LEASE AGREEMENT
This Agreement is made on the 18th day of September, 0000,
X X X X X X X : LIVINGSTON CORPORATE PARK
ASSOCIATES, L.L.C.
A Limited Liability Company of the State
of New
Jersey
000 Xxxxxx Xxxxxxxx, Xxxxx 000, Xxxxx
Xxxxx, Xxx
Xxxxxx 00000
(hereinafter referred to as "Landlord"),
A N D : XXXX, XXXX & COMPANY, INC.
00 Xxxx Xxxxxx, Xxxx Xxxxxx, Xxx Xxxxxx
00000
(hereinafter referred to as "Tenant").
W I T N E S S E T H :
1. PREMISES, TERM AND USE.
(a) The Landlord does hereby lease to the Tenant, and the
Tenant does
hereby rent from the Landlord the following described premises:
approximately
34,948 rentable square feet of space as shown on the floor plan
attached hereto
as Exhibit A (consisting of 24,246 rentable square feet on the
third floor, and
approximately 10,702 rentable square feet on the second floor,
hereinafter
referred to as the "Demised Premises") in the office building
located at 000
Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx (the
"Building"), for a term
of ten (10) years, commencing on the date set forth in
Paragraph l(b) herein,
(the "Commencement Date") and ending ten (10) years later, to
be used and
occupied only and for no other purpose than general,
administrative and
executive offices, and any lawfully permitted use.
(b) The Commencement Date shall be defined as follows:
(1) In the event that Landlord shall not perform the Tenant
Improvements
(as defined in Paragraph 39 herein), the Commencement Date
shall be that date
which is one hundred eighty (180) days from the date that
Landlord notifies
Tenant that the Demised Premises will be available. However,
despite the date
of said notice from Landlord to Tenant, the notice shall be
effective as of the
first day of the calendar month following the month in which
said notice was
provided to Tenant.
(2) In the event that Landlord shall perform the Tenant
Improvements (as
defined in Paragraph 39 herein), then upon completion of
Tenant's plans,
Landlord and Tenant shall create a construction schedule, and
the
Commencement Date shall be the date of substantial completion
of the Tenant
Improvements and issuance of a Certificate of Occupancy
(Temporary,
Conditional or Permanent) for the Demised Premises. In the
event that
Landlord is unable to deliver the Demised Premises within
fourteen (14) days
after the Commencement Date as set forth in the construction
schedule, Tenant
shall be entitled to a two (2) day rent abatement for each day or
part thereof
that Landlord is delayed in delivering the Demised Premises,
beginning on the
fifteenth (15th) day after the Commencement Date as set forth
in the
construction schedule.
(c) It is understood and agreed by and between the parties
hereto that the
Landlord is providing Tenant with six (6) months notice of the
anticipated
occupancy of the Demised Premises in order that Tenant may
provide notice to
its current Landlord. However, it is intended that the actual
time for completion
of the Tenant Improvements (whether performed by Landlord
or Tenant) shall
be ninety (90) days from the date that the Demised Premises
become vacant.
(d) In the event that Landlord shall perform the Tenant
Improvements,
Tenant shall be entitled to enter the Demised Premises
commencing sixty (60)
days prior to the Commencement Date (as set forth on the
construction
schedule referred to in subparagraph (b)(ii) above), for the
purpose of
installation of telephone and computer wiring/cabling.
However, Tenant shall
not interfere with Landlord's construction during such early
entry.
2. PAYMENT OF RENT.
Commencing on the Commencement Date, Tenant covenants
and agrees to pay
to the Landlord, as rent for and during the term hereof, the sum
of Five Million
Eight Hundred Seventy-One Thousand Two Hundred Sixty-
Four and 00/100
($5,871,264.00) Dollars, payable as follows:
(a) During the first, through, to and including the second
year of the
initial term of this Lease, the sum of Five Hundred Twenty-Four
Thousand Two
Hundred Twenty and 00/100 ($524,220.00) Dollars Per
Annum; Forty-Three
Thousand Six Hundred Eighty-Five and 00/100 ($43,685.00)
Dollars Per
Month, due and payable on the first day of each calendar
month.
(b) During the third, through, to and including the fifth year
of the initial
term of this Lease, the sum of five Hundred Fifty-Nine
Thousand One Hundred
Sixty-Eight and 00/100 ($559,168.00) Dollars Per Annum;
Forty-Six Thousand
Five Hundred Ninety-Seven and 33/100 ($46,597.33) Dollars
Per Month, due
and payable on the first day of each calendar month.
(c) During the sixth, through, to and including the tenth
year of the initial
term of this Lease, the sum of Six Hundred Twenty-Nine
Thoustand Sixty-Four
and 00/100 ($629,064.00) Dollars Per Annum; Fifty-Two
Thousand Four
Hundred Twenty-Two and 00/100 ($52,422.00) Dollars Per
Month, due and
payable on the first day of each calendar month.
Notwithstanding anything to the contrary contained herein,
basic rent for the
first month of the initial term of this Lease shall be due and
payable upon
execution of this Lease. Said rent shall accrue interest from the
date same is
provided to Landlord until the Commencement Date, and all
accrued interest
shall be equally divided between Landlord and Tenant.
3. LATE PAYMENTS.
In the event that payment of rent is not received by Landlord by
the fifteenth
(15th) day of each month, Tenant shall pay, as additional rent, a
late charge
equal to five (5) percent of the late payment. Landlord shall be
entitled to the
same remedies for non-payment of late charges as for non-
payment of rent.
Notwithstanding anything to the contrary contained herein,
however, said late
charge shall not be effective until the second late payment
during any twelve
(12) month period.
4. REPAIRS AND CARE.
(a) The Demised Premises shall be delivered to Tenant on
the
Commencement Date in "as is" condition, subject to the terms
of Paragraph 41
herein. The Tenant has examined the Demised Premises and has
entered into
this Lease without any representation on the part of the
Landlord as to the
condition thereof. The Tenant shall take good care of the
Demised Premises
and shall, at the Tenant's own cost and expense, make all
nonstructural repairs,
including painting and decorating, and shall maintain the
Demised Premises in
good condition and state of repair. The Tenant shall neither
encumber nor
obstruct the sidewalks, driveways, yards, entrances, hallways
and stairs. The
Tenant shall not place a load upon any floor of the Demised
Premises
exceeding the floor load per square foot area which it was
designed to carry and
which is allowed by law. Landlord reserves the right to
prescribe the weight
and position of all safes.
(b) Not later than the last day of the term, Tenant shall, at
Tenant's
expense, remove all Tenant's personal property and those
improvements made
by Tenant which have not become the property of Landlord,
including, but not
limited to trade fixtures, moveable paneling and the like; repair
all injury done
by or in connection with the installation or removal of said
property and
improvements; and surrender the Demised Premises in as good
condition as
they were at the beginning of the term, excepting reasonable
wear and damage
by fire, the elements, casualty, or other cause not due to the
misuse or neglect
by Tenant, Tenant's agents, servants, visitors or licensees. All
other property of
Tenant remaining on the Demised Premises after the last day of
the term or
earlier termination of this Lease shall be conclusively deemed
abandoned and
may be removed by Landlord, and Tenant shall reimburse
Landlord for the cost
of such removal. Landlord may have any such property stored
at Tenant's risk
and expense. It is intended that any improvements made to the
Demised
Premises which become affixed to the Demised Premises shall
become the
property of Landlord, and any improvements which are
moveable shall remain
the property of Tenant. It is hereby agreed between the parties
hereto that, in
the event Tenant installs an interior staircase within the
Demised Premises,
said staircase shall remain at the conclusion or earlier expiration
of the Lease,
and Tenant shall not be required to remove the staircase.
5. COMPLIANCE WITH LAWS.
The Tenant shall promptly comply with all laws, ordinances,
rules, regulations,
requirements and directives of the Federal, State and Municipal
Governments
or Public Authorities and of all their departments, bureaus and
subdivisions,
applicable to and affecting the said Demised Premises, their use
and occupancy,
for the correction, prevention and abatement of nuisances,
violations or other
grievances in, upon or connected with the said Demised
Premises, during the
term hereof; and shall promptly comply with all orders,
regulations,
requirements and directives of the Board of Fire Underwriters
or similar
authority and of any insurance companies which have issued or
are about to
issue policies of insurance covering the said Demised Premises
and its contents,
for the prevention of fire or other casualty, damage or injury, at
the Tenant's
own cost and expense. Tenant shall observe and comply with
the rules and
regulations hereinafter set forth in Exhibit B, attached hereto
and made a part
hereof by this reference, and with such further reasonable rules
and regulations
as Landlord may prescribe, upon written notice to Tenant, for
the safety, care
and cleanliness of the Building and the comfort, quiet and
convenience of other
occupants of the Building. Landlord represents that, to the best
of its
knowledge, as of the Commencement Date the Demised
Premises and Building
are in compliance with all Federal, State and local laws and
regulations
including, but not limited to, the Americans with Disabilities
Act. Landlord
shall be responsible for maintaining compliance with the
Americans with
Disabilities Act for the Building and the Demised Premises
during the term of
this Lease, provided that Tenant does not make any alterations
which take the
Demised Premises out of compliance. In such case, Tenant shall
be responsible
for bringing the Demised Premises into compliance with the
Americans with
Disabilities Act.
6. ALTERATIONS AND IMPROVEMENTS.
No alterations, additions or improvements shall be made, and
no climate
regulating, air conditioning, cooling, heating or sprinkler
systems, television or
radio antennas, heavy equipment, apparatus and fixtures, shall
be installed in
or attached to the Demised Premises, without the prior written
consent of the
Landlord. Notwithstanding the foregoing, however, during any
twelve (12)
month period, Tenant shall be entitled to make non-structural
alterations within
the Demised Premises up to the amount of $100,000.00, upon
at least ten (10)
business days prior written notice to Landlord. Any alterations
proposed by
Tenant in excess of the foregoing amount shall be subject to
Landlord's prior
written consent, which consent shall not be unreasonably
withheld or delayed.
In addition, Tenant shall be entitled to install additional HVAC
equipment
and/or communication devices on the roof of the Building,
subject to Landlord's
prior written consent, which shall not be unreasonably withheld
or delayed.
However, Landlord's failure to consent due to aesthetic reasons
shall not be
considered unreasonable. Any alterations or improvements to be
performed by
Tenant pursuant to this Paragraph shall be at Tenant's sole cost
and expense,
and Tenant shall obtain all necessary approvals and/or permits
from all
governmental authorities having jurisdiction over the premises.
Unless
otherwise provided herein, all such alterations, additions or
improvements and
systems, when made, installed in or attached to the said
Demised Premises,
shall belong to and become the property of the Landlord and
shall be
surrendered with the Demised Premises and as part thereof
upon the expiration
or sooner termination of this Lease, without hindrance,
molestation, injury or
charge to Landlord. At the conclusion of the Lease term or
earlier expiration of
this Lease, Tenant shall be responsible for all restoration costs
for alterations,
additions and improvements which have not been permanently
affixed to the
Demised Premises, including, but not limited to movable
furniture, equipment
and/or roof top telecommunications equipment.
7. TENANT'S LIABILITY INSURANCE.
Tenant shall provide, at Fits own expense, and keep in force
during the term of
this Lease and any renewal terms, general comprehensive
liability insurance
with an insurance company licensed to do business in the State
of New Jersey,
selected by Tenant and reasonably acceptable to Landlord, and
in an amount
reasonably required by Landlord, but in any event not less than
$1,000,000.00
with respect to injury or death to any one person and
$3,000,000.00 with
respect to injury or death to more than one person in any one
accident or other
occurrence, and $1,000,000.00 with respect to damage to
property. Such policy
or policies shall include Landlord, as additional insured. Tenant
agrees to
deliver certificates evidencing such insurance to Landlord within
thirty (30)
days of the date of execution of this Lease and within thirty (30)
days after the
date of renewal of the policies. Such insurance shall not be
cancelable without
thirty (30) days prior written notice to Landlord.
8. TENANT'S CASUALTY INSURANCE.
During the term of this Lease, and any renewal terms, Tenant
shall cause its
improvements to the Demised Premises to be insured for the
benefit of Tenant,
against loss or damage by fire and customary extended
coverage in an amount
equal to the replacement value thereof, if insurance in such
amount is available.
Tenant agrees to deliver a certificate evidencing such insurance
to Landlord
within thirty (30) days of the date of execution of this Lease.
9. DAMAGE OR DESTRUCTION BY FIRE OR OTHER
CASUALTY.
(a) If the Building is damaged by fire or other casualty to
such extent that
the cost of restoration, as determined by an insurance adjustor
licensed in the
State of New Jersey, will equal or exceed fifty (50) percent of
the replacement
value of the Building (exclusive of foundations) just prior to the
occurrence of
the damage, then either Landlord or Tenant may, within sixty
(60) days from
the date of the damage, give the other party a written notice of
election to
terminate this Lease, effective thirty (30) days from the date of
such notice.
However, in the event that neither party terminates this Lease in
such
circumstance, then the basic rent and additional rent shall be
abated in direct
proportion to that amount of square footage in the Demised
Premises which
cannot be used by Tenant for the purposes set forth in
Paragraph 1 herein,
which abatement shall be effective as of the date of the casualty.
In addition,
Landlord shall be responsible for making restoration within one
hundred eighty
(180) days after the date of the damage, subject to Force
Majeure. In the event
that restoration is not made within said time period, Tenant
shall have the right
to terminate this Lease, upon thirty (30) days written notice to
Landlord.
Notwithstanding anything to the contrary contained herein, if
the casualty
occurs in a manner that affects telephones, computers,
electronic equipment
and the like such that Tenant is unable to conduct its business,
then the entire
rent shall be abated as of the date of the casualty until such time
as these
essential services have been restored.
(b) If the Building is damaged by fire or other casualty to
such extent that
the cost of restoration, as determined by an insurance adjustor
licensed in the
State of New Jersey, will be less than (50) percent of the
replacement value of
the Building (exclusive of foundations) just prior to the
occurrence of the
damage, then the basic rent and additional rent shall be abated
in direct
proportion to that amount of square footage in the Demised
Premises which
cannot be used by Tenant for the purposes set forth in
Paragraph 1 herein. In
addition, Landlord shall be responsible for making restoration
within one
hundred eighty (180) days after the date of the damage, subject
to Force
Majeure. In the event that restoration is not made within said
time period,
Tenant shall have the right to terminate this Lease, upon thirty
(30) days
written notice to Landlord. Notwithstanding anything to the
contrary contained
herein, if the casualty occurs in a manner that affects
telephones, computers,
electronic equipment and the like such that Tenant is unable to
conduct its
business, then the entire rent shall be abated as of the date of
the casualty until
such time as these essential services have been restored.
10. WAIVER OF SUBROGATION.
Landlord and Tenant shall obtain, for each policy of insurance
secured by them
regarding the Demised Premises, or any Property located
therein, whether
required by this Lease or in addition to that which is required by
this Lease, an
appropriate clause therein or endorsement thereon, pursuant to
which such
insurance company waives subrogation or consents to the
waiver of the right of
one party to recover against the other.
11. INCREASE OF INSURANCE RATES.
If by reason of the use to which the Demised Premises are put
by the Tenant or
character of or the manner in which the Tenant's business is
carried on, the
insurance rates for fire and other hazards shall be increased, the
Tenant shall
upon demand, pay to the Landlord, as rent, the amounts by
which the
premiums for such insurance are increased. Such payment shall
be paid with
the next installment of rent but in no case later than thirty (30)
days after such
demand, whichever occurs sooner.
12. ASSIGNMENT AND SUBLEASE.
Tenant may assign or sublease the within Lease to any party
subject to the
following:
(a) In the event that the Tenant desires to sublease the
whole or any
portion of the Demised Premises or assign the within Lease to
any other party,
the Tenant's intentions shall be communicated to the Landlord
in writing.
Landlord shall have the option, exercisable in writing to Tenant
within sixty
(60) days after receipt of such notice from Tenant, to recapture
the within
Lease, or alternatively, to recapture the Demised Premises, or
the portion
thereof Tenant sought to sublet, and this Tenant shall then be
fully released
from any and all obligations hereunder.
(b) In the event that the Landlord elects not to recapture
either the Lease
or the Demised Premises as hereinabove provided, Tenant may
assign this
Lease or sublet the whole or any portion of the Demised
Premises (but not less
than 2,500 square feet), subject to Landlord's prior written
consent, which
consent shall not be unreasonably withheld or delayed, and
subject to the
consent of any mortgagee, trust deed holder or ground lessor,
on the basis of the
following terms and conditions:
(1) The Tenant shall provide to Landlord the name and
address of the
proposed assignee or sublessee.
(2) The assignee or sublessee shall assume, by written
instrument, all of
the obligations of this Lease, and a copy of such assumption
agreement shall be
furnished to Landlord within ten (10) days of its execution. Any
sublease shall
expressly acknowledge that said sublessee's rights against the
Landlord shall be
no greater than those of the Tenant.
(3) The Tenant 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 rent and additional rent reserved
herein, through the
entire term of this Lease, as the same may be renewed, extended
or otherwise
modified.
(4) The Tenant and any assignee shall promptly pay to
Landlord: (i) one-
half of any consideration received by Tenant for any
assignment; or (ii) one-
half of the rent, as and when received by Tenant, in excess of
the rent required
to be paid by Tenant to Landlord for the area sublet, computed
on the basis of
an average square foot rent for the gross square footage Tenant
has leased.
However, Tenant shall be entitled to deduct the reasonable
costs incurred by
Tenant in connection with the assignment (i.e. construction
costs, broker
commissions).
(5) In any event, acceptance by Landlord of any rent from
the assignee, or
from any of the subtenants, or the failure of Landlord to insist
upon a strict
performance of any of the terms, conditions and covenants
herein shall not
release Tenant herein, nor any assignee assuming this Lease,
from any and all
of the obligations herein during and for the entire term of this
Lease, as the
same may be renewed, extended or otherwise modified.
(6) Tenant shall be responsible for payment to Landlord of
Landlord's
reasonable attorneys' fees and handling costs incurred for each
request for
consent to any sublet or assignment, with such payment to be
made within ten
(10) business days of written notice from Landlord, but in no
event beyond the
effective date of assignment.
(c) Notwithstanding anything to the contrary contained
herein, Tenant
shall have the right to assign this Lease or sublet the Demised
Premises, in
whole or in part, to any parent, affiliate or subsidiary of Tenant
or in
connection with a merger of Tenant provided that the surviving
entity in a
merger shall have a tangible net worth (determined in
accordance with
generally accepted accounting principles) not less than the net
worth of Tenant
and its guarantors, if any, as of the date of commencement of
this Lease.
(d) Without limiting any of the provisions of this Lease, if,
pursuant to the
Federal bankruptcy Code (hereinafter referred to as the
"Code"), or any similar
law hereinafter enacted having the same general purpose,
Tenant is permitted
to assign this Lease notwithstanding the restrictions contained
in this Lease,
then 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 (1) year's 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
Landlord for the balance of the term of the Lease, without
interest, as security
for the full performance of all of Tenant's obligations under this
Lease, to be
held and applied in the manner specified for security in
Paragraph 18.
(e) Except as specifically set forth above, no portion of the
Demised
Premises or of Tenant' 8 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 Tenant, nor shall Tenant pledge its interest
in this Lease or
in any security deposit required hereunder.
13. INSPECTION AND REPAIR.
The Tenant agrees that the Landlord and the Landlord's agents,
employees or
other representatives, shall have the right to enter into and upon
the said
Demised Premises or any part thereof, at all reasonable hours,
accompanied by
a member of Tenant's staff, for the purpose of examining the
same or making
such repairs or alterations therein as may be necessary for the
safety and
preservation thereof. This clause shall not be deemed to be a
covenant by the
Landlord nor be construed to create an obligation on the part of
the Landlord to
make such inspection or repairs. In the event that Landlord shall
enter the
Demised Premises on an emergency basis, Landlord shall
attempt to notify
Tenant's staff prior to such entry; if Landlord is unable to notify
Tenant' 8 staff,
Landlord shall make such entry with a member of Landlord's
executive
management staff.
14. GLASS AND OTHER DAMAGE REPAIRS.
In case of the destruction of or any damage to the interior glass
in the Demised
Premises, or the destruction of or damage of any kind
whatsoever to the
Demised Premises, caused by the carelessness, negligence or
improper conduct
on the part of the Tenant or the Tenant's agents, employees,
subtenants,
assignees or successors, the Tenant shall repair the said damage
or replace or
restore any destroyed parts of the Demised Premises, as
speedily as possible, at
the Tenant's own cost and expense.
15. SIGNS.
The Tenant shall not place nor allow to be placed any signs of
any kind
whatsoever, upon, in or about the Demised Premises or any part
thereof, except
of a design and structure and in or at such places as may be
indicated and
consented to by the Landlord in writing. Landlord shall place
Tenant's name:
(i) on the directory in the lobby; and (ii) the outside directory, if
any. Tenant
shall not have the right to have additional names placed on the
directories
without Landlord's prior written consent. However, Tenant
shall have the right,
at Tenant's sole cost and expense, to place a sign containing its
company name
on the two upper corners of the Building closest to the corner
of South Orange
Avenue and Eisenhower Parkway. In addition, subject to
discussions between
Landlord and Saint Barnabas Medical Center, the neighboring
property owner,
Landlord shall use its best efforts to obtain signage rights on
South Orange
Avenue for the benefit of Tenant, in order that Tenant may
place a "V-shaped"
monument sign on the corner of South Orange Avenue and
Eisenhower
Parkway, subject to Landlord's prior written consent, which
consent shall not be
unreasonably withheld. In addition to the foregoing, Tenant
shall have the right
to place a "V-shaped" monument sign on property owned by
Landlord on the
corner of South Orange Avenue and Passaic Avenue, subject to
Landlord's prior
written consent, which consent shall not be unreasonably
withheld. All such
signs shall be subject to all laws, rules, regulations, orders and
the like of any
governmental authorities having jurisdiction over the Building.
In case the
Landlord or the Landlord's agents, employees or representatives
shall deem it
necessary to remove any such signs in order to paint or make
any repairs,
alterations or improvements in or upon the Demised Premises
or any part
thereof, they may be so removed, but shall be replaced at the
Landlord's
expense when the said repairs, alterations or improvements shall
have been
completed. Any signs permitted by the Landlord shall at all
times conform with
all municipal ordinances or other laws, ordinances and
regulations applicable
thereto. At the conclusion of the Lease term, or earlier
termination of this
Lease, Tenant, at Tenant's sole cost and expense, shall remove
its signs from
the Building and the property surrounding the Building.
16. MORTGAGE PRIORITY.
This Lease shall not be a lien against the Demised Premises in
respect to any
mortgages that may herebefore or hereafter be placed upon said
premises. The
recording of such mortgage or mortgages shall have preference
and precedence
and be superior and prior in lien to this Lease, irrespective of
the date of
recording and the Tenant agrees to execute any instruments,
without cost,
which may be deemed necessary or desirable, to further effect
the subordination
of this Lease to any such mortgage or mortgages. However,
Tenant's obligation
to execute any instruments to evidence subordination of this
Lease is
conditioned upon Tenant being provided with a non-disturbance
agreement
from the mortgagee. A refusal by the Tenant to execute such
instruments shall
entitle the Landlord to the option of canceling this Lease, and
the term hereof is
hereby expressly limited accordingly.
Tenant shall promptly comply with all reasonable requests of
Landlord's
mortgagee.
17. UTILITIES.
(a) Tenant shall have access to the Demised Premises 24
hours per day, 7
days per week. Landlord shall provide Tenant with HVAC
during the Building
Hours (Monday through Friday, 7:00 a.m. to 7:00 p.m. and
Saturdays, 7:00
a.m. to 1:00 p.m., with the following holidays excepted: New
Years Day,
Presidents Day, Good Friday, Memorial Day, Independence
Day, Labor Day,
Thanksgiving Day and Christmas Day). If Tenant requests any
or all of the
above services outside of Building Hours, the same shall be
provided upon
advance notice at a cost as follows: (i) during the first, through,
to and
including the fifth year of the initial term of this Lease, the sum
of $30.00 per
zone per hour; and (ii) during the sixth, through, to and
including the tenth
year of the initial term of this Lease, the sum of $34.50 per zone
per hour.
Notwithstanding anything to the contrary contained herein,
however, the
parties hereto hereby acknowledge that the foregoing fees are
based upon
current utility charges. In the event of a material increase in
utility charges,
said increase shall be paid by Tenant.
(b) In the event that the Demised Premises are separately
metered, Tenant
shall be responsible for payment for its electrical usage directly
to the utility
company. In the event the Demised Premises are not separately
metered,
Tenant shall reimburse Landlord for its electrical usage pursuant
to an energy
survey, to be performed (no more than once per Lease year) by
an energy survey
company chosen by Landlord, at Tenant's sole cost and
expense. However, the
cost of said energy survey shall be reasonable and standard in
the industry. The
parties hereto hereby agree that, until the energy survey has
been conducted,
Tenant shall reimburse Landlord for its electrical usage at the
rate of $1.25 per
rentable square foot per annum, payable monthly.
(c) Landlord shall provide (i) janitorial services five (5)
nights per week;
(ii) elevator service; and (iii) snow removal.
18. EVENTS OF DEFAULT: REMEDIES.
(a) If Tenant does not: (a) within fifteen (15) days after the
due date
thereof pay any installment of basic annual rent, additional rent
or any other
monetary obligation; or (b) within thirty (30) days after written
notice from
Landlord cure a default other than a default in the payment of
basic annual rent
or additional rent (provided, however, that such thirty (30) day
period shall be
extended if the default is of such a nature that it could not
reasonably be cured
within such period of thirty (30) days and Tenant promptly
commences and
thereafter diligently pursues the curing of such default), then, in
any such
event, Tenant shall be deemed in default under this Lease.
(b) If there should occur any default on the part of the
Tenant as set forth
in this Lease, or if during the term hereof the Demised Premises
or any part
thereof shall be or become abandoned or deserted, vacated or
vacant, or should
the Tenant be evicted by summary proceedings or otherwise,
the Landlord, in
addition to any other remedies herein contained or as may be
permitted by law,
may, without being liable for prosecution therefor, or for
damages, re-enter the
Demised Premises and the same have and again possess and
enjoy, so long as
such re-entry is in accordance with all applicable laws, orders,
rules,
regulations and the like of all governmental authorities having
jurisdiction over
the Demised Premises.
(c) At any time or from time to time after any such
expiration or
termination, the Landlord may, as agent for the Tenant or
otherwise, re-let the
Demised Premises, for such term or terms (which may be
greater or less than
the period which would otherwise have constituted the balance
of the term of
this Lease) and on such conditions (which may include
concessions or free rent)
as the Landlord, in its reasonable discretion, may determine, and
receive the
rents therefor, applying the same: (i) to the payment of such
expenses,
reasonable attorney fees and costs, as the Landlord may have
been put to in -e-
entering and repossessions the same and in making such repairs
and alterations
as may be necessary; and (ii) to the payment of the rents due
hereunder. The
Tenant shall remain liable for such rents as may be in arrears
and also the rents
as may accrue subsequent to the re-entry by the Landlord, to
the extent of the
difference between the rents reserved hereunder and the rents, if
any, received
by the Landlord during the remainder of the unexpired term
hereof, after
deducting the aforementioned expenses, fees and costs; the
same to be paid as
such deficiencies arise and are ascertained each month.
Landlord shall in no
way be responsible or liable for any failure to relet the Demised
Premises or any
part thereof, or for any failure to collect any rent due upon any
such reletting.
(d) Upon the occurrence of an event of default as set forth
in this Lease, or
should the Tenant be adjudicated a bankrupt, insolvent or
placed in
receivership, or should proceedings be instituted by or against
the Tenant for
bankruptcy, insolvency, receivership, agreement of composition
or assignment
for the benefit of creditors, or if this Lease or the estate of the
Tenant hereunder
shall pass to another by virtue of any court proceedings, writ of
execution, levy,
sale, or by operation of law, the Landlord may, if the Landlord
so elects, at any
time thereafter, terminate this Lease and the term hereof, upon
giving to the
Tenant or to any trustee, receiver, assignee or other person in
charge of or
acting as custodian of the assets or property of the Tenant, five
(5) days written
notice of the Landlord's intention so to do. Upon the giving of
such notice, this
Lease and the term hereof shall end on the date fixed in such
notice as if the
said date was the date originally fixed in this Lease for the
expiration hereof;
and the Landlord shall have the right to remove all persons,
goods, fixtures and
chattels therefrom, by force or otherwise, without liability for
damages.
19. SURVIVAL OF COVENANTS.
No expiration or termination of this Lease shall relieve the
Tenant of its
liability and obligations under this Lease, and all liability and
obligations shall
survive any expiration or termination. In the event of an
expiration or
termination, whether or not the Demised Premises, or a portion
thereof, shall
have been relet, Tenant shall pay to Landlord the rent up to the
time of such
expiration or termination, and thereafter, Tenant, until the
expiration date as
stated in Paragraph 1 herein, shall be liable to Landlord for, and
shall pay to
Landlord, as and for liquidated and agreed current damages, the
difference, if
any, between: (1) the basic annual rental and additional rent as
stated in this
Lease; and (2) any rent and additional rent received by Landlord
from any new
tenant in the Demised Premises, or a portion thereof.
20. REMOVAL OF TENANT'S PROPERTY.
Any equipment, fixtures, goods or other property of the Tenant,
not removed by
the Tenant upon the termination of this Lease, or upon any
quitting, vacating or
abandonment of the Demised Premises by the Tenant, or upon
the Tenant's
eviction, shall be considered as abandoned and the Landlord
shall have the
right, without any notice to Tenant, to sell or otherwise dispose
of the same, at
the expense of Tenant, and shall not be accountable to the
Tenant for any part
of the proceeds of such sale, if any. In addition, Tenant shall be
responsible for
all restoration costs for removal of signs, movable furniture,
equipment and/or
roof top telecommunications equipment. It is intended that any
improvements
made to the Demised Premises which become affixed to the
Demised Premises
shall become the property of Landlord, and any improvements
which are
moveable shall remain the property of Tenant.
21. REIMBURSEMENT OF LANDLORD.
If the Tenant shall fail or refuse to comply with or perform any
conditions and
covenants of the within Lease, the Landlord may, if the
Landlord so elects,
carry out and perform such conditions and covenants, at the
cost and expense of
the Tenant, and the said cost and expense shall be payable on
demand, At the
option of the Landlord the costs and expenses shall be added to
the installment
of rent due immediately thereafter but in no case later than
thirty (30) days after
such demand, whichever occurs sooner, and shall be due and
payable as such.
This remedy shall be in addition to such other remedies as the
Landlord may
have hereunder by reason of the breach by the Tenant of any of
the covenants
and conditions in this Lease.
22. NON-PERFORMANCE BY LANDLORD.
This Lease and the obligation of the Tenant to pay the rent
hereunder and to
comply with the covenants and conditions hereof, shall not be
affected,
curtailed, impaired or excused because of the Landlord's
inability to supply any
service or material called for herein, by reason of any act of
God, riot, civil
commotion, strikes, lock-out, acts, orders or regulations of
governmental
authority, acts or failure to act of the other party, fire, tornado,
windstorm,
adverse weather conditions, rule, order, regulation or
preemption by any
governmental entity, authority, department, agency or
subdivision or for any
delay which may arise by reason of negotiations for the
adjustment of any fire
or other casualty loss or for any cause beyond the control of
Landlord.
23. NON-LIABILITY OF LANDLORD.
Unless due to the negligence of Landlord, its agents or
employees, the Landlord
shall not be liable for any damage or injury which may be
sustained by the
Tenant or any other person, as a consequence of the failure,
breakage, leakage
or obstruction of the water, plumbing, steam, sewer, waste or
soil pipes, roof,
drains, leaders, gutters, valleys, downspouts or the like or of the
electrical, gas,
power, conveyor, refrigeration, sprinkler, air-conditioning or
heating systems,
elevators or hoisting equipment; or by reason of the elements;
or resulting from
the carelessness, negligence or improper conduct on the part of
any other
Tenant or this Tenant or any other Tenant's agents, employees,
guests,
licensees, invitees, subtenants, assignees or successors; or
attributable to any
interference with, interruption of or failure, beyond the control
of the Landlord,
of any services to be furnished or supplied by the Landlord.
24. NON-WAIVER BY LANDLORD.
The various rights, remedies, options and elections of the
Landlord, expressed
herein, are cumulative, and the failure of the Landlord to
enforce strict
performance by the Tenant of the conditions and covenants of
this Lease or to
exercise any election or option or to resort or have recourse to
any remedy
herein conferred or the acceptance by the Landlord of any
installment of rent
after any breach by the Tenant, in any one or more instances,
shall not be
construed or deemed to be a waiver or a relinquishment for the
future by the
Landlord of any such conditions and covenants, options,
elections or remedies,
but the same shall continue in full force and effect.
25. HAZARDOUS SUBSTANCES.
(a) Tenant agrees not to generate, store, manufacture,
refine, transport,
treat, dispose of, or otherwise permit to be present on or about
the Demised
Premises any Hazardous Substances. As used herein,
Hazardous Substances
shall be defined as any "hazardous chemical," "hazardous
substance" or similar
term as defined in the Comprehensive Environmental
Responsibility
Compensation and Liability Act, as amended (42 U.S.C. 9601,
et seq.), the
New Jersey Industrial Site Recovery Act, as amended (N.J.S.A.
13 : 1K- 6 et
sea ), the New Jersey Spill Compensation and Control Act, as
amended
(N.J.S.A. 58:10-23.11b et sec.), any rules or regulations
promulgated
thereunder, or in any other applicable federal, state or local law,
rule or
regulation dealing with environmental protection. It is
understood and agreed
that the provisions contained in this Paragraph shall be
applicable
notwithstanding the fact that any substance shall not be deemed
to be a
Hazardous Substance at the time of its use by the Tenant but
shall thereafter be
deemed to be a Hazardous Substance. Tenant agrees to
indemnify and hold
harmless the Landlord and each mortgagee of the Demised
Premises from and
against any and all liabilities, damages, claims, losses,
judgments, causes of
action, costs and expenses (including reasonable attorneys' fees)
which may be
incurred by Landlord or any such mortgagee or threatened
against the Landlord
or such mortgagee, relating to or arising out of any breach by
Tenant of the
terms of this Paragraph, said indemnity to survive the expiration
or earlier
termination of this Lease.
(b) Within thirty (30) days of request therefor by Landlord,
Tenant shall
provide Landlord with: (i) its Standard Industrial Classification
Number (said
Standard Industrial Classification number to be obtained by
reference to the
then current Standard Industrial Classification Manual prepared
and published
by the Executive Office of the President, Office of Management
and Budget or
the successor or such publications); and (ii) an opinion letter
from the DEP (or
such other agency or body as shall then have jurisdiction over
ISRA matters) in
a form satisfactory to Landlord's counsel, stating the ISRA does
not then apply
to Tenant, Tenant's use and occupancy of the Demised
Premises.
(c) Landlord hereby represents that, to the best of its
knowledge, the
Demised Premises and the Building comply with all applicable
health and
safety standards, including, but not limited to, environmental
requirements of
all Federal, State and local authorities having jurisdiction over
the premises.
26. REAL ESTATE TAXES.
Commencing no earlier than the second year of the term hereof,
upon receipt of
written notification, Tenant shall pay, as additional rent, its
proportionate share
of the increased real estate taxes assessed or imposed on the
property over the
base year (base year shall be defined as the first twelve (12)
months of Tenant's
occupancy, adjusted to reflect a 100% assessed and occupied
building). Such
additional rent shall be paid monthly or quarterly, as designated
by Landlord.
Landlord shall be entitled to the same remedies for non-payment
of additional
real estate taxes as for non-payment of rent. Tenant's liability
for such increase
in real estate taxes shall be imposed whether the increase is due
to an increase
in the tax rate or valuation or both, but not for a tax increase
which arises as a
result of the sale of the Building. Tenant's proportionate share
shall be
determined by dividing the area of the Demised Premises by the
total amount of
leasable floor area in the Building. Tenant' 9 proportionate
share is hereby
defined as 41.15k. Notwithstanding anything to the contrary
contained herein,
Tenant hereby acknowledges that the property is currently the
subject of a tax
appeal. Upon resolution of the appeal, the amount of the taxes
for base year
purposes shall be adjusted accordingly.
(*However, in the event that Landlord shall enter into a
settlement of the tax
appeal, then such additional rent required to be paid by Tenant
pursuant to this
Paragraph shall be limited to an amount that will not be
increased by more than
ten (10) percent per year during the life of the settlement. For
example, in the
event that the tax appeal is settled such that, within the
settlement period taxes
for the Base Year shall be $200,000 and taxes for the first year
following the
Base Year are increased by fifteen (15) percent to $230,000.00,
Tenant shall
only be required to pay its proportionate share (41.158) of
$20,000.00 rather
than $30,000.00 representing a ten (10) percent increase in the
taxes on the
property over the base year. To illustrate further, in the second
year following
the Base Year, if taxes on the property are increased by an
additional ten (10)
percent to a total of $253,000.00, Tenant shall be required to
pay its
proportionate share (41.15%) of $22,000.00 which represents a
ten (10) percent
increase over the previous year in Tenant's obligation to pay
such additional
rent as set forth in this Paragraph. The foregoing applies only in
the event of a
settlement of a tax appeal and only during the life of the
settlement.
Further, in the event that Landlord shall file an appeal of the
1997 taxes on the
property, Tenant shall not be responsible for the payment of
such additional
rent representing its proportionate share of tax increases over
the Base Year for
a period of two years following said appeal, unless the
increase(s) is due to
either a general rate increase by the Township or an added
assessment due to
improvements to the building.)
27. MAINTENANCE.
Commencing no earlier than the second year of the term hereof,
upon receipt of
written notification, Tenant shall pay, as additional rent, its
proportionate share
of the increase in operating expenses incurred by Landlord over
the base year
(base year shall be defined as the first twelve (12) months of
Tenant's
occupancy, adjusted to reflect a 95W occupied building). Such
additional rent is
to be paid quarterly, and shall be determined by dividing the
area of the
Demised Premises by the total amount of area in the Building.
Tenant's
proportionate share is hereby defined as 41.15%. For purposes
of this Lease,
expenses for maintaining and operating the Building shall mean
and include
those expenses incurred in respect to the operation and
maintenance of the
Building (excluding real estate taxes) in accordance with
accepted principles of
sound management and accounting practices as applied to the
operation and
maintenance of non-institutional, first class office buildings,
including, but not
limited to, expenses for heat, water, snow removal, landscaping,
insurance and
janitorial services. However, all capital repairs, replacements
and
improvements shall be the sole responsibility of Landlord and
the costs thereof
shall not be included in the operating expenses referred to
herein.
28. CONDEMNATION AND EMINENT DOMAIN.
(a) In the event of a taking for any public or quasi-public
use or purpose,
by any lawful power or authority, by exercise of the right of
condemnation or
eminent domain, or by agreement between Landlord and those
having the
authority to exercise such right (hereinafter called a "Taking")
of the entire
Demised Premises or such substantial portion thereof so that
the balance of the
Demised Premises is not suitable for the conduct of Tenant's
normal business
operations therein, then this Lease and the terms hereof shall
cease and expire
on the date of transfer of possession in connection with the
Taking.
(b) In the event of a Taking of any portion of the Demised
Premises as a
result of which this Lease is not terminated as provided above,
or a Taking of
more than forty (40W) percent of the leasable space at the
Building (whether or
not any portion of Demised Premises is included in the Taking),
or a permanent
denial or substantial impairment of adequate access to the
Building and
Demised Premises, then, in such event, Landlord or Tenant
may, at its option,
terminate this Lease by giving notice of termination to the other
within sixty
(60) days after receipt by Tenant of notice that the Taking will
occur, such
notice of termination to be effective as of the date of transfer of
possession in
connection with the Taking.
(c) In the event this Lease i8 not terminated pursuant to the
terms of this
Paragraph, then Landlord shall promptly commence and with
due diligence
continue to restore the portion of the Building and the Demised
Premises
remaining after the Taking to substantially the same condition
and tenantability
as existed immediately preceding the Taking, to the extent such
restoration may
be accomplished with the available net proceeds of the award or
payment to
Landlord in connection with the Taking. During the period of
restoration by
Landlord, if the Taking or such restoration shall cause a
material adverse
impact on Tenant's business at Demised Premises, basic annual
rent and
additional rent shall be abated and adjusted in an equitable
fashion. Upon
completion of the restoration, basic annual rent and additional
rent shall also be
abated and adjusted in such manner as shall be just and
equitable. In the event
that Landlord shall fail to commence such restoration as
hereinabove required,
or if such restoration shall not be completed within twelve (12)
months from
and after the date of transfer of possession in connection with
Taking, then, in
either such event, Tenant shall have the right, as its exclusive
remedy, to
terminate this Lease by notice to Landlord, such notice to
specify the effective
date of termination.
(d) Whether or not this Lease shall be terminated pursuant
to the terms of
this Paragraph, Tenant shall have the right in connection with
any Taking to
assert all claims available to it for loss of leasehold interest, loss
of leasehold
improvements, trade fixtures and equipment, and such other
items of loss or
damage as Tenant shall suffer as a result of the Taking with
respect to which
Tenant shall, from time to time under applicable law, be
permitted to make an
independent claim, provided that such claim by Tenant will not
reduce the
award or payment to Landlord in connection with the Taking.
(e) Notwithstanding any provision of this Paragraph, in no
event shall
Landlord be obligated to expend, in connection with the repair
or restoration of
the Demised Premises pursuant to this Paragraph, any amount
in excess of the
award or payment in connection with the Taking. In the event
that such award
or payment shall be insufficient for the repair or restoration or
in the event that
Landlord's mortgagee shall apply all or any portion of such
award of payment
to the reduction of the indebtedness secured by such mortgage,
then to the
extent of such unavailable award or payment, Landlord shall be
excused from
the performance of repair or restoration work hereunder.
29. HOLDING OVER BY TENANT.
If Tenant shall remain in possession of the Demised Premises
after the
conclusion of the term of this Lease (and any renewal terms),
Tenant shall
become a month-to-month tenant under the provisions herein
provided, but at a
monthly basic annual rental as follows: (a) if Landlord has
entered into a bona
fide lease with a new tenant for the Demised Premises, then (i)
during the first
thirty (30) days of the holdover, Tenant shall pay monthly basic
rental equal to
1.5 times the basic rental set forth in Paragraph 2; (ii) during the
second thirty
(30) days of the holdover, Tenant shall pay monthly basic rental
equal to 2
times the basic rental set forth in Paragraph 2; (iii) for any
holdover period
after sixty (60) days, Tenant shall pay monthly basic rental equal
to 2 times the
basic rental set forth in Paragraph 2, and Tenant shall be
responsible for any
actual damages incurred by Landlord as a result of said
holdover; or (b) if
Landlord has not entered into a bona fide lease with a new
tenant for the
Demised Premises, then during the first thirty (30) days of the
holdover, Tenant
shall pay basic rental equal to the basic rental set forth in
Paragraph 2; for any
holdover period beyond thirty (30) days, Tenant shall pay basic
rental equal to
1.5 times the basic rental set forth in Paragraph 2. However, the
amount due for
additional rental shall remain as set forth in this Lease. Such
month-to-month
tenancy shall then continue until terminated by either Landlord
or Tenant,
upon thirty (30) days prior written notice to the other party,
but, in any event,
such termination shall not occur on a date other than the last
day of a calendar
month.
30. RIGHT TO EXHIBIT.
The Tenant agrees to permit the Landlord and the Landlord's
agents, employees
or other representatives to show the Demised Premises to
persons wishing to
rent or purchase the same on and after six (6) months next
preceding the
expiration of the term hereof. Any such showings shall be at
reasonable times
and upon reasonable prior notice to Tenant.
31. BROKER'S COMMISSION.
The parties hereto hereby agree that Xxxxxx X. Xxxxxx Co. of
New Jersey, Inc.
and Xxxxxxxx, Xxxxxxxx & Xxxxxxx Associates, L.L.C. acted as
the brokers in
this matter. Landlord shall be responsible for payment of the
brokers'
commissions to the above named brokers, pursuant to separate
agreement.
Landlord and Tenant hereby indemnify and hold each other
harmless for any
and all claims by other brokers in connection with this
transaction.
32. OPTIONAL RENEWAL PERIOD.
Tenant shall have the right to renew the within Lease for two
(2) terms of five
(5) years each, consecutive with the term herein provided, at
95k of the "fair
market rent". However, in no event shall the basic rent for each
renewal term
be less than the basic rent for the last year of the previous term.
Tenant shall
give the Landlord no less than six (6) months prior written
notice by Certified
Mail, Return Receipt Requested, of Tenant's intention to
exercise the option to
renew.
33. OPTIONAL RENEWAL PERIOD - RENT.
The "fair market rent" shall be determined as follows: Landlord
shall notify
Tenant of Landlord's opinion of the fair market rent for the
Renewal Period at
lease nine (9) months prior to the end of the then current term
hereof. If Tenant
disputes Landlord's opinion, Tenant shall, within sixty (60) days
after
Landlord's said notice, by written notice to Landlord, either
withdraw its
exercise of its renewal option or notify Landlord that Tenant
elects arbitration
in accordance with then prevailing Rules of Commercial
Arbitration of the
American Arbitration Association. The said Association shall
designate an
appraiser familiar with commercial buildings located in the
Essex County, New
Jersey area. The arbitrator shall, after hearing testimony
from the parties
and their expert witnesses, have the authority to fix and
determine the fair
market rent for the Renewal Period. Each party shall pay the
cost and expenses
of its own expert witnesses and attorneys fees, and the cost of
the
arbitration shall be shared equally by the parties.
Notwithstanding anything
to the contrary contained herein, however, the computation of
fair market rent
shall include a refurbishment allowance equal to fifty (50)
percent of the
buildout which is standard for commercial buildings in the area
at that time.
34. TENANT'S ESTOPPEL.
If, at any time after the commencement of the term hereof,
Landlord or Tenant
shall make written request therefor, Landlord or Tenant shall,
within ten (10)
days after such request, deliver to the other a written
instrument, duly executed
by Landlord or Tenant, certifying, if such be the case: (i) that
this Lease is in
force and effect; (ii) that this Lease has not been modified,
amended or
supplemented or specifying the modification, amendment or
supplement; (iii)
that Tenant or Landlord, as the case may be, is not in default
hereunder, or if it
is then in default, specifying the nature of the default and
whether or not
the time period for curing same has expired; the date or dates
through which
basic annual rent and additional rent have been paid; and
(v) that there are
no offsets or deductions against basic annual rent or additional
rent, or if any
are claimed, specifying the amount thereof and the basis
therefor.
35. GOVERNING LAW.
This Lease, and the rights and obligations of the parties thereto,
shall be
interpreted and construed in accordance with the laws of the
State of New
Jersey.
36. RIGHT OF FIRST NOTIFICATION.
During the term of this Lease, Tenant shall have the right of
first notification to
lease any space which may become available within the
Building, subject to any
previously granted rights to other tenants of the Building. Any
other tenants in
the Building who may have prior rights of first refusal are listed
in the attached
Exhibit D.
37. PARKING.
Landlord shall provide four (4) parking spaces per 1,000
rentable square feet.
This shall include fifteen (15) parking spaces reserved for
Tenant's exclusive
use. In the event that any other tenant in the Building receives
an increase in
reserved parking, then Tenant shall receive a proportionate
increase as well.
38. EXCLUSIVE USE.
Landlord hereby grants to Tenant the exclusive right to provide
retail brokerage
services in the Building, with the exception of Xxxxxx Asset
Management,
another tenant in the Building. Landlord shall not lease space
within the
Building to any other Tenant providing retail brokerage services
without
Tenant's prior written consent.
39. TENANT INPROVEMENTS/ALLOWANCES.
Tenant shall improve the Demised Premises in accordance with
a plan, which
plan shall be subject to Landlord's prior written consent, which
consent shall
not be unreasonably withheld. Upon completion of the plan and
acceptance by
Landlord, said plan shall be attached hereto as Exhibit C.
Landlord shall
provide Tenant with the following:
(a) An allowance of $25.00 per rentable square foot for
Tenant's
improvements of any kind, including, but not limited to cabling,
furnishings,
decorating and the like, constructions plans and permits, as well
as an
additional allowance of $0.15 per rentable square foot for space
planning costs.
Tenant shall have the right to bid the Tenant improvements, and
Landlord shall
be entitled to bid for same. In the event that Landlord shall not
construct the
Tenant's improvements, Landlord shall be entitled to a
supervisory fee, but said
fee shall not exceed the sum of $10,000.00.
(b) Landlord shall expand the men's and women's restrooms
on the third
floor of the Building in accordance with the plan to be attached
hereto as
Exhibit C, at Landlord's sole cost and expense.
(c) Landlord shall provide sufficient electrical service for
Tenant's
requirements as per the plan to be attached hereto as Exhibit C.
40. PARTIAL INVALIDITY.
If any provision of this Lease shall be determined by a court of
competent
jurisdiction to be invalid, such determination shall not affect any
of the other
provisions of this Lease and such other provisions shall remain
in full force and
effect. If any provision of this Lease shall be capable of two
constructions, one
of which would render the provision valid and the other of
which would render
it invalid, then such provision shall have the construction and
meaning which
would render it valid.
41. NOTICES.
All notices required under the terms of this Lease shall be given
and shall be
complete by mailing such notices by certified or registered mail,
return receipt
requested, to the address of the parties as shown at the head of
this Lease, or to
such other address as may be designated in writing, which
notice of change of
address shall be given in the same manner. However, effective
as of the
Commencement Date, Tenant's address for purposes of this
Paragraph shall be
000 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000.
42. TITLE AND OUIET ENJOYMENT.
The Landlord covenants and represents that the Landlord is the
owner of the
Demised Premises herein leased and has the right and authority
to enter into,
execute and deliver this Lease; and does further covenant that
the Tenant on
paying the rent and performing the conditions and covenants
herein contained,
shall and may peaceably and quietly have, hold and enjoy the
Demised
Premises for the term aforementioned.
43. ENTIRE CONTRACT.
This Lease contains the entire contract between the parties. No
representative,
agent or employee of the Landlord has been authorized to make
any
representations or promises with reference to the within letting
or to vary, alter
or modify the terms hereof. No additions, changes or
modifications, renewals or
extensions hereof, shall be binding unless reduced to writing
and signed by the
Landlord and the Tenant.
The Landlord may pursue the relief or remedy sought in any
invalid clause, by
conforming the said clause with the provisions of the statutes or
the regulations
of any governmental agency in such case made and provided as
if the particular
provisions of the applicable statutes or regulations were set
forth herein at
length.
In all references herein to any parties, persons, entities or
corporations the use
of any particular gender or the plural or singular number is
intended to include
the appropriate gender or number as the text of the within
instrument may
require. All the terms, covenants and conditions herein
contained shall be for
and shall inure to the benefit of and shall bind the respective
parties hereto, and
their heirs, executors, administrators, personal or legal
representatives,
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have set their
hands and seals the
day and year first above written.
WITNESS: XXXXXXXXXX CORPORATE PARK
ASSOCIATES, L.L.C. -
LANDLORD
By: /s/ Xxxxxx Xxxxx, Managing Member
XXXX, XXXX & CO., INC. - TENANT
By: /s/ Xxxxx X. Xxxxxx, President
RULES AND REGULATIONS
1. Obstruction of Passageways. The sidewalks, entrances,
passages, courts,
elevators, vestibules, stairways, corridors and public parts of the
Building shall
not be obstructed or encumbered by Tenant or used by Tenant
for any purpose
other than the purpose for which they were intended.
2. Projections from Building. No equipment or other
fixtures shall be
attached to the outside walls or the windowsills of the Building
or otherwise
affixed so as to project from the Building without the prior
written consent of
the Landlord.
3. Signs. Except as otherwise provided in this Lease, no
sign or lettering
shall be affixed by Tenant to any part of the outside of the
Demised Premises,
or any part of the inside of the Demised Premises so as to be
clearly visible
from the outside of the Demised Premises without the prior
written consent of
the Landlord.
4. Windows. Windows in the Demised Premises shall not
be covered or
obstructed by Tenant. No bottles, parcels or other articles shall
be placed on the
windowsills, in the halls, or in any other part of the Building
other than the
Demised Premises. *
5. Floor Covering. Tenant shall not lay linoleum or other
similar floor
covering so that the same shall come in direct contact with the
floor of the
Demised Premises. If linoleum or other similar floor covering is
desired to be
used, an interlining of builder's deadening felt first shall be fixed
to the floor by
a paste or other material that may be easily removed with water,
with the use of
cement or other similar material being expressly prohibited.
6. Interference with Occupants of Building. Tenant shall
not make, or
permit to be made, any unseemly or disturbing noises or odors
and shall not
interfere with the other tenants or those having business with
them.
7. Locks and Keys. No additional locks or bolts of any
kind shall be placed
on any of the doors by Tenant. Tenant shall, upon termination
of Tenant's
tenancy, deliver to Landlord all keys to any space within the
Building, either
furnished to or procured by Tenant, and in the event of the loss
of any keys
furnished, Tenant shall pay to Landlord the cost of replacement
thereof.
8. 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 Landlord may, from time to time, reasonably
determine and only
after advance notice to Landlord. Tenant shall use its best
efforts not to disturb
any other tenants in the Building. The persons employed by
Tenant for such
work must be reasonably acceptable to Landlord. Tenant may,
subject to such
provisions, move freight, furniture, bulky matter, and other
material into or out
of the Demised Premises on Saturdays between the hours of
9:00 a.m. and 1:00
p.m., provided that Tenant shall pay for any additional costs
incurred by
Landlord for elevator operators or security guards, and for
other expenses
occasioned by such activity of Tenant. If, at least five (5) days
prior to such
activity, Landlord requests that Tenant deposit with Landlord,
as security for
Tenant's obligation to pay such additional costs, a sum which
Landlord
reasonably estimates to be the amount of such additional cost,
the Tenant shall
deposit such amount with Landlord as security for such cost.
9. Safes and Other Heavy Equipment. Landlord 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. Business machines and other equipment shall be
placed and
maintained by Tenant at Tenant's expense in settings sufficient
in Landlord's
reasonable judgment to absorb and prevent unreasonable
vibration, noise and
annoyance.
10. Non-Observance or Violation of Rules by Other
Tenants. Landlord shall
not be responsible to Tenant for the non-observance or
violation of any of these
rules and regulations by any other tenant.
11. After Hours Use. Landlord 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 Tenant. Each Tenant shall be
responsible for
all persons for whom such a pass is issued and shall be liable to
the Landlord
for the acts of such person.
12. Plumbing Facilities Use. Tenant shall not use the
Building's plumbing
facilities for any purpose other than that for which they were
constructed and
will not permit any foreign substance of any kind to be thrown
therein and the
expense of repairing any breakage, seepage or damage, no
matter where
occurring, resulting from a violation of this provision by Tenant
or its agents,
servants, employees, invitees or licensees shall be borne by
Tenant. Wasteful
and excessive or unusual use or misuse of Building standard
office electrical
service, water, sewer or other utilities is hereby expressly
prohibited.
13. Vehicles. No bicycles, mopeds, motorcycles or other
vehicles of any kind
shall be brought into or kept in, on or about the Demised
Premises, Building or
Building area, except in those locations specifically designated
by Landlord for
same.
14. Animals. No animal of any kind shall be brought into,
kept in, on or
about the Demised Premises, Building or Building area, other
than seeing eye
dogs.
15. Landlord's Rights. Landlord hereby reserves to itself any
and all rights not
granted to Tenant hereunder, including, but not limited to the
following rights
which are reserved to Landlord 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 Tenant may use the name as its business address and
for no other
purpose;
(b) the right to change the name of the Building at any time and
from time to
time, without incurring any liability to Tenant for so doing;
(c) the right to install and maintain a sign or signs on the
exterior of the
Building and/or anywhere in the Building area; and
(d) the right to grant anyone the right to conduct any particular
business or
undertaking in the Building or Building area.
16. Moving. Moving in and out of the Building must be
coordinated with the
Landlord. At the discretion of the Landlord, moving may be
required to be done
under the supervision of the management personnel. No
furniture will be
moved in the Building's elevators without the permission of the
Landlord and
until necessary pads have been installed.
17. All Rules and Regulations set forth above, and any rules
or regulations
which may be promulgated by Landlord following execution of
this Lease, are
intended to be supplemental and not in derogation of the Lease.
Where the
Rules and Regulations may conflict with the terms of the Lease,
the Lease shall
control.
