THIS LEASE AGREEMENT ("Lease") is made and entered into on the 1st day
of June, 1996, by and between "K" Line Realty (N.J.) Inc., (hereinafter referred
to as "Landlord"); and MCC Corporation (hereinafter referred to as the
"Tenant").
FOR AND IN CONSIDERATION of the rental and of the covenants and
agreements hereinafter set forth to be kept and performed by Tenant, Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord the premises
herein described for the term, at the rental and subject to and upon all of the
terms, covenants and agreements hereinafter set forth.
1. DEFINED TERMS
The following terms wherever initially capitalized shall have the
following meanings:
A. Premises: The Premises shall comprise approximately [23,763.13]
square feet of the building (Level A 9,124.38 sq. ft. and Level B 14,638.75 sq.
ft.) located at 000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, as said
Premises are more particularly shown and identified on the office space
certification which has been approved by Landlord and Tenant and is incorporated
by reference herein as Exhibit "A". For all purposes of this Lease, Landlord and
Tenant have agreed that the gross leasable area of the Premises is approximately
[23,763.13] square feet, which for the purpose of this Lease is measured based
on outside dimensions to centerline of common wall and pro-rata allocation of
common and building core areas, as applicable.
B. Term: The Term of this Lease shall be for a term of one (1) year
commencing on June 1, 1996 and expiring on May 31, 1997 or as such period as may
be extended by Tenant pursuant to Section 48.
C. Commencement Date: June 1, 1996, at which time Tenant's
obligation to pay Annual Basic Rent shall commence.
D. Rental Year: The first Rental Year shall commence on the
Commencement Date, and shall end at the close of the 12th full calendar
month thereafter.
E. Tenant's Proportionate Share: 18.94 %
19,010.50' (Tenant Net Usable) / 100,381.40' (Building Total Net Usable)
F. Permitted Use: The Premises shall be used solely for offices in
accordance with and as permitted by applicable zoning ordinances and for no
other purpose.
G. (i) Annual Basic Rent: The applicable Annual Basic Rent is
hereinafter set forth in Article 6.
(ii) Additional Rent: Any other rent and other charges to be paid
by Tenant to Landlord in accordance with this Lease other than Annual Basic
Rent, including but not limited to Tenant's percentage of Operating Expenses
hereinafter provided in Article 8.
H. Tenant Notice Address:
MCC Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
President
I. Landlord Notice Address:
"K" Line Realty (N.J.), Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxx
Executive Vice President
J. Property: The land, as described in Exhibit B plus all buildings
and all appurtenant improvements.
2. PREMISES
2.1 Landlord hereby leases to Tenant, and Tenant hereby rents from
Landlord, the Premises and all related improvements attributable thereto for
Tenant's use. Tenant's lease of the Premises shall include the right to use
Tenant's Proportionate Share of the parking spaces in the parking areas of the
Property as designated by Landlord and as particularly described on Exhibit C
hereto, and the right of access and use of the dining and other common areas
(excluding mechanical rooms) on the Property and in the building.
2.2 Tenant agrees that at any time and from time to time, at reasonable
intervals, within twenty (20) days after written request by Landlord and/or its
assignee, mortgagee or other secured parties as may be designated by Landlord to
deliver to Landlord, a certificate (based on Tenant's best knowledge and belief
stating; (i) that this Lease is unmodified and in full force and effect (or if
there have been modifications, that this Lease is in full force and effect as
modified, and identifying the modification agreements, or if this Lease is not
in full force and effect the certificate shall so state); (ii) the date to which
rental has been paid under this Lease; (iii) whether or not there is any
existing default by either party under this Lease with respect to which a notice
of default has been served, and if there is any such default, specifying the
nature and extent thereof; (iv) whether or not there are any set-offs, defenses
or counterclaims against enforcement of the obligations to be performed by
Tenant under this Lease; and (v) such other matters relating to this Lease as
may be reasonably requested by Landlord or any of its designees. Landlord agrees
to furnish to Tenant at reasonable intervals, within twenty (20) days after
written request by Tenant a reciprocal certificate setting forth the applicable
facts as herein above referred to in this Article 2.2.
3. TERM
3.1 The Term of this Lease is the Term. In the event the Commencement
Date is any date other than the first day of the month, the one (1) year lease
term shall commence on the first day of the month next succeeding delivery of
the Premises, and in such event Tenant shall be obligated to pay to Landlord
pro-rata Annual Basic Rent and Additional Rent from the Commencement Date to the
last day of the month in which the Commencement Date occurs.
3.2 This Lease shall expire at the end of the Term, without the
necessity of any notice from either Landlord or Tenant to terminate the
same.
4. USE OF THE PREMISES
The Tenant may use the Premises for Permitted Use. Under no circumstance
shall Tenant use for itself, sublet or allow an other party (including itself to
use, possess or occupy the Premises as an industrial establishment in whole or
in part as that term is defined under N.J.S.A. 13:1 K-8(fl the Industrial Site
Recovery Act ("ISRA"). Tenant shall not cause or suffer to be committed any act
which creates a violation of ISRA or otherwise causes any filing to be made
pursuant to ISRA, Spill Compensation Act or any other environmental law; all
such costs and expenses resulting from Tenant's use of the Premises shall be
Tenant's sole responsibility.
5. RENT PAYABLE
During the Term, Tenant covenants and agrees to pay to Landlord, as
rental for the Premises, the Annual Basic Rent and any and all Additional Rent
in accordance with this Lease.
6. ANNUAL BASIC RENT
6.1 Effective as of the Commencement Date, and during the one (1)
year Term hereof and the one (1) year renewal period should said option be
exercised, Tenant shall pay to Landlord Annual Basic Rent in the amount of
[$329,073.81]. The stated sum represents the base rates of:
Level A: 9,124.38' sq. ft. @ $12.00 per GRSF = $109,492.56
Level B: 14,638.75' sq. ft. @ $15.00 per GRSF = $219.581.25
$329,073.81
and Tenant Electric at [$1.65] per GRSF of the Premises per annum less the Level
A Computer Room. It should be noted that the Level A Computer Room shall be
submetered and separately billed at rates currently in force by Jersey Central
Power and Light Company (JCP&L).
6.2 Tenant covenants to pay all Annual Basic Rent and Additional Rent
when due and payable, without any set-off, deduction, counterclaim, demand or
previous notice whatsoever, except as may herein be specifically provided. Any
monies paid or expenses incurred by Landlord to correct defaults in any of the
Tenants obligations hereunder, after such notice to Tenant as required in this
Lease, shall be payable to Landlord as Additional Rent. Any Additional Rent
provided for in this Lease shall be paid together with the Annual Basic Rent,
unless the same shall be required to be paid upon demand or as otherwise
expressly stated in this Lease. Annual Basic Rent shall be paid or delivered to
Landlord at the Landlord's Notice Address.
6.3 Receipt and acceptance by Landlord of any Annual Basic Rent,
Additional Rent, and any other charge with knowledge of Tenant's default in any
covenant or condition of this Lease shall not be deemed a waiver of such
default.
6.4 The Tenant agrees that it will pay one-twelfth (1/12th) the Annual
Basic Rent and Additional Rent as herein provided, promptly on the first day of
each and every month in equal monthly installments, or as otherwise in this
Lease required. Without waiving any of Landlord's other remedies for failure to
pay Annual Basic Rent or Additional Rent as in this Lease contained, the Tenant
agrees that any Annual Basic Rent or Additional Rent not paid within ten (10)
days after such payment is due shall require payment by Tenant of (i) the
delinquent Annual Basic Rent and/or Additional Rent; and (ii) payment of a late
charge of 5 cents for each dollar of delinquent Annual Basic Rent or Additional
Rent, if payment is not made within 5 days after notice is given of such
non-payment by Tenant.
7. UTILITIES
7.1 Tenant shall be responsible at its sole cost and expense to pay for
its use of utilities which may be separately metered to the Leased Premises
(i.e., electricity for the Level A Computer Room raised floor area only).
Utilities not separately metered shall be paid for by Tenant as part of
Operating Expenses as hereinafter provided, including general purpose
electricity, natural gas, domestic water and standby sprinkler charges, if any.
Tenant shall pay for electricity consumed in the Premises at the rate stated in
Section 6.1 hereof.
8. OPERATING EXPENSES
8.1 For all purposes hereof:
(a) "Taxes" shall include all real estate taxes, assessments, sewer
taxes and charges, and other governmental charges imposed upon the Property, or
any governmental charges levied in substitution thereof.
(b) If Landlord received a refund of Taxes for any calendar year
during the Term, Landlord shall apply the refund against Operating Expenses
after first deducting the reasonable cost and expenses incurred by Landlord in
effecting the refund. If this Lease terminates before the end of the period for
which the Operating Expenses so reduced apply, Tenant shall be paid a pro-rated
portion of its share of such refund.
(c) If at any time during the Term, the method or scope of
taxation other than a tax based on Landlord's net income prevailing at the date
of execution of this Lease shall be altered, modified or enlarged so as to cause
the method of taxation to be changed, in whole or in part, so that in
substitution for the Taxes, there may be a capital levy or other imposition
based on the value of the Premises, or the rents received therefrom, or some
other form of assessment based in whole or in part on some other valuation of
the Landlord's real property including the Premises, then and in such event,
such substituted tax or imposition shall be payable and discharged pro-rata, in
accordance with the obligations set forth in this Article 8. Such substitute tax
shall be computed as if the building where the only property owned by the
Landlord.
(d) No provision hereof shall be deemed to require Tenant to pay
municipal, state or federal income, capital levy, estate, succession,
inheritance, use, sales or corporate franchise taxes imposed upon Landlord.
8.2 For all purposes hereof:
(A) "Operating Expenses" shall mean all expenses, including
Taxes, incurred by Landlord in connection with the operation, maintenance,
repair and replacement of and to the Property, during the lease year including,
without limitation, (i) wages and fringe benefit payments to persons engaged in
such operation, maintenance and repair; (ii) the cost of building and cleaning
supplies and service and maintenance contracts with independent contractors;
(iii) all charges for insurance coverage on the Property, including fire and
casualty insurance in broad form, public liability insurance, casualty rent
insurance and such other insurance reasonably required by Landlord or other
parties having an insurable interest. Landlord reserves the right to adjust the
amount of coverage from time to time as may be required to provide adequate
coverage consistent with then existing economic conditions; and (iv) management
fee costs not to exceed three (3%) percent of the gross Annual Basic Rent
attributable to the Building.
(B) Operating Expenses shall not include the following:
(a) salaries or benefits for Landlord's executives and employees above
the grade of building manager, and of any employee who does not devote
substantially all of his time to the Building;
b) to the extent such costs constitute capital costs under generally
accepted accounting principles, the cost of replacement of HVAC, mechanical,
security, electrical, plumbing systems, or of any substantial component or part
of such systems beyond the scope of routine maintenance and repair; resurfacing
of the parking area or of the driveways on the Project or any other cost which
is capital in nature, provided if Landlord shall purchase any item of capital
equipment or make any capital expenditure which has the effect of reducing the
expenses which would be included in Operating Expenses, then the costs of such
capital equipment or capital expenditure may be included in Operating Expenses
if amortized over the useful life of the item on a straight line basis, but only
to the extent of the reduction in each calendar year of cost which would
otherwise be included in Operating Expenses, until the savings or reductions in
Operating Expenses equal Landlord's costs for such capital expenditure. If
Landlord shall lease any items of capital equipment which results in savings or
reductions in expenses which would otherwise be included in Operating Expenses,
then the rentals and other costs paid pursuant to such leasing shall be included
in Operating Expenses for the calendar year in which they were incurred, but
only to the extent of the reduction which would otherwise be included in
Operating Expenses;
(c) expenditures for which Landlord is reimbursed from any insurance
carrier, or any other source;
(d) cost of repairs or replacements incurred by reason of fire or other
casualty or condemnation;
(e) advertising and promotional expenditures;
(f) cost incurred in performing work or furnishing services for any
tenant (including Tenant), whether at such tenant's or Landlord's expense, to
the extent that such work or service is in excess of any work or service that
Landlord is obligated to furnish to Tenant at Landlord's expense;
(g) depreciation, except as provided above;
(h) bad debt loss, rent loss, or reserves for either of them;
(i) Snow Removal (which shall be assessed as incurred based on Tenant's
Proportionate Share);
j) the cost of electricity furnished to any particular tenant and paid
for by such tenant;
(k) financing costs, including points, commitment fees, broker's fees,
legal fees, and mortgage interest and amortization payments;
(l) costs incurred in connection with the construction of the Building
or the initial development of the Project;
(m) costs, expenses or expenditures relating to the duties, liabilities
or obligations of other tenants in the Project;
(n) any costs incurred by Landlord arising out of its failure to perform
or breach of any of its covenants, agreements, representations, warranties,
guarantees or indemnities made for the benefit of Tenant under
this lease;
(o) legal fees, space planner's fees, broker's commissions and other
costs incurred by Landlord in connection with leasing space and negotiating
leases with tenants of the Project, or legal fees in connection with disputes
between Landlord and any tenant of the Project, or between Landlord and any
mortgagee;
(p) lease payments for rented equipment, the cost of which equipment
constitutes a capital expenditure if the equipment were purchased; and any
late fees, penalties, interest charges or similar fees incurred by Landlord;
(q) costs of improving, altering, constructing or redecorating any space
leased to tenants of the Building;
(r) any cost representing an amount paid to a person, firm, corporation,
or other entity related to Landlord which is in excess of the amount which would
have been paid in the absence of such relationship;
(s) costs incurred by Landlord to remedy any defects in the design of or
materials used in, or the defective installation of the structural steel
framing, roof, foundation and underground utility lines forming a part
of or servicing the Building or the Project;
(t) costs associated with the operation of the business of the entity
which constitutes Landlord as the same are distinguished from the costs of
operation of the Project, including, without limitation, accounting and legal
expenses, costs of selling, syndicating, financing, mortgaging or hypothecating
Landlord's interest in the Building, costs of any disputes between Landlord and
its employees, building managers, or other tenants;
(u) amounts paid as ground rental;
(v) any changes or improvements the Landlord is required o make due to
changes in applicable law, or on account of any environmental cleanup not caused
by Tenant;
(w) expenses for vacant space, including utilities and security, should
the building be less than eighty-five (85%) percent tenanted; and
(x) any expenses incurred by Landlord in connection with providing
cafeteria service to Tenant. Tenant pays for this service on the basis of the
number of employees in its employ.
(C) "Operational Year" shall mean each calendar year during the Term.
8.3 (i) The Landlord shall make a reasonable estimate of the Operating
Expenses for each Operational Year, and Tenant shall pay as Additional Rent
Tenant's Proportionate Share of Operating Expenses in twelve (12) equal monthly
installments beginning in January of the Operational Year in question, except
for the first Operational Year when Tenant shall pay its pro-rata share of such
expenses beginning on the Commencement Date. Tenant shall have the right, upon
reasonable notice, during business hours to review the business records
applicable to the Operating Expenses and to copy any invoices or other xxxxxxxx
or documents applicable thereto which copies shall be made at Tenant's cost and
expense.
(ii) At the end of each calendar year, Landlord will furnish to
Tenant a statement of actual Operating Expenses for the Operational Year just
elapsed and the parties shall adjust in a single payment from the Tenant or the
Landlord, as the case may be, any difference between the estimated and actual
Operating Expenses.
(iii) Any required payment to Landlord or Tenant as applicable
shall be made within thirty (30) days after Landlord furnishes the required
statement of actual Operating Expenses.
8.4 Every statement forwarded by Landlord to Tenant pursuant to this
Article 8 shall be binding upon Tenant unless, within thirty (30) days after the
receipt of such statement, Tenant notifies Landlord, in writing in detail, of
Tenant's objections thereto. Any unresolved dispute as to such statement shall
be determined as per clause 55.
8.5 If the last year of the Term ends on any day other than the last day
of a calendar year, any payment due to Landlord or to Tenant by reason of any
increase or decrease in Operating Expenses shall be pro-rated on the basis of a
365 day year by computing Operating Costs for the entire year and then prorating
such amount for the number of days this Lease was in effect during such year.
Notwithstanding the termination of this Lease, and within ten (10) days after
receipt of Landlord's statement regarding the determination of the Operating
Costs for the calendar year in which this Lease terminates, Tenant shall pay to
Landlord or Landlord shall pay to Tenant, as the case may be, an amount equal to
the difference between Tenant's Proportionate Share of the increases in
Operating Costs for such year (as prorated) and the amount previously paid by
Tenant toward such increases. This covenant shall survive the expiration or
termination of this lease.
9. LEASEHOLD IMPROVEMENTS
9.1 Tenant to take space "as is" and shall at its cost, construct its
leasehold improvements. The above notwithstanding, Landlord has in accordance
with specific agreement with Tenant, made certain modifications to the demised
space at no cost to Tenant. Landlord further warrants that modifications which
were made for the previous Tenant and which continue to exist were made in
accordance with Federal and Local code provisions and that a Certificate of
Occupancy was duly tendered by the Borough of New Providence. Tenant, has been
in possession of the demised space under a sub-lease since May 1, 1995 and
hereby affirms that the space as defined under Clause 1 of this Lease was
tendered in satisfactory condition.
9.2 Tenant acknowledges that except as herein otherwise expressly
provided, neither Landlord nor any agent of Landlord has made any representation
or warranty with respect to the Premises or the Building or with respect to the
suitability of either for the conduct of Tenant's business, nor has Landlord
agreed to undertake any modification, alteration or improvement to the Premises
except as indicated above. The taking of possession of the Premises by Tenant
shall conclusively establish that the Premises and the Building were at such
time in satisfactory condition.
9.3 (a) Tenant shall not do nor permit anything to be done in or about
the Premises nor bring or keep anything therein which will in any way increase
the existing rate or affect any fire or other insurance upon the Building or any
of its contents, or cause a cancellation of any insurance policy covering said
Building or any part thereof or any of its contents, nor shall Tenant sell or
permit to be kept, used or sold in or about said Premises any articles which may
be prohibited by standard form policy of fire insurance.
(b) Tenant shall not do or permit anything to be done in or about the
Premises which will in any way obstruct or interfere with the rights of other
tenants or occupants of the Building, or injure or annoy them, or use or allow
the Premises to be used for an unlawful purpose, nor shall Tenant cause,
maintain or permit any nuisance in or about the Premises. Tenant shall not
commit or suffer to be committed any waste in or upon the Premises. Tenant
shall not bring onto the Premises any apparatus, equipment or supplies that
may overload the Premises or the Building or any utility or elevator systems or
jeopardize the structural integrity of the Building or any part thereof.
(c) Tenant shall not use the Premises or permit anything to be done in
or about the Premises which will in any way conflict with, and at its sole cost
and expense shall promptly comply with, any Legal Requirement now in force or
which may hereafter be enacted or promulgated relating to the condition, use or
occupancy of the Premises, excluding structural changes. The judgment of any
court of competent jurisdiction or the admission of Tenant in any action against
Tenant, whether Landlord be a party thereto or not, that Tenant has violated any
Legal Requirement, shall be inclusive of the fact as between Landlord and
Tenant.
9.4 In the event Tenant shall require any work in addition to Landlord's
work, it shall advise Landlord of such requirement and Landlord shall submit in
writing to Tenant the extra cost of such additional work, together with the
details of the scope of such work to be performed ("Extra Tenant Work"). In the
event Tenant requests Extra Tenant Work, it shall pay the cost thereof to
Landlord within fifteen (15) days after written requisition thereof and
certification by Landlord's architect that the Extra Tenant Work has been
completed as required.
9.5 Landlord covenants and agrees that all Landlord's Work shall be
performed in a good and workmanlike manner and in accordance with all applicable
laws and regulations.
9.6 The Premises shall be deemed Ready for Occupancy upon the
Commencement Date.
10. REPAIRS AND MAINTENANCE
10.1 During the Term, the Landlord, as part of Operating Expenses
(except as may be otherwise herein provided), shall keep in good order,
safe condition and repair, the structural parts of the Building, including the
walls, roof, concrete floor, foundation and structural steel, together with
plumbing, utility lines and facilities serving the Premises, except for repairs
or maintenance occasioned by the negligence or deliberate act of Tenant or its
agents, servants, employees and invitees, which shall be then repaired by
Landlord at the cost and expense of the Tenant. (Capital expenditures as
previously covered in Clause 8 above remain as Landlord's sole expense and
obligation). Repairs caused, occasioned by other tenant's in the Building shall
be charged to said tenant's account and not made part of these operating
expenses.
10.2 The Landlord shall as part of Operating Expenses take good care
of and maintain and repair the lawns, shrubbery, driveway, sidewalks,
entranceways, foyers, curbs and parking area on the Property. The Landlord shall
provide snow removal, the payment being covered as per clause 8.2 (B) (i).
10.3 Tenant agrees to keep the Premises in as good repair as they are
at the beginning of the Term, reasonable use and wear thereof and damage by fire
or other casualty excepted. Tenant further agrees not to damage, overload,
deface or commit waste of the Premises. Subject to the provisions of Section
12.4 hereof, Tenant shall be responsible for all damage of any kind or character
to the Premises caused by Tenant or Tenant's employees, agents or invitees in
excess of ordinary wear and tear, including the windows, glass, floors, walls
and ceilings, caused by Tenant or by anyone using or occupying the Premises by,
through or under Tenant. Landlord shall repair the same, and Tenant agrees to
pay the costs incurred therefor to Landlord upon demand to the extent that
those costs are not covered by warranty. Anything hereinabove contained to the
contrary notwithstanding, it is expressly understood and agreed that the
Tenant shall, at its sole cost and expense, be responsible for the repair,
maintenance and replacement of any items installed by Landlord for Tenant's
use as leasehold improvements that do not constitute part of the realty.
10.4 Anything hereinabove contained to the contrary notwithstanding,
Landlord shall upon due notification and at Tenants cost and expense, replace
all light bulbs, fluorescent fixtures and ballasts after their initial
installation by Landlord.
11. JANITORIAL SERVICES
Landlord shall furnish janitorial services and garbage disposal, for the
Building and Premises the cost of which shall be included as part of Operating
Expenses (See Exhibit "F"). Landlord shall comply with all laws in the
disposal of recyclable materials.
12. INSURANCE
12.1 Tenant shall, at all times during the term of this Lease, and at
its own cost and expense, procure and continue in force the following insurance
coverage:
(a) Commercial General Liability Insurance with a combined single limit
for personal or bodily injury and property damage of not less than $2,000,000 or
such other level of coverage that Landlord may require in its commercially
reasonable judgment, with at least a $1,000,000 umbrella.
(b) Fire and Extended Coverage Insurance, including vandalism and
malicious mischief coverage, covering and in an amount equal to the full
replacement value of all fixtures, furniture and improvements installed in the
Premises by or at the expense of Tenant.
12.2 The aforementioned minimum limits of policies shall in no event
limit the liability of Tenant hereunder. The aforesaid insurance shall name
Landlord as an additional insured. Said insurance shall be with companies
having a rating of not less than A+, XI in "Best Insurance Guide". Tenant shall
furnish from the insurance companies or cause the insurance companies to furnish
certificates of coverage. No such policy shall be cancelable or subject
reduction of coverage or other modification or cancellation except after thirty
(30) days prior written notice to Landlord by the insurer except only ten (10)
days notice shall be required in the event of non-payment of premium. All such
policies shall be written as primary policies, not contributing with and not in
excess of the coverage which Landlord may carry. Tenant shall, at least twenty
(20) days prior to the expiration of such policies, furnish Landlord with
evidence of renewals or binders. Tenant agrees that if Tenant does not take out
and maintain such insurance, Landlord may (but shall not be required to) procure
said insurance on Tenant's behalf and charge Tenant the premiums together with
a reasonable handling charge and Interest from the date paid by Landlord,
payable upon demand. Tenant shall have the right to provide such insurance
coverage pursuant to blanket policies obtained by Tenant, provided such blanket
policies expressly afford coverage to the Premises and to Tenant as required by
this Lease.
12.3 During the term of this Lease Landlord shall maintain in effect:
(A) Insurance on the Building against fire, extended coverage perils and
vandalism and malicious mischief (to the extent such Overages are available),
with responsible insurers licensed to do business in New Jersey insuring the
Building in an equal amount to at least ninety-five percent (95%) of the
replacement cost thereof, excluding foundations, footings and underground
installations;
(B) Commercial general liability insurance in limits of not less than
$3,000,000. Landlord may, but shall not be obligated to, carry insurance
against additional perils and/or in greater amounts.
12.4 To the extent permitted by their respective policies of insurance,
Landlord and Tenant each hereby waive any right of recovery against the other
and the authorized representatives of the other for any loss or damage that is
covered by any policy of insurance maintained by either party with respect to
the Premises or the Complex or any operation therein. Each party shall obtain
from its insurer under each policy a waiver of all right of recovery by way of
subrogation against the other party in connection with any claim, loss or damage
covered by such policy.
13. SIGNS
Subject to Landlord's prior written consent, which shall not be
unreasonably withheld, Tenant shall have the right to be listed on the interior
sign tablet of the building lobby, expressly subject to the following terms and
conditions:
(1) The location of the Landlord's sign tablet shall be established by
Landlord.
(2) Tenant shall have the right to install signage on its entrance
door(s) comparable to other signage in the building.
(3) The cost of installation of Tenant's sign and the cost of
maintenance of the sign tablet shall be at Tenants sole cost and expense.
(4) Tenant shall not erect roof signs.
(5) Any such signage shall be used only to identify the name of
Tenant.
14. FIXTURES
14.1 The Tenant is given the right and privilege of installing and
removing its property, equipment and fixtures in the Premises during the Term.
However, if prior to the expiration, of this Lease, Tenant is in default and
moves out, or is dispossessed, and fails to remove any property, equipment and
fixtures or other property within thirty (30) days after such, dispossess or
removal, then and in that event, the said property, equipment and fixtures or
other property shall be deemed at the option of the Landlord to be abandoned;
or in lieu thereof, at Landlord's option, Landlord may remove such property and
charge the reasonable cost and expense of removal and storage to Tenant. The
terms and conditions hereof are expressly subject to the terms and conditions
of Article 27 hereof with respect to the subsequent Alterations to the Premises.
14.2 Except as otherwise expressly provided for in this Lease, it is
expressly understood and agreed that Tenant may install, connect and operate
equipment as may be deemed necessary by Tenant for its business, subject to
compliance with applicable rules and regulations of government boards and
bureaus having jurisdiction thereof. Subject to the terms and conditions of this
Lease, the movable machinery, trade fixtures and equipment belonging to the
Tenant shall at all times be considered and intended to be personal property of
the Tenant, and not part of the Property, and subject to removal by the Tenant,
provided that the Tenant, at its own cost and expense, pays for any damage
to the Premises caused by such removal.
15. GLASS
The Landlord expressly covenants and agrees to replace any broken glass
(with same type and quality) in the windows or other apertures of the Premises
which may become damaged or destroyed at its cost and expense except if such
damage is occasioned by the Tenant, its agents, servants or employees.
16. ASSIGNMENT AND SUBLETTING
16.1 Subject to Section 16.4 the Tenant may not assign this lease or
sublet the leased premises or a portion thereof, unless it shall first advise
the Landlord in writing, by hand, reputable overnight courier or by certified
mail, return receipt requested, of its intention to assign or sublease. In such
event, the Landlord shall have ten (10) days from receipt of such notice to
elect to re-capture the premises or the portion thereof that Tenant wishes to
sublet, and terminate the within lease or to consent to the assignment of the
lease or the sublease of the premises, which consent shall not be unreasonably
withheld, provided the proposed assignee or sub-tenant is financially
responsible, and in the case of an assignment, shall assume in writing the
terms and conditions of the within lease on the part of the Tenant to be
performed, failure of which shall be cause for Landlord to reject the
assignment.
16.2 If Landlord elects to recapture the leased premises, Tenant shall
surrender the leased premises ninety (90) days after Landlord's written notice
of its election to recapture, and this Lease shall terminate as if the last day
of the Term had occurred.
16.3 In connection with any permitted assignment or subletting (subject
to compliance with this Article 16.3 and Article 16.5), the Tenant covenants and
agrees that: (i) the Tenant shall pay monthly to the Landlord 50% of any
increment in rent received by Tenant per square foot per annum over the annual
rent then in effect during the year of assignment or subletting, which payment
shall be made monthly together with the required rental payment to be paid
pursuant to Article 6 and (ii) if Tenant receives any consideration or value for
such assignment or subletting, Landlord shall be paid 50% of any such
consideration or value within ten (10) days after receipt of same by Tenant. As
a condition hereunder, Tenant warrants and represents to Landlord that it will
furnish to Landlord a copy of all pertinent documents with respect to any such
assignment or subletting so as to establish Tenant's obligation to Landlord
hereunder.
16.4 The Landlord's consent shall not be required and the terms and
conditions of Article 16.1 and 16.3 shall not apply as to Landlord's right to
recapture if the Tenant assigns this lease or subleases the premises to a
parent, subsidiary, affiliate or a company into which Tenant is merged or
with which Tenant is consolidated, or to the purchaser of all of the assets of
or a majority of shares of stock in Tenant, provided however that there shall
be no change in use of the premises.
16.5 In the event of any permitted assignment or subletting the Tenant
shall remain and be directly and primarily responsible for payment and
performance of the within lease obligations, and the Landlord reserves the
right, at all times, to require and demand that the Tenant pay and perform the
terms and conditions of this lease. No such assignment or subletting shall be
made to any assignee or subtenant who shall occupy the premises for any use
other than that which is permitted to the Tenant, or for any use which may be
deemed extra hazardous, or which would in any way materially violate applicable
laws, ordinance or rules and regulations of governmental boards and bodies
having jurisdiction.
17. FIRE AND CASUALTY
17.1 Within fifteen (15) days from the date of any fire or casualty
including, without limitation, a force majeure type of event that renders the
Premises untenantable, the Tenant to give Landlord notice of any fire or other
casualty, Landlord shall obtain from its Architect, or if its Architect shall
not be in existence from any AIA architect of reputation in the
office-industrial building field, a certification certifying in his opinion the
time within which the building can be restored and constructed under standard
construction conditions (hereinafter called the "Restoration Time"). Landlord
shall promptly deliver such certification to the Tenant (hereinafter referred to
as "Landlord's Notice"), and in the event the damage be so substantial that the
Building cannot be restored within one hundred twenty(120) days from the date of
such fire or casualty based on the certified Restoration Time hereinabove
referred to, then in that event the Tenant shall have the right within thirty
(30) days after receipt of such notice to advise Landlord that it elects to
terminate the Lease. Except as provided in Section 17.2 hereof, nothing herein
contained, however, shall obligate the Landlord in any event to restore the
Premises and Landlord shall have the right to terminate the Lease at its sole
election in the event the Premises cannot be restored within the one hundred
twenty (120) day period. In the event Landlord or Tenant so elects then tenant
shall surrender the Premises forthwith, provided that Tenant shall continue to
pay pro-rata Annual Basic Rent and Additional Rent for any portion of the
Premises which it continues to occupy and conduct business pending such
surrender of the Premises. Rent shall xxxxx from the date of casualty or
damage with respect to that portion of the Premises the Tenant cannot occupy
for its business purposes until the Premises is restored.
17.2 In the event such damage or casualty can be restored within 120
days then, Landlord shall diligently repair and restore the Premises, Building
and improvements within the Restoration Time and during such Restoration Time
Annual Basic Rent and Additional Rent shall xxxxx proportionately from the date
of such damage or casualty during the period of reconstruction for any portion
of the Premises which Tenant cannot occupy.
17.3. In the event of such fire or casualty as above provided, the
tenant agrees, at its cost and expense, to forthwith remove any and all of its
equipment, fixtures, stock and personal property as the same may be required to
permit Landlord to expedite rebuilding and/or repair. In any event, the Tenant
shall assume at its sole risk the responsibility for damage or security with
respect to such fixtures and equipment in the event the area where the same may
be located has been damaged, until the Building shall be restored and made
secure.
18. COMPLIANCE WITH LAWS, RULES AND REGULATIONS
18.1 The Landlord represents that as of the Commencement Date and
throughout the Term, the Property shall be in good repair and condition and that
there will be substantial and material compliance with all statutes, rules,
ordinances, orders, regulations and requirements of the Federal, State, County
and City Government including without limitation, all environmental laws,
including those referenced in Section 4 hereof, and any and all of their
departments and bureaus applicable to Tenant's use of the Premises and Building,
and also to all rules, orders and regulations of the Board of Fire Underwriters,
or its local equivalent. Landlord shall keep, defend, save and hold harmless the
Tenant for any and all damages and liability arising from the violation of the
above representation by Landlord, any previous owners of the Property, and any
tenant (past or present) (other than Tenant) on the Property.
18.2 (i) Provided there is no abrogation of that which is stipulated in
18.1 above, in which case Landlord shall remain responsible, the Tenant
covenants and agrees that it will, during the Lease Term, promptly, at Tenant's
cost and expense, execute and comply with all statutes, ordinances, rules,
orders, regulations and requirements of the Federal, State, County and City
Government and of any and all their departments and bureaus, applicable to the
Premises.
(ii) Provided there is no abrogation of that which is stipulated in
18.1 above, in which case Landlord shall remain responsible, the Tenant
covenants and agrees, at its own cost and expense, to comply with such
regulations or requests as may be reasonably required by all fire or liability
insurance carriers providing insurance for the Premises, and will further comply
with such other requirements that may be promulgated by the Board of Fire
Underwriters, in connection with Tenant's use and occupancy of the Premises in
the conduct of its business. Tenant reserves the right, at its cost and expense,
to contest any of the foregoing, provided that it will indemnify, defend and
save Landlord harmless from any fine, penalty, imposition of lien as may be
occasioned by such contest.
18.3 In case the Tenant shall fail or neglect to comply with the
aforesaid statutes, ordinances, rules, orders, regulations and requirements or
any of them, or in case the Tenant shall neglect or fail to make any necessary
repairs, then the Landlord or the Landlord's agents (without any obligation upon
the Landlord so to do) may after thirty (30) days' written notice from Landlord
to Tenant, except for emergency repairs which may be made immediately after
notice, enter said Premises (subject to Tenant's reasonable security and safety
requirements) and make said repairs and comply with any and all of the said
statutes, ordinances, rules, orders, regulations or requirements, at the cost
and expense of the Tenant and in case of the Tenant's failure to pay therefor,
the said cost and expense shall be added to the next month's Annual Basic Rent
and be due and payable by Tenant. This provision is in addition to the right of
the Landlord to terminate this Lease by reason of any default on the part of the
Tenant, subject to the rights of the Tenant as hereinabove mentioned in the
manner as in this Lease otherwise provided.
19. COVENANT AGAINST LIENS
Tenant agrees that it shall not encumber the Premises or the Lease by
any lien, charge or encumbrance. The violations of this Article shall be
considered a default by Tenant unless the Tenant removes the lien or bonds
it within thirty (30) days after Tenant receives notice of the lien. After
notice to Tenant, Landlord shall have, in addition to all other remedies
provided herein and by law, the right, but no obligation, to cause the same to
be released by such means as it shall deem proper, including payment of the
claim giving rise to such lien. All such sums paid by Landlord and all expenses
incurred by it in connection therewith, including attorneys' fees and costs,
shall be payable to Landlord by Tenant on demand with interest until paid.
Landlord shall have the right at all times to post and keep posted on the
Premises any notices permitted or required by law, or which Landlord shall deem
proper, for the protection of Landlord and the Premises, and any other party
having an interest therein, from mechanics' and materialmen's liens.
20. QUIET ENJOYMENT
The Landlord further covenants that the Tenant, on paying the Annual
Basic Rent and Additional Rent and performing the covenants and conditions
contained in this Lease, shall and may peaceably and quietly have, hold and
enjoy the Premises for the Term aforesaid.
21. INDEMNITY
21.1 (a) Tenant agrees to indemnify Landlord against and save Landlord
harmless from any and all loss, cost, penalties, fines and reasonable attorneys'
fees and disbursements not covered by Landlords insurance, arising from (i) any
default or breach by Tenant in the observance or performance of any of the
material terms, covenants or conditions of this Lease by Tenant or (ii) any
negligence or willful misconduct of Tenant, its agents, servants, employees
invitees or licensees of Tenant in, on, or about the Premises, or any part of
the Complex during the Term of this Lease. The obligation of Tenant hereunder
shall not be deemed a waiver of subrogation to be obtained as hereinbefore
provided in Article 12.2.
(b) Landlord agrees to indemnify Tenant against and save Tenant
harmless from any and all loss, cost liability, damage, and expense, including
without limitation penalties, fines and reasonable attorneys' fees and
disbursements, incurred in connection with or arising from (i) any default or
breach by Landlord in the observance of the material terms, covenants, or
conditions of this Lease by the Landlord, or (ii) any negligence or willful
misconduct of Landlord, or its contractors, agents, servants, employees,
invitees, or licensees in, on, or about the Premises, or any part of the Complex
during the Term of this Lease.
(c) Notwithstanding the foregoing, and in no event (except for
Landlord's or Tenant's negligence or willful misconduct, unless expressly
defined in this Lease) shall Landlord or Tenant be liable for indirect or
consequential damages of the other (including lost profits) however occurring.
21.2 Except for Landlord's negligence or willful misconduct, Landlord
shall not be liable for injury or damage which may be sustained by the person or
property of Tenant, its employees, invitees or customers, or any other person in
or about the Premises caused by or resulting from fire, steam, electricity, gas,
water or rain, which may leak or flow from or into any part of the Premises, or
from the breakage, leakage, obstruction or other defects of the pipes,
sprinklers, wires, appliances, plumbing, air conditioning, telephone cabling or
wiring, or lighting fixtures of the same, whether the damage or injury results
from conditions arising upon the Premises or upon other portions of the Building
of which the Premises are a part, or from other sources. Neither Landlord or
Tenant shall be liable for any damages arising from any act or neglect of any
other tenant of the Building.
22. DEFAULT BY TENANT
22.1 Each of the following shall be deemed a default by Tenant and
breach of this Lease:
(1) (i) filing of a petition by the Tenant for adjudication as a
bankrupt, or for reorganization, or for any arrangement under any federal or
state insolvency, bankruptcy or similar statute, provided that filing of a
petition against Tenant by other parties with respect to bankruptcy, insolvency,
or otherwise, will be a breach only if the proceedings are not stayed or
dismissed within six (6) months, provided that Annual Basic Rent and Additional
Rent are being paid during said six (6) month period;
(ii) voluntary dissolution of liquidation of the Tenant, except
pursuant to corporate reorganization;
(iii) appointment of a permanent receiver or a permanent trustee
of all or substantially all the property of the Tenant providing the receiver or
trustee is not dismissed within six (6) months.
(iv) taking possession of the property of the Tenant by a
government officer or agency pursuant to statutory authority for dissolution,
rehabilitation, reorganization or liquidation of the Tenant.
(v) making by the Tenant of an assignment for the benefit of creditors.
If any event mentioned in this subdivision (1) shall occur, Landlord may
thereupon or at any time thereafter elect to cancel this Lease by ten (10) days'
notice to the Tenant, and this Lease shall terminate on the day in such notice
specified with the same force and effect as if that date were the date herein
fixed for the expiration of the Term of the Lease.
(2) (i) Default in the payment of the Annual Basic Rent or Additional
Rent herein reserved or any part thereof for a period for ten (10) days after
written notice to Tenant that same is due and payable.
(ii) A default in the performance of any other covenant or condition
of this Lease on the part of the Tenant to be performed for a period of twenty
(20) days after written notice. For purposes of this subdivision (2) (ii)
hereof, no default on the part of Tenant in performance of any covenants or
obligations on the part of Tenant to be performed in accordance with the terms
and conditions of this Lease shall be deemed to exist if steps shall have been
commenced by Tenant within the twenty (20) day notice period after notice to
rectify the same and shall be prosecuted to completion with reasonable
diligence, subject, however, to unavoidable delays.
22.2 In case of any such default under Article 22.1 (2) and at any time
thereafter following the expiration of the respective grace periods above
mentioned, Landlord may serve a notice upon the Tenant electing to terminate
this Lease upon a specified date not less than three (3) days after the date
of serving such notice, provided such notice advises Tenant that the default
may be cured within the said three (3) day period. This Lease shall then expire
on the date so specified as if that date has originally fixed as the expiration
date of the Term herein granted, provided a default under Article 22.1 (2)
hereof shall be deemed waived if such default is made good or cured before the
date specified for termination in the notice of termination served on Tenant.
22.3 In case this Lease shall be lawfully terminated as hereinbefore
provided, or by summary proceedings or otherwise, Landlord or its agents may,
immediately or any time thereafter, re-enter and resume possession of the
Premises or such part thereof, and remove all persons and property therefrom,
either by summary proceedings or by a suitable action or proceeding at law,
without being liable for any damages therefor. No re-entry by Landlord shall be
deemed an acceptance of a surrender of this Lease.
22.4 In case this Lease shall be terminated as hereinafter provided, or
by summary proceedings or otherwise, Landlord shall use its best efforts, in its
own name and in its own behalf, to relet the whole or any portion of the
Premises, for any period equal to or greater or less than the remainder of the
then current Term, for any sum which is commercially reasonable, to any tenant
which it may deem suitable and satisfactory, and for any use and purpose which
it may deem appropriate, and in connection with any such Lease Landlord may
make such changes in the character of the improvements on the Premises as
Landlord may determine to be appropriate or helpful in effecting such lease
and may grant commercially reasonable concessions or free rent. Landlord agrees
that it shall undertake reasonable steps to mitigate Tenant's damages hereunder.
Landlord shall not in any event be required to pay Tenant any surplus of any
sums received by Landlord on a reletting of the Premises in excess of the Annual
Basic Rent reserved in this lease, but all said sums shall be credited toward
Tenant's obligations occasioned pursuant to this Article 22.
22.5 (1) In case this Lease be terminated by summary proceedings or
otherwise as provided in this Article 22, and whether or not the Premises be
relet, Landlord shall be entitled to recover from the Tenant, the following:
(i) a sum equal to all reasonable expenses, if any, including
reasonable counsel fees, incurred by Landlord in recovering possession of the
Premises, and all reasonable costs and charges for the care of said Premises
while vacant, which damages shall be due and payable by Tenant to Landlord at
such time or times as such shall have been incurred by Landlord;
(ii) a sum equal to all damages set forth in this Article 22 and in
Article 23 hereinafter referred to; and
(iii) such other relief as the law may allow.
(2) Separate actions may be maintained by Landlord against Tenant
from time to time to recover any damages which, at the commencement of any such
action, have then or theretofore become due and payable to the Landlord under
this Article 22 and subsections hereof without waiting until the end of the
then current Term, including such action for anticipatory breach or such other
remedies available to Landlord in law or in equity. Any action taken by Landlord
hereunder shall not be deemed a waiver of any other right or remedy which
Landlord may have in law or in equity.
(3) All sums which Tenant has agreed to pay by way of taxes, sewer
charges, water rents or water meter charges, insurance premiums and other
similar items becoming due from time to time under the terms of this Lease shall
be deemed Additional Rent reserved in this Lease within the meaning of this
Article 22 and subsections hereof.
23. LIABILITY OF TENANT FOR DEFICIENCY
In addition to Landlord's rights heretofore provided in Article 22, in
the event that the relation of the Landlord and Tenant may cease or terminate by
reason of the default by the Tenant and the reentry of the Landlord as permitted
by the terms and conditions contained in this Lease or by the ejectment of the
Tenant by summary proceedings or other judicial proceedings, it is hereby agreed
that the Tenant shall remain liable to pay in monthly payments the Annual Basic
Rent and Additional Rent which shall accrue subsequent to the reentry by the
Landlord, and the Tenant expressly agrees to pay as damages for the breach of
the covenants herein contained the difference between the Annual Basic Rent and
Additional Rent reserved and the then Fair Market Rental Value of the Premises
or actual rent collected and received, if any, by the Landlord, during the
remainder of the unexpired Term, as the amount of such difference or deficiency
shall from time to time be ascertained.
24. LANDLORD'S REMEDIES
24.1. The rights and remedies given to the Landlord in this Lease are
distinct, separate and cumulative remedies, and no one of them, whether or not
exercised by the Landlord, shall be deemed to be in exclusion of any of the
others.
24.2 In addition to any other legal remedies for violation or breach by
or on the part of the Tenant or by any undertenant or by anyone holding or
claiming under the Tenant or any one of them, of the restrictions, agreements or
covenants of this Lease on the part of the Tenant to be performed or fulfilled,
such violation or breach shall be restrainable by injunction at the suit of the
Landlord.
24.3. No receipt of money by the Landlord from any receiver, trustee or
custodian or debtors in possession shall reinstate, continue or extend the Term
of this Lease or affect any notice theretofore given to the Tenant, or to any
such receiver, trustee, custodian or debtor in possession, or operate as waiver
or estoppel of the right of the Landlord to recover possession of the Premises
for any of the causes therein enumerated by any lawful remedy; and the failure
of the Landlord to enforce any covenant or condition by reason of its breach by
the Tenant shall not be deemed to void or affect the right of the Landlord to
enforce the same covenant or condition on the occasion of any subsequent default
or breach.
25. NOTICES
All notices required or permitted to be given to the Landlord or Tenant
shall be given by certified mail, return receipt requested, or by reputable
overnight courier or via facsimile if confirmed within ten (10) days by receipt
f hardcopy at the Notice Address, and/or such other place as the Landlord
or Tenant may designate in writing, and shall be deemed given upon the date of
delivery as evidenced by the postal receipt or facsimile confirmation slip.
26. NON-WAIVER
The failure of a party to insist upon strict performance of any of the
covenants or conditions of this Lease, or to exercise any option of such party
herein conferred in any one or more instances, shall not be construed as a
waiver by such party of any of its rights or remedies in this Lease, and shall
not be construed as a waiver, relinquishment or failure of any such covenants,
conditions, or options, but the same shall be and remain in full force and
effect. Any waiver, relinquishment or failure by a party to insist upon
strict performance of any of the covenants or conditions of this Lease shall
also not operate as a waiver of any past breaches.
27. RIGHT OF TENANT TO MAKE ALTERATIONS AND IMPROVEMENTS
27.1 The Landlord and Tenant agree that Tenant shall not have the right
to make any alterations, additions or improvements (all hereinafter referred to
as "Alterations") to the Premises during the term of the Lease, except with the
express prior written consent of the Landlord, which consent Landlord shall not
unreasonably withhold or delay.
27.2 If Landlord consents to Tenant's request to make alterations,
additions or improvements to the Premises, Landlord shall inform Tenant at the
time of its approval whether Landlord will require the requested improvements to
be removed at the end of the Term, and, it is understood and agreed that the
same shall be construed in accordance with the following express terms and
conditions:
(i) Tenant shall submit to Landlord for prior approval copies of its
proposed plans in connection with the work to be performed, the approval of
which plans shall not be unreasonably withheld or delayed by Landlord, provided
that the structural integrity of the Premises shall not be materially lessened
by reason thereof, nor the Building systems be impaired;
(ii) such work shall be installed and completed in a good and
workmanlike manner in compliance with all applicable laws, rules, regulations
and ordinances, and the specifications for such work shall equal or exceed the
specifications for the original construction of the improvements under this
Lease, taking into consideration any changes in construction practices and
technology which may exist at the time of the Alterations;
(iii) Tenant shall have procured and paid for all permits and
licenses required in connection therewith; and
(iv) during the period when the Alterations are being made, Tenant shall
maintain or require its contractors to maintain public liability insurance with
respect to any Alterations in the minimum amount ONE MILLION ($1,000,000.00)
DOLLARS per occurrence.
27.3 Notwithstanding the provisions of Section 27.1 hereof, Tenant may
make Non-Structural Tenant Alterations (hereinafter defined) to the Premises
without the prior written consent of Landlord, provided Tenant complies with
Articles 27.2 (ii) through (iv). For the purposes of this Article 27.2,
Non-Structural Tenant Alterations shall be deemed to be any work which (i) does
not affect or alter the outside appearance, or the strength of the Building
including the foundation, the roof, and the columns and beams (ii) would not
require Tenant interference with primary Building systems and core areas of the
Building, and (iii) would not impair or diminish existing Building systems or
equipment, including but not limited to HVAC, electrical, structural, plumbing
or other systems.
27.4 Landlord conditions its consent to the Tenant Alterations on
Tenant, at the end of the Term or earlier termination of this Lease, either (i)
restoring the Premises to its condition immediately prior to the work, or (ii)
paying for the cost of restoration as reasonably estimated by Landlord. Landlord
shall not require restoration for any Tenant Alterations unless such work
materially diminishes the value of the Premises. It shall be Tenant's option
whether it shall perform the work pursuant to clause (i) hereof or pay the
Landlord the estimated cost of same pursuant to clause (ii) hereof.
27.5 Tenant shall have no obligation for any restoration or removal
under any of the following circumstances:
(i) any Non-Structural Tenant Alteration or;
(ii) any work performed by Landlord or Tenant prior to the
Commencement Date; or
(iii) if Landlord does not require removal at the time it approves
Tenant's plans.
27.6 Tenant may, at its own cost and expense, without Landlord's
consent, install, replace or remove any fixtures, trade fixtures, machinery, and
equipment (all hereinafter referred to as "Trade Fixtures"). Any such Trade
Fixtures shall not become the property of Landlord other than replacement of
Trade Fixtures which were the property of, and were originally installed by
Landlord. Tenant shall, at the Lease Expiration Date, remove all, or any part
of such Trade Fixtures and repair any damage occasioned by such removal.
27.7 Nothing herein contained shall be construed as a consent on the
part of the Landlord to subject the estate of the Landlord to liability under
the Mechanic's Lien Law of the State of New Jersey, it being expressly
understood that the Landlord's estate shall not be subject to such liability.
28. WARRANTY OF TITLE
Landlord represents that it has good and marketable fee simple title to
the Premises which are the subject of this Lease, and that it has the full
right, capacity and authority to enter into the within Lease agreement.
29. EASEMENTS
Without any obligation on the part of the Landlord so to do, Landlord
reserves the right, easement and privilege to enter on the Premises in order to
install, at its own cost and expense, any storm drains and sewers and/or utility
lines or service in connection therewith as may be required by the Landlord in
connection with service of the Premises. It is understood and agreed that if
such work as may be required by Landlord requires an installation which may
displace any paving, lawn, seeded area or shrubs, the Landlord, shall, at
its own cost and expense, as condition of Landlord's rights hereunder, restore
said paving, lawn seeded area or shrubs. The Landlord covenants that the
foregoing work shall not interfere with the normal operation of Tenant's
business.
30. AIR, WATER, TOXIC WASTE AND GROUND POLLUTION
30.1 The Tenant expressly covenants and agrees to indemnify, defend,
and save the Landlord harmless against any claim, damage, liability, costs,
penalties, or fines which the Landlord may suffer as a result of air,
water, topic waste or ground pollution caused by the Tenant in its use of the
Premises during the term. The Tenant covenants and agrees to notify the
Landlord immediately of any claim or notice served upon it with respect to any
such claim that the Tenant is causing air, water, topic waste or ground
pollution; and the Tenant, in any event, will take immediate steps to halt,
remedy or cure any pollution of air, water, topic waste or ground caused by the
Tenant by its use of the Premises. Tenant's use of the Premises is not subject
to ISRA, and Tenant's use of the Premises will not cause the Premises to be
subject to ISRA. If, in the future, Tenant's use of the Premises becomes, or
causes the Premises to become subject to ISRA, Tenant agrees that it will,
at the expiration of the Lease Term, comply at its own cost and expense with
the requirements of ISRA or equivalent act, as the same may be applicable to the
use and occupancy by Tenant of the Premises. Tenant, however, shall not be
responsible for any hazardous or toxic material or condition not occasioned
by Tenant in connection with its use and occupancy of the Premises. The
foregoing covenant shall survive the expiration or termination of the within
Lease. Tenant shall be responsible for and shall indemnify Landlord for any
damages excluding indirect, or consequential damages occasioned by Landlord as
a result of Tenant's failure to effectuate ISRA, if applicable, or other
environmental law compliance hereunder.
30.2 Landlord represents and warrants that any handling, transportation,
storage, treatment or use of hazardous or toxic material that have occurred on
the Premises or the property prior to the Commencement Date have been in
compliance with all applicable federal, state, and local laws, regulations and
ordinances; that to best of Landlord's knowledge, no leak, spill, release,
discharge, emission or disposal of hazardous or toxic material has occurred on
the Premises or the property prior to the Commencement Date; that the soil,
groundwater, and soil vapor on or under the Premises or the property are free of
hazardous or toxic materials as of the Commencement Date and that to the best of
Landlord's knowledge as of the Commencement Date the Premises or the Project do
not contain any asbestos, PCBs or underground storage tanks.
30.3 Landlord agrees to indemnify, defend and hold Tenant and its
officers, employees and agents harmless from any claims, judgments, damages,
penalties, fines, costs, liabilities (including sums paid in settlements of
claims) or loss including, without limitation, reasonable attorneys' fees,
consultant fees, and expert fees which arise during or after the term of this
Lease from or in connection with the presence or suspected presence of hazardous
or toxic material in the soil, groundwater or soil vapor on or under the
Premises or the property, or Landlord's breach of Article 30.2, unless the
hazardous or toxic materials is the responsibility of Tenant under this Lease.
This indemnity shall survive the expiration or earlier termination of this
Lease.
31. STATEMENT OF ACCEPTANCE
Upon the delivery of the Premises to the Tenant pursuant to the terms
and conditions of this Lease, the Tenant covenants and agrees that at Landlord's
request, it will acknowledge in writing that it accepts the Premises and agrees
to pay Annual Basic Rent from the Commencement Date, subject to the terms and
conditions of the Lease as herein contained.
32. FORCE MAJEURE
Except for the obligation of the Tenant to pay Annual Basic Rent and
Additional Rent as in this Lease provided, the period of time during which the
Landlord or Tenant is prevented from performing any act required to be performed
under this Lease by reason of fire, catastrophe, strikes, lockouts, civil
commotion, acts of God or the public enemy, government prohibitions or
preemptions, embargoes, inability to obtain material or labor by reason of
governmental regulations or prohibitions, or the act or default of the other
party, shall be added to the time for performance of such act. In order to
invoke the benefits of this Article 32, notice shall be given in writing to the
other party invoking the benefits hereunder within 10 days after the occurrence
of any event claimed to have caused delay hereunder.
33. CONDEMNATION
33.1 If due to condemnation or taking or seizure by any authority having
the right of eminent domain (i) a portion of the Building or Property is taken
which taking shall unreasonably or unduly interfere with the use of the Demised
Premises (as certified by Tenants Board of Directors), Property, or Building by
Tenant; or (ii) access to the Demised Premises be denied; then and in either of
such events as hereinabove provided, the Lease Term created shall, at the
option of the Tenant, terminate, cease and become null and void from the date
when the authority exercising the power of eminent domain takes or interferes
with the use of the Building. Landlord also agrees that it will, to the extent
practicable and available, restore the Premises taken, subject to compliance
with existing zoning regulations and engineering feasibility. Landlord also
agrees that if Tenant does not cancel the Lease as herein permitted, Landlord
will use its good faith efforts to replace the parking spaces to reasonable
contiguity to the Premises. The Tenant shall only be responsible for the
payment of Annual Basic Rent until the time of surrender. In any event,
no part of the Landlord's condemnation award shall belong to or be claimed by
the Tenant. Without diminishing Landlord's award, the Tenant shall have the
right to make a claim against the condemning authority for such independent
claim which it may have and as may be allowed by law, for costs and damages
due to relocating, personal property losses, moving and other similar costs and
charges directly incurred by the Tenant and resulting from such condemnation.
33.2 In the event of any partial taking which would not be cause for
termination of the within Lease and a taking which would be cause for
termination, but in which event the Tenant shall elect to retain the balance
of the Premises remaining after such taking, then and in either event, the
Annual Basic Rent shall xxxxx in an amount to be mutually agreed upon between
the Landlord and Tenant based on the relationship that the character of the
property taken bears to the property which shall remain after such condemnation.
In any event, no part of the Landlord's condemnation award shall belong to or be
claimed by the Tenant. However, the Landlord shall, to the extent permitted by
applicable law and as the same may be practicable on the site of the Premises,
at the Landlord's sole cost and expense, promptly make such repairs and
alterations in order to restore the Building and/or improvements to the extent
of the condemnation award, which restoration shall be made in the same manner
and in accordance with the same time periods hereinbefore provided in Article
17. In the event there is any dispute as to the amount of rent abatement, the
same shall be submitted to the American Arbitration Association for binding
determination at the equal administrative cost of Landlord and Tenant.
34. SURRENDER OF PREMISES
On the last day, or earlier permitted termination of the Lease Term,
Tenant shall quit and surrender the Premises in good and orderly condition and
repair (reasonable wear and tear, and damage by fire or other casualty
excepted), and shall deliver and surrender the Premises to the Landlord
peaceably, together with all alterations, additions and improvement in, to or on
the Premises made by Tenant as permitted under the Lease. Prior to the
expiration of the Lease Term the Tenant shall remove all of its property,
fixtures, equipment and trade fixtures from the Premises. All property not
removed by Tenant shall be deemed abandoned by Tenant, and Landlord reserves
the right to charge the reasonable cost of such removal to the Tenant,
which obligation shall survive the Lease termination and surrender hereinabove
provided. Tenant shall be responsible to repair and/or replace any portion of
the Premises damaged, or which may require restoration occasioned by such
removal. If the Premises be not surrendered within sixty (60) days after the
end of the Lease term, Tenant shall indemnify Landlord against loss or liability
resulting from such delay by Tenant in surrendering the Premises, including,
without limitation any claims made by any succeeding tenant founded on the
delay, provided Tenant is given at least 15 days notice of such Tenant's
planned occupancy. Without limiting Tenant's liability as hereinabove
referred to, in the event surrender is delayed by Tenant. Tenant shall pay to
Landlord a sum equal to one hundred twenty five (125%) percent of the Annual
Basic Rent and 100% of the Additional Rent payable monthly prior to the
expiration of the Lease Term, prorated per diem for the holdover term. All
Annual Basic Rent and Additional Rent adjustments and executory covenants
as in the Lease provided shall survive the Lease termination and surrender of
the Premises in accordance with their terms.
35. SHORT FORM LEASE
It is understood between the parties hereto that this Lease will not be
recorded, but that if requested by either party a short form of lease,
describing the property leased hereby, giving the Term of this Lease, and
making particular mention of any special clauses as herein contained, will be
recorded in accordance with the laws governing and regulating the recording of
such documents in the State of New Jersey.
36. LEASE CONSTRUCTION
This Lease shall be construed pursuant to the laws of the State of New
Jersey. This Lease shall be construed according to its plain meaning as if
prepared by both of the parties hereto.
37. BIND AND INURE CLAUSE
The terms, covenants and conditions of the within Lease shall be binding
upon and inure to the benefit of each of the parties hereto, their respective
executors, administrators, heirs, successors and assigns, as the case may be.
38. DEFINITIONS
The neuter gender, when used herein and in the acknowledgment hereafter
set forth, shall include all persons and corporations, and words used in the
singular shall include words in the plural where the text of the instrument so
requires.
39. DEFINITION OF TERM OF "LANDLORD"
When the term "Landlord" is used in this Lease it shall be construed to
mean and include only the owner of the fee title of the Premises. Upon the
transfer by the Landlord of the fee title hereunder, the Landlord shall
advise the Tenant in writing by certified mail, return receipt requested, of the
name of the Landlord's transferee. In such event, the then Landlord shall be
automatically freed and relieved from and after the date of such transfer of
title of all personal liability with respect to the performance of any of the
covenants and obligations on the part of the Landlord herein contained to be
performed, after the date of such transfer, provided any such transfer and
conveyance by the Landlord is expressly subject to the assumption in writing
by the grantee or transferee of the obligations of the Landlord to be performed
pursuant to the terms and conditions of the within Lease after the date of
transfer of title.
40. SUBORDINATION AND NON-DISTURBANCE
40.1 This Lease shall be subject and subordinate at all times to the
lien of any mortgages or ground rents or other encumbrances now or hereafter
placed on the Premises without the necessity of any further instrument or act
on the part of Tenant to effectuate such subordination. Tenant covenants and
agrees to execute and deliver upon demand such instrument or instruments
evidencing such subordination of the Lease to the lien of any such mortgage or
ground rent or other encumbrances as shall be desired by a mortgagee or proposed
mortgagee.
40.2 Within thirty (30) days after the execution of this Lease,
Landlord shall use reasonable efforts to obtain and deliver to Tenant from any
present mortgagee, trustee, fee owner, prime lessor or any person having an
interest in the building superior to this Lease ("Superior Interest") a written
nondisturbance agreement in recordable form providing that so long as Tenant
performs all of the terms, covenants and conditions of this Lease and agrees
to attorn to the holder of the Superior Interest, Tenant's rights under this
Lease shall not be disturbed and shall remain in full force and effect for the
Term, and Tenant shall not be named or joined by the holder of the Superior
Interest in any action or proceeding to foreclose thereunder. Tenant's agreement
to subordinate its Lease to any future Superior Interest is conditioned upon
Landlord furnishing a nondisturbance agreement in accordance with Article 40.
Landlord represents that as of the date of this Lease Landlord owns 100% of the
fee simple title to the Property.
41. AUTHORITY
Landlord and Tenant, by their respective signatories, do hereby warrant
one to the other that the parties executing the within Lease have the full
authority to execute the within Lease and the bind Landlord and Tenant
respectively.
42. BROKERAGE
Landlord and Tenant mutually represent one to the other that neither
party dealt with any brokers in connection with the initiation, negotiation and
consummation of the within Lease transaction.
43. SECURITY
Upon execution of this Lease, the Tenant shall deposit an amount equal
to one (1) months Basic Rent and Tenant Electric with the Landlord being the sum
of Thirty Thousand Six Hundred Ninety and 25/100 Dollars ($30,690.25) as
security for the full and faithful performance of this Lease upon the part of
the Tenant to be performed. Upon termination of this Lease, and providing the
Tenant is not in default hereunder and has performed all of the conditions of
this Lease, the Landlord shall return the said security to the Tenant plus all
interest that accrues thereon. Anything herein contained to the contrary
notwithstanding, it is expressly understood and agreed that the said security
deposit shall bear interest. Landlord and Tenant covenant and agree that each
will not assign, pledge, hypothecate, mortgage or otherwise encumber the
aforementioned security during the term of this lease. Whenever under this Lease
the Basic Rent shall be increased, Tenant shall deposit with Landlord such
additional sums as shall increase the amount of security held by Landlord so
as to make it equal to one (1) months of then prevailing Basic Rent. Landlord
shall deposit the security funds in a separate interest bearing account to
the benefit of Tenant less one percent (1%) for Landlords administrative costs.
44. FINANCIAL STATEMENTS
Tenant agrees that it will furnish to Landlord upon Landlord's request
its latest financial statements which Landlord may require and if such financial
statements are not available, furnish to Landlord its latest financial statement
certified by an executive officer of the Tenant. Such request, however, shall
not be made more than once in any calendar year, except if specifically required
for any financing or refinancing of the Land and Building of which the Premises
are a part. Any statements furnished hereunder shall be subject to a letter of
confidentiality to be issued by the person requesting such statement.
45. EXCULPATION OF LANDLORD
Neither Landlord nor its principals shall have any personal obligation
for payment of any indebtedness or for the performance of any obligation under
this lease but the payment of the indebtedness and the performance of
obligations expressed herein may be enforced only against the Premises, and
the rents, issues and profits thereof, and the Tenant agrees that no deficiency
judgment or other judgment for money damages shall in any event be entered by
it against the Landlord or its principals personally in any action; provided,
however, that the provisions of this Article shall in no way affect Tenant's
other remedies for the payment of any indebtedness or for the enforcement of
Landlord's covenants under this Lease.
46. MORTGAGEE NOTICE CLAUSE
Tenant agrees to give any mortgagee of which Tenant has notice (in
accordance with Article 25 hereof), a copy of any Notice of Default served upon
the Landlord by Tenant provided that prior to such notice Tenant has been
notified, in writing, (by way of Notice of Assignment of Rents and Leases, or
otherwise) of the name and address of such mortgagees. Tenant further agrees
that if Landlord shall have failed to cure such default within the time provided
for in this lease, then the Mortgagees 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 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, but Tenant shall otherwise be entitled to all other remedies
specified herein.
47. RULES
Tenant shall comply with the rules and regulations annexed hereto and
made a part hereof as Exhibit D. The Landlord reserves the right to adopt, amend
or repeal, from time to time, reasonable rules and regulations (the "Rules")
concerning the use and occupancy of the Demised Premises, which shall be
applicable to all tenants of the Building. Notice of the Rules, if any, shall
be given to the Tenant, in writing.
48. OPTION TO RENEW
Tenant shall have two options to renew the Term of this Lease as
follows:
48.1 First Renewal Option.
Provided the Tenant is not in default pursuant to the terms and
conditions of this Lease at the time of renewal notice and as of date of
commencement of renewal term, the Tenant is hereby given the right and privilege
to renew the within Lease for an additional one (1) year period, to commence at
the end of the initial Term (the First Renewal Period"), which renewal shall be
on all the same terms and conditions as during the original Term, including,
without limitation, there shall be no change in the rent.
In order to exercise its option for the First Renewal Period, Tenant
must give Landlord notice of its intent to renew, in writing, in accordance
with the provisions of Article 25 hereof, no later than three (3) months prior
to the expiration of the original Term of this Lease.
48.2 Second Renewal Option
Provided the Tenant is not in default pursuant to the terms and
conditions of this Lease at the time of renewal notice and as of the date of
commencement of the second renewal term, the Tenant is hereby given the right
and privilege to renew the within Lease for an additional one (1) year period,
to commence at the end of the First Renewal Period, which renewal shall be at
the then current Fair Market Value for Xxxxxx Xxxx, NJ and the Interstate 78/287
Interchange Market, but not less than the rate Tenant is currently paying.
48.3
The aforesaid calculation shall be submitted by Landlord to Tenant
within ten (10) days after Landlord's receipt of Tenant's second renewal notice.
If Tenant agrees with Landlord's calculation of the Fair Market Rent for the
Premises, the calculation shall be submitted as an addendum to this Lease. If
Tenant does not agree with Landlord's calculation, Tenant may rescind its second
renewal notice no later than two months prior to the end of the First Renewal
Period, and this Lease shall then terminate as of the end of the First Renewal
Period. It is agreed that if the rental increase calculation shall not have
been made at the time of commencement of the second renewal term, Tenant shall
continue to pay the rent applicable at the end of the First Renewal Period,
provided however, that upon the giving of notice by Landlord to Tenant of the
adjustment of rental calculated as aforesaid, the amount of any increase of
rent shall be due upon demand by Landlord retroactively for any months of the
second renewal term as to which such increased rental shall not have been paid
and the adjusted rent shall thereafter be paid at the regular times for payment
of the basic rent.
48.4
Tenant shall also pay Additional Rent in the same manner as required
in Article 1 G (ii), which payment of Annual Basic Rent and Additional Rent
in the same manner as required and in accordance with Article 6.
48.5
The right, option, and privilege of the Tenant to renew this Lease for
a second renewal period as hereinabove set forth is expressly conditioned upon
the Tenant delivering to the Landlord, in writing, in accordance with the
provisions of Article 25 hereof, notice of its intention to renew, which notice
shall be given to the Landlord by the Tenant no later than three (3) months
prior to the date fixed for termination of the First Renewal Period.
49. THIRD PARTY LITIGATION
Should Landlord, without fault on Landlord's part, be made a party to
any litigation instituted by Tenant or by any third party against Tenant, or by
or against any person holding under or using the Premises by license of Tenant,
or for the foreclosure of any lien for labor or material furnished to or for
Tenant or any such other person or otherwise arising out of or resulting from
any act or transaction of Tenant or of any such other person, Tenant covenants
to save and hold Landlord harmless from any judgment rendered against Landlord
or the Premises or any part thereof, and all costs and expenses, including
reasonable attorney's fees, incurred by Landlord in or in connection with
such litigation.
50. INVALIDITY OF PARTICULAR PROVISIONS
Wherever in this Lease any portion or part thereof has been stricken
out, whether or not any relative provision has been added, this Lease shall
be read and construed as if the material so stricken were never included herein
and no implication shall be drawn from the text of the material so stricken
which would be inconsistent in any way with the construction or interpretation
which would be appropriate if such material were never contained herein.
51. COST OF PERFORMING OBLIGATIONS
Unless otherwise specified, the respective obligations of the parties to
keep, perform and observe the terms, covenants or conditions of this Lease shall
be at the sole cost and expense of the party so obligated.
52. MODIFICATION
This Lease may not be modified except by an instrument in writing signed
by the parties hereto.
53. INTEGRATION
The agreements contained in this Lease constitute the full and final
agreement between the parties hereto as to the subject matter hereof, and all
prior agreements or writings of any nature between the parties hereto are
hereby superseded and are integrated herein.
54. WAIVER OF JURY TRIAL
The parties waive the right to a jury trial with respect to any action,
including any action for damage or injury arising out of this Lease or Tenant's
use or occupancy of the Premises.
55. ARBITRATION
Any arbitration for which provision is made herein shall be conducted in
accordance with the then prevailing rules of the American Arbitration
Association. The parties shall each appoint an arbiter within fifteen (15)
business days after receiving the list of available arbiters. The two (2)
arbitrators shall select a third arbiter within fifteen (15) days after the
selection of the first two and a simple majority of two arbitrators will
prevail. The arbitrators' determination shall be binding upon Landlord and
Tenant. Any arbiter provided for herein shall have had at least ten (10)
years experience with commercial real estate leases.
The fees and expenses of the arbitrator(s) shall be divided equally
between Landlord and Tenant. Landlord and Tenant shall each bear their own
expenses (including, but not limited to, attorney's fees and expenses of
witnesses) in any arbitration proceeding. The arbitration proceeding shall be
held in Xxxxxx Hill, New Jersey.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
or caused these presents to be signed by its proper corporate officers and
caused its proper corporate seal to be hereunto affixed, the day and year first
above written.
WITNESS:
"K" LINE REALTY (N.J.) INC.
/s/ Xxxxxx X. Xxxxxxx /s/
By: Xxxxxxx X. Xxxxx
Executive Vice President
Landlord
WITNESS:
MCC CORPORATION
/s/ Xxxxxxx Xxxxx /s/
By: Xxxxxx Xxxxxxx
President
Tenant
STATE OF NEW JERSEY )
) SS:
COUNTY OF Middlesex)
BE IT REMEMBERED, that on this 31st day of May, 1996, before me, the
subscriber, personally appeared. Xxxxxxx X. Xxxxx, who, I am satisfied, is the
person who signed the within Instrument, as the Executive Vice President of the
Landlord named therein, and he thereupon acknowledged that he signed, sealed
and delivered the same as his act and deed for the uses and purposes therein
expressed.
/s/ Xxxxxx Xxxxxx
NOTARY PUBLIC OF NEW JERSEY
My Commission expires Aug. 15, 0000
XXXXX XX XXX XXXXXX )
) SS:
COUNTY OF Union )
BE IT REMEMBERED, that on this 31st day of May, 1996 before me, the
subscriber, personally appeared Xxxxxx Xxxxxxx, who I am satisfied, is the
person who signed the within Instrument as President of the Tenant named
therein, and he thereupon acknowledged that the said instrument made by the
corporation and sealed with its corporate seal, was signed, sealed with the
corporate seal and delivered by him as such officer and is the voluntary act
and deed of the corporation, made by virtue of authority from its Board of
Directors.
/s/ Xxxxxxx X. Xxxx
NOTARY PUBLIC OF NEW JERSEY
Commission expires Feb. 28, 2001
