AGREEMENT OF LEASE Between ALLWOOD ASSOCIATES I, As Landlord And COLUMBIA LABORATORIES, INC., As Tenant Dated: July 6, 2007
AGREEMENT
OF LEASE
Between
XXXXXXX
ASSOCIATES I,
As
Landlord
And
COLUMBIA
LABORATORIES, INC.,
As
Tenant
Dated:
July 6, 2007
TABLE
OF CONTENTS
|
DEFINITIONS
|
5
|
|
ADDITIONAL
RENT
|
5
|
|
BASIC
RENT
|
5
|
|
BROKER
|
5
|
|
BUILDING
|
5
|
|
BUILDING
HOLIDAY
|
5
|
|
COMMENCEMENT
DATE
|
5
|
|
CONTROL
|
5
|
|
EXCUSABLE
DELAY
|
5
|
|
GOVERNMENTAL
AUTHORITY
|
6
|
|
LEASE
YEAR
|
6
|
|
PARKING
SPACES
|
6
|
|
PREMISES
|
6
|
|
REAL
PROPERTY
|
6
|
|
RENTABLE
AREA OF THE BUILDING
|
6
|
|
RENTABLE
AREA OF THE PREMISES
|
6
|
|
SECURITY
DEPOSIT
|
6
|
|
STRUCTURAL
REPAIRS
|
6
|
|
TENANT
DELAY
|
6
|
|
TENANT’S
PROPORTIONATE SHARE
|
6
|
|
TERM
|
6
|
|
TERMINATION
DATE
|
7
|
|
ARTICLE
I
|
7
|
|
1.
RENT
|
7
|
|
ARTICLE
II
|
7
|
|
2.
USE
|
7
|
|
ARTICLE
III
|
8
|
|
3.
LANDLORD’S WORK
|
8
|
|
ARTICLE
IV
|
8
|
|
4.
ACCEPTANCE
|
8
|
|
ARTICLE
V
|
9
|
|
5.
COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS
|
9
|
|
ARTICLE
VI
|
9
|
|
6.
PERSONAL PROPERTY TAXES
|
9
|
|
ARTICLE
VII
|
9
|
|
7.1
ADDITIONAL RENT
|
9
|
|
7.2
REAL ESTATE TAXES
|
9
|
|
7.3
LANDLORD'S OPERATING EXPENSES
|
10
|
|
7.4
LANDLORD'S STATEMENTS
|
12
|
|
ARTICLE
VIII
|
12
|
|
8.
RULES AND REGULATIONS
|
12
|
|
ARTICLE
IX
|
13
|
|
9.
LANDLORD'S RIGHT OF ENTRY
|
13
|
|
ARTICLE
X
|
13
|
|
10.1
MAINTENANCE BY TENANT
|
13
|
|
10.2
MAINTENANCE BY XXXXXXXX
|
00
|
|
XXXXXXX
XX
|
00
|
|
00.
ALTERATIONS OR IMPROVEMENTS BY TENANT
|
14
|
|
ARTICLE
XII
|
15
|
|
12.
ASSIGNMENT AND SUBLETTING
|
15
|
|
ARTICLE
XIII
|
17
|
|
13.
SURRENDER
|
17
|
|
ARTICLE
XIV
|
17
|
|
14.
HOLDING OVER
|
17
|
|
ARTICLE
XV
|
18
|
|
15.1
LANDLORD'S SERVICES
|
18
|
|
|
-2-
|
15.2
ELECTRICITY
|
18
|
|
ARTICLE
XVI
|
19
|
|
16.
QUIET ENJOYMENT
|
20
|
|
ARTICLE
XVII
|
20
|
|
17.
AIR AND LIGHT
|
20
|
|
ARTICLE
XVIII
|
20
|
|
18.
DEFAULT
|
20
|
|
ARTICLE
XIX
|
20
|
|
19.
LANDLORD'S RIGHTS UPON TENANT'S DEFAULT
|
20
|
|
ARTICLE
XX
|
22
|
|
20.
LANDLORD'S REMEDIES CUMULATIVE:EXPENSES
|
22
|
|
ARTICLE
XXI
|
23
|
|
21.
SUBORDINATION, ESTOPPEL AND ATTORNMENT
|
23
|
|
ARTICLE
XXII
|
23
|
|
22.
DAMAGE BY FIRE OR OTHER CASUALTY
|
24
|
|
ARTICLE
XXIII
|
24
|
|
23.
MUTUAL WAIVER OF SUBROGATION CASUALTY
|
24
|
|
ARTICLE
XXIV
|
24
|
|
24.
CONDEMNATION
|
24
|
|
ARTICLE
XXV
|
25
|
|
25.
CHANGES SURROUNDING BUILDING
|
25
|
|
ARTICLE
XXVI
|
25
|
|
26.
NOTICES
|
25
|
|
ARTICLE
XXVII
|
25
|
|
27.
NO WAIVER
|
25
|
|
ARTICLE
XXVIII
|
26
|
|
28.
LANDLORD'S RESERVED RIGHTS
|
26
|
|
ARTICLE
XXIX
|
26
|
|
29.
LANDLORD'S LIABILITY
|
26
|
|
ARTICLE
XXX
|
26
|
|
30.
TENANT'S LIABILITY
|
26
|
|
ARTICLE
XXXI
|
27
|
|
31.
TENANT'S INSURANCE
|
27
|
|
ARTICLE
XXXII
|
27
|
|
32.
MECHANICS' LIENS
|
27
|
|
ARTICLE
XXXIII
|
27
|
|
33.
NOTICE OF FIRE AND ACCIDENTS
|
27
|
|
ARTICLE
XXXIV
|
27
|
|
34.
RELEASE OF LANDLORD
|
27
|
|
ARTICLE
XXXV
|
28
|
|
35.
USE OF SECURITY DEPOSIT
|
28
|
|
ARTICLE
XXXVI
|
28
|
|
36.
DIRECTORY
|
28
|
|
ARTICLE
XXXVII
|
28
|
|
37.
HAZARDOUS WASTE, AIR, WATER AND GROUND POLLUTION
|
28
|
|
ARTICLE
XXXVIII
|
29
|
|
38.1
ISRA COMPLIANCE
|
29
|
|
38.2
CONDITION PRECEDENT TO ASSIGNMENT AND SUBLEASE
|
29
|
|
ARTICLE
XXXIX
|
30
|
-3-
|
|
|
|
39.
TENANT RELOCATION
|
30
|
|
ARTICLE
XL
|
30
|
|
40.
OPTION TO RENEW
|
30
|
|
ARTICLE
XLI
|
31
|
|
41.
MISCELLANEOUS
|
31
|
|
41.1
ENTIRE AGREEMENT
|
31
|
|
41.2
JURY TRIAL WAIVER
|
32
|
|
41.3
FORCE MAJEURE
|
32
|
|
41.4
BROKER
|
32
|
|
41.5
SEPARABILITY
|
32
|
|
41.6
INTERPRETATION
|
32
|
|
41.7
FINANCIAL STATEMENTS
|
33
|
|
41.8
EMBARGOED PERSON
|
33
|
|
ATTACHMENTS:
|
|
|
WORKLETTER
|
|
|
BUILDING
MAINTENANCE SPECIFICATIONS
|
|
|
EXHIBIT
A
|
-4-
AGREEMENT
OF LEASE
AGREEMENT
OF LEASE
made
this 6th
day of
July, 2007 between XXXXXXX ASSOCIATES I, a New Jersey general partnership,
having a principal place of business at c/o Eastman Management Corporation,
000
X. Xx. Xxxxxxxx Xxx., Xxxxxxxxxx, XX 00000 hereinafter referred to as
"Landlord"; and COLUMBIA LABORATORIES, INC., a Delaware corporation, currently
having an office and principal place of business at 000 Xxxxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, hereinafter referred to as "Tenant".
WITNESSETH:
For
and
in consideration of the covenants herein contained, and upon the terms and
conditions herein set forth, Landlord and Tenant agree as follows:
DEFINITIONS
For
all
purposes of this Lease and all agreements supplemental thereto or modifying
this
Lease, the following terms shall have the meaning specified:
"ADDITIONAL
RENT"
|
ADDITIONAL
RENT shall mean all sums payable by Tenant to Landlord pursuant to
the
various Articles herein in which said term is
used.
|
"BASIC
RENT"
|
BASIC
RENT shall mean (i) Two Hundred Twelve Thousand Six Hundred Twenty-Five
and 00/100 ($212,625.00) Dollars per annum (payable in equal monthly
installments of $17,718.75 each) during Lease Year 1 and Lease Year
2;
(ii) Two Hundred Seventeen Thousand Three Hundred Fifty and 00/100
($217,350.00) Dollars per annum (payable in equal monthly installments
of
$18,112.50 each) during Lease Year 3 and Lease Year 4; and (iii)
Two
Hundred Twenty-Four Thousand Four Hundred Thirty-Seven and 50/100
($224,437.50) Dollars (payable in equal monthly installments of $18,703.13
each) during Lease Year 5, Lease Year 6 and Lease Year 7 (pro rated
for
any partial Lease Year).
|
"BROKER"
|
BROKER
shall mean XXXXX XXXX LA SALLE AMERICAS, INC., and CBRE REAL ESTATE
SERVICES, INC.
|
"BUILDING"
|
BUILDING
shall mean the building located on the Real Property known as Eisenhower
Plaza, and located at 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000.
|
"BUILDING
HOLIDAY"
|
BUILDING
HOLIDAY shall mean President's Day, Memorial Day, Independence Day,
Labor
Day, Columbus Day, Veteran's Day, Thanksgiving Day and the day after,
Christmas Day, and New Year's Day as each of said holidays are celebrated
in the state in which the Real Property is
located.
|
"COMMENCEMENT
DATE"
COMMENCEMENT
DATE shall mean August 1, 2007.
"CONTROL"
CONTROL
shall mean the ownership, directly or indirectly of more than 50% of the voting
stock of a corporation or in the case of an entity which is not a corporation,
the ownership, directly or indirectly, of more than 50% of the beneficial
ownership interests of such entity, in each case with possession of the power
to
direct, or cause the direction of, the management and policies of such
entity.
"EXCUSABLE
DELAY"
|
EXCUSABLE
DELAY shall mean a delay caused by strike, lock-out or other labor
troubles, act of God, inability to obtain labor or materials, governmental
restrictions, enemy action, civil commotion, fire, unavoidable casualty,
or any other cause similar or dissimilar, beyond the reasonable control
of
either Landlord or Tenant, or due to the passing of time while waiting
for
an adjustment of insurance proceeds, it being understood that except
for
such adjustment of insurance proceeds the lack of funds shall not
be
deemed to be a circumstance beyond the control of a
party..
|
-5-
"GOVERNMENTAL
AUTHORITY"
|
GOVERNMENTAL
AUTHORITY shall mean the town, village, city, county, state, or federal
government, or any agency or quasi-governmental agency, or any fire
insurance rating organization having jurisdiction over the Real
Property.
|
"LEASE
YEAR"
LEASE
YEAR shall mean the period beginning on the Commencement Date and on each annual
anniversary thereof and ending one (1) year later. Lease Year 1 shall mean
the
period beginning on the Commencement Date and ending one (1) year later. Lease
Year 2 shall be the annual period beginning upon expiration of Lease Year 1.
Lease Year 3 shall be the annual period beginning upon expiration of Lease
Year
2. Lease Year 4 shall be the annual period beginning upon expiration of Lease
Year 3. Lease Year 5 shall be the annual period beginning upon expiration of
Lease Year 4. Lease Year 6 shall be the annual period beginning upon expiration
of Lease Year 5. Lease Year 7 shall be the annual period beginning upon
expiration of Lease Year 6.
"PARKING
SPACES"
|
PARKING
SPACES shall mean the parking spaces located on the Real Property.
Tenant
shall at all times during the Term be entitled to the use of thirty-eight
(38) Parking Spaces and four (4) such Parking Spaces, as designated
by
Landlord, shall be reserved and marked (in any manner reasonably
determined by Landlord)for Tenant’s exclusive use . All Parking Spaces
shall be striped.
|
"PREMISES"
|
PREMISES
shall mean the area cross hatched on the floor plan of the Building
annexed hereto as Exhibit A and made a part
hereof.
|
"REAL
PROPERTY"
|
REAL
PROPERTY shall mean the land upon which the Building is located and
the
Building collectively.
|
"RENTABLE
AREA OF THE BUILDING"
|
RENTABLE
AREA OF THE BUILDING shall mean 157,500 square
feet.
|
"RENTABLE
AREA OF THE PREMISES"
|
RENTABLE
AREA OF THE PREMISES shall mean 9,450 square
feet.
|
"SECURITY
DEPOSIT"
|
SECURITY
DEPOSIT shall mean Seventy-Two Thousand Four Hundred Fifty ($72,450.00)
Dollars deposited by Tenant with Landlord simultaneously herewith.
|
"STRUCTURAL
REPAIRS"
|
STRUCTURAL
REPAIRS shall mean repairs to the roof, foundation, and permanent
exterior
walls and support columns of the
Building.
|
"TENANT
DELAY"
TENANT
DELAY shall mean any delay which results from any act or omission of Tenant,
or
any employee, agent, officer, director or contractor of Tenant including,
without limitation, delays due to changes in or additions to, or unreasonable
interference with, any work to be done by Landlord, including, but not limited
to,
(a) Tenant’s
request for materials, finishes or installations that are not Building
Standard;
(b) The
performance of work by a person, firm or corporation employed by Tenant and
delays in the completion of said; and
(c) Tenant’s
failure to timely respond to submission of plans and specifications submitted
by
Landlord.
"TENANT'S
PROPORTIONATE SHARE"
TENANT'S
PROPORTIONATE SHARE is six (6%) percent.
"TERM"
|
TERM
shall mean a period of seventy-five (75) months commencing on the
Commencement Date and terminating on the Termination
Date.
|
-6-
"TERMINATION
DATE"
|
TERMINATION
DATE shall mean October 31, 2013.
|
This
Lease consists of this LEASE AGREEMENT and EXHIBIT A, a WORKLETTER, RULES AND
REGULATIONS, AND THE BUILDING MAINTENANCE SPECIFICATIONS.
ARTICLE
I
|
1.
|
RENT
|
1.1 Landlord
hereby leases to Tenant and Tenant hereby hires from Landlord the Premises
for
the Term.
1.2 Tenant
hereby covenants and agrees to pay, when due, the Basic Rent and all Additional
Rent as herein provided. Basic Rent shall be payable in equal monthly
installments on the first day of each month during the Term in advance, without
set-off, demand or deduction, except as expressly set forth in this Lease at
the
office of Landlord, or such other place as Landlord may designate.
Notwithstanding any provision hereof, (i) fifty (50%) percent Basic Rent for
the
first complete calendar month of the Term in the sum of $8,859.38 shall be
paid
upon execution hereof and Landlord hereby acknowledges receipt thereof; (ii)
an
amount equal to fifty (50%) percent of the Basic Rent for the first three months
of the Term shall be abated (i.e., Tenant shall pay the sum of $8,859.38 as
Basic Rent for each such month) and (iii) an amount equal to twenty-five (25%)
percent of the Basic Rent for the fourth and fifth months of the Term shall
be
abated (i.e., Tenant shall pay the sum of $13,289.06 as Basic Rent for each
such
month).
1.3 Any
installment or installments of Basic Rent or Additional Rent accruing hereunder,
and all other sums payable by Tenant hereunder which are not paid when due
(without regard to any otherwise applicable cure period), shall bear interest
until paid at the rate of two (2%) percent per month (unless such rate shall
be
unlawful, in which case the highest permitted legal rate shall apply). In
addition, if Tenant is delinquent more than five (5) business days in the
payment of any Basic Rent or Additional Rent it shall pay to the Landlord a
late
charge equal to five (5) cents for each dollar of Basic Rent or Additional
Rent
which is delinquent.
1.4 In
the
event any check paid by Tenant for the payment of any installment or
installments of Basic Rent or Additional Rent or for any other sums payable
by
Tenant hereunder is returned by Landlord's bank for insufficient or unavailable
funds, Tenant shall pay to Landlord a Fifty ($50.00) Dollar handling and
administration fee upon notice and demand by Landlord. Tenant may, at Tenant’s
option, pay Basic Rent by wire transfer to an account designated by
Landlord.
ARTICLE
II
|
2.
|
USE
|
2.1 The
Premises are to be used only for executive, general, and administrative offices
and for no other purpose. Neither Tenant nor any of Tenant's servants, agents,
employees, invitees or licensees shall damage, disfigure or injure the Premises
or any portion thereof or the Real Property; normal wear and tear excepted,
nor
shall Tenant allow the emission of any offensive odors or noise from the
Premises. If any office equipment or machines used by Tenant within the Premises
interfere, by more than a de minimis amount, with the use or enjoyment of any
other tenant or occupant of the Building or is heard from any public area in
or
about the Building, by more than a de minimis amount, Tenant shall, upon notice
from Landlord, either cease the use of such equipment and/or machines, or place
and maintain such equipment and/or machines, at Tenant's sole expense, in a
sound proof setting such as cork, rubber or vibration eliminators to eliminate
any such noise or vibration. Smoking shall not be permitted anywhere in the
Premises.
2.2 If
any
governmental license or permits, other than a certificate of occupancy, shall
be
required for the proper and lawful conduct of Tenant's business in the Premises,
or any part thereof, and if failure to secure such license or permit would
in
any way affect Landlord, Tenant, at its expense shall duly procure and
thereafter maintain such license or permit and submit copies of the same to
Landlord. Tenant shall, at all times, comply with the terms and conditions
of
each such license or permit.
2.3 Tenant
shall not store, place or allow the storing or placement of any materials,
debris or other obstructions of any nature in any hallway, lobby or other public
areas of the interior of the Real Property or on the sidewalk, parking area
or
other area or areas abutting or adjacent to the Real Property.
-7-
2.4 Tenant
shall not place anything on any floor of the Premises which will create a load
in excess of the load per square foot which such floor was designed to
carry.
2.5 Tenant
shall not move any heavy equipment or bulky matter, including, but not limited
to safes or large office equipment or furniture, into or out of the Building
without first obtaining Landlord’s consent. If the movement of such items
requires any special handling, all such work shall be done in full compliance
with applicable laws, ordinances, codes, rules and regulations and any other
applicable governmental requirements. All such movements shall be made during
hours reasonably designated by Landlord which will least interfere with the
normal operation of the Building, and all damage directly or indirectly caused
by such movement shall be promptly repaired by Tenant at Tenant’s
expense.
2.6 Tenant
shall have the right to use, in common with others, all areas, spaces and
improvements within the Building and on the Real Property which are provided
by
Landlord, without a separate charge for the non-exclusive convenience and use
of
the tenants of the Building and their agents, employees and invitees, including
the Building’s cafeteria, public elevators, public lobbies, public corridors,
public stairways and public stairwells, public corridor restrooms, and public
entrances and exits designated by Landlord for ingress to and egress from the
Building.
ARTICLE
III
|
3.
|
LANDLORD’S
WORK
|
3.1 Landlord
shall perform the work and improvements in and to the premises as set forth
in
the Workletter attached to this Lease ("Landlord’s Work”). Landlord shall use
commercially reasonable efforts to Substantially Complete Landlord’s Work on or
before sixty (60) days after the date of this Lease (subject to any Excusable
Delay and any delays caused by Tenant; the “Estimated Completion Date”);
provided, however, Landlord shall have no liability to Tenant and there shall
be
no postponement of the Commencement Date for any delay in the Substantial
Completion of Landlord’s Work except as otherwise provided in this Section
3.1.
Tenant
acknowledges that Tenant may be inconvenienced and disturbed during the
performance of Landlord’s Work and Tenant agrees that Landlord shall have no
liability to Tenant, nor shall Tenant be entitled to any diminution or abatement
of rent or other compensation or allowance for diminution of rental value,
nor
shall this Lease or any of the obligations of Tenant hereunder be affected
or
reduced by reason of the performance of Landlord’s Work. Notwithstanding
any provision hereof to the contrary, if Landlord’s Work is not Substantially
Completed on or before the date occurring five (5) months after the date of
this
Lease (the “Outside Completion Date”), for any reason other than Excusable Delay
or any Tenant Delay, (including, but not limited to, Tenant’s failure to
complete, and obtain all required approvals and inspections for, any work being
performed by Tenant which must be so completed in order for Landlord to obtain
a
certificate of occupancy for the Premises) Tenant shall be entitled to an
abatement of one (1) day’s Base Rent for each day after the Outside Completion
Date that Substantial Completion of Landlord’s Work is so delayed.
3.2 As
used
herein, "Substantially Complete" “Substantial Completion” “substantially
complete” “substantial completion” or words of similar import shall mean that
(i) Landlord’s Work is fully completed substantially in accordance with the
Plans and Specifications (as such term is defined in the defined in the
Workletter), except for minor items, the incompletion of which will not
unreasonably interfere with Tenant's normal business operations and (ii) a
certificate of occupancy has been issued for the Premises by the Governmental
Authority having jurisdiction).
ARTICLE
IV
4.
ACCEPTANCE
4.1 Tenant
acknowledges that it is currently in possession a portion of the Premises,
and
Tenant has accepted the Premises in its “as is” condition as of the date hereof,
subject to the completion of Landlord’s Work.
-8-
ARTICLE
V
5.
COMPLIANCE
WITH LAWS AND INSURANCE REQUIREMENTS
5.1 Tenant
shall not do, or permit anything to be done in or to the Premises, or bring
or
keep anything therein which will, in any way, increase the cost of fire and
extended coverage or public liability insurance on the Real Property, or
invalidate or conflict with the fire and extended coverage insurance or public
liability insurance policies covering the Real Property, any Building fixtures,
or any personal property kept therein, or interfere (by more than a de minimis
extent) with the rights of Landlord or of other tenants, or in any other way
injure or annoy Landlord or other tenants, or subject Landlord to any liability
for injury to persons or damage to property, or interfere with the good order
of
the Building, or conflict with the present or future laws, rules, or regulations
of any Governmental Authority. Tenant hereby indemnifies and will hold Landlord
harmless of and from all liability for injury to persons or damage occurring
on
the Premises, in the Building, or on the Real Property whether occasioned by
any
act or omission of Tenant, or Tenant's agents, servants, employees, invitees,
or
licensees. Tenant agrees that any increase in insurance premiums on the Building
or contents caused by Tenant’s specific use or manner of use of the Premises (as
opposed to the use of the Premises for general office purposes generally) and
any expense or cost incurred in consequence of negligence, carelessness, or
willful action of Tenant, Tenant's agents, servants, employees, invitees or
licensees, shall be reimbursed to Landlord within twenty (20) days of demand
therefore. Any amounts payable by Tenant hereunder shall be deemed Additional
Rent.
ARTICLE
VI
6.
PERSONAL
PROPERTY TAXES
6.1 Tenant
agrees to pay all taxes imposed on the personal property of Tenant, the conduct
of its business, and its use and occupancy of the Premises.
ARTICLE
VII
|
7.1
|
ADDITIONAL
RENT
|
7.1 Tenant
hereby covenants and agrees to pay as Additional Rent the amounts as set forth
below.
|
7.2
|
REAL
ESTATE TAXES
|
7.2.1 Commencing
on the first anniversary of the Commencement Date, for each tax year or part
of
a tax year occurring within the Term, Tenant shall pay to Landlord in the manner
described in paragraph 7.4, as Additional Rent, Tenant's Proportionate Share
of
the amount by which the Real Estate Taxes attributable to such period exceed
the
Real Estate Taxes attributable to the Base Tax Year (or corresponding portion
thereof). For the purposes hereof "Base Tax Year" shall mean the calendar year
2007.
7.2.2 As
used
herein, the term "Real Estate Taxes" shall mean those real estate taxes,
assessments, sewer rents, rates and charges which shall be levied, imposed
or
assessed upon the Real Property, including, but not limited to assessments
for
any special improvement district in which the Real Property may be located,
provided that, if because of any change in the method of taxation of real estate
any other tax or assessment is imposed upon Landlord or the owner of the Real
Property or upon or with respect to the Real Property or the rents or income
therefrom in substitution for or in lieu of those taxes attributable to the
Real
Property, such other tax or assessment shall be deemed Real Estate Taxes for
the
purpose herein; provided, however, that Real Estate Taxes shall not include
any
gift, inheritance, estate, franchise, income, profits, capital or similar tax
imposed, unless and to the extent any such tax shall be imposed or levied in
lieu of Real Estate Taxes.
7.2.3 Landlord
may take the benefit of the provisions of any statute or ordinance permitting
any Real Estate Taxes to be paid over a period of time.
7.2.4 Tenant's
Proportionate Share of the amount by which the Real Estate Taxes exceed the
Real
Estate Taxes for the Base Tax Year shall be determined from the amount finally
determined to be legally due for the Base Tax Year as a result of legal
proceedings or otherwise. In the event the Real Estate Taxes for the Base Tax
Year have not been finally determined by legal proceedings or otherwise at
the
time of payment of Real Estate Taxes for any subsequent tax year, the actual
amount of Real Estate Taxes paid by Landlord for the Base Tax Year shall be
used
to calculate any excess thereof. Upon a final determination of the Real Estate
Taxes for the Base Tax Year by legal proceedings or otherwise, Landlord shall
deliver to Tenant a statement setting forth the amount of Real Estate Taxes
for
the Base Tax Year as finally determined and showing the computation of any
adjustment due to Landlord or to Tenant by reason thereof. Any payment due
to
Landlord or any credit due to Tenant by reason of such adjustment shall be
made
as provided herein.
-9-
7.2.5 If
Landlord shall receive any refund of Real Estate Taxes in respect of any tax
year following the Base Tax Year, Landlord shall deduct from such refund any
reasonable expenses incurred in obtaining such refund, and out of the remaining
balance of such refund, Landlord shall credit to Tenant Tenant's Proportionate
Share of such refund provided however, that in no event shall any such refund
reduce Tenant’s Proportionate Share of Real Estate Taxes beyond that which was
originally charged to Tenant as Additional Rent. Any reasonable expenses
incurred by Landlord in contesting the validity of the amount of the assessed
valuation of the Real Property or of any Real Estate Taxes for any year after
the Base Tax Year, to the extent not offset by a tax refund, shall be included
as an item of Real Estate Taxes for the tax year in which such contest shall
be
finally determined for the purpose of computing the Additional Rent due Landlord
or any credit due to Tenant hereunder.
7.2.6 If
Landlord shall receive any refund of Real Estate Taxes in respect of the Base
Tax Year, Tenant’s Additional Rent shall be adjusted to reflect said adjustment
to the Real Estate Taxes attributable to the Base Tax Year and Tenant shall
pay
to Landlord, within thirty (30) days after Landlord’s presentation of Landlord’s
Statement to Tenant therefor, as Additional Rent, Tenant’s Proportionate Share
of the amount, if any, by which the Tenant had or has been undercharged for
Real
Estate Taxes by reason of the amount of Real Estate Taxes upon which the Base
Tax Year had been calculated prior to any such refund being taken into account.
7.2.7 If
the
tax year for Real Estate Taxes shall be changed, then appropriate adjustment
shall be made in the computation of the Additional Rent due to Landlord or
any
credit due to Tenant, in accordance with sound accounting principles to
effectuate the changeover to any new tax year adopted by any taxing authority.
7.2.8 If
the
last year of the Term ends on any day other than the last day of a tax year,
any
payment due to Landlord or credit due to Tenant by reason of any increase or
decrease, as the case may be, in Real Estate Taxes shall be prorated and Tenant
covenants to pay any amount due to Landlord within thirty (30) days after being
billed therefor and Landlord covenants to credit any amount due to Tenant as
the
case may be. These covenants shall survive the expiration or termination of
this
Lease.
7.3
LANDLORD'S
OPERATING EXPENSES
7.3.1 Commencing
on the first anniversary of the Commencement Date, for each year or part of
a
year occurring within the Term, Tenant shall pay to Landlord in the manner
described in paragraph 7.4, as Additional Rent, Tenant's Proportionate Share
of
the amount by which Landlord's Operating Expenses attributable to such period
exceed Landlord's Operating Expenses attributable to the Base Operating Year
(or
corresponding portion thereof). For the purposes hereof "Base Operating Year"
shall mean the calendar year 2007.
7.3.2 As
used
herein, the term "Landlord's Operating Expenses" shall mean those costs or
expenses paid or incurred by Landlord for operating, maintaining, and repairing
(inclusive of Structural Repairs) the Building, any of its systems, or the
Real
Property, including the cost of electricity, gas, water, fuel, window cleaning,
janitorial service, insurance of all kinds carried in good faith by Landlord
and
applicable to the Building or the Real Property, snow removal, maintenance
and
cleaning of the parking lot, landscape maintenance (including replanting and
replacing flowers and other plantings), painting or repainting or redecorating
of the public areas, maintenance of equipment and replacement of worn out
mechanical or damaged equipment, uniforms, management fees, typical and
customary office expenses, building supplies, sundries, sales or use tax on
supplies or services, wages, salaries and other compensation, including
applicable payroll taxes and benefits, of all persons engaged by Landlord for
the operation, maintenance and repair of the Building and the Real Property
including independent contractors' fees, replacement cost of tools and
equipment, legal and accounting expenses, and any other expenses or costs,
which
in accordance with generally accepted accounting principles and the standard
management practices for office buildings comparable to the Building would
be
considered as an expense of operating, maintaining, or repairing the Building
and the Real Property. Excluded from Landlord's Operating Expenses
are:
-10-
|
(a)
|
Repairs
or other work occasioned by fire, windstorm or other casualty for
which
there is insurance coverage (to the extent of such coverage) or by
the
exercise of eminent domain or any expenditures for which Landlord
is
reimbursed from any source.
|
|
(b)
|
With
respect to present or prospective tenants or other occupants of the
Building, all costs, including leasing commissions and attorneys’ fees
incurred by Landlord in connection with the negotiations and transactions
with such persons.
|
|
(c)
|
With
respect to present or prospective tenants or other occupants of the
Building, renovating or otherwise improving or decorating, painting
or
redecorating space for such
persons.
|
|
(d)
|
Landlord’s
cost of electricity and other services that are sold to tenants and
for
which Landlord is entitled to be reimbursed by tenants as an additional
charge or rental over and above the basic rent payable under the
lease
with such tenant.
|
|
(e)
|
Costs
incurred by Landlord for alterations or improvements which are considered
capital improvements or replacements under the Internal Revenue Code
and
generally accepted accounting principles, except where such capital
improvement or replacement is made as a cost savings measure in which
case
such capital expenditure, together with interest thereon at 8% per
annum,
shall be amortized and charged to Tenant over the useful life of
such
improvement or replacement.
|
|
(f)
|
Depreciation
and amortization except as provided
above.
|
|
(g)
|
The
costs of all services furnished to any other tenant of the Building
on a
“rent inclusion” basis which are not provided to Tenant on such
basis.
|
|
(h)
|
Legal
fees and related legal costs, together with any damages awarded Tenant
or
any other tenants, incurred by Landlord due to the violation by Landlord
or any other tenant of the terms and conditions of any lease of space
in
the Building.
|
|
(i)
|
Overhead
and profit increment paid to subsidiaries or affiliates of Landlord
for
services on or to the Real Property, to the extent only that the
costs of
such services exceed reasonable costs of such services were they
not
rendered by a subsidiary or
affiliate.
|
|
(j)
|
Interest
on debt or amortization payments on any mortgage or mortgages, and
rental
under any ground or underlying lease or
leases.
|
|
(k)
|
Any
compensation paid to clerks, attendants or other persons in commercial
concessions operated by Landlord.
|
|
(l)
|
All
items and services for which any tenant reimburses Landlord or pays
third
persons.
|
|
(m)
|
Advertising
and promotional expenditures.
|
|
(n)
|
Any
costs, fines or penalties incurred due to violations by Landlord
of any
governmental rule or authority.
|
|
(o)
|
Management
fees to the extent they exceed similar costs incurred in comparable
office
buildings in the area.
|
|
(p)
|
Costs
for sculpture, paintings or other objects of
art.
|
|
(q)
|
Wages,
salaries, or other compensation paid to any executive employees above
the
grade of building superintendent or building
manager.
|
|
(r)
|
Financing
costs, including but not limited to points, commitment fees and legal
fees
incurred in connection therewith.
|
|
(s)
|
Costs
incurred to test, survey, clean up, contain, xxxxx, remove or otherwise
remedy hazardous or toxic materials or asbestos-containing materials
or
the cost of any environmental site
assessment.
|
|
(t)
|
Costs
arising from Landlord’s charitable or political
contribution.
|
|
(u)
|
Insurance
premiums to the extent any tenant causes Landlord’s existing insurance
premiums to increase or requires Landlord to purchase additional
insurance.
|
-11-
7.4
LANDLORD'S
STATEMENTS
7.4.1 On
or
about May first of each year of the Term, or within a reasonable period of
time
thereafter, Landlord shall submit to Tenant a statement ("Landlord's Statement")
showing in reasonable detail Landlord's Operating Expenses and Real Estate
Taxes
during the preceding calendar year. Within twenty (20) days next following
the
submission of a Landlord's Statement which shows that Landlord's Operating
Expenses and/or the Real Estate Taxes for the calendar year exceeded Landlord's
Operating Expenses for the Base Operating Year and/or Landlord's Real Estate
Taxes for the Base Tax Year, respectively, Tenant shall pay to Landlord,
Tenant's Proportionate Share of the amount by which Landlord's Operating
Expenses for the Base Operating Year and/or Landlord's Real Estate Taxes for
the
Base Tax Year, respectively, were exceeded, less the amount of any Estimated
Payments made by Tenant for such year pursuant to Section
7.4.2.
Provided Tenant pays its Proportionate Share of said amount in accordance with
the terms herein, Tenant or its representative shall have the right to examine
Landlord's books and records with respect to the items in the foregoing
Landlord's Statement during normal business hours at any time within thirty
(30)
days following the delivery by Landlord to Tenant of such Landlord's Statement.
Tenant's failure to inspect during said time period shall be deemed a waiver
of
Tenant's right to so inspect and Tenant waives its right to request any such
inspection after said thirty (30) day period. Unless Tenant shall take written
exception to any item contained therein within thirty (30) days after the
delivery of same, such Landlord's Statement shall be considered as final and
accepted by Tenant and Tenant waives its right to take exception after said
thirty (30) day period. In the event Tenant takes timely written exception
to
any item contained in Landlord's books and records with respect to the items
in
the foregoing Landlord's Statement, any payment made in accordance with this
Paragraph 7.4.1 shall be deemed made in protest to the extent of such
exception.
7.4.2 On
the
first day of each month following the submission of any Landlord's Statement
which shows that Tenant is obligated to pay Additional Rent pursuant to this
ARTICLE, Tenant shall pay to Landlord, on account of its potential obligation
to
pay such Additional Rent for the calendar year following the calendar year
for
which such Landlord's Statement shall have been rendered, a sum equal to
one-twelfth (1/12) of the amount which the Tenant shall have paid as such
Additional Rent for such prior calendar year (“Estimated Payments”). Such
Estimated Payments shall be due with each monthly installment of Basic Rent
until submission of the next succeeding Landlord's Statement and shall be
collectible by Landlord as Additional Rent. However, the Landlord may, at its
election from time to time, revise the monthly Estimated Payments based on
the
Landlord's operating budget for the year to which the Estimated Payments apply
(Budget Billing). The revised Estimated Payments may begin on January 1 of
the
subject year or thereafter whenever such revised Estimated Payments are
determined with an appropriate retroactive adjustment to January 1 of that
year.
7.4.3 In
each
Landlord's Statement there shall be a reconciliation as follows: Tenant shall
be
charged with any Additional Rent shown on such Landlord's Statement, which
charge shall be reduced by the aggregate amount of Estimated Payments, if any,
paid by Tenant on account thereof. Tenant shall pay any net balance due to
Landlord within thirty (30) days as set forth above; any overpayment shall
be
applied by Landlord against the next accruing monthly installment of Additional
Rent, or shall be paid over to Tenant upon termination of this Lease, subject
to
Landlord's rights and remedies hereunder.
7.4.4 Any
increase or decrease in Additional Rent under this ARTICLE shall be prorated
for
the final calendar year of the Term if such year covers a period of less than
twelve (12) months. In no event shall any adjustment in Tenant's obligation
to
pay Additional Rent under this ARTICLE result in a decrease in the Basic Rent
payable hereunder. Tenant's obligation to pay Additional Rent and Landlord's
obligation to credit to Tenant any amount referred to in this ARTICLE for the
final year of the Term shall survive the expiration or termination of this
Lease.
ARTICLE
VIII
8.
RULES
AND
REGULATIONS
8.1 Tenant,
on behalf of itself and its employees, agents, servants, invitees, and
licensees, agrees to comply with the Rules and Regulations with respect to
the
Real Property which are set forth at the end of this Lease and which are
expressly made a part hereof. Landlord shall have the right to make reasonable
amendments thereto from time to time for the safety, care, and cleanliness
of
the Real Property, the preservation of good order therein, and the general
convenience of all the tenants and Tenant agrees to comply with such amended
Rules and Regulations, after thirty (30) days written notice thereof from
Landlord. All such amendments shall apply to all tenants in the Building, and
will not materially interfere with the use and enjoyment of the Premises or
the
parking lot by Tenant. Landlord shall not apply the Rules and Regulations in
a
manner which discriminates against Tenant.
-12-
ARTICLE
IX
9.
LANDLORD'S
RIGHT OF ENTRY
9.1 Landlord
and Landlord's agents and representatives shall have the right to enter into
or
upon the Premises, or any part thereof, at all reasonable hours for the
following purposes: (1) examining the Premises; (2) making such repairs or
alterations therein as may be necessary in Landlord's sole judgment for the
safety and preservation thereof; (3) erecting, maintaining, repairing, or
replacing wires, cables, conduits, vents or plumbing equipment running in,
to,
or through the Premises; (4) showing the Premises to prospective purchasers
or
lessees of the Building or to prospective mortgagees or to prospective assignees
of any such mortgagees or others; or (5) showing the Premises to prospective
new
tenants of the Premises during the last six (6) months of the Term. However,
Landlord shall give Tenant reasonable prior notice, oral or otherwise, before
commencing any non-emergency repair or alteration.
9.2 Landlord
may enter upon the Premises at any time in case of emergency without prior
notice to Tenant.
9.3 Landlord,
in exercising any of its rights under this ARTICLE IX, shall not be deemed
guilty of an eviction, or disturbance of Tenant's use or possession of the
Premises and shall not be liable to Tenant for same, (except for Landlord’s
gross negligence or willful misconduct). The Basic Rent and Additional Rent
as
defined in this Lease shall in no way xxxxx while said repairs or alterations
are being made. Landlord shall use commercially reasonable efforts to minimize
interference with Tenant’s use and occupancy of the Premises in exercising its
rights pursuant to Section
9.1;
provided, however, Landlord shall not be obligated to employ labor at overtime
or other premium pay rates or incur any other expenditure.
9.4 All
work
performed by or on behalf of Landlord in or on the Premises pursuant to this
ARTICLE IX shall be performed with as little inconvenience to Tenant's business
as possible, and in such manner as not unreasonably to interfere
therewith.
ARTICLE
X
|
10.
|
MAINTENANCE
BY TENANT
|
10.1 Tenant
shall take good care of the Premises throughout the Term and shall preserve
same
in the condition delivered to Tenant on the Commencement Date, normal wear
and
tear excepted. Tenant agrees to be responsible for the cost of maintenance
or
repair of any plumbing exclusively serving the Premises. Tenant further agrees
not to injure, overload, deface, or commit waste of the Premises, the Building
or the Real Property. Tenant shall be responsible for all injury or damage
of
any kind or character to the Real Property, including the windows, floors,
walls, ceilings, lights, electrical equipment, and HVAC equipment, caused by
Tenant or by anyone using or occupying the Premises by, through, or under the
Tenant. Landlord shall repair the same and Tenant shall pay the costs incurred
therefore to Landlord immediately upon demand. If the Premises become infested
with vermin, Tenant shall, at Tenant's expense, cause the same to be
exterminated from time to time to the satisfaction of Landlord and shall employ
such extermination as shall be approved by Landlord. Tenant shall be responsible
for the cost of maintenance and repair of all plumbing and related equipment
which is within the Premises.
|
10.2
|
MAINTENANCE
BY LANDLORD
|
10.2.1 Landlord
shall be responsible for making all Structural Repairs and shall maintain,
repair and replace all Building systems, including, but not limited to,
plumbing, heating, air conditioning, electrical, and mechanical fixtures
(exclusive of (a) starters, ballasts, fluorescent lamps, and (b) electrical
and
mechanical fixtures or plumbing installed by or on behalf of Tenant) which
shall
be standard for the Building, when required, and maintain and make repairs
to
the parking area and the exterior of the Building, except those repairs or
replacements arising from the negligence of Tenant, its agents, servants,
employees, licensees, or invitees, which shall be the sole responsibility of
Tenant. This paragraph shall not be construed to prohibit Landlord from
including the costs paid or incurred hereunder as "Landlord Operating Expenses"
when appropriate under the provisions of ARTICLE VII.
-13-
ARTICLE
XI
11.
ALTERATIONS
OR IMPROVEMENTS BY TENANT
11.1 Tenant
shall make no changes in or to the Premises of any nature without Landlord's
prior written consent. Subject to the aforementioned consent of Landlord, Tenant
at Tenant's sole expense, may hire contractors approved by Landlord, or Landlord
may elect, on Tenant’s behalf, to make such alterations, installations,
additions, or improvements in or to the Premises (collectively "Tenant
Alterations") which are non-structural and which do not affect utility services,
plumbing, electrical lines, sprinkler systems, HVAC systems or any other
mechanical systems, in or to the Premises or Building or which involve any
drywall construction. Landlord
shall respond to any request for approval of Tenant Alterations within thirty
(30) days after such request, and as to any Tenant Alterations with respect
to
which, in accordance with good construction practice, plans and specifications
are customarily prepared or are required to be filed with a Governmental
Authority, together with the plans and specifications therefor (collectively,
an
“Alterations
Request”),
is
submitted to Landlord. If Landlord fails to respond to Tenant’s Alterations
Request within such 30-day period, then as Tenant’s sole remedy, Tenant shall
have the right to provide Landlord with a second request for approval (a
“Second
Approval Request”),
which
shall specifically identify the Tenant Alterations to which such request
relates, and set forth in bold capital letters the following statement: IF
LANDLORD FAILS TO RESPOND WITHIN 5 BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE,
THE ALTERATION PLANS SPECIFICALLY DESCRIBED HEREIN SHALL BE DEEMED APPROVED
AND
TENANT SHALL BE ENTITLED TO COMMENCE CONSTRUCTION OF THE ALTERATIONS IN
ACCORDANCE WITH THE ALTERATION PLANS PREVIOUSLY SUBMITTED TO LANDLORD AND TO
WHICH LANDLORD HAS FAILED TO TIMELY RESPOND, SUBJECT, HOWEVER, TO THE OTHER
TERMS AND CONDITIONS OF THE LEASE. If Landlord fails to respond to a Second
Approval Request within five (5) Business Days after receipt by Landlord, then
as Tenant’s sole remedy, the Alterations Request shall be deemed to be approved
by Landlord, provided that Tenant shall otherwise have complied with and
otherwise shall comply with all applicable provisions of this Lease relating
to
the performance of such Alterations. All such Tenant Alterations shall, upon
installation, become the property of Landlord and shall remain upon and be
surrendered with the Premises, unless otherwise required by Landlord to be
removed by Tenant upon the expiration or termination of this Lease, or unless
Tenant, by notice to Landlord no later than thirty (30) days prior to the
Termination Date, requests Landlord's consent to remove same. Notwithstanding
the foregoing, simultaneously with submitting to Landlord any Alterations
Request, Tenant may submit to Landlord a notice in writing (using bold letters)
requesting Landlord to notify Tenant whether Landlord shall require Tenant,
on
the Termination Date or sooner termination of this Lease, to remove the
specified Tenant Alterations depicted in such Alterations Request as provided
in
this Section (an “Alteration
Removal Request”).
If
Tenant fails to so submit such Alteration Removal Request, and if the Tenant
Alterations are in fact made (it being agreed that such Tenant Alterations
shall
be subject to the terms and provisions of this Lease), Landlord shall have
the
option to require Tenant, on the Termination Date or sooner termination of
the
Term, to remove all or any of the Tenant Alterations shown on such Alterations
Request. If Landlord does not respond to the Alteration Removal Request at
the
time that Landlord approves the Tenant Alterations, then as Tenant’s sole
remedy, Tenant shall have the right to provide Landlord with a second Alteration
Removal Request (a “Second
Alteration Removal Request”),
which
shall specifically identify the Tenant Alterations to which such request
relates, and set forth in bold capital letters the following statement: IF
LANDLORD FAILS TO RESPOND WITHIN 5 BUSINESS DAYS AFTER RECEIPT OF THIS NOTICE,
TENANT SHALL NOT BE REQUIRED, AT THE EXPIRATION OR SOONER TERMINATION OF THE
TERM OF THE LEASE, TO REMOVE THE SPECIFIED ALTERATIONS OR RESTORE THE PREMISES
AS PROVIDED IN THE LEASE. If Landlord shall respond to the Alteration Removal
Request or a Second Alteration Removal Request, Landlord shall state in such
response whether or not Tenant shall be required, at the Termination Date or
sooner termination of this Lease, to remove such Tenant Alterations as provided
in this Section. If Landlord fails to respond to a Second Alteration Request
within five (5) Business Days after receipt of same by Landlord, then as
Tenant’s sole remedy Landlord shall be deemed to have agreed that Tenant shall
not be required to remove the specified Tenant Alterations at the Termination
Date or sooner termination of this Lease. If Landlord, in a timely manner,
shall
respond to an Alteration Removal Request or a Second Alteration Removal Request,
then Tenant’s obligations to remove such Tenant Alterations and restore the
Premises shall be as set forth in Landlord’s response. If Landlord requires or
consents to Tenant’s request for the removal of Tenant’s Alterations, the same
shall be removed from the Premises by Tenant prior to the Termination Date
at
Tenant's sole expense. Nothing in this ARTICLE shall be construed to give
Landlord title to or to prevent Tenant's removal of trade fixtures, movable
office furniture and equipment. Upon removal of any such or any Tenant
Alterations from the Premises or upon removal of any other installation as
may
be permitted by Landlord, Tenant shall immediately and at its expense, repair
and restore the Premises to the condition existing prior to such Tenant
Alteration. Tenant shall take care during such removal, and Tenant shall repair
any damage to the Premises or to the Real Property incurred during such removal.
All property permitted or required to be removed by Tenant at the end of the
Term which remains on the Premises after the Termination Date shall be deemed
abandoned and may, at the election of Landlord, either be retained as Landlord's
property or may be removed from the Premises by Landlord at Tenant's
expense.
-14-
11.2 Prior
to
the commencement of any Tenant Alteration, Tenant shall at its sole expense,
obtain all required permits, approvals, and certificates required by all
Governmental Authorities, if any, and upon completion of the alteration,
certificates of final approval thereof. Tenant shall deliver to Landlord
promptly upon its receipt copies of same. Tenant shall carry and will cause
Tenant's contractors and subcontractors to carry such xxxxxxx'x compensation,
general liability, personal and property damage insurance as required by law
and
in amounts no less than the amounts set forth in ARTICLE XXXI
below.
11.3 Upon
completion of any Tenant Alterations, Tenant shall promptly deliver to Landlord
(i) an unconditional, final Certificate of Occupancy, if required by the
applicable Governmental Authority, (ii) "as-built" final plans and drawings
identical to those upon which Landlord granted its approval (if applicable)
and
(iii) if the Tenant Alteration is of a type that is customarily supervised
by an
architect in accordance with good construction practice, Tenant's architect's
certification that the alterations as completed conform with all applicable
local, county state and/or federal statutes, ordinances, rules, regulations
and
codes including, but not limited to the orders, rates and regulations of the
National and local Boards of Fire Underwriters and any other body or bodies
hereinafter exercising similar functions.
ARTICLE
XII
|
12.
|
ASSIGNMENT
AND SUBLETTING
|
12.1 Subject
to the provisions of Section
12.13,
Tenant
for itself, its heirs, distributees, successors, and assigns, expressly
covenants that it shall not directly or indirectly by operation of law, merger,
consolidation, reorganization, dissolution, change of majority ownership of
Tenant, or otherwise, assign (which for purposes of this Lease, shall include
any such merger, consolidation, reorganization, dissolution or change of
ownership of Tenant), mortgage, or encumber this Lease, or any part thereof,
or
permit the Premises to be used by others without the prior written consent
of
Landlord in each instance. Any attempt to do so by the Tenant shall be void.
The
consent by Landlord to any assignment, mortgage, encumbrance, subletting, or
use
of the Premises by others shall not constitute a waiver of Landlord's right
to
withhold its consent to any other assignment, mortgage, encumbrance, subletting
or use of the Premises by others. Without the prior written consent of Landlord,
this Lease and the interest of Tenant therein or any assignee of Tenant therein,
shall not pass by operation of law, and shall not be subject to garnishment
or
sale under execution in any suit or proceeding which may be brought against
or
by Tenant or any assignee of Tenant.
12.2 Landlord
covenants and agrees that it will not unreasonably withhold, condition or delay
its consent to Tenant's assigning or subletting all or a part of the Premises;
provided, however, (1) that Tenant shall not be in default, beyond any
applicable notice and cure periods, under any of the terms, covenants,
conditions, provisions, and agreements of this Lease at the time of any notice
or request for consent under the terms of this ARTICLE or at the effective
date
of such subletting or assigning; and (2) that such subletting or assigning
shall
not be made with a tenant who shall be or who shall seek to use any portion
of
the Premises for a use incompatible with that customarily found in first-class
office buildings, and further provided, the Premises may not be sublet or
assigned to any employment agency, governmental department, labor union office,
doctor's or dentist's office, dance or music studio, school or beauty salon
and
(3) that the proposed subtenant or assignee is not then an occupant of any
part
of the Building or a party who dealt with Landlord or Landlord's agent (directly
or through a broker) with respect to space in the Building during the 12 months
immediately preceding Tenant's request for Landlord's consent, provided Landlord
shall have comparable space then available, or to become available within four
(4) months from the effective date of the proposed assignment or subletting,
for
leasing for a comparable term.
12.3 If
Tenant
requests Landlord's consent to an assignment of this Lease or a subletting
of
all or any part of the Premises, Tenant shall submit to Landlord: (1) the name
and address of the proposed assignee or subtenant; (2) the terms of the proposed
assignment or subletting; (3) the nature of the proposed assignee's or
subtenant's business; and (4) such information as to the proposed assignee's
or
subtenant's financial responsibility and general reputation as Landlord may
reasonably require.
-15-
12.4 Upon
the
receipt of such request and information from Tenant, Landlord shall have the
option to be exercised in writing within thirty (30) days after such receipt,
to
either (1) cancel and terminate this Lease, if the request is to assign this
Lease or to sublet all of the Premises for a term ending within twenty-four
(24)
months of the Termination Date, or if the request is to sublet a portion of
the
Premises only, for a term ending within twenty four (24) months of the
Termination Date, to cancel and terminate this Lease with respect to such
portion, in each case as of the date set forth in Landlord's notice of exercise
of such option, which date shall be no less than thirty (30) days after delivery
of such notice; or (2) to grant said request; or, (3) to deny such
request.
12.5 In
the
event Landlord shall cancel this Lease, Tenant shall surrender possession of
the
Premises, or the portion of the Premises which is the subject of the request,
as
the case may be, on the date set forth in such notice in accordance with the
provisions of this Lease relating to surrender of the Premises. If the Lease
shall be canceled as to a portion of the Premises only, the Basic Rent and
Additional Rent payable by Tenant hereunder shall be reduced proportionately
according to the ratio that the number of square feet in the portion of space
surrendered bears to the square feet in the Rentable Area of the
Premises.
12.6 In
the
event that Landlord shall consent to a sublease or assignment pursuant to the
request from Tenant, Tenant shall cause to be executed by its assignee or
subtenant an agreement to perform faithfully and to assume and be bound by
all
of the terms, covenants, conditions, provisions, and agreements of this Lease
for the period covered by the assignment or sublease and to the extent of the
space sublet or assigned. An executed copy of each sublease or assignment and
assumption of performance by the sublessee or assignee, on a form acceptable
to
Landlord, shall be delivered to Landlord on or before the commencement of
occupancy set forth in such assignment or sublease. No such assignment or
sublease shall be binding on Landlord until Landlord has received such copies
as
required herein.
12.7 In
no
event shall any assignment or subletting (whether or not Landlord may have
consented), release or relieve Tenant from its obligations to fully perform
all
of the terms, covenants, and conditions of this Lease on its part to be
performed.
12.8 Without
otherwise restricting the grounds upon which Landlord may otherwise withhold
its
consent, Landlord shall not be deemed to have unreasonably withheld its consent
to such an assignment or subletting if "Landlord Consent Requirements" are
not
satisfied. Furthermore, Landlord may withhold its consent if, in its judgment,
it determines that:
12.8.1 The
proposed new use of the Premises is not, in Landlord's reasonable opinion,
appropriate for the Building or in keeping with the character of the existing
tenancies or is expressly prohibited under the terms of this Lease.
12.8.2 The
proposed assignee's use or occupancy will make unreasonable or excessive demands
on the Building's services, maintenance or facilities or will cause excessive
traffic or unacceptable increase in density of traffic of the
building.
12.8.3 Less
than
fifty (50%) percent of the Rentable Area Of The Building is then
rented.
12.9 As
used
herein, "Landlord's Consent Requirements" shall mean the following minimum
requirements which must be met by Tenant before Landlord shall consent to an
assignment or subletting of all or part of the Premises:
12.9.1 There
shall be at any one time no more than two (2) occupants (including Tenant)
of
the Premises.
12.9.2 The
assignment or subletting shall be for not less than 3,000 square feet of
Rentable Space of the Premises, provided that the location of any demising
walls
shall be subject to Landlord’s approval and no demising wall shall be
constructed in connection with any sublease for a term of less than 24
months.
12.10 If
Landlord shall consent to any subletting or assignment, in accordance with
the
terms of this ARTICLE, fifty (50%) percent of any rents or other consideration
received by the Tenant in excess of the rents or other sums required to be
paid
by Tenant to Landlord, shall be paid by Tenant to Landlord.
-16-
12.11 Tenant
shall reimburse Landlord for Landlord's reasonable out-of-pocket costs and
expenses (including without limitation the reasonable charges of any outside
architectural, engineering, accounting or legal professionals retained by
Landlord to review the proposed assignment or sublease, if any) incurred by
Landlord in connection with any proposed subletting or assignment by Tenant.
The
amount of such costs and expenses shall be deemed to be Additional Rent under
the terms of this Lease and shall be payable by Tenant upon demand, regardless
of whether Landlord consents to or denies such assignment or sublease or elects
to cancel this Lease as provided in paragraph 12.4 above.
12.12 Neither
the Tenant nor any other person having an interest in the possession, use,
occupancy or utilization of the Premises or any other portion of the Real
Property shall enter into any lease, sublease, license, concession or other
agreement for the use, occupancy or utilization of space in the Premises or
any
other portion of the Real Property which provides for any rental or other
payment for such use, occupancy or utilization based in whole or in part upon
the net income or profits derived from any person from the space in the Premises
or any other portion of the Real Property so leased, used, occupied or utilized,
other than an amount based upon a fixed percentage or percentages of gross
receipts or gross sales.
12.13 If
Tenant
is a corporation, the transfer by one or more transfers, directly or indirectly,
by operation of law or otherwise, of a majority of the stock of Tenant shall
be
deemed a voluntary assignment of this Lease; provided, however, that the
provisions of this Article shall not apply to the transfer of shares of stock
of
Tenant if and so long as Tenant is publicly traded on a nationally recognized
stock exchange.
For
purposes of this Section the term “transfers” shall be deemed to include the
issuance of new stock or of treasury stock which results in a majority of the
stock of Tenant being held by a any individual(s) or entity(ies) that do not
hold a majority of the stock of Tenant on the date hereof. If Tenant is a
partnership, limited, liability company or other entity, the transfer by one
or
more transfers, directly or indirectly, by operation of law or otherwise, of
a
majority of the beneficial ownership interest in such entity shall be deemed
a
voluntary assignment of this Lease. Notwithstanding the foregoing, Landlord’s
consent shall not be required for (a) a merger or consolidation of Tenant into
or with another entity, or (b) an assignment of this Lease to an entity
acquiring all or substantially all of Tenant’s assets or (c) an entity which
Controls, is Controlled by or is under Common Control with, Tenant, so long
as
(i) such transfer was made for a legitimate independent business purpose and
not
for the purpose of transferring this Lease, (ii) the successor to Tenant
has a net worth computed in accordance with generally accepted accounting
principles at least equal to the greater of (A) the net worth of Tenant
immediately prior to such merger, consolidation or transfer, and (B) the
net worth of the original Tenant on the date of this Lease, (iii) proof
satisfactory to Landlord of such net worth is delivered to Landlord at least
ten
(10) days prior to the effective date of any such transaction, and (iv) Landlord
is provided with at least ten (10) days prior notice of such
transaction.
ARTICLE
XIII
|
13.
|
SURRENDER
|
13.1 Upon
the
termination of the Term or prior expiration of this Lease, Tenant shall
peaceably and quietly quit and surrender to Landlord the Premises, broom clean,
in as good condition as on the Commencement Date, normal wear and tear, repairs
and replacements by Landlord, alterations, additions, and improvements permitted
hereunder, and damage by fire or other casualty, excepted, free and clear of
all
occupancies. Tenant's obligations to observe or perform this covenant shall
survive the Termination Date or prior expiration of the Term. If the Termination
Date falls on a Sunday or a legal holiday, this Lease shall expire at 12 noon
on
the business day first preceding said date.
ARTICLE
XIV
|
14.
|
HOLDING
OVER
|
14.1 If
Tenant
holds possession of the Premises beyond the Termination Date or prior expiration
of the Term, Tenant shall become a tenant from month-to-month at the Basic
Rent
and Additional Rent payable hereunder during the last year of the Term,
multiplied by the following percentages: 150% for the first 30 days of such
holdover and 200% thereafter, and upon all other terms and conditions of this
Lease, and shall continue to be such month-to-month tenant until such tenancy
shall be terminated by Landlord and such possession shall cease. Nothing
contained in this Lease shall be construed as a consent by Landlord to the
occupancy or possession by Tenant of the Premises beyond the Termination Date
or
prior expiration of the Term, and Landlord, upon said Termination Date or prior
expiration of the Term shall be entitled to the benefit of all legal remedies
that now may be in force or may be hereafter enacted relating to the speedy
repossession of the Premises. In addition, if such holdover shall continue
for
fifteen (15) days or more, Tenant shall indemnify and hold Landlord harmless
from and against any loss, cost, liability or expense, including, but not
limited to, attorney’s fees resulting from such failure to vacate and also
including any claims made by any succeeding tenant founded on such failure
to
vacate.
-17-
ARTICLE
XV
|
15.1
|
LANDLORD'S
SERVICES
|
15.1.1 Landlord
shall furnish to Tenant the services set forth in this Lease, the Rules and
Regulations and the Building Maintenance Specifications annexed hereto as
services which are covered by the Basic Rent and Additional Rent.
15.1.2 Air
heating and air cooling shall be furnished in accordance with the specifications
set forth in paragraph 2E of the Workletter, only between the hours of 8:00
a.m.
and 6:00 p.m. Mondays through Fridays, Saturdays 8:00 a.m. until 1:00 p.m.,
Sundays and Building Holidays excluded. Air cooling shall be provided only
from
April 1st through October 15th, and then only when weather conditions
require.
15.1.3 If
Tenant
shall request the use of air heating or cooling at any times other than the
hours provided in Section
15.1.2
for such
service, Landlord shall furnish such to Tenant provided that: (1) Tenant pays
to
Landlord as Additional Rent, together with the next monthly installment of
Basic
Rent, the special overtime charge of Sixty-Five ($65.00) Dollars per hour
therefor, subject to prorated increase in the charge and surcharge for electric
energy by the public utility supplying same to the Building; and (2) Tenant's
written request shall be received by Landlord by 1:00 p.m. of the day before
such service is required.
15.1.4 Tenant
shall reimburse Landlord for Landlord’s cost of removal from the Premises, the
Building or the Real Property, of any refuse and rubbish of Tenant in excess
of
such refuse and rubbish incident to the ordinary office use of the Premises
as
permitted by this Lease and Tenant shall pay all bills therefore within ten
(10)
days after same are rendered. In addition, Tenant shall reimburse Landlord
for
the cost to Landlord of replacement of light and fluorescent light bulbs after
the first year of the Term.
|
15.2
|
ELECTRICITY
|
15.2.1 Throughout
the Term, Landlord agrees to redistribute electrical energy to the Premises
(not
exceeding the present electrical capacity at the Premises), upon the following
terms and conditions: (1) Tenant shall pay for such electrical energy as
provided by this paragraph 15.2.1; (2) Landlord shall not be liable in any
way
to Tenant, Tenant's agents, servants, employees, invitees or licensees, for
any
loss, damage, or expense which Tenant, Tenant's agents, servants, employees,
invitees or licensees, may sustain or incur as a result of any failure, defect,
or change in the quantity or character of electricity furnished to the Premises,
except to the extent caused by Landlord’s gross negligence or willful
misconduct, or if such quantity or character of electricity furnished to the
Premises is no longer available or suitable for Tenant's requirements or due
to
any cessation, diminution or interruption of the supply thereof; (3)
Tenant’s
consumption of electricity shall be measured by the submeter currently installed
in the Premises which submeter shall measure only the electricity consumed
in
the Premises (the reading of which submeter shall be paid for by Tenant), and
Tenant shall pay for its consumption of electricity as shown on such submeter
at
the rate paid by Landlord from time to time to the public utility company,
within ten (10) days after Landlord gives Tenant an invoice therefor. The
submeter shall not be removed by Tenant upon its surrender of the Premises.
If
Tenant leases any space in the Building in addition to the Premises and Tenant’s
electrical usage in such space is not measured by the submeter Landlord shall
have the right, at Tenant’s expense, to cause an
independent electrical engineering consultant selected by Landlord and
reasonably acceptable to Tenant, to make a survey of the electric power demand
of the electric lighting fixtures and the electric equipment of Tenant used
in
such space to determine the average monthly electric consumption thereof. The
findings of said consultant as to the average monthly electric consumption
of
Tenant shall be conclusive and binding on the parties hereto. Landlord shall
have the right at any time during the Term, at Tenant's expense, to cause such
non-submetered electrical usage in such space to be re-surveyed. In the event
that such re-survey shall indicate increased or decreased electrical consumption
from that established by the prior survey, there shall be an appropriate
adjustment in the amount paid by Tenant to Landlord for Tenant's electrical
consumption in accordance with the results of the new survey, as well as an
adjustment retroactive to the date of Tenant's increase or decrease in
electrical consumption, as established by the prior survey. All such amounts
shall be treated as Additional Rent due hereunder; (4) in the event that there
shall be an increase or decrease in the rate schedule of the public utility
for
the supply of electric energy to the Building or the imposition of any tax
with
respect to such electric energy or increase in such tax following the
Commencement Date, the Additional Rent payable hereunder shall be equitably
adjusted to reflect the resulting increase, decrease, or tax; (5) Tenant shall
be responsible for replacing all light bulbs, fluorescent lamps, non-building
standard lamps and bulbs, and all ballasts used by Tenant in the
Premises.
-18-
15.2.2 Tenant
covenants that its use of electricity in the Premises shall be limited to and
for the operation of (1) the building standard lighting, and (2) electric
typewriters, calculators, copying machines, printers, computers, and other
typical office machines. Tenant shall not substantially increase its electricity
use through the addition of office equipment or machines without first obtaining
the written consent of Landlord.
15.2.3 In
no
event shall Landlord be required or obligated to increase the electrical
capacity of any portion of the Building’s system, or to provide any additional
wiring or capacity to meet Tenant’s additional requirements, if any, beyond that
which was servicing the Premises at the Commencement of the Lease Term. Tenant’s
use of electric energy in the Premises shall not at any time exceed the capacity
of any of the electrical conductors and equipment in or serving the Premises.
Tenant shall make no alteration to the existing electrical equipment or connect
any fixtures, appliances, or equipment in addition to the equipment permitted
in
paragraph 15.2.2 above without the prior written consent of Landlord in each
instance. Should Landlord grant such consent, all additional risers or other
equipment required therefore shall be provided by Landlord and the cost thereof
shall be paid by Tenant upon Landlord's demand. As a condition to granting
such
consent, Landlord shall require an increase in the Additional Rent by an amount
which will reflect the cost of the additional equipment and service to be
furnished by Landlord. If Landlord and Tenant agree to such increase the
Additional Rent increase shall be determined by an independent electrical
engineer, to be selected by Landlord and whose services shall be paid for by
Tenant.
15.2.4 Landlord
reserves the right to discontinue furnishing electric energy to the Premises
at
any time if directed to do so by any public utility company or Governmental
Authority to discontinue such service to the Building upon not less than one
hundred twenty (120) days written notice to Tenant (or such shorter period
of
time as Landlord may be so directed), provided Tenant is able to obtain
electricity directly from the public utility company. If Landlord exercises
such
right of termination, this Lease shall continue in full force and effect and
shall be unaffected thereby, except only that, from and after the effective
date
of such termination, Landlord shall not be obliged to furnish electric energy
to
Tenant and the Additional Rent (but not the Basic Rent) shall be reduced by
a
sum per annum equal to the amount that represented the cost to Landlord of
such
discontinued electricity for which Tenant had been obligated to pay Additional
Rent. If Landlord so discontinues furnishing electric energy to Tenant, Tenant
shall arrange to obtain electric energy directly from the public utility company
furnishing electric energy to the Building. Tenant may obtain such electric
energy by means of the then-existing Building system feeders, risers, and wiring
to the extent that the same are available, suitable, and safe for such purposes.
All meters and additional panel boards, feeders, risers, wiring, and other
conductors and equipment which may be required to obtain electric energy from
the public utility company shall be installed and maintained by Tenant at its
sole expense.
15.2.5 Landlord
shall not be liable in the event of any interruption in the supply of
electricity, or for any consequence thereof and Tenant agrees that such supply
may be interrupted for inspection, repairs, replacement and in
emergencies.
15.2.6 The
failure of Landlord to furnish any service hereunder shall not be construed
as a
constructive eviction of Tenant and shall not excuse Tenant from failing to
perform any of its obligations hereunder and shall not give Tenant any claims
against Landlord for damages for failure to furnish such service.
-19-
ARTICLE
XVI
|
16.
|
QUIET
ENJOYMENT
|
16.1 Landlord
covenants and agrees that, upon the performance by Tenant of all of the
covenants, agreements, and provisions hereof on Tenant's part to be kept and
performed, Tenant shall have, hold, and enjoy the Premises, subject and
subordinate to the rights set forth in ARTICLE XXI, free from any interference
whatsoever by, from, or through the Landlord, or any person claiming through
or
under Landlord; provided, however, that no diminution or abatement of the Basic
Rent, Additional Rent, or other payment to Landlord shall be claimed by or
allowed to Tenant for inconvenience or discomfort arising from the making of
any
repairs, improvements or additions to the Premises or the Real Property, nor
for
any space taken to comply with any law, ordinance, or order of any Governmental
Authority, except as and if expressly provided for herein.
ARTICLE
XVII
|
17.
|
AIR
AND LIGHT
|
17.1 This
Lease does not grant any rights to air and light.
ARTICLE
XVIII
|
18.
|
DEFAULT
|
18.1 Each
of
the following, whether occurring before or after the Commencement Date, shall
be
deemed a Default by Tenant and a breach of this Lease: (1) the filing of a
petition by or against Tenant for adjudication as a bankrupt, or for
reorganization, or for arrangement under any bankruptcy act; (2) the
commencement of any action or proceeding for the dissolution or liquidation
of
Tenant, whether instituted by or against Tenant, or for the appointment of
a
receiver or trustee of the property of Tenant under any state or federal statute
for relief of debtors; (3) the making by Tenant of an assignment for the benefit
of creditors; (4) Intentionally Omitted; (5) the filing of a tax lien or a
mechanics' lien against any property of Landlord or Tenant, which filing is
not
bonded or removed within thirty (30) days after written notice thereof from
Landlord; (6) Tenant's causing or permitting the Premises to be vacant, for
a
period in excess of thirty (30) days after written notice thereof from Landlord;
(7) failure by Tenant to pay Landlord when due the Basic Rent, Additional Rent
or any other sum by the time required by the terms of this Lease which failure
is not cured within five (5) days after written notice thereof from Landlord;
and (8) a failure by Tenant in the performance of any other term, covenant,
agreement, or condition of this Lease on the part of Tenant to be performed,
which failure, if curable, is not cured within thirty (30) days (or such longer
period as may be necessary, so long as Tenant is diligently and continuously
undertaking such cure) after notice thereof from Landlord.
18.2 Notwithstanding
anything herein to the contrary, Landlord shall not be required to provide
Tenant with more than two (2) notices of default with respect to a default
in
the payment of Basic Rent or Additional Rent in any 12 consecutive month period
during the Term of this Lease. Tenant herein waives any notice requirements
found elsewhere in this Lease beyond the number described herein.
ARTICLE
XIX
19.
LANDLORD'S
RIGHTS UPON TENANT'S DEFAULT
19.1 Upon
a
Default by Tenant the following provisions shall apply and Landlord shall have
the rights and remedies set forth herein which rights and remedies may be
exercised upon or at any time following the occurrence of a Default unless,
prior to such exercise, the Default shall have been cured by Tenant in all
respects.
19.2 Landlord
shall have the right to xxx for unpaid Basic Rent, Additional Rent and for
all
other sums owed to Landlord.
19.3 By
notice
to Tenant, Landlord shall have the right to terminate this Lease as of a date
specified in the notice of termination and in such case, Tenant's rights,
including any based on any option to renew, to the possession and use of the
Premises shall end absolutely as of the termination date specified in such
notice; and this Lease shall also terminate in all respects except for the
provisions hereof regarding Landlord's damages and Tenant's liabilities arising
prior to, out of and following the Default and the ensuing
termination.
-20-
Following
such termination (as well as upon any other termination of this Lease by
expiration of the Term or otherwise) Landlord immediately shall have the right
to recover possession of the Premises; and to that end, Landlord may enter
the
Premises and take possession, without the necessity of giving Tenant any notice
to quit or any other further notice, with or without legal process or
proceedings, and in so doing Landlord may remove Tenant's property (including
any improvements or additions to the Premises which Tenant made, unless made
with Landlord's consent which expressly permitted Tenant to not remove the
same
upon expiration of the Term), as well as the property of others as may be in
the
Premises, and make disposition thereof in such manner as Landlord may deem
to be
commercially reasonable and necessary under the circumstances.
19.4 Unless
and until Landlord shall have terminated this Lease under paragraph 19.3 above,
Tenant shall remain fully liable and responsible to perform all of the covenants
and to observe all the conditions of this Lease throughout the remainder of
the
Term; and, in addition and without regard to whether Landlord shall have
terminated this Lease, Tenant shall pay to Landlord, upon demand and as
Additional Rent, the total sum of all costs, losses and expenses, including
reasonable counsel fees, as Landlord incurs, directly or indirectly, because
of
any Default having occurred.
If
Landlord either terminates Tenant's right to possession without terminating
this
Lease or terminates this Lease and Tenant's leasehold estate as above provided,
Landlord shall have the unrestricted right to relet the Premises or any part(s)
thereof to such tenant(s) on such provisions and for such period(s) as Landlord
may deem appropriate. Landlord shall be obligated to mitigate its damages to
the
extent required by applicable law; provided, however, Landlord shall have no
obligation to have the Premises available for reletting or otherwise endeavor
to
relet so long as Landlord (or any related entity) has other comparable vacant
space or property available for leasing to others and Landlord's obligation
to
mitigate damages shall be limited to such efforts as Landlord, in its sole
reasonable judgment, deems appropriate.
19.5 The
damages which Landlord shall be entitled to recover from Tenant shall be the
sum
of:
(1)
all
Basic Rent, Additional Rent and other charges accrued and unpaid as of the
termination date; and
(2)
(i)
all costs and expenses actually incurred by Landlord in recovering possession
of
the Premises, including removal and storage of Tenant's property, improvements
and alterations therefrom, (ii) the costs and expenses of restoring the Premises
to the condition in which the same were to have been surrendered by Tenant
as of
the expiration of the Term, or, in lieu thereof, the costs and expenses of
remodeling or altering the Premises or any part for reletting the same, (iii)
the costs of reletting (exclusive of those covered by the foregoing (ii)),
including brokerage fees and reasonable counsel fees, and (iv) any overhead
expenses related to the vacancy of the Premises for each month or part between
the date of termination and the reletting of the entire Premises; and
(3)
all
Basic Rent, Additional Rent and other charges to the extent that the amount(s)
of Additional Rent or other charges have been determined otherwise payable
by
Tenant over the remainder of the Term.
Less,
deducting from the total determined under subparagraphs (1), (2), and (3) all
rent and all other Additional Rent to the extent determinable as aforesaid,
(to
the extent that like charges would have been payable by Tenant) which Landlord
receives from other tenant(s) by reason of the leasing of the Premises or part
during or attributable to any period falling within the otherwise remainder
of
the Term.
The
damage sums payable by Tenant under the preceding provisions of this paragraph
19.5 shall be payable on demand from time to time as the amounts are
determined.
In
lieu
of the damages payable in subparagraph (3) of this paragraph 19.5, Landlord
shall be entitled to recover from Tenant, in a single action, as liquidated
damages (in addition to the damages set forth in subparagraphs (1) and (2)
of
this paragraph 19.5) an amount equal all Basic Rent and Additional Rent for
the
period which otherwise would have constituted the unexpired portion of the
Term,
which amounts shall be discounted to present value at a rate of interest equal
to 2% below the interest rate then announced by JPMorgan Chase Bank, N.A. as
its
“Prime Rate” (or such other term as may be used by JPMorgan Chase Bank, N.A.,
from time to time), provided that for the purpose of calculating said liquidated
damage amount, Additional Rent and other charges shall be fixed, from the date
of such election or commencement of reletting, as the amount of Additional
Rent
and other charges which would have been paid by Tenant, had Tenant not
defaulted, as of the date of such election.
-21-
19.6 Any
sums
payable by Tenant hereunder, which are not paid after the same shall be due,
shall bear interest from that day until paid at the rate of interest stated
at
paragraph 1.3.
19.7 Landlord
shall be entitled to injunctive relief in case of the violation, or attempted
or
threatened violation, of any covenant, agreement, condition or provision of
this
Lease, or to a decree compelling performance of any covenant, agreement,
condition or provision of this Lease.
19.8 In
addition to any applicable lien, none of which are to be deemed waived by
Landlord, Landlord shall have, at all times, and Tenant hereby grants to
Landlord, a valid lien and security interest to secure payment of all rentals
and other sums of money becoming due under this Lease from Tenant, and to secure
payment of any damages or loss which Landlord may suffer by reason of the breach
by Tenant of any covenant, agreement or condition contained herein, upon all
goods, wares, equipment, fixtures, furniture, improvements and other personal
property of Tenant presently or which may hereafter be situated on the Premises,
and all proceeds therefrom, and such property shall not be removed therefrom
without the consent of Landlord until all arrearages in rent as well as any
and
all other sums of money then due to Landlord hereunder shall first have been
paid and discharged and all covenants, agreements and conditions hereof have
been fully complied with and performed by Tenant. Upon the occurrence of an
event of default by Tenant, Landlord may, in addition to any other remedies
provided herein, enter upon the Premises and take possession of any and all
goods, wares, equipment, fixtures, furniture, improvements and other personal
property of Tenant situated on the Premises, without liability for trespass
or
conversion, and sell the same at public or private sale, with or without having
such property at the sale, after giving Tenant reasonable notice of the time
and
place of any public sale or of the time after which any private sale is to
be
made, at which sale Landlord or its assigns may purchase unless otherwise
prohibited by law. Unless otherwise provided by law, and without intending
to
exclude any other manner of giving Tenant reasonable notice, the requirement
of
reasonable notice shall be met if such notice is given in the manner prescribed
in ARTICLE XXVI of this Lease at least five (5) days before the time of sale.
The proceeds from any such disposition, less any and all expenses connected
with
the taking of possession, holding and selling of the property (including
reasonable attorney's fees and other expenses), shall be applied as a credit
against the indebtedness secured by the security interest granted herein. Any
surplus shall be paid to Tenant or as otherwise required by law; and Tenant
shall pay any deficiencies forthwith. Upon request by Landlord, Tenant agrees
to
execute and deliver to Landlord a financing statement in form sufficient to
perfect the security interest of Landlord in the aforementioned property and
proceeds thereof under the provisions of the Uniform Commercial Code in force
in
the State of New Jersey.
19.9 For
the
purpose of this ARTICLE XIX, in the event of Tenant’s voluntary or involuntary
bankruptcy, should the Tenant as Debtor-in-Possession or a Trustee appointed
by
the Bankruptcy Court, attempt to provide adequate assurance of Tenant’s ability
to continue to operate out of the Premises, adequate assurance shall mean to
the
extent permitted by law, at a minimum, the following:
(i) The
Trustee or Debtor-in-Possession has and will continue to have sufficient
unencumbered assets after the payment of all secured obligations and
administrative expenses to assure Landlord that the Trustee or
Debtor-in-Possession will have sufficient funds to fulfill the obligations
of
Tenant under this Lease, and to keep the Demised Premises properly staffed
with
sufficient employees to conduct a fully operational, actively promoted business
in the Premises; and
(ii) The
Bankruptcy Court shall have entered an Order segregating sufficient cash payable
to Landlord and/or the Trustee or Debtor-in-Possession shall have granted a
valid and perfected first lien and security interest and/or mortgage in property
of Tenant, Trustee or Debtor-in-Possession, acceptable as to value and kind
to
Landlord, to secure to Landlord the obligation of the Trustee or
Debtor-in-Possession to cure the monetary and/or non-monetary defaults under
this Lease within the time periods set forth above.
19.10 Notwithstanding
anything to the contrary in this Lease, in no event shall either party be liable
to the other for special, indirect or consequential damages except as provided
in Section
14.1.
-22-
ARTICLE
XX
20.
LANDLORD'S
REMEDIES CUMULATIVE; EXPENSES
20.1 All
rights and remedies of Landlord herein enumerated shall be cumulative, and
none
shall exclude any other right or remedy allowed by law. For the purposes of
any
suit brought or based hereon, at Landlord's option, this Lease shall be
construed to be a divisible contract, to the end that if Landlord so elects
successive actions may be maintained on this Lease as successive periodic sums
mature hereunder.
20.2 Tenant
shall pay, upon demand, all of Landlord's costs, charges and expenses, including
reasonable fees of counsel, agents and others retained by Landlord, actually
incurred in enforcing Tenant's obligations hereunder.
ARTICLE
XXI
21.
SUBORDINATION,
ESTOPPEL AND ATTORNMENT
21.1 This
Lease is subject and subordinate to the lien of any and all mortgages (which
term shall include both construction and permanent financing and shall include
deeds of trust and similar security instruments) and all ground or other
underlying leases from which Landlord's title is derived (“ground leases”) which
may now or hereafter encumber or otherwise affect the Real Property or
Landlord's leasehold therein, and to any and all renewals, extensions,
modifications, recasting or refinancing thereof. This clause shall be self
operative and no further instrument of subordination need to be required by
any
mortgagee, trustee or ground lessee. Nevertheless, if requested by Landlord,
Tenant shall promptly execute such subordination certificate or other
subordination document requested. Tenant agrees that if any proceedings are
brought for the foreclosure of any such mortgage, Tenant if requested to do
so
by the purchaser at the foreclosure sale or the grantee of any deed given in
lieu of foreclosure, shall attorn to such purchaser or grantee, shall recognize
the purchaser or grantee as the Landlord under this Lease, and shall make all
payments required hereunder to such new Landlord without any deduction or
set-off or any kind whatsoever. Tenant agrees that if any proceedings are
successfully brought for the termination of any ground lease, or if any other
remedy is successfully exercised by any ground lessor whereby the ground lessor
succeeds to the interests of tenant under the ground leases, Tenant, if
requested to do so by the ground lessor, shall attorn to the ground lessor,
shall recognize the ground lessor as the Landlord under this Lease, and shall
make all payments required hereunder to such new Landlord without deduction
or
set-off.
21.2 Tenant
agrees at any time and from time to time upon not less than thirty (30) days
prior written request by Landlord, to execute, acknowledge and deliver to
Landlord's a statement in writing certifying that this Lease is unmodified
and
in full force and effect (or, if there have been modifications, that the same
are in full force and effect as modified and stating the modifications) and
the
dates to which the Basic Rent and Additional Rent have been paid, and stating
whether Tenant knows of any default by Landlord under this Lease, and, if so,
specifying each such known default, it being intended that any such statement
delivered pursuant to this paragraph 21.2 may be relied upon by a prospective
purchaser of Landlord's interest or a mortgagee of Landlord's interest or
assignee of any mortgage upon Landlord's interest in the Real
Property.
21.3 If,
in
connection with obtaining or continuing financing on the Premises, the Real
Property, or improvements thereto, the Landlord's mortgage lender shall request
reasonable modifications to this Lease as a condition to such financing, Tenant
agrees to promptly execute a modification document incorporating such
modifications; provided that said modifications do not (i) increase the monetary
obligations of the Tenant, (ii) adversely affect the Tenant's use of the
Premises by more than a de minimis extent, (iii) increase any other obligation
of Tenant more than to a de minimis extent, or (iv) reduce any obligation of
Landlord under this Lease.
21.4 Landlord
shall request an agreement from the holder of any mortgage or ground lease
now
or hereafter affecting the Building and/or Real Property on such holder’s
customary form agreeing in substance that if Landlord’s interest in this Lease
shall be foreclosed upon, then provided Tenant is not in default of its
obligation hereunder beyond any applicable notice and grace period, Tenant’s
occupancy of the Premises shall not be disturbed provided Tenant shall attorn
to
and recognize the holder of said mortgage or ground lessee as its Landlord
hereunder, in accordance with all the executory terms and conditions of this
Lease.
-23-
ARTICLE
XXII
22.
DAMAGE
BY
FIRE OR OTHER CASUALTY
22.1 If
the
Premises shall be damaged by fire or other casualty: 1) except as otherwise
provided in subsection (2) hereof, the damage shall be promptly repaired by
and
at the expense of Landlord and the Basic Rent and Additional Rent until such
repairs shall be made shall be equitably abated according to the part of the
Premises which is usable by Tenant, unless such damage was caused by the gross
negligence or willful misconduct of Tenant or its servants, agents, employees,
invitees, or licensees, in which case no abatement of Basic Rent or Additional
Rent shall be made. Landlord agrees, at its expense, to repair promptly any
damage to the Premises, except that Tenant agrees to repair or replace its
own
furniture, furnishings and equipment. No penalty shall accrue due to an
Excusable Delay. (2) If the Premises are totally damaged or are rendered wholly
untenantable by fire or other casualty, or if Landlord's architect certifies
that it cannot be repaired within nine (9) months of the casualty or if Landlord
shall decide to demolish the Building, Landlord shall, within sixty (60)
days
after
such fire or other casualty, give Tenant a notice of such circumstance or
decision, and thereupon the Term shall expire ten (10) days after such notice
is
given, and Tenant shall vacate the Premises and surrender the same to Landlord.
(3) If Landlord fails to complete the repair and restoration of the Premises
within nine (9) months from the date of the casualty (subject to Excusable
Delays) then Tenant shall have the right to cancel and terminate this Lease
upon
the delivery of a notice to Landlord delivered within fifteen (15) days after
the expiration of the aforesaid nine (9) month period. (4) Landlord agrees
that
it shall diligently pursue all repair and restoration work required on its
part
to be completed hereunder.
22.2 Subject
to the provisions of Section
23.1,
if the
Premises shall be damaged by fire or other casualty arising from the gross
negligence or willful misconduct of Tenant or its servants, agents, employees,
invitees or licensees and said damage is not covered under the policy or
policies of insurance issued to Landlord or Tenant, Tenant shall be liable
to
Landlord as is elsewhere provided in this Lease, Landlord shall have the option
but not the obligation to restore or rebuild the same or to terminate this
Lease
and Tenant shall continue to be responsible to pay Basic Rent and Additional
Rent without abatement for the entire Term otherwise applicable. Notwithstanding
anything herein to the contrary, under no circumstances shall Tenant have the
right to cancel and terminate this Lease in the event the Premises shall be
damaged by fire or other casualty arising from the gross negligence or willful
misconduct of Tenant or its servants, agents, employees, invitees or licensees.
22.3
If the
Premises are substantially damaged and are thereby rendered wholly untenantable,
or if the Building shall be so damaged that Tenant is deprived of reasonable
access to the Premises, and if Landlord is required or elects to restore the
Premises, Landlord shall, within sixty (60) days following the date of the
damage, give notice (the “Restoration
Notice”)
to
Tenant of the date by which Landlord estimates the restoration of the Premises
(including Landlord Work but excluding any Tenant Alterations) shall be
Substantially Completed. If such date, as set forth in the Restoration Notice,
is more than twelve (12) months from the date of such damage, then Tenant shall
have the right to terminate this Lease by giving notice (the “Termination
Notice”)
to
Landlord not later than thirty (30) days following Tenant’s receipt of the
Restoration Notice. If Tenant delivers a Termination Notice to Landlord, this
Lease shall be deemed to have terminated as of the date of the giving of the
Termination Notice.
ARTICLE
XXIII
23.
MUTUAL
WAIVER OF SUBROGATION CASUALTY
23.1 Each
party hereto waives any cause of action it might have against the other party
on
account of any loss or damage that is insured against under any insurance policy
(to the extent that such loss or damage is recoverable under such insurance
policy) that covers the Building, and/or Premises, Landlord's or Tenant's
fixtures, personal property, leasehold improvements or business and which names
Landlord or Tenant, as the case may be, as a party insured. Each party hereto
agrees that it will cause its insurance carrier to endorse all applicable
policies waiving the carrier's right of recovery under subrogation or otherwise
against the other party.
ARTICLE
XXIV
24.
CONDEMNATION
-24-
24.1 If
all of
the Premises shall be acquired or condemned by eminent domain proceeding, or
by
giving of a deed in lieu of thereof (a “Taking”), then and in that event, the
Term shall cease and terminate from the date of title-vesting pursuant to such
proceeding or agreement. If only a portion of the Premises shall be so acquired
or condemned, this Lease shall cease and terminate at Landlord's option, and
if
such option is not exercised by Landlord, an equitable adjustment of the Basic
Rent and Additional Rent payable by Tenant for the remaining portion of the
Premises shall be made. If 25% or more of the Premises shall be acquired or
condemned, the Tenant shall also have the option to terminate this Lease. In
the
event of a termination under this ARTICLE other than for the adjustment of
the
Basic Rent and Additional Rent as hereinbefore mentioned, Tenant shall have
no
claim whatsoever against Landlord including (without limitation) any claim
for
the value of any unexpired Term; nor shall Tenant be entitled to claim or
receive any portion of any amount that may be awarded as damages or paid as
a
result of such proceedings or as the result of any agreement made by the
condemning authority with Landlord. Tenant shall assert no claim, including
(without limitation) any claim for the value of any unexpired Term, against
the
condemning authority that may in any way impair or diminish Landlord's claims
against such condemning authority.
24.2 If
a
Taking occurs which does not result in the termination of this Lease, Landlord
shall repair, after and restore the remaining portions of the Premises to its
former condition to the extent that the same may be feasible.
ARTICLE
XXV
25.
CHANGES
SURROUNDING BUILDING
25.1 This
Lease shall not be affected or impaired by any change, alteration or addition
in, to or of any sidewalk, alley, street, landscape or structure adjacent to
or
around the Building or Real Property, except as provided in ARTICLE
XXIV.
25.2 Any
changes in the arrangement or location of any public portion of the Building
not
contained in the Premises or any part thereof shall not constitute an eviction
or disturbance of Tenant's use or possession of the Premises provided such
change does not unreasonably interfere with Tenant's use of or ingress to and
from the Premises and Landlord shall be free to make such changes or alterations
without liability to Tenant
25.3 Landlord
may designate a name and address for the Building and may change same from
time
to time as Landlord sees fit or as may be required by law.
ARTICLE
XXVI
26.
NOTICES
26.1 Except
as
may be otherwise expressly provided in this Lease, notices by either party
to
the other shall be in writing and shall be sent by registered or certified
mail,
by overnight mail by a nationally recognized overnight delivery service or
by
hand delivery, addressed to Landlord or Tenant at their respective addresses
hereinabove set forth or to such other address as either party shall hereafter
designate by notice as aforesaid. All notices properly addressed shall be deemed
served upon receipt by the addressee or, in the case of notice by mail, three
(3) days after the date of mailing, except that notice of change of address
shall not be deemed served until received by the addressee.
ARTICLE
XXVII
27.
NO
WAIVER
27.1 No
delay
or forbearance by Landlord, no act or undertaking by Landlord and/or no waiver
by Landlord of any breach by Tenant of any of the terms, covenants, agreements,
or conditions of this Lease shall be deemed to constitute a waiver of any
current (unless Landlord so agrees in writing) or succeeding breach thereof,
or
a waiver of any breach of any of the terms, covenants, agreements and conditions
herein contained.
-25-
27.2 No
employee of Landlord or of Landlord's agents shall have any authority to accept
the keys of the Premises prior to the Termination Date and the delivery of
keys
to any employee of Landlord or Landlord's agents shall not operate as an
acceptance of a termination of this Lease or an acceptance of a surrender of
the
Premises.
27.3 The
receipt by Landlord of the Basic Rent and Additional Rent with knowledge of
the
breach of any covenant of this Lease shall not be deemed a waiver of such
breach. No payment by Tenant or receipt by Landlord of a lesser amount than
the
monthly Basic Rent or a lesser amount of the Additional Rent then due shall
be
deemed to be other than on account of the earliest stipulated amount then due,
nor shall any endorsement or statement on any check or any letter or other
instrument accompanying any check or payment as Basic Rent or Additional Rent
be
deemed an accord and satisfaction and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such Basic
Rent
or Additional Rent or pursue any other remedy provided in this
Lease.
27.4 The
failure of Landlord to enforce any of the Rules and Regulations as may be set
by
Landlord from time to time against Tenant or against any other tenant in the
Building shall not be deemed a waiver of any such Rule or
Regulation.
ARTICLE
XXVIII
28.
LANDLORD'S
RESERVED RIGHTS
28.1 Landlord
reserves the following rights: (1) if during or prior to the last ninety (90)
days of the Term Tenant vacates the Premises, to decorate, remodel, repair,
alter or otherwise prepare the Premises for reoccupancy and, (2) to masterkey
all locks to the Premises.
28.2 Landlord
may enter upon the Premises and may exercise either of the foregoing rights
hereby reserved in this ARTICLE XXVIII without being deemed to have caused
an
eviction or disturbance of Tenant's use and possession of the Premises and
without being liable in any manner to Tenant.
ARTICLE
XXIX
29.
LANDLORD'S
LIABILITY
29.1 Landlord,
as well and Landlord's owners, servants, employees, agents or licensees, shall
not be liable for any injury or damage to persons or property resulting from
fire, explosion, falling plaster, steam, gas, electricity, water, rain, snow,
or
leaks from any part of the Building or from the pipes, appliances, plumbing,
or
the roof, street, subsurface, or from any other place or by dampness, offensive
odors or noise, or by any other cause of whatsoever nature, unless caused by
or
due to the negligence of Landlord or its agents.
29.2 Should
Tenant enter the Premises prior to the Commencement of this Lease for the
purpose of making any installations, alterations or improvements as may be
permitted by Landlord, Landlord shall have no liability or obligation for the
care or preservation of Tenant’s property, for personal injury, or
otherwise.
29.3 Tenant
agrees to take such steps, at its own cost, as it may deem necessary and
adequate for the protection of itself, and its agents, servants, employees,
invitees, and licensees against personal injury and property damage, by
insurance, as a self-insurer or otherwise.
ARTICLE
XXX
30.
TENANT'S
LIABILITY
30.1 Tenant
shall hold Landlord harmless from and indemnify Landlord for all expenses,
damages, or fines, incurred or suffered by Landlord by reason of any breach,
violation, or non-performance by Tenant, its agents, servants, employees,
invitees, or licensees of any covenant or provision of this Lease, or by reason
of damage to persons or property caused by moving property of or for Tenant
in
or out of the Building, or by the installation or removal of furniture or other
property of or for Tenant or by reason of, or arising out of the carelessness,
negligence or improper conduct of Tenant, or its agents, servants, employees,
invitees, and licensees in the use or occupancy of the Premises. Any such
expense shall be deemed Additional Rent, due in the next calendar month after
it
is incurred.
-26-
ARTICLE
XXXI
31.
TENANT'S
INSURANCE
31.1 Tenant
covenants to provide on or before the Commencement Date for the benefit of
Landlord and Tenant a comprehensive policy of commercial general liability
insurance protecting Landlord and Tenant against any liability whatsoever
occasioned by any occurrence on or about the Premises or any appurtenances
thereto naming Landlord as an additional insured. Such policy is to be written
by insurance companies qualified to do business in the State of New Jersey
and
the limits of liability thereunder shall not be less than the amount of Three
Million Dollars ($3,000,000.00) with respect to any one person, with respect
to
any one accident, and with respect to property damage. Such insurance may be
carried under a blanket policy covering the Premises and other locations of
Tenant, if any.
31.2 Prior
to
the time such insurance is first required by this ARTICLE to be carried by
Tenant, and thereafter, at least thirty (30) days prior to the expiration of
any
such policy, Tenant agrees to deliver to Landlord either a duplicate original
of
the aforesaid policy or a certificate evidencing such insurance, including
the
Landlord and the managing agent as an additional insured, together with evidence
of payment for the policy. Said policy or certificate shall contain an
endorsement that such insurance may not be canceled except upon thirty (30)
days
notice to Landlord.
31.3 Upon
failure at any time on the part of Tenant to procure and deliver to Landlord
the
policy or certificate of insurance, as hereinabove provided, stamped "Premium
Paid" by the issuing company at least thirty (30) days before the expiration
of
the prior insurance policy or certificate, if any, or to pay the premiums
therefore, Landlord shall be at liberty, from time to time, as often as such
failure shall occur, to procure such insurance and to pay the premium therefore,
and any sums paid for insurance by Landlord shall be and become, and are hereby
declared, to be Additional Rent hereunder for the collection of which Landlord
shall have all the remedies provided for in this Lease or by law for the
collection of rent. Payment by Landlord of such premium or the carrying by
Landlord of any such policy shall not be deemed to waive or release the default
of Tenant with respect thereto. Tenant's failure to provide and keep in force
the aforementioned insurance shall be regarded as a Default hereunder entitling
Landlord to exercise any or all of the remedies as provided in this Lease in
the
event of Default.
ARTICLE
XXXII
|
32.
|
CONSTRUCTION
LIENS
|
32.1 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 Construction Lien
Law
of the State of New Jersey, it being expressly understood that the Landlord’s
estate shall not be subject to such liability. The Tenant shall have no power
or
right to any act or make any contract which may create or be the format for
any
lien, mortgage or other encumbrance upon the estate of the Landlord.
Notwithstanding the foregoing, any construction lien filed against the Real
Property for work claimed to have been done for, or materials claimed to have
been furnished to Tenant, shall be bonded or discharged by Tenant within thirty
(30) days after notice of filing, at Tenant’s expense. Tenant shall forever
indemnify and hold Landlord harmless from and against any and all claims arising
from said liens including all costs, expenses, losses, fines and penalties,
including without limitation, reasonable attorneys fees related thereto or
resulting therefrom. This clause shall survive the Term of this
Lease.
ARTICLE
XXXIII
33.
NOTICE
OF
FIRE AND ACCIDENTS
33.1 Tenant
shall give Landlord immediate notice in case of fire or accident on the Premises
or, in case of fire or accident involving Tenant, its servants, agents,
employees, invitees, or licensees, in the Building or on the Real
Property.
ARTICLE
XXXIV
34.
RELEASE
OF LANDLORD
-27-
34.1 The
term
"Landlord" as used in this Lease means only the owner for the time being of
the
Real Property or the lessee of a lease of the Real Property. In the event of
any
transfer of title to or lease of the Real Property, the Landlord shall be
entirely freed and relieved of all covenants and obligations of Landlord
accruing from and after the date of said transfer hereunder, such transferee
shall be deemed to have assumed Landlord’s obligations under this Lease, and
this Lease shall be deemed and construed as a covenant running with the Land
without further agreement between the parties or their successors in
interest.
34.2 Landlord,
as well as Landlord's owners, servants, employees, agents or licensees, shall
be
under no personal or recourse liability with respect to any of the provisions
of
this Lease, and if Landlord is in breach or default with respect to its
obligations or otherwise, Tenant shall look solely to the equity of Landlord
in
the Real Property for the satisfaction of Tenant's remedies. It is expressly
understood and agreed that Landlord's liability under the terms, covenants,
conditions, and obligations of this Lease shall in no event exceed the loss
of
its equity in the Real Property.
ARTICLE
XXXV
35.
USE
OF
SECURITY DEPOSIT
35.1 In
the
event of a default of Tenant in respect of any of the terms, covenants or
conditions of this Lease, without regard to any provision in this Lease
regarding notice to cure, Landlord may use, apply or retain the whole or any
part of the Security Deposit to the extent required for the payment of any
Basic
Rent, Additional Rent, or any other sum as to which Tenant is in default, or
for
any sum which Landlord may expend or may reasonably be required to expend by
reason of Tenant's Default in respect to any of the terms, covenants, or
conditions of this Lease, including but not limited to, any damages or
deficiency accrued before or after summary proceedings of other re-entry by
Landlord. In the event that Landlord applies or retains the whole or any part
of
the Security Deposit as aforesaid, Tenant shall immediately restore the Security
Deposit to the sum thereof prior to any such use, application or retention.
In
the event that Tenant shall fully and faithfully comply with all of the terms,
covenants, and conditions of this Lease, the remaining amount of the Security
Deposit shall be returned to Tenant, without interest, promptly after the
Termination Date and after delivery of possession of the entire Premises to
Landlord.
35.2 In
the
event of a sale of the Real Property or a leasing thereof, Landlord shall have
the right to transfer the Security Deposit to the vendee or lessee, as the
case
may be, and Landlord shall thereupon be released by Tenant from all liability
for the return of such Security Deposit transferred to the new Landlord; and
Tenant agrees to look to the new Landlord solely for the return of the Security
Deposit; and it is agreed that the provisions thereof shall apply to every
transfer or assignment made of the Security Deposit to a new Landlord. Tenant
further covenants that it will not assign or encumber, or attempt to assign
or
encumber the Security Deposit and that neither Landlord nor its successors
or
assigns shall be bound by any such assignment, or attempted
encumbrance.
35.3 Provided
that no default by Tenant under this Lease shall have previously occurred or
then exist, on each of the first day of the tenth (10th)
month
and on the first day of the eighteenth (18th)
month
of the Term, the Security Deposit shall be reduced by eighteen thousand one
hundred twelve and 50/100 ($18,112.50) Dollars and such amount shall be returned
to Tenant.
ARTICLE
XXXVI
36.
DIRECTORY
36.1 Landlord
shall furnish and service at the entrance of the Building a directory, listing
therein such reasonable and customary number of names that Tenant may from
time
to time request to be listed in such directory. Tenant shall be responsible
for
the costs of changes to the Directory.
ARTICLE
XXXVII
37. HAZARDOUS
WASTE, AIR, WATER AND GROUND POLLUTION
-28-
37.1 Tenant
hereby warrants that its North American Industry Classification System ("NAICS")
Code Number is 325412. If Tenant's NAICS Code shall ever change it shall
immediately notify Landlord of such change. Tenant shall not (either with or
without negligence) cause or permit the escape, disposal or release of any
biological or chemically active or other hazardous substances, or materials
on
the Premises or the Real Property. Tenant shall not allow the storage or use
of
such substances or materials on the Premises or the Real Property in any manner
not sanctioned by law for the storage and use of such substances or materials
on
the Premises or the Real Property, nor allow to be brought into the Premises,
Building or Real Property any such materials or substances except to use in
the
ordinary course of Tenant's business. Without limitation, hazardous substances
and materials shall include those described in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601 et seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
Section 6901 et seq., any applicable state or local laws and the regulations
adopted under these acts. If any lender or governmental agency shall ever
require testing to ascertain whether or not there has been release of hazardous
materials on the Premises or the Real Property, then the reasonable costs
thereof shall be reimbursed by Tenant to Landlord upon demand as additional
charges if such requirement applies to the alleged release of hazardous material
on the Premises during the Term. In addition, Tenant shall execute affidavits,
representations and the like from time to time at Landlord's reasonable request
concerning Tenant's knowledge and belief regarding the presence of hazardous
substances or materials on the Premises. In all events, Tenant shall indemnify
Landlord in the manner provided in this Lease from any release of hazardous
materials on the Premises occurring while Tenant is in possession, or elsewhere
on the Real Property if caused by Tenant or persons acting under Tenant. The
within covenants shall survive the expiration or earlier termination of the
Lease Term. 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 the release
of
any hazardous material (hereinafter referred to as "Pollution") caused by the
Tenant in its use of the Premises. 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 Pollution; and the Tenant, in any event,
will take immediate steps to halt, remedy or cure any Pollution caused by the
Tenant by its use of the Premises. The foregoing covenant shall survive the
expiration or termination of the within Lease.
37.2 Landlord
represents that to its actual knowledge (without investigation) there are no
violations of any environmental laws currently existing with respect to the
Premises or the Real Property.
ARTICLE
XXXVIII
38.
ISRA
COMPLIANCE
38.1 Tenant
shall not cause the Premises to be used as an "Industrial Establishment" as
defined under the New Jersey Industrial Site Remediation Act, N.J.S.A. 12:1K-6
et seq. ("the Act") and all regulations promulgated pursuant to the Act. Tenant
shall, at Tenant's own expense, comply with the Act, Tenant shall, at Tenant's
own expense, provide all information within Tenant's control requested by
Landlord or the Bureau of Industrial Site Evaluation for the preparation of
submissions, declarations, reports and plans pursuant to the Act. If the New
Jersey Department of Environmental Protection (DEP) or any successor agency
shall determine that a clean-up plan be prepared and that a clean-up be
undertaken because of any spills or discharges of hazardous substances or wastes
at the Premises or elsewhere if Tenant or persons acting under Tenant or on
behalf of Tenant caused such release, then Tenant shall, at Tenant's own
expense, prepare and submit the required plans and carry out the approved plans.
Tenant shall indemnify, defend and save harmless Landlord from all costs,
expenses, fines, suits, procedures, claims and actions of any kind arising
out
of or in any way connected with any such spills or discharges of hazardous
substances or wastes at the Premises or elsewhere if caused by Tenant or persons
acting under Tenant or on behalf of Tenant. Tenant's obligations and liability
under this Paragraph shall survive the Term of this Lease and shall continue
so
long as Landlord remains responsible for any spills or discharges or hazardous
substances or wastes at the Premises. Tenant also agrees to cooperate with
the
Landlord in obtaining ISRA approval.
38.2
CONDITION
PRECEDENT TO ASSIGNMENT AND SUBLEASE
38.2.1 As
a
condition precedent to Tenant's right to sublet the Premises or to assign this
Lease, Tenant shall, at Tenant's own expense, first comply with ISRA and all
other Environmental Laws, and fulfill all of Tenant's environmental obligations
under this Lease pursuant to ARTICLE XXXVII which also arise upon termination
of
Tenant's Lease Term. If this condition shall not be satisfied, the Landlord
shall have the right to withhold consent to sublet or assignment.
-29-
ARTICLE
XXXIX
39.
TENANT
RELOCATION
39.1 Notwithstanding
any other provisions of this Lease to the contrary, the Landlord reserves the
right, not more than once during the Term and not more than once during the
Extended Period (as hereinafter defined) if Tenant exercises its option to
extend the Term in accordance with the provisions of ARTICLE XL, upon sixty
days
advance written notice to the Tenant, to relocate Tenant to substituted space
of
approximately equal square footage in the Building with a comparable window
line. Such substituted space shall then constitute the Premises under this
Lease
and this Lease shall remain in full force and effect without modification except
as may be appropriate to take into account any differences in the square footage
of such substituted space. In such event the Landlord shall pay all of Tenant’s
reasonable costs of moving and reinstallation of telephone and other equipment
in the substituted space. In addition, Landlord shall reimburse Tenant for
decorating and preparation of the substituted space, in such manner as shall
be
similar or equal to that which existed in the Premises; and the reimbursement
costs shall be so limited
ARTICLE
XL
40.
OPTION
TO
RENEW
40.1 Provided
that no Default exists, Tenant shall have one (1) option to extend the Term
of
this Lease, for one (1) period of five (5) years (the “Extended Period”) upon
the following terms and conditions:
40.2 If
Tenant
elects to exercise said option, it shall do so by giving notice of such election
to Landlord on or before the date which is twelve (12) months before the
Termination Date. Tenant agrees that it shall have forever waived its right
to
exercise any such option if it shall fail for any reason whatsoever to give
such
notice to Landlord by the time provided in this Section 40.2 for the giving
of
such notice, whether such failure is inadvertent or intentional, time being
of
the essence as to the exercise of such option.
40.3 If
Tenant
elects to exercise said option, the Term shall be automatically extended for
the
Extended Period without execution of an extension or renewal lease. However,
within ten (10) days after request of either party following the effective
exercise of such option, Landlord and tenant shall execute, acknowledge and
deliver to each other duplicate originals of an instrument confirming that
such
option was effectively exercised.
40.4 The
Extended Period shall be upon the same terms and conditions as are in effect
immediately preceding the commencement of any such Extended Period; provided,
however, that Tenant shall have no further right or option to extend the Term
for any period of time beyond the expiration of the Extended Period and provided
further, that during the Extended Period the Basic Rent shall be the greater
of:
(i) Two Hundred Twenty-Four Thousand Four Hundred Thirty-Seven and 50/100
($224,437.50) Dollars per annum payable in equal monthly installments, in
advance, in the amount of Eighteen Thousand Seven Hundred Three and
13/100 ($18,703.13) Dollars per month or (ii) the Fair Market Rent for the
Premises. Nothing set forth in this ARTICLE shall be deemed to provide Tenant
with more that one option to extend the original Term for a single period of
five (5) years in accordance with the provisions of this ARTICLE. If Landlord
and Tenant agree to any further extensions of this Lease, then such extension,
if any, shall be on such terms and conditions as Landlord and Tenant shall
mutually agree and the provisions of this ARTICLE shall not apply to any such
extension.
40.5 Any
termination, expiration, cancellation or surrender of this Lease shall terminate
any right or option for the Extended Period not yet exercised.
40.6 The
option provided herein to extend the Term of this Lease may not be severed
from
this Lease or separately sold, assigned or otherwise transferred.
40.7 For
purposes of determining the Basic Rent payable during the Extended Period,
the
Fair Market Rent shall be equal the fixed annual rent that a willing lessee
would pay and a willing lessor would accept for the Premises during the Extended
Period, taking into account all reasonably relevant factors. If Tenant gives
the
Renewal Notice in a timely manner, Landlord shall notify Tenant (the “Rent
Notice”) at least ninety (90) days before the Termination Date of Landlord’s
determination of the Basic Rent for the Extended Period, and if such
determination is the Fair Market Rent, Landlord’s determination thereof
(“Landlord’s Initial Determination”). If the Rent Notice sets forth Landlord’s
determination of the Fair Market Rent for the Premises, Tenant shall notify
Landlord (“Tenant’s Notice”), within ten (10) days after Tenant’s receipt of the
Rent Notice, TIME BEING OF THE ESSENCE, whether Tenant accepts or disputes
Landlord’s Initial Determination, and if Tenant disputes Landlord’s Initial
Determination, Tenant’s Notice shall set forth Tenant’s determination of the
Fair Market Rent (“Tenant’s Initial Determination”). If Tenant fails to give
Tenant’s Notice within such ten (10) day period, Tenant shall be deemed to have
accepted Landlord’s Initial Determination. If Tenant timely gives notice as
herein provided that Tenant disputes Landlord’s Initial Determination, the
parties shall then engage in good faith negotiations for ten (10) days to
determine the Fair Market Rent for the Extended Period. In the event the parties
cannot resolve their dispute with regard to the Fair Market Rent for the
Extended Period within such ten (10) day period, then this Lease shall be deemed
renewed and the Fair Market Rent shall be determined by arbitration in
accordance with Section 40.9 hereof.
-30-
40.8
If
Tenant timely disputes Landlord’s Initial Determination and if the final
determination of Fair Market Rent shall not be made on or before the first
day
of the Extended Period, then, pending such final determination, Tenant shall
pay, as Basic Rent for the Extended Period, an amount equal to Landlord’s
Initial Determination. If, based upon the final determination of the Fair Market
Rent, the Basic Rent payments made by Tenant for such portion of the Extended
Period were (i) less than the Fair Market Rent payable for the Extended Period,
Tenant shall pay to Landlord the amount of such deficiency within ten (10)
days
after demand therefor or (ii) greater than the Fair Market Rent payable for
the
Extended Period, Landlord shall credit the amount of such excess against future
installments of Basic Rent and/or Additional Rent payable by
Tenant.
40.9 If
Tenant
timely disputes Landlord’s Initial Determination and Landlord and Tenant fail to
agree as to the Fair Market Rent within thirty
(30) days after the giving of Tenant’s Notice, then the Fair Market Rent shall
be determined by arbitration (and either party may request arbitration in such
circumstances) conducted in accordance with the Real Estate Valuation
Arbitration Rules (Expedited Procedures) of the American Arbitration Association
(or any successor organization; collectively, the “AAA”), except that the
provisions of this Section 40.9 shall supersede any conflicting or inconsistent
provisions of said rules. The party requesting arbitration shall do so by giving
notice to that effect to the other party, specifying in said notice the nature
of the dispute, and that said dispute shall be determined in the County of
Essex, State of New Jersey, by one arbitrator in accordance with this Section
40.9. If the parties fail to agree on an arbitrator within fourteen (14) days
after either party first requests arbitration, then either Landlord or Tenant
may request the AAA to appoint an arbitrator who shall be impartial within
fourteen (14) days of such request and both parties shall be bound by any
appointment so made. If no such arbitrator shall have been appointed within
such
fourteen (14) days, either Landlord or Tenant may apply to any court having
jurisdiction to make such appointment. The arbitrator shall subscribe and swear
to an oath fairly and impartially to determine such dispute. The arbitrator
shall schedule a hearing for a date that is within fourteen (14) days after
the
appointment of the arbitrator where the parties and their advocates shall (i)
submit their respective determinations of Fair Market Rent (which respective
determinations of Fair Market Rent do not have to be the same as Landlord’s
Initial Determination and Tenant’s Initial Determination) and (ii) shall have
the right to present evidence, call witnesses and experts and cross-examine
the
other party’s witnesses and experts in support of such respective
determinations. Within 7 days after such hearing, the arbitrator shall render
his or her determination of the Fair Market Rent in writing, which determination
must be equal to either (1) the determination of Fair Market Rent submitted
by
Landlord pursuant to the immediately preceding sentence or (2) the determination
of Fair Market Rent submitted by Tenant pursuant to the immediately preceding
sentence, whichever the arbitrator believes to be closest to the Fair Market
Rent. The determination of the arbitrator shall be final and binding upon the
parties. The fees and expenses of any arbitration pursuant to this Section
40.9
shall be borne by the parties equally, but each party shall bear the expense
of
its own attorneys and experts and the additional expenses of presenting its
own
proof. The arbitrator shall not have the power to add to, modify or change
any
of the provisions of this Lease. The arbitrator shall have at least 10 years’
experience in leasing and valuation of properties which are similar in character
to the Building. After a determination has been made of the Fair Market Rent,
the parties shall execute and deliver an instrument setting forth the Fair
Market Rent, but the failure to so execute and deliver any such instrument
shall
not effect the determination of Fair Market Rent.
ARTICLE
XLI
41.
MISCELLANEOUS
41.1 ENTIRE
AGREEMENT: This Lease contains the entire agreement between the parties, and
any
attempt hereafter made to change, modify, discharge, or effect an abandonment
of
it in whole or in part shall be void and ineffective unless in writing and
signed by the party against whom enforcement of the change, modification,
discharge, or abandonment is sought.
-31-
41.2 JURY
TRIAL WAIVER: Landlord and Tenant do hereby waive trial by jury in any action,
proceeding, or counterclaim brought by either of the parties hereto against
the
other on any matter whatsoever arising out of or in any connection with this
Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of
the
Premises, and/or any claim, injury or damage, or any emergency or statutory
remedy.
41.3 FORCE
MAJEURE: If, by reason any circumstance or condition constituting Excusable
Delay, Landlord shall be unable to fulfill its obligations under this Lease
or
shall be unable to supply a service which Landlord is obligated to supply,
this
Lease and Tenant's obligation to pay Basic Rent and Additional Rent hereunder
shall in no way be affected, impaired, or excused.
41.4 BROKER:
Landlord and Tenant each represents that it has not dealt with any real estate
broker in connection with this Lease, other than the Brokers. Landlord and
Tenant each shall indemnify and hold the other party harmless of and from any
and all claims, liabilities, costs, or damages which such other party may incur
as a result of a breach of this representation, or as a result of any claim
asserted on the basis of allegations that would involve (if true) a breach
of
this representation by the indemnifying party.
41.5 SEPARABILITY:
If any term or provision of this Lease or the application thereof to any person
or circumstance shall, to any extent, be invalid or unenforceable, the remainder
of this Lease, or the application of such term or provision to persons or
circumstances other than those to which it is held invalid or unenforceable,
shall not be affected thereby and all other terms and provisions of this Lease
shall be valid and enforced to the fullest extent permitted by law.
41.6
INTERPRETATION:
41.6.1 Whenever
in this Lease any words of obligation or duty are used, such words or
expressions shall have the same force and effect as though made in the form
of
covenants.
41.6.2 Words
of
any gender used in this Lease shall be held to include any other gender, and
words in singular number shall be held to include the plural, when the sense
requires.
41.6.3 All
pronouns and any variations thereof shall be deemed to refer to the neuter,
masculine, feminine, singular, or plural as the identity of the Tenant
requires.
41.6.4 No
rules
of construction shall apply by reason of the identity of the draftsperson of
the
Lease. No remedy or election given by any provision in this Lease shall be
deemed exclusive unless so indicated, but each shall, wherever possible, be
cumulative with all other remedies in law or equity except as otherwise
specifically provided. Each provision hereof shall be deemed both a covenant
and
a condition and shall run with the land.
41.6.5 If,
and
to the extent that, any of the provisions of any Rider to this Lease conflict
or
are otherwise inconsistent with any of the preceding provisions of this Lease,
or of the Rules and Regulations appended to this Lease, whether or not such
inconsistency is expressly noted in the Rider, the provisions of the Rider
shall
prevail, and in case of inconsistency with said Rules and Regulations, shall
be
deemed a waiver of such Rules and Regulations with respect to Tenant to the
extent of such inconsistency.
41.6.6 Tenant
agrees that all of Tenant's covenants and agreements herein contained providing
for the payment of money and Tenant's covenant to remove mechanics' liens shall
be deemed conditions as well as covenants, and that if default be made in any
such covenants, Landlord shall have all of the rights provided for
herein.
41.6.7 The
parties mutually agree that the headings and captions contained in this Lease
are inserted for convenience of reference only, and are not to be deemed part
of
or to be used in construing this Lease.
41.6.8 The
covenants and agreements herein contained shall, subject to the provisions
of
this Lease, bind and inure to the benefit of Landlord, its successors and
assigns, and Tenant, its successors and assigns except as otherwise provided
herein.
-32-
41.6.9 It
is
further understood and agreed that wherever the provisions of this Lease require
that Landlord shall approve or consent, Landlord agrees not to unreasonably
withhold such prompt approval and consent and wherever Tenant is required to
do
anything to the satisfaction of Landlord it shall be deemed except as set forth
in ARTICLE XII and elsewhere as stated in Lease that reasonable satisfaction
of
Landlord will be sufficient.
41.6.9.1 This
Lease has been executed and delivered in the State of New Jersey and shall
be
construed in accordance with the laws of the State of New Jersey, and Landlord
and Tenant acknowledge that all of the applicable statutes of the State of
New
Jersey are superimposed on the rights, duties, and obligations of Landlord
and
Tenant hereunder and this Lease shall not otherwise provide that which said
statutes prohibit.
41.6.9.2 Landlord
has made no representations or promises with respect to the Premises or the
Real
Property, except as expressly contained herein. Tenant has inspected the
Premises and agrees to take the same in an "as is" condition, except as
other-wise expressly set forth. Landlord shall have no obligation, except as
herein set forth, to do any work in and to the Premises to render them ready
for
occupancy and use by Tenant.
41.6.9.3 Tenant
shall not record this Lease or a memorandum thereof.
41.7 FINANCIAL
STATEMENTS: If Tenant should ever cease to file its financial statements
publicly with the Securities and Exchange Commission, Tenant shall, at
Landlord's request file periodically with the Landlord or its mortgagee(s)
copies of such financial information as is commercially reasonable in light
of
the circumstances.
41.8 EMBARGOED
PERSON::
Tenant
represents that as of the date of this Lease, and Tenant covenants that
throughout the term of this Lease: (a) Tenant is not, and shall not be, an
Embargoed Person, (b) none of the funds or other assets of Tenant are or shall
constitute property of, or are or shall be beneficially owned, directly or
indirectly, by any Embargoed Person; (c) no Embargoed Person shall have any
interest of any nature whatsoever in Tenant, with the result that the investment
in Tenant (whether directly or indirectly), is or would be prohibited by law
or
this Lease is or would be in violation of law and (d) none of the funds of
Tenant are or shall be derived from any unlawful activity with the result that
the investment in Tenant (whether directly or indirectly) is or would be
prohibited by law or this Lease is or would be in violation of law. “Embargoed
Person” means a person, entity or government (i) identified on the Specially
Designated Nationals and Blocked Persons List maintained by the United States
Treasury Department Office of Foreign Assets Control and/or any similar list
maintained pursuant to any authorizing statute, executive order or regulation
and/or (ii) subject to trade restrictions under United States law, including,
without limitation, the International Emergency Economic Powers Act, 50 U.S.C.
§
1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and
any
Executive Orders or regulations promulgated under any such laws, with the result
that the investment in Tenant (whether directly or indirectly), is or would
be
prohibited by law or this Lease is or would be in violation of law.
-33-
IN
WITNESS WHEREOF, the parties hereto have executed this Lease on the date first
above written.
|
WITNESS:
|
Landlord:
|
||
|
XXXXXXX
ASSOCIATES I
|
|||
|
By:
Janfel Corp., General Partner
|
|||
|
/S/
Xxxxxxx X Xxxxxxx
|
/S/
Xxxxx
Xxxxxxx
|
||
|
By:
Xxxxx Xxxxxxx
|
|||
|
WITNESS:
|
Tenant:
|
||
|
COLUMBIA
LABORATORIES, INC.
|
|||
|
/S/
Xxxxxxx XxXxxxx
|
/S/
Xxxxxx X Xxxxx
|
||
|
By:
Xxxxxx X Xxxxx
|
|||
|
President
& CEO
|
-34-
