EXHIBIT 10.1
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE (this "Assignment") is made this
18th day of October, 2001 from STACK PHARMACEUTICALS, INC., having an office at
0 Xxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Assignor") to THE MEDICINES
COMPANY, having an office at 0 Xxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx 00000
("Assignee").
W-I-T-N-E-S-S-E-T-H
WHEREAS, Assignor is the tenant under a lease dated February 28, 2000 (the
"Lease"), between Assignor and XXXX-XXXX XXXXXX REALTY, L.L.C., whose address is
00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Landlord") for certain property
consisting of approximately 2,358 rentable square feet of second floor space in
the office building located at 0 Xxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx and further
identified on Schedule A attached hereto (the "Premises"); and
WHEREAS, Assignor has agreed to assign and Assignee has agreed to assume
all of Assignor's right, title and interest, as tenant, in and to the Lease and
the Premises.
NOW, THEREFORE, for valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged, it is agreed:
1. ASSIGNMENT BY ASSIGNOR. Assignor hereby assigns to Assignee, its
heirs, successors and assigns, all of Assignor's right, title and interest in
and to the Lease and Premises, effective as of November 1, 2001 (the
"Effective Date").
2. ASSUMPTION BY ASSIGNEE. As of the Effective Date, Assignee hereby
assumes the Lease and all conditions, covenants, and obligations thereunder
imposed on Assignor and agrees to keep and perform all such conditions,
covenants and obligations in the manner and within the time periods set forth in
the Lease.
3. USE. Assignee shall use the Premises for general office purposes
in accordance with the Lease.
4. NOTICES. As of the Effective Date, all notices to the tenant
required by the Lease shall be forwarded to The Medicines Company, 0 Xxxxxx
Xxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, attention: Mr. Xxxxx Xxxxx.
INTENDING TO BE LEGALLY BOUND, this Assignment has been duly executed as
of the date first above appearing.
WITNESS: ASSIGNOR:
STACK PHARMACEUTICALS, INC.
/S/ XXXXXXX XXXXXXX BY: /S/ XXXXX XXXXX
------------------------ ------------------------------
NAME: XXXXX XXXXX
TITLE: PRESIDENT
ASSIGNEE:
THE MEDICINES COMPANY
/S/ XXXXX X. XXXXX BY: /S/ XXXXX XXXXXXXXXX
------------------------ ------------------------------
NAME: XXXXX XXXXXXXXXX
TITLE: SVP BUSINESS DEVELOPMENT
LEASE
FROM:
XXXX-XXXX XXXXXX REALTY L.L.C.
LESSOR
TO:
STACK PHARMACEUTICALS, INC.
LESSEE
BUILDING:
0 XXXXXX XXX
XXXXXXXXXX, XXX XXXXXX
TABLE OF CONTENTS
1. DESCRIPTION........................................................... 4
2. TERM.................................................................. 4
3. BASIC RENT............................................................ 4
4. USE AND OCCUPANCY..................................................... 4
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL............................. 4
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS................................ 7
7. ACTIVITIES INCREASING FIRE INSURANCE RATES............................ 7
8. ASSIGNMENT AND SUBLEASE............................................... 7
9. COMPLIANCE WITH RULES AND REGULATIONS................................. 10
10. DAMAGES TO BUILDING................................................... 10
11. EMINENT DOMAIN........................................................ 11
12. INSOLVENCY OF LESSEE.................................................. 11
13. LESSOR'S REMEDIES ON DEFAULT.......................................... 12
14. DEFICIENCY............................................................ 12
15. SUBORDINATION OF LEASE................................................ 13
16. SECURITY DEPOSIT...................................................... 13
17. RIGHT TO CURE LESSEE'S BREACH......................................... 14
18. MECHANIC'S LIENS...................................................... 14
19. RIGHT TO INSPECT AND REPAIR........................................... 14
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION................ 14
21. INTERRUPTION OF SERVICES OR USE....................................... 15
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE........................... 15
23. ADDITIONAL RENT....................................................... 16
24. LESSEE'S ESTOPPEL..................................................... 19
25. HOLDOVER TENANCY...................................................... 19
26. RIGHT TO SHOW PREMISES................................................ 19
27. LESSOR'S WORK - LESSEE'S DRAWINGS..................................... 19
28. WAIVER OF TRIAL BY JURY............................................... 20
29. LATE CHARGE........................................................... 20
30. LESSEE'S INSURANCE.................................................... 20
i
31. NO OTHER REPRESENTATIONS.............................................. 22
32. QUIET ENJOYMENT....................................................... 22
33. INDEMNITY............................................................. 22
34. ARTICLE HEADINGS...................................................... 22
35. APPLICABILITY TO HEIRS AND ASSIGNS.................................... 22
36. OUTSIDE PARKING SPACES................................................ 23
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY............................... 23
38. PARTIAL INVALIDITY.................................................... 23
39. LESSEE'S BROKER....................................................... 23
40. PERSONAL LIABILITY.................................................... 23
41. NO OPTION............................................................. 24
42. DEFINITIONS........................................................... 24
43. LEASE COMMENCEMENT.................................................... 25
44. NOTICES............................................................... 25
45. ACCORD AND SATISFACTION............................................... 25
46. EFFECT OF WAIVERS..................................................... 25
47. LEASE CONDITION....................................................... 25
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE............................ 25
49. LESSOR'S RESERVED RIGHT............................................... 26
50. CORPORATE AUTHORITY................................................... 26
51. AFTER-HOURS USE....................................................... 26
52. LESSEE'S EXPANSION/RELOCATION......................................... 26
53. BUILDING PERMIT....................................................... 27
ii
LEASE, is made the 28th day of February, 2000 between Xxxx-Xxxx Xxxxxx
Realty L.L.C. ("Lessor") whose address is c/o Xxxx-Xxxx Realty Corporation, 00
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and STACK PHARMACEUTICALS, INC.
("Lessee") with an office at 0 Xxxxx Xxxxx, Xxx Xxxxx XX 00000.
PREAMBLE
BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the following terms
whenever used in this Lease shall have only the meanings set forth in this
section, unless such meanings are expressly modified, limited or expanded
elsewhere herein.
1. ADDITIONAL RENT shall mean all sums in addition to Fixed Basic Rent
payable by Lessee to Lessor pursuant to the provisions of the Lease.
2. BASE PERIOD COSTS shall mean the following:
A. Base Operating Costs: Those Operating Costs incurred during Calendar
Year 2000.
B. Base Real Estate Taxes: Those Real Estate Taxes incurred during
Calendar Year 2000.
C. Base Utility and Energy Costs: Those Utility and Energy Costs
incurred during Calendar Year 2000.
3. BUILDING shall mean 0 Xxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx.
4. BUILDING HOLIDAYS shall be those shown on Exhibit E.
5. BUILDING HOURS shall be Monday through Friday, 8:00 a.m. to 6:00 p.m., but
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 operating of the Building and Office Building Area.
6. COMMENCEMENT DATE is that date which is the earlier of (i) the date upon
which Lessee, or anyone claiming under or through Lessee, commences using
the Premises for the conduct of business or (ii) the date which is
thirty-one (31) days after the date of this Lease.
7. DEMISED PREMISES OR PREMISES shall be deemed to be 2,358 gross rentable
square feet on the second (2nd) floor as shown on Exhibit A hereto, which
includes an allocable share of the Common Facilities as defined in Article
42(b).
8. EXHIBITS shall be the following, attached to this Lease and
incorporated herein and made a part hereof.
Exhibit A Location of Premises
Exhibit X-0 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxx X Rules and Regulations
Exhibit C Lessee's Work
Exhibit C-1 Air Conditioning & Heating Design Standards
Exhibit D Cleaning Services
Exhibit E Building Holidays
Exhibit F Tenant Estoppel Certificate
Exhibit G Commencement Date Agreement
Exhibit H Letter of Credit Form
1
9. EXPIRATION DATE shall be the last day of the month in which the day before
the fifth (5th) anniversary of the Commencement Date occurs.
10. FIXED BASIC RENT shall mean: THREE HUNDRED FORTY-SEVEN THOUSAND EIGHT
HUNDRED FIVE AND 0/100 DOLLARS ($347,805.00) for the Term payable as
follows:
A. Yearly Rate: $69,561.00
B. Monthly Installment: $ 5,796.75
11. LESSEE'S BROKER shall mean Xxxxx Xxxxxx New Jersey L.L.C.
12. LESSEE'S PERCENTAGE shall be 1.6% subject to adjustment as provided for
in Article 42(d).
13. OFFICE BUILDING AREA is as set forth on Exhibit A-1.
14. PARKING SPACES shall mean a total of nine (9) unassigned surface
parking spaces.
15. PERMITTED USE shall be general office use and for no other purpose.
16. POSSESSION DATE shall be the date of this Lease. At anytime after the
Possession Date and prior to the Commencement Date, Lessee and its
agents, servants, employees and contractors may enter the Premises for
purposes of performing Lessee's work and alterations in compliance with
Exhibit C attached hereto. Such entry shall constitute the agreement
of Lessee that none of such parties nor their work, equipment, or
materials will interfere with the work of Lessor in the Premises. All
terms and conditions, other than the obligation to pay Basic Rent,
shall be in full force and effect from the Possession Date to the
Commencement Date.
17. SECURITY DEPOSIT shall be in the amount of THIRTY-FIVE THOUSAND
SEVENTY-FIVE AND 25/100 DOLLARS ($35,075.25). Lessee may deliver to
Lessor, in lieu of the cash deposit set forth in this paragraph an
irrevocable negotiable letter of credit issued by and drawn upon such
commercial bank selected by Lessee and acceptable to Lessor (at its
sole discretion) and in form and content acceptable to Lessor (also at
its sole discretion) (the form attached hereto as Exhibit H shall be
deemed acceptable to Lessor) for the account of Lessor, in the amount of
THIRTY-FIVE THOUSAND SEVENTY-FIVE AND 25/100 DOLLARS ($35,075.25). Said
letter of credit shall be for a term of not less than 1 year and shall be
renewed by Lessee (without notice from Lessor) no later than 45 days prior
to its expiration, and the expiration of each replacement thereof, until
Lessor shall be required to return the security to Lessee pursuant to the
terms of this Lease but in no event earlier than 90 days after the
Expiration Date, and each such renewed letter of credit shall be delivered
to Lessor no later than 45 days prior to the expiration of the letter of
credit then held by Lessor. If any portion of the security deposit shall
be utilized by Lessor in the manner permitted by this Lease, Lessee shall,
within five (5) days after request by Lessor, replenish the security
account by depositing with Lessor, in cash or by letter of credit, an
amount equal to that utilized by Lessor. Failure of Lessee to comply
strictly with the provisions of this paragraph shall constitute a material
breach of this Lease and Lessor shall be entitled to present the letter of
credit then held by it for payment (without notice to Lessee). If the cash
security is converted into a letter of credit, the provisions with respect
to letters of credit shall apply (with the necessary changes in points of
detail) to such letter of credit deposit. In the event of a bank failure
or insolvency affecting the letter of credit, Lessee shall replace same
within 20 days after being requested to do so by Lessor.
Provided that this Lease is in full force and effect, Lessee has complied
with each of its obligations under this Lease and the net worth of Lessee
on each of the Reduction Dates (as such term is defined below) is not less
than the net worth of Lessee on the date of this Lease, then on the last
day of each of the first three Lease Years (each such date being a
"Reduction Date"), the security deposit shall be reduced by SEVEN THOUSAND
EIGHT HUNDRED TWENTY-SEVEN AND 25/100 DOLLARS ($7,827.25), so that the
security deposit for the last two (2) Lease Years shall be ELEVEN THOUSAND
FIVE HUNDRED NINETY-THREE AND 50/100 ($11,593.50).
2
18. TERM shall mean five (5) years from the Commencement Date, plus the number
of days, if any, to have the lease expire on the last day of a calendar
month, unless extended pursuant to any option contained herein.
3
W I T N E S S E T H
For and in consideration of the covenants herein contained, and upon the
terms and conditions herein set forth, Lessor and Lessee agree as follows:
1. DESCRIPTION:
Lessor hereby leases to Lessee, and Lessee hereby hires from Lessor, the
Premises as defined in the Preamble which includes an allocable share of
the Common Facilities, as shown on the plan or plans, initialed by the
parties hereto, marked Exhibit A attached hereto and made part of this
Lease in the Building as defined in the Preamble, (hereinafter called the
"Building") which is situated on that certain parcel of land (hereinafter
called "Office Building Area") as described on Exhibit A-1 attached hereto
and made part of this Lease, together, with the right to use in common
with other lessees of the Building, their invitees, customers and
employees, those public areas of the Common Facilities as hereinafter
defined.
2. TERM:
The Premises are leased for a term to commence on the Commencement Date,
and to end at 12:00 midnight on the Expiration Date, all as defined in the
Preamble.
3. BASIC RENT:
The Lessee shall pay to the Lessor during the Term, the Fixed Basic Rent
as defined in the Preamble (hereinafter called "Fixed Basic Rent") payable
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts.
The Fixed Basic Rent shall accrue at the Yearly Rate as defined in the
Preamble and shall be payable, in advance, on the first day of each
calendar month during the Term at the Monthly Installments as defined in
the Preamble, except that a proportionately lesser sum may be paid for the
first and last months of the Term of this Lease if the Term commences on a
day other than the first day of the month, in accordance with the
provisions of this Lease herein set forth. Lessor acknowledges receipt
from Lessee of the first monthly installment by check, subject to
collection, for Fixed Basic Rent for the first month of the Lease Term.
Lessee shall pay Fixed Basic Rent, and any Additional Rent as hereinafter
provided, to Lessor at Lessor's above stated address, or at such other
place as Lessor may designate in writing, without demand and without
counterclaim, deduction or set off.
4. USE AND OCCUPANCY:
Lessee shall use and occupy the Premises for the Permitted Use as defined
in the Preamble.
If at any time during the Term of this Lease, Lessee adopts a policy
prohibiting Lessee, its employees, agents or invitees from smoking within
the Premises, Lessee shall establish a designated area within the Premises
where Lessee shall permit smoking. Lessee shall establish such designated
area at Lessee's sole expense in accordance with Article 6 of this Lease.
Such designated area shall include, among other things, adequate area,
ventilation and fire safety equipment. Lessee hereby acknowledges that
such designated area is necessary and reasonable to prevent smoking by
Lessee, Lessee's employees, agents and invitees in unauthorized areas of
the Building or Common Facilities in violation of relevant fire and safety
laws and regulations and to prevent fire hazards within the Premises.
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL:
(a) Lessee shall commit no act of waste and shall take good care of the
Premises and the fixtures and appurtenances therein, and shall, in
the use and occupancy of the Premises,
4
conform to all 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 particular use of the Premises, this covenant to
survive the expiration or sooner termination of the Lease.
Notwithstanding anything to the contrary contained in the Lease,
Lessee shall not be required to make any repairs, alterations or
modifications to the Premises as a result of any laws, orders and
regulations of the federal, state and municipal governments or any
of their departments affecting the Premises unless the need for such
repairs, alterations or modifications arises from the particular
manner in which Lessee uses the Premises, and repairs, alterations
or modifications to the Premises as a result of any laws, orders and
regulations of the federal, state and municipal governments or any
of their departments affecting the Premises which are required of
all owners and tenants generally, and do not arise from the
particular manner in which an owner or tenant uses its premises,
shall be undertaken by and at the sole cost and expense of Lessor
and same may be included in Operating Costs pursuant to Article 23
of this Lease. Lessor shall, subject to the same being included in
Operating Costs (except as expressly excluded in the immediately
preceding sentence), make all necessary repairs to the Premises,
Common Facilities and to the assigned parking areas, if any, except
where the repair has been made necessary by misuse or neglect by
Lessee or Lessee's agents, servants, visitors or licensees, in which
event Lessor shall nevertheless make the repair but Lessee shall pay
to Lessor, as Additional Rent, immediately upon demand, the costs
therefor. All improvements made by Lessee to the Premises, which are
so attached 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.
ENVIRONMENTAL
(b) COMPLIANCE WITH ENVIRONMENTAL LAWS. Lessee shall, at Lessee's own
expense, promptly comply with each and every federal, state, county
and municipal environmental law, ordinance, rule, regulation, order,
directive and requirement, now or hereafter existing ("Environmental
Laws"), applicable to the Premises, Lessee, Lessee's operations at
the Premises, or all of them, except if there is any violation of
Environmental Laws with regard to the Premises existing at the date
of this Lease, Lessor shall comply therewith at its sole cost and
expense, which shall not be included in Operating Costs.
(c) ISRA COMPLIANCE. Lessee shall, at Lessee's own expense, comply with
the Industrial Site Recovery Act, N.J. S.A. 13:1K-6 et seq., the
regulations promulgated thereunder and any amending and successor
legislation and regulations ("ISRA"), if and to the extent the need
for such compliance is triggered by Lessee having become an
Industrial Establishment (as defined in ISRA) with respect to its
use of the Premises.
(d) INFORMATION TO LESSOR. At no expense to Lessor, Lessee shall
promptly provide all information and sign all documents reasonably
requested by Lessor with respect to compliance with Environmental
Laws.
(e) LESSOR AUDIT. Lessee shall permit Lessor and its representatives
access to the Premises, from time to time, to conduct an
environmental assessment, investigation and sampling, all at
Lessee's own expense.
(f) LESSEE REMEDIATION. Should any assessment, investigation or sampling
reveal the existence of any spill, discharge or placement of
Contaminants in, on, under, or
5
about, or migrating from or onto the Premises, the Building or the
Office Building Area, as a result of the action or omission of
Lessee or a "Lessee Representative," then, in addition to being in
default under this Lease and Lessor having all rights available to
Lessor under this Lease and by law by reason of such default, Lessee
shall, at Lessee's own expense, in accordance with Environmental
Laws, undertake all action required by Lessor and any governmental
authority, including, without limitation, promptly obtaining and
delivering to Lessor an unconditional No Further Action Letter. For
purposes of this Article, the term "Lessee's Representative" shall
mean any shareholder, officer, director, member, partner, employee,
agent, licensee, assignee, sublessee or invitee of Lessee, or any
third party for whom Lessee is legally responsible. In no event
shall any of Lessee's remedial action involve engineering or
institutional controls, a groundwater classification exception area
or well restriction area, and Lessee's remedial action shall meet
the most stringent published or unpublished remediation standards
for soil, surface water, groundwater and drinking water.
Promptly upon completion of all required investigatory and remedial
activities, Lessee shall, at Lessee's own expense, to Lessor's
satisfaction, restore the affected areas of the Premises, the
Building or the Office Building Area, as the case may be, from any
damage or condition caused by the investigatory or remedial work.
(g) ENVIRONMENTAL QUESTIONNAIRE. Upon Lessor's request,
contemporaneously with the signing and delivery of this Lease, and
thereafter upon renewal of the lease, if at all, Lessee shall
complete, execute and deliver to Lessor an environmental
questionnaire in form and substance reasonably satisfactory to
Lessor.
(h) ENVIRONMENTAL DOCUMENTS AND CONDITIONS. For purposes of this
Article, the term "Environmental Documents" shall mean all
environmental documentation concerning the Building or the Office
Building Area, of which the Premises is a part, or its environs, in
the possession or under the control of Lessee, including, without
limitation, plans, reports, correspondence and submissions. During
the term of this Lease and subsequently, promptly upon receipt by
Lessee or Lessee's Representatives, Lessee shall deliver to Lessor
all Environmental Documents concerning or generated by or on behalf
of Lessee, whether currently or hereafter existing. In addition,
Lessee shall promptly notify Lessor of any environmental condition
of which Lessee has knowledge, which may exist in, on, under, or
about, or may be migrating from or onto the Building or the Office
Building Area.
(i) LESSOR'S RIGHT TO PERFORM LESSEE'S OBLIGATIONS. Notwithstanding
anything to the contrary set forth in this Lease, in the event,
pursuant to this Lease, Lessee is required to undertake any
sampling, assessment, investigation or remediation with respect to
the Premises, the Building or the Office Building Area, as the case
may be, then, at Lessor's discretion, Lessor shall have the right,
upon notice to Lessee, from time to time, to perform such activities
at Lessee's expense if Lessee has failed to do so with reasonable
promptness, and all sums reasonably incurred by Lessor shall be paid
by Lessee, as Additional Rent, upon demand.
(j) INDEMNITY. Lessee shall indemnify, defend and hold harmless Lessor,
Lessor's officers, directors, shareholders, employees and personal
or legal representatives from and against any and all claims,
liabilities, losses, damages, penalties and costs, foreseen or
unforeseen, including, without limitation, counsel, engineering and
other professional or expert fees, which an indemnified party may
incur resulting directly or indirectly, wholly or partly from
Lessee's actions or omissions with regard to Lessee's obligations
under this Article.
(k) SURVIVAL. This Article shall survive the expiration or earlier
termination of this lease. Lessee's failure to abide by the terms of
this Article shall be restrainable or enforceable, as the case may
be, by injunction.
(l) INTERPRETATION. The obligations imposed upon Lessee under
subparagraphs (a) through (j) above are in addition to and are not
intended to limit, but to expand upon, the obligations imposed upon
Lessee under this Article 5. As used in this Article, the term
"Contaminants" shall include, without limitation, any regulated
substance, toxic substance, hazardous substance, hazardous waste,
pollution, pollutant, contaminant,
6
petroleum, asbestos or polychlorinated biphenyls, as defined or
referred to in any Environmental Laws. Where a law or regulation
defines any of these terms more broadly then another, the broader
definition shall apply.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:
Lessee shall not, without first obtaining the written consent of Lessor,
make any alterations, additions or improvements in, to or about the
Premises.
7. ACTIVITIES INCREASING FIRE INSURANCE RATES:
Lessee shall not do or suffer anything to be done on the Premises which
will increase the rate of fire insurance on the Building.
8. ASSIGNMENT AND SUBLEASE:
Provided Lessee is not in default of this Lease beyond notice and
expiration of applicable grace periods, Lessee may assign or sublease the
within Lease to any party subject to the following:
a. In the event Lessee desires to assign this Lease or sublease all or
part of the Premises to any other party, the terms and conditions of
such assignment or sublease shall be communicated to the Lessor in
writing no less than sixty (60) days prior to the effective date of
any such sublease or assignment, and, prior to such effective date,
the Lessor shall have the option, exercisable in writing to the
Lessee, to: (i) sublease such space from Lessee at the lower rate of
(a) the rental rate per rentable square foot of Fixed Basic Rent and
Additional Rent then payable pursuant to this Lease or (b) the terms
set forth in the proposed sublease, (ii) recapture in the case of
subletting, that portion of the Premises to be sublet or all of the
Premises in the case of an assignment ("Recapture Space") so that
such prospective sublessee or assignee shall then become the sole
Lessee of Lessor hereunder, or (iii) recapture the Recapture Space
for Lessor's own use and the within Lessee shall be fully released
from any and all obligations hereunder with respect to the Recapture
Space.
b. In the event that the Lessor elects not to recapture the Lease or
relet the Premises as hereinabove provided, the Lessee may
nevertheless assign this Lease or sublet the whole or any portion of
the Premises, subject to the Lessor's prior written consent, which
consent shall not be unreasonably withheld or delayed, on the basis
of the following terms and conditions:
i. The Lessee shall provide to the Lessor the name and address of
the assignee or sublessee.
ii. The assignee shall assume, by written instrument, all of the
obligations of this Lease, and a copy of such assumption
agreement shall be furnished to
the Lessor within ten (10) days of its execution. Any sublease
shall expressly acknowledge that said sublessee's rights
against Lessor shall be no greater than those of Lessee.
Lessee further agrees that notwithstanding any such
subletting, no other and further subletting of the Premises by
Lessee or any person claiming through or under Lessee shall or
will be made except upon compliance with and subject to the
provisions of this Article 8.
iii. Each sublease shall provide that it is subject and subordinate
to this Lease and to the matters to which this Lease is or
shall be subordinate, and that in the event of default by
Lessee under this Lease, Lessor may, at its option, take over
all of the right, title and interest of Lessee, as sublessor,
under such sublease, and such sublessee shall, at Lessor's
option, attorn to Lessor pursuant to the then executory
provisions of such sublease, except that Lessor shall not (i)
be liable for any previous act or omission of Lessee under
such
7
sublease or, (ii) be subject to any offset not expressly
provided in such sublease which theretofore accrued to such
sublease to which Lessor has not specifically consented in
writing or by any previous prepayment of more than one month's
rent.
iv. 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 Fixed
Basic Rent and Additional Rent reserved herein, through the
entire Term of this Lease, as the same may be renewed,
extended or otherwise modified.
v. The Lessee and any assignee shall promptly pay to Lessor any
consideration received for any assignment and/or all of the
rent, as and when received, in excess of the Rent required to
be paid by Lessee for the area sublet computed on the basis of
an average square foot rent for the gross square footage
Lessee has leased.
vi. In any event, the acceptance by the Lessor of any rent from
the assignee or from any of the subtenants or the failure of
the Lessor to insist upon a strict performance of any of the
terms, conditions and covenants herein shall not release the
Lessee herein, nor any assignee assuming this Lease, from any
and all of the obligations herein during and for the entire
Term of this Lease.
vii. In Lessor's reasonable judgment, the proposed assignee or
subtenant is engaged in a business or activity, and the
Premises, or the relevant part thereof, will be used in a
manner, which (a) is in keeping with the then standard of the
Building and (b) is limited to the use of the Premises as
general offices.
viii. The proposed assignee or subtenant shall be an entity which
has existed for at least one (1) year and is not then an
occupant of any part of the
Building or any other building then owned by Lessor within a
five-mile radius of the Building.
ix. The proposed assignee or subtenant is not an entity or a
person with whom Lessor is or has been, within the preceding
twelve (12) month period, negotiating to lease space in the
Building.
x. There shall not be more than one (1) subtenant in the
Premises.
xi. Lessee shall not advertise the subtenancy for less than the
then current market rent per rentable square foot for the
Premises as though the Premises were vacant.
xii. Lessee shall not have (a) publicly advertised the availability
of the Premises without prior notice to and approval by
Lessor, nor shall any advertisement state the name (as
distinguished from the address) of the Building or (b) listed
the Premises for subletting or assignment with other than a
broker, agent or representative who waives any entitlement to
a commission or other fee from Lessor in the event of a
recapturing of the Premises;
xiii. The proposed occupancy shall not, in Lessor's reasonable
opinion, increase the density of population using the Demised
Premises to exceed one (1) person per 250 gross rentable
square feet of space or exceed the parking allocation
presently provided for in this Lease;
xiv. The proposed assignee or subtenant shall only use the Premises
for general offices and shall not be engaged in any of the
following:
(a) educational, including but not limited to, instructional
facilities and correspondence schools;
(b) employment agencies;
8
(c) model agencies;
(d) photographic studios or laboratories;
(e) spas, health, physical fitness or exercise salons;
(f) small loan offices,
(g) real estate brokerage or real estate sales offices open
to the general public or construction offices;
(h) medical or dental facilities, including professional
offices, treatment facilities, dispensaries or
laboratories;
(i) federal, state or local government offices;
(j) so-called boiler room operations;
(k) retail stock brokerage offices; and
(l) religious organizations making facilities available to
congregations for uses other than business purposes.
xv. The proposed assignee or subtenant shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity
and shall be subject to the service of process in, and the
jurisdiction of, the state courts of New Jersey.
xvi. Lessor shall require a FIVE HUNDRED AND 00/100 DOLLAR
($500.00) payment to cover its handling charges for each
request for consent to any sublet or assignment prior to its
consideration of the same. Lessee acknowledges that its sole
remedy with respect to any assertion that Lessor's failure to
consent to any sublet or assignment is unreasonable shall be
the remedy of specific performance and Lessee shall have no
other claim or cause of action against Lessor as a result of
Lessor's actions in refusing to consent thereto.
[See Following Page 9A]
c. If Lessee is a corporation other than a corporation whose stock is
listed and traded on a nationally recognized stock exchange, the
provisions of Subsection a. shall apply to a transfer (however
accomplished, whether in a single transaction or in a series of
related or unrelated transactions) of stock (or any other mechanism
such as, by way of example, the issuance of additional stock, a
stock voting agreement or change in class(es) of stock) which
results in a change of control 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 or other entity
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 or other entity 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 (1) the net
worth of Lessee immediately prior to such merger, consolidation or
transfer, or (2) 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 10 days prior to the
effective date of any such transaction.
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
9
The following shall be deemed added to Section 8(b)(xvi) of this Lease:
Notwithstanding the foregoing, if it is judicially determined that Lessor
has acted in bad faith, Lessee's remedies shall not be limited to specific
performance as set forth above.
-9A-
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 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 percent (2%) of the price
sought from Lessor or any change in the terms of payment for such
Disposition shall constitute a new transaction requiring a further
option of first refusal to be given to Lessor hereunder.
e. Without limiting any of the provisions of Articles 12 and 13, if
pursuant to the Federal Bankruptcy Code (herein referred to as 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 the sum of one year's Fixed Basic Rent plus an
amount equal to the Additional Rent for the calendar year preceding
the year in which such assignment is intended to become effective,
which deposit shall be held by Lessor for the balance of the Term,
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 Article 16.
f. Except as specifically set forth above, no portion of the Premises
or of Lessee's interest in this Lease may be acquired by any other
person or entity, whether by assignment, mortgage, sublease,
transfer, operation of law or act of the Lessee, nor shall Lessee
pledge its interest in this Lease or in any security deposit
required hereunder.
9. COMPLIANCE WITH RULES AND REGULATIONS:
Lessee shall observe and comply with the rules and regulations hereinafter
set forth in Exhibit B attached hereto and made a part hereof and with
such further reasonable rules and regulations as Lessor may prescribe, on
written notice to the Lessee, for the safety, care and cleanliness of the
Building and the comfort, quiet and convenience of other occupants of the
Building. Lessee shall not place a load upon any floor of the Premises
exceeding the floor load per square foot area which it was designed to
carry and which is allowed by law. Lessor reserves the right to prescribe
the weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by Lessee, at
Lessee's expense, in settings sufficient, in Lessor's judgement, to absorb
and prevent vibration, noise and annoyance.
10. DAMAGES TO BUILDING:
If the Building is damaged by fire or any other cause to such extent the
cost of restoration, as reasonably estimated by Lessor, will equal or
exceed twenty-five percent (25%) of the
10
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 date of damage, give Lessee a notice of election
to terminate this Lease, or if the cost of restoration will equal or
exceed fifty percent (50%) of such replacement value and if the Premises
shall not be reasonably usable for the purpose for which they are leased
hereunder, or if restoration of the damage will require more than one
hundred eighty (180) days to complete or if such damage is not fully
repaired and reasonable access to the Premises restored within one hundred
eighty (180) days from the date of damage, subject, however, to Force
Majeure, then, in any such event, Lessee may, no later than the sixtieth
(60th) day following the date of damage or following the end of said one
hundred eighty (180) day period, 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 Fixed Basic Rent, and any Additional
Rent, shall be apportioned as of the date of said surrender and any Fixed
Basic Rent or Additional Rent paid for any period beyond said date shall
be repaid to Lessee, 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, and 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
Fixed Basic Rent, depending on the period for which and the extent to
which the Premises are not reasonably usable for the purpose for which
they are leased hereunder. The words "restoration" and "restore" as used
in this Article 10 shall include repairs. If the damage results from the
fault of the Lessee, Lessee's agents, servants, visitors or licensees,
Lessee shall not be entitled to any abatement or reduction in Fixed Basic
Rent, except to the extent of any rent insurance received by Lessor.
11. EMINENT DOMAIN:
If Lessee's use of the Premises is materially affected due to the taking
by eminent domain of (a) the Premises or any part thereof or any estate
therein; or (b) any other part of the Building; then, in either event,
this Lease shall terminate on the date when title vests pursuant to such
taking. The Fixed Basic Rent, and any Additional Rent, shall be
apportioned as of said termination date and any Fixed Basic Rent or
Additional Rent paid for any period beyond said date, shall be repaid to
Lessee. 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 the Lessor's property, and for moving expenses, provided
the same shall, in no way, affect or diminish Lessor's award. In the event
of a partial taking which does not effect a termination of this Lease but
does deprive Lessee of the use of a portion of the Premises, there shall
either be an abatement or an equitable reduction of the Fixed Basic Rent,
and 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.
12. INSOLVENCY OF LESSEE:
Either (a) the appointment of a receiver to take possession of all or
substantially all of the assets of Lessee, or, (b) a general assignment by
Lessee for the benefit of creditors, or, (c) any action taken or suffered
by Lessee under any insolvency or bankruptcy act, shall constitute a
default of this Lease by Lessee, and Lessor may terminate this Lease
forthwith and upon notice of such termination Lessee's right to possession
of the Premises shall cease, and Lessee shall then quit and surrender the
Premises to Lessor but Lessee shall remain liable as hereinafter provided
in Article 14 hereof.
11
13. LESSOR'S REMEDIES ON DEFAULT:
If Lessee defaults in the payment of Fixed Basic Rent, or any Additional
Rent, or default in the performance of any of the other covenants and
conditions hereof or permits the Premises to become deserted, abandoned or
vacated, Lessor may give Lessee notice of such default, and if Lessee does
not cure any Fixed Basic Rent or Additional Rent default within five (5)
days or other default within fifteen (15) days after giving of such notice
(or if such other default is of such nature that it cannot be completely
cured within such period, Lessee does not commence such curing within
such fifteen (15) days and thereafter proceed with reasonable diligence
and in good faith to cure such default), then Lessor may terminate this
Lease on not less than ten (10) days notice to Lessee, and on the date
specified in said notice, Lessee's right to possession of the Premises
shall cease but Lessee shall remain liable as hereinafter provided. If
this Lease shall have been so terminated by Lessor pursuant to Articles 12
or 13 hereof, Lessor may at any time thereafter resume possession of the
Premises by any lawful means and remove Lessee or other occupants and
their effects. Lessee shall pay to Lessor, on demand, such expenses as
Lessor may incur, including, without limitation, court costs and
reasonable attorney's fees and disbursements, in enforcing the performance
of any obligation of Lessee under this Lease.
14. DEFICIENCY:
In any case where Lessor has recovered possession of the Premises by
reason of Lessee's default, Lessor may, at Lessor's option, occupy the
Premises or cause the Premises to be redecorated, altered, divided,
consolidated with other adjoining premises or otherwise changed or
prepared for reletting, and may relet the Premises or any part thereof, as
agent of Lessee or otherwise, for a term or terms to expire prior to, at
the same time as or subsequent to, the original Expiration Date of this
Lease, at Lessor's option and receive the rent therefor. Rent so received
shall be applied first to the payment of such expenses as Lessor may have
incurred in connection with the recovery of possession, redecorating,
altering, dividing, consolidating with other adjoining premises, or
otherwise changing or preparing for reletting, and the reletting,
including brokerage and reasonable attorney's fees, and then to the
payment of damages in amounts equal to the Fixed Basic Rent and Additional
Rent hereunder and to the costs and expenses of performance of the other
covenants of Lessee as herein provided. Lessee agrees, in any such case,
whether or not Lessor has relet, to pay to Lessor damages equal to the
Fixed Basic Rent and Additional Rent from the date of such default to the
date of expiration of the term demised and other sums herein agreed to be
paid by Lessee, less the net proceeds of the reletting, if any, received
by Lessor during the remainder of the unexpired term hereof, as
ascertained from time to time, and the same shall be payable by Lessee on
the several rent days above specified. Lessee shall not be entitled to any
surplus accruing as a result of any such reletting. In reletting the
Premises as aforesaid, Lessor may grant rent concessions, and Lessee shall
not be credited therewith. No such reletting shall constitute a surrender
and acceptance or be deemed evidence thereof. If Lessor elects, pursuant
hereto, actually to occupy and use the Premises or any part thereof during
any part of the balance of the Term as originally fixed or since extended,
there shall be allowed against Lessee's obligation for rent or damages as
herein defined, during the period of Lessor's occupancy, the reasonable
value of such occupancy, not to exceed, in any event, the Fixed Basic Rent
and Additional Rent herein reserved and such occupancy shall not be
construed as a release of Lessee's liability hereunder.
Alternatively, in any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may at Lessor's option, and
at any time thereafter, and without notice or other action by Lessor, and
without prejudice to any other rights or remedies it might have hereunder
or at law or equity, become entitled to recover from Lessee, as Damages
for such breach, in addition to such other sums herein agreed to be paid
by Lessee, to the date of re-entry, expiration and/or dispossess, an
amount equal to the difference between the Fixed Basic Rent and Additional
Rent reserved in this Lease from the date of such default to the date of
Expiration of the original Term 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
12
between an installment of Fixed Basic Rent and Additional Rent thereafter
becoming due and the fair and reasonable rental value of the Premises for
the period for which such installment was payable shall be discounted to
the date of such default at the rate of not more than six percent (6%) per
annum.
Lessee hereby waives all right of redemption to which Lessee or any person
under Lessee might be entitled by any law now or hereafter in force.
Lessor's remedies hereunder are in addition to any remedy allowed by law.
15. SUBORDINATION OF LEASE:
This Lease shall, at Lessor's option, or at the option of any holder of
any underlying lease or holder of any mortgages or trust deed, be subject
and subordinate to any such underlying leases and to any such mortgages or
trust deed which may now or hereafter affect the real property of which
the Premises form a part, and also to all renewals, modifications,
consolidations and replacements of said underlying leases and said
mortgages or trust deed. 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
mortgages or trust deed or by any of the lessors under such underlying
leases. Lessee hereby appoints Lessor attorney-in-fact, irrevocably, to
execute and deliver any such instrument for Lessee. If any underlying
lease to which this Lease is subject terminates, Lessee shall, on timely
request, attorn to the owner of the reversion.
16. SECURITY DEPOSIT:
In the event of the insolvency of Lessee, or in the event of the entry of
a judgment 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 Deposit in an amount which in
Lessor's sole judgment would be sufficient 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 Article 16 within ten (10) days after Lessor's written
demand shall constitute a material breach of this Lease by Lessee.
If Lessor applies any part of said Security Deposit to cure any default of
Lessee, Lessee shall, on demand, deposit with Lessor the amount so applied
so that Lessor shall have the full Security Deposit on hand at all times
during the Term of this Lease. In the event of a bona fide sale, subject
to this Lease, Lessor shall have the right to transfer the Security
Deposit to the vendee, and Lessor shall be considered released by Lessee
from all liability for the return of the Security Deposit; and lessee
agrees to look solely to the new lessor for the return of the Security
Deposit, and it is agreed that this shall apply to every transfer or
assignment made of the Security Deposit to the new lessor. Provided this
Lease is not in default, the Security Deposit (less any portions thereof
used, applied or retained by Lessor in accordance with the provisions of
this Article 16), shall be returned to Lessee after the expiration or
sooner termination of this Lease and after delivery of the entire Premises
to Lessor in accordance with the provisions of this Lease. Lessee
covenants that it will not assign or encumber or attempt to assign or
encumber the Security Deposit and Lessor shall not be bound by any such
assignment, encumbrance or attempt thereof.
Lessee may deliver to Lessor, in lieu of the cash deposit set forth in
this Article an irrevocable negotiable letter of credit in the form and
amount set forth in Paragraph 16 of the Preamble. Said letter of credit
shall be for a term of not less than 1 year and shall be renewed by Lessee
(without notice from Lessor) no later than 45 days prior to its
expiration, and the expiration of each replacement thereof, until Lessor
shall be required to return the security to Lessee pursuant to the terms
of this lease but in no event earlier than 90 days after the Expiration
Date, and each such renewed letter of credit shall be delivered to Lessor
no later than 45 days prior to the expiration of the letter of credit then
held by Lessor. If any portion of the security deposit shall be utilized
by Lessor in the manner permitted by this lease, Lessee shall, within 5
days after
13
request by Lessor, replenish the security account by depositing with
Lessor, in cash or by letter of credit, an amount equal to that utilized
by Lessor. Failure of Lessee to comply strictly with the provisions of
this Article shall constitute a material breach of this lease and Lessor
shall be entitled to present the letter of credit then held by it for
payment (without notice to Lessee). If the cash security is converted into
a letter of credit, the provisions with respect to letters of credit shall
apply (with the necessary changes in points of detail) to such letter of
credit deposit. In the event of a bank failure or insolvency affecting the
letter of credit, Lessee shall replace same within 20 days after being
requested to do so by Lessor.
17. 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.
18. MECHANIC'S LIENS:
Lessee shall, within fifteen (15) days after notice from Lessor, discharge
or satisfy by bonding or otherwise any mechanic liens for materials or
labor claimed to have been furnished to the Premises on Lessee's behalf.
19. RIGHT TO INSPECT AND REPAIR:
Lessor may enter the Premises but shall not be obligated to do so (except
as required by any specific provision of this Lease) 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. In no event
shall Lessee have any claim against Lessor for interruption of Lessee's
business, however occurring, including but not limited to that arising
from the negligence of Lessor, its agents, servants or invitees, or from
defects, errors or omissions in the construction or design of the Premises
and/or the Building, including the structural and non-structural portions
thereof.
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION:
Subject to intervening laws, ordinances, regulations and executive orders,
while Lessee is not in 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:
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-l,
attached hereto and made a part hereof, together with Common
Facilities lighting and electric energy all during Building Hours,
as defined in the Preamble.
c. Cold and hot water for drinking and lavatory purposes.
d. Elevator service during Building Hours (if the Building contains an
elevator or elevators for the use of the occupants thereof).
e. Restroom supplies and exterior window cleaning when reasonably
required.
14
f. Notwithstanding the requirements of Exhibit C-1 (as to HVAC) or D or
any other provision of this Lease, Lessor shall not be liable for
failure to furnish any of the aforesaid services when such failure
is due to Force Majeure, as hereinafter defined. Lessor shall not be
liable, under any circumstances, including, but not limited to, that
arising from the negligence of Lessor, its agents, servants or
invitees, or from defects, errors or omissions in the construction
or design of the Premises and/or the Building, including the
structural and non-structural portions thereof, for loss of or
injury to Lessee or to property, however occurring, through or in
connection with or incidental to the furnishings of, or failure to
furnish, any of the aforesaid services or for any interruption to
Lessee's business, however occurring.
21. 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 rent, and shall not constitute a constructive or partial
eviction, unless Lessor fails to take measures as may be reasonable under
the circumstances to restore the service without undue delay. If the
Premises are rendered untenantable in whole or in part, for a period of
ten (10) 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 Rent from and after
said tenth (10th) 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.
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:
The cost of electric current which is supplied by the Lessor for use by
the Lessee in the Premises, other than for heating or air conditioning
purposes, shall be reimbursed to the Lessor at terms, classification and
rates normally charged by the public utilities corporation serving that
part of the municipality where the subject Premises are located.
a. From and after the Commencement Date, Lessee agrees to pay as
Additional Rent an estimated electrical charge of $.10 per square
foot per month, payable on the first day of each and every month,
until such time as an electrical survey can be performed pursuant to
Article 22(b) below.
b. Lessee agrees that an independent electrical engineering consultant
shall make a survey of electric power demand of the electric
lighting fixtures and the electric equipment of Lessee used in the
Premises to determine the average monthly electric consumption
thereof, and the costs of said survey shall be borne by Lessee. The
cost of such survey shall not exceed $350.00. The findings of said
consultant as to the average monthly electric consumption of Lessee
shall, unless objected to by Lessee within forty-five (45) days, be
conclusive and binding on Lessor and Lessee. After Lessor's
consultant has submitted its report, Lessee shall pay to Lessor,
within ten (10) days after demand therefor by Lessor, the amount
(based on the monthly consumption found by such consultant) as owing
from the Lease Term's Commencement Date, and the then expired
months, to include the then current month and thereafter adjusted
for the estimated electrical charges already paid pursuant to
Article 22(a), on the first day of every month, in advance, the
amount set forth as the monthly consumption in said report. Said
amounts shall be treated as Additional Rent due hereunder.
Proportionate sums shall be payable for periods of less than a full
month if the Term commences or ends on any other than the first or
last day of the month. If Lessee objects to said findings, Lessee
shall nevertheless pay and continue to pay the amount determined by
Lessor's consultant until the issue is finally resolved, but Lessee
may, at its expense, seek the services of an independent electrical
consultant who shall make a survey as provided above. If Lessor's
and
15
Lessee's consultant cannot agree as to Lessee's consumption within
thirty (30) days of Lessee's consultant's findings either Lessor or
Lessee may request the American Arbitration Association in Somerset,
New Jersey to appoint an electrical engineering consultant whose
decision shall be final and binding on Lessor and Lessee, and whose
cost shall be shared equally. Upon the issue being finally resolved,
any overpayment made by Lessee shall be promptly refunded.
c. In the event that there shall be an increase or decrease in the rate
schedule (including surcharges or demand adjustments), of the public
utility for the supply of Building Standard Office Electrical
Service, or the imposition of any tax with respect to such service
or increase in any such tax following the Lease Term's commencement,
the Additional Rent payable hereunder shall be adjusted equitably to
reflect the increase or decrease in rate or imposition or increase
in the aforesaid tax. All computations shall be made on the basis of
Lessee's surveyed usage as if a meter exclusively measuring such
usage to the Premises was in place.
d. Lessee covenants that it shall notify Lessor immediately upon the
introduction of any office equipment or lighting different from that
on the Premises as of Lessor's electrical survey or in addition to
the aforesaid equipment or lighting on the Premises as of said
survey. The introduction of any new or different equipment or
lighting shall be cause for, at Lessor's election, a resurveying of
the Premises at Lessee's expense. Lessor reserves the right to
inspect the Premises to insure compliance with this provision.
x. Xxxxxx shall not be liable in any way to Lessee for any loss, damage
or expense which Lessee may sustain or incur as a result of any
failure, defect or change in the quantity or character of electrical
energy available for redistribution to the Premises pursuant to this
Article 22 nor for any interruption in the supply, and Lessee agrees
that such supply may be interrupted for inspection, repairs and
replacement and in emergencies. In any event, the full measure of
Lessor's liability for any interruption in the supply due to
Lessor's acts or omissions shall be an abatement of Fixed Basic Rent
and Additional Rent, unless Lessor fails to take such measures as
may be reasonable under the circumstances to restore such service
without undue delay. In no event shall Lessor be liable for any
business interruption suffered by Lessee.
x. Xxxxxx, at Lessee's expense, shall furnish and install all
replacement lighting tubes, lamps, ballasts and bulbs required in
the Premises. Lessee, however, shall have the right to furnish
and/or install any or all of the items mentioned in this Article
22(f).
g. Lessee's use of electrical service as contemplated herein shall be
during Building Hours, and any use in excess of said Building Hours
shall result in an adjustment as set forth in Article 22(a) hereof
to reflect such additional consumption.
23. ADDITIONAL RENT:
It is expressly agreed that Lessee will pay in addition to the Fixed Basic
Rent provided in Article 3 hereof, an Additional Rent to cover Lessee's
Percentage as defined in the Preamble, of the increased cost to Lessor,
for each of the categories enumerated herein, over the "Base Period
Costs," as defined in the Preamble for said categories.
a. OPERATING COST ESCALATION -- If the Operating Costs incurred for the
Building in which the Premises are located and Office Building Area
for any Lease Year or Partial Lease Year during the Lease Term shall
be greater than the Base Operating Costs (adjusted proportionately
for periods less than a Lease Year), then Lessee shall pay to
Lessor, as Additional Rent, Lessee's Percentage of all such excess
Operating Costs. Operating Costs shall 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
(which are not required to be capitalized for federal income tax
purposes);
16
fire and other insurance; trash removal; lawn care; snow
removal and all other items properly constituting direct operating
costs according to standard accounting practices (hereinafter
collectively referred to as the "Operating Costs"), but not
including depreciation of Building or equipment; interest; income or
excess profits taxes; wages, salaries and other compensation, to
employees above the level of property manager; alterations or
improvements for any other tenant; services furnished to other
tenants and not to Lessee; costs reimbursed by insurance; expenses
relating to the leasing of space in the Building including
advertising, real estate brokerage and leasing commissions; legal,
accounting and professional fees incurred for solicitation,
negotiation and enforcement of leases; expenditures for financing
and refinancing; any fee or expenditure paid to a related party in
excess of the amount which would be paid in an arm's length
transaction for materials or services of comparable quality; costs
of maintaining the Lessor's corporate existence or Lessor's general
corporate overhead or general administrative expenses; franchise
taxes; any expenditures required to be capitalized for federal
income tax purposes, unless said expenditures are for the purpose of
reducing Operating Costs within the Building and Office Building
Area, or those which under generally applied real estate practice
are expensed or regarded as deferred expenses or are required under
any governmental or quasi-governmental law, statute, ordinance,
rule, order, requirements or regulation, in which event the costs
thereof shall be included. The Base Operating Costs shall as be as
defined in the Preamble.
b. FUEL, UTILITIES AND ELECTRIC COST ESCALATION (hereinafter referred
to as "Utility and Energy Costs") -- If the Utility and Energy
Costs, including any fuel surcharges or adjustments with respect
thereto, incurred for water, sewer, gas, electric, 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 Lease Year or Partial Lease Year,
during the Term, shall be greater than the Base Utility and Energy
Costs (adjusted proportionately for periods less than a Lease Year),
then Lessee shall pay to Lessor as Additional Rent, Lessee's
Percentage as hereinafter defined, of all such excess Utility and
Energy Costs. As used in this Article 23, the Base Utility and
Energy Costs shall be as defined in the Preamble.
c. TAX ESCALATION -- If the Real Estate Taxes for the Building and
Office Building Area at which the Premises are located for any Lease
Year or Partial Lease Year, during the Lease Term, shall be greater
than the Base Real Estate Taxes (adjusted proportionately for
periods less than a Lease Year), then Lessee shall pay to Lessor as
Additional Rent, Lessee's Percentage as hereinafter defined, of all
such excess Real Estate Taxes.
As used in this Article 23(c), the words and terms which follow mean
and include the following:
i. "Base Real Estate Taxes" shall be as defined in the Preamble.
ii. "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building and Office Building
Area, or upon the rent, as such, payable to the 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.
17
d. LEASE YEAR -- As used in this Article 23, Lease Year shall mean a
calendar year. Any portion of the Term which is less than a Lease
Year as hereinbefore defined, that is, from the Commencement Date
through the following December 31, and from the last January 1,
falling within the Term to the end of the Term, shall be deemed a
"Partial Lease Year." Any reference in this Lease to a Lease Year
shall, unless the context clearly indicates otherwise, be deemed to
be a reference to a Partial Lease Year if the period in question
involves a Partial Lease Year.
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 above, Lessor shall advise Lessee in writing of Lessee's
Percentage share with respect to each of the categories as
reasonably estimated for the next twelve (12) month period (or
proportionate part thereof if the last period prior to the Lease's
expiration is less than twelve (12) months) as then known to the
Lessor, and thereafter, the Lessee shall pay as Additional Rent,
Lessee's Percentage share of these costs for the then current period
affected by such advice (as the same may be periodically reasonably
revised by Lessor as additional costs are incurred) in equal monthly
installments, such new rates being applied to any months, for which
the Fixed Basic 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
monthly rental, all subject to final adjustment at the expiration of
each Lease Year as defined in Article 23(d) hereof (or Partial Lease
Year if the last period prior to the Lease's termination is less
than twelve (12) months). However, Lessor shall be reimbursed by
Lessee monthly during the first year of the Term for additional
Utility and Energy Cost Escalations resulting from an increase in
the monthly rate over the Base Utility Rate.
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 REPORTS -- For the protection of Lessee, Lessor shall
maintain books of account which shall be open to Lessee and its
representatives at all reasonable times so that Lessee can determine
that such Operating, Utility and Energy and Real Estate Tax Costs
have, in fact, been paid or incurred. Lessee's representatives shall
mean only (i) Lessee's employees or (ii) a Certified Public
Accounting firm. At Lessor's request, Lessee shall execute a
confidentiality agreement reasonably acceptable to Lessor prior to
any examination of Lessor's books and records. In the event Lessee
disputes any one or more of said charges, Lessee shall attempt to
resolve such dispute with Lessor, provided that if such dispute
shall not be satisfactorily settled between Lessor and Lessee, the
dispute shall be referred by either party to an independent
certified public accountant to be mutually agreed upon, and if such
an accountant cannot be agreed upon, The American Arbitration
Association 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 the 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 Real Estate 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 Article 23(a) hereof, and Utility and
Energy Cost Escalation, as established in Article 23(b) hereof, the
Building is less than ninety-five percent (95%) occupied during the
establishment of the respective Base Periods, then the Base Costs
incurred with respect to said Operating Cost or Utility and Energy
Cost
18
shall be adjusted during any such period within the Base Period so
as to reflect ninety-five percent (95%) occupancy. Similarly, if
during any Lease Year or Partial Lease Year, subsequent to the Base
Period the Building is less than ninety-five percent (95%) occupied,
then the actual costs incurred for Operating Cost and Utility and
Energy Cost shall be increased during any such period to reflect
ninety-five percent (95%) occupancy so that at all times after the
Base Period the Operating Cost or Utility and Energy Cost shall be
actual costs, but in the event less than ninety-five percent (95%)
of the Building is occupied during all or part of the Lease Year
involved, the Operating Cost or Utility and Energy Cost shall not be
less than that which would have been incurred had ninety-five
percent (95%) 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.
24. LESSEE'S ESTOPPEL:
Lessee shall, from time to time, on not less that ten (10) days prior
written request by Lessor, 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 full force and effect as
modified and listing the instruments of modification; the dates to which
the rents and charges have been paid; and, to the best of Lessee's
knowledge, whether or not Lessor is in default hereunder, and if so,
specifying the nature of the default. It is intended that any such
statement delivered pursuant to this Article 24 may be relied on by a
prospective purchaser of Lessor's interest or mortgagee of Lessor's
interest or assignee of any mortgage of Lessor's interest. Lessee shall
also execute and deliver the form "Lessee Estoppel Certificate" attached
hereto as Exhibit F. Upon request from Lessee, Lessor shall execute and
deliver to Lessee an estoppel certificate reasonably satisfactory to
Lessor.
25. HOLDOVER TENANCY:
If Lessee holds possession of the Premises after the Expiration Date of
this Lease, Lessee shall (i) become a tenant from month to month under the
provisions herein provided, but at one hundred and fifty percent (150%) of
the monthly Fixed Basic Rental for the last month of the Term, plus the
Additional Rent, for the first month of Lessee's holding over and two
hundred percent (200%) of the monthly Fixed Basic Rent for the last month
of the Term, plus the Additional Rent, thereafter, which shall continue as
provided in the Lease which sum shall be payable in advance on the first
day of each month, and without the requirement for demand or notice by
Lessor to Lessee demanding delivery of possession of said Premises, and
such tenancy shall continue until terminated by Lessor, or until Lessee
shall have given to Lessor, at least 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; and (ii)
indemnify Lessor against loss or liability resulting from the delay by
Lessee in so surrendering the Premises including, without limitation, any
claims made by any succeeding occupant founded on such delay. Lessee's
obligations under this Section shall survive the expiration or sooner
termination of the Lease. The time limitations described in this Section
25 shall not be subject to extension for Force Majeure.
26. RIGHT TO SHOW PREMISES:
Lessor may show the Premises to prospective purchasers and mortgagees; and
during the twelve (12) months prior to termination of this Lease, to
prospective tenants, during Building Hours on reasonable notice to Lessee.
27. LESSOR'S WORK - LESSEE'S DRAWINGS:
Lessor shall deliver, and Lessee shall accept, the Premises in its "AS-IS"
condition. All work to be performed by Lessee hereunder shall be performed
in accordance with Exhibit C attached hereto and made a part hereof.
19
28. WAIVER OF TRIAL BY JURY:
To the extent such waiver is permitted by law, the parties waive trial by
jury in any action or proceeding brought in connection with this Lease or
the Premises.
29. LATE CHARGE:
Anything in this Lease to the contrary notwithstanding, at Lessor's
option, Lessee shall pay a "Late Charge" of eight percent (8%) of any
installment of Fixed 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, said Late Charge to be considered Additional
Rent. The amount of the Late Charge to be paid by Lessee shall be
reassessed and added to Lessee's obligations for each successive monthly
period until paid.
Notwithstanding anything in this Section to the contrary, Lessor shall
waive a Late Charge one time during each Lease Year provided, however, the
installment of Fixed Basic Rent or Additional Rent so due is paid by the
fifteenth (15th) day of the month. Payment received subsequent to the
fifteenth (15th) of the month during these grace periods shall require a
Late Charge to be reassessed and added to Lessee's obligations hereunder.
30. LESSEE'S INSURANCE:
a. Lessee covenants to provide at Lessee's cost and expense on or
before the earlier of (i) the Commencement Date, or (ii) Lessee's
taking actual possession for the purpose of completing any
improvement work, and to keep in full force and effect during the
entire Term and so long thereafter as Lessee, or anyone claiming by,
through or under Lessee, shall occupy the Premises, insurance
coverage as follows:
i. Commercial General Liability insurance with contractual
liability endorsements with respect to the Premises and the
business of Lessee in which Lessee shall be adequately covered
under limits of liability of not less than THREE MILLION AND
00/100 DOLLARS ($3,000,000.00) combined single limit per
occurrence for bodily or personal injury (including death) and
property damage. Such insurance may be carried (x) under a
blanket policy covering the Premises and other locations of
Lessee, if any, provided that each such policy shall in all
respects comply with this Article and shall specify that the
portion of the total coverage of such policy that is allocated
to the Premises is in the amounts required pursuant to this
Article 30 and (y) under a primary liability policy of not
less than ONE MILLION AND 00/100 DOLLARS ($1,000,000.00) and
the balance under an umbrella policy. Notwithstanding anything
to the contrary contained in this Lease, the carrying of
insurance by Lessee in compliance with this Article 30 shall
not modify, reduce, limit or impair Lessee's obligations and
liability under Article 33 hereof.
ii. Fire and Extended Coverage, Vandalism, Malicious Mischief,
Sprinkler Leakage and Special Extended Coverage Insurance in
an amount adequate to cover the cost of replacement of all
personal property, decoration, trade fixtures, furnishings,
equipment in the Premises and all contents therein. Lessor
shall not be liable for any damage to such property of Lessee
by fire or other peril includable in the coverage afforded by
the standard form of fire insurance policy with extended
coverage endorsement attached (whether or not such coverage is
in effect), no matter how caused, it being understood that the
Lessee will look solely to its insurer for reimbursement.
iii. Worker's Compensation Insurance in the minimum statutory
amount covering all persons employed by Lessee.
iv. Said limits shall be subject to periodic review and Lessor
reserves the right to increase said coverage limits if, in the
reasonable opinion of Lessor, said
20
coverage becomes inadequate and is less than that commonly
maintained by tenants in similar buildings in the area by
tenants making similar uses. On or before the Commencement
Date, and thereafter at Lessor's request, Lessee shall provide
Lessor evidence of the insurance coverage required herein in
the form of a duplicate original insurance policy, an
insurance binder (countersigned by the insurer), or Evidence
of Insurance (in form XXXXX 27 with respect to property
insurance and XXXXX 25-S with respect to liability insurance)
for each of the insurance policies Lessee is required to carry
in compliance with its obligations under this Lease.
b. All of the aforesaid insurance under subparagraph (a)(i) above shall
(i) name Lessor as an additional insured; (ii) be written by one or
more responsible insurance companies licensed in the State of New
Jersey satisfactory to Lessor and in form satisfactory to Lessor;
(iii) contain endorsements substantially as follows: "It is
understood and agreed that the insurer will give to Lessor, or any
successor lessor, c/o Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxxxx, thirty (30) days prior written notice
of any material change in or cancellation of this policy."; (iv)
shall be written on an "occurrence" basis and not on a "claims made"
basis.
c. Lessee shall be solely responsible for payment of premium and Lessor
(or its designee) shall not be required to pay any premium for such
insurance. Lessee shall deliver to Lessor at least fifteen (15) days
prior to the expiration of such policy, either a duplicate original
or a certificate it being the intention of the parties hereto that
the insurance required under the terms hereof shall be continuous
during the entire Term of this Lease and any other period of time
during which pursuant to the Term hereof, said insurance is
required. Any insurance carried by Lessee shall be in excess of and
will not contribute with the insurance carried by Lessor for
injuries or damage arising out of the Premises.
d. Lessee agrees, at its own cost and expense, to comply with all rules
and regulations of the National Fire Protection Association (NFPA)
National Fire Code. If, at any time or from time to time, as a
result of or in connection with any failure by Lessee to comply with
the foregoing sentence or any act or omission or commission by
Lessee, its employees, agents, contractors or licensees, or a result
of or in connection with the use to which the Premises are put
(notwithstanding that such use may be for the purposes hereinbefore
permitted or that such use may have been consented to by Lessor),
the fire insurance rate(s) applicable to the Premises shall be
higher than that which would be applicable for a business office
legally permitted therein, Lessee agrees that it will pay to Lessor
as Additional Rent, such portion of the premiums for all Lessor's
fire insurance policies in force with respect to the building and
the contents of any occupant thereof as shall be attributable to
such higher rate(s).
x. Xxxxxx makes no representation that the limits of liability
specified to be carried by Lessee or Lessor under the terms of this
Lease are adequate to protect Lessee against Lessee's undertaking
under this Article 30, and in the event Lessee believes that any
such insurance coverage called for under this Lease is insufficient,
Lessee shall provide, at is own expense, such additional insurance
as Lessee deems adequate.
f. In the event the Premises or its contents are damaged or destroyed
by fire or other insured casualty, (i) Lessor, to the extent of the
coverage of Lessor's policies of fire insurance, hereby waives its
rights, if any, against Lessee with respect to such damage or
destruction, even if said fire or other casualty shall have been
caused, in whole or in part, by the negligence of the Lessee, and
(ii) Lessee, to the extent of the coverage of Lessee's policies of
fire insurance with extended coverage, hereby waives its rights, if
any, against Lessor with respect to such damage, or destruction,
even if said fire or other casualty shall have been caused, in whole
or in part, by the negligence of Lessor; provided, however, such
waivers of subrogation shall only be effective with respect to loss
or damage occurring during such time as Lessor's or Lessee's
policies of fire insurance (as the case may be) shall contain a
clause or endorsement providing in substance that the aforesaid
waiver of subrogation shall not prejudice the type and amount of
coverage under such policies or the right of Lessor
21
or Lessee (as the case may be) to recover thereunder. If, at any
time, Lessor's or Lessee's insurance carrier refuses to write
insurance which contains a consent to the foregoing waiver of
subrogation, Lessor or Lessee, as the case may be, shall notify the
party thereof in writing, and upon the giving of such notice, the
provisions of this Section shall be null and void as to any casualty
which occurs after such notice. If Lessor's or Lessee's insurance
carrier shall make a charge for the incorporation of the aforesaid
waiver of subrogation in its policies, then the party requesting the
waiver shall promptly pay such charge to the other party upon
demand. In the event the party requesting their waiver fails to pay
such charge upon demand, the other party shall be released of its
obligation to supply such waiver.
[See following page 22]
g. Should Lessee fail to maintain the insurance coverage as set forth
in this Article 30, then Lessee shall be in default hereunder and
shall be deemed to have breached its covenants as set forth herein.
31. NO OTHER REPRESENTATIONS:
No representations or promises shall be binding on the parties hereto
except those representations and promises contained herein or in some
future writing signed by the party making such representation(s) or
promise(s).
32. QUIET ENJOYMENT:
Lessor covenants that if, and so long as, Lessee pays Fixed Basic Rent,
and any Additional Rent as herein provided, and performs Lessee's
covenants 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.
33. INDEMNITY:
Lessee shall defend, indemnify and save harmless Lessor and its agents
against and from: (a) any and all claims (i) arising from (x) the conduct
or management by Lessee, its subtenants, licensees, its or their
employees, agents, contractors or invitees on the Premises or of any
business therein, or (y) any work or thing whatsoever done, or any
condition created (other than by Lessor, its agents or contractors for
Lessor's or Lessee's account) in or about the 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 Premises,
(z) any default by Lessee under the terms, covenants and conditions of
this Lease or (ii) arising from any negligent or otherwise wrongful act or
omission of Lessee or any of its subtenants or licensees or its or their
employees, agents, contractors or invitees, and (b) all costs, expenses
and liabilities including attorneys fees and disbursements incurred in or
in connection with each such claim, action or proceeding brought thereon.
In case any action or proceeding be brought against Lessor by reason of
any such claim, Lessee, upon notice from Lessor, shall resist and defend
such action or proceeding.
34. ARTICLE HEADINGS:
The article headings in this Lease and position of its provisions are
intended for convenience only and shall not be taken into consideration in
any construction or interpretation of this Lease or any of its provisions.
35. APPLICABILITY TO HEIRS AND ASSIGNS:
The provisions of this Lease shall apply to, bind and inure to the benefit
of Lessor and Lessee, and their respective heirs, successors, legal
representatives and assigns. It is understood that the term "Lessor" as
used in this Lease means only the owner, a mortgagee in possession or a
term lessee of the Building, so that in the event of any sale of the
Building
22
Section 30(f) of this Lease shall be deemed deleted in its entirety and the
following substituted in place thereof:
Lessor and Lessee shall procure a clause in, or endorsement on, each of their
policies for fire or extended coverage insurance covering the Premises or
personal property, fixtures or equipment located therein, pursuant to which the
insurance company waives subrogation or consents to a waiver of right of
recovery against the other party. Lessor and Lessee agree not to make claims
against, or seek to recover from, the other party for loss or damage to its
property or property of others covered by such insurance. To the extent Lessee
shall be a self-insurer, Lessee waives the right of recovery, if any, against
Lessor, its agents and employees, for loss, damages or destruction of Lessee's
property.
22A
or of any lease thereof, or if a mortgagee shall take possession of the
Premises, the Lessor herein shall be and hereby is entirely freed and
relieved of all covenants and obligations of Lessor hereunder accruing
thereafter, and it shall be deemed without further agreement that the
purchaser, the 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.
36. OUTSIDE PARKING SPACES:
Lessee's occupancy of the Premises shall include the use of the number of
outside parking spaces as set forth in the Preamble, all of which will be
unassigned. Lessor shall not be responsible for any damage or theft of any
vehicle in the parking area and shall not be required to keep parking
spaces clear of unauthorized vehicles or to otherwise supervise the use of
the parking area. Lessee shall, upon request, promptly furnish to Lessor
the license numbers of the cars operated by Lessee and its subtenants,
licensees, invitees, concessionaires, officers and employees. If any
vehicle of the Lessee, or of any subtenant, licensee, concessionaire, or
of their respective officers, agents or employees, is parked in any part
of the Common Facilities other than the employee parking areas) designated
therefor by Lessor, Lessee shall pay to Lessor such penalty as may be
fixed by Lessor from time to time. All amounts due under the provisions of
this Article 36 shall be deemed to be Additional Rent.
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY:
Lessor shall not be liable for any loss of property from any cause
whatsoever, including but not limited to theft or burglary from the
Premises, and any such loss arising from the negligence of Lessor, its
agents, servants or invitees, or from defects, errors or omissions in the
construction or design of the Premises and/or the Building, including the
structural and non-structural portions thereof, and Lessee covenants and
agrees to make no claim for any such loss at any time.
38. PARTIAL INVALIDITY:
If any of the provisions of this Lease, or the application thereof to any
person or circumstances, shall to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such provision or
provisions to persons or circumstances other than those as to whom or
which it is held invalid or unenforceable, shall not be affected thereby,
and every provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
39. LESSEE'S BROKER:
Lessee represents and warrants to Lessor that its broker, as defined in
the Preamble, is the sole broker with whom Lessee has negotiated in
bringing about this Lease and Lessee agrees to indemnify and hold Lessor
and its mortgagees) harmless from any and all claims of other brokers and
expenses in connection therewith arising out of or in connection with the
negotiation of or the entering into this Lease by Lessor and Lessee.
In no event shall Lessor's mortgagees) have any obligation to any broker
involved in this transaction. In the event that no broker was involved as
aforesaid, then Lessee represents and warrants to the Lessor that no
broker brought about this transaction, and Lessee agrees to indemnify and
hold Lessor harmless from any and all claims of any broker arising out of
or in connection with the negotiations of, or entering into of, this Lease
by Lessee and Lessor.
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
23
constituent members (to include but not be limited to, officers,
directors, partners and trustees) their respective successors, assigns or
any mortgagee in possession (for the purposes of this Article,
collectively 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.
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. AFFILIATE -- Affiliate shall mean any corporation related to Lessee
as a parent, subsidiary or brother-sister corporation so that 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 or any business entity in which
Lessee has more than a fifty percent (50%) interest.
b. COMMON FACILITIES -- Common Facilities shall mean the non-assigned
parking areas; lobby; elevator(s); fire stairs; public hallways;
public lavatories; all other general Building facilities that
service all Building 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. 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 to discourage non-tenant parking, and may do such other acts in
and to the Common Facilities as in its judgement 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 Lessor's reasonable 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 or insurance proceeds. Any time limits
required to be met by either party hereunder, whether specifically
made subject to Force Majeure or not, except those related to the
payment of Fixed Basic Rent or Additional Rent, shall, unless
specifically stated to the contrary elsewhere in this Lease, be
automatically extended by the number of days by which any
performance called for is delayed due to Force Majeure.
d. LESSEE'S PERCENTAGE -- The parties agree that Lessee's Percentage,
as defined in the Preamble, reflects and will be continually
adjusted to reflect the ratio of the gross square feet of the area
rented to Lessee (including an allocable share of all Common
Facilities) [the numerator] as compared with 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 wall to outside wall, 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 Premises is located. However, if any service provided
for in Article 23(a) or any
24
utility provided for in Article 23(b) is separately billed or
separately metered within the Building, then the square footage so
billed or metered shall be subtracted from the denominator and the
Lessee's proportionate share for such service and/or utility shall
be separately computed, and the Base Costs for such item shall not
include any charges attributable to said square footage. 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 percent (100%).
43. LEASE COMMENCEMENT:
The Commencement Date of this Lease, as defined in the Preamble to this
Lease, shall occur regardless of Lessee's failure to complete the tenant
improvement work pursuant to Exhibit C attached hereto.
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 (i) delivered personally or (ii)
sent by registered mail or certified mail return receipt requested in a
postage paid envelope addressed or (iii) sent by nationally recognized
overnight delivery service, if to Lessee, at the above described
Building; 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, on delivery thereof, if mailed, upon the tenth
(10th) day after the mailing thereof or if sent by overnight delivery
service, the next business day.
45. ACCORD AND SATISFACTION:
No payment by Lessee or receipt by Lessor of a lesser amount than the rent
and additional charges payable hereunder shall be deemed to be other than
a payment on account of the earliest stipulated Fixed Basic Rent and
Additional Rent, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment for Fixed Basic Rent or
Additional Rent be deemed an accord and satisfaction, and Lessor may
accept such check or payment without prejudice to Lessor's right to
recover the balance of such Fixed Basic Rent and Additional Rent or pursue
any other remedy provided herein or by law.
46. EFFECT OF WAIVERS:
No failure by Lessor to insist upon the strict performance of any
covenant, agreement, term or condition of this Lease, or to exercise any
right or remedy consequent upon a breach thereof, and no acceptance of
full or partial rent during the continuance of any such breach, shall
constitute a waiver of any such breach or of such covenant, agreement,
term or condition. No consent, or waiver, express or implied, by Lessor to
or of any breach of any covenant, condition or duty of Lessee shall be
construed as a consent or waiver to or of any other breach of the same or
any other covenant, condition or duty, unless in writing signed by Lessor.
47. LEASE CONDITION:
Intentionally Omitted.
48. 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
25
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.
49. LESSOR'S RESERVED RIGHT:
Lessor and Lessee acknowledge that the Premises are in a Building which is
not open to the general public. Access to the Building is restricted to
Lessor, Lessee, their agents, employees and contractors and to their
invited visitors. In the event of a labor dispute including a strike,
picketing, informational or associational activities directed at Lessee or
any other tenant, Lessor reserves the right unilaterally to alter Lessee's
ingress and egress to the Building or make any change in operating
conditions to restrict pedestrian, vehicular or delivery ingress and
egress to a particular location.
50. CORPORATE AUTHORITY:
If Lessee is a corporation, Lessee represents and warrants that this Lease
has been duly authorized and approved by the corporation's Board of
Directors. The undersigned officers and representatives of the corporation
represent and warrant that they are officers of the corporation with
authority to execute this Lease on behalf of the corporation, and within
fifteen (15) days of execution hereof, Lessee will provide Lessor with a
corporate resolution confirming the aforesaid.
51. AFTER-HOURS USE:
Lessee shall be entitled to make use of said Standard Electric Service and
HVAC beyond the Building Hours, at Lessee's sole cost and expense,
provided Lessee shall notify the Lessor by 3:00 p.m. on the day that
Lessee shall require said overtime use if said overtime use is required on
any weekday, and by 3:00 p.m. on Friday for Saturday and/or Sunday
overtime use. It is understood and agreed that Lessee shall pay the sum of
SIXTY AND 00/100 DOLLARS ($60.00) per hour for air-conditioning service
and FORTY-FIVE AND 00/100 DOLLARS ($45.00) per hour for heating services,
plus such additional percentage increase of the aforesaid hourly sum
computed by measuring the percentage increase between the rate in effect
(including fuel surcharges or adjustments) during the month for which such
overtime use is requested and the Base Rate. The Base Rate for purposes
hereof shall be the average of the rates in effect (including surcharges
and/or adjustments) during Calendar Year 2000.
In no event shall the Lessee pay less than the sum of SIXTY AND 00/100
DOLLARS ($60.00) per hour for such overtime air-conditioning service or
less than FORTY-FIVE AND 00/100 DOLLARS ($45.00) per hour for such
overtime heating service.
52. LESSEE'S EXPANSION/RELOCATION:
The Lessor, in its sole discretion, shall have the right one time during
the initial term of this Lease to change the location of the Premises to
other space (the "Substituted Leased Premises") within the Building,
subject to the terms and conditions set forth below.
a. The Substituted Leased Premises shall contain a minimum floor area
of approximately the same number of square feet as are contained in
the Premises; and the square footage of any Common Facilities
attributable to the Substituted Leased
26
Premises shall be approximately the same as that of the Common
Facilities attributable to the Premises.
b. If the total square footage comprised by the Substituted Leased
Premises and its attributable Common Facilities exceed the total of
the Premises and its attributable Common Facilities, the Lessee
shall not be required to pay any increase in the Fixed Basic Rent
and Lessee's Percentage shall not be increased. If, however, such
total square footage shall be less, Lessee's Fixed Basic Rent and
Lessee's Percentage shall be decreased proportionately.
c. The Lessor shall give the Lessee not less than forty-five (45) days
prior notice of Lessor's decision to relocate the Lessee; and the
Lessee agrees that no later than forty-five (45) days from the date
of its receipt of such notice it shall relocate to the Substituted
Leased Premises.
d. The Lessor shall bear and pay for the cost and expense of any such
relocation; provided, however, that the Lessee shall not be entitled
to any compensation for damages for any interference with or
interruption of its business during or resulting from such
relocation. The Lessor shall make reasonable efforts to minimize
such interference.
e. In connection with any such relocation, the Lessor shall, at its own
cost and expense, furnish and install in (or, if practicable,
relocate to) the Substituted Leased Premises all walls, partitions,
floors, floor coverings, ceilings, fixtures, wiring and plumbing, if
any, (as distinguished from trade fixtures, equipment, furniture,
furnishings and other personal property belonging to Lessee)
required for the Lessee's proper use and occupancy thereof, all of
which items shall be comparable in quality to those situated in the
Premises.
f. The payments of new monthly minimum rent shall commence on the
earlier of ten (10) days after Lessor has completed the physical
relocation and installation of permanent improvements in the
Substituted Leased Premises or the date that Lessee first opens for
business in the Substituted Leased Premises.
x. Xxxxxx and Lessee shall promptly execute an amendment to this Lease
reciting the relocation of the Premises and any changes in the
monthly minimum rent payable hereunder.
53. BUILDING PERMIT:
Intentionally Omitted.
54. LESSOR'S INSURANCE:
During the Term, Lessor shall maintain the following insurance, insuring
Lessor and any mortgagee, as their respective interests may appear: (x)
insurance against damage to the Building and Office Building Area by all
risks of direct physical loss in an amount equivalent to the full
replacement cost thereof; (y) comprehensive general liability insurance
against claims for bodily injury and property damage occurring in or about
the Common Facilities in amounts customarily carried by owners of similar
buildings in the Xxxxxx County, New Jersey area; and (z) insurance against
such other hazards as, from time to time, are then commonly insured
against for buildings similarly situated in amounts normally carried with
respect thereto. All insurance maintained pursuant to this Article 54 may
be effected by blanket insurance policies.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under the Lease or this Agreement or make any claim that the Lease or
this Agreement is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses, notarizations, or
other similar requirements, and each party hereby waives the right to assert any
such defense or make any claim of invalidity or unenforceability due to any of
the foregoing.
27
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals the day and year first above written.
LESSOR: LESSEE:
XXXX-XXXX XXXXXX REALTY L.L.C. STACK PHARMACEUTICALS, INC.
By: Parsippany Office Associates L.L.C.
By: Xxxx-Xxxx Realty, L.P.,
managing member
By: Xxxx-Xxxx Realty Corporation,
its general partner
By: /s/ Xxxx Xxx Xxxxxxxx By: /s/ Xxxxx Xxxxx
----------------------------- --------------------------------
Xxxx Xxx Xxxxxxxx Name: Xxxxx Xxxxx
Vice President, Leasing NJ/PA Title: President
28
EXHIBIT A
LOCATION OF PREMISES
STACK PHARMACEUTICALS, INC.
[Drawing of Second Floor of Xxxxxx County Financial Center indicating location
of Stack Pharmaceuticals, Inc.]
Exhibit A - Page 1
EXHIBIT X-0
XXXXXX XXXXXXXX XXXX
BEGINNING at a concrete monument found on the southerly right of way line of
Sylvan Way, at the northeasterly corner of Lot 4.02, Block 202 as shown on the
present tax map of Parsippany Xxxx Hills (said Lot 4.02 being lands now or
formerly of Dun's Marketing Services, Inc.).
And from said point running; thence:
1. Along the southwesterly line of Sylvan Way, South 66 degrees 11 minutes 14
seconds East, 6.74 feet to an angle point in same; thence
2. Continuing along said line, South 81 degrees 13 minutes 00 seconds East,
342.21 feet to a concrete monument; thence
3. Along the northwesterly line of Xxx 0.00, Xxxxx 000, Xxxxx 00 degrees 47
minutes 00 seconds West, 805.84 feet to a concrete monument found buried
1.2 feet below the surface on the northeasterly line of Lot 3.03, Block
202; thence
4. Along said line, North 81 degrees 13 minutes 00 seconds West, 238.74 feet
to an iron pipe found; thence
5. Continuing along said line, North 65 degrees 28 minutes 00 seconds West,
105.72 feet to a concrete monument found; thence
6. Along the division line between Lot 4.02 and 4.03, Block 202, North 25
degrees 47 minutes 00 seconds East, 777.66 feet to the point or place of
BEGINNING.
BEING COMMONLY KNOWN AS Lot 4.03, Block 202 on the Tax Map of the Township of
Parsippany - Xxxx Hills.
Exhibit A-1 - Page 1
EXHIBIT B
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS: The sidewalks, entrance, passages, courts,
elevators, vestibules, stairways, corridors and public parts of the
Building shall not be obstructed or encumbered by Lessee or used by Lessee
for any purpose other than ingress and egress. If the Premises are
situated on the ground floor with direct access to the street, then Lessor
shall, at Lessor's expense, keep the sidewalks and curbs directly in front
of the Premises clean and free from ice, snow and refuse.
2. WINDOWS: Windows in the Premises shall not be covered or obstructed by
Lessee. No bottles, parcels or other articles shall be placed on the
window xxxxx, in the halls, or in any other part of the Building other
than the Premises. No article shall be thrown out of the doors or windows
of the Premises.
3. PROJECTIONS FROM BUILDING: No awnings, air-conditioning units, or other
fixtures shall be attached to the outside walls or the window xxxxx of the
Building or otherwise affixed so as to project from the Building, without
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 Lessor, which shall not be unreasonably withheld.
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. Lessee shall not have the right to have additional
names placed on the Building directory without Lessor's prior written
consent.
5. FLOOR COVERING: Lessee shall not lay linoleum or other similar floor
covering so that the same shall come in direct contact with the floor of
the Premises. If linoleum or other similar floor covering is desired to be
used, an interlining of builder's deadening felt shall first be fixed to
the floor by a paste or other material that may easily be removed with
water, the use of cement or other similar adhesive material being
expressly prohibited.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING: Lessee shall not make, or permit
to be made, any unseemly or disturbing noises or odors 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 Premises.
7. LOCK KEYS: No additional locks or bolts of any kind shall be placed on any
of the doors or windows by Lessee. Lessee shall, on the termination of
Lessee's tenancy, deliver to Lessor all keys to any space within the
Building either furnished to or otherwise procured by Lessee, and in the
event of the loss of any keys finished, 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. Nothing in
this Paragraph 7 shall be deemed to prohibit Lessee from installing a
burglar alarm within the Premises, provided; (1) Lessee obtain's Lessor's
consent which will not be unreasonably withheld or delayed; (2) Lessee
supplies Lessor with copies of the plans and specifications of the system;
(3) such installation shall not damage the Building; and (4) all costs of
installation shall be borne solely by Lessee.
8. CONTRACTORS: No contract of any kind with any supplier of towels, water,
toilet articles, waxing, rug shampooing, venetian blind washing, furniture
polishing, lamp servicing, cleaning of electrical fixtures, removal of
waste paper, rubbish, garbage, or other like service shall be entered into
by Lessee, nor shall any machine of any kind be installed in the Building
or the Office Building Area, other than ordinary office business machines,
without the prior written consent of the Lessor. Lessee shall not employ
any 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 to the effects of Lessee by such janitors or
any of its employees, or by any other person or any other cause.
Exhibit B - Page 1
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 his business, permit the Premises to
be used for gambling, make any unusual noises in the Building, permit to
be played musical instrument on the Premises, permit any radio to be
played, or television, recorded or wired music in such loud manner as to
disturb or annoy other tenants, or permit any unusual odors to be produced
on 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 a xxxxxx or manicure shop. Canvassing,
soliciting and peddling in the 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. PLUMBING ELECTRIC AND TELEPHONE WORK: Plumbing facilities shall not be
used for any purpose other than those for which they were constructed; and
no sweepings, rubbish, ashes, newspaper or other substances of any kind
shall be thrown into them. 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
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 these provisions, move freight,
furniture, bulky matter, and other material into or out of the Premises on
Saturdays between the hours of 9:00 a.m. and 1:00 p.m., provided Lessee
pays additional 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 (3) days prior to such activity, Lessor
requests that Lessee deposit with Lessor, as security of Lessee's
obligations to pay such additional costs, 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 of such cost. There shall not be
used in the Building or Premises, either by Lessee or by others in the
delivery or receipt of merchandise, any hand trucks except those equipped
with rubber tires and side guards, and no hand trucks will be allowed in
the elevators without the consent of the superintendent of the Building.
12. SAFES AND OTHER HEAVY EQUIPMENT: Lessor reserves the right to prescribe
the weight and position of all safes and other heavy equipment so as to
distribute properly the weight thereof and to prevent any unsafe condition
from arising.
13. ADVERTISING: Lessor shall have the right to prohibit any advertising by
Lessee which in Lessor's reasonable opinion tends to impair the reputation
of the 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 OTHER TENANTS: Lessor shall not be
responsible to Lessee for non-observance or violation of any of these
rules and regulations by any other tenant.
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. and at all hours on
Saturdays, Sundays and Building Holidays, all persons who do not present a
pass to the Building signed by the Lessee. Each Lessee shall be
responsible for all persons for whom such a pass is issued and 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 designated by Lessor.
Exhibit B - Page 2
17. Lessor hereby reserves to itself any and all rights not granted to Lessee
hereunder, including, but not limited to, the following rights which are
reserved to Lessor for its purposes in operating the Building:
a) the exclusive right to the use of the name of the Building for all
purposes, except that Lessee may use the name as its business address
and for no other purposes; and
b) the right to change the name or address of the Building, without
incurring any liability to Lessee for doing so; and
c) the right to install and maintain a sign on the exterior of the
Building; and
d) the exclusive right to use or dispose of the use of the roof of the
Building; and
e) the right to limit the space on the directory of the Building to be
allotted to Lessee; and
f) the right to grant to anyone the right to conduct any particular
business or undertaking in the Building.
18. The Lessee shall be responsible for initiating, maintaining and
supervising all health and safety precautions and/or programs required by
Law in connection with the Lessee's use and occupancy of the Premises.
19. The Lessee shall not store, introduce or otherwise permit any material
known to be hazardous within the Premises, other than normal office
cleaners and substances used in ordinary office machines. Any material
within the Premises which is determined to be hazardous shall be removed
and properly disposed of by the Lessee at the Lessee's sole expense.
-- END --
Exhibit B - Page 3
EXHIBIT C
LESSEE'S WORK AND ALTERATIONS
1. Lessee may make the alterations required for Lessee's use of the Premises
(hereinafter the ("Work") after the Possession Date subject to the following:
a. Lessee, at its sole cost and expense, shall prepare and submit to
Lessor, for Lessor's and governmental approval, the following
descriptive information, detailed architectural and engineering
drawings and specifications (hereinafter the "Plans") for the Work.
The Plans shall be as complete and finished as required to
completely describe the Work and shall include, but not be limited
to, the following:
i. Demolition Plans (if required for Lessor's approval and/or by
any applicable governmental authority) depicting all existing
conditions to be removed, abandoned or cut patched.
ii. Architectural floor plans (if required for Lessor's approval
and/or by any applicable governmental authority) depicting
partition locations and types; door location, size, and
hardware types.
iii. Structural plans (if required for Lessor's approval and/or by
any applicable governmental authority) depicting new
structural components and their connections to existing
elements.
iv. Electrical plans (if required for Lessor's approval and/or by
any applicable governmental authority) depicting all new and
existing electrical wiring, devices, fixtures and equipment.
v. Mechanical plans (if required for Lessor's approval and/or by
any applicable governmental authority) depicting all new
plumbing, piping, heating, ventilating, air conditioning
equipment, and duct work and its connections to existing
elements.
vi. Life Safety System plans (if required for Lessor's approval
and/or by any applicable governmental authority) depicting all
new or altered alarm system fixtures, devices, detectors and
wiring within the Premises and their connection to existing
systems.
vii. Coordinated reflected ceiling plan (if required for Lessor's
approval and/or by any applicable governmental authority)
showing ceiling systems and materials and all of the above
items and their proximity to one another.
viii. Finish plans showing locations and types of all interior
finishes with a schedule of all proposed materials and
manufacturers.
The Plans shall provide for all systems and construction components
complying with the requirements of all governmental authorities and
insurance bodies having jurisdiction over the Building.
b. The Plans for the Work are subject to Lessor's prior written
approval which shall not be unreasonably withheld, provided,
however, that Lessor may in any event disapprove the Plans if they
are incomplete, inadequate or inconsistent with the terms of the
Lease or with the quality and architecture of the Building. Lessor
agrees to approve or disapprove the Plans within three (3) business
days of receipt of same (the "Lessor's Approval Period"). If Lessor
disapproves the Plans or any portion thereof, Lessor shall promptly
notify Lessee thereof and of the revisions which Lessor reasonably
requires in order to obtain Lessor's approval Lessee shall, at its
sole cost and expense, submit the Plans, in such form as may be
necessary, with the appropriate governmental agencies for obtaining
required permits and certificates. Any changes required by any
governmental agency affecting the Work or the Plans
Exhibit C - Page 1
shall be complied with by Lessee in completing said Work at Lessee's sole
cost and expense. Lessee shall submit completed Plans to Lessor
simultaneously with Lessee's submission of said plans to the local building
department.
2. Lessor shall permit Lessee to solicit competitive pricing and select its own
general and/or individual subcontractors to perform the Work in its sole cost
subject to the following:
a. All general contractors shall be subject to Lessor's prior written
approval, which shall not be unreasonably withheld.
x. Xxxxxx'x general contractor shall be requested, but not required, to
submit a price for the Work.
c. Lessee shall instruct all approved general contractors to
exclusively use Lessor's Base Building Sub-Contractors for heating,
ventilation, air conditioning, electrical, fire suppression and life
safety systems (hereinafter "Building Systems"). Other
subcontractors may be used only when specifically approved in
writing by Lessor, which approval shall not be unreasonably withheld
or delayed.
d. The Base Building Sub-Contractors and their respective trades are
set forth in Paragraph 7 below.
e. Lessee notifies Lessor in writing of Lessee's selection of general
and subcontractors.
f. All costs associated with the bidding process soliciting competitive
pricing will be at the sole cost and expense of the Lessee.
3. If Lessee accepts the pricing of Lessor's general contractor and elects to
use Lessor's general contractor to perform the Work, (i) Lessee and Lessor's
general contractor will enter into a separate agreement, substantially
similar to AIA Document A101, and Lessor's general contractor shall become
Lessee's agent and (ii) Lessor shall waive all supervisory fees. Lessor
hereby agrees that change orders shall be on the basis of cost plus ten
percent (10%) for supervision services plus ten percent (10%) for overhead.
4. If Lessee does not accept the pricing of Lessor's general contractor and
subject to this Paragraph 4, elects to engage another general contractor, or
individual sub-contractors, Lessee shall, at its sole cost and expense,
complete the Work. Lessee shall complete such Work through its own
contractors in accordance with the following terms and conditions:
a. Lessee's workmen and mechanics shall work in harmony and not
interfere with the labor employed by Lessor, Lessor's mechanics or
contractors or by any other Lessee or their mechanic or contractors,
if any. If at any time Lessee and/or its contractors cause
disharmony or interference with the operation of the Building,
Lessor shall give forty-eight (48) hours written notice to Lessee
and within twenty-four (24) hours Lessee shall resolve any dispute
so that the tenor of the construction process and the operation of
the Building is returned to that which existed prior to Lessor s
notice. Such entry by Lessee's contractors shall be deemed
controlled by all of the terms, covenants, provisions and conditions
of the Lease.
b. Prior to the commencement of the Work, Lessee shall provide Lessor
with evidence of Lessee's contractors and sub-contractors carrying
such worker's compensation, general liability, personal and property
insurance required by law and in amounts no less than the amounts
set forth in Paragraph 8 herein. Lessor shall not be liable in any
way for any injury, loss or damage which may occur to any portion of
the Work, Lessee's decorations, or installments so made, the same
being solely at Lessee's risk,
c. In the event Lessor approves the use of subcontractors other than
Lessor's Base Building sub-contractors, all proposed Building System
work, including the preparation of the plans and specifications
identified herein, shall be approved by Lessor's engineers (the
"Engineering Review"), and any cost thereof shall be Lessee's
responsibility.
Exhibit C - Page 2
x. Xxxxxx shall afford Lessee and its contractors the opportunity to
use the Building facilities at reasonable cost in order to enable
Lessee and its contractors to perform the Work, provided however,
that Lessee and its contractors shall remain responsible for the
scheduling and transportation of materials and equipment used in the
performance of such work. Lessee shall give Lessor adequate prior
notice with regard to the scheduling and transportation of materials
in and out of the Building. Lessor shall furnish water, electricity,
heat and ventilation during the performance of the Work during
regular construction trade hours of 8:00 a.m. to 5:00 p.m., Monday
through Friday, exclusive of trade holidays. Scavenger service shall
be provided by Lessor at Lessee's expense.
e. All plans, changes to the plans and work installed by Lessee and its
sub- contractors shall require inspections to be made by Lessor's
Base Building Sub- Contractors at Lessee's or Lessee's contractors
expense (the "Inspection Fees"). The Base Building Sub-Contractors
shall supply Lessor with certification that work so preformed has
been completed in accordance with the Plans which have been
previously approved by Lessor. If a Base Building Sub-Contractor is
selected and actually installs the work, the Inspection Fees
described in this paragraph with respect to such work shall not be
required.
f. Lessee shall be responsible for all cleaning and removal of debris
necessitated by the performance of the Work. If Lessee fails to
provide such cleaning and removal, the same may be performed by
Lessor on Lessee's behalf and Lessee will pay Lessor an amount equal
to the contractor's charge therefore, plus twenty percent (20%)
thereof.
g. Neither the outside appearance nor the strength of the Building or
of any of its structural parts shall be affected by the Work.
h. The proper functioning of any of the Building Systems shall not be
adversely affected or the usage of such systems by Lessee shall not
be materially increased above the projected usage of such systems
indicated by the current plans and specifications of the Building.
i. Lessee and its general and sub-contractors shall be bound by and
observe all of the conditions and covenants contained in the Lease
and this Exhibit X.
x. Xxxxxx shall designate a "Project Manager" as its representative in
the Building who shall be responsible for coordination and
supervision of the Work as it pertains to the daily operation of the
Building. The Project Manager and his subordinates shall be granted
access to the Premises at all times during the construction period.
Lessee shall pay to Lessor, within ten (10) business days of
billing, all reasonable costs applicable to Lessor's supervisory and
coordination work during the construction period.
k. Lessee agrees to pay Lessor five percent (5%) of the contract
awarded to Lessee's general contractor and/or any subcontractors to
reimburse Lessor for coordination, supervision, and utility costs.
5. Any part of the Work within the Premises shall become the property of
the Lessor upon installation. Furthermore, with respect to any
material and installation which is part of the Work, Lessee shall not
be entitled to remove, pledge or sell same unless otherwise agreed to
in writing by Lessor and Lessee. No refund, credit, or removal of said
items shall be permitted at the termination of the Lease. Items
installed that are not integrated in any such way with other common
building materials do not fall under this provision (Example:
shelving, furniture, trade fixtures).
6. Lessor shall provide a cash contribution of SEVENTEEN THOUSAND SIX HUNDRED
EIGHTY-FIVE AND 00/100 DOLLARS ($17,685.00) ("Lessor's Construction
Allowance") for payment of the costs associated with the completion of The
Work. Lessor's Construction Allowance shall be payable within fifteen (15)
days of Lessor's receipt of the following:
a. Copy of the Certificate of Occupancy (temporary and permanent)
issued by the local
Exhibit C - Page 3
construction official, if required by any applicable authority;
b. AIA Document G704, Certificate of substantial completion issued and
signed by Lessee's Architect, if Lessee is required to prepare the
Plans discussed in Section 1 hereof;
c. Release of Lien statements from the general and all sub-contractors
associated with the Work; and
d. Lessee shall provide Lessor a set of reproducible drawings of the
Plans and a "CAD" file (in DWG or DXF format) of the "As-Built"
Plans, if Lessee is required to prepare the Plans discussed in
Section 1 hereof.
7. The Base Building Sub-Contractors are:
FIRE SPRINKLER CONTRACTOR
"To be provided by Lessor upon request from Lessee."
ELECTRICAL CONTRACTOR
"To be provided by Lessor upon request from Lessee."
PLUMBING CONTRACTOR
"To be provided by Lessor upon request from Lessee."
HVAC CONTRACTOR
"To be provided by Lessor upon request from Lessee."
8. Lessee's Contractor's Insurance:
a. The Lessee shall require any and all contractors of the Lessee
performing work on or about the Premises to obtain and/or maintain
specific insurance coverage for events which could occur while
operations are being performed and which could occur after the
completion of the work. The insurance coverage of the contractor
shall be at least equal to the coverage required by Article 30 of
the Lease and the contractor shall name Lessor and, if requested,
Mortgagee as additional insureds on all policies of liability
insurance.
b. The contractor shall purchase and maintain such insurance as will
protect itself and Lessor and Lessee from claims set forth below
which may arise out of or result from its operations under the
contract and after contract completion with Lessee, whether such
operations are performed by the contractor or by any subcontractor
or by anyone directly or indirectly employed by any of them or by
anyone for whose acts any of them may be liable. The insurance
coverage shall include but not be limited to protection for:
i. Claims under Workers or Workmens Compensation, Disability
Benefits, and other Employee Benefit Acts;
ii. Claims for damages because of bodily injury, occupational
sickness, disease or death of its employees;
iii. Claims for damages because of bodily injury, sickness,
disease, or death of any person other than its employees;
iv. Claims for damages insured by the usual personal injury
liability coverages which are sustained by (i) any person as a
result of an offense directly or indirectly related to the
employment of such person by the contractor, or (ii) by any
other person;
v. Claims for damages, other than to the work itself, because of
injury to or destruction of tangible property, including loss
of use resulting therefrom;
vi. Claims for damages because of bodily injury or death of any
person and/or
Exhibit C - Page 4
property damage arising out of the ownership, maintenance, or
use of any motor vehicle; and
vii. Claims which include the foregoing, but not limited thereto,
which may occur while operations are being performed and
claims which may occur after operations are completed.
c. Lessee shall secure evidence of Lessee's contractor's insurance
coverage adequate to protect Lessor and Lessee.
d. The contract between the Lessee and its contractor shall require
that the Lessee's contractor hold the Lessor harmless in a form and
manner equal to the indemnity agreement in Article 12,
"Indemnification" of the Lease agreement.
e. Lessee shall cause to be executed a waiver of all rights their
contractors have or may have against Lessor and any Mortgagee
involved in the Premises in any way, for damages caused by fire or
other perils so insured.
f. If request by Lessor, Lessee shall obtain and furnish surety in a
form satisfactory to Lessor, covering the faithful performance of
the work and the payment of all obligations arising thereunder.
-END-
Exhibit C - Page 5
EXHIBIT C - 1
AIR CONDITIONING & HEATING DESIGN STANDARDS
The following are design standards for the building air-conditioning system for
cooling and heating in the air in the subject building:
1. During the normal heating season to maintain an average indoor dry bulb
temperature of not less than 70 degrees F (21 degrees C) or more than 76
degrees (24.4 degrees C) when the outdoor dry bulb temperature is lower
than 65 degrees F (18 degrees C) but not lower than 0 degrees F (-13
degrees C).
2. To maintain comfort cooling for an average indoor dry bulb temperature of
not more than 78 degrees F when the outside dry bulb temperature is 95
degrees F (24 degrees C).
3. During the intermediate seasons, when the outside dry bulb temperature is
below 55 degrees (13 degrees C), cooling will be provided by outside air
usage in conjunction with operating of return air, outside air and exhaust
air dampers.
4. To furnish not less than .10 cubic foot of fresh air per minute per square
foot of rentable area, and between .20 and 1.0 cubic feet of total air per
minute, per square foot of rentable occupied space.
5. Lessor will not be responsible for the failure of the air-conditioning
system if such failure results from (i) the occupancy of the Premises
with more than an average of one (1) person for each one hundred (100)
usable square feet of floor area (ii) the installation or operation by
Lessee of machines and appliances, the installed electrical load of
which when combined with the load of all lighting fixtures exceeds five
(5) xxxxx per square foot of floor area and in any manner exceeding the
aforementioned occupancy and electrical load criteria, or (iii)
rearrangement of partitioning after the initial preparation of the
Premises. If interference with normal operation of the
air-conditioning system in the Premises results, necessitating changes
in the air conditioning system servicing the Premises, such changes
shall be made by Lessor upon written notice to Lessee at Lessee's sole
cost and expense. Lessee agrees to lower and close window coverings
when necessary because of the sun's position whenever the air
conditioning system is in operation, and Lessee agrees at all times to
cooperate fully with Lessor and to abide by all the Rules and
Regulations attached hereto as well as reasonable rules and regulations
which Lessor may hereafter prescribe involving the air-conditioning
system.
-- END --
Exhibit C-1 - Page 1
EXHIBIT D
CLEANING SERVICES
(FIVE NIGHTS PER WEEK)
LESSEE'S PREMISES
1. Vacuum clean all carpeted areas.
2. Sweep and dust mop all non-carpeted areas. Wet mop whenever necessary.
3. All office furniture such as desks, chairs, files, filing cabinets, etc.
shall be dusted with a clean treated dust cloth whenever necessary and
only if such surfaces are clear of Lessee's personal property including
but not limited to plants.
4. Empty and wash ashtrays.
5. Empty wastepaper baskets and remove waste to the designated areas.
6. All vertical surfaces within arms reach shall be spot cleaned to remove
finger marks and smudges. Baseboard and window xxxxx are to be spot
cleaned whenever necessary.
7. All cleaning of cafeterias, vending areas, kitchen facilities are
excluded. Lessee may make necessary arrangements for same directly with
Lessor's cleaning maintenance company.
8. Cleaning hours shall be Monday through Friday between 5:30 p.m. and
11:00 p.m.
9. No cleaning service is provided on Saturday, Sunday and Building
Holidays.
10. Cartons or refuse in excess which can not be placed in wastebaskets
will not be removed. Lessee is responsible to place such unusual
refuse in trash dumpster.
11. Cleaning maintenance company will not remove nor clean tea, office cups or
similar containers. If such liquids are spilled in waste baskets, the
waste baskets will be emptied but not otherwise cleaned. Lessor will not
be responsible for any stained carpet caused from liquids leaking or
spilling from Lessee's wastepaper receptacles.
12. Upon completion of cleaning, all lights will be turned off and doors
locked leaving the Premises in an orderly condition.
13. Glass entrance doors will be cleaned nightly. Interior glass doors or
glass partitions are excluded. Lessee may make arrangements for same with
Lessor's cleaning maintenance company.
COMMON AREAS
1. Vacuum all carpeting in entrance lobbies, outdoor mats and all
corridors.
2. Wash glass doors in entrance lobby with a clean damp cloth and dry
towel.
3. Clean cigarette urns. Sweep and/or wet mop all resilient tile
flooring. Hard surface floors such as quarry tile, etc., shall be
cleaned nightly.
4. Wash, clean and disinfect water fountains.
5. Clean all elevators and stairwells.
6. Lavatories -- Men and Women.
a. Floors in all lavatories shall be wet mopped each evening with a
germicidal detergent to ensure a clean and germ free surface.
b. Wash and polish all mirrors, shelves, bright work including any
piping and toilet seats.
c. Wash and disinfect wash basins and sinks using a germicidal
detergent.
d. Wash and disinfect toilet bowls and urinals.
e. Keep lavatory partitions, tiled walls, dispensers and receptacles in
a clean condition using a germicidal detergent when necessary.
f. Empty and sanitize sanitary disposal receptacles.
g. Fill toilet tissue holders, towel dispensers and soap dispensers.
Refills to be supplied by Lessor.
7. Clean all air ventilation grill work in ceilings.
Exhibit D - Page 1
EXHIBIT E
BUILDING HOLIDAYS
BUILDING CLOSED
* NEW YEAR'S DAY
* MEMORIAL DAY
* INDEPENDENCE DAY
* LABOR DAY
* THANKSGIVING DAY
* CHRISTMAS DAY
-- END --
Exhibit E - Page 1
EXHIBIT F
TENANT ESTOPPEL CERTIFICATE
TO: MORTGAGEE and/or its affiliates and/or whom else it may concern:
1. The undersigned is the Lessee (Tenant) under that certain Lease dated
_______________ by and between ______________ as Lessor (Landlord) and as
Lessee, covering those certain premises commonly known and designated as
____ r.s.f, on the _____( ) floor of ______________________,NJ.
2. The Lease has not been modified, changed, altered or amended in any
respect (except as indicated following this sentence) and is the only
Lease or agreement between the undersigned and the Lessor affecting said
premises. If none, state "none."
3. The undersigned has made no agreements with Lessor or its agents or
employees concerning free rent, partial rent, rebate of rental payments or
any other type of rental concession (except as indicated following this
sentence). If none, state "none."
4. The undersigned has accepted and now occupies the premises, and is and
has been open for business since ______________, 2000. The Lease term
began _____________, 2000, and the rent for said premises has been paid
to and including ______________, 2000 in conformity with this Lease
agreement. No rent has been prepaid for more than two (2) months. The
fixed minimum rent being paid as above is $___________ per month. If
Lessee is not in full possession, whether Lessee has assigned the
Lease, sublet all or any portion of the Premises, or otherwise
transferred any interest in the Lease or the Premises, Lessee agrees to
provide a copy of such assignment, sublease, or transfer upon request.
5. The Lease is not in default and is in full force and effect. As of the
date hereof, the undersigned is entitled to no credit, no free rent and no
offset or deduction in rent.
6. All alterations, improvements, additions, build-outs, or construction
required to be performed under the Lease have been completed in accordance
with the terms of the Workletter attached to Lease as Exhibit C.
7. The Lease does not contain and the undersigned does not have any
outstanding options or rights of first refusal to purchase the premises or
any part thereof or the real property of which the premises are a part.
8. No actions, whether voluntary or otherwise, are pending against the
undersigned under the bankruptcy laws of the United States or any State
thereof.
9. There are currently no valid defenses, counterclaims, off-sets, credits,
deductions in rent, or claims against the enforcement of any of the
agreements, terms, or conditions of the Lease.
10. The undersigned acknowledges that all the interest of Lessor in and to
the above-mentioned Lease is being duly assigned to MORTGAGEE or one of
its affiliates hereunder and that pursuant to the terms thereof (i) all
rental payments under said Lease shall continue to be paid to Lessor in
accordance with the terms of the Lease unless and until you are otherwise
notified in writing by MORTGAGEE, or its successor or assigns and (ii) no
modification, revision, or cancellation of the Lease or amendments thereto
shall be effective unless a written consent thereto of such mortgagee is
first obtained.
11. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of the Lessee.
Dated this ______________day of _____________________, 2000
, LESSEE
_________________________________
Name:
Title:
Exhibit F - Page 1
EXHIBIT G
COMMENCEMENT DATE AGREEMENT
1. PARTIES
THIS AGREEMENT made the ____________day of _________________, 2000 is by
and between ________________________________________ (hereinafter
"Lessor") whose address is c/o Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and ___________________________
(hereinafter "Lessee") whose address is ____________________.
2. STATEMENT OF FACTS
2.1 Lessor and Lessee entered into a Lease dated _________________, 2000
(hereinafter "Lease") setting forth the terms of occupancy by Lessee
of approximately ________________________ rentable square feet on
the ___________________(__) floor (hereinafter "Premises") at
____________________________________ (hereinafter "Building"); and
2.2 The Term of the Lease is for ________________________ (__) months
with the Commencement Date of the initial Term being defined in the
Preamble to the Lease as being subject to change under Articles 27
and 43 thereof; and
2.3 It has been determined in accordance with the provisions of Articles
27 and 43 of the Lease that ____________________________, 2000 is
the Commencement Date of the Term of the Lease.
3. STATEMENT OF TERMS
NOW, THEREFORE, in consideration of the Premises and the covenants
hereinafter set forth, it is agreed:
3.1 The Commencement Date of the Term of the Lease is
__________________, 2000 and the Expiration Date thereof is
_____________________, 2000 and the Lease Preamble Articles 6 and
9 shall be deemed modified accordingly.
3.2 Article 10 of the Preamble shall be deemed modified as follows:
3.3 This Agreement is executed by the parties hereto for the purpose of
providing a record of the Commencement and Expiration Dates of the
Lease, adjust the Term of the Lease and Fixed Basic Rent amount
accordingly.
3.4 Except as modified herein, the Lease covering the Premises shall
remain in full force and effect as if the same were set forth in
full herein and Lessor and Lessee hereby ratify and confirm all the
terms and conditions thereof.
3.5 This agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives,
successors and permitted assigns.
3.6 Each party agrees that it will not raise or assert as a defense to
any obligation under the Lease or this Agreement or make any claim
that the Lease or this Agreement is invalid or unenforceable due to
any failure of this document to comply with ministerial requirements
including, but not limited to, requirements for corporate seals,
attestations, witnesses, notarizations, or other similar
requirements, and each party hereby waives the right to assert any
such defense or make any claim of invalidity or unenforceability due
to any of the foregoing.
IN WITNESS THEREOF, Lessor and Lessee have hereunto set their hands and
seals the date and year first above written and acknowledge one to the other
they possess the requisite authority to enter into this transaction and to sign
this Agreement.
LESSOR: LESSEE:
XXXX-XXXX XXXXXX REALTY L.L.C.
By: Parsippany Office Associates L.L.C.
By: Xxxx-Xxxx Realty, L.P., managing member
By Xxxx-Xxxx Realty Corporation, its general partner
By:_____________________________ By:_____________________________
Xxxx Xxx Xxxxxxxx Name:
Vice President, Leasing NJ/PA Title:
Exhibit G - Page 1
EXHIBIT H
LETTER OF CREDIT FORM
Bank: Date:
c/o Xxxx-Xxxx Realty Corporation 00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
RE: Irrevocable, Clean Letter of Credit No.
Gentlemen:
At the request of ___________(herein the "Company") we, as drawee, hereby
establish our Irrevocable Letter of Credit No. ______ in your favor and
authorize you to draw on us up to an aggregate sum of ______________, available
by your drafts at sight as of
All drafts must be presented at our office at our close of business not later
than ______ together with a statement signed by a duly authorized representative
of (or duly authorized designee of any subsequent holder of this credit) (herein
the "Beneficiary") certifying that the Beneficiary is entitled to draw such
draft pursuant to a Lease Agreement between it and the Company dated
_____________. Reference in this credit to a Lease Agreement dated ____________
is for identification purposes only, and the terms and conditions of same are
not incorporated in nor made part of this credit. We hereby engage with you (and
any subsequent holder of this credit) that we shall accept said statement as
binding, correct and conclusive without verification or investigation as to the
accuracy, veracity, correctness, genuineness or validity of the same.
If this credit is not renewed on or before the last date for presentation of
drafts for an additional period not less than twelve (12) months on an ongoing
basis throughout the term of the Lease Agreement, the amount of this credit
shall be paid to the Beneficiary upon demand, notwithstanding that such demand
may be made up to thirty (30) days after the last date for presentation of
drafts.
Should the Beneficiary not make demand for payment within the specified period,
then the Letter of Credit shall be automatically renewed for an additional
twelve (12) month period for each succeeding year until or thirty (30) days
after the expiration or sooner termination of the aforesaid Lease Agreement,
whichever occurs later.
No charges are payable by the Beneficiary. All charges are for the account of
the Company.
We hereby engage with the drawers, endorsers and bona fide holders of all drafts
drawn under and in compliance with the terms of this Letter of Credit that such
drafts will be duly honored upon presentation to the drawee.
This Letter of Credit is subject to the "Uniform Customs and Practice for
Documentary Credits" International Chamber of Commerce Brochure,
Address all drafts, documents and correspondence regarding this Letter of Credit
to at the above address, mentioning specifically our Letter of Credit No.
________________.
Very truly yours,
Exhibit H - Page 1
