LEASE
from:
CWLT ROSELAND EXCHANGE L.L.C.
Lessor
to:
AMERICAN BUSINESS FINANCIAL SERVICES, INC.
Lessee
Building:
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxx, Xxx Xxxxxx
TABLE OF CONTENTS
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1. DESCRIPTION:.............................................................................................4
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2. TERM:....................................................................................................4
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3. BASIC RENT:..............................................................................................4
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4. USE AND OCCUPANCY:.......................................................................................4
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5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL:...............................................................4
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6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:..................................................................7
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7. ACTIVITIES INCREASING FIRE INSURANCE RATES:..............................................................7
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8. ASSIGNMENT AND SUBLEASE:.................................................................................7
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9. COMPLIANCE WITH RULES AND REGULATIONS:..................................................................11
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10. DAMAGES TO BUILDING:....................................................................................11
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11. EMINENT DOMAIN:.........................................................................................12
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12. INSOLVENCY OF LESSEE:...................................................................................12
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13. LESSOR'S REMEDIES ON DEFAULT:...........................................................................12
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14. DEFICIENCY:.............................................................................................12
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15. SUBORDINATION OF LEASE:.................................................................................13
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16. SECURITY DEPOSIT:.......................................................................................14
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17. RIGHT TO CURE LESSEE'S BREACH:..........................................................................14
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18. MECHANIC'S LIENS:.......................................................................................14
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19. RIGHT TO INSPECT AND REPAIR:............................................................................14
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20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION:.................................................15
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21. INTERRUPTION OF SERVICES OR USE:........................................................................15
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22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:............................................................16
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23. ADDITIONAL RENT:........................................................................................18
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24. LESSEE'S ESTOPPEL:......................................................................................23
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25. HOLDOVER TENANCY:.......................................................................................23
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26. RIGHT TO SHOW PREMISES:.................................................................................24
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27. LESSOR'S WORK - LESSEE'S DRAWINGS:......................................................................24
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28. WAIVER OF TRIAL BY JURY:................................................................................24
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29. LATE CHARGE:............................................................................................24
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30. LESSEE'S INSURANCE:.....................................................................................24
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i
31. NO OTHER REPRESENTATIONS:...............................................................................26
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32. QUIET ENJOYMENT:........................................................................................27
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33. INDEMNITY:..............................................................................................27
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34. ARTICLE HEADINGS:.......................................................................................27
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35. APPLICABILITY TO HEIRS AND ASSIGNS:.....................................................................27
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36. OUTSIDE PARKING SPACES:.................................................................................27
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37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY:................................................................28
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38. PARTIAL INVALIDITY:.....................................................................................28
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39. LESSEE'S BROKER:........................................................................................29
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40. PERSONAL LIABILITY:.....................................................................................29
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41. NO OPTION:..............................................................................................29
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42. DEFINITIONS:............................................................................................29
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43. LEASE COMMENCEMENT:.....................................................................................30
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44. NOTICES:................................................................................................31
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45. ACCORD AND SATISFACTION:................................................................................31
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46. EFFECT OF WAIVERS:......................................................................................31
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47. LEASE CONDITION:........................................................................................32
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48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE:.............................................................32
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49. LESSOR'S RESERVED RIGHT:................................................................................32
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50. CORPORATE AUTHORITY:....................................................................................32
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51. AFTER-HOURS USE:........................................................................................32
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52. LESSEE'S EXPANSION/RELOCATION:..........................................................................33
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53. BUILDING PERMIT:........................................................................................33
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54. RIGHT OF FIRST OFFER:...................................................................................34
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55. TERMINATION OPTION:.....................................................................................36
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56. FOOD SERVICE:...........................................................................................37
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57. FURNITURE AND PHONE SYSTEM:.............................................................................38
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ii
LEASE, is made the _____ day of _________, 2003 between CWLT ROSELAND
EXCHANGE L.L.C. (herein referred to as "Lessor") whose address is c/o Xxxx-Xxxx
Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and AMERICAN
BUSINESS FINANCIAL SERVICES, INC. (herein referred to as "Lessee") whose address
is 000 Xxxxxxxxxxxx Xxxxxxxxx, Xxxx Xxxxxx, Xxxxxxxxxxxx 00000.
PREAMBLE
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BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the following terms
whenever used in this Lease shall have only the meanings set forth in this
section, unless such meanings are expressly modified, limited or expanded
elsewhere herein.
1. ADDITIONAL RENT shall mean all sums in addition to Fixed Basic Rent
payable by Lessee to Lessor pursuant to the provisions of the Lease.
2. BASE PERIOD COSTS shall mean the following:
A. Base Operating Costs: Those Operating Costs incurred during
Calendar Year 2003.
B. Base Real Estate Taxes: Those Real Estate Taxes incurred during
Calendar Year 2003.
C. Insurance Cost Expense Stop: $39,600.00
D. Utility and Energy Costs Expense Stop: $220,000.00
3. BUILDING shall mean 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxxxx.
4. BUILDING HOLIDAYS shall be those shown on Exhibit E.
5. BUILDING HOURS shall be Monday through Friday, 8:00 a.m. to 7:00 p.m.,
and Saturdays 8:00 a.m. to 1:00 p.m., but excluding those holidays as
set forth on Exhibit E attached hereto and made a part hereof, except
that Common Facilities, lighting in the Building and Office Building
Area shall be maintained for such additional hours as, in Lessor's sole
judgement, is necessary or desirable to insure proper operating of the
Building and Office Building Area.
6. COMMENCEMENT DATE is May 27, 2003 and shall for purposes hereof be
subject to Articles 27 and 43 hereof. In no event shall the
Commencement Date be earlier than May 27, 2003. In any event, the
Commencement Date shall not occur until the Monday following the date
of Lessor's substantial completion of the Premises (as more fully set
forth in Article 27 and Exhibit C hereof). If such Monday is a Building
Holiday set forth on Exhibit E, then the Commencement Date shall be on
the Tuesday immediately following such Building Holiday. Lessor shall
give Lessee not less than three (3) weeks prior notice of Lessor's
substantial completion of the Premises.
7. DEMISED PREMISES OR PREMISES shall be deemed to be 31,160 gross
rentable square feet on the fourth (4th) floor of the Building as shown
on Exhibit A attached hereto, which includes an allocable share of the
Common Facilities as defined in Article 42(b). The parties acknowledge
that the gross rentable area of the Premises is still subject to the
approval of the plans for such space by both parties. Upon the approval
of the plans for such space by both parties, the parties shall enter
into a supplement to this Lease confirming the gross rentable area of
the Premises and any adjustments to the Fixed Basic Rent payable by
Lessee, Lessee's Percentage, the Termination Fee and Lessor's
Allowance.
1
8. EXHIBITS shall be the following, attached to this Lease and
incorporated herein and made a part hereof.
Exhibit A Location of Premises
Exhibit X-0 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxx X Rules and Regulations
Exhibit C Lessor's Work
Exhibit C-1 Air Conditioning &
Heating Design Standards
Exhibit D Cleaning Services
Exhibit E Building Holidays
Exhibit F Tenant Estoppel Certificate
Exhibit G Commencement Date Agreement
Exhibit H Letter of Credit
9. EXPIRATION DATE shall be the last day of the month in which the day
before the eight (8) year and eight (8) month anniversary of the
Commencement Date occurs, subject to Article 55 hereof.
10. FIXED BASIC RENT shall be payable as follows:
Month Yearly Rate Monthly Installment
----- ----------- -------------------
1-8 $0.00 $0.00
9-36 $763,420.00 $63,618.33
37-60 $825,740.00 $68,811.67
61-104 $888,060.00 $74,005.00
11. LESSEE'S BROKER shall mean none.
12. LESSEE'S PERCENTAGE shall be 14.16% subject to adjustment as provided
for in Article 42(d).
13. OFFICE BUILDING AREA is as set forth on Exhibit A-1.
14. PARKING SPACES shall mean a total of 133 spaces.
Reserved: 8 (such spaces to be designated for Lessee's sole use)
Unassigned: 125
15. PERMITTED USE Lessee shall use and occupy the Premises as an office for
general office and administrative purposes, data processing, training
and for all lawful functions and purposes ancillary to general office
and administrative purposes and for no other purpose.
16. SECURITY DEPOSIT shall be $206,435.01.
Lessee may deliver to Lessor, in lieu of the cash deposit set forth in
this Article an irrevocable negotiable letter of credit issued by and
drawn upon such commercial bank selected by Lessee and acceptable to
Lessor (at its sole discretion) and in form and content acceptable to
Lessor (also at its sole discretion) (the form attached hereto as
Exhibit H shall be deemed acceptable to Lessor) for the account of
Lessor, in the sum of $206,435.01. Said letter of credit shall be for a
term of not less than one (l) year and shall be renewed by Lessee
(without notice from Lessor) no later than thirty (30) days prior to
its expiration, and the expiration of each replacement thereof, until
Lessor shall be required to return the security to Lessee pursuant to
the terms of this Lease but in no event earlier than thirty (30) days
after the Expiration Date, and each such renewed letter of credit shall
be delivered to Lessor no later than sixty (60) days prior to the
expiration of the letter of credit then held by Lessor. If any portion
of the security deposit shall be utilized by Lessor in the manner
permitted by this Lease, Lessee shall, within five (5) business days
after request by Lessor, replenish the security account by depositing
with Lessor, in cash or by letter of credit, an amount equal to that
utilized by Lessor. Failure of Lessee to comply strictly with the
provisions of this Article shall constitute a material breach of this
Lease and Lessor shall be entitled to present the letter of credit then
held by it for payment (without notice to Lessee). If the cash security
is converted into a letter of credit, the provisions with respect to
letters of credit shall apply (with the necessary changes in points of
detail) to such letter of credit deposit. In the event of a bank
failure or insolvency affecting the letter of credit, Lessee shall
replace same within twenty (20) days after being requested to do so by
Lessor. Lessee shall pay all reasonable transfer fees required by the
bank issuing the letter of credit in connection with a transfer of the
letter of credit by Lessor.
2
Provided that (i) this Lease is in full force and effect and (ii)
Lessee is not in and has not been in default hereunder, Lessee, upon
request to Lessor, shall reduce the Security Deposit to $68,811.67 on
the fifth (5th) anniversary of the Commencement Date. In the event
Lessee provides all or a part of the security deposit in the form of
cash, Lessor shall, if such cash amount exceeds $25,000, hold such sums
in an interest bearing, fully FDIC or FSLIC insured money market
account (the "Account"). Any interest from the Account shall be
returned to Lessee on an annual basis, subject to Lessor's right to
apply same. The unapplied portion of any cash Security Deposit will be
returned to Lessee together with any interest in the Account no later
than thirty (30) days after the termination of the Lease. Lessee shall
pay Lessor a reasonable administrative fee for maintaining the Account.
17. TERM shall mean eight (8) years and eight (8) months from the
Commencement Date, plus the number of days, if any, to have the Lease
expire on the last day of a calendar month, unless extended pursuant to
any option contained herein.
-- End of Preamble --
3
W I T N E S S E T H
- - - - - - - - - -
For and in consideration of the covenants herein contained, and upon
the terms and conditions herein set forth, Lessor and Lessee agree as follows:
1. DESCRIPTION:
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Lessor hereby leases to Lessee, and Lessee hereby hires from Lessor,
the Premises as defined in the Preamble which includes an allocable
share of the Common Facilities, as shown on the plan or plans,
initialed by the parties hereto, marked Exhibit A attached hereto and
made part of this Lease in the Building as defined in the Preamble,
(hereinafter called the "Building") which is situated on that certain
parcel of land (hereinafter called "Office Building Area") as described
on Exhibit A-1 attached hereto and made part of this Lease, together,
with the right to use in common with other lessees of the Building,
their invitees, customers and employees, those public areas of the
Common Facilities as hereinafter defined.
2. TERM:
----
The Premises are leased for a term to commence on the Commencement
Date, and to end at 12:00 midnight on the Expiration Date, all as
defined in the Preamble.
3. BASIC RENT:
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The Lessee shall pay to the Lessor during the Term, the Fixed Basic
Rent as defined in the Preamble (hereinafter called "Fixed Basic Rent")
payable in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and
private debts. The Fixed Basic Rent shall accrue at the Yearly Rate as
defined in the Preamble and shall be payable, in advance, on the first
day of each calendar month during the Term at the Monthly Installments
as defined in the Preamble, except that a proportionately lesser sum
may be paid for the first and last months of the Term of this Lease if
the Term commences on a day other than the first day of the month, in
accordance with the provisions of this Lease herein set forth. Lessor
acknowledges receipt from Lessee of the first monthly installment by
check, subject to collection, for Fixed Basic Rent for the first month
of the Lease Term. Lessee shall pay Fixed Basic Rent, and any
Additional Rent as hereinafter provided, to Lessor at Lessor's above
stated address, or at such other place as Lessor may designate in
writing, without demand and without counterclaim, deduction or set off.
4. USE AND OCCUPANCY:
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Lessee shall use and occupy the Premises for the Permitted Use as
defined in the Preamble.
Lessee hereby acknowledges "no smoking" is permitted in the Common
Facilities. If at any time during the Term of this Lease, Lessee adopts
a policy prohibiting Lessee, its employees, agents or invitees from
smoking within the Premises, Lessee shall use its best efforts to
enforce Lessor's policy prohibiting its employees, agents or invitees
from smoking within the Common Facilities including the areas outside
the Building's main entrance.
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL:
-----------------------------------------
(a) Lessee shall commit no act of waste and shall take good care
of the Premises and the fixtures and appurtenances therein,
and shall, in the use and occupancy of the Premises, conform
to all laws, orders and regulations of the federal, state and
municipal governments or any of their departments affecting
the Premises and with any and all environmental requirements
resulting from the Lessee's use of the Premises, this covenant
to survive the expiration or sooner termination of the Lease.
4
Lessor shall, subject to the same being included in Operating
Costs, make all necessary repairs to the Premises, Common
Facilities and to the assigned parking areas, if any, except
where the repair has been made necessary by misuse or neglect
by Lessee or Lessee's agents, servants, visitors or licensees,
in which event Lessor shall nevertheless make the repair but
Lessee shall pay to Lessor, as Additional Rent, immediately
upon demand, the costs therefor. All improvements made by
Lessee to the Premises, which are so attached to the Premises,
shall become the property of Lessor upon installation. Not
later than the last day of the Term, Lessee shall, at Lessee's
expense, remove all Lessee's personal property and those
improvements made by Lessee which have not become the property
of Lessor, including trade fixtures, cabinetwork, movable
paneling, partitions and the like; repair all injury done by
or in connection with the installation or removal of said
property and improvements; and surrender the Premises in as
good condition as they were at the beginning of the Term,
reasonable wear and tear and damage by fire, the elements,
casualty or other cause not due to the misuse or neglect by
Lessee, Lessee's agents, servants, visitors or licensees
excepted. All other property of Lessee remaining on the
Premises after the last day of the Term of this Lease shall be
conclusively deemed abandoned and may be removed by Lessor,
and Lessee shall reimburse Lessor for the cost of such
removal. Lessor may have any such property stored at Lessee's
risk and expense.
ENVIRONMENTAL
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(b) Compliance with Environmental Laws. Lessee shall, at Lessee's
own expense, promptly comply with each and every federal,
state, county and municipal environmental law, ordinance,
rule, regulation, order, directive and requirement, now or
hereafter existing ("Environmental Laws"), applicable to the
Premises, Lessee, Lessee's operations at the Premises, or all
of them. Notwithstanding the preceding, Lessee shall be
entitled to use office cleaning products and other such items
that are typically used in connection with general office
maintenance.
(c) ISRA Compliance. Lessee shall, at Lessee's own expense, comply
with the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et
seq., the regulations promulgated thereunder and any amending
and successor legislation and regulations ("ISRA").
(d) Information to Lessor. At no expense to Lessor, Lessee shall
promptly provide all information and sign all documents
requested by Lessor with respect to compliance with
Environmental Laws.
(e) Lessor Audit. Lessee shall permit Lessor and its
representatives access to the Premises, from time to time, to
conduct an environmental assessment, investigation and
sampling, all at Lessee's own expense. When entering the
Premises, Lessor shall use reasonable efforts to minimize
interference with Lessee's use of the Premises.
(f) Lessee Remediation. Should any assessment, investigation or
sampling reveal the existence of any spill, discharge or
placement of Contaminants in, on, under, or about, or
migrating from or onto the Premises, the Building or the
Office Building Area, to the extent resulting from the action
or omission of Lessee or a "Lessee Representative", then, in
addition to being in default under this Lease and Lessor
having all rights available to Lessor under this Lease and by
law by reason of such default, Lessee shall, at Lessee's own
expense, in accordance with Environmental Laws, undertake all
action required by Lessor and any governmental authority,
including, without limitation, promptly obtaining and
delivering to Lessor an unconditional No Further Action
Letter. For purposes of this Article, the term "Lessee's
Representative" shall mean any shareholder, officer, director,
member, partner, employee, agent, contractor, licensee,
assignee, sublessee or invitee of Lessee. In no event shall
any of Lessee's remedial action involve engineering or
institutional controls, a groundwater classification exception
area or well restriction area, and Lessee's remedial action
shall meet the legally required remediation standards for
soil, surface water, groundwater and drinking water. Promptly
upon completion of all required investigatory and remedial
activities, Lessee shall, at Lessee's own expense, to Lessor's
satisfaction, restore the affected areas of the Premises, the
Building or the Office Building Area, as the case may be, from
any damage or condition caused by the investigatory or
remedial work.
5
(g) Environmental Questionnaire. Upon Lessor's request,
contemporaneously with the signing and delivery of this Lease,
and thereafter upon renewal of the lease, if at all, Lessee
shall complete, execute and deliver to Lessor an environmental
questionnaire in form and substance satisfactory to Lessor.
(h) Environmental Documents and Conditions. For purposes of this
Article, the term "Environmental Documents" shall mean all
environmental documentation concerning the Building or the
Office Building Area, of which the Premises is a part, or its
environs, in the possession or under the control of Lessee,
including, without limitation, plans, reports, correspondence
and submissions. During the term of this Lease and
subsequently, promptly upon receipt by Lessee or Lessee's
Representatives, Lessee shall deliver to Lessor all
Environmental Documents concerning or generated by or on
behalf of Lessee, whether currently or hereafter existing. In
addition, Lessee shall promptly notify Lessor of any
environmental condition of which Lessee has knowledge, which
may exist in, on, under, or about, or may be migrating from or
onto the Building or the Office Building Area.
(i) Lessor's Right to Perform Lessee's Obligations.
Notwithstanding anything to the contrary set forth in this
Lease, in the event, pursuant to this Lease, Lessee is
required to undertake any sampling, assessment, investigation
or remediation with respect to the Premises, the Building or
the Office Building Area, as the case may be, then, at
Lessor's discretion, Lessor shall have the right, upon notice
to Lessee, from time to time, to perform such activities at
Lessee's expense, and all sums incurred by Lessor shall be
paid by Lessee, as Additional Rent, upon demand.
(j) Indemnity. Lessee shall indemnify, defend and hold harmless
Lessor, Lessor's officers, directors, shareholders, employees
and personal or legal representatives from and against any and
all claims, liabilities, losses, damages, penalties and costs,
foreseen or unforeseen, including, without limitation,
counsel, engineering and other professional or expert fees,
which an indemnified party may incur resulting directly or
indirectly, wholly or partly from Lessee's actions or
omissions with regard to Lessee's obligations under this
Article.
(k) Survival. This Article shall survive the expiration or earlier
termination of this lease. Lessee's failure to abide by the
terms of this Article shall be restrainable or enforceable, as
the case may be, by injunction.
(l) Interpretation. The obligations imposed upon Lessee under
subparagraphs (a) through (j) above are in addition to and are
not intended to limit, but to expand upon, the obligations
imposed upon Lessee under this Article 5. As used in this
Article, the term "Contaminants" shall include, without
limitation, any regulated substance, toxic substance,
hazardous substance, hazardous waste, pollution, pollutant,
contaminant, petroleum, asbestos or polychlorinated biphenyls,
as defined or referred to in any Environmental Laws. Where a
law or regulation defines any of these terms more broadly then
another, the broader definition shall apply.
(m) Lessor represents to Lessee that, to the best of its actual
knowledge, the Premises and Building shall on the date of
delivery thereof to Lessee be free from unlawful quantities of
Contaminants and in compliance with all State, Federal and
local laws, codes, regulations and requirements relating to
environmental matters. Lessor shall indemnify and hold Lessee
harmless from and against any and all damage, loss or
liability (excluding consequential and punitive damages)
actually incurred by Lessee directly resulting from the breach
by Lessor of the foregoing representation and warranty, and
shall be responsible for the remediation (in accordance with
applicable laws) of Contaminants unlawfully located in the
Premises and the Building on the date Lessor delivers the same
to Lessee, unless presence or release of such unlawful
Contaminants results from any act and/or omission of Lessee or
a Lessee Representative. In no event shall Lessee be
responsible for the remediation of Contaminants, unless the
presence or release of such Contaminants results from any act
and/or omission of Lessee or a Lessee Representative.
6
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:
--------------------------------------
Lessee shall not, without first obtaining the written consent of
Lessor, make any alterations, additions or improvements in, to or about
the Premises.
Notwithstanding the foregoing, Lessor's consent shall not be
unreasonably withheld, conditioned or delayed for the following
non-structural, interior alterations which do not affect the systems of
the Building (such as electrical, water and HVAC) or does not require a
building permit: carpeting, wallcovering, painting or other similar
work of a decorative nature, the installation of built-ins, or the
installation and reconfiguration of interior partitions which do not
penetrate the finished ceiling, and reconfiguration and supplementing
of cabling and wiring. If Lessor consents to any alterations,
improvements or additions, it may impose such reasonable conditions
with respect thereto as Lessor deems appropriate, including, without
limitation, Lessor's reasonable approval of the contractors to perform
the work, contractor's lien waivers, insurance against liabilities
which may arise out of such work, plans, and specifications and permits
necessary for such work. All work done by Lessee or its contractors
pursuant to and in accordance with this Article 6, or otherwise shall
be done in a first-class workmanlike manner, using only good grades of
materials and without unreasonably disturbing other lessees, shall be
done in compliance with all insurance requirements and all applicable
laws or ordinances and rules and regulations of governmental
departments or agencies, and all landmark or historical designation
requirements, and shall be done by responsible contractors and
subcontractors approved by Lessor in advance whose engagement will not
in Lessor's reasonable opinion, and in fact does not, result in any
labor dispute at the Building, whether in connection with any
construction at the Building, the operation of the Building or
otherwise.
7. ACTIVITIES INCREASING FIRE INSURANCE RATES:
------------------------------------------
Lessee shall not do or suffer anything to be done on the Premises which
will increase the rate of fire insurance on the Building. Provided that
no activity consistent with a Permitted Use may result in a breach of
this obligation.
8. ASSIGNMENT AND SUBLEASE:
-----------------------
Provided Lessee is not in default of any provisions of this Lease,
Lessee may assign or sublease the within Lease to any party subject to
the following:
a. In the event Lessee desires to assign this Lease or sublease
all or part of the Premises to any other party, the terms and
conditions of such assignment or sublease shall be
communicated to the Lessor in writing no less than ninety (90)
days prior to the effective date of any such sublease or
assignment, and, prior to such effective date, the Lessor
shall have the option, exercisable in writing to the Lessee,
to: (i) sublease such space from Lessee at the lower rate of
(a) the rental rate per rentable square foot of Fixed Basic
Rent and Additional Rent then payable pursuant to this Lease
or (b) the terms set forth in the proposed sublease, (ii)
recapture in the case of subletting, that portion of the
Premises to be sublet or all of the Premises in the case of an
assignment ("Recapture Space") so that such prospective
sublessee or assignee shall then become the sole Lessee of
Lessor hereunder, or (iii) recapture the Recapture Space for
Lessor's own use and the within Lessee shall be fully released
from any and all obligations hereunder with respect to the
Recapture Space. Notwithstanding the foregoing, Lessor shall
have no right to exercise its rights pursuant to clauses (i),
(ii) or (iii) above, if the space that Lessee proposes to
sublet is less than thirty-three and one-third percent
(33 1/3%) of the Premises and the term of such subletting
including renewal options, if any, is to expire at any time
prior to the end of the seventh (7th) Lease Year.
7
b. In the event that the Lessor elects not to recapture the Lease
or relet the Premises as hereinabove provided, the Lessee may
nevertheless assign this Lease or sublet the whole or any
portion of the Premises, subject to the Lessor's prior written
consent, which consent shall not be unreasonably withheld,
conditioned or delayed, on the basis of the following terms
and conditions:
i. The Lessee shall provide to the Lessor the name and
address of the assignee or sublessee.
ii. The assignee shall assume, by written instrument, all
of the obligations of this Lease, and a copy of such
assumption agreement shall be furnished to the Lessor
within ten (10) days of its execution. Any sublease
shall expressly acknowledge that said sublessee's
rights against Lessor shall be no greater than those
of Lessee. Lessee further agrees that notwithstanding
any such subletting, no other and further subletting
of the Premises by Lessee or any person claiming
through or under Lessee shall or will be made except
upon compliance with and subject to the provisions of
this Article 8.
iii. Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which
this Lease is or shall be subordinate, and that in
the event of default by Lessee under this Lease,
Lessor may, at its option, take over all of the
right, title and interest of Lessee, as sublessor,
under such sublease, and such sublessee shall, at
Lessor's option, attorn to Lessor pursuant to the
then executory provisions of such sublease, except
that Lessor shall not (i) be liable for any previous
act or omission of Lessee under such sublease or,
(ii) be subject to any offset not expressly provided
in such sublease which theretofore accrued to such
sublease to which Lessor has not specifically
consented in writing or by any previous prepayment of
more than one month's rent.
iv. The Lessee and each assignee shall be and remain
liable for the observance of all the covenants and
provisions of this Lease, including, but not limited
to, the payment of Fixed Basic Rent and Additional
Rent reserved herein, through the entire Term of this
Lease, as the same may be renewed, extended or
otherwise modified.
v. The Lessee and any assignee shall promptly pay to
Lessor fifty percent (50%) of any consideration
received for any assignment and/or fifty percent
(50%) of the rent, as and when received, in excess of
the Rent required to be paid by Lessee for the area
sublet computed on the basis of an average square
foot rent for the gross square footage Lessee has
leased.
vi. In any event, the acceptance by the Lessor of any
rent from the assignee or from any of the subtenants
or the failure of the Lessor to insist upon a strict
performance of any of the terms, conditions and
covenants herein shall not release the Lessee herein,
nor any assignee assuming this Lease, from any and
all of the obligations herein during and for the
entire Term of this Lease.
vii. In Lessor's reasonable judgment, the proposed
assignee or subtenant is engaged in a business or
activity, and the Premises, or the relevant part
thereof, will be used in a manner, which (a) is in
keeping with the then standard of the Building as a
first class office building and (b) is limited to the
use of the Premises as general offices.
viii. The proposed assignee or subtenant shall be an entity
which has existed for at least one (1) year and is
not then an occupant of any part of the Building or
any other building then owned by Lessor or its
affiliates within Roseland, New Jersey.
ix. The proposed assignee or subtenant is not an entity
or a person with whom Lessor is or has been, within
the preceding six (6) month period, negotiating to
lease space in the Building or any other building
owned by Lessor or its affiliates within Roseland,
New Jersey.
8
x. There shall not be more than one (1) subtenant in the
Premises.
xi. Lessee shall not advertise the subtenancy for less
than the then current market rent per rentable square
foot for the Premises as though the Premises were
vacant.
xii. Lessee shall not have (a) publicly advertised the
availability of the Premises without prior notice to
Lessor, nor shall any advertisement state the name
(as distinguished from the address) of the Building
or (b) listed the Premises for subletting or
assignment with other than a broker, agent or
representative who waives any entitlement to a
commission or other fee from Lessor in the event of a
recapturing of the Premises;
xiii. The proposed occupancy shall not, in Lessor's
reasonable opinion, increase the density of
population using the Demised Premises to exceed one
(1) person per 250 gross rentable square feet of
space or exceed the parking allocation presently
provided for in this Lease;
xiv. The proposed assignee or subtenant shall only use the
Premises for the Permitted Use and shall not be
engaged in any of the following:
(a) educational, including but not limited to,
instructional facilities and correspondence
schools;
(b) employment agencies;
(c) model agencies;
(d) photographic studios or laboratories;
(e) spas, health, physical fitness or exercise
salons;
(f) small loan offices;
(g) real estate brokerage or real estate sales
offices open to the general public or
construction offices;
(h) medical or dental facilities, including
professional offices, treatment facilities,
dispensaries or laboratories;
(i) federal, state or local government offices;
(j) so-called boiler room operations;
(k) retail stock brokerage offices; and
(l) religious organizations making facilities
available to congregations for uses other
than business purposes; and
(m) executive office suite use.
xv. The proposed assignee or subtenant shall not be
entitled, directly or indirectly, to diplomatic or
sovereign immunity and shall be subject to the
service of process in, and the jurisdiction of, the
state courts of New Jersey.
xvi. Lessor shall require a FIVE HUNDRED AND 00/100 DOLLAR
($500.00) payment to cover its handling charges for
each request for consent to any sublet or assignment
prior to its consideration of the same. Lessee
acknowledges that its sole remedy with respect to any
assertion that Lessor's failure to consent to any
sublet or assignment is unreasonable shall be the
remedy of specific performance and Lessee shall have
no other claim or cause of action against Lessor as a
result of Lessor's actions in refusing to consent
thereto.
c. If Lessee is a corporation other than a corporation whose
stock is listed and traded on a nationally recognized stock
exchange, the provisions of Sub-section a. shall apply to a
transfer (however accomplished, whether in a single
transaction or in a series of related or unrelated
transactions) of stock (or any other mechanism such as, by way
of example, the issuance of additional stock, a stock voting
agreement or change in class(es) of stock) which results in a
change of control of Lessee as if such transfer of stock (or
other mechanism) which results in a change of control of
Lessee were an assignment of this Lease, and if Lessee is a
partnership or joint venture, said provisions shall apply with
respect to a transfer (by one or more transfers) of an
9
interest in the distributions of profits and losses of such
partnership or joint venture (or other mechanism, such as, by
way of example, the creation of additional general partnership
or limited partnership interests) which results in a change of
control of such a partnership or joint venture, as if such
transfer of an interest in the distributions of profits and
losses of such partnership or joint venture which results in a
change of control of such partnership or joint venture were an
assignment of this Lease; but said provisions shall not apply
to transactions with a corporation into or with which Lessee
is merged or consolidated or to which all or substantially all
of Lessee's assets are transferred or to any corporation which
controls or is controlled by Lessee or is under common control
with Lessee, provided that in the event of such merger,
consolidation or transfer of all or substantially all of
Lessee's assets (i) the successor to Lessee has a net worth
computed in accordance with generally accepted accounting
principles at least equal to the greater of (1) the net worth
of Lessee immediately prior to such merger, consolidation or
transfer, or (2) the net worth of Lessee herein named on the
date of this Lease, and (ii) proof satisfactory to Lessor of
such net worth shall have been delivered to Lessor at least 10
days prior to the effective date of any such transaction.
d. In the event that any or all of Lessee's interest in the
Premises and/or this Lease is transferred by operation of law
to any trustee, receiver, or other representative or agent of
Lessee, or to Lessee as a debtor in possession, and
subsequently any or all of Lessee's interest in the Premises
and/or this Lease is offered or to be offered by Lessee or any
trustee, receiver, or other representative or agent of Lessee
as to its estate or property (such person, firm or entity
being hereinafter referred to as the "Grantor"), for
assignment, conveyance, lease, or other disposition to a
person, firm or entity other than Lessor (each such
transaction being hereinafter referred to as a "Disposition"),
it is agreed that Lessor has and shall have a right of first
refusal to purchase, take, or otherwise acquire, the same upon
the same terms and conditions as the Grantor thereof shall
accept upon such Disposition to such other person, firm, or
entity; and as to each such Disposition the Grantor shall give
written notice to Lessor in reasonable detail of all of the
terms and conditions of such Disposition within thirty (30)
days next following its determination to accept the same but
prior to accepting the same, and Grantor shall not make the
Disposition until and unless Lessor has failed or refused to
accept such right of first refusal as to the Disposition, as
set forth herein.
Lessor shall have thirty (30) days next following its receipt
of the written notice as to such Disposition in which to
exercise the option to acquire Lessee's interest by such
Disposition, and the exercise of the option by Lessor shall be
effected by notice to that effect sent to the Grantor; but
nothing herein shall require Lessor to accept a particular
Disposition or any Disposition, nor does the rejection of any
one such offer of first refusal constitute a waiver or release
of the obligation of the Grantor to submit other offers
hereunder to Lessor. In the event Lessor accept such offer of
first refusal, the transaction shall be consummated pursuant
to the terms and conditions of the Disposition described in
the notice to Lessor. In the event Lessor rejects such offer
of first refusal, Grantor may consummate the Disposition with
such other person, firm, or entity; but any decrease in price
of more than two percent (2%) of the price sought from Lessor
or any change in the terms of payment for such Disposition
shall constitute a new transaction requiring a further option
of first refusal to be given to Lessor hereunder.
e. Without limiting any of the provisions of Articles 12 and 13,
if pursuant to the Federal Bankruptcy Code (herein referred to
as the "Code"), or any similar law hereafter enacted having
the same general purpose, Lessee is permitted to assign this
Lease notwithstanding the restrictions contained in this
Lease, adequate assurance of future performance by an assignee
expressly permitted under such Code shall be deemed to mean
the deposit of cash security in an amount equal to a sum as is
commercially reasonable under the circumstances, which deposit
shall be held by Lessor for the balance of the Term, without
interest, as security for the full performance of all of
Lessee's obligations under this Lease, to be held and applied
in the manner specified for security in Article 16.
10
f. Except as specifically set forth above, no portion of the
Premises or of Lessee's interest in this Lease may be acquired
by any other person or entity, whether by assignment,
mortgage, sublease, transfer, operation of law or act of the
Lessee, nor shall Lessee pledge its interest in this Lease or
in any security deposit required hereunder.
9. COMPLIANCE WITH RULES AND REGULATIONS:
-------------------------------------
Lessee shall observe and comply with the rules and regulations
hereinafter set forth in Exhibit B attached hereto and made a part
hereof and with such further reasonable rules and regulations as Lessor
may prescribe, on written notice to the Lessee, for the safety, care
and cleanliness of the Building and the comfort, quiet and convenience
of other occupants of the Building. Lessee shall not place a load upon
any floor of the Premises exceeding the floor load per square foot area
which it was designed to carry and which is allowed by law; it being
understood and agreed, however, that Lessor architect is designing
floor supports to accommodate Lessee's load requirements. Lessor
reserves the right to prescribe the weight and position of all safes,
business machines and mechanical equipment. Such installations shall be
placed and maintained by Lessee, at Lessee's expense, in settings
sufficient, in Lessor's reasonable judgement, to absorb and prevent
vibration, noise and annoyance.
10. DAMAGES TO BUILDING:
-------------------
If the Building is damaged by fire or any other cause to such extent
the cost of restoration, as reasonably estimated by Lessor, will equal
or exceed twenty-five percent (25%) of the replacement value of the
Building (exclusive of foundations) just prior to the occurrence of the
damage, then Lessor may, no later than the sixtieth (60th) day
following the date of damage, give Lessee a notice of election to
terminate this Lease, or if the cost of restoration will equal or
exceed fifty percent (50%) of such replacement value and if the
Premises shall not be reasonably usable for the purpose for which they
are leased hereunder, or if restoration of the damage will require more
than one hundred eighty (180) days to complete or if such damage is not
fully repaired and reasonable access to the Premises restored within
one hundred (180) days from the date of damage, then, in any such
event, Lessee may, no later than the sixtieth (60th) day following the
date of damage or following the end of said one hundred eighty (180)
day period, give Lessor a notice of election to terminate this Lease.
In either said event of election, this Lease shall be deemed to
terminate on the thirtieth (30th) day after the giving of said notice,
and Lessee shall surrender possession of the Premises within a
reasonable time thereafter, and the Fixed Basic Rent, and any
Additional Rent, shall be apportioned as of the date of said casualty
and any Fixed Basic Rent or Additional Rent paid for any period beyond
said date shall be repaid to Lessee. If the cost of restoration shall
not entitle Lessor to terminate this Lease, or if, despite the cost,
Lessor does not elect to terminate this Lease, Lessor shall restore the
Building and the Premises with reasonable promptness, subject to Force
Majeure, and Lessee shall have no right to terminate this Lease, except
as set forth above. Lessor need not restore fixtures and improvements
owned by Lessee.
In any case in which use of the Premises is affected by any damage to
the Building, there shall be either an abatement or an equitable
reduction in Fixed Basic Rent, depending on the period for which and
the extent to which the Premises are not reasonably usable for the
purpose for which they are leased hereunder. The words "restoration"
and "restore" as used in this Article 10 shall include repairs. To the
extent the damage results from the fault of the Lessee, Lessee's
agents, servants, visitors or licensees, Lessee shall not be entitled
to any abatement or reduction in Fixed Basic Rent, except to the extent
of any rent insurance received by Lessor
Any termination of this Lease as set forth in this Paragraph 10 shall
be without further liability or obligation of Lessor or Lessee except
for those obligations that survive such termination as otherwise
expressly set forth in this Lease, and except for such obligations as
shall have accrued, as of the date of and attributable solely to
periods of time prior to, the date of termination. For such purposes no
rent or additional rent attributable to any period of time after the
date of termination (whether by reason of acceleration or otherwise)
shall be due or payable by Lessee.
11
11. EMINENT DOMAIN:
--------------
If Lessee's use of the Premises is materially affected due to the
taking by eminent domain of (a) the Premises or any part thereof or any
estate therein; or (b) any other part of the Building; then, in either
event, this Lease shall terminate on the date when title vests pursuant
to such taking. The Fixed Basic Rent, and any Additional Rent, shall be
apportioned as of said termination date and any Fixed Basic Rent or
Additional Rent paid for any period beyond said date, shall be repaid
to Lessee. Lessee shall not be entitled to any part of the award for
such taking or any payment in lieu thereof, but Lessee may file a
separate claim for any taking of fixtures and improvements owned by
Lessee which have not become the Lessor's property, and for relocation
expenses, provided the same shall, in no way, affect or diminish
Lessor's award. In the event of a partial taking which does not effect
a termination of this Lease but does deprive Lessee of the use of a
portion of the Premises, there shall either be an abatement or an
equitable reduction of the Fixed Basic Rent, and an equitable
adjustment reducing the Base Period Costs as hereinafter defined
depending on the period for which and the extent to which the Premises
so taken are not reasonably usable for the purpose for which they are
leased hereunder.
12. INSOLVENCY OF LESSEE:
--------------------
Either (a) the appointment of a receiver to take possession of all or
substantially all of the assets of Lessee, or, (b) a general assignment
by Lessee for the benefit of creditors, or, (c) any action taken or
suffered by Lessee under any insolvency or bankruptcy act, shall
constitute a default of this Lease by Lessee, and Lessor may terminate
this Lease forthwith and upon notice of such termination Lessee's right
to possession of the Premises shall cease, and Lessee shall then quit
and surrender the Premises to Lessor but Lessee shall remain liable as
hereinafter provided in Article 14 hereof, provided, however, that if
any involuntary petition in bankruptcy shall be filed against Lessee
under any federal or state bankruptcy or insolvency act, such shall not
be a default hereunder, if such involuntary petition is dismissed
within sixty (60) days after filing.
13. LESSOR'S REMEDIES ON DEFAULT:
----------------------------
If Lessee defaults in the payment of Fixed Basic Rent, or any
Additional Rent, or defaults in the performance of any of the other
covenants and conditions hereof or permits the Premises to become
deserted, abandoned or vacated, Lessor may give Lessee notice of such
default, and if Lessee does not cure any Fixed Basic Rent or Additional
Rent default within ten (10) days or other default within thirty (30)
days after giving of such notice (or if such other default is of such
nature that it cannot be completely cured within such period, if Lessee
does not commence such curing within such thirty (30) days and
thereafter proceed with reasonable diligence and in good faith to cure
such default), then Lessor may terminate this Lease on not less than
ten (10) days notice to Lessee, and on the date specified in said
notice, Lessee's right to possession of the Premises shall cease but
Lessee shall remain liable as hereinafter provided. If this Lease shall
have been so terminated by Lessor pursuant to Articles 12 or 13 hereof,
Lessor may at any time thereafter resume possession of the Premises by
any lawful means and remove Lessee or other occupants and their
effects. Lessee shall pay to Lessor, on demand, such expenses as Lessor
may incur, including, without limitation, court costs and reasonable
attorney's fees and disbursements, in enforcing the performance of any
obligation of Lessee under this Lease.
14. DEFICIENCY:
----------
In any case where Lessor has recovered possession of the Premises by
reason of Lessee's default, Lessor may, at Lessor's option, occupy the
Premises or cause the Premises to be redecorated, altered, divided,
consolidated with other adjoining premises or otherwise changed or
prepared for reletting, and may relet the Premises or any part thereof,
as agent of Lessee or otherwise, for a term or terms to expire prior
12
to, at the same time as or subsequent to, the original Expiration Date
of this Lease, at Lessor's option and receive the rent therefor. Rent
so received shall be applied first to the payment of such expenses as
Lessor may have incurred in connection with the recovery of possession,
redecorating, altering, dividing, consolidating with other adjoining
premises, or otherwise changing or preparing for reletting, and the
reletting, including brokerage and reasonable attorney's fees, and then
to the payment of damages in amounts equal to the Fixed Basic Rent and
Additional Rent hereunder and to the costs and expenses of performance
of the other covenants of Lessee as herein provided. Lessee agrees, in
any such case, whether or not Lessor has relet, to pay to Lessor
damages equal to the Fixed Basic Rent and Additional Rent from the date
of such default to the date of expiration of the term demised and other
sums herein agreed to be paid by Lessee, less the net proceeds of the
reletting, if any, received by Lessor during the remainder of the
unexpired term hereof, as ascertained from time to time, and the same
shall be payable by Lessee on the several rent days above specified.
Lessee shall not be entitled to any surplus accruing as a result of any
such reletting. In reletting the Premises as aforesaid, Lessor may
grant rent concessions, and Lessee shall not be credited therewith. No
such reletting shall constitute a surrender and acceptance or be deemed
evidence thereof. If Lessor elects, pursuant hereto, actually to occupy
and use the Premises or any part thereof during any part of the balance
of the Term as originally fixed or since extended, there shall be
allowed against Lessee's obligation for rent or damages as herein
defined, during the period of Lessor's occupancy, the reasonable value
of such occupancy, not to exceed, in any event, the Fixed Basic Rent
and Additional Rent herein reserved and such occupancy shall not be
construed as a release of Lessee's liability hereunder.
Alternatively, in any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may at Lessor's option,
and at any time thereafter, and without notice or other action by
Lessor, and without prejudice to any other rights or remedies it might
have hereunder or at law or equity, become entitled to recover from
Lessee, as Damages for such breach, in addition to such other sums
herein agreed to be paid by Lessee, to the date of re-entry, expiration
and/or dispossess, an amount equal to the difference between the Fixed
Basic Rent and Additional Rent reserved in this Lease from the date of
such default to the date of Expiration of the original Term demised and
the then fair and reasonable rental value of the Premises for the same
period. Said Damages shall become due and payable to Lessor immediately
upon such breach of this Lease and without regard to whether this Lease
be terminated or not, and if this Lease be terminated, without regard
to the manner in which it is terminated. In the computation of such
Damages, the difference between an installment of Fixed Basic Rent and
Additional Rent thereafter becoming due and the fair and reasonable
rental value of the Premises for the period for which such installment
was payable shall be discounted to the date of such default at the rate
of not more than eight percent (8%) per annum.
Lessee hereby waives all right of redemption to which Lessee or any
person under Lessee might be entitled by any law now or hereafter in
force.
Lessor's remedies hereunder are in addition to any remedy allowed by
law.
15. SUBORDINATION OF LEASE:
----------------------
This Lease shall, at Lessor's option, or at the option of any holder of
any underlying lease or holder of any mortgages or trust deed, be
subject and subordinate to any such underlying leases and to any such
mortgages or trust deed which may now or hereafter affect the real
property of which the Premises form a part, and also to all renewals,
modifications, consolidations and replacements of said underlying
leases and said mortgages or trust deed provided, that Lessor shall use
commercially reasonable efforts to obtain a non-disturbance agreement
from the holder of any such underlying lease, mortgage or trust deed.
Although no instrument or act on the part of Lessee shall be necessary
to effectuate such subordination, Lessee will, nevertheless, execute
and deliver such further instruments confirming such subordination of
this Lease as may be desired by the holders of said mortgages or trust
deed or by any of the lessor's under such underlying leases. If any
underlying lease to which this Lease is subject terminates, Lessee
shall, on timely request, attorn to the owner of the reversion.
13
16. SECURITY DEPOSIT:
----------------
Lessee shall deposit with Lessor on the signing of this Lease, the
Security Deposit as defined in the Preamble for the full and faithful
performance of Lessee's obligations under this Lease, including without
limitation, the surrender of possession of the Premises to Lessor as
herein provided. If Lessor applies any part of said Security Deposit to
cure any default of Lessee, Lessee shall, on demand, deposit with
Lessor the amount so applied so that Lessor shall have the full
Security Deposit on hand at all times during the Term of this Lease. In
the event a bona fide sale, subject to this Lease, Lessor shall have
the right to transfer the Security Deposit to the vendee, and if duly
and fully transferred, Lessor shall be considered released by Lessee
from all liability for the return of the Security Deposit; and Lessee
agrees to look solely to the new lessor for the return of the Security
Deposit, and it is agreed that this shall apply to every transfer or
assignment made of the Security Deposit to the new lessor. Provided
this Lease is not in default, the Security Deposit (less any portions
thereof used, applied or retained by Lessor in accordance with the
provisions of this Article 16), shall be returned to Lessee after the
expiration or sooner termination of this Lease and after delivery of
the entire Premises to Lessor in accordance with the provisions of this
Lease. Lessee covenants that it will not assign or encumber or attempt
to assign or encumber the Security Deposit and Lessor shall not be
bound by any such assignment, encumbrance or attempt thereof.
In the event of the insolvency of Lessee, and such is not dismissed
within sixty (60) days thereof, or in the event a petition is filed by
or against Lessee under any chapter of the bankruptcy laws of the State
of New Jersey or the United States of America, then in such event,
Lessor may require the Lessee to deposit additional security in an
amount which in Lessor's sole judgement would be sufficient to
adequately assure Lessee's performance of all of its obligations under
this Lease including all payments subsequently accruing. Failure of
Lessee to deposit the security required by this Article 16 within ten
(10) days after Lessor's written demand shall constitute a material
breach of this Lease by Lessee.
17. RIGHT TO CURE LESSEE'S BREACH:
-----------------------------
If Lessee breaches any covenant or condition of this Lease, Lessor may,
on reasonable written notice to Lessee (except that no notice need be
given in case of emergency) and after any applicable grace or cure
period, cure such breach at the expense of Lessee and the reasonable
amount of all expenses, including attorney's fees, incurred by Lessor
in so doing (whether paid by Lessor or not) shall be deemed Additional
Rent payable on demand.
18. MECHANIC'S LIENS:
----------------
Lessee shall, within fifteen (15) days after notice from Lessor,
discharge or satisfy by bonding or otherwise any mechanic liens for
materials or labor furnished to the Premises at the direction of
Lessee.
19. RIGHT TO INSPECT AND REPAIR:
---------------------------
Lessor may enter the Premises but shall not be obligated to do so
(except as required by any specific provision of this Lease) at any
reasonable time on reasonable notice to Lessee (except that no notice
need be given in case of emergency) for the purpose of inspection or
the making of such repairs, replacement or additions in, to, on and
about the Premises or the Building, as Lessor deems necessary or
desirable. Lessee shall have no claims or cause of action against
Lessor by reason thereof. Subject to Article 21 hereof, in no event
shall Lessee have any claim against Lessor for interruption of Lessee's
business, however occurring, including but not limited to that arising
from the negligence of Lessor, its agents, servants or invitees, or
from defects, errors or omissions in the construction or design of the
Premises and/or the Building, including the structural and
non-structural portions thereof.
14
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION:
------------------------------------------------------
Subject to and in compliance with all laws, ordinances, regulations and
executive orders, Lessor agrees to furnish, except on holidays as set
forth on Exhibit E attached hereto and made a part hereof:
a. The cleaning services, as set forth on Exhibit D attached
hereto and made a part hereof, and subject to the conditions
therein stated. Except as set forth on Exhibit D, Lessee shall
pay the cost of all other cleaning services required by
Lessee. Lessor shall not perform such cleaning services prior
to 7:00 p.m. on business days.
b. Heating, ventilating and air conditioning (herein "HVAC") as
appropriate for the season, and as set forth on Exhibit C-1,
attached hereto and made a part hereof, together with Common
Facilities lighting and electric energy all during Building
Hours, as defined in the Preamble.
c. Cold and hot water for drinking and lavatory purposes.
d. Elevator service at all times, but reduced if not during
Building Hours (if the Building contains an elevator or
elevators for the use of the occupants thereof).
e. Restroom supplies and exterior window cleaning when reasonably
required.
f. Notwithstanding the requirements of Exhibit C-1 (as to HVAC)
or D or any other provision of this Lease, Lessor shall not be
liable for failure to furnish any of the aforesaid services
when such failure is due to Force Majeure, as hereinafter
defined. Lessor shall not be liable, under any circumstances,
including, but not limited to, that arising from the
negligence of Lessor, its agents, servants or invitees, or
from defects, errors or omissions in the construction or
design of the Premises and/or the Building, including the
structural and non-structural portions thereof, for loss of or
injury to Lessee or to property, however occurring, through or
in connection with or incidental to the furnishings of, or
failure to furnish, any of the aforesaid services or for any
interruption to Lessee's business, however occurring.
x. Xxxxxx shall provide such Building security as is customary
for comparable buildings in the Roseland, New Jersey area.
Lessor shall provide Lessee with twenty-five (25) security
passes at no charge. Lessee shall be required to compensate
Lessor $25.00 per card to the extent that more than
twenty-five (25) cards are provided in any calendar year.
Lessor shall cooperate with Lessee if Lessee desires to link
Lessee's security system servicing the Premises with the
security system servicing the Building, provided that any such
linkage shall be at Lessee's sole cost and expense.
21. INTERRUPTION OF SERVICES OR USE:
-------------------------------
Interruption or curtailment of any service maintained in the Building
or at the Office Building Area, if caused by Force Majeure, as
hereinafter defined, shall not entitle Lessee to any claim against
Lessor or to any abatement in rent, and shall not constitute a
constructive or partial eviction, unless Lessor fails to take measures
as may be reasonable under the circumstances to restore the service
without undue delay. If the Premises are rendered untenantable in whole
or in part, for a period of ten (10) consecutive business days, by the
making of repairs, replacements or additions, other than those made
with Lessee's consent or caused by misuse or neglect by Lessee, or
Lessee's agents, servants, or business invitees, there shall be a
proportionate abatement of Rent from and after said tenth (10th)
consecutive business day and continuing for the period of such
untenantability. In no event, shall Lessee be entitled to claim a
constructive eviction from the Premises unless Lessee shall first have
notified Lessor in writing of the condition or conditions giving rise
thereto, and if the complaints be justified, unless Lessor shall have
failed, within a reasonable time after receipt of such notice, to
remedy, or commence and proceed with due diligence to remedy such
condition or conditions, all subject to Force Majeure as hereinafter
defined.
15
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:
(a) Electricity shall be supplied to the Premises during the term
in accordance with the provisions of paragraph (c) of this
Article. However, at any time and from time to time during the
term hereof, provided it is then permissible under the
provisions of legal requirements, Lessor shall have the option
to have electricity supplied to the Premises in accordance
with paragraph (d) of this Article.
(b) For the purposes of this Article:
(i) The term "Electric Rate" shall mean the Service
Classification pursuant to which Lessee would purchase
electricity directly from the utility company servicing the
Building, provided, however, at no time shall the amount
payable by Lessee for electricity be less than Lessor's Cost
per Kilowatt and Cost per Kilowatt Hour (as such terms are
hereinafter defined), and provided further that in any event,
the Electric Rate shall include all applicable surcharges, and
demand, energy, fuel adjustment and time of day charges (if
any), taxes and other sums payable in respect thereof.
(ii) The term "Cost per Kilowatt Hour" shall mean the total
cost for electricity incurred by Lessor to service the
Building during a particular time period (including all
applicable surcharges, and energy, fuel adjustment and time of
day charges (if any), taxes and other sums payable in respect
thereof) divided by the total kilowatt hours purchased by
Lessor during such period.
(iii) The term "Cost per Kilowatt" shall mean the total cost
for demand incurred by Lessor to service the Building during a
particular time period (including all applicable surcharges,
demand, and time of day charges (if any), taxes and other sums
payable in respect to thereof) divided by the total kilowatts
purchased by Lessor during such period.
Notwithstanding anything contained herein to the contrary, the
rate charged by Lessor to Lessee for electricity hereunder
shall not exceed the rate charged to Lessor by the utility
company servicing the Building.
(c) (i) Lessor shall supply electricity to service the Premises on
a "check meter" basis, and Lessee shall pay to Lessor, as
Additional Rent, the sum of (y) an amount determined by
applying the Electric Rate or, at Lessor's election, the Cost
per Kilowatt Hour and Cost per Kilowatt, to Lessee's
consumption of and demand for electricity within the Premises
as recorded on the meter(s) servicing the Premises, and (z)
the actual administrative costs incurred by Lessor in
supplying electricity on a "check metered" basis (such
combined sum being hereinafter called "Electric Rent"). Except
as set forth in the foregoing clause (z), Lessor will not
charge Lessee more than the Electric Rate or, at Lessor's
election, the Cost per Kilowatt and Cost per Kilowatt Hour for
the electricity provided pursuant to this paragraph. All costs
incurred by Lessor to install the check meter(s) and any other
equipment necessary to enable Lessee to obtain electricity
from Lessor on a check meter basis shall be paid by Lessee, as
Additional Rent, within thirty (30) days after Lessee's
receipt of Lessor's invoice therefor.
(ii) Where more than one meter measures the electric service
to the Premises, the electric service rendered through each
meter shall be computed and billed separately in accordance
with the provisions hereinabove set forth.
(iii) Lessee shall pay to Lessor, on account of the Electric
Rent payable pursuant to this paragraph (c), the annual sum of
$1.20 per square foot of Rentable Area ("Estimated Electric
Rent"), subject to the adjustments on the first day of each
and every calendar month of the term (except that if the first
day of the term is other than the first day of a calendar
month, the first monthly installment, prorated to the end of
said calendar month, shall be payable on the first day of the
first full calendar month).
(iv) From time to time during the Term, but not more often
than two (2) times per year, the Estimated Electric Rent may
be adjusted by Lessor on the basis of either Lessor's
reasonable estimate of Lessee's electric consumption and
demand (if at any time the meter(s) servicing the Premises are
16
inoperative) or Lessee's actual consumption of and demand for
electricity as recorded on the meter(s) servicing the
Premises, and, in either event, the Electric Rate or Cost per
Kilowatt and Cost per Kilowatt Hour then in effect.
(v) Subsequent to the end of each calendar year during the
Term, or more frequently if Lessor shall elect, Lessor shall
submit to Lessee a statement of the Electric Rent for such
year or shorter period together with the components thereof,
as set forth in clause (i) of this paragraph (c) ("Electric
Statement"). To the extent that the Estimated Electric Rent
paid by Lessee for the period covered by the Electric
Statement shall be less than the Electric Rent as set forth on
such Electric Statement, Lessee shall pay Lessor the
difference within 30 days after receipt of the Electric
Statement. If the Estimated Electric Rent paid by Lessee for
the period covered by the Electric Statement shall be greater
than the Electric Rent as set forth on the Electric Statement,
such difference shall be credited against the next required
payment(s) of Estimated Electric Rent. If no Estimated
Electric Rent payment(s) shall thereafter be due, Lessor shall
pay such difference to Lessee.
(vi) For any period during which the meter(s) servicing the
Premises are inoperative, the Electric Rent shall be
determined by Lessor, based upon its reasonable estimate of
Lessee's actual consumption of and demand for electricity, and
the Electric Rate or Cost per Kilowatt and Cost per Kilowatt
Hour then in effect.
(d) If Lessor discontinues furnishing electricity to the Premises
pursuant to paragraph (c) of this Article, Lessee shall make
its own arrangements to obtain electricity directly from the
utility company furnishing electricity to the Building. The
cost of such service shall be paid by Lessee directly to such
utility company. Lessor shall provide Lessee with at least
sixty (60) days prior notice to Lessee of its election to
discontinue providing electricity and, in any event, shall not
discontinue furnishing electricity to Lessee until Lessee is
able to make arrangements to obtain electricity directly from
the utility company servicing the Building. Lessee shall use
commercially reasonable efforts to make such arrangements
promptly after Lessor's request. Lessor shall permit its
electric feeders, risers and wiring serving the Premises to be
used by Lessee, to the extent available, safe and capable of
being used for such purpose. All meters and all additional
panel boards, feeders, risers, wiring and other conductors and
equipment which may be required to enable Lessee to obtain
electricity of substantially the same quality and character,
shall be installed by Lessor at Lessee's cost and expense.
(e) Bills for electricity supplied pursuant to paragraph (c) of
this Article shall be rendered to Lessee at such times as
Lessor may elect. Lessee's payments for electricity supplied
in accordance with paragraph (c) of this Article shall be due
and payable within 30 days after delivery of a statement
therefor, by Lessor to Lessee. If such bills are not paid
within 30 days after the same are rendered, Lessor may,
without further notice, discontinue the service of electricity
to the Premises without releasing Lessee from any liability
under this lease and without Lessor or Lessor's agents
incurring any liability for any damage or loss sustained by
Lessee as the result of such discontinuance. If any tax is
imposed upon Lessor's receipts from the sale of electricity to
Lessee by legal requirements, Lessee agrees that, unless
prohibited by such legal requirements, Lessee's Percentage of
such taxes shall be included in the bills of, and paid by
Lessee to Lessor, as Additional Rent.
(f) Lessor's failure during the term to prepare and deliver any
statements or bills under this Article, or Lessor's failure to
make a demand under this Article, shall not in any way be
deemed to be a waiver of, or cause Lessor to forfeit or
surrender, its rights to collect any amount of additional rent
which may become due pursuant to this Article. Lessee's
liability for any amounts due under this Article shall survive
the expiration or sooner termination of the Term.
(g) Lessee's failure or refusal, for any reason, to utilize the
electrical energy provided by Lessor, shall not entitle Lessee
to any abatement or diminution of Fixed Basic Rent or
Additional Rent, or otherwise relieve Lessee from any of its
obligations under this Lease.
17
(h) If either the quantity or character of the electrical service
is changed by the utility company supplying electrical service
to the Building or is no longer available or suitable for
Lessee's requirements, or if there shall be a change,
interruption or termination of electrical service due to a
failure or defect on the part of the utility company, no such
change, unavailability, unsuitability, failure or defect shall
constitute an actual or constructive eviction, in whole or in
part, or entitle Lessee to any payment from Lessor for any
loss, damage or expense, or to abatement or diminution of
Fixed Basic Rent or Additional Rent, or otherwise relieve
Lessee from any of its obligations under this Lease, or impose
any obligation upon Lessor or its agents. Lessor will use
reasonable efforts to insure that there is no interruption in
electrical service to Lessee, but in no event shall Lessor be
responsible for any failures of the utility providing such
service or the negligence or other acts of third parties
causing any such interruption.
(i) Lessee shall not make any electrical installations,
alterations, additions or changes to the electrical equipment
or appliances in the Premises (other than ordinary office
equipment) without prior written consent of Lessor in each
such instance. Lessee shall comply with the rules and
regulations applicable to the service, equipment, wiring and
requirements of Lessor and of the utility company supplying
electricity to the Building. Lessee agrees that its use of
electricity in the Premises will not exceed the capacity of
existing feeders to the Building or the risers or wiring
installations therein and Lessee shall not use any electrical
equipment which, in Lessor's judgment, will overload such
installations or interfere with the use thereof by other
lessees in the Building. If, in Lessor's judgment, Lessee's
electrical requirements necessitate installation of an
additional riser, risers or other proper and necessary
equipment or services, including additional ventilating or
air-conditioning, the same shall be provided or installed by
Lessor at Lessee's expense, which shall be chargeable and
collectible as Additional Rent and paid within 30 days after
the rendition to Lessee of a xxxx therefor.
(j) If, after Lessor's initial installation work, (i) Lessee shall
request the installation of additional risers, feeders or
other equipment or service to supply its electrical
requirements and Lessor shall determine that the same are
necessary and will not cause damage or injury to the Building
or the Premises or cause or create a dangerous or hazardous
condition or entail excessive or unreasonable alterations,
repairs or expense or interfere with or disturb other Lessees
or occupants of the Building, or (ii) Lessor shall determine
that the installation of additional risers, feeders or other
equipment or service to supply Lessee's electrical
requirements is necessary, then and in either of such events
Lessor shall cause such installations to be made, at Lessee's
sole cost and expense and Lessee shall pay Lessor for such
installations, as Additional Rent, within 30 days after
submission of a statement therefor.
(k) Lessor, at Lessee's expense, shall furnish and install all
replacement lighting tubes, lamps, ballasts and bulbs required
in the Premises. Lessee, however, shall have the right to
furnish and/or install any or all of the items mentioned in
this Article 22(k).
(l) Lessor shall provide an average of seven (7) xxxxx per
rentable square foot of the Premises of electrical energy for
standard building lighting fixtures provided by Lessor and for
the operation of Lessee's equipment, provided that (A) the
connected electrical load of such equipment does not exceed an
average of seven (7) xxxxx per rentable square foot of the
Premises and (B) except to the extent specified in the plans
Lessor approves for the Lessee's Work, the electricity so
furnished for equipment uses will be at a nominal 120 volts
and no electrical circuit for the supply of such use need have
a current capacity exceeding 20 amperes.
23. ADDITIONAL RENT:
---------------
It is expressly agreed that Lessee will pay in addition to the Fixed
Basic Rent provided in Article 3 hereof, an Additional Rent to cover
Lessee's Percentage as defined in the Preamble, of the increased cost
to Lessor, for each of the categories enumerated herein, over the "Base
Period Costs", as defined in the Preamble for said categories.
18
a. Operating Cost Escalation -- If the Operating Costs incurred
for the Building in which the Premises are located and Office
Building Area for any Lease Year after 2003 or Partial Lease
Year during the Lease Term shall be greater than the Base
Operating Costs (adjusted proportionately for periods less
than a Lease Year), then Lessee shall pay to Lessor, as
Additional Rent, Lessee's Percentage of all such excess
Operating Costs. Operating Costs shall include, by way of
illustration and not of limitation: personal property taxes;
management fees; labor, including all wages and salaries;
social security taxes, and other taxes which may be levied
against Lessor upon such wages and salaries; supplies; repairs
and maintenance; maintenance and service contracts; painting;
wall and window washing; laundry and towel service; tools and
equipment (which are not required to be capitalized for
federal income tax purposes); trash removal; lawn care; snow
removal and all other items properly constituting direct
operating costs according to standard accounting practices
(hereinafter collectively referred to as the "Operating
Costs"), but not including depreciation of Building or
equipment; interest; income or excess profits taxes; costs of
maintaining the Lessor's corporate existence; franchise taxes;
any expenditures required to be capitalized for federal income
tax purposes, unless said expenditures are for the purpose of
reducing Operating Costs within the Building and Office
Building Area, or those which under generally applied real
estate practice are expensed or regarded as deferred expenses
or are required under any governmental or quasi-governmental
law, statute, ordinance, rule, order, requirements or
regulation, in which event the costs thereof shall be
included. Notwithstanding anything contained herein to the
contrary, any additional costs incurred by Lessor during the
2003 Calendar Year by reason of Lessor or any of its vendors
entering into new labor contracts or renewals or modifications
of existing labor contracts shall not be included in Base
Operating Costs. The Base Operating Costs shall as be as
defined in the Preamble.
The following, however, will not be included in Operating
Expenses:
1. Costs of alterations of any lessee's premises;
2. Principal or interest payments on loans secured by
mortgages or trust deeds on the Office Building Area
or portions thereof;
3. Expenses incurred in leasing or procuring new lessees
or extending, modifying or amending any leases or the
space covered by any lease (including without
limitation lease commissions, legal, advertising and
renovating space);
4. The cost of electricity to any space leased or
available for lease (it being understood that
electricity for the Premises, other than HVAC, shall
be separately paid by Lessee pursuant to Article 22
hereof and that Lessee shall not pay for increased
electricity costs except for the Building's common
areas, HVAC, base building systems and elevators) or
for which Lessor receives reimbursement from Lessee
or other lessees (other than reimbursements by way of
their proportionate share of Utility and Energy
Costs);
5. Except as provided below, depreciation or
amortization of the Building or improvements in the
Building or expenditures which standard real estate
practices treat as capital in nature;
6. Expenses for repairs or other work occasioned by
fire, windstorm or other casualty, whether or not
insured, provided, however, a commercially reasonable
deductible shall be included as part of Operating
Costs if such amount is actually paid by Lessor as
part of an insured casualty;
7. Legal expenses in enforcing the terms of or analyzing
any lease or in connection with any actual or
proposed sale or financing of the Building;
8. Fees and expenses paid to Lessor or an affiliate of
Lessor for services to the extent such fees and
expenses are above a reasonably competitive rate;
9. Costs of environmental investigation or remediation
with respect to existing or future conditions in the
Building, including without limitation asbestos
(reserving to Lessor, however, its rights against
Lessee for any violation of Lessee's environmental
obligations under this Lease); provided Lessor shall
have the right to periodically test the air and water
quality in the Building and to perform routine
operation and maintenance pursuant to an existing
operation and maintenance plan and to treat the costs
thereof as an Operating Cost and provided further
that any expenses incurred by Lessor to comply with
any future environmental law may be included in
Operating Costs;
19
10. The cost of material specialized services provided to
a lessee or lessees in the Building which are not
provided to Lessee;
11. Uninsured judgments, the cost of the defense of
claims, settlements, payments or liabilities to third
parties, or other costs or expenses, to the extent
attributable to or the fault or negligence of Lessor
or any other lessee of the Building or their agents
or employees or to a failure of Lessor or any other
such lessee to comply with the terms of any agreement
or lease to which it is a party;
12. The cost of adding capacity to the Building's
electric, HVAC or other systems or components or
making any repairs, changes, enhancements or upgrades
to the Building systems which are necessary to enable
Lessor to meet the standards set forth on Exhibit
"C-1 " of this Lease;
13. Late fees, penalties or interest on xxxxxxxx payable
by Lessor or attributable to a failure by Lessor or
any other lessee to comply with legal requirements,
or costs to remedy a condition or circumstance which
is in violation of, or contrary to, a specific
warranty or representation of Lessor in this Lease;
14. Costs which could reasonably have been avoided, by
the enforcement of an applicable vendor's,
installer's, or manufacturer's warranty which is in
effect;
15. Costs of operating, maintaining or repairing any
specialty facility provided to a lessee or lessees in
the Building which are not provided to and used by
Lessee; or
16. Costs of acquiring, leasing, insuring, restoring,
removing or replacing sculptures, paintings, and
other objects of art located within or outside the
Building, except for the cost of routine maintenance
and security of such objects in the public areas in
the Building.
The following items shall be credited against Operating Costs
and/or Utility and Energy Costs in the calculation thereof:
all cost recoveries by Lessor from lessees in the Building for
special services where such costs were included as Operating
Costs and/or Utility and Energy Costs (as contrasted to
recoveries of a Lessee's percentage of increases in Operating
Costs and/or Utility and Energy Costs).
Without limiting any other provision of this Lease, Lessor
agrees to keep, preserve and maintain the Building and the
Common Facilities, and the use thereof, at all times in a
manner and condition comparable to other reasonably high
quality office buildings located within the Essex County, New
Jersey area, and Lessor shall use commercially reasonable
efforts to operate, manage and maintain the Building and
Common Facilities in an efficient and prudent manner with a
view toward keeping increases in Operating Costs and/or
Utility and Energy Costs at reasonable and competitive levels.
If requested by Lessee, Lessor shall deliver a statement which
shall (1) be certified to be accurate and complete to the
knowledge of Lessor or Lessor's managing agent responsible for
the preparation of such statement (provided that such
certification shall not prevent Lessor from correcting errors
thereon as allowed by this Lease) and (2) set forth with
reasonable detail the assumptions and methodology utilized for
making the occupancy adjustment set forth in this Article 23
above for each item of expense which is so adjusted.
If any repair, replacement or improvement within the
definition of Operating Costs is capitalized under generally
accepted accounting principles, then (A) the cost of any such
repair, replacement or improvement shall only be included in
Operating Costs if such repair, replacement or improvement (i)
is necessary to comply with any governmental or
quasi-governmental law, statute, ordinance, rule, order,
requirements or regulation, which is enacted or promulgated
after the date hereof, (ii) is reasonably intended to reduce
Operating Costs or (iii) constitutes a replacement which in
20
Lessor's reasonable judgment is economically prudent to make
in lieu of repairs, (B) the cost thereof shall be amortized on
a straight line basis over the useful life of such repair, the
amount so amortized attributable to such repair, replacement
or improvement and (C) there shall be included in Operating
Costs in each Lease Year for such portion of the amortization
period which occurs during the Term, provided, however, that
all amounts thereof included in Operating Costs in any Lease
Year subsequent to the year paid shall have added thereto
interest from the date Lessor incurred such cost. For
amortization purposes, applicable interest shall be two (2)
percentage point sin excess of the prime rate charged by Chase
Manhattan Bank, or its successor, at the time of expenditure.
b. Fuel, Utilities and Electric Cost Escalation (hereinafter
referred to as "Utility and Energy Costs") - If the Utility
and Energy Costs which include any fuel surcharges or
adjustments with respect thereto, incurred for water, sewer,
gas, electric, other utilities and heating, ventilating and
air conditioning for the Building, to include all leased and
leasable areas (not separately billed or metered within the
Building), and Common Facilities electric, lighting, water,
sewer and other utilities for the Building and Office Building
Area, for any Lease Year or Partial Lease Year, during the
Term, shall be greater than the Utility and Energy Costs
Expense Stop (adjusted proportionately for periods less than a
Lease Year), then Lessee shall pay to Lessor as Additional
Rent, Lessee's Percentage of all such excess Utility and
Energy Costs. As used in this Article 23, the Utility and
Energy Costs Expense Stop shall be as defined in the Preamble.
c. Tax Escalation -- If the Real Estate Taxes for the Building
and Office Building Area at which the Premises are located for
any Lease Year or Partial Lease Year, during the Lease Term,
shall be greater than the Base Real Estate Taxes (adjusted
proportionately for periods less than a Lease Year), then
Lessee shall pay to Lessor as Additional Rent, Lessee's
Percentage as hereinafter defined, of all such excess Real
Estate Taxes.
As used in this Article 23(c), the words and terms which
follow mean and include the following:
i. "Base Real Estate Taxes" shall be as defined in the
Preamble.
ii. "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building and Office
Building Area, or upon the rent, as such, payable to
the Lessor, including, but not limited to, real
estate, city, county, village, school and transit
taxes, or taxes, assessments, or charges levied,
imposed or assessed against the Building and Office
Building Area by any other taxing authority, whether
general or specific, ordinary or extraordinary,
foreseen or unforeseen but excluding taxes for
income, profit or personal property ownership. If due
to a future change in the method of taxation, any
franchise, income or profit tax shall be levied
against Lessor in substitution for, or in lieu of, or
in addition to, any tax which would otherwise
constitute a Real Estate Tax, such franchise, income
or profit tax shall be deemed to be a Real Estate Tax
for the purposes hereof; conversely, any additional
real estate tax hereafter imposed in substitution
for, or in lieu of, any franchise, income or profit
tax (which is not in substitution for, or in lieu of,
or in addition to, a Real Estate Tax as hereinbefore
provided) shall not be deemed a Real Estate Tax for
the purposes hereof.
d. Insurance Cost Escalation - If the Insurance Costs for the
Building and Office Building Area for any Lease Year or
partial Lease Year during the Term after 2003 shall be
greater than the Insurance Cost Expense Stop (adjusted
proportionately for periods less than a Lease Year), Lessee
shall pay to Lessor as Additional Rent for each Lease Year or
partial Lease Year commencing from and after the Commencement
Date, Lessee's Percentage of such excess Insurance Costs.
As used in this Article 23(d), the words and terms which
follow mean and include the following:
i. "Insurance Cost Expense Stop" shall be as defined in
the Preamble.
21
ii. "Insurance Costs" shall mean all fire and other
insurance costs reasonably incurred by Lessor in
connection with its operation and maintenance of the
Building and Office Building Area, for any Lease Year
or Partial Lease Year, during the Term.
e. Lease Year -- As used in this Article 23, Lease Year shall
mean a calendar year. Any portion of the Term which is less
than a Lease Year as hereinbefore defined, that is, from the
Commencement Date through the following December 31, and from
the last January 1, falling within the Term to the end of the
Term, shall be deemed a "Partial Lease Year". Any reference in
this Lease to a Lease Year shall, unless the context clearly
indicates otherwise, be deemed to be a reference to a Partial
Lease Year if the period in question involves a Partial Lease
Year.
f. Payment -- At any time, and from time to time, after the
establishment of the Base Period Costs for each of the
categories referred to above, Lessor shall advise Lessee in
writing of Lessee's Percentage share with respect to each of
the categories as estimated for the next twelve (12) month
period (or proportionate part thereof if the last period prior
to the Lease's expiration is less than twelve (12) months) as
then known to the Lessor, and thereafter, the Lessee shall pay
as Additional Rent, Lessee's Percentage share of these costs
for the then current period affected by such advice (as the
same may be periodically revised by Lessor as additional costs
are incurred) in equal monthly installments, such new rates
being applied to any months, for which the Fixed Basic Rent
shall have already been paid which are affected by the
Operating Cost Escalation and/or Utility and Energy Cost
Escalation and/or Tax Escalation Costs and/or Insurance Costs
above referred to, as well as the unexpired months of the
current period, the adjustment for the then expired months to
be made at the payment of the next succeeding monthly rental,
all subject to final adjustment at the expiration of each
Lease Year as defined in Article 23(e) hereof (or Partial
Lease Year if the last period prior to the Lease's termination
is less than twelve (12) months).
In the event the last period prior to the Lease's termination
is less than twelve (12) months, the Base Period Costs during
said period shall be proportionately reduced to correspond to
the duration of said final period.
g. Books and Reports -- For the protection of Lessee, Lessor
shall maintain books of account which shall be open to Lessee
and its representatives at all reasonable times so that Lessee
can determine that such Operating, Utility and Energy and Real
Estate Tax Costs have, in fact, been paid or incurred.
Lessee's representatives shall mean only (i) Lessee's
employees or (ii) a Certified Public Accounting firm, and
neither Lessee's employees nor any Certified Public Accounting
firm shall be permitted to perform such an inspection and/or
audit for any other tenant in the Building. Lessee or its
representatives shall be entitled to make and retain copies of
any materials reviewed in connection with the exercise of such
right. If Lessee or its representatives determine that Lessor
has overstated Lessee's Percentage of Operating Costs and/or
Utility and Energy Costs, or Real Estate Taxes for the
applicable Lease Year by more than seven percent (7%), Lessor
shall pay all of Lessee's actual and reasonable expenses
related to such inspection after Lessee delivers to Lessor
reasonable documentation evidencing such expenses. At Lessor's
request, Lessee shall execute a confidentiality agreement
reasonably acceptable to Lessor prior to any examination of
Lessor's books and records. In the event Lessee disputes any
one or more of said charges, Lessee shall attempt to resolve
such dispute with Lessor, provided that if such dispute shall
not be satisfactorily settled between Lessor and Lessee, the
dispute shall be referred by either party to an independent
certified public accountant to be mutually agreed upon, and if
such an accountant cannot be agreed upon, The American
Arbitration Association may be asked by either party to select
an arbitrator, whose decision on the dispute will be final and
binding upon both parties, who shall jointly share any cost of
such arbitration. Pending resolution of said dispute the
Lessee shall pay to Lessor the sum so billed by Lessor subject
to its ultimate resolution as aforesaid.
22
h. Right of Review -- Once Lessor shall have finally determined
said Operating, Utility and Energy or Real Estate Tax Costs at
the expiration of a Lease Year, then as to the item so
established, Lessee shall only be entitled to dispute said
charge as finally established for a period of twelve (12)
months after Lessee receives Lessor's statement for such
charge, and Lessee specifically waives any right to dispute
any such charge at the expiration of said twelve (12 month
period.
i. Occupancy Adjustment -- If, with respect to Operating Cost
Escalation, as established in Article 23(a) hereof, and
Utility and Energy Cost Escalation, as established in Article
23(b) hereof, and Insurance Cost Escalation, as established in
Article 23(d) hereof, the Building is less than ninety-five
percent (95%) occupied during the establishment of the
respective Base Periods, then the Base Period Costs incurred
with respect to said Operating Cost or Utility and Energy Cost
or Insurance Cost shall be adjusted during any such period
within the Base Period so as to reflect ninety-five percent
(95%) occupancy. Similarly, if during any Lease Year or
Partial Lease Year, subsequent to the Base Period the Building
is less than ninety-five percent (95%) occupied, then the
actual costs incurred for Operating Cost and Utility and
Energy Cost and Insurance Cost shall be increased during any
such period to reflect ninety-five percent (95%) occupancy so
that at all times after the Base Period the Operating Cost or
Utility and Energy Cost or Insurance Cost shall be actual
costs, but in the event less than ninety-five percent (95%) of
the Building is occupied during all or part of the Lease Year
involved, the Operating Cost or Utility and Energy Cost or
Insurance Cost shall not be less than that which would have
been incurred had ninety-five percent (95%) of the Building
been occupied. The aforesaid adjustment shall only be made
with respect to those items that are in fact affected by
variations in occupancy levels.
24. LESSEE'S ESTOPPEL:
-----------------
Lessee shall, from time to time, on not less that ten business (10)
days prior written request by Lessor, execute, acknowledge and deliver
to Lessor a written statement certifying that the Lease is unmodified
and in full force and effect, or that the Lease is in full force and
effect as modified and listing the instruments of modification; the
dates to which the rents and charges have been paid; and, to the best
of Lessee's knowledge, whether or not Lessor is in default hereunder,
and if so, specifying the nature of the default. It is intended that
any such statement delivered pursuant to this Article 24 may be relied
on by a prospective purchaser of Lessor's interest or mortgagee of
Lessor's interest or assignee of any mortgage of Lessor's interest.
Lessee shall also execute and deliver the form "Lessee Estoppel
Certificate" attached hereto as Exhibit F.
25. HOLDOVER TENANCY:
----------------
If Lessee holds possession of the Premises after the Expiration Date of
this Lease, Lessee shall (i) become a tenant from month to month under
the provisions herein provided, but at one hundred fifty percent (150%)
of the Monthly Fixed Basic Rent for the last month of the term, plus
the Additional Rent, for the first two (2) months of Lessee's holding
over and two hundred percent (200%) of the monthly Fixed Basic Rent for
the last month of the Term, plus the Additional Rent, thereafter, which
shall continue as provided in the Lease which sum shall be payable in
advance on the first day of each month, and without the requirement for
demand or notice by Lessor to Lessee demanding delivery of possession
of said Premises, and such tenancy shall continue until terminated by
Lessor, or until Lessee shall have given to Lessor, at least sixty (60)
days prior to the intended date of termination, a written notice of
intent to terminate such tenancy, which termination date must be as of
the end of a calendar month; and (ii) indemnify Lessor against loss or
liability resulting from the delay by Lessee in so surrendering the
Premises including, without limitation, any claims made by any
succeeding occupant founded on such delay so long as Lessor provides
prompt written notice to Lessee that it has signed a letter of intent
or is near signing a lease with a prospective lessee and advises Lessee
of what date it must vacate the Premises in order for Lessor to deliver
the Premises to the new lessee. Lessee's obligations under this Section
shall survive the expiration or sooner termination of the Lease. The
time limitations described in this Article 25 shall not be subject to
extension for Force Majeure.
23
26. RIGHT TO SHOW PREMISES:
----------------------
Lessor may show the Premises to prospective purchasers and mortgagees;
and during the twelve (12) months prior to termination of this Lease,
to prospective tenants, during Building Hours on reasonable advance
notice to Lessee. When showing the Premises to prospective purchasers,
mortgagees or tenants, Lessor shall use commercially reasonable efforts
to minimize interference with Lessee's use and occupancy of the
Premises
27. LESSOR'S WORK - LESSEE'S DRAWINGS:
---------------------------------
a. Lessor agrees that, prior to the commencement of the Term of
this Lease, it will do substantially all of the work in the
Premises in accordance with Exhibit C attached hereto and made
a part hereof.
b. Lessee will timely supply such drawings and information to
Lessor as set forth in Exhibit C. Any delay occasioned by
Lessee's failure to timely supply such drawings and
information shall not delay the Commencement Date of the Term
and Lessee's obligations hereunder, and the same shall
commence on the date the Premises would have been delivered to
Lessee pursuant to Article 2, but for Lessee's delay.
c. Lease commencement shall occur and the Commencement Date is
defined as that date when Lessor has done substantially all of
the work to be done by Lessor in accordance with Exhibit C,
unless Lessor has been precluded from completing said work as
a result of Lessee's acts or omissions including, but not
limited to, its failure to comply with Article 27(b) hereof.
Occupancy by Lessee or the delivery of a Certificate of
Occupancy by Lessor (if required pursuant to local law) shall
be prima facie evidence that Lessor has done substantially all
of the work.
28. WAIVER OF TRIAL BY JURY:
-----------------------
To the extent such waiver is permitted by law, the parties waive trial
by jury in any action or proceeding brought in connection with this
Lease or the Premises.
29. LATE CHARGE:
-----------
If any payment of Fixed Basic Rent, Additional Rent or any other
regularly scheduled sum, or any part of any such payment, to be made by
Lessee under the terms of this Lease shall become overdue for a period
in excess of five (5) business days, Lessee shall pay to Lessor, a
"late charge" in an amount which is the lesser of $1,500.00 or 4% of
the amount so overdue, for the purpose of defraying Lessor's
administrative expense incident to handling such overdue or delinquent
payment. In addition, if any payment of rent or any other sum, or any
part of any such payment, to be made by Lessee under the terms of this
Lease shall become overdue for a period in excess of five (5) business
days, Lessee shall pay to Lessor interest on the overdue amount at the
Lease Interest Rate (defined below) from the date when such payment was
due until the date paid, but in no event more than the amount or rate
which is the maximum amount or rate Lessor may lawfully charge in
respect of Lessee in such circumstances under applicable law. The
"Lease Interest Rate" shall mean the greater of 10% per annum or such
variable per annum rate which is from time to time equal to 4% above
the base rate as stated by Citibank, N.A. or its successor, or, in the
absence of there being a successor to Citibank, N.A. by such other bank
having an office in the City of New York as Lessor may from time to
time select.
24
30. LESSEE'S INSURANCE:
------------------
a. Lessee covenants to provide at Lessee's cost and expense on or
before the earlier of (i) the Commencement Date, or (ii)
Lessee's taking actual possession for the purpose of
completing any improvement work, and to keep in full force and
effect during the entire Term and so long thereafter as
Lessee, or anyone claiming by, through or under Lessee, shall
occupy the Premises, insurance coverage as follows:
i. Commercial General Liability insurance with
contractual liability endorsements with respect to
the Premises and the business of Lessee in which
Lessee shall be adequately covered under limits of
liability of not less than FIVE MILLION AND 00/100
DOLLARS ($5,000,000.00) combined single limit per
occurrence for bodily or personal injury (including
death) and property damage. Such insurance may be
carried (x) under a blanket policy covering the
Premises and other locations of Lessee, if any,
provided that each such policy shall in all respects
comply with this Article and shall specify that the
portion of the total coverage of such policy that is
allocated to the Premises is in the amounts required
pursuant to this Article 30 and (y) under a primary
liability policy of not less than ONE MILLION AND
00/100 DOLLARS ($1,000,000.00) and the balance under
an umbrella policy. Notwithstanding anything to the
contrary contained in this Lease, the carrying of
insurance by Lessee in compliance with this Article
30 shall not modify, reduce, limit or impair Lessee's
obligations and liability under Article 33 hereof.
ii. Fire and Extended Coverage, Vandalism, Malicious
Mischief, Sprinkler Leakage and Special Extended
Coverage Insurance in an amount adequate to cover the
cost of replacement of all personal property,
decoration, trade fixtures, furnishings, equipment in
the Premises and all contents therein. Lessor shall
not be liable for any damage to such property of
Lessee by fire or other peril includable in the
coverage afforded by the standard form of fire
insurance policy with extended coverage endorsement
attached (whether or not such coverage is in effect),
no matter how caused, it being understood that the
Lessee will look solely to its insurer for
reimbursement.
iii. Worker's Compensation Insurance in the minimum
statutory amount covering all persons employed by
Lessee.
iv. Said limits shall be subject to periodic review and
Lessor reserves the right to increase said coverage
limits if, in the reasonable opinion of Lessor, said
coverage becomes inadequate and is less than that
commonly maintained by tenants in similar buildings
in the area by tenants making similar uses. On or
before the Commencement Date, and thereafter at
Lessor's request, Lessee shall provide Lessor
evidence of the insurance coverage required herein in
the form of a duplicate original insurance policy, an
insurance binder (countersigned by the insurer), or
Evidence of Insurance (in form XXXXX 27 with respect
to property insurance and XXXXX 25-S with respect to
liability insurance) for each of the insurance
policies Lessee is required to carry in compliance
with its obligations under this Lease.
b. All of the aforesaid insurance shall (i) name Lessor as an
additional insured on a primary basis as to the Premises; (ii)
be written by one or more responsible insurance companies
licensed in the State of New Jersey satisfactory to Lessor and
in form satisfactory to Lessor; (iii) contain endorsements
providing thirty (30) days prior written notice of any
material change in or cancellation of this policy."; (iv)
shall be written on an "occurrence" basis and not on a "claims
made" basis.
c. Lessee shall be solely responsible for payment of premium and
Lessor (or its designee) shall not be required to pay any
premium for such insurance. Lessee shall deliver to Lessor at
least fifteen (15) days prior to the expiration of such
policy, either a duplicate original or a certificate it being
the intention of the parties hereto that the insurance
required under the terms hereof shall be continuous during the
entire Term of this Lease and any other period of time during
which pursuant to the Term hereof, said insurance is required.
Any insurance carried by Lessee shall be in excess of and will
not contribute with the insurance carried by Lessor for
injuries or damage arising out of the Premises.
25
d. Lessee agrees that if Lessee, its employees, agents,
contractors or licensees, or a result of or in connection, the
fire insurance rate(s) applicable to the Premises shall be
higher than that which would be applicable for a business
office legally permitted therein due solely to the activities
of Lessee, Lessee agrees that it will pay to Lessor as
Additional Rent, such portion of the premiums for all Lessor's
fire insurance policies in force with respect to the building
and the contents of any occupant thereof as shall be
attributable to such higher rate(s).
x. Xxxxxx makes no representation that the limits of liability
specified to be carried by Lessee or Lessor under the terms of
this Lease are adequate to protect Lessee against Lessee's
undertaking under this Article 30, and in the event Lessee
believes that any such insurance coverage called for under
this Lease is insufficient, Lessee shall provide, at is own
expense, such additional insurance as Lessee deems adequate.
f. In the event the Premises or its contents are damaged or
destroyed by fire or other insured casualty, (i) Lessor, to
the extent of the coverage of Lessor's policies of fire
insurance, hereby waives its rights, if any, against Lessee
with respect to such damage or destruction, even if said fire
or other casualty shall have been caused, in whole or in part,
by the negligence of Lessee, and (ii) Lessee, to the extent of
the coverage of Lessee's policies of fire insurance with
extended coverage, hereby waives its rights, if any, against
Lessor with respect to such damage, or destruction, even if
said fire or other casualty shall have been caused, in whole
or in part, by the negligence of Lessor; provided, however,
such waivers of subrogation shall only be effective with
respect to loss or damage occurring during such time as
Lessor's or Lessee's policies of fire insurance (as the case
may be) shall contain a clause or endorsement providing in
substance that the aforesaid waiver of subrogation shall not
prejudice the type and amount of coverage under such policies
or the right of Lessor or Lessee (as the case may be) to
recover thereunder. If, at any time, Lessor's or Lessee's
insurance carrier refuses to write insurance which contains a
consent to the foregoing waiver of subrogation, Lessor or
Lessee, as the case may be, shall notify the party thereof in
writing, and upon the giving of such notice, the provisions of
this Section shall be null and void as to any casualty which
occurs after such notice. If Lessor's or Lessee's insurance
carrier shall make a charge for the incorporation of the
aforesaid waiver of subrogation in its policies, then the
party requesting the waiver shall promptly pay such charge to
the other party upon demand. In the event the party requesting
their waiver fails to pay such charge upon demand, the other
party shall be released of its obligation to supply such
waiver.
g. Should Lessee fail to maintain the insurance coverage as set
forth in this Article 30, then Lessee shall be in default
hereunder and shall be deemed to have breached its covenants
as set forth herein.
x. XXXXXX'X INSURANCE: During the Term, Lessor shall maintain the
following insurance, insuring Lessor and any mortgagee, as
their respective interests may appear: (x) insurance against
damage to the Building and Office Building Area by all risks
of direct physical loss in an amount equivalent to the full
replacement cost thereof; (y) comprehensive general liability
insurance against claims for bodily injury and property damage
occurring in or about the Common Facilities in amounts
customarily carried by owners of similar buildings in the
Essex County, New Jersey area; and (z) insurance against such
other hazards as, from time to time, are then commonly insured
against for buildings similarly situated in amounts normally
carried with respect thereto. All insurance maintained
pursuant to this subparagraph h. may be effected by blanket
insurance policies.
26
31. NO OTHER REPRESENTATIONS:
------------------------
No representations or promises shall be binding on the parties hereto
except those representations and promises contained herein or in some
future writing signed by the party making such representation(s) or
promise(s).
32. QUIET ENJOYMENT:
---------------
Lessor covenants that if, and so long as, Lessee is not in default
hereunder beyond applicable notice and cure periods, and performs
Lessee's covenants hereof, Lessor shall do nothing to affect Lessee's
right to peaceably and quietly have, hold and enjoy the Premises for
the Term herein mentioned, subject to the provisions of this Lease.
33. INDEMNITY:
---------
Lessee shall defend, indemnify and save harmless Lessor and its agents
against and from; (a) any and all claims (i) arising from (x) the
conduct or management by Lessee, its subtenants, licensees, its or
their employees, agents, contractors or invitees on the Premises or of
any business therein, or (y) any work or thing whatsoever done, or any
condition created (other than by Lessor for Lessor's or Lessee's
account) in or about the Premises during the Term of this Lease, or
during the period of time, if any, prior to the Commencement Date that
Lessee may have been given access to the Premises, (z) any default by
Lessee under the terms, covenants and conditions of this Lease or (ii)
arising from any negligent or otherwise wrongful act or omission of
Lessee or any of its subtenants or licensees or its or their employees,
agents, contractors or invitees, and (b) all costs, expenses and
liabilities including attorneys fees and disbursements incurred in or
in connection with each such claim, action or proceeding brought
thereon. In case any action or proceeding be brought against Lessor by
reason of any such claim, Lessee, upon notice from Lessor, shall resist
and defend such action or proceeding.
Lessor agrees to indemnify, defend and hold Lessee harmless from and
against any suits, proceedings, damages, obligations, liabilities,
counsel fees, costs, losses, expenses, orders and judgments imposed
upon, incurred by or asserted against Lessee by reason of any latent
defect in the Building, and any costs or expenses incurred by Lessee
hereunder to recover any security deposit not promptly returned to it
at the end of the Lease or in connection with the wrongful application
of any security deposit.
34. ARTICLE HEADINGS:
----------------
The article headings in this Lease and position of its provisions are
intended for convenience only and shall not be taken into consideration
in any construction or interpretation of this Lease or any of its
provisions.
35. APPLICABILITY TO HEIRS AND ASSIGNS:
----------------------------------
The provisions of this Lease shall apply to, bind and inure to the
benefit of Lessor and Lessee, and their respective heirs, successors,
legal representatives and assigns. It is understood that the term
"Lessor" as used in this Lease means only the owner, a mortgagee in
possession or a term lessee of the Building, so that in the event of
any sale of the Building or of any lease thereof, or if a mortgagee
shall take possession of the Premises, the Lessor herein shall be and
hereby is entirely freed and relieved of all covenants and obligations
of Lessor hereunder accruing thereafter, and it shall be deemed without
further agreement that the purchaser, the term lessee of the Building,
or the mortgagee in possession has assumed and agreed to carry out any
and all covenants and obligations of Lessor hereunder.
36. OUTSIDE PARKING SPACES:
----------------------
Lessee's occupancy of the Premises shall include the use of the number
of outside parking spaces as set forth in the Preamble, all of which
27
will be unassigned. Lessor shall not be responsible for any damage or
theft of any vehicle in the parking area and shall not be required to
keep parking spaces clear of unauthorized vehicles or to otherwise
supervise the use of the parking area. Lessee shall, upon request,
promptly furnish to Lessor the license numbers of the cars operated by
Lessee and its subtenants, licensees, invitees, concessionaires,
officers and employees. If any vehicle of the Lessee, or of any
subtenant, licensee, concessionaire, or of their respective officers,
agents or employees, is parked in any part of the Common Facilities
other than the employee parking area(s) designated therefor by Lessor,
Lessee shall pay to Lessor such penalty as may be fixed by Lessor from
time to time. All amounts due under the provisions of this Article 36
shall be deemed to be Additional Rent.
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY:
---------------------------------------
Lessor shall not be liable for any loss of property from any cause
whatsoever, including but not limited to theft or burglary from the
Premises, and any such loss arising from the negligence of Lessor, its
agents, servants or invitees, or from defects, errors or omissions in
the construction or design of the Premises and/or the Building,
including the structural and non-structural portions thereof, and
Lessee covenants and agrees to make no claim for any such loss at any
time.
38. PARTIAL INVALIDITY:
------------------
If any of the provisions of this Lease, or the application thereof to
any person or circumstances, shall to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
provision or provisions to persons or circumstances other than those as
to whom or which it is held invalid or unenforceable, shall not be
affected thereby, and every provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
28
39. LESSEE'S BROKER:
---------------
Lessee represents and warrants to Lessor that its broker, as defined in
the Preamble is the sole broker with whom Lessee has negotiated in
bringing about this Lease and Lessee agrees to indemnify and hold
Lessor and its mortgagee(s) harmless from any and all claims of other
brokers and expenses in connection therewith arising out of or in
connection with the negotiation of or the entering into this Lease by
Lessor and Lessee. In no event shall Lessor's mortgagee(s) have any
obligation to any broker involved in this transaction. In the event
that no broker was involved as aforesaid, then Lessee represents and
warrants to the Lessor that no broker brought about this transaction,
and Lessee agrees to indemnify and hold Lessor harmless from any and
all claims of any broker arising out of or in connection with the
negotiations of, or entering into of, this Lease by Lessee and Lessor.
40. PERSONAL LIABILITY:
------------------
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed, such agreement being a primary
consideration for the execution of this Lease by Lessor, that there
shall be absolutely no personal liability on the part of Lessor, its
constituent members (to include but not be limited to, officers,
directors, partners and trustees) their respective successors, assigns
or any mortgagee in possession (for the purposes of this Article,
collectively referred to as "Lessor"), with respect to any of the
terms, covenants and conditions of this Lease, and that Lessee shall
look solely to the equity of Lessor in the Building for the
satisfaction of each and every remedy of Lessee in the event of any
breach by Lessor of any of the terms, covenants and conditions of this
Lease to be performed by Lessor, such exculpation of liability to be
absolute and without any exceptions whatsoever.
41. NO OPTION:
---------
The submission of this Lease Agreement for examination does not
constitute a reservation of, or option for, the Premises, and this
Lease Agreement becomes effective as a Lease Agreement only upon
execution and delivery thereof by Lessor and Lessee.
42. DEFINITIONS:
-----------
a. Affiliate -- Affiliate shall mean any corporation related to
Lessee as a parent, subsidiary or brother-sister corporation
so that such corporation and such party and other corporations
constitute a controlled group as determined under Section 1563
of the Internal Revenue Code of 1986, as amended and as
elaborated by the Treasury Regulations promulgated thereunder
or any business entity in which Lessee has more than a fifty
percent (50%) interest.
b. Common Facilities -- Common Facilities shall mean the
non-assigned parking areas; lobby; elevator(s); fire stairs;
public hallways; public lavatories; all other general Building
facilities that service all Building tenants; air conditioning
rooms; fan rooms; janitors' closets; electrical closets;
telephone closets; elevator shafts and machine rooms; flues;
stacks; pipe shafts and vertical ducts with their enclosing
walls. Lessor may at any time close temporarily any Common
Facilities to make repairs or changes therein or to effect
construction, repairs or changes within the Building, or to
discourage non-tenant parking, and may do such other acts in
and to the Common Facilities as in its judgement may be
desirable to improve the convenience thereof, but shall always
in connection therewith, endeavor to minimize any
inconvenience to Lessee.
c. Force Majeure -- Force Majeure shall mean and include those
situations beyond Lessor's reasonable control, including by
way of example and not by way of limitation, acts of God;
accidents; repairs; strikes; shortages of labor, supplies or
29
materials; inclement weather; or, where applicable, the
passage of time while waiting for an adjustment or insurance
proceeds. Any time limits required to be met by either party
hereunder, whether specifically made subject to Force Majeure
or not, except those related to the payment of Fixed Basic
Rent or Additional Rent, shall, unless specifically stated to
the contrary elsewhere in this Lease, be automatically
extended by the number of days by which any performance called
for is delayed due to Force Majeure.
d. Lessee's Percentage -- The parties agree that Lessee's
Percentage, as defined in the Preamble, reflects and will be
continually adjusted to reflect the ratio of the gross square
feet of the area rented to Lessee (including an allocable
share of all Common Facilities) [the numerator] as compared
with the total number of gross square feet of the entire
Building (or additional buildings that may be constructed
within the Office Building Area) [the denominator] measured
outside wall to outside wall, but excluding therefrom any
storage areas. Lessor shall have the right to make changes or
revisions in the Common Facilities of the Building so as to
provide additional leasing area. Lessor shall also have the
right to construct additional buildings in the Office Building
Area for such purposes as Lessor may deem appropriate, and
subdivide the lands for that purpose if necessary, and upon so
doing, the Office Building Area shall become the subdivided
lot on which the Building in which the Premises is located.
However, if any service provided for in Article 23(a) or any
utility provided for in Article 23(b) is separately billed or
separately metered within the Building, then the square
footage so billed or metered shall be subtracted from the
denominator and the Lessee's proportionate share for such
service and/or utility shall be separately computed, and the
Base Costs for such item shall not include any charges
attributable to said square footage. Lessee understands that
as a result of changes in the layout of the Common Facilities
from time to time occurring due to, by way of example and not
by way of limitation, the rearrangement of corridors, the
aggregate of all Building tenant proportionate shares may be
equal to, less than or greater than one hundred percent
(100%).
43. LEASE COMMENCEMENT:
------------------
Notwithstanding anything contained herein to the contrary, if Lessor,
for any reason whatsoever, including Lessor's negligence except as
provided for in Article 27(b), cannot deliver possession of the
Premises, as provided for in Article 27(a), to Lessee at the
commencement of the agreed Term as set forth in Article 2, this Lease
shall not be void or voidable, nor shall Lessor be liable to Lessee for
any loss or damage resulting therefrom, but in that event, the Term
shall be for the full term as specified above to commence from and
after the date Lessor shall have delivered possession of the Premises
to Lessee or from the date Lessor would have delivered possession of
the Premises to Lessee but for Lessee's failure to timely supply to
Lessor such drawings and/or information required by Exhibit C or for
any other reason attributable to Lessee (herein the "Commencement
Date") and to expire midnight of the day immediately preceding Term
anniversary of the Commencement Date, and if requested by Lessor,
Lessor and Lessee shall, ratify and confirm said Commencement and
Expiration Dates by completing and signing Exhibit G attached hereto
and made a part hereof.
Notwithstanding anything contained herein to the contrary, if Lessor
shall not have delivered possession of the Premises to Lessee on or
before May 23, 2003 and provided the reason therefor has not been as a
result of Lessee's acts or omissions or Force Majeure and Lessor is
able to deliver possession of the Premises on or before July 31, 2003,
then, and in such event, Lessor shall reimburse Lessee in an amount not
to exceed $24,793.84 for Lessee's cost of relocating to the Premises
over a two (2) weekend. Such reimbursement shall be made promptly after
Lessor's receipt of paid invoices evidencing the cost of Lessee's
relocation.
Notwithstanding anything contained herein to the contrary, if Lessor
shall not have delivered possession of the Premises to Lessee on or
before August 1, 2003 and provided the reason therefor has not been as
a result of Lessee's acts or omissions or Force Majeure, then, and in
such event, commencing August 1, 2003 through and including the date
30
Lessor shall have delivered possession of the Premises to Lessee,
Lessor shall reimburse Lessee in an amount not to exceed $24,793.84 per
month for Lessee's holdover rent in Lessee's current premises through
October 31, 2003 and thereafter shall not exceed $37,190.75 per month.
Such reimbursement shall made promptly after Lessor's receipt of paid
invoices evidencing Lessee's payment of such holdover rent.
Notwithstanding anything contained in the foregoing paragraphs of this
Article to the contrary, any delays in Lessor's substantial completion
of the Premises resulting from Lessee's acts or omissions or Force
Majeure shall not automatically relieve Lessor of its obligation to
timely deliver the Premises as set forth herein. Such delays resulting
from Lessee's acts or omissions or Force Majeure must have in fact
delayed Lessor's substantial completion of the Premises by more than
the number of days between the forty-fifth (45th) day after the date
construction drawings for the Premises has been approved by Lessor and
Lessee and May 23, 2003.
Notwithstanding anything contained herein to the contrary, if Lessor
shall not have delivered possession of the Premises to Lessee
substantially completed on or before December 31, 2003 and provided the
reason therefor has not been as a result of Lessee's acts or omissions
or Force Majeure, then, and in such event, Lessor or Lessee may cancel
this Lease upon thirty (30) days notice to the other, which notice
shall be given on or before January 10, 2004 (time being of the essence
in the giving of such notice) and this Lease shall terminate upon the
expiration of said thirty (30) day period and the parties shall be
released from their respective obligations under this Lease except that
Lessor shall reimburse to Lessee any prepaid rent and return security
deposit.
44. NOTICES:
-------
Any notice by either party to the other shall be in writing and shall
be deemed to have been duly given only if (i) delivered personally or
(ii) sent by registered mail or certified mail return receipt requested
in a postage paid envelope addressed or (iii) sent by nationally
recognized overnight delivery service, if to Lessee, at the above
described Building; if to Lessor, at Lessor's address as set forth
above; or, to either at such other address as Lessee or Lessor,
respectively, may designate in writing. Notice shall be deemed to have
been duly given, if delivered personally, on delivery thereof, if
mailed, upon the tenth (10th) day after the mailing thereof or if sent
by overnight delivery service, the next business day.
45. ACCORD AND SATISFACTION:
-----------------------
No payment by Lessee or receipt by Lessor of a lesser amount than the
rent and additional charges payable hereunder shall be deemed to be
other than a payment on account of the earliest stipulated Fixed Basic
Rent and Additional Rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment for Fixed Basic
Rent or Additional Rent be deemed an accord and satisfaction, and
Lessor may accept such check or payment without prejudice to Lessor's
right to recover the balance of such Fixed Basic Rent and Additional
Rent or pursue any other remedy provided herein or by law.
46. EFFECT OF WAIVERS:
-----------------
No failure by Lessor to insist upon the strict performance of any
covenant, agreement, term or condition of this Lease, or to exercise
any right or remedy consequent upon a breach thereof, and no acceptance
of full or partial rent during the continuance of any such breach,
shall constitute a waiver of any such breach or of such covenant,
agreement, term or condition. No consent, or waiver, express or
implied, by Lessor to or of any breach of any covenant, condition or
duty of Lessee shall be construed as a consent or waiver to or of any
other breach of the same or any other covenant, condition or duty,
unless in writing signed by Lessor.
31
47. LEASE CONDITION:
---------------
Intentionally Omitted.
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE:
------------------------------------------
Lessee agrees to give any mortgagees and/or trust deed holders, by
registered mail, a copy of any notice of default served upon Lessor,
provided that, prior to such notice, Lessee has been notified in
writing (by way of notice of assignment of rents and leases or
otherwise) of the address of such mortgagees and/or trust deed holders.
Lessee further agrees that, if Lessor shall have failed to cure such
default within the time provided for in this Lease, then the mortgagees
and/or trust deed holders shall have an additional thirty (30) days
within which to cure such default, or if such default cannot be cured
within that time, then such additional time as may be necessary, if
within such thirty (30) days, any mortgagee and/or trust deed holder
has commenced and is diligently pursuing the remedies necessary to cure
such default (including but not limited to commencement of foreclosure
proceedings if necessary to effect such cure), in which event this
Lease shall not be terminated while such remedies are being so
diligently pursued.
49. LESSOR'S RESERVED RIGHT:
-----------------------
Lessor and Lessee acknowledge that the Premises are in a Building which
is not open to the general public. Access to the Building is restricted
to Lessor, Lessee, their agents, employees and contractors and to their
invited visitors. In the event of a labor dispute including a strike,
picketing, informational or associational activities directed at Lessee
or any other tenant, Lessor reserves the right unilaterally to alter
Lessee's ingress and egress to the Building or make any change in
operating conditions to restrict pedestrian, vehicular or delivery
ingress and egress to a particular location.
50. CORPORATE AUTHORITY:
-------------------
If Lessee is a corporation, Lessee represents and warrants that this
Lease has been duly authorized and approved by the corporation. The
undersigned officers and representatives of the corporation represent
and warrant that they are officers of the corporation with authority to
execute this Lease on behalf of the corporation, and within fifteen
(15) days of execution hereof, Lessee will provide Lessor with a
corporate resolution confirming the aforesaid.
51. AFTER-HOURS USE:
---------------
Lessee shall be entitled to make use of said Standard Electric Service
and HVAC beyond the Building Hours, at Lessee's sole cost and expense,
provided Lessee shall notify the Lessor by 3:00 p.m. on the day that
Lessee shall require said overtime use if said overtime use is required
on any weekday, and by 3:00 p.m. on Friday for Saturday and/or Sunday
overtime use. It is understood and agreed that Lessee shall pay the sum
of FORTY-FIVE AND 00/100 DOLLARS ($45.00) per hour per zone for
air-conditioning service and THIRTY AND 00/100 DOLLARS ($30.00) per
hour per zone for heating services, plus such additional percentage
increase of the aforesaid hourly sum computed by measuring the
percentage increase between the rate in effect (including fuel
surcharges or adjustments) during the month for which such overtime use
is requested and the Base Rate. The Base Rate for purposes hereof shall
be the average of the rates in effect (including surcharges and/or
adjustments) during Calendar Year 2003.
In no event shall the Lessee pay less than the sum of FORTY-FIVE AND
00/100 DOLLARS ($45.00) per hour per zone for such overtime
air-conditioning service or less than THIRTY AND 00/100 DOLLARS
($30.00) per hour per zone for such overtime heating service.
32
52. LESSEE'S EXPANSION/RELOCATION:
-----------------------------
If necessary to accommodate the needs of a lessee leasing more gross
rentable area in the Building than Lessee, Lessor, in its sole
discretion, shall have the right one time during the Term to change the
location of the Premises to other comparable space (the "Substituted
Leased Premises") within the Building, subject to the terms and
conditions set forth below.
a. The Substituted Leased Premises shall contain a minimum floor
area of approximately the same number of square feet as are
contained in the Premises; the Substituted Leased Premises
shall be substantially comparable to the Premises in design,
layout and finishes; and the square footage of any Common
Facilities attributable to the Substituted Leased Premises
shall be approximately the same as that of the Common
Facilities attributable to the Premises.
b. If the total square footage comprised by the Substituted
Leased Premises and its attributable Common Facilities exceed
the total of the Premises and its attributable Common
Facilities, the Lessee shall not be required to pay any
increase in the Fixed Basic Rent and Lessee's Percentage shall
not be increased. If, however, such total square footage shall
be less, Lessee's Fixed Basic Rent and Lessee's Percentage
shall be decreased proportionately.
c. The Lessor shall give the Lessee not less than sixty (60) days
prior notice of Lessor's decision to relocate the Lessee; and
the Lessee agrees that no later than sixty (60) days from the
date of its receipt of such notice it shall relocate to the
Substituted Leased Premises.
d. The Lessor shall bear and pay for the cost and expense of any
such relocation; provided, however, that the Lessee shall not
be entitled to any compensation for damages for any
interference with or interruption of its business during or
resulting from such relocation. The Lessor shall make
reasonable efforts to minimize such interference by relocating
Lessee on days and at times reasonably convenient to Lessee.
e. In connection with any such relocation, the Lessor shall, at
its own cost and expense, furnish and install in (or, if
practicable, relocate to) the Substituted Leased Premises all
walls, partitions, floors, floor coverings, ceilings,
fixtures, wiring and plumbing, if any, (including relocating
trade fixtures, equipment, furniture, furnishings,
telecommunications and computer wiring and cabling and other
personal property belonging to Lessee) required for the
Lessee's proper use and occupancy thereof, all of which items
shall be comparable in quality to those situated in the
Premises.
f. The payments of new monthly minimum rent shall commence on the
earlier of ten (10) days after Lessor has completed the
physical relocation and installation of permanent improvements
in the Substituted Leased Premises or the date that Lessee
first opens for business in the Substituted Leased Premises.
x. Xxxxxx and Lessee shall promptly execute an amendment to this
Lease reciting the relocation of the Premises and any changes
in the monthly minimum rent payable hereunder.
53. BUILDING PERMIT:
---------------
This Lease is expressly conditioned upon Lessor obtaining a building
permit from the appropriate government official for Lessee's Premises.
Lessor hereby agrees to make application to said government official
within five (5) days following the execution of the construction
drawings for the Premises. As used herein, construction drawings shall
mean the final plans and specifications required pursuant to Article
27(b).
33
54. RIGHT OF FIRST OFFER:
--------------------
a. i. Subject to the provisions of this Article, Lessee
shall have the option to lease from Lessor contiguous
space on the fourth (4) floor as shown on the
attached floor plan, ("Additional Space") at the
expiration of the existing space leases for such
Additional Space, subject to Lessor's right to renew
such leases with the current tenant(s) only. If the
Term of this Lease shall be in full force and effect
on the expiration or termination date of the existing
space leases for the Additional Space, subject to
Lessor's right to renew such leases with the current
tenant(s) only, and the date upon which Lessee shall
exercise the option hereinafter referred to, Lessee
shall have the option to lease all, but not less than
all of the Additional Space on an as-is basis,
provided Lessee gives Lessor written notice of such
election within ten (10) days after Lessee shall
receive Lessor's notice that such Additional Space is
available for leasing to Lessee. If Lessee fails or
refuses to exercise this option within the time
period set forth above (TIME BEING OF THE ESSENCE),
then and in such event Lessee shall have no further
rights under this Section with respect to such
Additional Space. If Lessee shall elect to lease said
Additional Space: (v) said Additional Space shall be
deemed incorporated within and part of the Premises
on the date that Lessor shall notify Lessee that such
Additional Space is ready for occupancy by Lessee
subject to any delays relating to the determination
of fair market rent and shall expire on the
Expiration Date of this Lease, (x) the Fixed Basic
Rent payable under this Lease shall be increased by
an amount such that during the balance of the term of
this Lease the Fixed Basic Rent for said Additional
Space shall be the then fair market rent for the
Additional Space, as determined in the manner set
forth in clause (ii) below, (y) Lessee's Percentage
Share shall be proportionately increased, and (z) all
other terms and provisions set forth in this Lease
shall apply, except that Lessor not be required to
perform any work with respect to said Additional
Space.
The parties shall promptly execute an amendment of
this Lease confirming Lessee's election to lease said
Additional Space and the incorporation of said
Additional Space into the Premises.
ii. Lessor and Lessee shall use their best efforts,
within thirty (30) days after Lessor receives
Lessee's notice of its election to lease said
Additional Space, ("Negotiation Period") to agree
upon the Fixed Basic Rent to be paid by Lessee for
said Additional Space. If Lessor and Lessee shall
agree upon the Fixed Basic Rent, the parties shall
promptly execute an amendment to this Lease stating
the Fixed Basic Rent for the Additional Space.
If the parties are unable to agree on the Fixed Basic
Rent for said Additional Space during the Negotiation
Period, then within fifteen (15) days notice from the
other party, given after expiration of the
Negotiation Period, each party, at its cost and upon
notice to the other party, shall appoint a person to
act as an appraiser hereunder, to determine the fair
market rent for the Additional Space. Each such
person shall be a real estate broker or appraiser
with at least ten (10) years' active commercial real
estate appraisal or brokerage experience (involving
the leasing of similar space as agent for both
landlords and tenants) in Essex County, New Jersey.
If a party does not appoint a person to act as an
appraiser within said fifteen (15) day period, the
person appointed by the other party shall be the sole
appraiser and shall determine the aforesaid fair
market rent. Each notice containing the name of a
person to act as appraiser shall contain the person's
address. Before proceeding to establish the fair
market rent, the appraisers shall subscribe and swear
to an oath fairly and impartially to determine such
rent.
If the two appraisers are appointed by the parties as
stated in the immediately preceding paragraph, they
shall meet promptly and attempt to determine the fair
market rent. If they are unable to agree within
forty-five (45) days after the appointment of the
second appraiser, they shall attempt to select a
third person meeting the qualifications stated in the
immediately preceding paragraph within fifteen (15)
days after the last day the two appraisers are given
to determine the fair market rent. If they are unable
34
to agree on the third person to act as appraiser
within said fifteen (15) day period, the third person
shall be appointed by the American Arbitration
Association, upon the application of Lessor or Lessee
to the office of the Association nearest the
Building. The person appointed to act as appraiser by
the Association shall be required to meet the
qualifications stated in the immediately preceding
paragraph. Each of the parties shall bear fifty
percent (50%) of the cost of appointing the third
person and of paying the third person's fees. The
third person, however selected, shall be required to
take an oath similar to that described above.
The three appraisers shall meet and determine the
fair market rent. A decision in which two of the
three appraisers concur shall be binding and
conclusive upon the parties. In deciding the dispute,
the appraisers shall act in accordance with the rules
then in force of the American Arbitration
Association, subject however, to such limitations as
may be placed on them by the provisions of this
Lease.
After the Fixed Basic Rent for the Additional Space
has been determined by the appraiser or appraisers
and the appraiser or appraisers shall have notified
the parties, at the request of either party, both
parties shall execute and deliver to each other an
amendment of this Lease stating the Fixed Basic Rent
for the Additional Space.
If the Fixed Basic Rent for said Additional Space has
not been agreed to or established prior to the
incorporation of said Additional Space in the
Premises, then Lessee shall pay to Lessor an annual
rent ("Temporary Rent") which Temporary Rent on a per
square foot basis shall be equal to the Fixed Basic
Rent, on a per square foot basis, then being paid by
Lessee for the Premises.
Thereafter, if the parties shall agree upon a Fixed
Basic Rent, or the Fixed Basic Rent shall be
established upon the determination of the fair market
rent by the appraiser or appraisers, at a rate at
variance with the Temporary Rent (i) if such Fixed
Basic Rent is greater than the Temporary Rent, Lessee
shall promptly pay to Lessor the difference between
the Fixed Basic Rent determined by agreement or the
appraisal process and the Temporary Rent, or (ii) if
such Fixed Basic Rent is less than the Temporary
Rent, Lessor shall credit to Lessee's subsequent
monthly installments of Fixed Basic Rent the
difference between the Temporary Rent and the Fixed
Basic Rent determined by agreement or the appraisal
process.
In determining the fair market rent for said
Additional Space, the appraiser or appraisers shall
be required to take into account the rentals at which
leases are then being concluded for comparable space
in the Building and in comparable buildings in the
County of Essex, New Jersey. In no event shall the
Fixed Basic Rent for the Additional Space, on a per
square foot basis, be less than the Fixed Basic Rent
for the Premises, on a per square foot basis.
b. The option granted to Lessee under this Article 54
may be exercised only by Lessee, its permitted
successors and assigns, and not by any subtenant or
any successor to the interest of Lessee by reason of
any action under the Bankruptcy Code, or by any
public officer, custodian, receiver, United States
Trustee, trustee or liquidator of Lessee or
substantially all of Lessee's property. Lessee shall
have no right to exercise any of such options
subsequent to the date Lessor shall have the right to
give the notice of termination referred to in Article
13. Notwithstanding the foregoing, Lessee shall have
no right to exercise the option granted to Lessee
hereunder if, at the time it gives notice of such
election (i) Lessee shall not be in occupancy of
substantially all of the Premises or (ii) the
Premises or any part thereof shall be the subject of
a sublease other than with any affiliate of Lessee.
If Lessee shall have elected to exercise its option
hereunder, such election shall be deemed withdrawn
if, at any time after the giving of notice of such
election and prior to the occupancy of the Additional
Space, Lessee shall sublease all or any part of the
Premises except to an affiliate of Lessee.
35
55. TERMINATION OPTION:
------------------
Notwithstanding anything to the contrary contained herein, Lessee shall
have a one-time option to surrender the Premises ("Termination Option")
in accordance with the following terms and conditions:
a. If Lessee desires to exercise the Termination Option, Lessee
shall give Lessor irrevocable written notice ("Termination
Notice") of Lessee's exercise of this Termination Option,
which shall be delivered by certified mail which Termination
Notice must be received by Lessor no later than the date that
is twelve (12) full months prior to the Termination Date. TIME
IS OF THE ESSENCE with respect to Lessor's receipt of the
Termination Notice and all other deadlines in this Article.
b. If Lessee gives the Termination Notice and complies with all
the provisions in this Article, the Lease as it applies to the
Premises only shall terminate at 11:59 p.m. on the last day of
the month during which the fifth (5th) anniversary of the
Commencement Date occurs (the "Termination Date").
c. In consideration for Lessee's termination of this Lease,
Lessee shall pay Lessor $323,230.00 ("Termination Fee")
simultaneously with the Termination Notice sent by Lessee to
Lessor.
d. Lessee's obligations to pay Fixed Basic Rent, Additional Rent,
and any other costs or charges under this Lease, and to
perform all other Lease obligations for the period up to and
including the Termination Date, shall survive the termination
of this Lease.
e. Notwithstanding the foregoing, if at any time during the
period on or after the date on which Lessee shall exercise its
Termination Option, up to and including the Termination Date,
Lessor shall have notified Lessee in writing of a default and
Lessee shall remain in default after the expiration of any
applicable grace or cure period, then Lessor may elect, but is
not obligated, to cancel and declare null and void Lessee's
exercise of the Termination Option by notice to Lessee thereof
and this Lease shall continue in full force and effect for the
full Term hereof unaffected by Lessee's exercise of the
Termination Option. If Lessor does not cancel Lessee's
exercise of the Termination Option after Lessee's default,
Lessee shall cure any default within the period of time
specified in this Lease and this obligation shall survive the
Termination Date.
f. In the event Lessee exercises the Termination Option, Lessee
covenants and agrees to surrender full and complete possession
of the Premises to Lessor on or before the Termination Date
vacant, broom-clean, in good order and condition, and, in
accordance with the provisions of this Lease, and thereafter
the Premises shall be free and clear of all leases, tenancies,
and rights of occupancy of any entity claiming by or through
Lessee.
g. If Lessee shall fail to deliver possession of the Premises on
or before the Termination Date in accordance with the terms
hereof, Lessee shall be deemed to be a holdover Lessee from
and after the Termination Date, and in such event all
covenants and terms of Article 25 shall apply and shall also
be liable to Lessor for all costs and expenses incurred by
Lessor in securing possession of the Premises. Lessor may
accept any such sums from Lessee without prejudice to Lessor's
right to evict Lessee from the Premises by any lawful means.
h. If Lessee properly and timely exercises the Termination Option
and properly and timely satisfies all other monetary and
non-monetary obligations under this Lease, the Lease as it
applies to the Premises shall cease and expire on the
Termination Date with the same force and effect as if said
Termination Date were the date originally provided in this
Lease as the Expiration Date of the Term hereof.
36
i. If this Lease has been assigned or all or a portion of the
Premises has been sublet to other than an Affiliate of Lessee,
this Termination Option shall be deemed null and void and
neither Lessee nor any assignee or sublessee shall have the
right to exercise such option during the term of such
assignment or sublease.
56. FOOD SERVICE:
------------
Lessor shall maintain a food service provider to service the Building.
If the food service provider ceases operations, Lessor shall not be in
default under this Lease, provided that Lessor shall use diligent, good
faith efforts to replace the food service provider as expeditiously as
is commercially reasonably possible, provided that such period may
never exceed three (3) months.
37
57. FURNITURE AND PHONE SYSTEM:
--------------------------
As additional security for the faithful performance and observance by
Lessee of all of the terms, provisions and conditions of this Lease,
Lessee hereby grants to and creates on behalf of Lessor a security
interest in the furniture and phone system being purchased by Lessee
from Lessor for Lessee's use in the Premises. The security interest
herein granted shall be subordinate to the lien of any lender of
Lessee. This Lease constitutes a security agreement under the New
Jersey Uniform Commercial Code. Lessee agrees from time to time to
execute and deliver such security agreements and financing statements
as Lessor shall reasonably require to evidence and/or perfect the lien
of the security interest granted herein, within five (5) days of
Lessor's request therefor. Any recording cost for such financing
statements shall be borne by Lessor. Upon the occurrence of any default
hereunder by Lessee, beyond applicable notice and cure periods, during
the first (1st) Lease Year, Lessor may, at its option, foreclose on
said security and apply the proceeds of the sale of the property
covered thereby for the payment of all rent owing under this Lease or
any other sum owing by Lessee under the terms of Article 14 above,
including, but not limited to any damages or deficiencies resulting
from any reletting of the Premises, whether said damage or deficiency
accrued before or after summary proceedings or other re-entry by
Lessor. Lessee covenants that it shall keep and maintain all such
furniture and phone system in good, substantial and efficient operating
condition at Lessee's sole cost and expense, during the first (1st)
Lease Year. Notwithstanding the foregoing, provided that Lessee
complies with each of its obligations under this Lease during the first
(1st) Lease Year, the security interest granted to Lessor hereunder
shall cease and be of further force or effect after the first (1st)
Lease Year. Lessor shall execute such termination of any financing
statements as shall be required to effectuate such termination of
Lessor's security interest.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under the Lease or this Agreement or make any claim that the Lease or
this Agreement is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses, notarizations, or
other similar requirements, and each party hereby waives the right to assert any
such defense or make any claim of invalidity or unenforceability due to any of
the foregoing.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
LESSOR: LESSEE:
CWLT ROSELAND EXCHANGE L.L.C. AMERICAN BUSINESS FINANCIAL
SERVICES, INC.
By: Xxxx-Xxxx Texas Property L.P., member
By: Xxxx-Xxxx Sub XVII, Inc. its general
partner
By: _____________________________ By: __________________________
Xxxxxxx X. Xxxxxx Name:
Vice President - Leasing Title:
38
EXHIBIT A
---------
LOCATION OF PREMISES
Exhibit A - Page 1
EXHIBIT X-0
XXXXXX XXXXXXXX XXXX
BEGINNING at a point on the northerly side line of Eisenhower Parkway at the
division line between Xxxx 0 xxx 0, Xxx Xxxx Xxxxxxx xx Xxxxxxxx;
thence (1) running along said division line, North 51(Degree)-14'-40" West,
966.53 feet to a point on the southerly line of PSE&G right-of-way;
thence (2) running along the southerly line of said right-of-way, North
32(Degree)-12'52" East, 534.42 feet to an angle in same;
thence (3) still along same, North 37(Degree)-37'-13" East, 303.58 feet to a
corner in same;
thence (4) still along same, North 51(Degree)-03'-31" West, 28.80 feet to a
corner in same;
thence (5) still along same, North 32(Degree)-12'-52" East, 418.07 feet to a
point on the westerly line of lands of the Borough of Roseland (Lot 2);
thence (6) running along the westerly line of said Lot 2 and along the westerly
line of Lots 13 and 14 lands of Xxxxxxxxx Xxxx Inc., South 51(Degree)-28'01"
East, 873.45 feet to a point on the northerly side line of Eisenhower Parkway;
thence (7) running along the northerly side line of Xxxxxxxxxx Xxxxxxx, Xxxxx
0(Xxxxxx)-00'-00" Xxxx, 56.10 feet to a point;
thence (8) still along same, on a curve, curving to the right, having a radius
of 905.37 feet, an arc distance of 495.69 feet and a chord of South
19(Degree)-39'-55" West, 489.52 feet to a point;
thence (9) still along same, South 35(Degree)-21'-00" West, 745.94 feet to the
point and place of BEGINNING.
Exhibit A - Page 1
EXHIBIT B
---------
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS: The sidewalks, entrance, passages, courts,
elevators, vestibules, stairways, corridors and public parts of the
Building shall not be obstructed or encumbered by Lessee or used by
Lessee for any purpose other than ingress and egress. If the Premises
are situated on the ground floor with direct access to the street, then
Lessor shall, at Lessor's expense, keep the sidewalks and curbs directly
in front of the Premises clean and free from ice, snow and refuse.
2. WINDOWS: Windows in the Premises shall not be covered or obstructed by
Lessee. No bottles, parcels or other articles shall be placed on the
window xxxxx, in the halls, or in any other part of the Building other
than the Premises. No article shall be thrown out of the doors or
windows of the Premises.
3. PROJECTIONS FROM BUILDING: No awnings, air-conditioning units, or other
fixtures shall be attached to the outside walls or the window xxxxx of
the Building or otherwise affixed so as to project from the Building,
without prior written consent of Lessor.
4. SIGNS: No sign or lettering shall be affixed by Lessee to any part of
the outside of the Premises, or any part of the inside of the Premises
so as to be clearly visible from the outside of the Premises, without
the prior written consent of Lessor. However, Lessee shall have the
right to place its name on any door leading into the Premises the size,
color and style thereof to be subject to the Lessor's approval. Lessee
shall not have the right to have additional names placed on the Building
directory without Lessor's prior written consent.
5. FLOOR COVERING: Lessee shall not lay linoleum or other similar floor
covering so that the same shall come in direct contact with the floor of
the Premises. If linoleum or other similar floor covering is desired to
be used, an interlining of builder's deadening felt shall first be fixed
to the floor by a paste or other material that may easily be removed
with water, the use of cement or other similar adhesive material being
expressly prohibited.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING: Lessee shall not make, or
permit to be made, any unseemly or disturbing noises or odors and shall
not interfere with other tenants or those having business with them.
Lessee will keep all mechanical apparatus in the Premises free of
vibration and noise which may be transmitted beyond the limits of the
Premises.
7. LOCK KEYS: No additional locks or bolts of any kind shall be placed on
any of the doors or windows by Lessee. Lessee shall, on the termination
of Lessee's tenancy, deliver to Lessor all keys to any space within the
Building either furnished to or otherwise procured by Lessee, and in the
event of the loss of any keys furnished, Lessee shall pay to Lessor the
cost thereof. Lessee, before closing and leaving the Premises, shall
ensure that all windows are closed and entrance doors locked. Nothing in
this Paragraph 7 shall be deemed to prohibit Lessee from installing a
burglar alarm within the Premises, provided: (1) Lessee obtains Lessor's
consent which will not be unreasonably withheld or delayed; (2) Lessee
supplies Lessor with copies of the plans and specifications of the
system; (3) such installation shall not damage the Building; and (4) all
costs of installation shall be borne solely by Lessee.
8. CONTRACTORS: No contract of any kind with any supplier of towels, water,
toilet articles, waxing, rug shampooing, venetian blind washing,
furniture polishing, lamp servicing, cleaning of electrical fixtures,
removal of waste paper, rubbish, garbage, or other like service shall be
entered into by Lessee, nor shall any machine of any kind be installed
in the Building or the Office Building Area without the prior written
consent of the Lessor. Lessee shall not employ any persons other than
Lessor's janitors for the purpose of cleaning the Premises without prior
written consent of Lessor. Lessor shall not be responsible to Lessee for
any loss of property from the Premises however occurring, or for any
damage to the effects of Lessee by such janitors or any of its
employees, or by any other person or any other cause.
Exhibit B - Page 1
9. PROHIBITED ON PREMISES: Lessee shall not conduct, or permit any other
person to conduct, any auction upon the Premises, manufacture or store
goods, wares or merchandise upon the Premises without the prior written
approval of Lessor, except the storage of usual supplies and inventory
to be used by Lessee in the conduct of his business, permit the Premises
to be used for gambling, make any unusual noises in the Building, permit
to be played musical instrument on the Premises, permit any radio to be
played, or television, recorded or wired music in such loud manner as to
disturb or annoy other tenants, or permit any unusual odors to be
produced on the Premises. Lessee shall not permit any portion of the
Premises to be occupied as an office for a public stenographer or
typewriter, or for the storage, manufacture, or sale of intoxicating
beverages, narcotics, tobacco in any form or as a xxxxxx or manicure
shop. Canvassing, soliciting and peddling in the Building and the Office
Building Area are prohibited and Lessee shall cooperate to prevent the
same. No bicycles, vehicles or animals of any kind shall be brought into
or kept in or about the Premises.
10. PLUMBING, ELECTRIC AND TELEPHONE WORK: Plumbing facilities shall not be
used for any purpose other than those for which they were constructed;
and no sweepings, rubbish, ashes, newspaper or other substances of any
kind shall be thrown into them. Waste and excessive or unusual amounts
of electricity or water is prohibited. When electric wiring of any kind
is introduced, it must be connected as directed by Lessor, and no
stringing or cutting of wires will be allowed, except by prior written
consent of Lessor, and shall be done by contractors approved by Lessor.
The number and locations of telephones, telegraph instruments,
electrical appliances, call boxes, etc. shall be subject to Lessor's
approval.
11. MOVEMENT OF FURNITURE, FREIGHT OR BULKY MATTER: The carrying in or out
of freight, furniture or bulky matter of any description must take place
during such hours as Lessor may from time to time reasonably determine
and only after advance notice to the superintendent of the Building. The
persons employed by Lessee for such work must be reasonably acceptable
to the Lessor. Lessee may, subject to these provisions, move freight,
furniture, bulky matter, and other material into or out of the Premises
on Saturdays between the hours of 9:00 a.m. and 1:00 p.m., provided
Lessee pays additional costs, if any, incurred by Lessor for elevator
operators or security guards, and for any other expenses occasioned by
such activity of Lessee. If, at least three (3) days prior to such
activity, Lessor requests that Lessee deposit with Lessor, as security
of Lessee's obligations to pay such additional costs, a sum of which
Lessor reasonably estimates to be the amount of such additional cost,
the Lessee shall deposit such sum with Lessor as security of such cost.
There shall not be used in the Building or Premises, either by Lessee or
by others in the delivery or receipt of merchandise, any hand trucks
except those equipped with rubber tires and side guards, and no hand
trucks will be allowed in the elevators without the consent of the
superintendent of the Building. Notwithstanding the foregoing, Lessee
may move into the Premises on a weekend and Lessor shall cooperate with
Lessee with respect thereto, including, without limitation, having all
elevators operating on the moving date or other appropriate Building
Holiday if Lessee shall move into the Premises on such day.
12. SAFES AND OTHER HEAVY EQUIPMENT: Lessor reserves the right to prescribe
the weight and position of all safes and other heavy equipment so as to
distribute properly the weight thereof and to prevent any unsafe
condition from arising.
13. ADVERTISING: Lessor shall have the right to prohibit any advertising by
Lessee which in Lessor's reasonable opinion tends to impair the
reputation of the Building or its desirability as a building for
offices, and upon written notice from Lessor, Lessee shall refrain from
or discontinue such advertising.
14. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER TENANTS: Lessor shall not
be responsible to Lessee for non-observance or violation of any of these
rules and regulations by any other tenant.
15. AFTER HOURS USE: Lessor reserves the right to exclude from the Building
between the hours of 6:00 p.m. and 8:00 a.m. and at all hours on
Saturdays, Sundays and Building Holidays, all persons who do not present
a pass to the Building signed by the Lessee. Each Lessee shall be
responsible for all persons for whom such a pass is issued and shall be
liable to the Lessor for the acts of such persons.
Exhibit B - Page 2
16. PARKING: Lessee and its employees shall park their cars only in those
portions of the parking area designated by Lessor.
17. Lessor hereby reserves to itself any and all rights not granted to
Lessee hereunder, including, but not limited to, the following rights
which are reserved to Lessor for its purposes in operating the Building:
a) the exclusive right to the use of the name of the Building for
all purposes, except that Lessee may use the name as its
business address and for no other purposes; and
b) the right to change the name or address of the Building,
without incurring any liability to Lessee for doing so; and
c) the right to install and maintain a sign on the exterior of
the Building; and
d) the exclusive right to use or dispose of the use of the roof
of the Building; and
e) the right to limit the space on the directory of the Building
to be allotted to Lessee; and
f) the right to grant to anyone the right to conduct any
particular business or undertaking in the Building.
18. The Lessee shall be responsible for initiating, maintaining and
supervising all health and safety precautions and/or programs required
by Law in connection with the Lessee's use and occupancy of the
Premises.
19. The Lessee shall not store, introduce or otherwise permit any material
known to be hazardous within the Premises. Any material within the
Premises which is determined to be hazardous shall be removed and
properly disposed of by the Lessee at the Lessee's sole expense.
-- END --
Exhibit B - Page 3
EXHIBIT C
---------
NOTES
RE: Workletter Agreement for office space on the fourth (4th) floor at 000
Xxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxxxx.
, 0000
XXXXXX:
AMERICAN BUSINESS FINANCIAL SERVICES, INC.
------------------------------------------
You ("Lessee") and we ("Lessor") are executing simultaneously with this
Workletter Agreement a written lease ("Lease"), covering the space referred to
above, as more particularly described in the Lease ("Premises").
To induce Lessee to enter into the Lease (which is hereby incorporated by
reference) and in consideration of the covenants hereinafter contained, Lessor
and Lessee mutually agree as follows:
1. Lessor shall have its architect prepare the following architectural and
mechanical drawings and specifications based upon the sketch layout
supplied to Lessor by Lessee, attached hereto and made a part hereof,
upon full execution of this Lease.
a. Architectural drawings and specifications for Lessee's
partition layout, reflected ceiling, placement of electrical
outlets and other installations for the work to be done by
Lessor.
b. Mechanical plans and specifications where necessary for
installation of air conditioning systems, ductwork and
heating.
All such plans and specifications are expressly subject to Lessor's
written approval, which Lessor covenants it will not unreasonably
withhold.
2. Lessor agrees to cause the partition plan, electrical plan and the
reflected ceiling plan to be delivered to Lessee on or before the
fifteenth (15th) day after Lease execution. Lessee agrees to approve
said plans by initialing and returning same to Lessor within five (5)
business days of receipt of each plan. Upon approval of the plans
initialed by Lessee, Lessor shall file said plans with the appropriate
governmental agencies.
3. Lessor agrees, at its expense and without charge to Lessee (unless
otherwise provided), to do the work in the Premises as shown on the
plans attached hereto and described on the "Description of Materials"
schedule attached hereto which shall hereinafter be referred to as "The
Work". The Work shall include Lessor's general conditions and overhead
amounts indicated on the Description of Materials. "Building Standard"
shall mean the type and grade of material, equipment and/or device
designated by Lessor as standard for the Building. All items are
Building Standard unless otherwise noted. The provisions of Article 6
of the Lease shall apply to any alterations made to the Premises after
the initial work to be performed herein.
4. Against the cost of The Work, Lessor shall credit an allowance of
$482,450.00 ("Lessor's Allowance") and the remaining balance, if any,
shall be deemed Additional Rent and paid by Lessee as follows: (i)
fifty percent (50%) upon Lessee's execution and delivery of this Lease
and (ii) fifty percent (50%) upon Lessor's substantial completion of
The Work and prior to Lessee's occupancy of the Premises.
Notwithstanding the foregoing, Lessee may utilize any portion of
Lessor's Allowance toward the cost of connecting, including wiring and
cabling, any existing equipment to be utilized by Lessee in the
Premises and the cost of relocating the existing furniture and
equipment within the Building to be utilized by Lessee in the Premises.
5. All low partitioning, workstation modules, bank screen partitions and
prefabricated partition systems shall be furnished and installed by
Lessee.
Exhibit C - Page 1
6. The installation or wiring of telephone and computer (data) outlets is
not part of The Work. Lessee shall bear the responsibility to provide
its own telephone and data systems at Lessee's sole cost and expense.
Upon expiration or sooner termination of the Lease, Lessee shall remove
all telephone and data equipment and wiring from the Premises and the
Building risers upon vacation of same.
7. Changes in The Work, if necessary, except if a result of error or
omission of Lessor, architect or other agent or employee of Lessor, or
requested by the Lessee, shall be accomplished after the execution of
the Lease and this Workletter Agreement, and without invalidating any
part of the Lease or Workletter Agreement, by written agreement between
Lessor and Lessee hereinafter referred to as a Change Order. Each
Change Order shall be prepared by Lessor and signed by both Lessee and
Lessor stating their agreement upon all of the following:
a. The scope of the change in The Work; and
b. The cost of the change; and
c. Manner in which the cost will be paid or credited; and
d. The estimated extent of any adjustment to the Commencement
Date (if any) as a result of the change in The Work.
Each and every Change Order shall be signed by Lessor's and Lessee's
respective construction representatives. In no event shall any Change
Order(s) be permitted without such authorizations. A 10% supervision
plus 7% overhead charge will be added to the cost of any Change Order
and to the cost of any other work to be performed by Lessor in the
Premises after Lessor's completion of The Work. If Lessee shall fail to
approve any such Change Order within one (1) week, the same shall be
deemed disapproved in all respects by Lessee and Lessor shall not be
authorized to proceed thereon. Any increase in the cost of The Work or
the change in The Work stated in a Change Order which results from
Lessee's failure to timely approve and return said Change Order shall
be paid by the Lessee. Lessee agrees to pay to Lessor the cost of any
Change Order promptly upon receipt of an invoice for same. Similarly,
any cost savings resulting from such Change Order(s) shall be credited
to the Lessee.
8. If Lessee elects to use the architect suggested by Lessor, this
architect becomes the Lessee's agent solely with respect to the plans,
specifications and The Work. If any change is made after completion of
schematic drawings and prior to completion of final construction
documents which result in a Change Order and additional costs, such
costs shall be the responsibility of the Lessee.
9. Prior to Lessee's occupancy of the Premises, Lessee shall identify and
list any portion of The Work which does not conform to this Workletter
Agreement ("Punch List"). The Lessor shall review with the Lessee all
of the items so listed and correct or complete any portion of The Work
which fails to conform to the requirements of this Workletter
Agreement.
10. The terms contained in the Lease (which include all exhibits attached
thereto) constitute Lessor's agreement with Lessee with respect to the
work to be performed by Lessor on Lessee's behalf. If the architectural
drawings are in conflict with the terms of the Lease, then the Lease
shall be deemed the controlling document.
11. All materials and installations constructed for the Lessee within the
Premises shall become the property of the Lessor upon installation. No
refund, credit or removal of said items is to be permitted at the
termination of the Lease. Items installed that are not integrated in
any such way with other common building materials do not fall under
this provision (e.g. shelving, furniture, etc.).
12. It is agreed that notwithstanding the date provided in the Lease for
the Commencement Date, the term shall not commence until Lessor has
"substantially completed" all work to be performed by Lessor as
hereinbefore set forth in Paragraph 3 above and as set forth in the
Exhibit C - Page 2
Lease; provided, however, that if Lessor shall be delayed in
substantially completing said work as a result of:
a. Lessee's failure to approve the plans and specifications in
accordance with Paragraph 2 hereof; or
b. Lessee's failure to furnish interior finish specifications,
i.e., paint colors, carpet selection, etc., to Lessor by the
fifth (5th) working day after Lessor has approved the plans
and specifications submitted by Lessee referred to in
Paragraph 2 hereof; or
c. Lessee's request for materials, finishes or installations
other than Lessor's Building Standard; or
d. Lessee's changes in The Work; or
e. The performance of a person, firm, partnership or corporation
employed by Lessee and the completion of the said work by said
person, firm, partnership or corporation;
then the Commencement Date of the term of said Lease shall be
accelerated by the number of days of such delay and Lessee's obligation
to pay Fixed Basic Rent and Additional Rent shall commence as of such
earlier date.
13. Lessor shall permit Lessee and its agents to enter the Premises prior
to the Commencement Date in order that Lessee may perform through its
own non-union contractors (or union contractor if required by Lessor)
such other work and decorations as Lessee may desire at the same time
Lessor's contractors are working in the Premises. The foregoing license
to enter prior to the Commencement Date, however, is conditioned upon:
a. Lessee's workmen and mechanics working in harmony and not
interfering with the labor employed by Lessor, Lessor's
mechanics or contractors or by any other Lessee or its
mechanics or contractors; and
b. Lessee providing Lessor with evidence of Lessee's contractors
and subcontractors carrying such worker's compensation,
general liability, personal and property insurance as required
by law and in amounts no less than the amounts set forth in
Article 30 of the Lease. If at any time such entry shall cause
disharmony or interference therewith, this license may be
withdrawn by Lessor upon forty-eight (48) hours written notice
to Lessee. Such entry shall be deemed controlled by all of the
terms, covenants, provisions and conditions of said Lease,
except as to the covenant to pay Fixed Basic Rent and
Additional Rent. Lessor shall not be liable in any way for any
injury, loss or damage which may occur to any of Lessee's
decorations or installations so made prior to the Commencement
Date, the same being solely at Lessee's risk.
14. No part of the Premises shall be deemed unavailable for occupancy by
the Lessee, or shall any work which the Lessor is obligated to perform
in such part of the Premises be deemed incomplete for the purpose of
any adjustment of Fixed Basic Rent payable hereunder, solely due to the
non-completion of details of construction, decoration or mechanical
adjustments which are minor in character and the non-completion of
which does not materially interfere with the Lessee's use of such part
of the Premises, provided that such adjustments are completed within
twenty (20) business days.
15. Lessee is responsible for all costs related to the repairs and
maintenance of any additional or supplemental HVAC systems, appliances
and equipment installed to meet Lessee's specific requirements. Lessee
shall purchase a service contract for this equipment so that the
equipment is covered by such service contract each year of the term of
the Lease and shall forward a copy of such contract to Lessor.
16. If construction is to occur in a space occupied by Lessee's employees,
Lessee shall be liable for all costs associated with a delay if Lessee
shall fail to comply with a submitted construction schedule to relocate
personnel, furniture, or equipment. These costs shall include, but not
be limited to the following:
Exhibit C - Page 3
a. cost of construction workers time wasted; and
b. cost of any overtime work necessary to meet schedule
deadlines; and
c. any other costs associated with delays in final completion.
17. This workletter is based on the quantities and specifications listed
herein. Any change to these specifications shall require the
recalculation of the construction costs. Such recalculation shall not
negate any other section of this Lease.
18. All sums payable by Lessee to Lessor in connection with this Exhibit C
and any other work to be performed by Lessor within the Premises and
billable to Lessee shall be deemed Additional Rent.
19. With respect to the construction work being conducted in or about the
Premises, each party agrees to be bound by the approval and actions of
their respective construction representatives. Unless changed by
written notification, the parties hereby designate the following
individuals as their respective construction representatives:
FOR LESSOR: FOR LESSEE:
_________________________________ ________________________________
c/o Xxxx-Xxxx Realty Corporation ________________________________
_________________________________ ________________________________
_________________________________ ________________________________
Exhibit C - Page 4
EXHIBIT C-1
-----------
AIR CONDITIONING & HEATING DESIGN STANDARDS
The following are design standards for the building air-conditioning system for
cooling and heating in the air in the subject building:
1. During the normal heating season to maintain an average indoor dry bulb
temperature of not less than 70 degrees F (21 degrees C) or more than
76 degrees (24.4 degrees C) when the outdoor dry bulb temperature is
lower than 65 degrees F (18 degrees C) but not lower than 0 degrees F
(-13 degrees C).
2. To maintain comfort cooling for an average indoor dry bulb temperature
of not more than 78 degrees F when the outside dry bulb temperature is
95 degrees F (24 degrees C).
3. During the intermediate seasons, when the outside dry bulb temperature
is below 55 degrees (13 degrees C), cooling will be provided by outside
air usage in conjunction with operating of return air, outside air and
exhaust air dampers.
4. To furnish not less than .10 cubic foot of fresh air per minute per
square foot of rentable area, and between .20 and 1.0 cubic feet of
total air per minute, per square foot of rentable occupied space.
5. Lessor will not be responsible for the failure of the air-conditioning
system if such failure results from (i) the occupancy of the Premises
with more than an average of one (1) person for each one hundred (100)
usable square feet of floor area (ii) the installation or operation by
Lessee of machines and appliances, the installed electrical load of
which when combined with the load of all lighting fixtures exceeds five
(5) xxxxx per square foot of floor area and in any manner exceeding the
aforementioned occupancy and electrical load criteria, or (iii)
rearrangement of partitioning after the initial preparation of the
Premises. If interference with normal operation of the air-conditioning
system in the Premises results, necessitating changes in the air
conditioning system servicing the Premises, such changes shall be made
by Lessor upon written notice to Lessee at Lessee's sole cost and
expense. Lessee agrees to lower and close window coverings when
necessary because of the sun's position whenever the air conditioning
system is in operation, and Lessee agrees at all times to cooperate
fully with Lessor and to abide by all the Rules and Regulations
attached hereto as well as reasonable rules and regulations which
Lessor may hereafter prescribe involving the air-conditioning system.
-- END --
Exhibit C-1 - Page 1
EXHIBIT D
---------
CLEANING SERVICES
(Five Nights Per Week)
LESSEE'S PREMISES
-----------------
1. Vacuum clean all carpeted areas.
2. Sweep and dust mop all non-carpeted areas. Wet mop whenever necessary.
3. All office furniture such as desks, chairs, files, filing cabinets,
etc. shall be dusted with a clean treated dust cloth whenever necessary
and only if such surfaces are clear of Lessee's personal property
including but not limited to plants.
4. Empty and wash ashtrays.
5. Empty wastepaper baskets and remove waste to the designated areas.
6. All vertical surfaces within arms reach shall be spot cleaned to remove
finger marks and smudges. Baseboard and window xxxxx are to be spot
cleaned whenever necessary.
7. All cleaning of cafeterias, vending areas, kitchen facilities are
excluded. Lessee may make necessary arrangements for same directly with
Lessor's cleaning maintenance company.
8. Cleaning hours shall be Monday through Friday between 7:00 p.m. and
11:00 p.m.
9. No cleaning service is provided on Saturday, Sunday and Building
Holidays.
10. Cartons or refuse in excess which can not be placed in wastebaskets
will not be removed. Lessee is responsible to place such unusual refuse
in trash dumpster.
11. Cleaning maintenance company will not remove nor clean tea, office cups
or similar containers. If such liquids are spilled in waste baskets,
the waste baskets will be emptied but not otherwise cleaned. Lessor
will not be responsible for any stained carpet caused from liquids
leaking or spilling from Lessee's wastepaper receptacles.
12. Upon completion of cleaning, all lights will be turned off and doors
locked leaving the Premises in an orderly condition.
13. Glass entrance doors will be cleaned nightly. Interior glass doors or
glass partitions are excluded. Lessee may make arrangements for same
with Lessor's cleaning maintenance company.
COMMON AREAS
------------
1. Vacuum all carpeting in entrance lobbies, outdoor mats and all
corridors.
2. Wash glass doors in entrance lobby with a clean damp cloth and dry
towel.
3. Clean cigarette urns. Sweep and/or wet mop all resilient tile flooring.
Hard surface floors such as quarry tile, etc., shall be cleaned
nightly.
4. Wash, clean and disinfect water fountains.
5. Clean all elevators and stairwells.
6. Lavatories -- Men and Women.
a. Floors in all lavatories shall be wet mopped each evening with a
germicidal detergent to ensure a clean and germ free surface.
b. Wash and polish all mirrors, shelves, bright work including any
piping and toilet seats.
c. Wash and disinfect wash basins and sinks using a germicidal
detergent.
d. Wash and disinfect toilet bowls and urinals.
e. Keep lavatory partitions, tiled walls, dispensers and receptacles
in a clean condition using a germicidal detergent when necessary.
f. Empty and sanitize sanitary disposal receptacles.
g. Fill toilet tissue holders, towel dispensers and soap dispensers.
Refills to be supplied by Lessor.
7. Clean all air ventilation grill work in ceilings.
Exhibit D - Page 1
EXHIBIT E
---------
BUILDING HOLIDAYS
BUILDING CLOSED
* NEW YEAR'S DAY *
* MEMORIAL DAY *
* INDEPENDENCE DAY *
* LABOR DAY *
* THANKSGIVING DAY *
* CHRISTMAS DAY *
-- END --
Exhibit E - Page 1
EXHIBIT F
---------
TENANT ESTOPPEL CERTIFICATE
TO: MORTGAGEE and/or its affiliates and/or whom else it may concern:
1. The undersigned is the Lessee (Tenant) under that certain Lease dated
_______ by and between _______ as Lessor (Landlord) and _______ as
Lessee, covering those certain premises commonly known and designated
as _______ r.s.f. on the _______ ( ) floor
of____________________________, NJ.
2. The Lease has not been modified, changed, altered or amended in any
respect (except as indicated following this sentence) and is the only
Lease or agreement between the undersigned and the Lessor affecting
said premises. If none, state "none".
3. The undersigned has made no agreements with Lessor or its agents or
employees concerning free rent, partial rent, rebate of rental
payments or any other type of rental concession (except as indicated
following this sentence), except as set forth in Paragraph 10 of the
Preamble. If none, state "none".
4. The undersigned has accepted and now occupies the premises, and is and
has been open for business since _______, 200_. The Lease term began
_______, 2003, and the rent for said premises has been paid to and
including , 2003 in conformity with this Lease agreement. No rent has
been prepaid for more than two (2) months. The fixed minimum rent
being paid as above is $ __________ per month. If Lessee is not in
full possession, whether Lessee has assigned the Lease, sublet all or
any portion of the Premises, or otherwise transferred any interest in
the Lease or the Premises, Lessee agrees to provide a copy of such
assignment, sublease, or transfer upon request.
5. To the best of Lessee's knowledge, the Lease is not in default and is
in full force and effect. As of the date hereof, the undersigned is
entitled to no credit, no free rent and no offset or deduction in
rent.
6. All alterations, improvements, additions, build-outs, or construction
required to be performed under the Lease have been completed in
accordance with the terms of the Workletter attached to Lease as
Exhibit C.
7. The Lease does not contain and the undersigned doesn't have any
outstanding options or rights of first refusal to purchase the
premises or any part thereof or the real property of which the
premises are a part.
8. No actions, whether voluntary or otherwise, are pending against the
undersigned under the bankruptcy laws of the United States or any
State thereof.
9. To the best of Lessee's knowledge there are currently no valid
defenses, counterclaims, off-sets, credits, deductions in rent, or
claims against the enforcement of any of the agreements, terms, or
conditions of the Lease.
10. The undersigned acknowledges that all the interest of Lessor in and to
the above-mentioned Lease is being duly assigned to MORTGAGEE or one
of its affiliates hereunder and that pursuant to the terms thereof (i)
all rental payments under said Lease shall continue to be paid to
Lessor in accordance with the terms of the Lease unless and until you
are otherwise notified in writing by MORTGAGEE, or its successor or
assigns and (ii) no modification, revision, or cancellation of the
Lease or amendments thereto shall be effective unless a written
consent thereto of such mortgagee is first obtained.
11. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of the Lessee.
Dated this ________ day of __________________ , 2003
LESSEE:
______________________________________
Name:
Title:
Exhibit F - Page 1
EXHIBIT G
---------
COMMENCEMENT DATE AGREEMENT
1.0 PARTIES
--- -------
THIS AGREEMENT made the _________day of ________, 2003 is by and
between ________________ (hereinafter "Lessor") whose address is c/o
Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx
00000 and _________________________ (hereinafter "Lessee") whose
address is _______________________________________________________.
2.0 STATEMENT OF FACTS
--- ------------------
2.1 Lessor and Lessee entered into a Lease dated ____________,
2003 (hereinafter "Lease") setting forth the terms of
occupancy by Lessee of approximately ________ rentable square
feet on the _____ (___) floor (hereinafter "Premises") at
_____________________________ (hereinafter "Building"); and
2.2 The Term of the Lease is for ____________ (__) months with the
Commencement Date of the initial Term being defined in the
Preamble to the Lease as being subject to change under
Articles 27 and 43 thereof; and
2.3 It has been determined in accordance with the provisions of
Articles 27 and 43 of the Lease that ___________, 2003 is the
Commencement Date of the Term of the Lease.
3.0 STATEMENT OF TERMS
--- ------------------
NOW, THEREFORE, in consideration of the Premises and the
covenants hereinafter set forth, it is agreed:
3.1 The Commencement Date of the Term of the Lease is ___________,
2003 and the Expiration Date thereof is _____________ , 2003
and the Lease Preamble Articles 6 and 9 shall be deemed
modified accordingly.
3.2 Article 10 of the Preamble shall be deemed modified as
follows:
3.3 This Agreement is executed by the parties hereto for the
purpose of providing a record of the Commencement and
Expiration Dates of the Lease, adjust the Term of the Lease
and Fixed Basic Rent amount accordingly.
EXCEPT as modified herein, the Lease covering the Premises shall remain
in full force and effect as if the same were set forth in full herein and Lessor
and Lessee hereby ratify and confirm all the terms and conditions thereof.
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.
IN WITNESS THEREOF, Lessor and Lessee have hereunto set their hands and
seals the date and year first above written and acknowledge one to the other
they possess the requisite authority to enter into this transaction and to sign
this Agreement.
LESSOR LESSEE
By: ________________________________ By: ______________________________
Xxxxxxx X. Xxxxxx Name:
Vice President - Leasing Title:
Exhibit G - Page 1
EXHIBIT H
[Date]
Gentlemen:
BY ORDER OF OUR CLIENT _______________________, HAVING AN OFFICE AT
___________________, WE HEREBY ESTABLISH OUR IRREVOCABLE LETTER OF CREDIT NO.
________________ IN YOUR FAVOR FOR A SUM OR SUMS NOT TO EXCEED US
$__________________ (Write Out Sum___________________) IN THE AGGREGATE,
EFFECTIVE IMMEDIATELY.
THIS LETTER OF CREDIT SHALL BE PAYABLE IN IMMEDIATELY AVAILABLE FUNDS IN U.S.
DOLLARS. FUNDS UNDER THIS LETTER OF CREDIT ARE PAYABLE TO YOU UPON YOUR
PRESENTATION TO US OF A SIGHT DRAFT DRAWN ON US IN THE FORM OF EXHIBIT A
ATTACHED HERETO. ACCOMPANIED BY THE ORIGINAL LETTER OF CREDIT FOR PROPER
ENDORSEMENT. Partial draws under this letter of credit are permissible.
WE ARE INFORMED THAT THIS LETTER OF CREDIT MAY BE REDUCED FROM TIME TO TIME
PRIOR TO EXPIRATION. SHOULD YOU WISH TO REDUCE THIS LETTER OF CREDIT, WE REQUEST
YOU PRESENT THE FOLLOWING STATEMENT ON YOUR LETTERHEAD, PURPORTEDLY SIGNED BY AN
AUTHORIZED OFFICER (INDICATING NAME AND TITLE) AS FOLLOWS:
"WE AUTHORIZE THE REDUCTION OF _________ BANK, NATIONAL ASSOCIATION, IRREVOCABLE
LETTER OF CREDIT NUMBER ______________ BY THE AMOUNT OF US $__________________,
THE NEW BALANCE OF THE LETTER OF CREDIT WILL BE US $____________________."
IT IS A CONDITION OF THIS LETTER OF CREDIT, THAT IT WILL AUTOMATICALLY BE
EXTENDED FOR AN ADDITIONAL PERIOD OF ONE (1) YEAR FROM ITS PRESENT, OR ANY
FUTURE EXPIRATION DATE, BUT NOT BEYOND _______________, 20__, UNLESS YOU RECEIVE
OUR WRITTEN NOTIFICATION, DELIVERED TO YOU AT THE ABOVE ADDRESS, BY REGISTERED
MAIL OR OTHER FORM OF DELIVERY FOR WHICH RECEIPT IS ACKNOWLEDGED, AT LEAST SIXTY
(60) DAYS PRIOR TO THE THEN CURRENT EXPIRATION DATE, ADVISING YOU THAT WE HAVE
ELECTED NOT TO EXTEND THIS LETTER OF CREDIT FOR AN ADDITIONAL PERIOD OF ONE (1)
YEAR. NOTWITHSTANDING THE ABOVE, THIS LETTER OF CREDIT SHALL TERMINATE AND WILL
NOT BE EXTENDED BEYOND ____________, 20__.
THIS LETTER OF CREDIT IS TRANSFERABLE IN ITS ENTIRETY, BUT NOT IN PART .
WE HEREBY AGREE TO HONOR EACH DRAFT DRAWN UNDER AND IN COMPLIANCE WITH THIS
LETTER OF CREDIT IF DULY PRESENTED ON OR BEFORE _____________, 20__, OR ANY
AUTOMATICALLY EXTENDED PERIOD THEREAFTER, AT OUR OFFICE LOCATED AT
_____________________________________________.
THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES 1998,
INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 590.
VERY TRULY YOURS,
________________________________
Name:
Title:
Exhibit H - Page 1
