Lessor may at
Lessor's option, and at any time thereafter, and without notice or other
action by Lessor, and without prejudice to any other rights or remedies it
might have hereunder or at law, or equity, become entitled to recover from
Lessee, as damages for such breach, in addition to such other sums herein
agreed to be paid by Lessee, to the date of reentry, expiration and/or
dispossess, an amount equal to the difference between the Term Basic Rent and
Additional Rent reserved in this Lease from the date of such default to the
date of expiration of the Term demised and the then fair and reasonable
rental value of the Premises for the same period. Said damages shall become
due and payable to Lessor immediately upon such breach of this Lease and
without regard to whether this Lease be terminated or not, and if this Lease
be terminated, without regard to the manner in which it is terminated. In
the computation of such damages, the difference between any installments of
Term Basic Rent and Additional Rent thereafter becoming due and the fair and
reasonable rental value of the Premises for the period for which such
installment was payable shall be discounted to the date of such default at
the rate of not more than six (6%) percent per annum.
Lessee hereby waives all right of redemption to which
Lessee or any person under Lessee might be entitled by any law now or
hereafter in force. In addition, in the event of a default which results in
the Lessor recovering possession of the Premises, Lessor will use reasonable
efforts to relet the Premises in order to mitigate its damages provided that
Lessor shall retain the right, in the exercise of its reasonable business
judgment, to approve any tenant and determine the reasonable terms and
conditions of any lease, including, but not limited to, rent and length of
term. Notwithstanding the foregoing, Lessor shall not be obligated to display
the Premises to prospective tenants if Lessor has other premises available in
the Building or in the building owned by Lessor's affiliate known as Xxxx
Centre III located at 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx. However, if
prospective tenants do not find such other premises suitable, Lessor agrees
that it will then display the Premises to the prospective tenants.
Lessor's remedies hereunder are in addition to any remedy
allowed by law.
Lessee agrees to pay, as Additional Rent, all attorney's
fees and other expenses incurred by the Lessor in enforcing any of the
obligations under this Lease, this covenant to survive the expiration or
sooner termination of this Lease.
16. SUBORDINATION OF LEASE. This Lease and any option contained
herein shall, at Lessor's option, or at the option of any holder of any
underlying lease or holder of any first mortgage or first deed of trust, be
subject and subordinate to any such underlying leases and to any such first
mortgage and/or first trust deed which may now or hereafter affect the real
property of which the Premises form a part, and also to all renewals,
modifications, consolidations and replacements of said underlying leases and
said first mortgage or first trust deed. Although no instrument or act on the
part of Lessee shall be necessary to effectuate such subordination, Lessee
will, nevertheless, execute and deliver such further instruments confirming
such subordination of this Lease as may be desired by the holders of said
first mortgage and first trust deeds or by any of the lessors under such
underlying leases. If any underlying lease to which this Lease is subject
terminates, Lessee shall, on timely request, attorn to the owner of the
reversion. Lessor agrees to obtain, on behalf of Lessee, a nondisturbance
agreement from any future first mortgagee or future holder of a first trust
deed, and in connection therewith, Lessee agrees to attorn to said future
first mortgagee or future holder of a first trust deed. Any charges assessed
by the holders of said mortgage or trust deed in connection with the
obtaining of the aforesaid nondisturbance agreement shall be paid by Lessor.
17. SECURITY DEPOSIT. In the event any security is required to be
deposited pursuant to the terms of this Lease and in the event Lessor uses
any of said security deposit
10
to cure Lessee's default(s) or meet any of Lessee's obligations, Lessee
covenants to upon demand replace the amount so utilized. In the event of a
bona fide sale, subject to this Lease, Lessor shall have the right to
transfer the security to the vendee, and Lessor shall be considered released
by Lessee from all liability for the return of such security; and Lessee
agrees to look solely to the new lessor for the return of the said security,
and it is agreed that this shall apply to every transfer or assignment made
of the security to a new lessor. The security deposited as provided for
herein shall not be mortgaged, assigned or encumbered by Lessee without the
written consent of Lessor.
In the event of the insolvency of Lessee, or in the event
of the entry of a judgment in bankruptcy in any court against Lessee which is
not discharged within thirty (30) days after entry, or in the event a
petition is filed by or against Lessee under any chapter of the bankruptcy
laws of the State of
New Jersey or the United States of America, then in such
event, Lessor may require the Lessee to deposit security in the amount
specified in Section 9(E) to adequately assure Lessee's performance of all of
its obligations under this Lease including all payments subsequently
accruing. Failure of Lessee to deposit the security required by this Section
within ten (10) days after Lessor's written demand shall constitute a
material breach of this Lease by Lessee.
18. RIGHT TO CURE LESSEE'S BREACH. If Lessee breaches any covenant
or condition of this Lease, Lessor may, on reasonable notice to Lessee
(except that no notice need be given in case of emergency), cure such breach
at the expense of Lessee and the reasonable amount of all expenses, including
attorney's fees, incurred by Lessor in so doing (whether paid by Lessor or
not) shall be deemed Additional Rent payable on demand.
19. LIENS. Lessee shall not do any act, or make any contract, which
may create or be the foundation for any lien or other encumbrance upon any
interest of Lessor or any ground or underlying lessor in any portion of the
Premises. If, because of any act or omission (or alleged act or omission) of
Lessee, any Construction Lien Claim or other lien (collectively "Lien"),
charge, or order for the payment of money or other encumbrance shall be filed
against Lessor and/or any ground or underlying lessor and/or any portion of
the Premises (whether or not such Lien, charge, order, or encumbrance is
valid or enforceable as such), Lessee shall, at its own cost and expense,
cause same to be discharged of record or bonded within fifteen (15) days
after the filing thereof; and Lessee shall indemnify and save harmless Lessor
and all ground and underlying lessor(s) against and from all costs,
liabilities, suits, penalties, claims, and demands, including reasonable
counsel fees, resulting therefrom. If Lessee fails to comply with the
foregoing provisions, Lessor shall have the option of discharging or bonding
any such Lien, charge, order, or encumbrance, and Lessee agrees to reimburse
Lessor for all costs, expenses and other sums of money in connection
therewith (as additional rental) with interest at the maximum rate permitted
by law promptly upon demand. All materialmen, contractors, artisans,
mechanics, laborers, and any other persons now or hereafter contracting with
Lessee or any contractor or subcontractor of Lessee for the furnishing of any
labor services, materials, supplies, or equipment with respect to any portion
of the Premises, at any time from the date hereof until the end of the Lease
Term, are hereby charged with notice that they look exclusively to Lessee to
obtain payment for same.
20. RIGHT TO INSPECT AND REPAIR. Lessor may enter the Premises but
shall not be obligated to do so (except as required by any specific provision
of this Lease) at any reasonable time on reasonable notice to Lessee (except
that no notice need be given in case of emergency) for the purpose of
inspection or the making of such repairs, replacement or additions, in, to,
on and about the Premises or the Building, as Lessor deems necessary or
desirable. Lessee shall have no claims or cause of action against Lessor by
reason thereof.
21. SERVICES TO BE PROVIDED BY LESSOR. While Lessee is not in
monetary default under any of the provisions of this Lease, Lessor agrees to
furnish, except on holidays as set forth on Exhibit E attached hereto and
made a part hereof:
11
(A) The cleaning services, as set forth on Exhibit D attached
hereto and made a part hereof, and subject to the conditions therein
stated. Except as set forth on Exhibit D, Lessee shall pay the cost of
all other cleaning services required by Lessee.
(B) Heating, ventilating and air conditioning (herein "HVAC"),
as appropriate for the season and as set forth on Exhibit C attached
hereto and made a part hereof, together with Common Facilities
lighting, electric energy and water all during "Building Hours", as
hereinafter defined.
22. ELECTRICITY.
(A) Lessor shall furnish the Lessor's Standard Electric
Service (as hereinafter defined) which Lessee shall require in the Demised
Premises on a rent inclusion basis. That is, there shall be no charge to
Lessee for such Standard Electric Service by way of measuring the same on any
meter or otherwise, such Standard Electric Service being included in Lessor's
services which are covered by the Term Basic Rent reserved hereunder. Lessor
shall not be liable in any way to Lessee for any failure or defect in the
supply or character of electric energy furnished to the Demised Premises by
reason of any requirement, act or omission of the public utility serving the
Building with electricity or for any other reason not attributable to Lessor.
Lessee, however, shall furnish and install all replacement lighting tubes,
lamps, bulbs and ballasts required in the Demised Premises.
(B) The Lessor's Standard Electric Service shall, unless
otherwise provided by agreement in writing between the parties, provide the
electrical current for usual office requirements, equipment and heating,
ventilating and air-conditioning systems, all consistent with the
requirements of Exhibit C attached hereto, from 8:00 a.m. to 6:00 p.m. on
every day, Monday through Friday, and on Saturdays from 8:00 a.m. to 1:00
p.m., but excluding those holidays set forth on Exhibit E attached hereto. In
no event shall Lessor's Standard Electric Service include electrical current
for any computer room installation or for any requirements needing greater
than a 15-amp line except as otherwise set forth on Exhibit C, and all
electricity for any computer room or for any requirements needing greater
than a 15-amp line except as otherwise set forth on Exhibit C shall be paid
for by Lessee. All installations of electrical fixtures, appliances and
equipment within the Demised Premises shall be subject to Lessor's prior
written approval which approval shall not be unreasonably withheld or delayed.
Lessee shall pay to Lessor in equal monthly
installments, in advance, the reasonable cost of electrical services and
energy in excess of the Standard referred to above, whether resulting from
the installation of additional fixtures, appliances or equipment with or
without Lessor's consent, or from use at times other than those set forth
above.
(C) In the event that the utility company that furnishes
electric energy to Lessor, for supply to the Lessee, declines to continue
furnishing electric energy to Lessor for Lessor's Standard Electric Service
as a result of a statewide change in the manner in which utility companies
furnish electrical energy to commercial buildings, Lessor reserves the right
to discontinue furnishing electric energy to Lessee at any time, upon
reasonable notice to Lessee, and from and after the effective date of such
termination, Lessor shall no longer be obligated to furnish Lessee with
electric energy, provided, however, that such termination date shall not
occur until Lessee has made arrangements to obtain electric service directly
from the public utility company servicing the Building and has actually
received such service. If Lessor exercises such right of termination, this
Lease shall remain unaffected thereby and shall continue in full force and
effect; and thereafter Lessee shall diligently arrange to obtain electric
service directly from the utility company servicing the Building, and may
utilize the then existing electric feeders, risers and wiring serving the
Demised Premises to the extent available and safely capable of being used for
such purpose and only to the extent of Lessee's then authorized connected
load. Lessor shall not be obligated to pay any part of any cost required for
Lessee's direct electric service. Commencing with the date when Lessee
receives such direct service, the Annual Basic Rent payable under this Lease
shall be
12
reduced by (i) a sum equal to 10.76(%) percent through the day immediately
preceding the 6,150 Commencement Date or (ii) by a sum equal to 12.67(%) percent
from and after the 6,150 Commencement Date, as the case may be, of Lessor's
total cost of electricity for Lessor's Standard Electric Service, as that is
reflected in the Base Utility and Energy Costs established pursuant to
Subsection 23(B) of this Lease, and the Base Utility and Energy Period Costs
shall be reduced by the amount by which the Annual Basic Rent payable pursuant
to this Lease is reduced. However, to the extent that some of the Lessor's
Standard Electric Service continues to be furnished by Lessor, then the
reduction as provided for herein shall only be adjusted accordingly to reflect
said fact.
23. ADDITIONAL RENT. It is expressly agreed that Lessee will pay in
addition to the Term Basic Rent, provided in Section 3 above, an additional
rental to cover Lessee's Proportionate Share, as hereinafter defined, of the
increased cost to Lessor, for each of the categories enumerated herein, over the
"Base Period Costs" (as hereinafter defined) for each of said categories.
(A) OPERATING COST ESCALATION. If during the Lease Term the
Operating Costs incurred for the Building in which the Demised Premises
are located and Office Building Area for any Lease Year or
proportionate part thereof if the Lease Term expires prior to the
expiration of a Lease Year (herein the "Comparison Period") shall be
greater than the Base Operating Costs (adjusted proportionately if the
Comparison Period is less than a Lease Year), then Lessee shall pay to
Lessor, as Additional Rent, its Proportionate Share, as hereinafter
defined, of all such excess Operating Costs. Operating Costs shall
include, by way of illustration and not of limitation: personal
property taxes; management fees; labor, including all wages and
salaries, social security taxes, and other taxes which may be levied
against Lessor upon such wages and salaries; supplies; repairs and
maintenance; maintenance and service contracts; painting; wall and
window washing; laundry and towel service; tools and equipment; fire
and other insurance; trash removal; lawn care; snow removal and all
other items properly constituting direct operating costs according to
standard accounting practices whether or not the same shall be
enumerated as part of the services or obligations of Lessor hereunder
(hereinafter collectively referred to as the "Operating Costs"), but
not including: depreciation of Building or equipment; interest; income,
excess profits or similar taxes; costs of maintaining the Lessor's
corporate existence; and franchise taxes. As used in this Subsection
23(A), the Base Period Costs for Operating Costs, herein the Base
Operating Costs, shall be those costs incurred during the first twelve
(12) months of the Term (exclusive of any extraordinary or one-time
costs).
(B) FUEL, UTILITIES AND ELECTRIC COST ESCALATION (hereinafter
"Utility and Energy Costs"). If during the Lease Term the Utility and
Energy Costs, including any fuel surcharges or adjustments with respect
thereto, incurred for water, sewer, gas, electric and other utilities
and heating, ventilating and air conditioning for the Building to
include all leased and leasable areas (not separately billed or metered
within the Building) and Common Facilities electric, lighting, water,
sewer and other utilities for the Building and Office Building Area,
for any Comparison Period shall be greater than the Base Utility and
Energy Costs (adjusted proportionately if the Comparison Period is less
than a Lease Year), then Lessee shall pay to Lessor as Additional Rent
and without regard to the fact that Lessor has agreed to provide said
service, its Proportionate Share, as hereinafter defined, of all such
excess Utility and Energy Costs. As used in this Subsection 23(B), the
Base Period Costs for Fuel, Utilities and Electric, herein the Base
Utility and Energy Costs, shall be determined by multiplying the
average rate in effect (including fuel surcharges and/or adjustments)
between January 1, 1997 and June 30, 1997 by the usage incurred during
the first twelve (12) months of the Term.
13
(C) TAX ESCALATION. If during the Lease Term the Real Estate
Taxes for the Building and Office Building Area at which the Demised
Premises are located for any Comparison Period shall be greater than
the Base Real Estate Taxes (adjusted proportionately if the Comparison
Period is less than a Lease Year), then Lessee shall pay to Lessor as
Additional Rent, its Proportionate Share, as hereinafter defined, of
all such excess Real Estate Taxes.
As used in this Subsection 23(C), the words and terms
which follow mean and include the following:
(i) The Base Period Costs for Real Estate Taxes,
herein the "Base Real Estate Taxes," shall be those real
estate taxes assessed against the Building and Office Building
Area applicable to July 1, 1996 through June 30, 1997.
(ii) "Real Estate Taxes" shall mean the property
taxes and assessments imposed upon the Building and Office
Building Area, or upon the Term Basic Rent and Additional
Rent, as such, payable by Lessor, including, but not limited
to, real estate, city, county, village, school and transit
taxes, or taxes, assessments or charges levied, imposed or
assessed against the Building and Office Building Area by any
other taxing authority, whether general or specific, ordinary
or extraordinary, foreseen or unforeseen. If, due to a future
change in the method of taxation, any franchise, income or
profit tax shall be levied against Lessor in substitution for,
or in lieu of, or in addition to, any tax which would
otherwise constitute a Real Estate Tax, such franchise, income
or profit tax shall be deemed to be a Real Estate Tax for the
purposes hereof; conversely, any additional real estate tax
hereafter imposed in substitution for, or in lieu of, any
franchise, income or profit tax (which is not in substitution
for, or in lieu of, or in addition to, a Real Estate Tax as
hereinbefore provided) shall not be deemed a Real Estate Tax
for the purposes hereof. Notwithstanding anything contained
herein to the contrary, Lessee shall assume and pay to Lessor
in full at the time of paying the Term Basic Rent any excise,
sales, use, gross receipts or other taxes (other than a net
income, excess profits or similar tax) which may be imposed on
or measured by such Term Basic Rent or Additional Rent or may
be imposed on Lessor or on account of the letting or which
Lessor may be required to pay or collect under any law now in
effect or hereafter enacted.
(D) LEASE YEAR. As used in this Lease, Lease Year shall mean
the twelve (12) month period commencing on the Commencement Date and
each twelve (12) month period thereafter. Once the Base Period Costs
are established, in the event any lease period is less than twelve (12)
months, then the Base Period Costs for the categories listed above
shall be adjusted to equal the proportion that said period bears to
twelve (12) months, and Lessee shall pay to Lessor as Additional Rent
for such period, an amount equal to Lessee's Proportionate Share, as
hereinafter defined, of the excess for said period over the adjusted
base with respect to each of the aforesaid categories. Notwithstanding
anything contained herein to the contrary, once the Base Period Costs
are established, Lessor reserves the right to calendarize billing and
payment in order to establish operating consistency.
(E) PAYMENT. At any time, and from time to time, after the
establishment of the Base Period Costs for each of the categories
referred to
14
above, Lessor shall advise Lessee in writing of Lessee's Proportionate
Share with respect to each of the categories as estimated for the
current Lease Year [and for each succeeding Lease Year or proportionate
part thereof if the last period prior to the Lease's termination is
less than twelve (12) months] as then known to Lessor, and thereafter,
Lessee shall pay as Additional Rent, its Proportionate Share, as
hereinafter defined, of the excess of these costs over the Base Period
Costs for the then current period affected by such advice (as the same
may be periodically revised by Lessor as additional costs are incurred)
in equal monthly installments on the first day of each month, such new
rates being applied to any months for which the Monthly Rent shall have
already been paid which are affected by the Operating Cost Escalation
and/or Utility and Energy Cost Escalation, and/or Tax Escalation Costs
above referred to, as well as the unexpired months of the current
period, the adjustment for the then expired months to be made at the
payment of the next succeeding installment of Monthly Basic Rent, all
subject to final adjustment at the expiration of each Lease Year as
defined in Subsection 23(D) hereof [or proportionate part thereof, if
the last period prior to the Lease's termination is less than twelve
(12) months].
In the event the last period prior to the Lease's
termination is less than twelve (12) months, the Base Period Costs
during said period shall be proportionately reduced to correspond to
the duration of said final period.
(F) BOOKS AND RECORDS. For the protection of Lessee, Lessor
shall maintain books of account which shall be open to Lessee and its
representatives, at all reasonable times so that Lessee can determine
that such Operating, Utility, Energy and Tax Costs have, in fact, been
paid or incurred. Any disagreement with respect to any one or more of
said charges if not satisfactorily settled between Lessor and Lessee
shall be referred by either party to an independent certified public
accountant to be mutually agreed upon, and if such an accountant cannot
be agreed upon, the American Arbitration Association may be asked by
either party to select an arbitrator, whose decision on the dispute
will be final and binding upon both parties, who shall jointly share
any cost of such arbitration. Pending resolution of said dispute,
Lessee shall pay to Lessor the sum so billed by Lessor subject to its
ultimate resolution as aforesaid.
(G) RIGHT OF REVIEW. Once Lessor shall have finally determined
said Operating, Utility and Energy or Tax Costs at the expiration of a
Lease Year, then as to the item so established, Lessee shall only be
entitled to dispute said charge as finally established for a period of
six (6) months after such charge is finally established, and Lessee
specifically waives any right to dispute any such charge at the
expiration of said six (6) month period.
(H) OCCUPANCY ADJUSTMENT. If, with respect to Operating Cost
Escalation, as established in Subsection 23(A) hereof, and Utility and
Energy Cost Escalation, as established in Subsection 23(B) hereof, the
Building is not ninety-five (95%) percent occupied during the
establishment of the respective Base Periods, then the Base Period
Costs incurred with respect to said Operating Cost or Utility and
Energy Cost shall be adjusted during any such period within the Base
Period so as to reflect ninety-five (95%) percent occupancy. Similarly,
if, during any Lease Year or proportionate part thereof subsequent to
the Base Period the Building is less than ninety-five (95%) percent
occupied during all or part of the Lease Year involved, the Utility and
Energy Cost and Operating Cost shall not be less than that which would
have been incurred had ninety-five (95%) percent of the Building been
occupied. The aforesaid adjustment shall only be made with respect to
those items that are in fact affected by variations in occupancy
levels. To the extent any Operating Cost or Utility and Energy Cost is
separately billed or metered or
15
paid for directly by any Building tenant, to include but not be limited
to Lessee, or for which Lessor receives reimbursements, said space
shall be considered vacant space for purposes of the aforesaid
adjustment.
(I) Notwithstanding anything contained herein to the contrary,
Lessee shall not be obligated to pay Utility and Energy Costs
escalations pursuant to Subsection 23(B) or Real Estate Tax
escalations pursuant to Subsection 23(C) above until the commencement
of the second (2nd) Lease Year of the Term, whereupon all amounts which
have accrued for the period prior thereto with respect to such Utility
and Energy Costs escalations and Real Estate Tax escalations shall be
due and payable.
24. INTERRUPTION OF SERVICES OR USE. Interruption or curtailment of any
service maintained in the Building or at the Office Building Area, if caused by
Force Majeure, as hereinafter defined, shall not entitle Lessee to any claim
against Lessor or to any abatement in Term Basic Rent or Additional Rent, and
shall not constitute a constructive or partial eviction, unless Lessor fails to
take measures as may be reasonable under the circumstances to restore the
service. If Lessor fails to take such measures as may be reasonable under the
circumstances to restore the curtailed service, Lessee's remedies shall be
limited to an equitable abatement of Term Basic Rent and Additional Rent for the
duration of the curtailment beyond said reasonable period to the extent such
Premises are not reasonably usable by Lessee or to a claim of constructive
eviction. If the Premises are rendered untenantable in whole or in part, for a
period of six (6) consecutive business days, by the making of repairs,
replacements or additions, other than those made with Lessee's consent or caused
by misuse or neglect by Lessee, or Lessee's agents, servants, visitors or
licensees, there shall be a proportionate abatement of Term Basic Rent and
Additional Rent from and after said sixth (6th) consecutive business day and
continuing for the period of such untenantability. In no event shall Lessee be
entitled to claim a constructive eviction from the Premises unless Lessee shall
first have notified Lessor in writing of the condition or conditions giving rise
thereto, and, if the complaints be justified, unless Lessor shall have failed
within a reasonable time after receipt of such notice to remedy, or commence and
proceed with due diligence to remedy, such condition or conditions, all subject
to Force Majeure, as hereinafter defined. The remedies provided for in this
Section 24 shall be Lessee's sole remedies for any interruption of service or
use as described above.
25. LESSEE'S ESTOPPEL.
(A) Lessee shall, from time to time, within ten (10) days of
Lessor's written request, execute, acknowledge and deliver to Lessor a written
statement certifying that the Lease is unmodified and in full force and effect,
or that the Lease is in fall force and effect as modified and listing the
instruments of modification; the dates to which the Term Basic Rent and
Additional Rent and charges have been paid; to the best of Lessee's knowledge,
whether or not Lessor is in default hereunder, and, if so, specifying the nature
of the default; and any other information which Lessor shall reasonably request.
It is intended that any such statement delivered pursuant to this Section 25 may
be relied on by a prospective purchaser of Lessor's interest or mortgagee of
Lessor's interest or assignee of any mortgage of Lessor's interest.
(B) Lessee's failure to deliver such statement within such
time shall be conclusive upon Lessee that: (i) this Lease is in full force and
effect and not modified except as Lessor may represent; (ii) not more than one
(1) payment of Monthly Basic Rent has been paid in advance; (iii) there are no
such defaults; and, (iv) notices to Lessee shall be sent to Lessee's mailing
address as set forth in this Lease. Notwithstanding the presumptions of this
Section, Lessee shall not be relieved of its obligation to deliver said
statement.
26. HOLDOVER TENANCY. If Lessee holds possession of the Premises after
the Term of this Lease, Lessee shall become a tenant from month to month under
the provisions herein provided, but at a monthly basic rental as provided for
pursuant to N.J.S.A. 2A:42-6 and without the requirement for demand or notice by
Lessor to Lessee
16
demanding delivery of possession of said Premises (but Additional Rent shall
continue as provided in this Lease), which sum shall be payable in advance on
the first day of each month, and such tenancy shall continue until terminated by
Lessor, or until Lessee shall have given to Lessor, at least sixty (60) days
prior to the intended date of termination, a written notice of intent to
terminate such tenancy, which termination date must be as of the end of a
calendar month. The time limitations described in this Section 26 shall not be
subject to extension for Force Majeure.
27. LESSOR'S WORK - LESSEE'S DRAWINGS.
(A) Lessor agrees that, at Lessor's expense, prior to the
commencement of the Term of this Lease, it will do substantially all of the work
in the Demised Premises in accordance with Exhibit C attached hereto and made a
part hereof. All of said Exhibit C work, whether paid for in whole or in part by
Lessee, is and shall remain the Lessor's property.
(B) Lessee will supply such drawings and information to Lessor
as and when required as set forth in Exhibit C. Any delay occasioned by Lessee's
failure to supply such drawings and information on or before the dates set forth
in Exhibit C shall not delay the Commencement Date of the Term, as hereinafter
defined, and Lessee's obligations hereunder and the Commencement Date shall be
the date the Premises would have been delivered to Lessee pursuant to Section 2,
but for Lessee's delay.
(C) Lease Commencement shall occur and the Commencement Date
is defined as that date when Lessor has done substantially all of the work to be
done by Lessor in accordance with Exhibit C unless Lessor has been precluded
from completing said work as a result of Lessee's acts or omissions including
but not limited to its failure to comply with Subsection 27(B) above. Occupancy
by Lessee or the delivery of a Certificate of Occupancy (temporary or permanent)
by Lessor (if required pursuant to local law) shall be prima facie evidence that
Lessor has done substantially all of the work. Lessee's early entry upon the
Premises for the purpose of performing installations therein as permitted
pursuant to Exhibit C shall not be deemed "occupancy" for the purposes of this
Subsection 27(C).
28. RIGHT TO SHOW PREMISES. Lessor may show the Premises to prospective
purchasers and mortgagees; and, during the nine (9) months prior to termination
of this Lease, to prospective tenants, during Building Hours on reasonable
notice to Lessee.
29. WAIVER OF JURY TRIAL/NON-MANDATORY COUNTERCLAIMS. If Lessor
commences any summary proceedings or an action for nonpayment of Term Basic Rent
or Additional Rent, Lessee shall not interpose any non-mandatory counterclaim of
any nature or description in any such proceedings or action. Lessee and Lessor
both waive a trial by jury of any or all issues arising in any action or
proceeding between the parties hereto or their successors under or connected
with this Lease or any of its provisions.
30. LATE CHARGE. Anything in this Lease to the contrary
notwithstanding, at Lessor's option, Lessee shall pay a "Late Charge" of six
(6%) percent of any installment of Monthly Basic Rent or Additional Rent paid
more than five (5) days after the due date thereof, to cover the extra expense
involved in handling delinquent payments. Lessee shall not be charged a Late
Charge the first two (2) times Lessee is late during each Lease Year of the Term
until Lessee, as to each such time during each Lease Year, is given five (5)
days' notice and an opportunity to cure said nonpayment within said notice
period and fails to cure said nonpayment within said time.
31. NO OTHER REPRESENTATIONS. No representations or promises shall be
binding on the parties hereto except those representations and promises
contained herein or in some future writing signed by the party making such
representation(s) or promise(s).
32. QUIET ENJOYMENT. Lessor covenants that if, and so long as, Lessee
pays the Basic Rent, and any Additional Rent as herein provided, and performs
the covenants
17
hereof, Lessor shall do nothing to affect Lessee's right to peaceably and
quietly have, hold and enjoy the Premises for the Term herein mentioned, subject
to the provisions of this Lease and to any mortgage or deed of trust to which
this Lease shall be subordinate.
33. INSURANCE.
(A) LESSEE'S INSURANCE.
(1) Lessee covenants and represents, said
representation being specifically designed to induce Lessor to execute
this Lease, that during the entire Term hereof, at its sole cost and
expense, Lessee shall obtain, maintain and keep in full force and
effect the following insurance:
(a) "All Risk" property insurance against
fire, theft, vandalism, malicious mischief, sprinkler leakage
and such additional perils as are now or hereafter may be,
included in a standard extended coverage endorsement from time
to time in general use in the State of
New Jersey upon
property of every description and kind owned by Lessee and or
under Lessee's care, custody or control located in the
Building or within the Office Building Area or for which
Lessee is legally liable or installed by or on behalf of
Lessee, including by way of example and not by way of
limitation, furniture, fixtures, fittings, installations and
any other personal property (but excluding the work done by
Lessor in connection with Exhibit C which is owned by Lessor)
in an amount equal to the full replacement cost thereof.
(b) Comprehensive General Liability
Insurance coverage to include personal injury, bodily injury,
broad form property damage, operations hazard, owner's
protective coverage, blanket contractual liability, products
and completed operations liability naming Lessor and Lessor's
mortgagee or trust deed holder and ground lessors (if any) as
additional named insureds in an amount per occurrence of not
less than One Million and 00/100 ($1,000,000.00) Dollars
combined single limit bodily injury and property damage.
(c) Business interruption insurance in such
amounts as will reimburse Lessee for direct or indirect loss
of earnings attributable to all perils commonly insured
against by prudent tenants or assumed by Lessee pursuant to
this Lease or attributable to prevention or denial of access
to the Premises, Building or Office Building Area as a result
of such perils.
(d) Workers' Compensation insurance in form
and amount as required by law.
(e) Any other form or forms of insurance or
any increase in the limits of any of the aforesaid enumerated
coverages or other forms of insurance as Lessor or the
mortgagees or ground lessors (if any) of Lessor may reasonably
require from time to time if in the reasonable opinion of
Lessor or said mortgagees or ground lessors said coverage
and/or limits become inadequate or less than that commonly
maintained by prudent tenants in similar buildings in the area
by tenants making similar uses.
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(2) All insurance policies required pursuant to this
Subsection 33(A) shall be taken out with insurers rated A+XV by A.M.
Best Company, Oldwick,
New Jersey who are licensed to do business in
the State of
New Jersey and shall be in form satisfactory from time to
time to Lessor. A policy or certificate evidencing such insurance
together with a paid xxxx shall be delivered to Lessor not less than
fifteen (15) days prior to the commencement of the Term hereof. Such
insurance policy or certificate will unequivocally provide an
undertaking by the insurers to notify Lessor and the mortgagees or
ground lessors (if any) of Lessor in writing not less than thirty (30)
days prior to any material change, reduction in coverage, cancellation,
or other termination thereof. Should a certificate of insurance
initially be provided, a policy shall be furnished by Lessee within
thirty (30) days of the Term's commencement. The aforesaid insurance
shall be written with no deductible.
(3) In the event of damage to or destruction of the
Building and/or Premises entitling Lessor or Lessee to terminate this
Lease pursuant to Section 11 hereof, and if this Lease be so
terminated, Lessee will immediately pay to Lessor all of its insurance
proceeds, if any, relating to the leasehold improvements and
alterations (but not Lessee's trade fixtures, equipment, furniture or
other personal property of Lessee in the Premises) which have become
Lessor's property on installation or would have become Lessor's
property at the Term's expiration or sooner termination. If the
termination of the Lease, at Lessor's election, is due to damage to the
Building, and if the Premises have not been so damaged, Lessee will
deliver to Lessor, in accordance with the provisions of this Lease, the
improvements and alterations to the Premises which have become on
installation or would have become at the Term's expiration, Lessor's
property.
(4) Lessee agrees that it will not keep or use or
offer for sale (if sales of goods is a permitted use pursuant to
Section 4 hereof) in or upon the Premises or within the Building or
Office Building Area any article which may be prohibited by any
insurance policy in force from time to time covering the Building or
Office Building Area. In the event Lessee's occupancy or conduct of
business in or on the Premises or Building or Office Building Area,
whether or not Lessor has consented to the same, results in any
increase in premiums for insurance carried from time to time by Lessor
with respect to the Building or Office Building Area, Lessee shall pay
such increase in premiums as Additional Rent within ten (10) days after
being billed therefor by Lessor. In determining whether increased
premiums are a result of Lessee's use and occupancy a schedule issued
by the organization computing the insurance rate on the Building or
Office Building Area showing the components of such rate shall be
conclusive evidence of the items and charges making up such rate.
Lessee shall promptly comply with all reasonable requirements of the
insurance authority or of any insurer now or hereafter in effect
relating to the Building, Office Building Area or Premises.
(5) If any insurance policy carried by either party
as required by this Section 33 shall be cancelled or cancellation shall
be threatened or the coverage thereunder reduced or threatened to be
reduced in any way by reason of the use or occupation of the Premises,
Office Building Area or Building or any part thereof by Lessee or any
assignee or sublessee of Lessee or anyone permitted by Lessee to be
upon the Premises, and if Lessee fails to remedy the conditions giving
rise to said cancellation or threatened cancellation or reduction in
coverage on or before the earlier of (i) forty-eight (48) hours after
notice thereof from Lessor, or (ii) prior to said cancellation or
reduction becoming effective, Lessee shall be in default hereunder and
Lessor shall have all of the remedies available to Lessor pursuant to
this Lease.
19
(B) LESSOR'S INSURANCE. Lessor covenants and agrees that
throughout the Term it will insure the Building [excluding any property with
respect to which Lessee is obligated to insure pursuant to Subsection
33(A)(1)(a) above] against damage by fire and standard extended coverage perils
and public liability insurance in such reasonable amounts with such reasonable
deductibles as required by any mortgagee or ground lessor (if any), or if none,
as would be carried by a prudent owner of a similar building in the area. In
addition, Lessor shall maintain and keep in force and effect during the Term,
rental income insurance insuring Lessor against abatement or loss of Term Basic
Rent, including items of Additional Rent, in case of fire or other casualty
similarly insured against, in an amount at least equal to the Term Basic Rent
and Additional Rent during, at the minimum, one Calendar Year hereunder. Lessor
may, but shall not be obligated to, take out and carry any other forms of
insurance as it or the mortgagee or ground lessor (if any) of Lessor may require
or reasonably determine available. All insurance carried by Lessor on the
Building or Office Building Area shall be included as an Operating Expense
pursuant to Subsection 23(A). Notwithstanding its inclusion as an Operating
Expense or any contribution by Lessee to the cost of insurance premiums by
Lessee as provided herein, Lessee acknowledges that it has no right to receive
any proceeds from any such insurance policies carried by Lessor. Lessee further
acknowledges that the exculpatory provisions of this Lease as set forth in
Section 38 and the provisions of this Section 33 as to Lessee's insurance are
designed to insure adequate coverage as to Lessee's property and business
without regard to fault and to avoid Lessor obtaining similar coverage for said
loss for its negligence or that of its agents, servants or employees which could
result in additional costs includable as part of Operating Expenses which are
payable by Lessee. Lessor will not carry insurance of any kind on Lessee's
furniture or furnishings, or on any fixtures, equipment, appurtenances or
improvements (other than those enumerated in Exhibit C which belong to Lessor)
of Lessee under this Lease and Lessor shall not, except as to the aforesaid
Exhibit C items owned by Lessor, be obligated to repair any damage thereto or
replace the same.
(C) WAIVER OF SUBROGATION. Any all risk policy or similar
casualty insurance, which either party obtains in connection with the Premises,
Building or Office Building Area shall include a clause or endorsement denying
the insurer any rights of subrogation against the other party (i.e. Lessor or
Lessee) for all perils covered by said policy. Should such waiver not be
available then the policy for which the waiver is not available must name the
other party as an additional named insured affording it the same coverage as
that provided the party obtaining said coverage.
34. RULES OF CONSTRUCTION/APPLICABLE LAW. Any table of contents,
captions, headings and titles in this Lease are solely for convenience of
reference and shall not affect its interpretation. This Lease shall be construed
without regard to any presumption or other rule requiring construction against
the party causing this Lease to be drafted. If any words or phrases in this
Lease shall have been stricken out or otherwise eliminated, whether or not any
other words or phrases have been added, this Lease shall be construed as if the
words or phrases so stricken out or otherwise eliminated were never included in
this Lease no implication or inference shall be drawn from the fact that said
words or phrases were so stricken out or otherwise eliminated. Each covenant,
agreement, obligation or other provision of this Lease on Lessee's part to be
performed, shall be deemed and construed as a separate and independent covenant
of Lessee, not dependent on any other provision of this Lease. All terms and
words used in this Lease, regardless of the number or gender in which they are
used, shall be deemed to include any other number and any other gender as the
context may require. This Lease shall be governed and construed in accordance
with the laws of the State of
New Jersey (excluding
New Jersey conflict of laws)
and by the state courts of New Jersey. If any of the provisions of this Lease,
or the application thereof to any person or circumstances, shall to any extent
be invalid or unenforceable, the remainder of this Lease, or the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected
thereby, and every provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
20
35. INDEMNITY. Lessee shall indemnify and save harmless Lessor and its
agents against and from (a) any and all claims (i) arising from (x) the conduct
or management by Lessee, its subtenants, licensees, its or their employees,
agents, contractors or invitees on the Demised Premises or of any business
therein, or (y) any work or thing whatsoever done, or any condition created
(other than by Lessor for Lessor's account) in or about the Dernised Premises
during the Term of this Lease or during the period of time, if any, prior to the
Commencement Date that Lessee may have been given access to the Demised
Premises, or (ii) arising from any negligent or otherwise wrongful act or
omission of Lessee or any of its subtenants or licensees or its or their
employees, agents, contractors or invitees, and (b) all costs, expenses and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon. In case any action or proceeding be brought against
Lessor by reason of any such claim, Lessee, upon notice from Lessor, shall
resist and defend such action or proceeding. The provisions of this Section 35
shall survive the expiration or sooner termination of this Lease.
36. APPLICABILITY TO HEIRS AND ASSIGNS. The provisions of this Lease
shall apply to, bind and inure to the benefit of Lessor and Lessee, and their
respective heirs, successors, legal representatives and assigns. It is
understood that the term "Lessor" as used in this Lease means only the owner, a
mortgagee in possession or a term lessee of the Building, so that in the event
of any sale of the Building or of any lease thereof, or if a mortgagee shall
take possession of the Premises, Lessor named herein shall be and hereby is
entirely freed and relieved of all covenants and obligations of Lessor hereunder
accruing thereafter, and it shall be deemed without further agreement that the
purchaser, the term lessee of the Building, or the mortgagee in possession has
assumed and agreed to carry out any and all covenants and obligations of Lessor
hereunder.
37. PARKING SPACES. Lessee's occupancy of the Demised Premises shall
include the use of one hundred eighty-four (184) parking spaces only, eighteen
(18) of which Lessor shall assign, and one hundred sixty-six (166) of which will
be unassigned. From and after the 6,150 Commencement Date, Lessee's occupancy of
the Demised Premises shall include the use of two hundred nine (209) parking
spaces only, twenty-one (21) of which Lessor shall assign, and one hundred
eighty-eight (188) of which will be unassigned. Lessor reserves the right to
reassign assigned parking to comparable facilities in connection with any
modification to the Building or Office Building Area permitted pursuant to this
Lease. Nothing contained herein shall be deemed to impose any obligation on
Lessor to police the parking area.
38. LESSOR'S EXCULPATION. Lessor shall not be liable to Lessee for any
loss suffered by Lessee under any circumstances, including, but not limited to
(i) that arising from the negligence of Lessor, its agents, servants, invitees,
contractors or subcontractors, or from defects, errors or omissions in the
construction or design of the Premises and/or the Building and Office Building
Area including the structural and non-structural portions thereof; or (ii) for
loss of or injury to Lessee or to Lessee's property or that for which Lessee is
legally liable from any cause whatsoever, including but not limited to theft or
burglary; or (iii) for that which results from or is incidental to the
furnishing of or failure to furnish or the interruption in connection with the
furnishing of any service which Lessor is obligated to furnish pursuant to this
Lease; or (iv) for that which results from any inspection, repair, alteration or
addition or the failure thereof undertaken or failed to be undertaken by Lessor;
or (v) for any interruption to Lessee's business, however occurring.
The aforesaid exculpatory Section is to induce the Lessor, in
its judgment, to avoid or minimize covering risks which are better quantified
and covered by Lessee either through insurance (or self-insurance or
combinations thereof if specifically permitted pursuant to this Lease) thereby
permitting potential cost savings in connection with the Operating Expenses
borne by Lessee pursuant to Section 23.
39. BROKER. Lessee represents and warrants to Lessor that Xxxxxx X.
Xxxxxx Company of New Jersey is the sole broker with whom Lessee has negotiated
in bringing about this Lease and Lessee agrees to indemnify and hold Lessor
harmless from any and all
21
claims of other brokers and expenses in connection therewith arising out of or
in connection with the negotiation of or the entering into this Lease by Lessor
and Lessee.
40. PERSONAL LIABILITY. Notwithstanding anything to the contrary
provided in this Lease, it is specifically understood and agreed, such agreement
being a primary consideration for the execution of this Lease by Lessor, that
there shall be absolutely no personal liability on the part of Lessor, its
constituent members, (to include but not be limited to officers, directors,
partners and trustees), their respective successors, assigns or any mortgagee in
possession (for the purposes of this Section, collectively referred to as
"Lessor"), with respect to any of the terms, covenants and conditions of this
Lease, and that Lessee shall look solely to the equity of Lessor in the Building
for the satisfaction of each and every remedy of Lessee in the event of any
breach by Lessor of any of the terms, covenants and conditions of this Lease to
be performed by Lessor, such exculpation of liability to be absolute and without
any exceptions whatsoever. A deficit capital account of any portion in Lessor
shall not be deemed an asset or property of Lessor. The foregoing limitation of
liability shall be noted in any judgment secured against Lessor and in the
judgment index.
41. NO OPTION. The submission of this
Lease Agreement for examination
does not constitute a reservation of, or option for, the Premises, and this
Lease Agreement becomes effective as a
Lease Agreement only upon execution and
delivery thereof by Lessor and Lessee.
42. DEFINITIONS.
(A) PROPORTIONATE SHARE. Lessee's Proportionate Share,
wherever that phrase is used, shall be (i) 10.76(%) percent through the day
immediately preceding the 6,150 Commencement Date or (ii) 12.67(%) percent from
and after the 6,150 Commencement Date, as the case may be, which the parties
agree reflects and will be continually adjusted to reflect the sum arrived at by
dividing the gross square feet of the area rented to Lessee (including an
allocable share of all Common Facilities) as set forth in Section 1 [the
numerator], plus any additional gross square footage leased from time to time
pursuant to this Lease, by the total number of gross square feet of the entire
Building (or additional buildings that may be constructed within the Office
Building Area) [the denominator], measured outside glass line to outside glass
line but excluding therefrom any storage areas. Lessor shall have the right to
make changes or revisions in the Common Facilities of the Building so as to
provide additional leasing area. Lessor shall also have the right to construct
additional buildings in the Office Building Area for such purposes as Lessor may
deem appropriate and subdivide the lands for that purpose if necessary, and upon
so doing, the Office Building Area shall become the subdivided lot on which the
Building in which the Demised Premises is located. If any service provided for
in Subsection 23(A) or any utility provided for in Subsection 23(B) is
separately billed or separately metered within the Building, then the square
footage so billed or metered shall be deemed vacant and if applicable subject to
the Occupancy Adjustment set forth in Subsection 23(H). Lessee understands that
as a result of changes in the layout of the Common Facilities from time to time
occurring due to, by way of example and not by way of limitation, the
rearrangement of corridors, the aggregate of all Building tenant proportionate
shares may be equal to, less than or greater than one hundred (100%) percent.
(B) COMMON FACILITIES. Common Facilities shall include, by way
of example and not by way of limitation, the nonassigned parking areas; lobby;
elevator(s); fire stairs; public hallways; public lavatories; and all other
general Building facilities that service all Building tenants; air conditioning
rooms; fan rooms; janitors' closets; electrical closets; telephone closets;
elevator shafts and machine rooms; flues; stacks; pipe shafts and vertical ducts
with their enclosing walls. Lessee's use of those Common Facilities not open to
all Building tenants is subject to Lessor's consent which may be denied for any
reason. Lessor may at any time close temporarily any Common Facilities to make
repairs or changes therein or to effect construction, repairs or changes within
the Building or Office Building Area, or to discourage non-tenant parking or to
prevent the dedication of the same, and may do such
22
other acts in and to the Common Facilities as in its judgment may be desirable
to improve the convenience thereof but shall always in connection therewith
endeavor to minimize any inconvenience to Lessee.
(C) FORCE MAJEURE. Force Majeure shall mean and include those
situations beyond either party's control, including by way of example and not by
way of limitation, acts of God; accidents; repairs; strikes; shortages of labor,
supplies or materials; inclement weather; or, where applicable, the passage of
time while waiting for an adjustment of insurance proceeds. Any time limits
required to be met by either party hereunder, whether specifically made subject
to Force Majeure or not, except those related to the payment of Term Basic Rent
or Additional Rent and except as to the time periods set forth in Section 26,
shall, unless specifically stated to the contrary elsewhere in this Lease, be
automatically extended by the number of days by which any performance called for
is delayed due to Force Majeure.
(D) BUILDING HOURS. As used in this Lease, the Building Hours
shall be Monday through Friday, 8:00 a.m. to 6:00 p.m., and Saturday, 8:00 a.m
to 1:00 p.m., excluding those holidays as set forth on Exhibit E attached hereto
and made a part hereof, except that Common Facilities lighting in the Building
and Office Building Area shall be maintained for such additional hours as, in
Lessor's sole judgment is necessary or desirable to insure proper operation of
the Building and Office Building Area.
(E) ADDITIONAL RENT. As used in this Lease, Additional Rent
shall mean all sums in addition to Term Basic Rent payable by Lessee to Lessor
pursuant to the provisions of this Lease.
(F) AFFILIATED COMPANY. Affiliated Company shall mean any
corporation related to such party as a parent, subsidiary or brother-sister
corporation so that such corporation and such party or such corporation and such
party and other corporations constitute a controlled group as determined under
Section 1563 of the Internal Revenue Code of 1986, as amended, and as elaborated
by the Treasury Regulations promulgated thereunder.
43. LEASE COMMENCEMENT. Notwithstanding anything contained herein to
the contrary, if Lessor, for any reason whatsoever, including Lessor's
negligence, cannot deliver possession of the Premises as provided for in
Subsection 27(A) to Lessee at the commencement of the agreed Term as set forth
in Section 2, this Lease shall not be void or voidable, nor shall Lessor be
liable to Lessee for any loss or damage resulting therefrom, but in that event,
the Lease Term shall be for the full Term as specified above to commence from
and after the date Lessor shall have delivered possession of the Premises to
Lessee or from the date Lessor would have delivered possession of the Premises
to Lessee but for Lessee's failure to timely supply to Lessor such drawings
and/or information required by Exhibit C or for any other reason attributable to
Lessee (herein the "Commencement Date") and to terminate at 11:59 p.m. of the
day immediately preceding said seven (7) year and two (2) month anniversary of
the Commencement Date, and if requested by Lessor, Lessor and Lessee shall, by a
writing signed by the parties, ratify and confirm said commencement and
termination dates. Nothing contained herein shall be deemed to modify the
commencement of the Lease Term as set forth in Section 2 and Lessee's
obligations hereunder if Lessor is unable to deliver the Demised Premises on the
Commencement Date by reason of Lessee's failure to comply with the requirements
of Subsection 27(B). Notwithstanding anything contained herein to the contrary,
if Lessor shall not have delivered possession of the Demised Premises to Lessee
on or before August 1, 1997 as such date may be extended for reasons of Force
Majeure, and provided the reason therefor has not been as a result of Lessee's
acts or omissions, then, and in such event, Lessee may cancel this Lease upon
thirty (30) days' notice to Lessor, which notice may be given on or after July
1, 1997(as such date may be extended for reasons of Force Majeure), and unless
Lessor delivers possession of the Demised Premises within the aforesaid thirty
(30) days (similarly extended for reasons of Force Majeure), this Lease shall
terminate upon the expiration of said thirty (30) day period (as extended for
Force Majeure if applicable) and the parties shall be released herefrom.
23
44. NOTICES. Any notice by either party to the other shall be in
writing and shall be deemed to have been duly given only if delivered personally
or if sent by a recognized overnight courier service or if sent by registered
mail or certified mail in a postpaid envelope addressed, if to Lessee, at the
above described Building, with a copy to Xxxxxx X. Xxxxxxx, Esq., Long Beach
Mortgage Company, 0000 Xxxx xxx Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000; if to
Lessor, at Lessor's address as set forth above; or, to either at such other
address as Lessee or Lessor, respectively, may designate in writing. Notice
shall be deemed to have been duly given, if delivered personally or by a
recognized overnight courier service, on delivery thereof, and if mailed, upon
the tenth (10th) day after the mailing thereof.
45. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE. Lessee agrees to give
any mortgagees and/or trust deed holders, by registered mail, a copy of any
notice of default served upon Lessor, provided that, prior to such notice,
Lessee has been notified in writing (by way of notice of assignment of rents and
leases or otherwise) of the address of such mortgagees and/or trust deed
holders. Lessee further agrees that, if Lessor shall have failed to cure such
default within the time provided for in this Lease, then the mortgagees and/or
trust deed holders shall have an additional thirty (30) days within which to
cure such default, or if such default cannot be cured within that time, then
such additional time as may be necessary, if within such thirty (30) days, any
mortgagee and/or trust deed holder has commenced and is diligently pursuing the
remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings if necessary to effect such cure), in
which event this Lease shall not be terminated while such remedies are being so
diligently pursued.
46. LEASE CONDITION. This Lease is expressly conditioned upon Lessor
obtaining the consent of its permanent lender to the terms of this Lease within
thirty (30) days of the date hereof, failing which this Lease, at Lessor's sole
option, shall be null and void and the parties released herefrom and any deposit
monies paid to Lessor upon execution hereof shall be promptly returned to
Lessee.
47. ACCORD AND SATISFACTION. No payment by Lessee or receipt by Lessor
of a lesser amount than the Basic Rent and additional charges payable hereunder
shall be deemed to be other than a payment on account of the earliest stipulated
Monthly Basic Rent and Additional Rent, nor shall any endorsement or statement
on any check or any letter accompanying any check or payment for Basic Rent or
Additional Rent be deemed an accord and satisfaction, and Lessor may accept such
check or payment without prejudice to Lessor's right to recover the balance of
such Basic Rent and Additional Rent or pursue any other remedy provided herein
or by law.
48. EFFECT OF WAIVERS. No failure by Lessor or Lessee to insist upon
the strict performance of any covenant, agreement, term or condition of this
Lease or to exercise any right or remedy consequent upon a breach thereof, and
no acceptance of full or partial installment of Monthly Basic Rent by Lessor
during the continuance of any such breach, shall constitute a waiver of any such
breach or of such covenant, agreement, term or condition. No consent or waiver,
express or implied, by Lessor or Lessee to or of any breach of any covenant,
condition or duty of the other party shall be construed as a consent or waiver
to or of any other breach of the same or any other covenant, condition or duty,
unless in writing signed by the waiving party.
49. NUMBER AND GENDER. The terms "Lessor" and "Lessee" wherever used
herein shall be applicable to one or more persons, as the case may be, and the
singular shall include the plural and neuter shall include the masculine and/or
feminine, and if there be more than one, the obligations hereof shall be joint
and several.
50. LESSOR'S RESERVED RIGHT. Lessor and Lessee acknowledge that the
Premises are in a Building which is not open to the general public. Access to
the Building is restricted to Lessor, Lessee, their agents, employees and to
their invited visitors. In the event of a labor dispute including a strike,
picketing, informational or associational activities
24
directed at Lessee or any other tenant, Lessor reserves the right
unilaterally to alter Lessee's ingress and egress to the Building or make any
other change in operating conditions to restrict pedestrian, vehicular or
delivery ingress and egress to a particular location, provided that in
connection therewith Lessee shall continue to have reasonable access to the
Premises.
51. CORPORATE AUTHORITY. If Lessee is a corporation, Lessee
represents and warrants that this Lease and the undersigned's execution of
this Lease has been duly authorized and approved by the corporation's Board
of Directors. The undersigned officers and representatives of the corporation
executing this Lease on behalf of the corporation represent and warrant that
they are officers of the corporation with authority to execute this Lease on
behalf of the corporation, and within fifteen (15) days of execution hereof,
Lessee will provide Lessor with a corporate resolution confirming the
aforesaid.
52. GOVERNMENT REQUIREMENTS. In the event of the imposition of
federal, state, or local governmental control, rules, regulations, or
restrictions on the use or consumption of energy or other utilities or with
respect to any other aspect of this Lease during the Term, both Lessor and
Lessee shall be bound thereby. In the event of a difference in interpretation
of any governmental control, rule, regulation or restriction between Lessor
and Lessee, the interpretation of Lessor shall prevail, and Lessor shall have
the right to enforce compliance, including the right of entry into the
Premises to effect compliance.
53. GUARANTY. This Lease is expressly conditioned on the execution
by Long Beach Mortgage Company of the guaranty of the terms, covenants and
conditions in this Lease to be performed and observed by Lessee in the form
and substance attached hereto and made a part hereof as Exhibit F.
54. RENEWAL OPTIONS. Lessee is hereby granted two (2) options to
renew this Lease upon the following terms and conditions:
(A) At the time of the exercise of each option to renew and at
the time of the said renewal, the Lessee shall not be in monetary
default in accordance with the terms and provisions of this Lease, and
shall be in possession of the Premises pursuant to this Lease.
(B) Notice of the exercise of the first option shall be sent
to the Lessor in writing at least nine (9) months before the expiration
of the Term of this Lease, and notice of the exercise of the second
option shall be sent to Lessor in writing at least nine (9) months
before the expiration of the first renewal option, TIME HEREBY BEING
MADE OF THE ESSENCE.
(C) The renewal terms shall be for the term of five (5) years
each, the first renewal term to commence at the expiration of the Term
of this Lease, and the second renewal term to commence at the
expiration of the first renewal term, and all of the terms and
conditions of this Lease, other than the Basic Rent, shall apply during
any such renewal term.
(D) The Annual Basic Rent to be paid during the first renewal
term shall not be less than that paid for the Premises during the last
year of the original Term of the Lease (without regard to any temporary
abatement of rent then in effect pursuant to the Lease provisions); and
the Annual Basic Rent to be paid during the second renewal term shall
be not less than that paid for the Premises during the last year of the
first renewal term (without regard to any temporary abatement of rent
then in effect pursuant to the Lease provisions). However, if the fair
rental value per square foot at the commencement of either renewal term
shall exceed the rent as established in the preceding sentence, the
Lessee shall pay such fair rental value. In determining the fair rental
value, the Lessor shall notify Lessee of the fair rental value as
established by Lessor. Should Lessee dispute Lessor's determination,
then the
25
Lessee shall be free to, at the Lessee's sole cost and expense, employ
the services of an appraiser familiar with buildings similar to the
Building and located within the Paramus, New Jersey area comparable to
the Building, who shall be a member of The Appraisal Institute ("MAI")
and who shall render an appraisal. If the Lessor and the Lessee's
appraiser cannot agree on the fair rental value, or in such case, on
an independent appraiser acceptable to both, either party may request
the American Arbitration Association of Somerset, New Jersey to appoint
such independent appraiser who shall be a member of MAI familiar with
buildings in the area of the Building and in such event the judgment of
a majority of the two appraisers and Lessor shall be final and binding
upon the parties. The parties shall share equally in the cost of any
such independent appraiser. Pending resolution of the issue of fair
rental value, the Lessee shall pay Lessor as of commencement of either
renewal term, the Annual Basic Rent as established by Lessor, subject
to retroactive adjustment upon final determination of this issue.
55. RIGHT OF FIRST OFFER. Provided Lessee is not in monetary default
pursuant to any of the terms and conditions of this Lease and further
provided Lessee has not exercised its right of cancellation as set forth in
Section 56 below, Lessee shall have a right of first offer to lease
additional contiguous space on the fourth (4th) floor of the Building, in its
"AS IS" condition, which hereafter may become vacant and available
(hereinafter referred to as the "First Offer Space"), subject only to
whatever prior rights as to said space exist in connection with the leasing
of space in the Building to the tenants to whom said leases are granted.
Lessor will advise the Lessee of the availability of said space and Lessee
shall have ten (10) business days within which to respond to Lessor's offer,
TIME HEREBY BEING MADE OF THE ESSENCE. Should Lessee accept Lessor's offer,
the Basic Rent per gross rentable square foot of the First Offer Space to be
paid by Lessee shall be equal to that which Lessee is then paying for the
Premises plus the Additional Rent Lessee is then paying for the Premises
pursuant to the terms and provisions of this Lease, and the description of
Lessee's Premises, Basic Rent and Lessee's Proportionate Share shall be
adjusted to reflect the inclusion of the First Offer Space. The term for the
First Offer Space shall be coterminous with the Term for the Premises, except
that to the extent that there shall be less than five (5) years remaining on
the original Term of this Lease, Lessee shall be deemed to have automatically
extended the original Term of this Lease (for all space leased) to expire at
11:59 p.m. of the day immediately preceding the fifth (5th) anniversary of
the commencement date of the First Offer Space. Additionally, the Basic Rent
to be paid by Lessee for all space leased for any period beyond the
eighty-six (86) month anniversary of the Commencement Date shall accrue at
the rate of Twenty-six and 14/100 ($26.14) Dollars per gross rentable square
foot. Should Lessee decline Lessor's offer or fail to respond, then, and in
such event, Lessee shall lose forever any prospective rights of first offer
on fourth (4th) floor space in the Building, and Lessor shall be free to
lease said space to any other tenant upon the same terms and conditions as
offered to Lessee. Upon the exercise of this option, the cancellation option
as provided for in Section 56 below shall be declared null and void and of no
further force or effect.
56. CANCELLATION OPTION. Subject to Sections 55 and 57 hereof and
provided Lessee is not in default, Lessee, at its option, may cancel and
terminate this Lease at the expiration of the sixty-second (62nd) or
seventy-fourth (74th) months of the Term only, provided, as a condition of
such cancellation and termination, it (a) gives twelve (12) months' written
notice to Lessor of such cancellation and termination; (b) pays to the
Lessor, together with such cancellation notice, the sum of (i) Three Hundred
Seventy-two Thousand Four Hundred Ninety-nine and 85/100 ($372,499.85)
Dollars plus the then current Additional Rent should it elect to cancel this
Lease at the expiration of the sixty-second (62nd) month of the Term, or (ii)
Two Hundred Twenty-three Thousand Four Hundred Ninety-nine and 91/100
($223,499.91) Dollars plus the then current Additional Rent should it elect
to cancel this Lease at the expiration of the seventy-fourth (74th) month of
the Term; (c) continues to perform all of the terms and conditions of the
Lease until the date of its cancellation and termination; (d) enters into a
Surrender and Acceptance Agreement effective as of the cancellation date or,
at Lessor's option, consents to the entry of a judgment immediately
26
awarding possession of the Premises to Lessor with enforcement of said
judgment stayed by its terms until the cancellation date as provided for
herein; and (e) actually vacates the Premises broom clean and in good order
and repair as required by the Lease on the surrender date free and clear of
liens, encumbrances and tenancies of any kind or nature.
57. ADDITIONAL SPACE OPTION. Provided Lessee is not in default
pursuant to any of the terms and conditions of this Lease and subject to the
availability of the Additional Space, as hereinafter defined, Lessee shall
have the option of leasing additional space consisting of between
approximately 10,000 gross rentable square feet and 16,000 gross rentable
square feet of contiguous space on the fourth (4th) floor (hereinafter
referred to as the "Additional Space"), in its "AS IS" condition, which
Additional Space may, at Lessor's option, be split between contiguity to (i)
the Fourth Floor Space and (ii) the 6,150 Space. Not later than the
expiration of the thirty-sixth (36th) month of the Lease Term, Lessee shall
notify Lessor in writing of its desire to lease the Additional Space, which
Additional Space, if available, shall be delivered to Lessee between the
thirty-sixth (36th) and fiftieth (50th) months of the Term, as determined in
Lessor's sole discretion. Should Lessee elect to lease the Additional Space,
(i) the cancellation option as provided for in Section 56 above shall be
declared null and void and of no further force or effect, and (ii) Lessee
shall be deemed to have automatically extended the original Term of this
Lease (for all space leased) to expire at 11:59 p.m. on the day immediately
preceding the fifth (5th) anniversary of the commencement date of the
Additional Space. Upon the exercise of this option, and upon the commencement
of the term for said Additional Space, the Demised Premises and Proportionate
Share shall increase accordingly and be deemed amended to include said
Additional Space. The Basic Rent per gross rentable square foot of the
Additional Space to be paid by Lessee shall be equal to the per square foot
rate which Lessee is then paying for the 6,150 Space pursuant to the terms
and provisions of this Lease. The Basic Rent to be paid by Lessee to Lessor
for all space leased for any period extending beyond the eighty sixth (86th)
month anniversary of the Commencement Date shall accrue at the rate of
Twenty-six and 14/100 ($26.14) Dollars per gross rentable square foot per
annum.
58. OVERTIME HVAC USE. Lessor hereby agrees, at its sole cost and
expense, to install an override switch with time recorders to permit Lessee
to operate Building HVAC zones on an overtime basis. It is understood and
agreed that Lessee shall pay to Lessor, as Additional Rent, the actual costs
incurred with respect to such overtime use. The amounts to be paid pursuant
to this Section 58 shall be deemed Additional Rent due under the Lease and
shall be payable upon demand, failing which Lessor shall have all the
remedies as permitted by this Lease and the law for the collection of rent.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
XXXX PARAMUS AFFILIATES, Lessor
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: XXXXXXX X. XXXX
--------------------------------
Title: GENERAL PARTNER
-------------------------------
LONG BEACH ACCEPTANCE CORP., Lessee
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------
Title: Executive Vice President & Secretary
--------------------------------------
27
EXHIBIT B
RULES AND REGULATIONS
1 OBSTRUCTION OF PASSAGEWAYS: The sidewalks, entrances, passages, courts,
elevators, vestibules, stairways, corridors and public parts of the building
shall not be obstructed or encumbered by Lessee, its visitors, agents,
servants, employees, customers, contractors, licensees or used by Lessee for
any purpose other than egress and egress to and from the premises.
2. Windows: Windows in the premises shall not be covered or obstructed by
Lessee. No bottles, parcels, or other articles shall be placed on the
windowsills, in the halls, or in any other part of the building other than
the leased premises. No article shall be thrown out of the doors or windows
of the premises.
3. PROJECTIONS FROM BUILDING: No awnings, air conditioning units, or other
fixtures shall be attached to the outside walls or the windowsills of the
building or otherwise affixed so as to project from the building, without
the prior written consent of Lessor.
4. SIGNS: No sign or lettering shall be affixed by Lessee to any part of the
outside of the premises, or any part of the inside of the premises so as to
be clearly visible from the outside of the premises, without the prior
written consent of the Lessor. However, Lessee shall have the right to place
its name on any door leading into the premises, the size, color and style
thereof to be subject to the Lessor's approval.
Lessor shall place Lessee's name on the directory in the lobby of the
building. Lessee shall not have the right to have additional names placed on
the directory without Lessor's prior written consent.
5. FLOOR COVERING: Lessee shall not lay any hard surface flooring so that the
same shall come in direct contact with the floor of the premises. If linoleum
or other similar floor covering is desired to be used, an interlining of
builder's deadening felt first shall be fixed to the floor by a paste or
other similar adhesive material being expressly prohibited. Lessee shall
reimburse Lessor for the cost of any sound insulation required in the
premises below the hard surface flooring area.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING: Lessee shall not make, or permit
to be made, any unseemly or disturbing noises and shall not interfere with
other tenants or those having business with them. Lessee will keep all
mechanical apparatus in the premises free of vibration and noise which may be
transmitted beyond the limits of the leased premises.
7. LOCKS, KEYS: No additional locks or bolts of any kind shall be placed on
any of the doors or windows by Lessee nor shall any changes be made in
existing locks or the mechanism thereof. Lessee shall, on the termination of
Lessee's tenancy, deliver to Lessor, all keys to any space within the
building, either furnished to or otherwise, procured by Lessee, and in the
event of the loss of any keys furnished, Lessee shall pay to Lessor the cost
thereof. Lessee, before closing and leaving the premises, shall ensure that
all windows are closed and entrance doors locked.
8. CONTRACTORS: No contract of any kind with any supplier of towels, ice, toilet
articles, waxing, rug shampooing, venetian blind washing, furniture polishing,
lamp servicing, cleaning of electrical fixtures, removal of waste paper, rubbish
or garbage, or other like, service shall be entered into by Lessee, nor shall
any vending machine of any kind be installed in the Office Building Area without
the prior written consent of Lessor. Lessee shall not employ any person or
persons other than Lessor's janitors for the purpose of cleaning the premises,
without prior written consent of Lessor. Lessor shall not be responsible to
Lessee for any loss of property from the premises, however occurring, or for any
damage done to the effects of Lessee by such janitors or any of its employees,
or by any other person or any other cause.
9. PROHIBITED ON PREMISES: Lessee shall not conduct, or permit any other
person to conduct, any auction upon the premises, manufacture or store goods,
wares or merchandise upon the premises, without the prior written approval of
Lessor, except the storage of usual supplies and inventory to be used by
Lessee in the conduct of its business permit the premises to be used for
gambling; make any unusual noises in the building, permit to be played any
musical instrument on the premises, permit to be played any radio,
television, recorded or wired music in such a loud manner as to disturb or
annoy other tenants, or permit any unusual odors to be produced upon the
premises. Lessee shall not permit any portion of the premises to be occupied
as an office for a public stenographer or typewriter, or for the storage,
manufacture, or sale of intoxicating beverages, narcotics, tobacco in any
form, or as xxxxxx or manicure shop. Canvassing, soliciting and peddling in
the Office Building and the Office Building Area are prohibited, and Lessee
shall cooperate to prevent the same. No bicycles, vehicles or animals of any
kind shall be brought into or kept in or about the premises.
10. MECHANICAL, PLUMBING, ELECTRIC, LIFE SAFETY OR TELEPHONE WORK: Lessee
shall at no time perform any alteration, additions, or repairs to the air
conditioning, heating, ventilating, plumbing, fire protection, or electrical
systems servicing the premises or the building, without obtaining the prior
written consent of Lessor. Lessor reserves the right 'through the use of its
own contractors, to perform all work on these above referenced systems
through the use of Lessor's approved contractors. All telephone work shall be
performed by Lessee in accordance with all applicable building codes and
regulations and shall be installed so as not to interfere with the operation
of any fire dampers, or fire separation systems. All penetrations shall be
sealed to maintain the integrity of the fire separation walls. Lessor shall
backcharge Lessee for all restoration work required that is not performed by
Lessee as outlined above. The location of all plumbing, electrical, HVAC and
telephone work which is to be installed shall be subject to the Lessor's
approval which shall include a review of the number of appliances and their
location. Plumbing facilities shall not be used for any purpose other than
those for which they were constructed; and no sweepings, rubbish, ashes,
newspaper or other substances of any kind shall be thrown into them. Waste
and excessive or unusual amounts of electricity or water is prohibited. When
electric wiring of any kind is introduced, it must be connected as directed
by Lessor, and no stringing or cutting of wires will be allowed, except by
prior written consent of Lessor, and shall be done by contractors approved by
Lessor. The number and locations of telephones, telegraph instruments,
electrical appliances, call boxes, etc., shall be subject to Lessor's
approval.
11. MOVEMENT OF FURNITURE, FREIGHT, OR BULKY MATTER: The carrying in or out
of safes, freight, furniture, or bulky matter of any description must take
place during such hours as Lessor may from time to time reasonably determine
and only after advance notice to the superintendent of the building. The
persons employed by Lessee for such work must be reasonably acceptable to the
Lessor. Lessee may, subject to Lessor's prior approval, move freight,
furniture, bulky matter, and other material into or out of the premises on
Saturdays between the hours of 9:00 a.m. and 3:00 p.m., provided Lessee pays
additional costs, if any, incurred by Lessor for elevator operators or
security guards, and for any other expenses occasioned by such activity of
Lessee. If, at least three days prior to such activity, Lessor requests that
Lessee deposit with Lessor, as security for Lessee's obligation to pay such
additional cost, a sum of which Lessor reasonably estimates to be the amount
of such additional cost, the Lessee shall deposit such sum with Lessor as
security for such cost. There shall not be used in the Office Building or
premises, either by Lessee or by others in the delivery or receipt of
merchandise, any hand trucks except those equipped with rubber tires and side
guards, and no hand trucks will be allowed in the elevators without the
consent of the superintendent of the building. Lessee shall be responsible
for the cost of removal of all boxes, garbage and debris caused by the
movement of the furniture, freight or delivery of materials. Lessee shall
notify the superintendent of the building at least 24
hours in advance of any anticipated deliveries which will require the removal
of debris.
12. SAFES AND OTHER HEAVY EQUIPMENT: Lessor reserves the right to prescribe
the maximum weight and position of all safes and other heavy equipment so
as to distribute properly the weight thereof and to prevent any unsafe
condition from arising. The cost of additional reinforcing, if required,
shall be the responsibility of the Lessee.
13. ADVERTISING: Lessor shall have the right to prohibit any advertising by
Lessee which in Lessor's reasonable opinion tends to impair the reputation of
the Office Building or its desirability as a building for offices, and upon
written notice from Lessor, Lessee shall refrain from or discontinue such
advertising.
14. NON-OBSERVANCE OR VIOLATION OF RULES BY TENANTS: Lessor shall not be
liable to Lessee for any violation or non-observance of the rules and
regulations by any other Lessee, its servants, employees, agents, visitors,
invitees, sublessees, or licensees, nor is Lessor obligated to enforce the
rules and regulations or the terms, covenants, or conditions in any
other lease against any other Lessee.
15. AFTER HOURS USE: Lessor reserves the right to exclude from the building
between the hours of 6:00 p.m. and 8:00 a.m., on Monday to Friday inclusive,
and between the hours of 1:00 p.m., on Saturday and 8:00 a.m., on the
following Monday, as well as legal holidays any visitor not authorized by
tenant to have access. Each Lessee shall be responsible for any after-hours
utilization of the premises by its personnel and visitor not authorized by
tenant to have access. Each Lessee shall be responsible for any after-hours
utilization of the premises by its personnel and visitors an shall be liable
to the Lessor for the acts of such persons.
16. PARKING: Lessee and its employees shall park their cars only in those
portions of the parking area not designated for use by other tenants or
visitors.
17. Lessor hereby reserves to itself any and all rights not granted to Lessee
hereunder, including, but not limited to, the following rights which are
reserved to a Lessor for its purposed in operating the Office Building:
(a) the exclusive right to the use of the name of the Office Building
for all purposes, except that Lessee may use the name as its business
address and for no other purposes;
(b) the right to change the name or address of the office Building,
without incurring any liability to Lessee for doing so;
(c) the right to install and maintain a sign on the exterior of the Office
Building;
(d) the exclusive right to use or dispose of the use of the roof of the
Office Building;
(e) the right to limit the space on the directory of the Office Building
to be allotted to Lessee;
(f) the right to grant to anyone the right to conduct any particular
business or undertaking in the Office Building.
EXHIBIT 'C'
WORK TO BE DONE BY LANDLORD
XXXX CENTRE II
PARAMUS, NEW JERSEY
LONG BEACH ACCEPTANCE CORPORATION
Tenant
JANUARY 15, 1997
REVISED ON PAGES NOTED: FEBRUARY 3, 1997
REVISED ON PAGES NOTED: FEBRUARY 5, 1997
REVISED ON PAGES NOTED: MARCH 4, 1997
LONG BEACH ACCEPTANCE CORPORATION
XXXX CENTRE II, PARAMUS, N.J. JANUARY 15, 1997
EXHIBIT 'C'
1.00 GENERAL CONDITIONS
1.01 Landlord agrees that, at its expense, prior to commencement of this
Lease, it will do the following Building Standard work in the Demised
Premises.
1.02 Landlord shall use only new and first-class materials in the
performance of new work and will provide Tenant with samples before
installation.
1.03 Building Standards - those materials and/or details shown on final
approved set of working drawings.
1.04 Landlord will provide a complete space to meet all State and local
codes and requirements.
1.05 Landlord will obtain and pay for all permits and inspections required
for occupancy.
1.06 Landlord will furnish all labor, material and equipment required to
complete the work described on drawings and in the specifications and
perform all demolition as may be required.
1.07 Tenant may in Tenant's plans substitute different materials, equipment
(except for Building Standard sun shading at the exterior windows) and
lighting fixtures for installation in the Demised Premises for those
specified as Building Standard. In such event, Landlord shall furnish
and install in the Demised Premises such material, equipment and
fixtures so substituted by Tenant as part of Landlord's Work, provided
that all such material, equipment and fixtures shall be of a quality at
least equal to the quality of similar items specified as Building
Standard; and provided further that if the cost to Landlord of
furnishing and installing such substituted material, equipment and
fixtures shall exceed the cost for the relevant material, equipment and
fixtures specified as Building Standard, the amount of such excess
shall be paid by Tenant to Landlord upon presentation of a statement,
xxxx or invoice. The cost of any substituted material, equipment or
fixtures shall be determined by Landlord and agreed to by Tenant, prior
to any work being done in the Demised Premises in connection with such
substituted items. The Landlord will submit a proposal for work
authorization to Tenant for its approval.
1 of 12
LONG BEACH ACCEPTANCE CORPORATION
XXXX CENTRE II, PARAMUS, N.J. JANUARY 15, 1997
REVISED: FEBRUARY 3, 1997
EXHIBIT 'C'
(Cont'd)
1.07 (Cont'd)
Such proposal will contain a budget cost of the substituted item as
described by Landlord, plus a fee as hereinafter described. If Tenant
shall request Landlord to omit any item of material, equipment or
fixtures specified as Building Standard which Landlord has not
therefore installed and the omission thereof will not in the judgment
of Landlord delay completion of any of the other Landlord's work,
Landlord shall not install, and shall be under no further obligation to
install such item, but Tenant shall not be entitled to a credit with
respect to any Building Standard material, equipment or fixtures
omitted. When Landlord or its subcontractors shall perform work with
respect to any substituted item as aforesaid, the cost to Tenant for a
special item substituted for said Building Standard material,
Landlord's equipment or fixtures, if more expensive than such Building
Standard material, shall be Landlord's cost of the special item minus
Landlord's cost of the Building Standard item, plus (1) a sum equal to
the difference between two such costs multiplied by a fee of ten (10%)
percent for office overhead, plus five (5%) for profit.
1.08 Prior to the Commencement Date of this Lease, contractors and
subcontractors performing Tenant's work shall be of Landlord's choice
except for Tenant's telephone company. Tenant's own work may be done
prior to the Commencement Date of this Lease, provided that the work
being done by the Landlord at the Building or in the Demised Premises
has progressed sufficiently for Tenant to commence its work without
unduly interfering with the work of the Landlord and Landlord shall
give at least fifteen (15) days prior to the Lease Commencement Date,
access to Tenant and its contractor and subcontractors (as permitted)
during normal working hours to enable Tenant to make Tenant's
installations.* In connection with Tenant's access and entry into the
Demised Premises prior to the commencement of the term to make Tenant's
installations, Tenant shall receive, without charge, water, heat,
ventilation or cooling during normal working hours, but only to the
extent that such services are being supplied to Landlord's contractors
and workmen at the Demised Premises at the time.
2 of 12
LONG BEACH ACCEPTANCE CORPORATION
XXXX CENTRE II, PARAMUS, N.J. JANUARY 15, 1997
REVISED: FEBRUARY 3, 1997
EXHIBIT 'C'
(Cont'd)
1.08 (Cont'd)
Tenant shall pay for hoist and rubbish removal service in connection
with its own work. It is understood and agreed that Tenant's access and
entry prior to the commencement of the Lease Term to make its
installations is conditioned upon Tenant's Union workmen and Union
mechanics working in harmony and not interfering with the labor
employed by Landlord, Landlord's mechanics or contractors or by any
other Tenant or its contractors. If, at any time, such entry shall
cause disharmony or interference, then, Tenant's right to such access
and entry shall be withdrawn by Landlord immediately.
Workmen's Compensation and Public Liability Insurance and Property
Damage Insurance, all in amounts and with companies and on forms
satisfactory to Landlord shall be provided and at all times maintained
by Tenant's contractors engaged in the performance of the work,
certificates for such insurance shall be furnished to the Landlord.
* The term "Tenant's own work" shall be limited to Tenant's telephone
installation, Tenant's installation of any low and/or modular work
station partitioning and Tenant's computer equipment installations,
however, all such work shall be performed by Union workmen.
1.09 Provided Landlord has obtained necessary Certificates of Occupancy,
Landlord shall permit "early access" for a limited number of Tenant's
employees for start-up purposes prior to Lease Commencement. Such
access and entry shall be deemed to be under all of the terms,
covenants, provisions and conditions of the Lease except as to the
covenant to pay rent. Landlord shall not be liable in any way for
injury, loss or damage which may occur to any Tenant's decorations or
installments so made prior to the commencement of the term of the
Lease, the same being solely at Tenant's risk.
1.10 Landlord shall perform all demolition work as required to suit Tenant's
layout including the termination and capping of existing electrical
lines, plumbing, etc.
3 of 12
LONG BEACH ACCEPTANCE CORPORATION
XXXX CENTRE II, PARAMUS, N.J. JANUARY 15, 1997
EXHIBIT 'C'
(Cont'd)
2.00 DRAWINGS
2.01 Tenant's architect, at Landlord's expense pursuant to a separate
agreement, shall provide complete architectural drawings for Landlord's
use in constructing the tenant improvements.
2.02 Notwithstanding Section 2.01 hereof to the contrary, in the event
Tenant elects to have Landlord's architect prepare the architectural
drawings, then in such event Landlord's architect shall prepare such
drawings at no expense to Tenant. In connection with the preparation of
such drawings, Tenant shall furnish to Landlord the following:
a. preliminary floor (space) plans with designation of
partition types; etc.
b. location of special lighting and power receptacles.
c. millwork requirements.
d. location and extent of special ceiling requirements, if any.
e. location and extent of special equipment including power and
heat loads; etc.
2.03 Regardless of Tenant's election pursuant to Sections 2.01 and 2.02
above, Landlord, at its expense, shall arrange for the preparation of
mechanical and electrical drawings for the tenant improvement work.
Tenant shall have ten (10) days from receipt of said drawings to
approve same, however, such approval shall be limited to a verification
that the drawings conform with the specifications set forth in this
Exhibit 'C'.
3.00 DIRECTORIES
3.01 Provide Tenant identification at Building directories.
4 of 12
LONG BEACH ACCEPTANCE CORPORATION
XXXX CENTRE II, PARAMUS, N.J. JANUARY 15, 1997
REVISED: FEBRUARY 3, 1997
EXHIBIT 'C'
(Cont'd)
4.00 PARTITIONS
4.01 A partition allowance shall be provided as is necessary to conform to
Tenant's layout.
4.02 New partitions to be 1-5/8" x 3-5/8" metal studs with 5/8" gypsum
board both sides. Partitions including studs and drywall shall extend
to the underside of finished ceiling, except where full height
partitions are specified.
4.03 Partitions shall have full thick sound attenuation insulation between
studs where specified.
4.04 Partitions terminating in the building exterior wall, shall meet either
a mullion or a column without interfering with access to the peripheral
enclosure.
5.00 DOORS AND BUCKS
5.01 All new door bucks to be 16 gauge hollow metal.
5.02 All new doors to be 7'-0" x 1-3/4" wood solid core, oak veneer, stain
grade, in widths as shown except for entry door to each "suite", which
shall be full height (8'-10") black anodized aluminum and tempered
glass "narrow stile" doors. Secondary egress doors shall be 8'-10"
solid core wood where fronting on common corridors.
6.00 GLAZING
6.01 Glazing in windows and doors shall be as required by local, State and
Federal regulations and to meet design requirements.
6.02 Landlord shall furnish and install 2-0" wide glass sidelites at offices
where specified.
5 of 12
LONG BEACH ACCEPTANCE CORPORATION
XXXX CENTRE II, PARAMUS, N.J. JANUARY 15, 1997
REVISED: FEBRUARY 3, 1997
REVISED: MARCH 4, 1997
EXHIBIT 'C'
(Cont'd)
7.00 ROUGH AND FINISHED HARDWARE
7.01 Provide rough and finished hardware commensurate with office use
including lock sets. Provide latch sets on individual office doors.
7.02 Lessor shall supply and install all rough and finish hardware.
7.03 Finish hardware to be Xxxxxxx or equal, grand-master keyed to
Landlord's requirements.
7.04 All doors to be located, oriented and be equipped with hardware in
accordance with local codes.
7.05 Landlord shall furnish and install a card key access system to
approximately twelve (12) doors.
8.00 ACOUSTICAL CEILINGS
8.01 Existing lay-in acoustic tile ceiling grid shall remain in place to the
extent feasible. All existing ceiling tile shall be replaced with new
Xxxxxxxxx Second Look II, rabbeted edge tile, and all existing grid to
remain shall be re-painted.
8.02 To the extent required (as shown on the architectural drawings), new
ceiling construction (grid and tile) of a type to match existing shall
be provided.
9.00 CARPETING
9.01 Landlord shall remove existing floor coverings and furnish and install
new floor coverings and base as selected by Tenant from Landlord's
samples.
9.02 Up-graded carpet shall be provided in four (4) executive offices; one
(1) law office; board room; conference rooms and Reception areas.
6 of 12
LONG BEACH ACCEPTANCE CORPORATION
XXXX CENTRE II, PARAMUS, N.J. JANUARY 15, 1997
EXHIBIT 'C'
(Cont'd)
10.00 WALL FINISHES
10.01 All interior wall finishes shall be paint except for upgraded wall
coverings in four (4) executive offices; one (1) law office, board
room, conference rooms and Reception areas.
10.02 All exposed interior ferrous metal surfaces including miscellaneous
metal, piping, duct work and mechanical equipment shall receive two
coats of enamel paint over one prime coat.
10.03 Metal doors, door bucks and other metal surfaces not having baked or
enamel finish shall receive two coats of enamel paint over one coat of
primer.
10.04 Paint manufacturers to be utilized are as follows: Xxxxxxx, or approved
equal.
10.05 All painted graphics will be an extra.
11.00 WINDOW COVERING
11.01 Furnish and install Building Standard blinds, one color as established
by Landlord on all exterior windows. Notwithstanding the foregoing,
existing vertical blinds shall remain in place to the extent feasible,
except that same shall be patched, repaired and cleaned as required.
12.00 FIRE EXTINGUISHERS
12.01 Provide fire extinguishers in general areas to meet all prevailing
codes.
13.00 HVAC
13.01 A year-round variable volume air conditioning system designed to
maintain a temperature of 78DEG.F, plus or minus 2DEG.F and a maximum
relative humidity of 50% when outside conditions are 95DEG.F, DB;
76DEG.F WB. shall be furnished and installed.
7 of 12
LONG BEACH ACCEPTANCE CORPORATION
XXXX CENTRE II, PARAMUS, N.J. JANUARY 15, 1997
REVISED: FEBRUARY 3, 1997
REVISED: MARCH 4, 1997
EXHIBIT 'C'
(Cont'd)
13.02 All areas will be zoned for each orientation or for interior spaces as
designated so that the above mentioned space temperatures can be
maintained providing, however, that the occupancy shall not exceed one
(1) occupant per 140 gross square feet.
13.03 The system will be under time clock control set to start at 8:00 a.m.
and shut down at 6:00 p.m. on normal business days and 8:00 a.m. to
1:00 p.m. on Saturdays (holidays excluded), except to the extent set
forth to the contrary in the Lease.
13.04 All heating will be provided from perimeter electric baseboard
radiation with the heat output controlled from outside air temperature
to maintain the inside conditions.
13.05 Landlord shall furnish and install a maximum of two (2) plenum
discharge exhaust fans in locations specified by Tenant.
13.06 Any special or separate HVAC Systems required by Tenant, shall be
furnished and installed by Landlord, at Tenant's sole cost and expense.
Notwithstanding the foregoing sentence to the contrary, Landlord
shall furnish and install two (2) - three (3) ton ceiling mounted
supplemental air conditioning unit in Tenant's LAN Room. All utility
costs associated with the operation of said systems shall be the
responsibility of the Tenant.
14.00 ELECTRIC SPECIFICATIONS
The electrical service shall provide for 5 xxxxx per Square Foot, 3
xxxxx PSF for lighting and 2 xxxxx PSF for power loads. With the
exception of the electrical consumption described in Section 14.01 'E'
below, the power and lighting described in Sections 14.01 and 14.02
hereof, shall constitute Standard Building Electric pursuant to the
Lease.
14.01 POWER
A. Duplex 110 volt wall receptacles shall be provided in accordance
with Tenant's requirements. Receptacles to be located in drywall
partitions.
8 of 12
LONG BEACH ACCEPTANCE CORPORATION
XXXX CENTRE II, PARAMUS, N.J. JANUARY 15, 1997
REVISED: FEBRUARY 3, 1997
REVISED: FEBRUARY 5, 1997
EXHIBIT 'C'
(Cont'd)
14.01 (Cont'd.)
Landlord shall re-use existing receptacles if possible. Tenant shall
not be permitted to place duplex receptacles (or Telco or data outlets)
at exterior building walls. Receptacles shall be standard 120 volt with
three (3) duplex receptacles maximum per circuit.
B. Landlord shall furnish and install separate circuits for
Tenant's normal office equipment as specified by Tenant, 110
volt, 20 amp. maximum.
C. Landlord shall furnish 110 volt electrical service to Tenant's
systems furniture as such furniture is shown on the
architectural drawings. All costs in connection with telephone
and data wiring shall be the sole and complete responsibility
of Tenant.
D. All existing floor electrical and telephone outlets shall be
terminated and capped.
E. Landlord shall furnish and install the following special power
outlets:
- Three (3) 30 amp, 208 volt dedicated power lines,
each on a separate breaker.
- Fourteen (14) 20 amp, 120 volt dedicated power
lines, each on a separate breaker.
- Five (5) 30 amp, 120 volt dedicated power lines,
each on a separate breaker.
- Twenty (20) 20 amp, 120 volt dedicated power lines,
each on a separate breaker, for Laser printer and
copiers.
Landlord shall either meter or survey the electrical
consumption from the above power lines and charge Tenant for
such consumption based upon the Building utility rates.
9 of 12
LONG BEACH ACCEPTANCE CORPORATION
XXXX CENTRE II, PARAMUS, N.J. JANUARY 15, 1997
REVISED: FEBRUARY 3, 1997
REVISED: FEBRUARY 5, 1997
EXHIBIT 'C'
(Cont'd)
14.01 (Cont'd.)
F. To the extent Landlord is furnishing and installing power
outlets in the Tenant's LAN Room, each dedicated power line
(and/or circuit) shall terminate in an electrical panel within
the LAN Room.
14.02 LIGHTING
A. Landlord shall furnish new 2'-0" x 4'-0" 3 tube deep cell
parabolic, recessed fluorescent lighting fixtures to
accommodate Tenant's layout. The lighting layout shall be
designed to provide approximately 70 FC, average maintained.
Light fixture switching shall provide a minimum of one (1)
switch for each room or area, or as shown on final
Architectural Drawings.
B. Landlord shall furnish and install up-graded lighting in four
(4) executive offices; one (1) law office, board room,
conference rooms and Reception areas. Such lighting shall
include parabolic or parawedge recessed fluorescent troffers
and incandescent (or incandescent/fluorescent) hi-hats.
14.03 Exit and emergency lighting to be provided as per code.
15.00 TELEPHONE
15.01 All telephone work and wiring in partitions, floors and ceilings to be
done by the telephone company and will be the responsibility of the
Tenant. Landlord will coordinate work with the other trades as
required. Completion or non-completion of the telephone work will not
delay the Tenant's acceptance of the Demised Space or the payment of
rent. Tenant shall be responsible to advise its telephone company that
the space above the hung ceiling is a return air plenum and the use of
teflon sheathed wiring shall be required therein.
10 of 12
LONG BEACH ACCEPTANCE CORPORATION
XXXX CENTRE II, PARAMUS, N.J. JANUARY 15, 1997
REVISED: FEBRUARY 3, 1997
REVISED: FEBRUARY 5, 1997
EXHIBIT 'C'
(Cont'd)
16.00 FLOOR LOADS
Floor loadings shall be for normal office usage wherein floor design
loads of 100 PSF uniform loading (inclusive of 20 PSF partition loads)
shall not be exceeded. In the event that Tenant proposes floor loadings
within the Demised Premises in excess of the foregoing for any of its
equipment, Tenant shall be required to notify Landlord of such intended
floor loadings for Landlord's approval.
17.00 EXCLUSIONS
17.01 The following items and fixtures are N.I.C. and shall be furnished by
Tenant if required.
A. All furniture units including files.
B. All special equipment related to the Computer Rooms and the
like, (i.e. raised floors, special power equipment, special
air conditioning, special fire suppression systems other than
Building Standard automatic sprinklers for ordinary/light
hazard occupancy, and similar specialties).
C. All modular and bankscreen type partitioning and systems
furniture.
18.00 SPECIALTY WORK
18.01 Landlord shall furnish and install plywood backboards and wood blocking
where required for Tenant's telephone equipment.
18.02 Landlord shall construct Tenant's lunchroom and Coffee Stations which
shall include:
- Sink with hot and cold water
- Formica lower and upper cabinets
- Micro-wave oven(s)
- Refrigerator(s)
11 of 12
LONG BEACH ACCEPTANCE CORPORATION
XXXX CENTRE II, PARAMUS, N.J. JANUARY 15, 1997
REVISED: FEBRUARY 3, 1997
REVISED: FEBRUARY 5, 1997
REVISED: MARCH 4, 1997
EXHIBIT 'C'
(Cont'd)
18.03 Intentionally Omitted.
18.04 Landlord shall furnish and install structural steel support for two (2)
- 1800 pound UPS Systems (UPS by Tenant) in LAN Room.
18.05 Landlord shall furnish and install a six (6") inch raised floor at LAN
Room, with ramp placed outside of LAN Room.
19.00 ALLOWANCES
19.01 Notwithstanding anything to the contrary contained in this Exhibit
'C', it is the intention of Landlord to provide a turnkey fit-up as
generally described in the foregoing Sections 1-18, and the preliminary
space plans dated January 14, 1997 prepared by Xxxxx Associates.
Tenant agrees to reimburse Landlord the sum of $40,933.00 in
consideration of Landlord undertaking certain additional work on
Tenant's behalf with respect to Tenant's LAN Room and card access
system. Landlord agrees to amortize said sum over the initial*Lease
Term together with interest at ten (10%) percent per annum, said sum
to be payable in equal monthly installments applicable first to
interest and the balance to principal. In the event Tenant elects to
have Landlord perform any additional work in the Demised Premises on
its behalf, Tenant shall reimburse Landlord such costs in cash (or
credit against any allowances due Tenant, at Tenant's option).
19.02 Landlord shall provide Tenant with a moving allowance in the amount
of $54,890.25. Said allowance shall be paid to Tenant in cash (subject
to the provisions of 19.01 above, if applicable) upon Tenant's
occupancy of the Demised Premises and the commencement of the Lease.
*- five (5) years of the
12 of 12
EXHIBIT D
GENERAL CLEANING SPECIFICATION
NIGHTLY
Between the hours of 6:00 p.m. and 6:00 a.m., Monday through Friday (legal
holidays excepted).
PUBLIC AREAS
LOBBIES, CORRIDORS & VESTIBULES
SERVICE INTERVAL
------- --------
Glass Doors and Remove spots As Necessary
Partitions
Flooring (hard surface) Damp mop Twice Weekly
Damp mop and spray buff Twice Weekly
Strip and refinish As Necessary
Carpet Vacuum Nightly
Spot Cleaned As Necessary
Shampoo Quarterly
Light Fixtures on Dust and/or wash As Necessary
Multiple Tenancy Public
Corridors
ENTRANCE LOBBIES
Flooring
Stone Wash Nightly
Marble, V/A Tile Damp mop Twice Weekly
Quarry, Tile Damp mop and spray buff Twice Weekly
Strip and refinish
Carpet Vacuum Nightly
Spot clean As Necessary
Shampoo As Necessary
Walls, Light, Globes, Clean As Necessary
and Fixtures
ELEVATORS
Rugs Vacuum and spot clean As Necessary
Shampoo Monthly
Walls, Ceilings, Damp wipe Nightly
Paneled Surfaces
Metal Finishes, Clean Nightly
Saddles Clean Nightly
Light Fixtures:
Reflectors Damp wipe As Necessary
Diffusers Dust/Vacuum As Necessary
TENANT AREAS
Carpet Vacuum all carpets Nightly
Resilient Flooring Dust mop, using chemically treated dust Nightly
system-spot clean spills.
Doors and Frames Remove all finger marks and smudges from As Necessary
doors, partitions, woodwork, window
ledges, window mullions and light
switches.
Exhibit D
Service Interval
------- --------
Door Saddles (Metal) Polish Monthly
Glass Tops Damp wipe Nightly
Bookcases, Filing Dust As Necessary
Cabinets, Chairs,
Furniture, Shelves, and
Other Dust Collecting
Surfaces
Window Xxxxx/Ledges Dust As Necessary
Ash Trays Empty and damp wipe Nightly
Smoking Stands Remove refuse, damp wipe, dry polish Nightly
exterior
Replace sand As Needed
Drinking Fountains Damp wipe, clean and polish with Nightly
disinfectant and water
Umbrella Racks Dust Nightly
Waste Paper Baskets Empty and damp wipe Nightly
Partition Glass and Spot clean Nightly
Glass Doors
Ceiling Air Distribution, Vacuum clean Monthly
Return Air Grills &
Surrounding Areas
Fabric Partitions Brush Monthly
Light Fixtures: Damp Wipe Annually
Lenses Interior &
Exterior
Fire Extinguisher Dust and wipe glass As Necessary
Cabinets
Refuse Remove to designated area dumpster or Nightly
compactor
High Dusting Pictures, frames, charts, and similar Monthly
wall hangings not reached in nightly
cleaning, exterior of light fixtures,
overhead pipes venetian blinds, window
frames, files, shelves, book cases,
and vertical surfaces - such as
partitions, ventilating louvers, etc.
not reached in nightly cleaning.
TOILETS, LOCKER ROOMS, SHOWER ROOMS AND POWDER ROOMS
Tile Floor Sweep Nightly
Wash with germicidal detergent Nightly
Machine scrub Monthly
Metal Partitions, Doors, Spot Clean As Necessary
Horizontal Surfaces Damp wash with germicidal detergent Monthly
and water
Tile Walls Spot clean As Necessary
Wash with germicidal solution in water Monthly
Basins, Toilet Bowls, Wash with germicidal solution. Nightly
Urinals an Toilet Seats
Exhibit D
Service Interval
------- --------
Mirrors and Frames Wash and polish, mirrors, Nightly
powder shelves, bright work,
including flushometers, piping, and
toilet seat hinges.
Soap Dispensers Refill As Required
Sanitary Product Refill As Required
Dispensers Handsoap, toilet tissues, hand towels
Wastepaper Baskets, Empty Nightly
Towel, and Sanitary
Disposal Receptacles
Damp wash with germicidal solution Weekly
Light Fixture: Lenses Wash Semi-Annually
CAFETERIA, VENDING AREAS, LUNCH ROOMS
Basic cleaning specifications shall apply to all walls, floors and ceilings.
In buildings where there are kitchens and serving areas, the contractor shall
be responsible only for the areas in front of the serving counters.
WINDOWS
All perimeter windows including atriums will be washed inside and outside four
(4) times per year.
All exterior metal will be wiped clean and polished, if necessary, at the same
time windows are washed.
SNOW REMOVAL AND LANDSCAPING
Keep sidewalks and parking areas clean and free of snow and rubbish.
Remove snow during day of ingress and egress, if necessary.
Keep lawn and landscaping properly maintained, if applicable.
SERVICES EXCLUDED
The following services are not included for building standard cleaning but can
be provided at additional cost.
Additional service by way of illustration and not limitation:
1. Carpet shampooing
2. Waxing of hard surface floors
3. Furniture polishing
4. Furniture waxing
5. Cleaning tenant private toilets, including supplies, etc.
6. All cleaning pertaining to the computer room shall be charged directly
to the tenant as an extra. Computer room is defined as space with a
"Raised" or "Floating" floor.
EXHIBIT "E"
HOLIDAY SCHEDULE
----------------
NEW YEARS DAY
WASHINGTON'S BIRTHDAY
GOOD FRIDAY
MEMORIAL DAY
INDEPENDENCE DAY
LABOR DAY
ELECTION DAY (PRESIDENTIAL ONLY)
THANKSGIVING DAY
CHRISTMAS DAY
EXHIBIT F
GUARANTY OF LEASE
WHEREAS, LONG BEACH ACCEPTANCE CORP., with offices at 000 Xxxxxxxxxxxx
Xxxx, Xxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "Lessee") is
desirous of entering into the lease hereinafter mentioned; and
WHEREAS, LONG BEACH MORTGAGE COMPANY, with offices at 0000 Xxxx xxx
Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as
"Guarantor") has requested XXXX PARAMUS AFFILIATES, whose address is 000 Xxxx
Xxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx 00000 (hereinafter referred to as
"Lessor") to enter into a lease with the Lessee for seven (7) years and two
(2) months in the building known as Xxxx Centre II located at Xxx Xxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxx Xxxxxx (hereinafter referred to as "Lease"); and
WHEREAS, the Lessor has refused to enter into the said Lease unless the
Guarantor guarantees said Lease in the manner hereinafter set forth.
NOW, THEREFORE, to induce the Lessor to enter into said Lease, which
Lease is dated this day and is being executed simultaneously herewith, the
Guarantor hereby agrees as follows:
1. (a) The Guarantor unconditionally guarantees to the Lessor and
the successors and assigns of the Lessor, the full and punctual performance
and observance by the Lessee of all of the terms, covenants and conditions in
said Lease contained on Lessee's part to be kept, performed or observed.
(b) If, at any time, default shall be made by the Lessee in the
performance or observance of any of the terms, covenants or conditions in
said Lease contained on the Lessee's part to be kept, performed or observed,
the Guarantor will keep, perform and observe the same, as the case may be, in
place and stead of the Lessee.
(c) The liability of the Guarantor hereunder shall be
enforceable against the Guarantor without the necessity for any suit or
proceedings on the Lessor's part of any kind or nature whatsoever against the
Lessee.
2. Any act of the Lessor, or the successors or assigns of the
Lessor, consisting of a waiver of any of the terms or conditions of said
Lease, provided such waiver does not materially increase the obligations of
Lessee or Guarantor, or materially increase the obligations of Lessee or
Guarantor, or the giving of any consent to any manner or thing relating to
said Lease, or the granting of any indulgences or extensions of time, to the
Lessee, may be done without notice to the Guarantor and without releasing the
obligations of the guarantor hereunder except with respect to such waivers.
3. The obligations of the Guarantor hereunder shall not be released
by Lessor's receipt, application or release of security given for the
performance and observance of covenants and conditions in said Lease
contained on the Lessee's part to be performed or observed; nor by any
modification of such Lease, but in the case of any such modification, the
liability of the guarantor shall be deemed modified in accordance with the
terms of any such modification of the Lease.
4. The liability of the Guarantor hereunder shall in no way be affected
by (a) the release or discharge of the Lessee in any creditors' receivership,
bankruptcy or other proceedings; (b) the impairment, limitation or modification
of the liability of the Lessee or the estate of the Lessee in bankruptcy, or of
any remedy for the enforcement of the Lessee's said liability under the Lease,
resulting from the operation of any present or future provision of the
Bankruptcy Code or other statute or from the
1
decision in any court; (c) the rejection or disaffirmance of the Lease in any
such proceedings; (d) the assignment or transfer of the Lease by the Lessee; (e)
any disability or other defense of the Lessee; or (f) the cessation from any
cause whatsoever of the liability of the Lessee.
5. Until all the covenants and conditions in said Lease on the
Lessee's part to be performed and observed are fully performed, observed,
waived, released or forgiven by Lessor, the Guarantor: (a) shall have no
right of subrogation against the Lessee by reasons of any payments or acts
of performance by the Guarantor hereunder; (b) waives any right to enforce
any remedy which the Guarantor now or hereafter shall have against the Lessee
by reason of any one or more payment or acts of performance in compliance
with the obligations of the Guarantor hereunder; and (c) subordinates any
liability or indebtedness of the Lessee now or hereafter held by the
Guarantor to the obligations of the Lessee to the Lessor under said Lease.
6. Notwithstanding any payments of Basic Rent or Additional Rent
made by the undersigned pursuant to the provisions of this Guaranty, the
undersigned shall not seek to enforce or collect upon any rights which the
undersigned now has or may acquire against the Lessee either by way of
subrogation, indemnity, reimbursement or contribution for any amount paid
under this Guaranty. In the event either a petition is filed under the
Bankruptcy Code or under any other applicable Federal or state insolvency law
in regard to the Lessee, or an action or proceeding is commenced for the
benefit of the creditors of the Lessee, and the Lessor is ordered to repay
all or any portion of any payments made to Lessor which were received from or
on behalf of the Lessee and which are held voidable on the grounds of
preference, fraudulent conveyance or otherwise, the undersigned shall pay to
the Lessor an amount equal to such payments held to be voidable, provided,
however, that the aggregate of all payments made by the undersigned under
this Guaranty shall not exceed the amount of the Basic Rent and Additional
Rent arrears then due and payable.
If at any time payment, or portion thereof, made by or for the
account of the undersigned on account of the obligations under this Guaranty, is
set aside by any court or trustee having jurisdiction as a voidable preference,
fraudulent conveyance or otherwise as being subject to avoidance or recovery
under the provisions of the Bankruptcy Code or under any other applicable
Federal or state insolvency law or similar law, the undersigned hereby agrees
that this Guaranty (a) shall continue and remain in full force and effect, and
(b) if previously terminated as a result of the undersigned having fulfilled the
undersigned's obligations hereunder in full or as a result of the Lessor having
released the undersigned from its obligations and liabilities hereunder, shall
without further act or instrument be reinstated and shall thereafter remain in
full force and effect, in either case with the same force and effect as though
such payment or portion thereof had not been made, and, if applicable, as if
such previous termination had not occurred.
7. This Guaranty shall apply to the said Lease and to any renewal or
extension thereof.
8. This instrument and the Lease may not be changed, modified,
discharged or terminated orally or in any manner other than by an agreement
in writing signed by the Guarantor and the Lessor.
IN WITNESS WHEREOF, the Guarantor has hereunto set his hands and
seals the _____ day of February 1997.
LONG BEACH MORTGAGE COMPANY
BY:
-------------------------------
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GUARANTY OF LEASE
WHEREAS, LONG BEACH ACCEPTANCE CORP., with offices at 000 Xxxxxxxxxxxx
Xxxx, Xxxxxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "Lessee") is
desirous of entering into the lease hereinafter mentioned; and
WHEREAS, LONG BEACH MORTGAGE COMPANY, with offices at 0000 Xxxx xxx
Xxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as "Guarantor")
has requested XXXX PARAMUS AFFILIATES, whose address is 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "Lessor") to enter
into a lease with the Lessee for seven (7) years and two (2) months in the
building known as Xxxx Centre II located at Xxx Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxx
Xxxxxx (hereinafter referred to as "Lease"); and
WHEREAS, the Lessor has refused to enter into the said Lease unless the
Guarantor guarantees said Lease in the manner hereinafter set forth.
NOW, THEREFORE, to induce the Lessor to enter into said Lease, which
Lease is dated this day and is being executed simultaneously herewith, the
Guarantor hereby agrees as follows:
1. (a) The Guarantor unconditionally guarantees to the Lessor and the
successors and assigns of the Lessor, the full and punctual performance and
observance by the Lessee of all of the terms, covenants and conditions in said
Lease contained on Lessee's part to be kept, performed or observed.
(b) If, at any time, default shall be made by the Lessee in the
performance or observance of any of the terms, covenants or conditions in said
Lease contained on the Lessee's part to be kept, performed or observed, the
Guarantor will keep, perform and observe the same, as the case may be, in place
and stead of the Lessee.
(c) The liability of the Guarantor hereunder shall be enforceable
against the Guarantor without the necessity for any suit or proceedings on the
Lessor's part of any kind or nature whatsoever against the Lessee.
2. Any act of the Lessor, or the successors or assigns of the Lessor,
consisting of a waiver of any of the terms or conditions of said Lease, provided
such waiver does not materially increase the obligations of Lessee or Guarantor,
or the giving of any consent to any manner or thing relating to said Lease, or
the granting of any indulgences or extensions of time, to the Lessee, may be
done without notice to the Guarantor and without releasing the obligations of
the Guarantor hereunder except with respect to such waivers.
3. The obligations of the Guarantor hereunder shall not be released by
Lessor's receipt, application or release of security given for the performance
and observance of covenants and conditions in said Lease contained on the
Lessee's part to be performed or observed; nor by any modification of such
Lease, but in the case of any such modification, the liability of the Guarantor
shall be deemed modified in accordance with the terms of any such modification
of the Lease.
4. The liability of the Guarantor hereunder shall in no way be affected
by (a) the release or discharge of the Lessee in any creditors' receivership,
bankruptcy or other proceedings; (b) the impairment, limitation or modification
of the liability of the Lessee or the estate of the Lessee in bankruptcy, or of
any remedy for the enforcement of the Lessee's said liability under the Lease,
resulting from the operation of any present or future provision of the
Bankruptcy Code or other statute or from the decision in any court; (c) the
rejection or disaffirmance of the
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Lease in any such proceedings; (d) the assignment or transfer of the Lease by
the Lessee; (e) any disability or other defense of the Lessee; or (f) the
cessation from any cause whatsoever of the liability of the Lessee.
5. Until all the covenants and conditions in said Lease on the Lessee's
part to be performed and observed are fully performed, observed, waived,
released or forgiven by Lessor, the Guarantor: (a) shall have no right of
subrogation against the Lessee by reasons of any payments or acts of performance
by the Guarantor hereunder; (b) waives any right to enforce any remedy which the
Guarantor now or hereafter shall have against the Lessee by reason of any one or
more payment or acts of performance in compliance with the obligations of the
Guarantor hereunder; and (c) subordinates any liability or indebtedness of the
Lessee now or hereafter held by the Guarantor to the obligations of the Lessee
to the Lessor under said Lease.
6. Notwithstanding any payments of Basic Rent or Additional Rent made
by the undersigned pursuant to the provisions of this Guaranty, the undersigned
shall not seek to enforce or collect upon any rights which the undersigned now
has or may acquire against the Lessee either by way of subrogation, indemnity,
reimbursement or contribution for any amount paid under this Guaranty. In the
event either a petition is filed under the Bankruptcy Code or under any other
applicable Federal or state insolvency law in regard to the Lessee, or an action
or proceeding is commenced for the benefit of the creditors of the Lessee, and
the Lessor is ordered to repay all or any portion of any payments made to Lessor
which were received from or on behalf of the Lessee and which are held voidable
on the grounds of preference, fraudulent conveyance or otherwise, the
undersigned shall pay to the Lessor an amount equal to such payments held to be
voidable, provided, however, that the aggregate of all payments made by the
undersigned under this Guaranty shall not exceed the amount of the Basic Rent
and Additional Rent arrears then due and payable.
If at any time payment, or portion thereof, made by or for the
account of the undersigned on account of the obligations under this Guaranty, is
set aside by any court or trustee having jurisdiction as a voidable preference,
fraudulent conveyance or otherwise as being subject to avoidance or recovery
under the provisions of the Bankruptcy Code or under any other applicable
Federal or state insolvency law or similar law, the undersigned hereby agrees
that this Guaranty (a) shall continue and remain in full force and effect, and
(b) if previously terminated as a result of the undersigned having fulfilled the
undersigned's obligations hereunder in full or as a result of the Lessor having
released the undersigned from its obligations and liabilities hereunder, shall
without further act or instrument be reinstated and shall thereafter remain in
full force and effect, in either case with the same force and effect as though
such payment or portion thereof had not been made, and, if applicable, as if
such previous termination had not occurred.
7. This Guaranty shall apply to the said Lease and to any renewal or
extension thereof.
8. This instrument and the Lease may not be changed, modified,
discharged or terminated orally or in any manner other than by an agreement in
writing signed by the Guarantor and the Lessor.
IN WITNESS WHEREOF, the Guarantor has hereunto set his hands and seals
the 5th day of March, 1997
LONG BEACH MORTGAGE COMPANY
BY: /s/ Xxxxxx [ILLEGIBLE]
------------------------------
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LANDLORD WAIVER:
KNOW ALL MEN BY THESE PRESENTS:
(i) The undersigned, XXXX PARAMUS AFFILIATES is the Owner and Landlord
("Landlord") under a real property lease with Lessee in the following described
real property (the "Real Property"): That certain real property known as Xxxx
Centre II located at One Xxxx Centre Drive in the County of Bergen State of New
Jersey.
(ii) Long Beach Acceptance Corp. ("Lessee") has entered into or will
enter into a Master Equipment Lease and Schedules thereto with Fleetwood
Financial Corp. ("Lessor") (the "Lease"); said Lease covers certain personal
property (the "Personal Property"), which is or will be located upon the Real
Property, and such Personal Property is described in the Lease and is further
described on Exhibit A annexed hereto and made a part hereof.
(iii) Lessor, as a condition to entering into the Master Equipment
Lease, requires that the undersigned Landlord agrees to allow the removal by
Lessor of the Personal Property from the Real Property upon the terms and
conditions set forth below.
NOW, THEREFORE, for good and sufficient consideration, receipt of which
is hereby acknowledged, the undersigned agrees to the placing of the Personal
Property on the Real Property, and agrees as follows:
1. The Personal Property shall be considered to be personal property
and shall not be considered part of the Real Property regardless of whether or
by what means it is or may become attached or affixed to the Real Property.
2. The undersigned hereby consents to the Lessor taking a security
interest in such Personal Property, and has no interest, and will not claim any
interest, in the Personal Property; provided, however, that this shall not be
deemed to impair Landlord's rights to (a) bid for and purchase such Personal
Property at a public or private sale; (b) any surplus monies arising out of a
sale of the Personal Property; or (c) file proofs of claim or otherwise
participate in insolvency or bankruptcy proceedings involving Lessee or the
Personal Property.
3. The undersigned will permit Lessor upon reasonable advance written
notice to Landlord, and at times reasonably acceptable to Landlord, to enter
upon the Real Property for the purpose of exercising any right it may have under
the terms of the Lease, or otherwise including, without limitation, the right to
remove the Personal Property; provided that Lessor indemnifies Landlord and
holds it harmless from and against any other person, corporation or entity
claiming to have any interest or title in or to the Personal Property. Landlord
agrees to such removal of Personal Property on the condition, also, that its
permission does not extend to the removal of leasehold improvements. If Lessor,
in removing the Personal Property, damages any improvements of the undersigned
on the Real Property, Lessor will at its expense, immediately cause same to be
repaired.
4. Prior to the removal of the Personal Property from the Real Property
by Lessor, Lessor shall post a security deposit or other reasonable assurance
with Landlord to cover the cost of any damage to the Real Property caused by
such removal.
5. Lessor hereby waives any claim or cause of action against Landlord
for injury or damage to person or property, whether due to Landlord's negligence
or otherwise, or any other claim whatsoever in connection with or arising out of
Lessor's entry upon the Real Property and/or its removal of the Personal
Property therefrom.
6. This agreement shall be binding upon the heirs, successors and
assigns of the undersigned.
IN WITNESS WHEREOF, the undersigned has executed this instrument
at _______________________, this 23rd day of February, 1998.
FLEETWOOD FINANCIAL CORP., LESSOR
/s/ [ILLEGIBLE]
---------------------------------
XXXX PARAMUS AFFILIATES, LANDLORD
By: Cali-Sub I, Inc.
General Managing Partner
/s/ Xxxxx X. Xxxxxx
---------------------------------
Sr. V. President
EXHIBIT A
Equipment Schedules to Master
Lease Agreements No. 3162 & 3057
See the attached Exhibit "A" (Schedule of Equipment)
All equipment which is stated as located at 000 Xxxxxxxxxxxx Xxxx, Xxxxxxx,
XX 00000 on the Exhibit "A" (Schedule of Equipment) is now located at Xxxx
Centre II, Xxx Xxxx Xxxxxx Xxxxx, 0xx Xxxxx, Xxxxxxx, XX 00000.
FIRST AMENDMENT TO LEASE
THIS AMENDMENT (hereinafter referred to as this "Amendment") made the
30th day of June, 1998, between XXXX-XXXX REALTY, L.P., successor in interest
to XXXX PARAMUS AFFILIATES (hereinafter referred to as "Lessor"), whose
address is c/o Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 and LONG BEACH ACCEPTANCE CORP. (hereinafter referred to as
"Lessee"), whose address is Xxx Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Lessor's predecessor, Xxxx Paramus Affiliates and Lessee
entered into a Lease dated March 5, 1997 (hereinafter referred to as the
"Lease"), whereby Lessee is presently in possession of premises containing
approximately 34,759 gross rentable square feet of space consisting of 15,504
gross rentable square feet on the first (1st) floor and 19,755 gross rentable
square feet on the fourth (4th) floor (hereinafter referred to as the "Existing
Premises") in the building known as Xxxx Centre II located at Xxx Xxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxx Xxxxxx (hereinafter referred to as the "Building"); and
WHEREAS, on December 11, 1997, Xxxx-Xxxx Realty, L.P. succeeded to the
interest of Xxxx Paramus Affiliates; and
WHEREAS, the Lease contained an obligation on the thirteenth month
after the Commencement Date of the Lease for the Lessor to provide an additional
6,150 gross rentable square feet ("6,150 Space") to Lessee, and the Lessee had
an obligation to lease the 6,150 Space from the Lessor; and
WHEREAS, the parties hereto desire to amend the Lease in the respects
and on the conditions hereinafter stated.
NOW, THEREFORE, Lessor and Lessee agree as follows:
1. For purposes of this Amendment, capitalized terms shall have the
meanings ascribed to them in the Lease unless otherwise defined herein.
2. Lessor shall have no obligation now or in the future to provide to
Lessee the 6,150 Space.
3. Lessee shall have no obligation now or in the future to lease the
6,150 Space from Lessor.
4. Lessor and Lessee hereby agree that all references to the 6,150
space including Sections 1, 3(b), 37 and 42(a) in the Lease are hereby deleted
with no further obligation of either party as it pertains to that space.
5. As of the date hereof, Lessee represents, warrants and covenants
that Lessor is not in default under any of its obligations under the Lease and
that to the best of Lessee's knowledge, Lessee is not in default of any of its
obligations under the Lease and no event has occurred which, with the passage of
time or the giving of notice, or both, would constitute a default by either
Lessor or Lessee thereunder.
6. As of the date hereof, Lessor represents, warrants and covenants
that Lessee is not in default under any of its obligations under the Lease and
that to the best of Lessor's knowledge, Lessor is not in default of any of its
obligations under the Lease and no event has occurred which, with the passage of
time or the giving of notice, or both, would constitute a default by either
Lessee or Lessor thereunder.
7. Except as amended by this Amendment, the Lease and all the
covenants, agreements, terms, provisions and conditions thereof shall remain in
full force and effect and are hereby ratified and affirmed. The covenants,
agreements, terms, provisions and conditions contained in this Amendment shall
bind and inure to the benefit of the parties hereto and their respective
successors and except as otherwise provided in the Lease as amended by this
Amendment, their respective assigns. In the event of any conflict between the
terms contained in this Amendment and the Lease, the terms herein contained
shall supersede and control the obligations and liabilities of the parties.
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IN WITNESS WHEREOF, Lessor and Lessee have hereunto set their hands and
seals as of the date and year first above written, and acknowledge the one to
the other that they possess the requisite authority to enter into this
transaction and to sign this Amendment.
XXXX-XXXX REALTY, L.P.,
LESSOR
By: Xxxx-Xxxx Realty Corporation
General Partner
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxx
Title: Sr. V.P. - Leasing
LONG BEACH ACCEPTANCE CORP., LESSEE
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President and
Secretary
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