Exhibit 10.1(a)
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LEASE RENEWAL AGREEMENT
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This Agreement made the 8th day of September, 1993 between MBM Associates,
a joint venture, (hereinafter referred to as "Landlord"), having an office at
000 Xxxx Xxxxxxxx Xxxx, Xxxxxxxx Xxxxx, Xxx Xxxxxx, and Boron-Lepore Associates,
Inc. located at 00-00 Xxxxx 000 Xxxxx, Xxxx Xxxx, Xxx Xxxxxx, (hereinafter
referred to as "Tenant").
W I T N E S S E T H
Whereas Landlord and Tenant entered into the lease outlined below in
Landlord's building located at 00-00 Xxxxx 000 Xxxxx, Xxxx Xxxx, Xxx Xxxxxx,
(hereinafter referred to as "Premises"), and ...
LEASE
LEASE DATE FLOOR UNIT SIZE EXPIRATION DATE
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06/22/88 2nd Floor 12,225 SF 07/31/94
Whereas the lease referenced above currently remains in full force and
effect, and ...
Whereas both Landlord and Tenant now wish to modify some terms of that
agreement in accordance with the conditions set forth herein.
Now, therefore, in consideration of the mutual covenants and conditions set
forth herein, Landlord and Tenant do hereby agree as follows:
1. Lease Term - Landlord hereby grants Tenant, and Tenant hereby
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accepts from Landlord a lease renewal of five (5) years for the lease referenced
above. Said five (5) year renewal shall commence on August 1, 1994, and expire
on July 31, 1999.
2. Conditions/Rentals - Said five (5) year lease renewal shall be on
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the same terms and conditions as the original lease, including the original base
year and operating cost provisions except that the Basic Rent shall be reduced
to $16.50 per square foot gross plus tenant electric.
3. Landlord and Tenant agree that Landlord shall not be responsible
to complete any tenant improvements to the unit as a result of this renewal
agreement and tenant agrees the space in an "as is" condition.
4. Tenant agrees to provide Landlord with an up-to-date financial
statement on tenant's organization within two weeks of the execution date of
this agreement. Landlord
reserves the right to void this Lease Renewal Agreement for a period of two
weeks of receipt of said financial statements if they are not satisfactory to
Landlord.
This document shall be attached to the original lease and deemed
a part thereof.
In witness whereof, the undersigned, who have due authority to enter
into this agreement, have set their hands as of the date first above written.
MBM ASSOCIATES BORON, XXXXXX & ASSOCIATES INC.
/S/ W. Xxxxx XxXxxxx /S/ Xxxxxxx X. Xxxxx
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Authorized Signature Authorized Signature
/S/ Malvern X. Xxxxxxxxx
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Malvern X. Xxxxxxxxx
/S/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
THIS LEASE, made the 22nd day of June, 1988, by and between MBM ASSOCIATES,
A Joint Venture, having an office at 000 Xxxx Xxxxxxxx Xxxx, Xxxxxxxx Xxxxx, Xxx
Xxxxxx (hereinafter called the "Landlord") and XXXXXX X. XXXXX, INC., with
offices at 000 Xxxxxxxxxx Xxxx, Xxxx Xxxx, Xxx Xxxxxx 00000 (hereinafter called
the "Tenant").
W I T N E S S E T H:
1. PREMISES
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The Landlord and Tenant, in consideration of the mutual covenants and
conditions set forth herein do hereby agree as follows:
The Landlord hereby leases to the Tenant and the Tenant hereby hires from
the Landlord, subject to the terms and conditions of this Lease, the following
space: Approximately 12,225 square feet of space in the office building owned by
the Landlord located at 00-00 Xxxxx 000 (Xxx 2 Block 4801), Fair Lawn, New
Jersey (hereinafter referred to as the "Land") and known as the Fair Lawn
Executive Centre, which space is located on the second floor thereof and more
particularly described and outlined in red upon the plan attached hereto as
Exhibit "A" and made a part hereof (hereinafter called the "Leased Premises" or
"Premises"), together with the right to use in common with other Tenants of the
Building, their invitees, customers and employees, those areas of the common
facilities as hereinafter defined and together with the right to use those
parking spaces as described in paragraph 3(d) herein.
2. TERM
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The term of this Lease (hereinafter referred to as the "Term") shall
be for six (6) years commencing on August 1, 1988 and ending at 12:00 midnight
on July 31, 1994.
3. USE AND PARKING
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(a) The Leased Premises, or any part thereof, shall not be used by
anyone except the Tenant, its invitees, customers and employees and shall be
used or permitted to be used for no use other than the following: general
offices and uses incidental and related thereto which are in accordance with
local governmental codes and regulations.
(b) Tenant acknowledges and agrees with Landlord that the Building
should be maintained and preserved as a prestigious and first class office
building and that its special character arising from its location should be
specifically protected and preserved. (Landlord represents to Tenant that
Landlord shall not store nor permit any other Tenants in the building to store
any substances or materials which would be considered hazardous to the general
public's health.) Tenant therefore represents that it is not leasing the
Premises, and it will not use such Premises, for any purpose other than that
provided in this Lease. Tenant further
agrees that Landlord may refuse to consent to the assignment of this Lease or
the subletting of the Premises for any of the following prohibited uses: an
educational facility of any type including correspondence schools; employment
agencies, model agencies; spas; health, physical fitness or exercise salon;
small loan offices; real estate brokers, residential land development offices;
doctors, dentists or other professions or businesses that by their nature tend
to generate excess customer traffic or any other use which Landlord in good
faith determines will or is likely to demean the character of the Building or
its environment, and such refusal shall not be considered unreasonable. An
"educational facility" as referenced above shall not preclude Tenant from using
its demised premises for its regularly scheduled lecture series consisting of
approximately 12 to 15 people on an approximate monthly basis.
Moreover, Tenant specifically agrees that Landlord's leasing of any
portion of the building of which the Premises are a part for any of the
foregoing prohibited uses shall not constitute or be deemed to constitute a
waiver of Landlord's right to prohibit Tenant from assigning or subletting the
Leased Premises or any part thereof for any such prohibited use.
(c) The Tenant will not, without the prior written consent of the
Landlord, permit the preparation, dispensing or serving of any beverages and/or
foods within the Leased Premises, except that this shall not prohibit the
preparation and consumption of hot and hold beverages or the consumption of
sandwiches.
(d) Parking. Landlord assigns to Tenant a number of parking spaces
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equal to four (4) spaces for each 1,000 square feet of usable space rented which
number will be rounded to the nearest lower whole number. Tenant shall receive
a portion of its parking spaces within the garage area ("Garage Area"), said
number of spaces being determined by multiplying Tenant's proportionate share
("Tenant's Proportionate Share"), against all of the spaces in the Garage Area.
All Garage Area spaces assigned to the Tenant shall be specifically assigned for
Tenant's exclusive use. Tenant agrees that it will not permit its employees to
park in any other spaces in the Garage Area than those assigned by Landlord to
it and that Tenant shall take such action at the request of Landlord as may be
necessary to insure that Tenant and its employees do not park in spaces assigned
to other tenants or reserved to the Landlord. The remaining spaces that Tenant
is entitled to shall be located in Landlord's outside parking lot, (the "Outside
Parking Area"). These spaces will not be specifically designated for the
Exclusive use of the Tenant, however, but rather shall be available to all
tenants of the Building. The use of parking spaces assigned to Tenant shall be
subject to such rules and regulations as may be established by Landlord,
including all signs and notices posted by Landlord in the Outside Parking Area,
Garage Parking Area or roadways leading thereto. Landlord reserves the right to
utilize a card-operated gate-controlled or similar system as a method of
limiting the use of the Garage Area to those assigned therein. (Total Spaces
Provided 48; Covered Spaces Included 11.
4. OCCUPANCY
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(a) The Leased Premises shall be deemed ready for occupancy on the
earliest date on which all of the following conditions have been met:
(i) Landlord's Work, and so much of Tenant's Finish Work as
Landlord shall have undertaken pursuant to the Tenant's Work Letter
described in Paragraph 24 hereof and attached hereto as Exhibit "C" and
made a part hereof in the Leased Premises have been substantially
completed; and they shall be so deemed notwithstanding the fact that minor
or insubstantial details of construction, mechanical adjustment, or
decoration remain to be performed, the non-completion of which does not
interfere with Tenant's use of the Leased Premises; and
(ii) Reasonable means of access and facilities necessary to
Tenant's use and occupancy of the Leased Premises, including corridors,
elevators and stairways and heating, ventilating, air conditioning,
sanitary, water and electrical facilities, have been installed and are in
reasonably good operating order and available to Tenant. Landlord shall
give Tenant a preliminary notice estimating when the conditions listed in
subsections (i) and (ii) above will be met, on a date which shall be at
least 10 days prior to the estimated date set forth in such preliminary
notice. Any variance between the date so estimated and the date such
conditions are met shall be of not consequence, except as herein modified.
(b) If any of the conditions listed in Paragraph 4(a) shall be
delayed due to any act or omission of Tenant or any of its employees, agents or
contractors or of any failure (not due to any act or omission of Landlord or any
of its employees, agents or contractors) to plan or complete Tenant's Finish
Work diligently and expeditiously, which shall continue after Landlord shall
have given Tenant reasonable notice that such act, omission or failure would
result in delay, and such delay shall have been unavoidable by landlord in the
exercise of reasonable diligence and prudence, the Leased Premises shall be
deemed ready for occupancy on the date when they would have been ready but for
such delay.
(c) If and when Tenant shall take actual possession of the Leased
Premises, it shall be conclusively presumed that the same were in satisfactory
condition (except for latent defects) as of the date of such taking of
possession. Tenant shall take actual possession of the Leased Premises on the
date Landlord advises that same have been completed notwithstanding the fact
that minor items remain to be completed to long as the items to be completed
shall not interfere with Tenant's use of the Leased Premises. In such event,
Tenant shall provide Landlord with a punch list of items remaining to be
completed which items shall be completed within thirty (30) business days.
Except to the extent specifically provided in the punch list, Tenant's
occupation of the Leased Premises shall be conclusively presumed to operate to
terminate all of Landlord's obligation under the Work Letter. Tenant shall
provide Landlord with a letter accepting the Leased Premises, in form and
substance satisfactory to comply with any requirements for same contained in any
mortgage constituting a lien on the premises of which the leased Premises are a
part.
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(d) In the event that the Leased Premises are not ready for
Tenant's occupancy at the time of the commencement of the term fixed by this
Lease, this Lease shall not be affected thereby, but in such event no rent shall
be due hereunder until Landlord shall have given notice to the Tenant pursuant
to Paragraph 4(a) hereof or Tenant shall have in fact occupied the Leased
Premises unless the reason for the Premises not being ready are due to acts of
Tenant, in which case rent shall be due as called for under the terms of the
Lease, provided, however, that in the event Landlord for any reason shall be
unable to give Tenant notice that the Leased Premises will be ready for Tenant's
occupancy no later than two (2) months after the commencement date set forth in
Paragraph 2 hereof, then Tenant's sole right shall be to notify Landlord of its
election to terminate this agreement.
5. BASIC RENT AND ADDITIONAL RENT
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(a) Starting on the first day of the thirteenth month from the
Commencement Date and continuing through the fifth year following said date,
Tenant shall pay as basic rent ("Basic Rent") the annual sum of TWO HUNDRED
SIXTY-TWO THOUSAND EIGHT HUNDRED THIRTY-SEVEN AND 50/100 ($262,837.50) DOLLARS
or $21.50 per square foot of rental space in equal monthly installments of
TWENTY-ONE THOUSAND NINE HUNDRED THREE AND 13/100 DOLLARS ($21,903.13) on or
before the first date of each month, in advance, to Landlord at the address of
the Landlord above designated or such other place as shall be designated by
Landlord. Landlord agrees to waive basic rental payments (with the exception of
tenant electric) for the initial twelve (12) months of the lease term.
(b) As additional consideration to the Tenant for the Tenant's
entry into this lease transaction, and upon the condition that the Tenant is not
in default of this Agreement of Lease, the Landlord shall pay to the Tenant the
sum of $8,000. on August 1, 1988 and a similar sum on September 1, 1988, but
such payment shall not be required at any other times.
(c) Tenant shall also pay as Additional Rent any and all such other
sums of money as shall become due to the Landlord pursuant to the terms and
provisions hereof including but not limited to Tenant improvements authorized by
and to be paid by Tenant, without demand therefor and without any abatement,
counterclaim, deduction or setoff whatsoever except as provided herein. Basic
Rent and Additional Rent is sometimes hereinafter collectively referred to as
"Rent".
(d) If Tenant shall fail to pay the Basic Rent and Additional Rent
within ten (10) business days following the due date of any such payment, and if
Landlord agrees to accept any such late payment, then in the event of such late
payment, the Tenant agrees to pay to Landlord interest on any such sums at the
rate of 5% of any such late installment of Rent or Additional Rent, as
Additional Rent, or if said rate under the circumstances then prevailing shall
not be lawful, then at the maximum lawful rate permitted. The foregoing shall
be in addition to any other right or remedy which may be available to Landlord
in the event of default by Tenant.
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(e) The Tenant agrees to deposit with the Landlord upon the
execution date of this Lease the sum of $21,903.13 as security for the payment
of Rent and/or Additional Rent hereunder and the full and faithful performance
by the Tenant of the covenants and conditions on the part of the Tenant to be
performed. Said sum shall be returned to the Tenant, without interest after the
expiration of the term hereof, provided that the Tenant has fully and faithfully
performed all such covenants and conditions and is not in arrears in Basic Rent
and/or Additional Rent. During the term hereof the Landlord may, if the Landlord
so elects, have recourse to such security, to make good any default by the
Tenant, in which event the Tenant shall, on demand, promptly restore said
security to its original amount. Liability to repay said security to the Tenant
shall run with the reversion and title to the Leased Premises, whether any
change in ownership thereof be by voluntary alienation or as the result of
judicial sale, foreclosure or other proceedings, or the exercise of a right of
taking or entry by any mortgages. The Landlord shall assign or transfer said
security, for the benefit of the Tenant, to any subsequent owner or holder of
the reversion of title to the Leased Premises, in which case the assignee shall
become liable for the repayment thereof as herein provided, and the assignor
shall be deemed to be released by the Tenant from all liability to return such
security. This provision shall be applicable to every alienation or change in
title and shall in no wise be deemed to permit the Landlord to retain the
security after termination of the Landlord's ownership of the reversion or
title. The Tenant shall not mortgage, encumber or assign said security without
the written consent of the Landlord.
6. SERVICES TO BE RENDERED BY LANDLORD-LANDLORD IS
EXCULPATION
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(a) Landlord, at its expense, shall provide public elevator
service, passenger and service, by elevators serving the floor on which the
Leased Premises are situated during regular hours of business days and shall
have at least one passenger elevator subject to call at all other times.
(b) Landlord will furnish heating, ventilating and air conditioning
to Leased Premises when necessary during regular hours of business days to an
inside temperature of 78 degrees F. dry bulb and 50% relative humidity when
outside temperatures are 95 degrees F. dry bulb and 75 degrees F. wet bulb and
70 degrees F. inside when outside temperatures are 0 degrees F. with a wind
velocity of 15 M.P.H. provided however that Landlord may reduce the temperature
if necessary to comply with any federal, state or municipal law, ordinance rule,
regulation or executive order.
(c) The Landlord agrees to furnish air conditioning and to maintain
the Leased Premises for the comfortable occupancy and use of the Leased Premises
during regular hours of business days. The Tenant agrees to keep all windows in
the Leased Premises closed at all times during which the air-conditioning system
is in operation and otherwise to cooperate with the Landlord and to abide by all
regulations or requirements which the Landlord may reasonably prescribe for the
proper functioning and protection of the air conditioning system.
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(d) Landlord, at its expense, shall furnish adequate hot and cold
water to the building for drinking, lavatory and cleaning purposes. If Tenant
uses water for any other purpose Landlord, at Tenant's expense, shall install
meters to measure Tenant's consumption of cold water and/or hot water for such
other purposes as the case may be. Tenant shall pay for the quantities of cold
water and hot water shown on such meters, at Landlord's cost thereof, on the
rendition of Landlord's bills therefor.
(e) Landlord, at its expense, and on Tenant's request, shall
maintain a listing on the building directory of the Tenant's name as set forth
in the recital of this Lease.
(f) While Tenant is not in default under any of the terms of this
Lease, the Landlord will provide office cleaning and maintenance to the Premises
as set forth in Exhibit "D" attached hereto and made a part hereof. Except as
set forth in Exhibit "D", the Tenant shall pay the cost of all other cleaning
services required by the Tenant.
(g) It is understood that no deduction whatsoever shall be made
from the amount of rent payable hereunder, should any heating, lighting,
elevator service, air conditioning, or janitor's services not be used by the
Tenant, nor shall the Landlord be liable to the Tenant for any interruption of
heating, lighting, elevator service, air conditioning or janitor service caused
by strike, break downs, inability to secure fuel or other required power or by
any other cause not due to negligence on the part of the Landlord. The Tenant
shall not be liable, under any circumstances, for loss of or injury to property,
however, occurring, through or in connection with or incidental to the
furnishing of or failure to furnish any of the services required by said Exhibit
"D", or for any interruption to the Tenant's business, however occurring.
(h) As used in this Paragraph 6, the term "regular hours of
business days" shall mean, unless otherwise indicated, the hours of 8:00 a.m. to
6:00 p.m. on weekdays and 8:00 a.m. to 1:00 p.m. on Saturdays, excluding all
Sundays and the following holidays:
(a) New Years Day;
(b) Washington's Birthday;
(c) Memorial Day;
(d) Independence Day;
(e) Labor Day;
(f) Thanksgiving Day;
(g) Christmas Day;
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However, the Landlord agrees that Tenant may use the Leased Premises after
6:00 p.m. weekdays and after 1:00 p.m. on Saturdays, and on Sundays and legal
holidays without additional charge for said use, but Landlord shall not be
required to furnish any heat, ventilation or air conditioning beyond that
normally furnished for those hours. In the event Tenant requires heat,
ventilation or air conditioning after the hours of 6:00 p.m. weekdays, after
1:00 p.m. on Saturdays, or on Sundays or legal holidays, Landlord will supply
same at an hourly rate which will be established by Landlord to be paid by
Tenant as billed. Tenant shall give Landlord twenty-four (24) hours notice when
it shall require such after hour, Sunday or other holiday heat, ventilation or
air conditioning.
7. REPAIRS AND MAINTENANCE
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(a) The Landlord agrees that the Leased Premises shall be delivered
to the Tenant at the beginning of the term in clean and first class condition
and completed in accordance with the Tenant's Work Letter.
(b) The Tenant shall take good care of the Leased Premises and any
and all fixtures therein, and shall be responsible for any injury, damage, or
breakage done by the Tenant or the Tenant's agents and servants and at the end
of the term or earlier termination of the Lease shall quit and surrender said
premises in as good condition as reasonable use thereof will permit.
(c) The Tenant shall make no alterations, changes, additions or
improvements in the Leased Premises without the written consent of the Landlord,
which consent shall not be unreasonably withheld. Notwithstanding the foregoing,
Tenant shall have no right to make any alterations, changes, additions or
improvements to the electrical and Heating, Ventilating and Air Conditioning
systems in the Leased Premises. Any such required alterations, changes,
additions or improvements to the electrical or HVAC systems shall be made
exclusively by Landlord's contractors based on plans and specifications prepared
by Tenant and approved by Landlord's engineers at Tenants' cost and expense.
(d) All alterations, additions and improvements made by either
party upon the Leased Premises shall become the property of the Landlord and
shall remain upon and be surrendered with the Leased Premises as part thereof,
at the expiration or termination of the Lease; except that at such expiration or
termination, Tenant shall have the right to remove and retain as Tenant's own
property any additions or improvements made by the Tenant or at Tenant's sole
expense, except for carpeting, provided that Tenant shall repair any damage
caused by such removal and shall restore the Leased Premises to the same or as
good condition as existed immediately before such additions or improvements were
made. Tenant shall, if requested by Landlord, remove any such interior changes,
alterations, additions and improvements at the expiration of the term herein
provided and restore the Leased Premises to the condition they were in at the
beginning of the term.
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(e) Tenant shall, before making any alterations, additions,
installations, or improvements, at its expense, obtain all permits, approvals
and certificates required by any governmental or quasi-governmental bodies and
(upon completion) certificates of final approval thereof and shall deliver
promptly duplicates of all such permits, approvals and certificates to Landlord,
and Tenant agrees to carry and will cause Tenant's contractors and sub-
contractors to carry such Workmen's Compensation, general liability, personal
and property damage insurance as Landlord may require. Tenant agrees that any
alterations, additions or installations shall be undertaken exclusively by
contractors whose employees are members of appropriate unions. Tenant agrees to
obtain and deliver to Landlord written and unconditional waivers of mechanic's
liens upon the real property in which the Leased Premises are located, for all
work, labor and services to be performed and materials to be furnished in
connection with such work, signed by all contractors, subcontractors,
materialmen and laborers to become involved in such work. Notwithstanding the
foregoing, if any mechanic's lien is filed against the Leased Premises, or the
building of which the same forms a part, for work claimed to have been done for,
or materials furnished to, Tenant, whether or not done pursuant to this
Paragraph the same shall be discharged by Tenant within ten (10) days
thereafter, at Tenant's expense by filing the bond required by law, or in such
other manner satisfactory to Landlord.
8. ELECTRICITY
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(a) Tenant agrees to pay to Landlord, as Additional Rent, the cost
of all tenant electric energy it consumes, it being understood that for this
purpose the charge to Tenant shall be Tenant's proportionate share of the cost
of electric energy for the entire building of which the Leased Premises are a
part (which will vary with the percentage of occupancy of said entire building).
In the event that Tenant installs any computer equipment or other high
electrical usage equipment, Landlord reserves the right to place an electrical
meter on said equipment as well as any other equipment used in conjunction
therewith at Tenant's sole cost and expense. The charges for electrical energy
consumed by such equipment shall be paid by Tenant in addition to all other sums
due under this agreement, the cost thereof to be at the established rate charged
by the utility company supplying electrical service to the Leased Premises. Said
payments shall be made within ten (10) days of the presentment of the xxxx
therefor which shall be monthly.
(b) Tenant's use of electric energy in the leased Premises shall
not at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Leased Premises. In order to insure that
such capacity is not exceeded and to avert possible adverse effect upon the
building electric service, Tenant shall not, without Landlord's prior written
consent in each instance (which shall not be unreasonably withheld), connect any
additional fixtures, appliances or equipment to the building electric
distribution system or make any alteration or addition to the electric system of
the Leased Premises existing on the date of the commencement of this Lease.
Should Landlord grant such consent, all additional risers or
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other equipment required therefor shall be provided by Landlord and the cost
thereof shall be paid by Tenant upon Landlord's demand.
9. TAX AND OPERATING EXPENSES ADJUSTMENT
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(a) Commencing with the beginning of the second Lease Year and
continuing thereafter throughout the Term of this Lease, Tenant agrees to pay as
Additional Rent, its Proportionate Share, as hereinafter defined, of any
increase in Real Estate Taxes assessed against the Land and Building plus any
increase in Operating Expenses. As used herein:
(i) "Increase" shall mean the difference between the Real
Estate Taxes and/or operating Expenses for any Subsequent Lease Year and
the Base Real Estate Taxes and/or the Base Operating Expenses;
(ii) "Operating Expenses," shall mean the total of the amount
of all normal and customary expenses paid or incurred by Landlord in
operating the Land and Building and shall include, by way of illustration
and not of limitation, management fees (not to exceed that percentage,
which is standard in the industry and which percentage as management fee
shall not be increased once initially established), labor, including all
wages and salaries, social security taxes and other taxes which may be
levied against the Landlord upon such wages and salaries for the Building
personnel not above custodial grade, supplies, repairs and maintenance,
maintenance and service contracts, painting wall and window washing,
laundry and towel service, tools and equipment, fire and other insurance,
trash removal, lawn care, snow removal, common area utilities and all other
items properly constituting direct operating costs according to standard-
accounting practices whether or not the same shall be enumerated as part of
the services or obligations of the Landlord hereunder, but not including
legal and accounting fees, tenant fix-up, brokerage fees, advertising
costs, services not provided on a regular basis to tenants of the Building
or to the extent said services are disproportionate to those normally
provided to all tenants of the Building, depreciation of Building or
equipment, interest income or excess profit taxes, costs of maintaining the
Landlord's business identity, restoration and repair costs covered by
insurance proceeds, capital improvements unless such improvements ate for
the purpose of' reducing operating Expenses within the Building (in which
event the costs thereof shall be included but only to the extent of the
cost saving), or are required under any governmental law, ordinance or
regulation, in which event the costs thereof shall be included. All such
capital items which pursuant to the previous sentence, are authorized to be
included in Operating Expenses shall only be included on an amortized basis
with said item being amortized over its useful life as determined by the
Internal Revenue Code of 1986 and the regulations applicable thereto, or if
no guidelines are available in said code, in accordance with generally
accepted accounting principles and the portion so determined for the
appropriate Lease Year together with interest at two
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(2%) percent over the prime lending rate announced from time to time by
Chase Manhattan Bank, N.A. to its most creditworthy borrowers on the
unamortized amount shall, subject to the cap as to Operating Expenses
reduction, be the maximum included in any Lease Year. Additionally, to the
extent that any item of Operating Expenses in a year subsequent to the Base
Operating Expense Year was not included in the Base Operating Expenses,
then the cost of said item shall be added to the Base Operating Expenses
for purposes of comparison. For example, if Base Operating Expenses are
$1,000.00 but no repairs were included in the Base Operating Expense Year
(i.e. the first Lease Year) then the first Lease Year in which repairs
occur shall result in the cost of said repairs during said Lease Year being
added to the Base Operating Expenses. So, if hypothetically, the first
Lease Year for repairs is the third Lease Year and repairs cost $25.00 and
all Operating Expenses for the Building including repairs for said year
were $1,075.00 the comparison would be as follows:
Third Lease Year operating Expenses $1,075.00
Minus Base Operating Expenses
($1,000.00) plus initial repair
of $25.00 $1,025.00
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Difference to which Tenant
Proportionate Share is applied $ 50.00
Base Operating Expenses shall be those expenses subject to, adjustment
as above and pursuant to Subparagraph (C) hereof incurred on an accrual basis
during the first Lease Year which Lease Year shall be the Base Operating Expense
Year.
Notwithstanding anything contained herein to the contrary, Base Operating
Expenses shall not include any costs related to the maintenance and repair of
the roof, the same being assumed by Landlord.
(iii) "Real Estate Taxes" shall in addition to municipal real
property taxes (or any other tax hereafter enacted as a substitute or
replacement therefor or any part thereof) also include sewer rents and any
special, ordinary or extraordinary assessments and governmental levies
against the Land and Building. Landlord shall pay any special assessments
over the longest period allowed by law and only include in Real Estate
Taxes those installments on a pro rata basis attributable to the
corresponding period of the Lease.
(iv) "Lease Year" as used in this Lease shall mean the twelve
(12) month period commencing when possession is delivered, and each twelve
(12) month period thereafter. Once the Base Real Estate Taxes and Base
Operating Expenses are
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established, in the event any Lease period is less than twelve (12) months,
then said Base Real Estate Taxes and Base Operating Expenses shall be
adjusted to equal the proportion that said period bears to twelve (12)
months (herein the "Adjusted Base"), and Tenant shall pay to Landlord as
Additional Rent for such period, an amount equal to Tenant's Proportionate
Share, as set forth in Section 9(d) below, of the excess for said period
over the Adjusted Base with respect to each of the aforesaid.
(v) "Base Real Estate Taxes" shall mean those Real Estate
Taxes determined by multiplying the tax rate in effect for the calendar
year 1988, times the assessment for the Land and Building as fully
completed and 95% occupied.
(vi) "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Land and Building, or upon the rent, as such,
payable to the Landlord, including, but not limited to, real estate,
borough, county, school and transit taxes or taxes, assessments or charges
levied, imposed or assessed against the Land and Building by any other
taxing authority, whether general or specific, ordinary or extraordinary,
foreseen or unforeseen. If, due to a future change in the method of
taxation, any franchise, income or profit tax shall be levied against
Landlord in substitution for, or in lieu of, or in addition to, any tax
which would otherwise constitute a Real Estate Tax, such franchise, income
or profit tax shall be deemed to be a 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 hereinbefore provided) shall not be deemed a Real Estate Tax for the
purposes hereof. Real Estate Taxes shall exclude any income or profit taxes
(unless measured by the Building income), in which event same shall be
included as a Real Estate Tax, as if said Building were Landlord's only
asset unless as a result of combining said asset with Landlord's other
assets a reduced tax due to tax bracket reduction results.
(b) Additional Rent, if any, due to Landlord under Paragraph 9(a)
hereof shall be paid within 30 days after submission of a statement to Tenant
showing the computation of the amount due to Landlord, unless the statement
effects a change in the amount of Additional Rent paid during the previous month
by Tenant in which event said payment may be made within sixty (60) days.
Landlord shall make available its records and reasonable detail supporting the
items referred to in such statement for at least twelve (12) months after
submission thereof for examination at reasonable times by Tenant and its
authorized representative.
(c) If, with respect to the establishment of Base Operating
Expense, as established in Subparagraph (a)(ii) hereof, the Building is not
eighty-five (85%) percent occupied during the GLOBAL establishment of the Base
Operating Expenses then the Base operating Expenses shall be adjusted so as to
reflect eighty-five (85%) percent occupancy. The
11
aforesaid adjustment shall only be made with respect to those items that are in
fact affected by variations in occupancy levels.
(d) Tenant's Proportionate Share, wherever that phrase is used,
shall be (8.544 %), which the parties agree reflects and will be continually
adjusted to reflect the ratio of the gross square feet of the area rented to
Tenant as compared with the total number of gross square feet of the entire
Building measured outside wall to outside wall. However, if any service provided
for in Paragraph 9(a)(ii) is separately billed within the Building, then the
square footage so billed shall be subtracted from the denominator (the
Building's total number of gross square feet), and Tenant's Proportionate Share
for such service and/or utility shall be separately computed and the Base
Operating Expenses for such item shall not include any charges attributable to
said square footage.
10. ASSIGNMENT AND SUBLETTING
-------------------------
Tenant may assign or sublet this Lease to any party subject to the
following:
(a) Tenant shall give Landlord written notice of its intention to
assign this Lease or sublet all or any portion of the Leased Premises. Such
notice shall be given to the Landlord by Registered or Certified mail addressed
to the Landlord at its place of business set forth in the recital of this Lease.
Landlord shall have thirty (30) days after receipt of notice from the Tenant of
its intention to sublet or assign all or any portion of the leased Premises to
elect, to release Tenant from this Lease or from such portion of the Tenant's
obligation under this Lease, or so much of the Leased Premises, as the case may
be, affected by the proposed assignment or subletting. In the event that
Landlord exercises its election to release Tenant from this Lease or from such
portion of the Tenant's obligation under this Lease or so much of the Leased
Premises, as the case may be, Tenant shall thereafter be released from any
further obligation under this agreement of lease as to the interest or space so
affected except for the payment of any monies due as of the effective date of
such release.
(b) In the event that the Landlord does not elect to recapture this
Lease or any portion thereof as hereinabove provided, the Tenant may
nevertheless assign this Lease or sublet the whole or any portion of the Leased
Premises, subject to obtaining Landlord's prior written consent, which consent
shall not be unreasonably withheld, on the basis of and subject to the following
terms and conditions:
(i) The Tenant shall provide to the Landlord the name and
address of the assignee or sublessee:
(ii) At the time of such assignment or subletting, this Lease
must be in full force and effect without any breach or default thereunder
on the part of Tenant;
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(iii) 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 the Landlord within ten (10)
days of its execution;
(iv) The Tenant and each assignee or sublessee shall be and
remain liable for the observance of all the covenants, and provisions of
this Lease, including, but not limited, the payment of the Rent and
Additional Rent reserved herein through the entire term of this Lease;
(c) Notwithstanding anything herein contained to the contrary and
notwithstanding any prior consent by Landlord, no assignee or subtenant shall
further assign or sublease the Leased Premises without Landlord's prior consent
in each such instance and without compliance with the provisions of this
Paragraph.
(d) Any and all payments agreed to be made to Tenant by any
assignee or sublessee shall accrue to and be paid over to Landlord, it being
understood and agreed that said assignee or sublessee shall pay the Rent,
Additional Rent and all other monies and charges directly to the Landlord. If
there are any additional monies, however, in excess of the Rent and Additional
Rent and all other charges to be paid to Landlord hereunder for a corresponding
period, Tenant shall be entitled to reimbursement from said monies of any real
estate commissions it has had to pay to assign or sublet the Leased Premises and
other incidental costs relative to the assigning or subletting such as
advertising, legal, etc. Moreover, once the Tenant has been so reimbursed, the
Landlord shall share equally with the Tenant any further monies received for
said corresponding period.
(e) Notwithstanding the foregoing provisions of this Paragraph,
Tenant shall have the right, without the necessity of obtaining Landlord's
consent, but subject to all other provisions of this Paragraph 10 to:
(i) Sublet all or part of the Leased Premises to any parent
or affiliate of Tenant;
(ii) Assign this Lease to any parent or affiliate of Tenant;
or
(iii) Assign this Lease to a corporation which succeeds to all
or substantially all of the assets and business of Tenant or into which
Tenant is merged, if the net worth of such corporation, following such
assignment, equals or exceeds the net worth of Tenant at the date hereof or
immediately prior to such assignment, whichever is greater; provided,
however, that Tenant, at all times shall be and remain primarily, jointly
and severally liable under this Lease despite any such assignment.
(f) For the purposes of Subparagraph (e) above, the term
"affiliate" shall mean any company of which Tenant or Tenant's parent now or
hereafter owns and controls,
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directly or indirectly, fifty (50%) percent or more of the stock having the
right to vote for directors thereof. For the purpose of this definition, the
stock so owned or controlled shall be deemed to include all stock owned or
controlled directly or indirectly by any other company of which the Tenant or
Tenant's parent owns or controls, directly or indirectly, fifty (50%) percent or
more of the stock having the right to vote for directors thereof.
(g) Subject to the provisions of Paragraph 16, in addition to the
right of the Landlord to declare this Lease to be in default, the failure of the
Tenant or its assignee or sublessee to comply with any of the provisions and
conditions of this Paragraph, shall, at Landlord's option, render such purported
assignment or subletting null and void and of no force and effect.
11. REQUIREMENTS OF PLAN AND FIRE UNDERWRITERS
------------------------------------------
(a) Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirement of public authority or from
the Board of Fire Underwriters.
(b) The Tenant, at its own cost and expense, shall promptly execute
and comply with any statutes, ordinances, rules, orders, regulations and
requirements of the Federal, State, or municipal government, and of any of their
departments or bureaus, which may be applicable to the Leased Premises by reason
of any act or conduct on the part of the Tenant, or by reason of the character
of its occupancy of Leased Premises; and the Tenant shall promptly correct and
xxxxx any such violation caused by its acts, at its own cost and expense. The
Tenant shall also promptly comply with and execute all rules, orders, or
regulations of the Board of Fire Underwriters for the prevention of fires or the
risk thereof, on Landlord's building where such rules, orders, or regulations
are made applicable by any act or conduct of the Tenant, or by the character of
its occupancy of the Leased Premises.
(c) In the event that the Tenant shall fail or neglect to do or
perform any of the matters required by this Paragraph, then the Landlord or its
agents after notice to the Tenant as prescribed in Paragraph 16 of this Lease,
and after Tenant's failing to remedy such failure or neglect within the time
periods set forth in Paragraph 16 hereof, may enter the Leased Premises, and
comply with any and all of said statutes, ordinances, rules, orders, regulations
or requirements at the cost and expense of the Tenant, and in case of the
Tenant's failure to pay therefor, the cost and expense thereof shall be added to
the next month's rent and be due and payable as such, or the Landlord may deduct
the same from the balance of any sum remaining in the Landlord's hands, in
addition to any other remedy the Landlord may have hereunder by reason of such
default on the part of the Tenant.
(d) Tenant shall not do or suffer anything to be done on the Leased
Premises which will increase the rate of fire insurance on the Building.
14
(e) Notwithstanding anything contained herein to the contrary, in the
event capital improvements are required to be made to the Leased Premises
because of a change in any law of a public authority or a change of any
regulation of the Board of Fire Underwriters and not because of Tenant's use of
the Leased Premises, Landlord will complete said required alterations or
improvements and Tenant shall be required to pay toward the costs of same only
to the extent the depreciable useful life corresponds to the Lease Term. In
other words, Tenant will pay its share of the costs of said alteration or
improvement determined by the fraction the numerator of which is the number of
months remaining on the Lease after completion over the denominator which is the
useful life of said alteration or improvement as determined by the Internal
Revenue Code of 1986 and the regulations applicable thereto, or if no guidelines
are available in said code, in accordance with generally accepted accounting
principles, said share payable in equal monthly installments over the life of
the Lease as Additional Rent. Should the Tenant renew the Lease, recalculation
shall occur with respect to the numerator to continue said repayment as
appropriate during the renewal term.
12. NON-LIABILITY AND INDEMNIFICATION
---------------------------------
(a) Neither the Landlord nor its agents shall be liable for any
damage to property of the Tenant entrusted to employees of the Building, nor to
any property, goods, or things contained in the Leased Premises or stored in the
Garage or any other part of the Building, or in the Outside or Garage Parking
Areas. Except to the extent of any proceeds of any insurance policy carried
either by the Landlord or the Tenant, compensates the Tenant, the Landlord shall
not be liable for any injury or damage to Tenant or property on the Land or in
the Building or to the business of the Tenant, or any interruption thereof,
resulting from theft, burglary, explosion, wind or accident, falling plaster,
steam, gas, electricity, water, rain or snow, leakage from any part of the
Building or from pipes, appliances, or plumbing works in the Building or from
the street or sub-surface thereof or from any other source, or from dampness, or
from damage occasioned by workmen engaged in making repairs or alterations in or
upon the Building or the Land, or from damage by other Tenants or persons in the
Building or on the Land, or for interference with the light or other incorporeal
hereditaments, or caused by operations in the construction of any public or
quasi-public work, or for any other cause of whatsoever nature. With respect to
any loss, damage or injury of any nature whatsoever to property or persons for
which Tenant is insured, Tenant shall obtain from its insurance carrier and will
deliver to Landlord, waivers of the subrogation rights under the respective
policies. Landlord agrees to always maintain all risk insurance on the Building
and improvements for full replacement value covering any loss, damage or injury
arising out of fire or other casualty, including but not limited to, insurance
for damage to property arising from intentional acts of the Landlord, and
Landlord agrees to obtain from its insurance carrier and will deliver to Tenant,
waivers of the subrogation rights against the Tenant under any such insurance
policies and Landlord waives all claims against Tenant for any loss resulting
from any act or omission by Tenant, its agents, servants, invitees, contractors
or employees.
15
Additionally, in the event of any loss or damage to the Building the
Premises and/or any contents each party waives all claims against the other for
any such loss or damage and each party shall look only to any insurance which it
has obtained to protect against such loss and each party shall obtain, for each
policy of such insurance, provisions waiving any claims against the other party
for loss or damage within the scope of such insurance.
(b) Except as otherwise expressly provided in this Lease, this Lease
and the obligations of Tenant hereunder shall be in no way affected, impaired or
excused because Landlord is unable to fulfill, or is delayed in fulfilling, any
of its obligations under this Lease by reason of strike, other labor trouble,
governmental pre-emption or priorities or other controls in connection with a
national or other public emergency or shortages of fuel, supply or labor
resulting therefrom, or other like cause beyond Landlord's control. In no event
shall Tenant be entitled to a claim of constructive eviction from the Leased
Premises unless Tenant shall first have notified Landlord, in writing, of the
condition or conditions giving rise thereto, and, if the complaints be
justified, unless Landlord shall have failed within a reasonable time, after
receipt of such written notice, to remedy, or commence and proceed with due
diligence to remedy, such condition or conditions.
(c) Except to the extent of the proceeds of any fire or other
casualty insurance policy of the Landlord, The Tenant shall indemnify and save
harmless the Landlord from, and shall reimburse the Landlord as Additional Rent
for all expenses damages, or fines incurred or suffered by the Landlord by
reason of any third party claims arising as a result of any breach, violation,
or non-performance by the Tenant, or the Tenant's servants, employees or agents,
of any covenant or provision of this Lease, or by reason of damage or injury to
persons or property other than Landlord's or that under Landlord's care, custody
and control caused by the Tenant's moving property in or out of the Building, or
by the installation or removal of furniture or other property of the Tenant, or
arising out of the occupancy or use by the Tenant of the Leased Premises, or the
Building of which they form a part or the Land, or of the Outside or Garage
Parking Areas, or any part thereof, or from any other cause due to the
carelessness, negligence or improper conduct of the Tenant or the Tenant's
servants or agents.
(d) The Tenant shall give immediate notice to the Landlord in case of
fire or accident occurring on the Leased Premises, and of any defect or
condition of disrepair in the Leased Premises, or in any fixtures or equipment
forming a part thereof.
(e) In support of its obligations hereunder the Tenant, at Tenant's
own cost and expense, shall obtain or provide and keep in full force for the
benefit of the Tenant and the Landlord, during the term hereof, general public
liability insurance, naming Landlord as an additional named insured against any
and all liability or claims of liability arising out of, occasioned by or
resulting from any accident or otherwise in or about the Leased Premises, for
injuries to any person or persons for limits of not less than $1,000,000.00 for
injuries to one person and $3,000,000.00 for injuries to more than one person,
in any one accident or
16
occurrence, and for loss or damage to the property of any person or persons, for
not less than $1,000,000.00. The policy or policies of insurance shall be of a
company or companies authorized to do business in the State of New Jersey and
Certificates of Insurance showing Landlord's interest shall be delivered to the
Landlord, together with evidence of the payment of the premiums therefor, not
less than fifteen days prior to the commencement of the Term hereof or of the
date when the Tenant shall enter into possession, whichever occurs sooner. At
least fifteen days prior to the expiration or termination date of any policy,
the Tenant shall deliver a renewal or replacement Certificate of Insurance
showing Landlord's interest with proof of the payment of the premium therefor.
13. DAMAGE BY FIRE OR OTHER CASUALTY
--------------------------------
In case of fire or other casualty, Tenant shall give immediate notice to
Landlord. In the event the Building shall be damaged by fire, the elements or
other casualty to such an extent that the cost of restoration 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 the
Landlord or the Tenant may, no later than the sixtieth (60th) day following the
damage, give the other notice of its election to terminate this Lease, in which
event the Tenant shall vacate the Leased Premises within sixty (60) days
thereafter and the Rent shall be paid up to the date of such vacation and
thenceforth this Lease shall come to an end. If the damage is such that the cost
of restoration does not equal or exceed fifty (50%) percent of the replacement
value of the Building (exclusive of foundations) or neither the Landlord nor the
Tenant elect to terminate the Lease, then the Landlord shall repair the same as
speedily as practicable to the scope of Landlord's work in the original
construction of the Building to include that Tenant work Landlord originally
performed and, of any portion of the Building shall be rendered unusable for its
intended purpose, then the Tenant's obligation to pay Rent hereunder shall xxxxx
with respect to the square footage of the portion rendered unusable pursuant to
the applicable rates set forth in Paragraph 5(a) or (b) if during the initial
term of this lease or at rates established pursuant to Paragraph 25 if during an
option period, from the date of casualty until such time as the Landlord shall
have repaired the Building and Leased Premises and Certificate of occupancy
shall have issued. If the Landlord shall not have completed the repairs within
one hundred eighty (180) days after the occurrence of such damage to the
Building and, if at the end of such period the state of the Building or Leased
Premises shall be such as to deny to the Tenant the beneficial use of the Leased
Premises, then, and in such event, Tenant, upon ten (10) days' written notice
delivered to the Landlord at any time on or after the expiration of such one
hundred eighty (180) day period may terminate this lease and vacate the Premises
within ninety (90) days unless, before actual vacation, Tenant determines that
Landlord shall have completed repair of the Building. In the event of such
termination and vacation, Tenant's obligation to pay the Rent herein reserved
shall terminate on the date of vacation of the Leased Premises. Notwithstanding
anything contained in this Paragraph 13 to the contrary, the Landlord shall be
under no obligation to rebuild and may terminate this Lease on ninety (90) days
written notice delivered to the Tenant if the Building shall be damaged during
the last year of the lease Term as extended, if extended. Completion
17
of the repairs and the re-commencement of Tenant's obligations shall require
that the same criteria as in Paragraph 4(a), as for the Premises being deemed
ready for occupancy, shall have been met.
14. QUIET ENJOYMENT
---------------
The Landlord covenants and agrees that the Tenant upon payment of the Basic
Rent and Additional Rent reserved herein and upon observing and keeping the
covenants, agreements and stipulations of this Lease on its part to be kept,
shall lawfully, peaceably and quietly hold, occupy and enjoy the Leased Premises
during the term of this Lease and any extension or extensions thereof, without
hindrance, ejection or molestation by Landlord or any person or persons claiming
under Landlord or claiming by a title superior to that of Landlord.
15. EVENTS OF DEFAULT
-----------------
Each of the following elements shall constitute a default hereunder:
(a) If the Basic Rent or any part thereof or the Additional Rent or
any part thereof due hereunder shall be unpaid when due.
(b) If the Leased Premises shall be vacated, deserted, or abandoned
during the term hereof for a period of three (3) consecutive months.
(c) If the Tenant, contrary to the provisions of this Lease, shall
sell, assign or mortgage this Lease, or let or underlet the Leased Premises or
any part thereof, or use or permit the same to be used for any purpose other
than herein permitted.
(d) If the Tenant shall make an agreement of composition or an
assignment for the benefit of creditors, or if a Receiver is applied for or
appointed for the Tenant, or if there be filed a petition in bankruptcy or
insolvency or for an arrangement or reorganization by or against the Tenant, or
consented to by the Tenant, or if the Tenant is adjudicated a bankrupt or is
adjudged to be insolvent, or if the Tenant is advertised to be sold out by any
xxxx under process of law, or if the assets or property of the Tenant in the
Leased Premises shall be attached or levied upon, or if this Lease or the estate
of Tenant shall pass to another by virtue of any court proceedings, writ of
execution or operation of law.
(e) If the Tenant fails to comply with any other provision of this
Lease which imposes an obligation upon the Tenant, or if the Tenant otherwise
violates any provision or condition of this Lease.
16. REMEDIES UPON DEFAULT
---------------------
18
(a) In the event Tenant shall (i) default in the payment of Basic
Rent or Additional Rent; or (ii) default in the observance of any of the other
terms, covenants and conditions of this Lease, which continues for thirty (30)
days following the delivery of written notice thereof to the Tenant, provided,
however, that this thirty (30) day time period may be reasonably extended if the
default cannot be cured within said period and Tenant has commenced in good
faith to cure such default within said thirty (30) day period and shall continue
the curing thereof diligently thereafter, then the Landlord may, upon ten (10)
days written notice to the Tenant, cancel and terminate this Lease. In such
event, the Landlord, in addition to all other rights and remedies provided by or
permitted by law, or elsewhere conferred in this lease, shall have the remedies
provided in this Paragraph 16.
(b) Upon such default, after the expiration of the applicable notice
period without the default being cured, the Term herein and all rights of the
Tenant hereunder and all rights of the Tenant to the continued occupation of the
Leased Premises shall cease and terminate at the option of the Landlord.
(c) The Landlord may, at its option and upon an additional ten (10)
days written notice beyond that given in Paragraph 16(a) and (b) above to the
Tenant, re-enter the Leased Premises and dispossess the Tenant and any legal
representative or successor of the Tenant, or other occupant of the Leased
Premises either with, or without summary proceedings or appropriate suit, action
or proceedings, and remove the Tenant's property, assets and effects from the
Leased Premises and hold the Leased Premises as if this Lease had not been made.
(d) In any case where Landlord has recovered possession of the
Premises by reason of Tenant's default, as provided herein, Landlord may, at the
Landlord's option, occupy the Leased Premises or cause the Leased Premises to be
redecorated, altered, divided, consolidated with adjoining premises, or
otherwise changed or prepared for reletting, and may relet the Leased Premises,
or any part thereof, as agent of the Tenant 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 the Landlord's option, and receive the rent therefor.
(e) Notwithstanding such re-entry, default, expiration, or
dispossession by summary proceedings or otherwise, Tenant shall continue liable
for the full period which would otherwise have constituted the balance of the
Term hereof and shall pay as liquidated damages at the same time as the Basic
Rent, and Additional Rent, and other charges become payable under the terms
hereof and in lieu thereof, a sum equivalent to the Basic Rent, Additional Rent,
and other charges reserved herein, less only the net avails of reletting of the
leased Premises; and the Landlord without having any obligation to do so may
rent the Leased Premises either in tile name of the Landlord, or otherwise, for
such time and at such rent as it may determine, applying the proceeds thereof
first to the reasonable expense of (i) resuming or obtaining possession, (ii) to
restoring tile Leased Premises to a rentable condition, and (iii) to the payment
of Basic Rent, Additional Rent and other charges including, without limitation,
reasonable brokers' commissions and reasonable attorneys' fees incurred by
Landlord due and
19
to become due to the Landlord hereunder, any surplus to be paid to Tenant, which
shall be and remain liable for any deficiencies. Should Landlord occupy the
Leased Premises, Tenant shall be credited with the greater of said Leased
Premises fair rental value or the Basic and Additional Rent reserved hereunder.
(f) Landlord may, in addition to other remedies available to it
hereunder or by law, have the right of injunction against any violation or
continued violation of this Lease.
(g) Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed for any cause, or in the event of Landlord obtaining
possession of the Leased Premises by reason of the violation by Tenant of any of
the terms, covenants, conditions or agreements of this Lease.
(h) Failure of the Landlord to insist upon the strict performance of
any of the covenants or conditions of this lease, or to exercise any option or
election herein conferred in any one or more instances, or the adoption of any
one or more but less than all of the remedies available to it hereunder or by
law in the event of default by the Tenant, shall not be construed as a waiver or
relinquishment for the future of any such covenants, conditions or options, or
of any remedy available to it, but the same shall be and remain in full force
and effect notwithstanding.
(i) If after any default, or upon the expiration of the Lease, the
Tenant moves out or is dispossessed, and fails to remove any furniture, fixtures
or other property from the Leased Premises, the same shall be deemed abandoned
by the Tenant and shall become the property of the Landlord or at Landlord's
option may be disposed of and the reasonable costs thereof shall be borne by
Tenant.
(j) Notwithstanding anything contained herein to the contrary, if
Tenant breaches any covenant or condition of this Lease, Landlord may, on
reasonable notice to Tenant (except that no notice need be given in case of
emergency), cure such breach at the expense of Tenant and a reasonable amount of
all expenses, including attorneys' fees, incurred by Landlord in so doing
(whether paid by Landlord or not) shall be deemed Additional Rent payable within
sixty (60) days of demand. Failure of Tenant to make such payment to Landlord
shall constitute an event of default.
17. SUBORDINATION
-------------
This Lease shall be subject and subordinate at all times to the lien of any
mortgages now or hereafter placed on the land and buildings of which the Leased
Premises form a part. The Tenant covenants and agrees to execute and deliver
upon demand such further instrument or instruments subordinating this Lease to
the lien of any such mortgage or mortgages as shall be desired by any mortgagee
or proposed mortgagee. Tenant further acknowledges that
20
Landlord may be required by any mortgagee or proposed mortgagee to assign this
Lease as additional security for any mortgage or proposed mortgages, and Tenant
agrees that it will upon demand join with Landlord in the execution of any such
assignment or agreement, which may be in form for recording, as any such
mortgagee or proposed mortgagee may reasonably require. Tenant's failure to
comply on demand with the provisions hereof shall constitute a default under
this Lease. Notwithstanding anything contained in this Paragraph to the
contrary, Tenant's subordination herein is conditioned upon Tenant being able to
remain as a Tenant under the terms and conditions of this Lease regardless of
any default by the Landlord under any mortgage or foreclosure thereon, provided
the Tenant continues to pay the Basic Rent and Additional Rent due herein and
otherwise conforms to all of the terms and conditions of this Lease.
18. CONDEMNATION
------------
(a) If the whole of the Leased Premises shall be taken under the
exercise of the power of condemnation or eminent domain, then this Lease shall
automatically terminate on the date that title or possession is taken by the
condemnor, whichever occurs first, and the rent shall be apportioned as of said
date. If any part of the Leased Premises be so taken so as to materially
restrict, limit or adversely affect the use, occupancy or enjoyment of Tenant,
then Tenant shall have the option to terminate this Lease by thirty (30) days
written notice to the Landlord, which notice must be given within ninety (90)
days after possession or title on the partial taking is obtained by condemnor,
and the rent shall be apportioned on the effective date of termination of the
Lease by Tenant. Notwithstanding the foregoing, if parking space only is taken,
Tenant may not terminate this Lease if Landlord furnishes to Tenant an
equivalent number of parking spaces situated in reasonable distance of the
property lines of the real property on which the Leased Premises are situated.
(b) If any part of the Leased Premises shall be so taken and this
Lease shall not terminate or be terminated under the provisions of Paragraph
18(a) hereof then the rental shall be equitably apportioned according to the
space so taken, and the Landlord shall, at its own cost and expense, restore the
remaining portion of the Leased Premises to the extent necessary to render it
reasonably suitable for the purposes for which it was leased, shall provide
sufficient parking facilities equivalent to those originally furnished to
Tenant, and shall make all repairs to the building in which the Leased Premises
is located to the extent necessary to constitute the building a complete
architectural unit, provided, however, that if the amount of the award received
by Landlord is not adequate to cover the cost of such restoration or repairing,
Landlord may elect by written notice to Tenant to that effect to terminate this
Lease.
(c) All compensation awarded or paid upon such a total or partial
taking of the Leased Premises shall belong to and be the property of the
Landlord without any participation by the Tenant; provided, however, that
nothing contained herein shall be construed to preclude the Tenant, as permitted
by law, from prosecuting any claim directly against the condemning authority in
such condemnation proceedings for loss of business,
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relocation costs or depreciation to, damage to, or cost of removal of, or for
the value of stock, trade fixtures, furniture, and other personal property
belonging to Tenant.
19. ACCESS
------
The Landlord or Landlord's agent shall have the right, upon request to
enter/or pass through the Leased Premises or any part thereof, at reasonable
times during reasonable working hours, (a) to examine the Leased Premises and to
show them to the owners, lessors of superior leases, holders of superior
mortgages or prospective purchasers, mortgagees or lessees of the building, or
the Leased Premises, and (b) for the purpose of making such repairs or changes
or doing such repainting in or to the Leased Premises or in or to the building
or to facilities as may be provided for by this Lease or as may be mutually
agreed upon by the parties or as Landlord may be required to make by law or in
order to prepare and maintain the building or its fixtures or facilities or in
order to satisfy any obligation imposed on Landlord to any other tenant
occupying or about to occupy part of the Landlord's building. Landlord shall be
allowed to take all material into and from the Leased Premises that may be
required for such repairs, changes, repainting or maintenance, without liability
to Tenant.
20. TENANT'S ESTOPPEL
-----------------
Tenant shall, from time to time, on not less than thirty (30) days prior
written request by Landlord, execute, acknowledge and deliver to Landlord a
written statement certifying that this 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, whether or not to the best of Tenant's knowledge Landlord is in
default hereunder, and if so, specifying the nature of the default. It is
intended that any such statement delivered pursuant to this Paragraph 20 may be
relied on by a prospective purchaser of Landlord's interest or mortgagee of
Landlord's interest or assignee of any mortgage of Landlord's interest.
21. HOLD OVER TENANCY
-----------------
If Tenant holds possession of the Premises after the term of this Lease,
Tenant shall become a tenant from month to month under the provisions herein
provided, but at a monthly Basic Rent of Two Hundred (200%) percent of the Basic
Rent for the last month of the term or any renewal term, payable in advance on
the first day of each month, and such tenancy shall continue until terminated by
Landlord, or until Tenant shall have given to Landlord a written notice at least
ninety (90) days prior to the intended date of termination, of intent to
terminate such tenancy.
22. WAIVER OF TRIAL BY JURY
-----------------------
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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
Leased Premises.
23. 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 Landlord, that there shall be absolutely no
personal liability on the part of Landlord, its successors, assigns or any
mortgagee in possession (for the purposes of this Paragraph, collectively
referred to as "Landlord"), with respect to any of the terms, covenants and
conditions of this Lease, and that Tenant shall look solely to the equity of
Landlord in the building for the satisfaction of each and every remedy of tenant
in the event of any breach by Landlord of any of the terms, covenants and
conditions of this Lease to be performed by Landlord, such exculpation of
liability to be absolute and without any exceptions whatsoever.
24. TENANT WORK LETTER
------------------
The Landlord agrees to perform all the work described in the Tenant's Work
Letter and complete such work so as to make the Lease Premises ready for
occupancy by Tenant August 1, 1988 (subject, however to the provisions of
Paragraph 4 hereof), for which the Tenant agrees to pay to the Landlord the cost
thereof, if any.
25. OPTION TO EXTEND
----------------
(a) Provided that Tenant shall not be in default of any terms,
provisions, conditions or covenants herein at the time of the exercise of the
option set forth in this Paragraph 25 or at the time said option shall take
effect, Tenant shall have the right to extend the term of this Lease for one (1)
additional period of five (5) years, commencing on the date following the
termination of the initial Term. Said option to extend the Term shall be on the
same terms, conditions, provisions and covenants as are set forth herein, with
the following exceptions:
(i) The Basic Rent during the option period shall be at the
rate of $25.00 per square foot of rental space.
(ii) Nothing contained herein shall be construed to permit or
grant any options or extensions of the Term beyond the option period set
forth herein.
(b) The option herein granted to extend the Term shall be exercised
by Tenant by the delivery of written notice thereof to Landlord, not less than
one (1) year's prior to the expiration of the initial Term. In the event that
the Tenant shall fail to deliver said notice within such time, it shall be
conclusively deemed to mean that the Tenant has elected not
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to exercise said option, whereupon said option shall cease and terminate and be
of no further force and effect.
26. REAL ESTATE BROKER
------------------
Landlord and Tenant each represent to the other that it has dealt with no
real estate broker other than XxXxxxx Corporate Real Estate in connection with
this Lease. Landlord agrees that if any claims should be made for commissions by
any broker by reason of any acts of Tenant or its representatives, Landlord will
indemnify and save harmless the Tenant from any and all claims, demands, losses,
liabilities, judgments, costs, expenses, attorneys' fees or other damages
resulting from arising out of, or in connection therewith. Landlord agrees to
pay the brokerage commission due in connection with this Lease to the aforesaid
broker in accordance with the terms and conditions of a separate agreement
entered into or to be entered into between the Landlord and said broker.
27. MISCELLANEOUS
-------------
(a) The Tenant shall not erect, make or maintain on or attach or
affix to any part of the Leased Premises or the building in which the same is
located, including the windows and doors of said building, but excluding
interior walls within the Leased Premises except those visible from the
exterior, any sign, fixture, other representation, advertisement, notice of any
kind or any other matter which is visible from any location outside of such
building or the Leased Premises, or visible from the lobby of such building,
without the express written consent of the Landlord obtained in advance. In the
event that such restriction is violated, the Landlord shall have the right to
remove same on 24 hours notice or to proceed against the Tenant by way of
seeking an injunction or such other remedy as may be available to it at law or
in equity, including but not by way of limitation, the right to declare a
default in the Lease.
(b) Any lettering, "logo" or design or artwork placed upon the
entrance doors to Tenant's premises shall be subject to the reasonable approval
of the Landlord.
(c) No loud speaker or any other form of sound or audio transmission
or apparatus shall, be used in or at the Leased Premises by the Tenant, its
agents or employees, for advertising or promotional purposes or any other
purpose if the volume is such as to be audible outside of the Leased Premises.
In the event of a violation of such restriction Landlord shall have the right to
proceed against Tenant by way of seeking injunctive relief, or such other remedy
as may be available to it at law or in equity, including but not by way of
limitation, the right to declare a default in the Lease. This shall not
prohibit the use of tape recorders transcribing machines, telephone voice
amplification, or the use of any business machine or device customarily used in
a business or professional office.
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(d) The Tenant agrees to pay for the cost of all telephone equipment
and installation including telephone outlets throughout the Leased Premises
unless a telephone system communications company agrees to pay for same.
(e) It is understood that at all times the office personnel and
invitees of the Tenant shall have access to and use of the washroom in the
common areas on the floor an which the Leased Premises are situated.
(f) Any reasonable rules and regulations with regard to the use and
occupancy of the Leased Premises and the building of which they are a part by
the Tenant as attached hereto or as adopted at any time during the term of this
Lease and of which the Tenant is notified, shall in all things be observed and
performed by the Tenant, its servants, agents, and invitees, provided that such
rule shall not be inconsistent with the Tenant's rights or the Landlord's
obligations as herein expressed.
(g) All notice required to be given to the Landlord or Tenant may be
given by Registered or Certified mail addressed to the Tenant at the Leased
Premises and to Landlord, at the address first set forth herein (unless and
until notified by either party to send same to a different person or entity) and
such notices shall be considered delivered to the Landlord or Tenant as of the
time they are so mailed.
(h) The headings of the articles and the numbers of the items in this
Lease are inserted as a matter of convenience to the parties and shall not
affect the construction of this Lease.
(i) 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.
(j) The terms, conditions, covenants and provisions of this Lease
shall be deemed to be severable. If any clause or provision herein contained
shall be adjudged to be invalid or unenforceable by a court of competent
jurisdiction or by operation of any applicable law, it shall not affect the
validity of any other clause or provision herein, but such other clauses or
provisions shall remain in full force and effect. In addition, 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.
(k) This Lease shall be interpreted, governed by, and enforced in
accordance with the laws of the State of New Jersey.
25
(l) 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.
(m) Common facilities for purposes of this Lease shall mean the non-
assigned parking areas, lobby, elevators,, fire stairs, public hallways, public
lavatories, and all other general building facilities that service all building
tenants; air conditioning room, fan room, janitor's closet, electrical closet,
telephone closet, elevator shafts and machine room, flues, stacks, pipe shafts
and vertical ducts with their enclosing walls.
(n) Force majeure for purposes of this Lease, shall mean and include
those situations beyond Landlord's control including by way of example and not
by way of limitation, acts of God, accidents, strikes, shortages of labor,
supplies or materials, inclement weather, or where applicable, the passage of
time while waiting for an adjustment on insurance proceeds.
26
SECOND AMENDMENT TO LEASE
-------------------------
1. PARTIES
-------
1.1 THIS AGREEMENT made the __________ day of _______________, 1996 between
17-17 REALTY ASSOCIATES, L.P. ("Landlord") whose address is c/o Cali
Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and
BORON-LEPORE ASSOCIATES, INC. ("Tenant"), whose address is 00-00 Xxxxx
000 Xxxxx, Xxxx Xxxx, Xxx Xxxxxx 00000.
2. STATEMENT OF FACTS
------------------
2.1 MBM Associates, Landlord's predecessor in interest, and Tenant have
previously entered into a Lease dated June 22, 1988 and a Lease Renewal
Agreement dated September 8, 1993 (collectively the "Lease"),
applicable to approximately 12,225 gross rentable square feet of office
space on the second (2nd) floor ("Premises") at 00-00 Xxxxx 000 Xxxxx,
Xxxx Xxxx, Xxx Xxxxxx ("Building"); and
2.2 On March 2, 1995, 17-17 Realty Associates, L.P. succeeded to the
interest of MBM Associates; and
2.3 Tenant desires to expand the Premises and lease approximately 2,295
gross rentable square feet (the "Expansion Premises") on the first
(1st) floor of the Building; and
2.4 The parties desire to amend certain other terms of the Lease.
3. AGREEMENT
---------
NOW, THEREFORE, in consideration of the Premises and the covenants
hereinafter set forth, Landlord and Tenant agree as follows:
3.1 The above recitals are incorporated herein by reference.
3.2 Landlord, at its expense, shall perform the improvement work to the
Expansion Premises in accordance with Exhibit B attached hereto.
3.3 The Effective Date of this Agreement shall be the day Landlord
substantially completes the improvements to the Expansion Premises. The
Effective Date is estimated to be November 1, 1996.
3.4 From and after the Effective Date, the Premises shall be defined as
approximately 14,520 gross rentable square feet on the first (1st) and
second (2nd) floors of the Building and Paragraph 1 of the Lease shall
be deemed amended accordingly.
3.5 From and after the Effective Date, Landlord hereby leases to Tenant and
Tenant hereby hires from Landlord the Expansion Premises as shown on
Exhibit A attached hereto.
3.6 In addition to the Basic Rent and Additional Rent applicable to the
Original Premises, from and after the Effective Date, Tenant shall pay
Landlord Basic Rent applicable to the Expansion Premises in the amount
of ONE HUNDRED THIRTY-SEVEN THOUSAND TWO HUNDRED SIXTY-NINE AND 77/100
DOLLARS ($137,269.77) accruing at the Yearly Rate of FORTY-NINE
THOUSAND NINE HUNDRED SIXTEEN AND 28/100 DOLLARS ($49,916.28) which
shall be payable in advance on the first day of each calendar month in
Monthly Installments of FOUR THOUSAND ONE HUNDRED FIFTY-NINE AND 69/100
DOLLARS ($4,159.69) and Paragraph 5 of the Lease shall be deemed
amended accordingly. If the Effective Date falls on a day other than
November 1, 1996, the Fixed Basic Rent for the Term shall be adjusted
on a pro rata basis.
3.7 From and after the Effective Date, Tenant's Proportionate Share
applicable to the Expansion Premises shall be 1.60% and Paragraph 9(d)
of the Lease shall be deemed amended accordingly.
3.8 From and after the Effective Date, Tenant shall be entitled to forty-
six (46) unassigned parking spaces and eleven (11) assigned spaces and
Paragraph 11 of the Preamble to the Lease shall be deemed amended
accordingly.
3.9 Paragraph 8 of the Lease shall be deleted in its entirety and replaced
with the following:
BUILDING STANDARD OFFICE ELECTRICAL SERVICE: The cost of electric
-------------------------------------------
current which is supplied by the Landlord for use by the Tenant in the
Premises, other than for heating or air conditioning purposes, shall be
reimbursed to the Landlord 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) Tenant 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 Tenant
used in the Premises to determine the average monthly electric
consumption thereof, and the costs of said survey shall be borne
by Tenant. The findings of said consultant as to the average
monthly electric consumption of Tenant shall, unless objected to
by Tenant within forty-five (45) days, be conclusive and binding
on Landlord and Tenant. After Landlord's consultant has submitted
its report, Tenant shall pay to Landlord, within ten (10) days
2
after demand therefor by Landlord, the amount (based on the
monthly consumption found by such consultant) as owing from the
Effective Date, and the then expired months, to include the then
current month and thereafter, 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 Tenant objects to said
findings, Tenant shall nevertheless pay and continue to pay the
amount determined by Landlord's consultant until the issue is
finally resolved, but Tenant may, at its expense, seek the
services of an independent electrical consultant who shall make a
survey as provided above. If Landlord's and Tenant's consultant
cannot agree as to Tenant's consumption within thirty (30) days of
Tenant's consultant's findings either Landlord or Tenant may
request the American Arbitration Association in Somerset, New
Jersey to appoint an electrical engineering consultant whose
decision shall be final and binding on Landlord and Tenant, and
whose cost shall be shared equally. Upon the issue being finally
resolved, any overpayment made by Tenant shall be promptly
refunded.
(b) 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 Tenant's surveyed usage as if a
meter exclusively measuring such usage to the Premises was in
place.
(c) Tenant covenants that it shall notify Landlord immediately upon
the introduction of any office equipment or lighting different
from that on the Premises as of Landlord'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 Landlord's election, a
resurveying of the Premises at Tenant's expense. Landlord reserves
the right to inspect the Premises to insure compliance with this
provision.
(d) Landlord shall not be liable in any way to Tenant for any loss,
damage or expense which Tenant 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 paragraph nor
3
for any interruption in the supply, and Tenant agrees that such
supply may be interrupted for inspection, repairs and replacement
and in emergencies. In any event, the full measure of Landlord's
liability for any interruption in the supply due to Landlord's
acts or omissions shall be an abatement of Basic Rent and
Additional Rent, unless Landlord fails to take such measures as
may be reasonable under the circumstances to restore such service
without undue delay. In no event shall Landlord be liable for any
business interruption suffered by Tenant.
(e) Landlord, at Tenant's expense, shall furnish and install all
replacement lighting tubes, lamps, ballasts and bulbs required in
the Premises. Tenant, however, shall have the right to furnish
and/or install any or all of the items mentioned in this
subparagraph (e).
(f) Tenant's use of electrical service as contemplated herein shall he
during Building Hours, and any use in excess of said Building
Hours shall result in an adjustment as set forth in subparagraph
(a) hereof to reflect such additional consumption.
3.10 Tenant represents that it has dealt with no real estate broker in
connection with this agreement. Tenant agrees to indemnify and hold
Landlord harmless from any and all claims from any real estate broker
arising out of or in connection with the negotiations of or entering
into of this Agreement for the Expansion Premises by Tenant and
Landlord.
EXCEPT AS EXPRESSLY AMENDED HEREIN, the Lease dated June 22, 1988, as
amended, shall remain in full force and effect as if the same had been set forth
in full herein, and Landlord and Tenant hereby ratify and confirm all of the
terms and conditions thereof.
THIS AGREEMENT shall be binding upon and inure to the benefit of the parties
hereto and their respective legal representatives, successors and permitted
assigns.
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.
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IN WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands the
date and year first above written, and acknowledge one to the other that they
possess the requisite authority to enter into this transaction and to sign this
Agreement.
17-17 REALTY ASSOCIATES, L.P., BORON-LEPORE ASSOCIATES, INC.,
LANDLORD TENANT
By: Cali Sub V, Inc.,
Managing General Partner
By: By: /s/ Xxxxxxx X. Xxxxx
------------------------------ -----------------------------
Xxxxx X. Xxxxxx, Name: Xxxxxxx X. Xxxxx
Vice President - Leasing Title: Vice-Chairman
5
