LEASE AGREEMENT
BETWEEN
MATRIX/AEW NB, LLC,
LESSOR,
-AND-
SENESCO TECHNOLOGIES,
LESSEE.
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DATED: March 16, 2001
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Prepared by:
Xxxxxxx X. Xxxxxxxx, Esquire
Drinker Xxxxxx & Xxxxxxx LLP
000 Xxxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000-0000
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT........................................................1
ARTICLE 1 DEFINITIONS.................................................1
ARTICLE 2 DEMISE; TERM................................................9
ARTICLE 3 BASIC RENT; ADDITIONAL RENT................................13
ARTICLE 4 REAL ESTATE TAXES..........................................14
ARTICLE 5 OPERATING EXPENSES.........................................16
ARTICLE 6 UTILITY COSTS..............................................18
ARTICLE 7 MAINTENANCE, ALTERATIONS AND ADDITIONS;
REMOVAL OF TRADE FIXTURES..................................20
ARTICLE 8 USE OF DEMISED PREMISES....................................22
ARTICLE 9 LESSOR'S SERVICES..........................................23
ARTICLE 10 COMPLIANCE WITH REQUIREMENTS; RULES AND
REGULATIONS................................................26
ARTICLE 11 COMPLIANCE WITH ENVIRONMENTAL LAWS.........................27
ARTICLE 12 DISCHARGE OF LIENS.........................................30
ARTICLE 13 PERMITTED CONTESTS.........................................31
ARTICLE 14 INSURANCE; INDEMNIFICATION.................................31
ARTICLE 15 ESTOPPEL CERTIFICATES......................................36
ARTICLE 16 ASSIGNMENT AND SUBLETTING..................................38
ARTICLE 17 CASUALTY...................................................43
ARTICLE 18 CONDEMNATION...............................................45
ARTICLE 19 EVENTS OF DEFAULT..........................................46
ARTICLE 20 CONDITIONAL LIMITATIONS; REMEDIES..........................48
ARTICLE 21 ACCESS; RESERVATION OF EASEMENTS...........................51
ARTICLE 22 ACCORD AND SATISFACTION....................................53
ARTICLE 23 SUBORDINATION..............................................53
ARTICLE 24 LESSEE'S REMOVAL...........................................55
ARTICLE 25 BROKERS....................................................56
ARTICLE 26 NOTICES....................................................56
ARTICLE 27 NATURE OF LESSOR'S OBLIGATIONS.............................57
ARTICLE 28 SECURITY DEPOSIT...........................................57
ARTICLE 29 MISCELLANEOUS..............................................58
SCHEDULE A DESCRIPTION OF LAND
SCHEDULE B BASIC RENT
SCHEDULE C FLOOR PLAN
SCHEDULE C-1 ADJACENT SPACE
SCHEDULE D FINISH WORK
SCHEDULE E PRELIMINARY DRAWINGS
SCHEDULE E-1 ADJACENT SPACE WORK PRELIMINARY DRAWINGS
SCHEDULE F RULES AND REGULATIONS
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LEASE AGREEMENT
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LEASE AGREEMENT (this "Lease"), made as of March 16, 2001, between
MATRIX/AEW NB, LLC (the "LESSOR"), a New Jersey limited liability company,
having an address c/o Matrix Realty, Inc., 0 Xxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxx
00000, and SENESCO TECHNOLOGIES, INC. (the "LESSEE"), a Delaware corporation,
having an address at 000 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxxxxxxx, Xxx Xxxxxx
00000.
PRELIMINARY STATEMENT
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LESSOR is the owner in fee simple of a certain tract of land lying and
being in the City of New Brunswick, County of Middlesex and State of New Jersey
(the "Land"), as more particularly described on Schedule A annexed hereto, upon
which there is an office building and other related improvements. For the
purposes of this Lease, the Land and the office building, including all other
improvements on the Land and all fixtures and appurtenances to the Land and the
office building, are hereinafter collectively referred to as the "Premises".
The office building located on the Land is commonly known as Plaza I, 303
Xxxxxx Street, New Brunswick, New Jersey (the "Building"). LESSEE desires to
lease from LESSOR approximately 1,369 rentable square feet of office space in
the Building in accordance with, and subject to, the provisions of this Lease.
NOW, THEREFORE, LESSOR and LESSEE agree as follows:
ARTICLE 1
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DEFINITIONS
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1.1 As used in this Lease, the following terms have the following
respective meanings:
(a) Additional Rent: defined in Section 3.2.
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(b) Adjacent Space: the portion of the fourth (4th)floor of the
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Building cross-hatched on the floor plan annexed hereto as Schedule C-1,
consisting of approximately 253 rentable square feet.
(c) Adjacent Space Commencement Date: defined in Section 2.6(d).
---------------------------------
(d) Adjacent Space Work: defined in Schedule D.
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(e) Base Insurance Costs: LESSOR'S Insurance Costs for the Base
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Period.
(f) Base Operating Expenses: LESSOR'S Operating Expenses for the
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Base Period.
(g) Base Period: the calendar year 2001.
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(h) Base Taxes: shall mean the Taxes for the Base Period.
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(i) Base Utility Costs: shall be the costs of electric service
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and gas service for the Premises determined by multiplying the utility usage
during the twelve (12) month period immediately preceding the date of this Lease
by the average rates for transmission and generation in effect during said
twelve (12) month period (including surcharges and fuel energy adjustments).
(j) Basic Rent: defined in Section 3.1 and specified in Schedule
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B annexed hereto.
(k) Basic Rent Payment Dates: the first day of each consecutive
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calendar month during the Term.
(l) Building: defined in the Preliminary Statement.
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(m) Building's Complex Percentage: shall mean the quotient
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(converted to a percentage) of the total rentable square footage of the Building
divided by the total rentable square footage of all buildings located on the
Land from time to time.
(n) Building Holidays: shall mean Sunday, New Year's Day,
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President's Day, Good Friday, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, the day after Thanksgiving and Christmas Day.
(o) Building Hours: 8:00 AM to 6:00 PM, Monday through Friday and
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8:00 AM to 1:00 PM on Saturday, except for Building Holidays.
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(p) Commencement Date: defined in Section 2.2(b).
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(q) Demised Premises: subject to Section 2.6(c), the portion of
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the fourth (4th) floor of the Building cross-hatched on the floor plan annexed
hereto as Schedule C, consisting of approximately 1,369 rentable square feet.
(r) Environmental Laws: all statutes, regulations, codes and
-------------------
ordinances of any governmental entity, authority, agency and/or department
relating to (i) air emissions, (ii) water discharges, (iii) noise emissions,
(iv) air, water or ground pollution or (v) any other environmental or health
matter, including, but not limited to, ISRA, the New Jersey Spill Compensation
and Control Act, N.J.S.A. 58:10-23.11 et seq. and the regulations promulgated
thereunder, the Hazardous Substance Discharge -- Reports and Notices Act,
N.J.S.A. 13:1K-15 et seq. and the regulations promulgated thereunder, and the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601 et seq. and the regulations promulgated thereunder.
(s) Events of Default: defined in Article 19.
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(t) Excusable Delay: any delay caused by governmental action, or
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lack thereof; shortages or unavailability of materials and/or supplies; labor
disputes (including, but not limited to, strikes, slow downs, job actions,
picketing and/or secondary boycotts); fire or other casualty; delays in
transportation; acts of God; directives or requests by any governmental entity,
authority, agency or department; any court or administrative orders or
regulations; adjustments of insurance; acts of declared or undeclared war,
public disorder, riot or civil commotion; or by anything else beyond the
reasonable control of LESSOR, including delays caused directly or indirectly by
an act or a failure to act by LESSEE or LESSEE'S Visitors.
(u) Fair Market Value: the amount a willing and independent buyer
-----------------
would pay for the Premises to a willing and independent seller (neither party
being forced to buy or sell) if the Building were being used for the purposes
permitted by this Lease.
(v) Final Plans: defined in Paragraph 2(a) of Schedule D annexed
-----------
hereto.
(w) Finish Work: defined in Paragraph 2(b) of Schedule D annexed
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hereto.
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(x) Insurance Requirements: all terms of any insurance policy
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maintained by LESSOR with respect to the Premises and all requirements of the
National Board of Fire Underwriters (or any other body exercising similar
function) applicable to or affecting all or any part of the Premises.
(y) ISRA: Industrial Site Recovery Act of the State of New
----
Jersey, N.J.S.A. 13:1K-6 et. seq. and the regulations promulgated thereunder,
together with any amendments thereto and/or substitutions thereof.
(z) Land: defined in the Preliminary Statement and described by
----
metes and bounds annexed hereto as Schedule A.
(aa) Land Expenses: those costs or expenses paid or incurred by,
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or charged to, LESSOR in connection with the ownership, operation, management,
maintenance and repair of the Land, including, but not limited to, the cost of
snow and ice removal; maintenance and cleaning of the plaza areas, parking areas
and driveways (including resurfacing and restriping); regulation of traffic;
landscape and grounds maintenance; painting and/or sealing of the exterior
common areas; wages, salaries, fringe benefits and other labor costs of all
persons engaged for the operation, maintenance and repair of the Land, and the
payroll taxes and workers' compensation for such persons; rentals of machinery
and equipment used in the operation and maintenance of the Land; and any other
cost or expense, which, in accordance with generally accepted accounting
principles and the standard management practices, would be considered as an
expense of operating, managing, maintaining or repairing the Land.
(ab) Lease Year: the twelve (12) month period commencing on the
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Commencement Date and expiring on the day immediately preceding the first (1st)
anniversary of the Commencement Date, inclusive, and each succeeding twelve (12)
month period during the Term; provided, however, if the Commencement Date is a
day other than the first (1st) day of a calendar month, then the last Lease Year
shall include the period from the anniversary of the Commencement Date to and
including the Termination Date.
(ac) Legal Requirements: all statutes, codes, ordinances,
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regulations, rules, orders, directives and requirements of any governmental
entity, authority, agency and/or department, which now or at any time hereafter
may be applicable to the
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Premises or any part thereof, including, but not limited to, all Environmental
Laws.
(ad) LESSEE: the party defined as such in the first paragraph of
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this Lease.
(ae) LESSEE'S Notice: defined in Section 16.2.
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(af) LESSEE'S Proportionate Share: for all purposes of this
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Lease, it is agreed to be 1.43%; provided, however, that after the Adjacent
Space Commencement Date, it shall be 1.75%.
(ag) LESSEE'S Visitors: LESSEE'S agents, servants, employees,
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subtenants, contractors, invitees, licensees and all other persons invited by
LESSEE into the Demised Premises as guests or doing lawful business with LESSEE.
(ah) LESSOR: the party defined as such in the first paragraph of
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this Lease, including at any time after the date hereof, the then owner of
LESSOR'S interest in the Premises.
(ai) LESSOR'S Estimated Insurance Costs: defined in Section
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14.2(c).
(aj) LESSOR'S Estimated Operating Expenses: defined in Section
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5.2.
(ak) LESSOR'S Expense Statement: defined in Section 5.2.
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(al) LESSOR'S Insurance Costs: defined in Section 14.2(a).
--------------------------
(am) LESSOR'S Insurance Statement: defined in Section 14.2(c).
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(an) LESSOR'S Operating Expenses: the sum of (i) those costs or
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expenses paid or incurred by LESSOR in connection with the ownership, operation,
management, maintenance and repair of the Building, including, but not limited
to, the cost of sewer meter charges; water; window cleaning; exterminating;
maintenance, repair and replacement of utility systems; maintenance and repairs
of any kind for which LESSOR is not reimbursed; painting and/or sealing of the
exterior of the Building; management fees; maintenance and service agreements;
security services and/or alarm and fire protection systems and equipment;
janitorial services;
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elevator service (if provided); wages, salaries, fringe benefits and other labor
costs of all persons engaged by LESSOR for the operation, maintenance and repair
of the Building; payroll taxes and workers' compensation for such persons; legal
and accounting expenses (except legal expenses incurred in preparing leases or
enforcing the terms of leases); licenses, permits and other governmental
charges; rentals of machinery and equipment used in the operation and
maintenance of the Building; and any other expense or cost, which, in accordance
with generally accepted accounting principles and the standard management
practices for buildings comparable to the Building, would be considered as an
expense of operating, managing, maintaining or repairing the Building; and (ii)
the Building's Complex Percentage of Land Expenses. Excluded from LESSOR'S
Operating Expenses are Taxes; LESSOR'S Insurance Costs; Utility Costs; capital
improvement costs; costs reimbursed by insurance; the cost of any work or
service performed by LESSOR for LESSEE or for any other tenant of the Building
to the extent such work or service is not required by this Lease or the lease
for such other tenant, whichever the case may be, regardless of whether LESSEE
or such other tenant reimburses LESSOR; the cost of any work or service
performed by LESSOR for any tenant of the Building pursuant to the terms of said
tenant's lease to the extent such work or service is in excess of the work or
service which LESSOR is obligated to perform under this Lease; costs in
connection with preparing space for a new tenant; advertising expenses; real
estate brokers' commissions; franchise, transfer, inheritance or capital stock
taxes or other taxes imposed upon or measured by the income or profits of
LESSOR; and administrative wages and salaries or any other general and
administrative overhead of LESSOR. All accounting for LESSOR'S Operating
Expenses shall be on the accrual basis. In the event that, at any time during
the Term, the Building is not fully leased and occupied by tenants, LESSOR'S
Operating Expenses shall be projected as if the Building were 95% occupied at
all times.
(ao) LESSOR'S Tax Statement: defined in Section 4.2.
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(ap) LESSOR'S Utility Statement: defined in Section 6.2.
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(aq) Lien: any mortgage, pledge, lien, charge, encumbrance or
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security interest of any kind, including any inchoate mechanic's or
materialmen's lien.
(ar) Major Work: defined in Section 7.5(b).
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(as) Monthly Expense Payment: defined in Section 5.3.
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(at) Monthly Insurance Payment: defined in Section 14.2(d).
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(au) Monthly Tax Payment: defined in Section 4.3.
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(av) Net Award: any insurance proceeds or condemnation award
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payable in connection with any damage, destruction or Taking, less any expenses
incurred by LESSOR in recovering such amount.
(aw) Net Rental Proceeds: in the case of a sublease, the amount
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by which the aggregate of all rents, additional charges or other consideration
payable under a sublease to LESSEE by the subtenant (including sums paid for the
sale or rental of LESSEE'S fixtures, leasehold improvements, equipment,
furniture or other personal property) exceeds the sum of (i) the Basic Rent plus
all amounts payable by LESSEE pursuant to the provisions hereof during the term
of the sublease in respect of the subleased space, (ii) brokerage commissions at
prevailing rates due and owing to a real estate brokerage firm, (iii) other
customary and reasonable costs incurred by LESSEE in connection with the
subleasing, and (iv) the then net unamortized or undepreciated cost of the
fixtures, leasehold improvements, equipment, furniture or other personal
property included in the subletting; and in the case of an assignment, the
amount by which all sums and other considerations paid to LESSEE by the assignee
of this Lease for or by reason of such assignment (including sums paid for the
sale of LESSEE'S fixtures, leasehold improvements, equipment, furniture or other
personal property) exceeds the sum of (i) brokerage commissions at prevailing
rates due and owing to a real estate brokerage firm, (ii) other customary and
reasonable costs incurred by LESSEE in connection with the assignment, and (iii)
the then net unamortized or undepreciated cost of the fixtures, leasehold
improvements, equipment, furniture or other personal property sold to the
assignee.
(ax) New Space: defined in Section 29.4(a).
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(ay) Option Period: defined in Section 2.5(a).
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(az) Premises: defined in the Preliminary Statement.
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(ba) Prime Rate: the prime commercial lending rate publicly
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announced from time to time by Citibank N.A.
(bb) Projected Taxes: defined in Section 4.2.
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(bc) Recapture Notice: defined in Section 16.5(a).
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(bd) Recapture Space: defined in Section 16.5(a).
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(be) Restoration: the restoration, replacement or rebuilding of
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the Building or any portion thereof as nearly as practicable to its value,
condition and character immediately prior to any damage, destruction or Taking.
(bf) Rules and Regulations: shall mean the rules and regulations
---------------------
set forth in Schedule F, as same may be amended from time to time as provided
herein.
(bg) Taking: a taking of all or any part of the Premises, or any
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interest therein or right accruing thereto, as the result of, or in lieu of, or
in anticipation of, the exercise of the right of condemnation or eminent domain
pursuant to any law, general or special, or by reason of the temporary
requisition of the use or occupancy of the Premises or any part thereof, by any
governmental authority, civil or military.
(bh) Taxes: all real estate taxes and assessments or substitutes
----
therefor (including, without limitation, amounts payable under any
"payment-in-lieu agreement" (as hereinafter defined)) or supplements thereto,
upon, applicable, attributable or assessed against the Premises or any part
thereof. If and to the extent that due to a change in the method of taxation or
assessment any franchise, capital stock, capital, rent, income, profit or other
tax or charge shall be substituted by the applicable taxing authority for the
Taxes now or hereafter imposed upon the Premises or any part thereof, such
franchise, capital stock, capital, rent, income, profit or other tax or charge
shall be deemed included in the term "Taxes", provided, however, that the amount
of such tax, assessment, levy, imposition, charge or fee deemed to be included
in the term "Taxes" shall be determined as if the Premises was the only asset of
LESSOR and as if the rent received therefrom were the only income of LESSOR. The
term "payment-in-lieu agreement", as used herein, means any agreement pursuant
to which, inter alia, payments are made in lieu of all or any portion of the
real estate taxes which would otherwise be assessed against the Premises or any
part thereof. LESSEE hereby
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acknowledges and agrees that (i) LESSOR shall have no obligation to enter into
any payment-in-lieu agreement, and (ii) if LESSOR elects, in its sole
discretion, to enter into any payment-in-lieu agreement, LESSOR shall have no
obligation to keep the agreement in effect, it being understood that LESSOR
shall have the right, in its sole discretion, at any time, to terminate or
otherwise discontinue any such payment-in-lieu agreement.
(bi) Term: defined in Section 2.2.
----
(bj) Termination Date: the day immediately preceding the fifth
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(5th) anniversary of the Commencement Date, or such earlier date upon which the
Term may expire or be terminated pursuant to any of the conditions of this Lease
or pursuant to law.
(bk) Underlying Encumbrance: defined in Section 23.1.
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(bl) Utility Costs: the sum of (i) all costs (including
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surcharges and adjustments) paid or incurred by LESSOR for fuel, electric
service and gas service for the Building (including, but not limited to, all
leased and leaseable areas, interior common areas and Building common
facilities); and (ii) the Building's Complex Percentage of all costs (including
surcharges and adjustments) paid or incurred by, or charged to, LESSOR for
electric service for the Land (excluding any electric service to any other
building or buildings as may, from time to time, be located on the Land).
(bm) Utility Increase: defined in Section 6.2.
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(bn) Utility Payment: defined in Section 6.2.
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ARTICLE 2
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DEMISE; TERM
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2.1 LESSOR, for and in consideration of the covenants hereinafter
contained and made on the part of the LESSEE, does hereby demise and lease to
LESSEE, and LESSEE does hereby hire from LESSOR, the Demised Premises, together
with the non-exclusive right to use the portions of the Premises intended for
common use, subject, however, to the terms and conditions of this Lease.
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2.2 (a) The term (the "Term") of this Lease shall commence on the
Commencement Date and shall end on the Termination Date.
(b) The "Commencement Date" shall be deemed to be the earlier to
occur of (i) the date on which LESSEE takes occupancy of the Demised Premises
for the purposes of conducting its business or (ii) the date of LESSOR'S notice
to LESSEE that the Finish Work (as defined in Schedule D annexed hereto) is
substantially completed in accordance with the Final Plans (as defined in
Schedule D).
(c) As used herein, the phrase "substantially completed" shall
mean that (i) the Finish Work has been completed in accordance with the Final
Plans, other than (x) details of construction, decoration and mechanical
adjustments which are minor in character and the non-completion of which will
not unreasonably interfere with LESSEE'S use of the Demised Premises, and (y)
any part of the Finish Work which is not completed due solely to any act or
omission of LESSEE or LESSEE'S Visitors; and (ii) LESSOR has obtained a valid
temporary or permanent certificate of occupancy for the Demised Premises or,
alternatively, LESSOR has completed all Finish Work necessary to entitle LESSOR
to the issuance of a temporary or permanent certificate of occupancy other than
any Finish Work which is not completed due solely to any act or omission of
LESSEE or LESSEE'S Visitors. If the occurrence of any condition listed in the
immediately preceding sentence shall be delayed due to any act or omission of
any nature by LESSEE or LESSEE'S Visitors, including, but not limited to, delays
due to changes in or additions to the Finish Work requested by LESSEE, delays in
submission of information or estimates, delays in giving authorizations or
approvals, or delays due to the postponement of any work at the request of
LESSEE, then the Commencement Date shall be accelerated by a time period equal
to the number of days of delay so caused by LESSEE or LESSEE'S Visitors.
(d) LESSEE acknowledges and agrees that neither LESSOR nor any
employee, agent or representative of LESSOR has made any express or implied
representations or warranties with respect to the physical condition of the
Demised Premises, the fitness or quality thereof or any other matter or thing
whatsoever with respect to the Demised Premises or any portion thereof, and that
LESSEE is not relying upon any such representation or warranty in entering into
this Lease. Supplementing the foregoing, LESSEE agrees further to accept
possession of the Demised Premises in its "AS IS" condition as of the date of
this
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Lease, except for the Finish Work which LESSOR has agreed to complete and latent
defects.
2.3 LESSEE, by entering into occupancy of any part of the Demised
Premises, shall be conclusively deemed to have agreed that LESSOR up to the time
of such occupancy had performed all of its obligations hereunder with respect to
such part and that such part, except for (a) latent defects, and (b) minor
details of construction, decoration and mechanical adjustment referred to above,
was in satisfactory condition as of the date of such occupancy, unless within
fifteen (15) days after such date LESSEE shall give notice to LESSOR specifying
the respects in which the same was not in such condition.
2.4 When the Commencement Date occurs, LESSOR and LESSEE shall enter
into an agreement memorializing the Commencement and Termination Dates of this
Lease.
2.5 (a) Subject to the provisions of this Section 2.5, LESSOR hereby
grants to LESSEE the right to extend the Term for a five (5) year period from
the fifth (5th) anniversary of the Commencement Date to the day immediately
preceding the tenth (10TH) anniversary of the Commencement Date, inclusive (the
"Option Period").
(b) Provided (x) LESSEE is not in default under this Lease as of
the exercise of its extension right or as of the day preceding the commencement
of the Option Period, (ii) LESSEE has not assigned this Lease or sublet all or
any portion of the Demised Premises and (iii) LESSEE is occupying the entire
Demised Premises, then LESSEE shall have the right to extend the Term for the
Option Period by notice given to LESSOR at least nine (9) months prior to the
expiration of the original Term; LESSEE acknowledges and agrees that time is of
the essence with respect to the giving of such notices. If LESSEE exercises its
extension right, then all of the terms and conditions of this Lease shall apply
during the Option Period, except that the Basic Rent shall be determined
pursuant to the provisions of Section II of Schedule B, LESSOR shall not be
obligated to perform any work to the Demised Premises or to give LESSEE any work
allowance, LESSEE shall accept the Demised Premises in its then "AS IS"
condition, and LESSEE shall not have any right to extend the Term beyond the
expiration of the Option Period.
(c) The rights granted to LESSEE under this Section 2.5 are
personal to Senesco Technologies, Inc., and they cannot be assigned separately
from this Lease or in connection
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with an assignment of this Lease, except in connection with an assignment
pursuant to Section 16.15.
2.6 (a) LESSOR and LESSEE hereby acknowledge and agree that the
Adjacent Space is presently leased to another tenant of the Building, which
lease (the "Adjacent Space Lease") expires on August 1, 2001. LESSOR and LESSEE
further acknowledge and agree that the Adjacent Space Lease may be terminated by
LESSOR and such tenant prior to August 1, 2001; provided, however, that LESSOR
shall not be liable to LESSEE for any loss, cost, damage or liability of any
kind in the event that the Adjacent Space Lease is not terminated prior to
August 1, 2001 or LESSOR is unable to deliver the Adjacent Space for any reason
whatsoever at any time prior to the termination of this Lease.
(b) As soon as reasonably practicable, LESSOR shall notify LESSEE
of the date upon which the Adjacent Space Lease shall terminate (the "Adjacent
Space Termination Date"). As soon as reasonably practicable after the Adjacent
Space Termination Date, LESSOR shall perform the Adjacent Space Work in
accordance with the terms of Schedule X. XXXXXX shall have no obligation to
perform the Adjacent Space Work until after the Adjacent Space Lease is
terminated and such space is vacated by the present tenant.
(c) Commencing on the Adjacent Space Commencement Date, LESSEE
shall lease from LESSOR the Adjacent Space, and the term "Demised Premises"
shall include the Adjacent Space, subject to all the terms and conditions of
this Lease.
(d) The "Adjacent Space Commencement Date" shall be deemed to be
the earlier of the (i) date on which LESSEE takes occupancy of the Adjacent
Space; or (ii) the date of LESSOR'S notice to LESSEE that the Adjacent Space
Work is substantially completed (as defined in Section 2.2(e)) in accordance
with the Adjacent Space Work Plans (as defined in Schedule D).
(e) As used herein, the phrase "substantially completed" shall
mean that (i) the Adjacent Space Work has been completed in accordance with the
Adjacent Space Work Plans, other than (x) details of construction, decoration
and mechanical adjustments which are minor in character and the non-completion
of which will not unreasonably interfere with LESSEE'S use of the Adjacent
Space, and (y) any part of the Adjacent Space Work which is not completed due
solely to any act or omission of LESSEE or LESSEE'S Visitors; and (ii) LESSOR
has obtained a valid temporary or permanent certificate of occupancy for the
Adjacent Space or,
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alternatively, LESSOR has completed all Adjacent Space Work necessary to entitle
LESSOR to the issuance of a temporary or permanent certificate of occupancy
other than any Adjacent Space Work which is not completed due solely to any act
or omission of LESSEE or LESSEE'S Visitors. If the occurrence of any condition
listed in the immediately preceding sentence shall be delayed due to any act or
omission of any nature by LESSEE or LESSEE'S Visitors, including, but not
limited to, delays due to changes in or additions to the Adjacent Space Work
requested by LESSEE, delays in submission of information or estimates, delays in
giving authorizations or approvals, or delays due to the postponement of any
work at the request of LESSEE, then the Adjacent Space Commencement Date shall
be accelerated by a time period equal to the number of days of delay so caused
by LESSEE or LESSEE'S Visitors.
ARTICLE 3
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BASIC RENT; ADDITIONAL RENT
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3.1 LESSEE shall pay rent ("Basic Rent") to LESSOR during the Term in
the amounts and at the times provided in Schedule B in lawful money of the
United States of America, except as expressly provided in the next succeeding
sentence. In the event the Commencement Date shall be other than a Basic Rent
Payment Date, the Basic Rent and Additional Rent payable hereunder shall be
prorated for the initial fractional month of the Term; such prorated amount,
together with the first full monthly installment of Basic Rent and Additional
Rent due for the next succeeding calendar month, shall be paid to LESSOR on the
Commencement Date.
3.2 In addition to the Basic Rent, LESSEE will pay and discharge when
due, as additional rent ("Additional Rent"), all other amounts, liabilities and
obligations which LESSEE herein agrees to pay to LESSOR, together with all
interest, penalties and costs which may be added thereto pursuant to the terms
of this Lease; each such amount, liability and obligation, together with any
interest, penalty and/or cost thereon, shall be deemed Additional Rent
regardless of whether it is specifically referred to as Additional Rent in this
Lease. LESSOR shall have all the rights, powers and remedies provided for in
this Lease or at law or in equity or otherwise for failure to pay Additional
Rent as are available for nonpayment of Basic Rent.
3.3 If any installment of Basic Rent or Additional Rent is not paid
when due, LESSEE shall pay to LESSOR on demand, as Additional Rent, a late
charge equal to four percent (4%) of the
13
amount unpaid. In addition, any installment or installments of Basic Rent or
Additional Rent accruing hereunder which are not paid within ten (10) days after
the date when due, shall bear interest at the Prime Rate from the due date
thereof until the date of payment, which interest shall be deemed Additional
Rent hereunder and shall be payable upon demand by LESSOR.
3.4 LESSEE will contract for and pay all charges for telecommunication
services at any time rendered or used on or about the Demised Premises to the
company providing the same before any interest or penalty may be added thereto
and will furnish to LESSOR, upon request, satisfactory proof evidencing such
payment.
3.5 Except as herein provided, LESSEE hereby covenants and agrees to
pay to LESSOR during the Term, at LESSOR'S address for notices hereunder, or
such other place as LESSOR may from time to time designate, without any offset,
set-off, counterclaim, deduction, defense, abatement, suspension, deferment or
diminution of any kind (i) the Basic Rent, without notice or demand, (ii)
Additional Rent and (iii) all other sums payable by LESSEE hereunder. Except as
otherwise expressly provided herein, this Lease shall not terminate, nor shall
LESSEE have any right to terminate or avoid this Lease or be entitled to the
abatement of any Basic Rent, Additional Rent or other sums payable hereunder or
any reduction thereof, nor shall the obligations and liabilities of LESSEE
hereunder be in any way affected for any reason. The obligations of LESSEE
hereunder shall be separate and independent covenants and agreements.
ARTICLE 4
---------
REAL ESTATE TAXES
-----------------
4.1 LESSEE shall pay to LESSOR, as Additional Rent, LESSEE'S
Proportionate Share of the amount by which the Taxes for any calendar year
during the Term exceeds the Base Taxes; provided, however, that if any special
assessments may be payable in installments, LESSOR may elect to pay same over
the longest period allowed by law. LESSEE'S Proportionate Share of the Taxes for
less than a calendar year shall be prorated and apportioned.
4.2 On or about January 1, 2002, and thereafter within ninety (90)
days following the first day of each succeeding calendar year within the Term,
LESSOR shall determine or estimate the amount by which the Taxes for the
calendar year in question will exceed the Base Taxes (the "Projected Taxes") and
shall
14
submit such information to LESSEE in a written statement ("LESSOR'S Tax
Statement").
4.3 Commencing on the first Basic Rent Payment Date following the
submission of any LESSOR'S Tax Statement and continuing thereafter on each
successive Basic Rent Payment Date until LESSOR renders the next LESSOR'S Tax
Statement, LESSEE shall pay to LESSOR on account of its obligation under Section
4.1 of this Lease, a sum (the "Monthly Tax Payment") equal to one-twelfth (1/12)
of LESSEE'S Proportionate Share of the Projected Taxes for such calendar year.
LESSEE'S first Monthly Tax Payment after receipt of LESSOR'S Tax Statement shall
be accompanied by the payment of an amount equal to the product of the number of
full months, if any, within the calendar year which shall have elapsed prior to
such first Monthly Tax Payment, times the Monthly Tax Payment; minus any
Additional Rent already paid by LESSEE on account of its obligation under
Section 4.1 of this Lease for such calendar year.
4.4 Each LESSOR'S Tax Statement shall reconcile the payments made by
LESSEE pursuant to the preceding LESSOR'S Tax Statement with LESSEE'S
Proportionate Share of the actual Taxes imposed for the period covered thereby.
Any balance due to LESSOR shall be paid by LESSEE within thirty (30) days after
LESSEE'S receipt of LESSOR'S Tax Statement; any surplus due to LESSEE shall be
applied by LESSOR against the next accruing monthly installment(s) of Additional
Rent due under this Article. If the Term has expired or has been terminated,
LESSEE shall pay the balance due to LESSOR or, alternatively, LESSOR shall
refund the surplus to LESSEE, whichever the case may be, within thirty (30) days
after LESSEE'S receipt of LESSOR'S Tax Statement; provided, however, if the Term
shall have been terminated as a result of a default by LESSEE, then LESSOR shall
have the right to retain such surplus to the extent LESSEE owes LESSOR any Basic
Rent or Additional Rent.
4.5 (a) If LESSOR shall receive any refund of Taxes in respect of a
calendar year and if LESSEE shall have paid Additional Rent based on the Taxes
for that calendar year, LESSOR shall deduct from such tax refund any expenses,
including, but not limited to, attorney's fees and appraisal fees, incurred in
obtaining such tax refund, and out of the remaining balance of such tax refund,
LESSOR shall credit LESSEE'S Proportionate Share of such refund against the next
accruing monthly installments(s) of Additional Rent, or if the Term shall have
expired, LESSEE'S Proportionate Share of such refund shall be refunded to LESSEE
within thirty (30) days after receipt thereof by LESSOR; provided,
15
however, (i) if the Term shall have expired as a result of a default by LESSEE,
LESSOR shall have the right to retain LESSEE'S Proportionate Share of the refund
to the extent LESSEE owes LESSOR any Basic Rent or Additional Rent, and (ii)
LESSEE'S Proportionate Share of such refund shall not exceed the amount of
Additional Rent actually paid by LESSEE on account of the Taxes for the calendar
year in question. Any expenses incurred by LESSOR in contesting the validity or
the amount of the assessed valuation of the Premises or any Taxes, to the extent
not offset by a tax refund, shall be included as an item of Taxes for the tax
year in which such contest shall be finally determined for the purpose of
computing the Additional Rent due LESSOR or any credit due to LESSEE hereunder.
(b) Notwithstanding anything to the contrary contained in this
Lease, LESSEE shall not have the right to contest or appeal the validity of any
Taxes or the amount of the assessed valuation of the Premises.
4.6 While proceedings for the reduction in assessed valuation for any
year are pending, the computation and payment of LESSEE'S Proportionate Share of
Taxes shall be based upon the original assessments for such year.
4.7 LESSEE shall also pay to LESSOR, as Additional Rent, upon demand,
the amount of all increases in Taxes and/or all assessments or impositions made,
levied or assessed against or imposed upon the Premises or any part thereof
which are attributable to additions or improvements in, on or about the Demised
Premises made by or on behalf of LESSEE or which in whole or in part belong to
LESSEE.
4.8 In no event shall any adjustment in LESSEE'S obligation to pay
Additional Rent under this Article 4 result in a decrease in the Basic Rent
payable hereunder. LESSEE'S obligation to pay Additional Rent, and LESSOR'S
obligation to credit and/or refund to LESSEE any amount, pursuant to the
provisions of this Article 4, shall survive the Termination Date.
4.9 The provisions of Section 29.3 shall apply to LESSOR'S Tax
Statement.
ARTICLE 5
---------
OPERATING EXPENSES
------------------
16
5.1 LESSEE shall pay to LESSOR, as Additional Rent, LESSEE'S
Proportionate Share of the amount by which LESSOR'S Operating Expenses for any
calendar year during the Term exceeds the Base Operating Expenses. LESSEE'S
Proportionate Share of LESSOR'S Operating Expenses for less than a calendar year
shall be prorated and apportioned.
5.2 On or about January 1, 2002, and thereafter within ninety (90)
days following the first day of each succeeding calendar year within the Term,
LESSOR shall determine or estimate the amount by which LESSOR'S Operating
Expenses for the calendar year in question will exceed the Base Operating
Expenses ("LESSOR'S Estimated Operating Expenses") and shall submit such
information to LESSEE in a written statement ("LESSOR'S Expense Statement").
5.3 Commencing on the first Basic Rent Payment Date following the
submission of any LESSOR'S Expense Statement and continuing thereafter on each
successive Basic Rent Payment Date until LESSOR renders the next LESSOR'S
Expense Statement, LESSEE shall pay to LESSOR on account of its obligation under
Section 5.1 of this Lease, a sum (the "Monthly Expense Payment") equal to
one-twelfth (1/12) of LESSEE'S Proportionate Share of LESSOR'S Estimated
Operating Expenses for such calendar year. LESSEE'S first Monthly Expense
Payment after receipt of LESSOR'S Expense Statement shall be accompanied by the
payment of an amount equal to the product of the number of full months, if any,
within the calendar year which shall have elapsed prior to such first Monthly
Expense Payment, times the Monthly Expense Payment; minus any Additional Rent
already paid by LESSEE on account of its obligation under Section 5.1 of this
Lease for such calendar year.
5.4 Each LESSOR'S Expense Statement shall reconcile the payments made
by LESSEE pursuant to the preceding LESSOR'S Expense Statement with LESSEE'S
Proportionate Share of LESSOR'S Operating Expenses for the period covered
thereby. Any balance due to LESSOR shall be paid by LESSEE within thirty (30)
days after LESSEE'S receipt of LESSOR'S Expense Statement; any surplus due to
LESSEE shall be applied by LESSOR against the next accruing monthly
installment(s) of Additional Rent due under this Article. If the Term has
expired or has been terminated, LESSEE shall pay the balance due to LESSOR or,
alternatively, LESSOR shall refund the surplus to LESSEE, whichever the case may
be, within thirty (30) days after LESSEE'S receipt of LESSOR'S Expense
Statement; provided, however, if the Term shall have been terminated as a result
of a default by LESSEE, then LESSOR shall have the right to
17
retain such surplus to the extent LESSEE owes LESSOR any Basic Rent or
Additional Rent.
5.5 LESSEE or its representative shall have the right to examine
LESSOR'S books and records with respect to the reconciliation of LESSOR'S
Operating Expenses for the prior calendar year set forth in LESSOR'S Expense
Statement during normal business hours at any time within thirty (30) days
following the delivery by LESSOR to LESSEE of such LESSOR'S Expense Statement.
Unless LESSEE shall give LESSOR a notice objecting to said reconciliation and
specifying the respects in which said reconciliation is claimed to be incorrect
within fifteen (15) days after its examination of LESSOR'S books and records,
said reconciliation shall be considered as final and accepted by LESSEE.
Notwithstanding anything to the contrary contained in this Article, LESSEE shall
not be permitted to examine LESSOR'S books and records or to dispute said
reconciliation unless LESSEE has paid to LESSOR the amount due as shown on
LESSOR'S Expense Statement; said payment is a condition precedent to said
examination and/or dispute.
5.6 In no event shall any adjustment in LESSEE'S obligation to pay
Additional Rent under this Article 5 result in a decrease in the Basic Rent
payable hereunder. LESSEE'S obligation to pay Additional Rent, and LESSOR'S
obligation to credit and/or refund to LESSEE any amount, pursuant to the
provisions of this Article 5, shall survive the Termination Date.
5.7 If any tenant in the Building for any reason shall not be provided
all services generally provided by LESSOR to other tenants of the Building, then
for purposes of determining LESSOR'S Operating Expenses, Landlord shall
reasonably estimate what LESSOR'S Operating Expenses would have been had such
service been provided to all tenants.
5.8 LESSEE shall also pay to LESSOR, as Additional Rent, upon demand,
the amount of any increase in LESSOR'S Operating Expenses which is attributable
to LESSEE'S use or manner of use of the Demised Premises, to activities
conducted on or about the Demised Premises by LESSEE or on behalf of LESSEE or
to any additions, improvements or alterations to the Demised Premises made by or
on behalf of LESSEE.
5.9 The provisions of Section 29.3 shall apply to LESSOR'S Expense
Statement.
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ARTICLE 6
---------
UTILITY COSTS
-------------
6.1 LESSEE shall pay to LESSOR, as Additional Rent, LESSEE'S
Proportionate Share of the amount by which the Utility Costs for any Lease Year
during the Term exceeds the Base Utility Costs. LESSEE'S Proportionate Share of
the Utility Costs for less than a Lease Year shall be prorated and apportioned.
6.2 If, at any time after the date of this Lease, there is an increase
in the Utility Costs over the Base Utility Costs (such increase being
hereinafter referred to as the "Utility Increase"), then LESSOR shall submit
such information to LESSEE in a written statement ("LESSOR'S Utility
Statement"). Commencing on the first Basic Rent Payment Date following the
submission of any LESSOR'S Utility Statement and continuing thereafter on each
successive Basic Rent Payment Date until LESSOR renders the next LESSOR'S
Utility Statement, LESSEE shall pay to LESSOR on account of its obligation under
Section 6.1 of this Lease, a sum (the "Utility Payment") equal to LESSEE'S
Proportionate Share of the Utility Increase. If LESSOR'S Utility Statement is
submitted after the effective date of such Utility Increase, then LESSEE'S first
Utility Payment after receipt of LESSOR'S Utility Statement shall be accompanied
by the payment of an amount equal to the product of the number of full months,
if any, within the Lease Year which shall have elapsed between the period from
the effective date of the Utility Increase and LESSEE'S payment of the first
Utility Payment after receipt of LESSOR'S Utility Statement, times the Utility
Payment; minus any Additional Rent already paid by LESSEE on account of its
obligation under Section 6.1 of this Lease for such Lease Year.
6.3 In connection with the submission of any LESSOR'S Utility
Statement, LESSEE shall have the right, within thirty (30) days after its
receipt of LESSOR'S Utility Statement, to request from LESSOR any back-up
statements received by LESSOR from the applicable utility company with respect
to the Utility Increase shown on the LESSOR'S Utility Statement in question.
LESSOR agrees to provide such information to LESSEE within a reasonable period
of time after its receipt of LESSEE'S request. Notwithstanding anything to the
contrary contained in this Article, LESSEE shall not be entitled to the back-up
statements or to dispute the Utility Increase unless LESSEE has paid to LESSOR
the amount due as shown on LESSOR'S Utility Statement; said payment is a
condition precedent to LESSEE'S right to receive said back-up statements and/or
to dispute the Utility Increase.
19
6.4 In no event shall any adjustment in LESSEE'S obligation to pay
Additional Rent under this Article 6 result in a decrease in the Basic Rent
payable hereunder. LESSEE'S obligation to pay Additional Rent pursuant to the
provisions of this Article 6 shall survive the Termination Date.
6.5 The provisions of Section 29.3 shall apply to LESSOR'S Utility
Statement.
ARTICLE 7
---------
MAINTENANCE, ALTERATIONS AND
ADDITIONS; REMOVAL OF TRADE FIXTURES
------------------------------------
7.1 LESSEE agrees to keep the Demised Premises in good order and
condition (except for ordinary wear and tear) and, except as provided in Section
7.3, will make all non-structural repairs, alterations, renewals and
replacements, ordinary and extraordinary, foreseen or unforeseen, and shall take
such other action as may be necessary or appropriate to keep and maintain the
Demised Premises in good order and condition. LESSEE shall not be obligated to
make any repairs, alterations, renewals or replacements to any building systems
to the extent any such system does not serve the Demised Premises. Except as
expressly provided in this Lease, LESSOR shall not be obligated in any way to
maintain, alter or repair the Demised Premises. Notice is hereby given that,
except with respect to repairs or restoration undertaken by LESSOR, LESSOR will
not be liable for any labor, services or materials furnished or to be furnished
to LESSEE, or to anyone holding the Demised Premises or any part thereof through
or under LESSEE, and that no mechanics' or other liens for any such labor or
materials shall attach to or affect the interest of LESSOR in and to the
Premises.
7.2 LESSOR hereby authorizes LESSEE to assert all rights and claims,
and to bring suits, actions and proceedings, in LESSOR'S name or in either or
both LESSOR'S and LESSEE'S name, in respect of any and all contracts,
manufacturer's or supplier's warranties or undertakings, express or implied,
relating to any portion of the Building required to be maintained, repaired,
altered, removed or replaced by LESSEE; provided, however, that LESSOR shall not
be obligated to incur any cost in connection therewith. LESSOR hereby assigns to
LESSEE all warranties and guaranties received from suppliers or subcontractors
with respect to the Building.
20
7.3 LESSOR shall make all repairs and replacements to the foundation,
the bearing walls, the structural columns and beams, the exterior walls, the
exterior windows and the roof of the Building; provided, however, if such
repairs and replacements are necessitated by the intentional acts or negligence
of LESSEE or LESSEE'S Visitors, then LESSEE shall reimburse LESSOR, upon demand,
for the reasonable cost thereof. The costs and expenses incurred by LESSOR in
connection with such repairs and replacements shall be included in LESSOR'S
Operating Expenses to the extent permitted by the terms of this Lease.
7.4 All maintenance and repair, and each addition, improvement or
alteration, performed by, on behalf of or for the account of LESSEE (a) must
not, individually or in the aggregate, lessen the Fair Market Value of the
Building or adversely affect the usefulness of the Building for use as an office
building, (b) shall be completed expeditiously in a good and workmanlike manner,
and in compliance with all applicable Legal and Insurance Requirements, (c)
shall be completed free and clear of all Liens and (d) shall be performed by
contractors approved by LESSOR to the extent such work involves any work to any
electrical, mechanical, plumbing or other system of the Building, any work to
the outside of the Building, any work to the roof of the Building or any work to
any structural element of the Building.
7.5 (a) If there is no default by LESSEE under this Lease, LESSEE may,
upon prior notice to LESSOR and submission of plans and specifications, make
interior, non-structural additions, improvements or alterations to the Demised
Premises having an aggregate cost not to exceed $5,000.00, so long as the same
do not affect, alter, interfere with or disrupt any of the electrical,
mechanical, plumbing or other system of the Building, do not affect the outside
appearance of the Building, do not affect the roof of the Building, do not
affect the ingress to or egress from the Demised Premises and do not affect any
structural element of the Building.
(b) LESSEE shall not make any addition, improvement or alteration of
the Land or of the Building. In addition, LESSEE shall not make any addition,
improvement or alteration of the Demised Premises having an aggregate cost in
excess of $5,000.00, or affecting, altering, interfering with or disrupting any
electrical, mechanical, plumbing or other system of the Building, or affecting
the outside appearance, the roof, the ingress to or the egress from the Demised
Premises and/or any structural element of the Building (any such work being
hereinafter referred to as "Major Work"), unless LESSEE submits to
21
LESSOR detailed plans and specifications therefor and LESSOR approves such plans
and specifications in writing (which such approval shall be at LESSOR'S sole
discretion). If LESSOR approves such work, LESSOR may, at any time within twenty
(20) days after such approval, submit to LESSEE a proposal to undertake such
work at a specified fixed price. If the fixed price submitted by LESSOR is equal
to or less than other bids received by LESSEE from independent contractors
utilizing union labor, LESSEE shall, at the request of LESSOR, engage LESSOR to
undertake the Major Work in accordance with LESSOR'S proposal and the plans and
specifications and at the price quoted by LESSOR. If the fixed price submitted
by LESSOR is more than other responsible fixed price bids received by LESSEE
from said independent, licensed contractors for the work shown on the plans and
specifications approved by LESSOR, LESSEE shall deliver to LESSOR a photocopy of
the lower bid which LESSEE desires to accept, certified by LESSEE to be a true
and complete photocopy of the original bid. Within ten (10) days after the
giving of such lower bid to LESSOR, LESSOR shall have the option to elect, by
notice to LESSEE within said ten (10) day period, to agree to perform the work
contemplated by said plans and specifications for the fixed price set forth on
said lower bid. In the event of such election by LESSOR, LESSEE shall engage
LESSOR to undertake the Major Work in accordance with the plans and
specifications and LESSOR'S proposal at the fixed price set forth on said lower
bid.
7.6 (a) All additions, improvements and alterations to the Demised
Premises shall, upon installation, become the property of LESSOR and shall be
deemed part of, and shall be surrendered with, the Demised Premises, unless
LESSOR, by notice given to LESSEE at least thirty (30) days prior to the
Termination Date, elects to relinquish LESSOR'S right thereto. If LESSOR elects
to relinquish LESSOR'S right to any such addition, improvement or alteration,
LESSEE shall remove said addition, improvement or alteration, shall promptly
repair any damage to the Demised Premises caused by said removal and shall
restore the Demised Premises to the condition existing prior to the installation
of said addition, improvement or alteration; all such work shall be done prior
to the Termination Date.
(b) At any time during the Term, LESSEE may install or place or
reinstall or replace and remove from the Demised Premises any trade equipment,
machinery and personal property belonging to LESSEE, provided that (i) LESSEE
shall repair all damage caused by such removal and (ii) LESSEE shall not install
any equipment, machinery or other items upon the roof of the Building or make
any openings on or about such roof. Such
22
trade equipment, machinery and personal property shall not become the property
of LESSOR.
ARTICLE 8
---------
USE OF DEMISED PREMISES
-----------------------
8.1 LESSEE shall not, except with the prior consent of LESSOR, use or
suffer or permit the use of the Demised Premises or any part thereof for any
purposes other than for general administrative offices; provided, however,
anything in this Lease to the contrary notwithstanding, that (a) the portions of
the Demised Premises which are identified as toilets or utility areas shall be
used by LESSEE only for the purposes for which they are designed and (b) LESSEE
complies with the requirements of Section 8.2 hereof.
8.2 LESSEE shall not use, or suffer or permit the use of, the Demised
Premises or any part thereof in any manner or for any purpose or do, bring or
keep anything, or suffer or permit anything to be done, brought or kept, therein
(including, but not limited to, the installation or operation of any electrical,
electronic or other equipment) (a) which would violate any covenant, agreement,
term, provision or condition of this Lease or is unlawful or in contravention of
the certificate of occupancy for the Building, or is in contravention of any
Legal or Insurance Requirement to which the Demised Premises is subject, or (b)
which would overload or could cause an overload of the electrical or mechanical
systems of the Building or which would exceed the floor load per square foot
which the floor was designed to carry and which is allowed by law, or (c) which
in the reasonable judgment of the LESSOR may in any way impair or interfere with
the proper and economic heating, air conditioning of the Building or (d) suffer
or permit the Building or any component thereof to be used in any manner or
anything to be done therein or anything to be brought into or kept thereon
which, in the reasonable judgment of LESSOR, would in any way impair or tend to
impair or exceed the design criteria, the structural integrity, character or
appearance of the Building, or result in the use of the Building or any
component thereof in a manner or for a purpose not intended; nor shall the
LESSEE use, or suffer or permit the use of, the Demised Premises or any part
thereof in any manner, or do, or suffer or permit the doing of, anything therein
or in connection with the LESSEE'S business or advertising which, in the
reasonable judgment of the LESSOR, may be prejudicial to the business of LESSOR.
23
8.3 LESSEE shall obtain, at its sole cost and expense, all permits,
licenses or authorizations of any nature required in connection with the
operation of LESSEE'S business at the Demised Premises.
ARTICLE 9
---------
LESSOR'S SERVICES
-----------------
9.1 LESSOR shall furnish to LESSEE only the services set forth in this
Lease. All costs and expenses incurred by LESSOR in connection with providing
said services shall be included in LESSOR'S Operating Expenses.
9.2 (a) Throughout the Term, LESSOR shall supply (i) hot and cold
water to any lavatories within or serving the Demised Premises; (ii) heat,
ventilation and air conditioning to the Demised Premises during Building Hours
each day (other than during Building Holidays) as and when reasonably required
to maintain reasonably comfortable temperatures therein; (iii) passenger
elevator service during Building Hours each day (other than during Building
Holidays) to each floor above the street floor of the Building, with one of the
elevators being subject to call during hours other than Building Hours or on
Building Holidays; (iv) janitorial services for the Demised Premises after
Building Hours each day (other than during Building Holidays); and (v) snow and
ice removal each day (other than during Building Holidays) within a reasonable
time after accumulation thereof.
(b) If LESSEE requires any services beyond the Building Hours,
LESSEE will furnish the same in accordance with the provisions of this Section
9.2(b). LESSEE shall give LESSOR'S managing agent sufficient advance notice of
such requirement, which notice shall be given on or before 12:00 PM on the day
(other than a Building Holiday) such extra service is required; provided,
however, if such extra service is required during a Building Holiday, then such
notice shall be given not later than 12:00 PM of the last day (other than a
Building Holiday) preceding the Building Holiday on which such extra service is
required. LESSEE agrees to pay to LESSOR, as Additional Rent, the cost of such
extra service within fifteen (15) days after receipt of a statement for such
extra service; the cost of such extra service shall be determined in accordance
with LESSOR'S then current schedule of costs for the Building service in
question. Without limiting LESSOR'S right to increase its standard charge for
after hours heating, ventilation and air conditioning service, LESSOR
24
advises that as of the date of this Lease, its charge for such service is $55.00
per hour.
9.3 (a) Subject to the provisions of this Section 9.3, LESSOR agrees
to furnish to the Demised Premises the Standard Electric Service (as herein
defined). The term "Standard Electric Service" shall mean the amount of
electricity required during Building Hours for the lights and outlets in the
Demised Premises (as shown on the Final Plans), assuming that (i) LESSEE has not
connected to the outlets or the electrical system any fixtures, appliances or
equipment (including, without limitation, any supplemental air conditioning
equipment) other than electric typewriters, personal computers, calculators,
Building standard lights, desk lights, photocopy machines and other small,
ordinary office equipment, (ii) the electrical service required to the Demised
Premises does not exceed 20 amp service, and (iii) there is no computer room
within the Demised Premises.
(b) For the purposes of this Lease, LESSOR and LESSEE agree that
the Basic Rent includes an amount for the furnishing the Standard Electric
Service to the Demised Premises. If, as a result of (i) the installation of
additional fixtures, appliances or equipment in the Demised Premises or (ii) the
use of electricity during non-Building Hours, then LESSOR shall have the right
to submit to LESSEE a monthly electrical xxxx for the additional costs. LESSEE
shall pay such additional costs to LESSOR, as Additional Rent, in arrears,
within fifteen (15) days after its receipt of said statement.
(c) In no event shall any adjustment in the electrical usage or
rates result in a decrease in the Basic Rent payable hereunder.
(d) Notwithstanding anything to the contrary contained in this
Lease, LESSEE hereby expressly agrees and acknowledges that (i) LESSOR shall not
be liable in any way to LESSEE (A) for any loss, damage, failure, defect or
change in the quantity or character of electricity furnished to the Demised
Premises, (B) or if such quantity or character of electricity furnished to the
Demised Premises is no longer available or suitable for LESSEE'S requirements,
or (C) for any cessation, diminution or interruption of the supply thereof.
9.4 (a) LESSEE shall replace, at its sole cost and expense, all light
bulbs, fluorescent lamps, Building standard lamps and bulbs, and all ballasts
used by LESSEE in the Demised Premises with "like kind" bulbs, lamps and
ballasts.
25
(b) LESSEE shall make no alteration to the existing electrical
equipment or connect any fixtures, appliances or equipment thereto (other than
electric typewriters, personal computers, calculators, desk lights, photocopy
machines and other small, ordinary office equipment) without the prior written
consent of LESSOR in each instance. Should LESSOR grant such consent, all
additional risers or other equipment required therefor shall be provided by
LESSOR and the cost thereof shall be paid by LESSEE as Additional Rent within
fifteen (15) days after receipt of a statement for such cost.
9.5 LESSOR shall not be liable to LESSEE for any costs, expenses or
damages incurred by LESSEE as a result of any failure to furnish any service
hereunder, or any interruption of any utility service to the Demised Premises,
and such failure or interruption (i) shall not be construed as a constructive
eviction or eviction of LESSEE, (ii) shall not excuse LESSEE from failing to
perform any of its obligations hereunder and (iii) shall not entitle LESSEE to
any abatement or offset against Basic Rent or Additional Rent. LESSEE agrees
that any service to be provided by LESSOR may be stopped and/or interrupted in
connection with any inspection, repair, replacement or emergency. In the event
any service to be provided by LESSOR is stopped or interrupted in connection
with any inspection, repair or replacement, LESSOR will use practicable efforts
not to unreasonably interfere with LESSEE'S use of the Demised Premises.
9.6 The parties hereto shall comply with all mandatory and voluntary
energy conservation controls and requirements imposed or instituted by the
Federal, State or local governments and applicable to office buildings, or as
may be required to operate the Building as an office building comparable to
equivalent facilities in the Middlesex County area including, without
limitation, controls on the permitted range of temperature settings in office
buildings, and requirements necessitating curtailment of the volume of energy
consumption or the hours of operation of the Building. Any terms or conditions
of this Lease that conflict or interfere with such controls or requirements
shall be suspended for the duration of such controls or requirements. Compliance
with such controls or requirements shall not be considered an eviction, actual
or constructive, of LESSEE from the Demised Premises and shall not entitle
LESSEE to terminate this Lease or to an abatement of any Basic Rent or
Additional Rent.
26
ARTICLE 10
----------
COMPLIANCE WITH REQUIREMENTS; RULES AND REGULATIONS
---------------------------------------------------
10.1 (a) LESSEE will (i) comply with all Legal and Insurance
Requirements applicable to the Demised Premises and the use thereof and (ii)
maintain and comply with all permits, licenses and other authorizations required
by any governmental authority for its use of the Demised Premises and for the
proper operation, maintenance and repair of the Demised Premises or any part
thereof. LESSOR will join in the application (but at no cost to LESSOR) for any
permit or authorization with respect to Legal Requirements if such joinder is
necessary.
(b) Supplementing the provisions of clause (i) of Section
10.1(a), if any structural repairs or replacements are required in connection
with such compliance, LESSOR shall perform such repairs or replacements for
LESSEE'S account, and LESSEE shall reimburse LESSOR, upon demand, for the costs
and expenses incurred by LESSOR in connection with such repairs or replacements.
LESSEE shall not be responsible for capital improvements to the Building
necessary to comply with Legal or Insurance Requirements unless such
improvements are necessitated by (i) any addition, improvement or alteration to
the Building made by or at the request of LESSEE, or (ii) LESSEE'S specific use
of the Demised Premises as opposed to use for general office purposes.
10.2 LESSEE shall not do, or permit to be done, anything in or to the
Demised Premises, or bring or keep anything therein which will, in any way,
increase the cost of fire or public liability insurance on the Premises, or
invalidate or conflict with the fire insurance or public liability insurance
policies covering the Premises or any personal property kept therein by LESSOR,
or obstruct or interfere with the rights of LESSOR or of other tenants, or in
any other way injure LESSOR or other tenants, or subject LESSOR to any liability
for injury to persons or damage to property, or interfere with good order of the
Building, or conflict with the Legal Requirements. Any increase in fire
insurance premiums on the Premises or the contents within the Building, or any
increase in the premiums of any other insurance carried by LESSOR in connection
with the Building or the Premises, caused by the use or occupancy of the Demised
Premises by LESSEE and any expense or cost incurred in consequence of the
negligence, carelessness or willful action of LESSEE, shall be Additional Rent
and paid by LESSEE to LESSOR within ten (10) days of demand therefore made by
LESSOR to LESSEE.
27
10.3 LESSEE shall comply, and shall cause LESSEE'S Visitors to comply,
with the Rules and Regulations. LESSOR shall have the right to make reasonable
additions and amendments to the Rules and Regulations from time to time, and
LESSEE shall comply, and cause LESSEE'S Visitors to comply, with such additions
and amendments after delivery of a copy thereof to LESSEE or the posting of a
copy thereof in a prominent place in the Building. LESSOR shall not be liable
for the failure of any lessee, sublessee, or their agents, employees and
visitors to comply with the Rules and Regulations. LESSOR agrees to apply the
Rules and Regulations and any amendments and additions thereto in a uniform
manner and will not discriminate against LESSEE in enforcing the Rules and
Regulations.
ARTICLE 11
----------
COMPLIANCE WITH ENVIRONMENTAL LAWS
----------------------------------
11.1 Supplementing the provisions of Article 10, LESSEE shall comply,
at its sole cost and expense, with all Environmental Laws in connection with its
use and occupancy of the Demised Premises; provided, however, the provisions of
this Article 11 shall not obligate LESSEE to comply with the Environmental Laws
if such compliance is required solely as a result of the occurrence of a spill,
discharge or other event before the Commencement Date, or if such spill,
discharge or other event was not caused by the act, negligence or omission of
LESSEE or LESSEE'S Visitors.
11.2 LESSEE shall deliver promptly to LESSOR a true and complete
photocopy of any correspondence, notice, report, sampling, test, finding,
declaration, submission, order, complaint, citation or any other instrument,
document, agreement and/or information submitted to, or received from, any
governmental entity, department or agency in connection with any Environmental
Law relating to or affecting LESSEE, LESSEE'S employees, LESSEE'S use and
occupancy of the Demised Premises.
11.3 LESSEE shall not cause or permit any "hazardous substance" or
"hazardous waste" (as such terms are defined in the ISRA) to be brought, kept or
stored on or about the Demised Premises, and LESSEE shall not engage in, or
permit any other person or entity to engage in, any activity, operation or
business on or about the Demised Premises which involves the generation,
manufacture, refining, transportation, treatment, storage,
28
handling or disposal of hazardous substances and/or hazardous wastes.
11.4 (a) If a spill or discharge of a hazardous substance or a
hazardous waste occurs on the Premises, LESSEE shall give LESSOR immediate oral
and written notice of such spill and/or discharge, setting forth in reasonable
detail all relevant facts. In the event such spill or discharge arose out of or
in connection with LESSEE'S use and occupancy of the Demised Premises, or in the
event such spill or discharge was caused by the act, negligence or omission of
LESSEE or LESSEE'S Visitors, then LESSEE shall pay all costs and expenses
relating to compliance with the applicable Environmental Law (including, without
limitation, the costs and expenses of the site investigations and of the removal
and remediation of such hazardous substance or hazardous wastes).
(b) Without relieving LESSEE of its obligations under this Lease
and without waiving any default by LESSEE under this Lease, LESSOR shall have
the right, but not the obligation, to take such action as LESSOR deems necessary
or advisable to cleanup, remove, resolve or minimize the impact of or otherwise
deal with any spill or discharge of any hazardous substance or hazardous waste.
In the event such spill or discharge arose out of or in connection with LESSEE'S
use and occupancy of the Demised Premises, or in the event such spill or
discharge was caused by the act, negligence or omission of LESSEE or LESSEE'S
Visitors, then LESSEE shall pay to LESSOR on demand, as Additional Rent, all
costs and expenses incurred by LESSOR in connection with any action taken by
LESSOR.
11.5 (a) If LESSEE'S operations at the Demised Premises now or
hereafter constitute an "Industrial Establishment" (as defined under ISRA) or
are subject to the provisions of any other Environmental Law, then LESSEE agrees
to comply, at its sole cost and expense, with all requirements of ISRA and any
other applicable Environmental Law to the satisfaction of LESSOR and the
governmental entity, department or agency having jurisdiction over such matters
(including, but not limited to, performing site investigations and performing
any removal and remediation required in connection therewith), in connection
with (i) the occurrence of the Termination Date, (ii) any termination of this
Lease prior to the Termination Date, (iii) any closure, transfer or
consolidation of LESSEE'S operations at the Demised Premises, (iv) any change in
the ownership or control of LESSEE, (iv) any permitted assignment of this Lease
or permitted sublease of all or part of the Demised Premises or (v) any other
action by LESSEE which triggers ISRA or any other Environmental Law.
29
(b) In connection with subsection (a) above, if, with respect to
ISRA, LESSEE has failed to obtain a negative declaration or to complete an
approved clean-up plan or to otherwise comply with the provisions of ISRA prior
to the Termination Date, or if, with respect to any other Environmental Law,
LESSEE has failed to fully comply with the applicable provisions of such other
Environmental Law prior to the Termination Date, LESSEE shall be deemed to be a
holdover tenant, shall pay rent at the rate set forth in Section 24.3 and shall
continue to diligently pursue compliance with ISRA and/or such other
Environmental Law. Upon LESSEE'S full compliance with the provisions of ISRA or
of such other Environmental Law, LESSEE shall deliver possession of the Demised
Premises to LESSOR in accordance with the provisions of this Lease and such
holdover rent shall be adjusted as of said date.
11.6 (a) In connection with (i) any sale or other disposition of all
or part of LESSOR'S interest in the Premises, (ii) any change in the ownership
or control of LESSOR, (iii) any condemnation, (iv) any foreclosure or (v) any
other action by LESSOR which triggers ISRA or any other Environmental Law,
LESSOR shall comply, at its sole cost and expense, with all requirements of ISRA
and such other applicable Environmental Law; provided, however, if any site
investigation is required as a result of LESSEE'S use and occupancy of the
Demised Premises or a spill or discharge of a hazardous substance or hazardous
waste caused by the act, negligence or omission of LESSEE or LESSEE'S Visitors,
then LESSEE shall pay all costs associated with said site investigation; in
addition, if any removal and remediation is required as a result of a spill or
discharge of a hazardous substance or hazardous waste caused by the act,
negligence or omission of LESSEE or LESSEE'S Visitors, then LESSEE shall pay all
costs associated with said removal and remediation.
(b) If, in connection with such compliance, LESSOR requires any
affidavits, certifications or other information from LESSEE, LESSEE agrees to
cooperate with LESSOR and to deliver to LESSOR without charge all such documents
within five (5) business days after LESSEE'S receipt of said request. LESSEE
shall not be required to perform any investigations or conduct any tests in
connection therewith unless such investigations or tests are required as a
result of LESSEE'S use and occupancy of the Demised Premises or a spill or
discharge of a hazardous substance or hazardous waste caused by the act,
negligence or omission of LESSEE or LESSEE'S Visitors.
30
11.7 LESSEE hereby agrees to defend, indemnify and hold LESSOR
harmless from and against any and all claims, losses, liability, damages and
expenses (including, without limitation, site investigation costs, removal and
remediation costs and attorneys' fees and disbursements) arising out of or in
connection with (i) LESSEE'S use and occupancy of the Demised Premises, (ii) any
spill or discharge of a hazardous substance or hazardous waste by LESSEE or
LESSEE'S Visitors and/or (iii) LESSEE'S failure to comply with the provisions of
this Article 11.
11.8 If LESSOR has given to LESSEE the name and address of any holder
of an Underlying Encumbrance, LESSEE agrees to send to said holder a photocopy
of those items given to LESSOR pursuant to the provisions of Section 11.2.
11.9 LESSEE'S obligations under this Article 11 shall survive the
expiration or earlier termination of this Lease.
ARTICLE 12
----------
DISCHARGE OF LIENS
------------------
LESSEE will discharge within fifteen (15) days after receipt of notice
thereof any Lien on the Premises or the Basic Rent, Additional Rent or any other
sums payable under this Lease, caused by or arising out of LESSEE'S acts or
LESSEE'S failure to perform any obligation hereunder.
31
ARTICLE 13
----------
PERMITTED CONTESTS
------------------
LESSEE may contest by appropriate proceedings, the amount, validity or
application of any Legal Requirement which LESSEE is obligated to comply with or
any Lien which LESSEE is obligated to discharge, provided that (a) such
proceedings shall suspend the collection thereof, (b) no part of the Premises or
of any Basic Rent or Additional Rent or other sum payable hereunder would be
subject to loss, sale or forfeiture during such proceedings, (c) LESSOR would
not be subject to any civil or criminal liability for failure to pay or perform,
as the case may be, (d) LESSEE shall have furnished such security as may be
required in the proceedings or reasonably requested by LESSOR, (e) such
proceedings shall not affect the payment of Basic Rent, Additional Rent or any
other sum payable to LESSOR hereunder or prevent LESSEE from using the Demised
Premises for its intended purposes, and (f) LESSEE shall notify LESSOR of any
such proceedings not less than ten (10) days prior to the commencement thereof,
and shall describe such proceedings in reasonable detail. LESSEE will conduct
all such contests in good faith and with due diligence and will, promptly after
the determination of such contest, pay and discharge all amounts which shall be
determined to be payable therein.
ARTICLE 14
----------
INSURANCE; INDEMNIFICATION
--------------------------
14.1 (a) LESSEE shall obtain, and shall keep in full force and effect
during the Term, the following insurance coverages, with insurers which are
authorized to do business in the State of New Jersey and which are rated at
least A- in Best's Key Rating Guide:
(i) commercial general liability insurance (including,
during any period when LESSEE is making alterations or improvements to the
Demised Premises, coverage for any construction on or about the Demised
Premises), against claims for bodily injury, personal injury, death or property
damage occurring on, in or about the Demised Premises, or as a result of
ownership of facilities located on the Demised Premises, in an amount per
occurrence of not less than $5,000,000.00 combined single limit for any bodily
injury, personal injury, death or property damage;
32
(ii) workers' compensation insurance coverage for the full
statutory liability of LESSEE;
(iii) business interruption insurance in such amounts as
will reimburse LESSEE for direct and indirect loss of earnings attributable to
those events commonly insured against by reasonable prudent tenants and/or
attributable to LESSEE'S inability to access or to occupy (all or part of) the
Demised Premises; and
(iv) such other insurance with respect to the Demised
Premises in such amounts and against such insurable exposures as may reasonably
and customarily be required by any mortgagee holding a first lien upon the
Building.
(b) The policies of insurance required to be maintained by LESSEE
pursuant to Section 14.1 shall name as the insured parties (except for workers'
compensation insurance and business interruption insurance) LESSOR and LESSEE,
as their respective interests may appear, and shall be reasonably satisfactory
to LESSOR. In addition, said policies of insurance (except for worker's
compensation insurance) shall (i) provide that thirty (30) days' prior written
notice of suspension, cancellation, termination, modification, non-renewal or
lapse or material change of coverage shall be given and that such insurance
shall not be invalidated by any act or neglect of LESSOR or LESSEE or any owner
of the Premises, nor by any change in the title or ownership of the Premises,
nor by occupation of the Demised Premises for purposes more hazardous than are
permitted by such policy, and (ii) not contain a provision relieving the insurer
thereunder of liability for any loss by reason of the existence of other
policies of insurance covering the Demised Premises against the peril involved,
whether collectible or not; and the policies of insurance required to be
maintained by LESSEE pursuant to subsection 14.1(a)(i) shall also include a
contractual liability endorsement evidencing coverage of LESSEE'S obligation to
indemnify LESSOR pursuant to Section 14.4 hereof.
(c) On the Commencement Date, LESSEE shall deliver to LESSOR
original or duplicate policies or certificates of the insurers evidencing all
the insurance which is required to be maintained hereunder by LESSEE, and,
within ten (10) days prior to the expiration of any such insurance, other
original or duplicate policies or certificates evidencing the renewal of such
insurance.
33
(d) LESSEE shall not obtain or carry separate insurance
concurrent in form or contributing in the event of loss with that required by
Section 14.1 unless LESSOR and LESSEE are named as insureds therein.
14.2 (a) LESSOR shall obtain, and shall keep in full force and effect
during the Term, the following insurance coverages, with insurers which are
authorized to do business in the State of New Jersey and which are rated at
least A- in Best's Key Rating Guide:
(i) property insurance on the Building with respect to risks
from time to time included under a standard "All Risk" policy, including, but
not limited to, fire, vandalism, malicious mischief, loss of rental income
endorsement (for a 12 month period) and ordinance coverage (but excluding flood
and earthquake insurance), with an agreed endorsement in an amount equal to the
full replacement cost of the Building, as determined from time to time (but not
less often than once every year) by a method required by the insurer or
insurers;
(ii) commercial general liability insurance (including,
during any period when LESSOR is making alterations or improvements to the
Premises, coverage for any construction on or about the Premises), against
claims for bodily injury, personal injury, death or property damage occurring
on, in or about the Premises, or as a result of ownership of facilities located
on the Demised Premises, in an amount per occurrence and with such deductible as
required by the holder of any Underlying Encumbrance, or if none, as would be
reasonably carried by a prudent owner of property similar to the Premises;
(iii) rental income insurance in an amount equal to the
aggregate rental income from the Building, from time to time, for a period of
twelve (12) months;
(iv) such other insurance carried in good faith by LESSOR
and applicable to the Building; and
(v) such other insurance carried in good faith by LESSOR and
applicable to the Land.
For the purposes of this Lease, the sum of (i) the cost of the insurance
coverages maintained by LESSOR for the Building under subsections 9i), (iii) and
(iv) of this Section 14.2(a), and (ii) the Building's Complex Percentage of the
cost of the insurance coverages maintained by LESSOR for the Premises under
subsections
34
(ii) and (v) of this Section 14.2(a), is hereinafter referred to as "LESSOR'S
Insurance Costs".
(b) LESSEE shall pay to LESSOR, as Additional Rent, LESSEE'S
Proportionate Share of the amount by which LESSOR'S Insurance Costs for any
Lease Year during the Term exceeds the Base Insurance Costs. LESSEE'S
Proportionate Share of LESSOR'S Insurance Costs for less than a Lease Year shall
be prorated and apportioned.
(c) On or about January 1, 2001, and thereafter within ninety
(90) days following the first day of each succeeding calendar year within the
Term, LESSOR shall determine or estimate the amount by which LESSOR'S Insurance
Costs for the calendar year in question will exceed the Base Insurance Costs
("LESSOR'S Estimated Insurance Costs") and shall submit such information to
LESSEE in a written statement ("LESSOR'S Insurance Statement").
(d) Commencing on the first Basic Rent Payment Date following the
submission of any LESSOR'S Insurance Statement and continuing thereafter on each
successive Basic Rent Payment Date until LESSOR renders the next LESSOR'S
Insurance Statement, LESSEE shall pay to LESSOR on account of its obligation
under this Section 14.2, a sum (the "Monthly Insurance Payment") equal to
one-twelfth (1/12) of LESSEE'S Proportionate Share of LESSOR'S Estimated
Insurance Costs for such calendar year. LESSEE'S first Monthly Insurance Payment
after receipt of LESSOR'S Insurance Statement shall be accompanied by the
payment of an amount equal to the product of the number of full months, if any,
within the calendar year which shall have elapsed prior to such first Monthly
Insurance Payment, times the Monthly Insurance Payment; minus any Additional
Rent already paid by LESSEE on account of its obligation under Section 14.2 of
this Lease for such calendar year.
(e) Each LESSOR'S Insurance Statement shall reconcile the
payments made by LESSEE pursuant to the preceding LESSOR'S Insurance Statement
with LESSEE'S Proportionate Share of LESSOR'S Insurance Costs for the period
covered thereby. Any balance due to LESSOR shall be paid by LESSEE within thirty
(30) days after LESSEE'S receipt of LESSOR'S Insurance Statement; any surplus
due to LESSEE shall be applied by LESSOR against the next accruing monthly
installment(s) of Additional Rent due under this Section 14.2. If the Term has
expired or has been terminated, LESSEE shall pay the balance due to LESSOR or,
alternatively, LESSOR shall refund the surplus to LESSEE, whichever the case may
35
be, within thirty (30) days after LESSEE'S receipt of LESSOR'S Insurance
Statement; provided, however, if the Term shall have been terminated as a result
of a default by LESSEE, then LESSOR shall have the right to retain such surplus
to the extent LESSEE owes LESSOR any Basic Rent or Additional Rent.
(f) In no event shall any adjustment in LESSEE'S obligation to
pay Additional Rent under this Section 14.2 result in a decrease in the Basic
Rent payable hereunder. LESSEE'S obligation to pay Additional Rent, and LESSOR'S
obligation to credit and/or refund to LESSEE any amount, pursuant to the
provisions of this Section 14.2, shall survive the Termination Date.
(g) The provisions of Section 29.3 shall apply to LESSOR'S
Insurance Statement.
14.3 (a) LESSOR hereby waives and releases LESSEE, and LESSEE hereby
waives and releases LESSOR, from any and all liabilities, claims and losses for
which the released party is or may be held liable to the extent of any insurance
proceeds received by said injured party.
(b) Each party hereto agrees to have included in each of its
insurance policies (insuring the Building in the case of LESSOR, and insuring
LESSEE'S personal property, trade fixtures, equipment and improvements in the
case of LESSEE, against loss, damage or destruction by fire or other casualty) a
waiver of the insurer's right of subrogation against the other party to this
Lease. If there is any extra charge for such waiver, the party requesting the
waiver shall pay the extra charge therefor. If such waiver is not enforceable or
is unattainable, then such insurance policy shall contain either (i) an express
agreement that such policy shall not be invalidated if LESSOR or LESSEE,
whichever the case may be, waives the right of recovery against the other party
to this Lease or (ii) any other form for the release of LESSOR or LESSEE,
whichever the case may be. If such waiver, agreement or release shall not be, or
shall cease to be, obtainable from LESSOR'S insurance company or from LESSEE'S
insurance company, whichever the case may be, then LESSOR or LESSEE shall notify
the other party of such fact and shall use its best efforts to obtain such
waiver, agreement or release from another insurance company satisfying the
requirements of this Lease.
14.4 LESSEE hereby indemnifies, and shall pay, protect and hold LESSOR
harmless from and against all liabilities, losses, claims, demands, costs,
expenses (including attorneys' fees and
36
expenses) and judgments of any nature, (except to the extent LESSOR is
compensated by insurance maintained by LESSOR or LESSEE hereunder and except for
such of the foregoing as arise from the negligence, recklessness or willful
misconduct of LESSOR, its agents, servants or employees), arising, or alleged to
arise, from or in connection with, (i) any injury to, or the death of, any
person or loss or damage to property on or about the Demised Premises, (ii) any
violation of this Lease or of any Legal or Insurance Requirement, or (iii)
performance of any labor or services or the furnishing of any materials or other
property in respect of the Demised Premises or any part thereof. LESSEE will
resist and defend any action, suit or proceeding brought against LESSOR by
reason of any such occurrence by independent counsel selected by LESSEE, which
is reasonably acceptable to LESSOR. The obligations of LESSEE under this Section
14.4 shall survive any termination of this Lease.
14.5 LESSEE agrees to make no claim against LESSOR for any injury or
damage to LESSEE or to any other person or for any damage to, or loss (by theft
or otherwise) of, or loss of use of, any property of LESSEE or of any other
person, regardless of the cause thereof (including, without limitation, any such
injury or damage caused by the negligence, recklessness or willful misconduct of
LESSOR, its agents, servants and employees); it is hereby understood that LESSEE
assumes all risk in connection therewith.
ARTICLE 15
----------
ESTOPPEL CERTIFICATES
---------------------
15.1 At any time and from time to time, upon not less than ten (10)
days' prior notice by LESSOR, LESSEE shall execute, acknowledge and deliver to
LESSOR a statement (or, if LESSEE is a corporation, an authorized officer of
LESSEE shall execute, acknowledge and deliver to LESSOR a statement) certifying
the following: (i) the Commencement Date, (ii) the Termination Date, (iii) the
date(s) of any amendment(s) and/or modification(s) to this Lease, (iv) that this
Lease was properly executed and is in full force and effect without amendment or
modification, or, alternatively, that this Lease and all amendments and/or
modifications thereto have been properly executed and are in full force and
effect, (v) the current annual Basic Rent, the current monthly installments of
Basic Rent and the date on which LESSEE'S obligation to pay Basic Rent
commenced, (vi) the current monthly installment of Additional Rent for Taxes and
LESSOR'S Operating Expenses, (vii) the date to which Basic Rent and Additional
Rent
37
have been paid, (viii) the amount of the security deposit, if any, (ix) that all
work to be done to the Demised Premises by LESSOR has been completed in
accordance with this Lease and have been accepted by LESSEE, except as
specifically provided in the estoppel certificate, (x) that no installment of
Basic Rent or Additional Rent has been paid more than thirty (30) days in
advance, (xi) that LESSEE is not in arrears in the payment of any Basic Rent or
Additional Rent, (xii) that, to the best of LESSEE'S knowledge, neither party to
this Lease is in default in the keeping, observance or performance of any
covenant, agreement, provision or condition contained in this Lease and no event
has occurred which, with the giving of notice or the passage of time, or both,
would result in a default by either party, except as specifically provided in
the estoppel certificate, (xiii) that, to the best of LESSEE'S knowledge, LESSEE
has no existing defenses, offsets, liens, claims or credits against the Basic
Rent or Additional Rent or against enforcement of this Lease by LESSOR, (xiv)
that LESSEE has not been granted any options or rights of first refusal to
extend the Term, to lease additional space, to terminate this Lease before the
Termination Date or to purchase the Premises, except as specifically provided in
this Lease, (xv) that LESSEE has not received any notice of violation of Legal
Requirements or Insurance Requirements relating to the Premises or to the
Demised Premises, (xvi) that LESSEE has not assigned this Lease or sublet all or
any portion of the Demised Premises, (xvii) that no "hazardous substances" or
"hazardous wastes" have been generated, manufactured, refined, transported,
treated, stored, handled, disposed or spilled on or about the Demised Premises
and (xviii) such other reasonable matters as the person or entity requesting the
Certificate may request. LESSEE hereby acknowledges and agrees that such
statement may be relied upon by any mortgagee, or any prospective purchaser,
lessee, sublessee, mortgagee or assignee of any mortgage, of the Premises or any
part thereof.
15.2 If LESSEE shall fail or otherwise refuse to execute an estoppel
certificate in accordance with Section 15.1, then and upon such event, LESSEE
shall be deemed to have appointed LESSOR and LESSOR shall thereupon be regarded
as the irrevocable attorney-in-fact of LESSEE duly authorized to execute and
deliver the required certificate for and on behalf of LESSEE, but the exercise
of such power shall not be deemed a waiver of LESSEE'S default.
15.3 At any time and from time to time, upon not less than ten (10)
days' prior notice by LESSEE, an authorized officer of LESSOR shall execute,
acknowledge and deliver to LESSEE a
38
statement certifying the following: (i) the Commencement Date, (ii) the
Termination Date, (iii) the date(s) of any amendment(s) and/or modification(s)
to this Lease, (iv) that this Lease was properly executed and is in full force
and effect without amendment or modification, or, alternatively, that this Lease
and all amendments and/or modifications thereto have been properly executed and
are in full force and effect, (v) the current annual Basic Rent, the current
monthly installments of Basic Rent and the date on which LESSEE'S obligation to
pay Basic Rent commenced, (vi) the current monthly installment of Additional
Rent for Taxes and LESSOR'S Operating Expenses, (vii) the date to which Basic
Rent and Additional Rent have been paid, (viii) the amount of the security
deposit, if any, (ix) that all work done to the Demised Premises by LESSEE has
been approved, except as specifically provided in the estoppel certificate, (x)
that no installment of Basic Rent or Additional Rent has been paid more than
thirty (30) days in advance, (xi) that LESSEE is not in arrears in the payment
of any Basic Rent or Additional Rent, (xii) that, to the best of LESSOR'S
knowledge, neither party to this Lease is in default in the keeping, observance
or performance of any covenant, agreement, provision or condition contained in
this Lease and no event has occurred which, with the giving of notice or the
passage of time, or both, would result in a default by either party, except as
specifically provided in the estoppel certificate, (xiii) that, to the best of
LESSOR'S knowledge, LESSEE has no existing defenses, offsets, liens, claims or
credits against the Basic Rent or Additional Rent or against enforcement of this
Lease by LESSOR, (xiv) that LESSEE has not been granted any options or rights of
first refusal to extend the Term, to lease additional space, to terminate this
Lease before the Termination Date or to purchase the Premises, except as
specifically provided in this Lease, (xv) that LESSOR has not received any
notice of violation of Legal Requirements or Insurance Requirements relating to
the Premises or to the Demised Premises, and (xvi) that to the best of LESSOR'S
knowledge, no "hazardous substances" or "hazardous wastes" have been generated,
manufactured, refined, transported, treated, stored, handled, disposed or
spilled on or about the Demised Premises by LESSOR.
ARTICLE 16
----------
ASSIGNMENT AND SUBLETTING
-------------------------
16.1 Except as otherwise expressly provided in this Article 16, LESSEE
shall not sell, assign, transfer, hypothecate, mortgage, encumber, grant
concessions or licenses, sublet, or otherwise dispose of any interest in this
Lease or the Demised
39
Premises, by operation of law or otherwise, without the prior written consent of
LESSOR. Any consent granted by LESSOR in any instance shall not be construed to
constitute a consent with respect to any other instance or request. If the
Demised Premises or any part thereof should be sublet, used, or occupied by
anyone other than LESSEE, or if this Lease should be assigned by LESSEE, LESSOR
shall have the right to collect rent from the assignee, subtenant, user or
occupant, but no such assignment, subletting, use, occupancy or collection shall
be deemed a waiver of any of LESSOR'S rights under the provisions of this
Section 16.1, a waiver of any of LESSEE'S covenants contained in this Article
16, the acceptance of the assignee, subtenant, user or occupant as tenant, or a
release of LESSEE from further performance by LESSEE of LESSEE'S obligations
under the Lease.
16.2 If LESSEE shall desire to sublet the Demised Premises or to
assign this Lease, it shall first submit to LESSOR a written notice ("LESSEE'S
Notice") setting forth in reasonable detail:
(a) the name and address of the proposed sublessee or assignee;
(b) the terms and conditions of the proposed subletting or
assignment (including the proposed commencement date of the sublease or the
effective date of the assignment, which shall be at least thirty (30) days after
LESSEE'S Notice is given);
(c) the nature and character of the business of the proposed
sublessee or assignee;
(d) banking, financial, and other credit information relating to
the proposed sublessee or assignee, in reasonably sufficient detail, to enable
LESSOR to determine the proposed sublessee's or assignee's financial
responsibility; and
(e) in the case of a subletting, complete plans and
specifications for any and all work to be done in the Demised Premises to be
sublet.
16.3 Within thirty (30) days after LESSOR'S receipt of LESSEE'S
Notice, LESSOR agrees that it shall notify LESSEE whether LESSOR (i) consents to
the proposed sublet or assignment, (ii) does not consent to the proposed sublet
or assignment, or (iii) elects to exercise its recapture right, as described in
Section 16.5. In the event LESSOR does not elect to exercise its recapture
40
right, then LESSOR agrees not to unreasonably withhold its consent to the
proposed sublet or assignment.
16.4 In addition to the foregoing requirements,
(a) no assignment or sublease shall be permitted if, at the
effective date of such assignment or sublease, LESSEE is in default under this
Lease; and
(b) no assignment or sublease shall be permitted unless LESSEE
agrees, at the time of the proposed assignment or sublease and in LESSEE'S
Notice, to pay to LESSOR, immediately upon receipt thereof, 100% of all Net
Rental Proceeds, of whatever nature, payable by the prospective assignee or
sublessee to LESSEE pursuant to such assignment or sublease.
16.5 (a) LESSOR shall have the right, to be exercised by giving
written notice (the "Recapture Notice") to LESSEE within thirty (30) days after
receipt of LESSEE'S Notice, to recapture the space described in LESSEE'S Notice
(the "Recapture Space"). The Recapture Notice shall cancel and terminate this
Lease with respect to the Recapture Space as of the date stated in LESSEE'S
Notice for the commencement of the proposed assignment or sublease as fully and
completely as if that date had been herein definitively fixed as the Termination
Date, and LESSEE shall surrender possession of the Recapture Space as of such
date. Thereafter, the Basic Rent and Additional Rent shall be equitably adjusted
based upon the square footage of the Demised Premises then remaining, after
deducting the square footage attributable to the Recapture Space.
(b) In the event LESSOR elects to exercise its recapture right
and the Recaptured Space is less than the entire Demised Premises, then LESSOR,
at its sole expense, shall have the right to make any alterations to the Demised
Premises required, in LESSOR'S reasonable judgment, to make such Recaptured
Space a self-contained rental unit. LESSOR agrees to perform all such work, if
any, with as little inconvenience to LESSEE'S business as is reasonably
possible; provided, however, LESSOR shall not be required to perform such work
after normal business hours or on weekends; and provided further, LESSOR shall
not be deemed guilty of an eviction, partial eviction, constructive eviction or
disturbance of LESSEE'S use or possession of the Demised Premises, and shall not
be liable to LESSEE for same.
16.6 In addition to the foregoing requirements, any sublease must
contain the following provisions:
41
(a) the sublease shall be subject and subordinate to all of the
terms and conditions of this Lease;
(b) at LESSOR'S option, in the event of cancellation or
termination of this Lease for any reason or the surrender of this Lease, whether
voluntarily, involuntarily, or by operation of law, prior to the expiration of
such sublease, including extensions and renewals of such sublease, the subtenant
shall make full and complete attornment to LESSOR for the balance of the term of
the sublease. The attornment shall be evidenced by an agreement in form and
substance satisfactory to LESSOR which the subtenant shall execute and deliver
at any time within five (5) days after request by LESSOR or its successors and
assigns;
(c) the term of the sublease shall not extend beyond a date which
is one day prior to the Termination Date;
(d) no subtenant shall be permitted to further sublet all or any
portion of the subleased space or to assign its sublease without LESSOR'S prior
written consent; and
(e) the subtenant shall waive the provisions of any law now or
subsequently in effect which may give the subtenant any right of election to
terminate the sublease or to surrender possession of the space subleased in the
event that any proceeding is brought by LESSOR to terminate this Lease.
16.7 Each of the following events shall be deemed to constitute an
assignment of this Lease and each shall require the prior written consent of
LESSOR:
(a) any assignment or transfer of this Lease by operation of law;
or
(b) any hypothecation, pledge, or collateral assignment of this
Lease; or
(c) any involuntary assignment or transfer of this Lease in
connection with bankruptcy, insolvency, receivership, or similar proceeding; or
(d) any assignment, transfer, disposition, sale or acquisition of
a controlling interest in LESSEE to or by any person, entity, or group of
related persons or affiliated entities, whether in a single transaction or in a
series of related or unrelated transactions; or
42
(e) any issuance of an interest or interests in LESSEE (whether
stock, partnership interests, or otherwise) to any person, entity, or group of
related persons or affiliated entities, whether in a single transaction or in a
series of related or unrelated transactions, which results in such person,
entity, or group holding a controlling interest in LESSEE. For purposes of the
immediately foregoing, a "controlling interest" of LESSEE shall mean 50% or more
of the aggregate issued and outstanding equitable interests (whether stock,
partnership interests, membership interests or otherwise) of LESSEE.
16.8 It is a further condition to the effectiveness of any assignment
otherwise complying with this Article 16 that the assignee execute, acknowledge,
and deliver to LESSOR an agreement in form and substance satisfactory to LESSOR
whereby the assignee assumes all of the obligations of LESSEE under this Lease
and agrees that the provisions of this Article 16 shall continue to be binding
upon it with respect to all future assignments and deemed assignments of this
Lease.
16.9 No assignment of this Lease nor any sublease of all or any
portion of the Demised Premises shall release or discharge LESSEE from any
liability, whether past, present, or future, under this Lease and LESSEE shall
continue to remain primarily liable under this Lease.
16.10 LESSEE shall be responsible for obtaining all permits and
approvals required by any governmental or quasi-governmental agency in
connection with any assignment of this Lease or any subletting of the Demised
Premises, and LESSEE shall deliver copies of these documents to LESSOR prior to
the commencement of any work, if work is to be done. LESSEE is also responsible
for and is required to reimburse LESSOR for all fees, costs and expenses,
including, but not limited to, reasonable attorneys' fees and disbursements,
which LESSOR incurs in reviewing any proposed assignment of this Lease, any
proposed sublease of the Demised Premises, and any permits, approvals, and
applications for construction within the Demised Premises.
16.11 If LESSOR consents to any proposed assignment or sublease and
LESSEE fails to consummate the assignment or sublease to which LESSOR consented
within ninety (90) days after the giving of such consent, LESSEE shall be
required again to comply with all of the provisions and conditions of this
Article 16 before assigning this Lease or subletting the Demised Premises. If
LESSEE consummates the assignment or sublease to which LESSOR
43
consented within said ninety (90) day period, LESSEE agrees that it shall
deliver to LESSOR a fully executed, duplicate original counterpart of the
assignment or sublease agreement within ten (10) days of the date of execution
of such item.
16.12 LESSEE agrees that under no circumstances shall LESSOR be liable
in damages or subject to liability by reason of LESSOR'S failure or refusal to
grant its consent to any proposed assignment of this Lease or subletting of the
Demised Premises.
16.13 If LESSOR withholds its consent of any proposed assignment or
sublease, LESSEE shall defend, indemnify, and hold LESSOR harmless from and
reimburse LESSOR for all liability, damages, costs, fees, expenses, penalties,
and charges (including, but not limited to, reasonable attorneys' fees and
disbursements) arising out of any claims that may be made against LESSOR by any
brokers or other persons claiming a commission or similar compensation in
connection with the proposed assignment or sublease.
16.14 (a) Notwithstanding anything to the contrary contained in this
Lease, in the event that this Lease is assigned to any person or entity pursuant
to the provisions of the Bankruptcy Code, any and all monies or other
consideration payable or otherwise to be delivered in connection with such
assignment shall be paid or delivered to LESSOR, shall be and remain the
exclusive property of LESSOR and shall not constitute property of LESSEE or of
the estate of LESSEE within the meaning of the Bankruptcy Code. Any and all
monies or other consideration constituting LESSOR'S property under the preceding
sentence not paid or delivered to LESSOR shall be held in trust for the benefit
of LESSOR and be promptly paid to or turned over to LESSOR.
(b) If LESSEE proposes to assign this Lease pursuant to the
provisions of the Bankruptcy Code to any person or entity who shall have made a
bona fide offer to accept an assignment of this Lease on terms acceptable to
LESSEE, then notice of such proposed assignment setting forth (i) the name and
address of such person or entity, (ii) all of the terms and conditions of such
offer and (iii) the adequate assurance to be provided by LESSEE to assure such
person's or entity's future performance under this Lease, including, without
limitation, the assurance referred to in Section 365(b)(3) of the Bankruptcy
Code, or any such successor or substitute legislation or rule thereto, shall be
given to LESSOR by LESSEE no later than twenty (20) days after receipt by
LESSEE, but in any event no later than ten (10) days prior to the date that
LESSEE shall make application to a
44
court of competent jurisdiction for authority and approval to enter into such
assignment and assumption; for the purposes of clause (iii) of this sentence,
the phrase "adequate assurance" shall mean the deposit of cash security in an
amount equal to the Basic Rent and Additional Rent payable under this Lease for
the next succeeding twelve (12) months (which annual Additional Rent shall be
reasonably estimated by LESSOR). LESSOR shall thereupon have the prior right and
option, to be exercised by notice to LESSEE given at any time prior to the
effective date of such proposed assignment, to accept an assignment of this
Lease upon the same terms and conditions and for the same consideration, if any,
as the bona fide offer made by such person for the assignment of this Lease. Any
person or entity to which this Lease is assigned pursuant to the provisions of
the Bankruptcy Code shall be deemed without further act or deed to have assumed
all of the obligations arising under this Lease on or after the date of such
assignment. Any such assignee shall, upon demand, execute and deliver to LESSOR
an instrument confirming such assumption.
16.15 (i) LESSEE may, without LESSOR'S prior consent, but upon not
less than fifteen (15) days' prior notice to LESSOR, assign this Lease to, or
sublet all or part of the Premises to, or permit a portion of the Premises to be
occupied by, any corporation or other business entity which controls, is
controlled by, or is under common control with LESSEE (herein referred to as a
"related corporation"), subject, however, to compliance with LESSEE'S
obligations under this Lease, provided that (x) such related corporation's use
is consistent with the uses permitted under this Lease, (y) prior to such
assignment, subletting or occupancy, LESSEE furnishes LESSOR with the name of
any such related corporation and a written certification from a duly authorized
senior officer of LESSEE certifying to LESSOR that such assignee, subtenant or
occupant is a related corporation of LESSEE and (z) with respect to a related
corporation which is permitted to occupy a portion of the Premises, such related
corporation shall not be permitted to have an identification sign on the
entrance door to the Premises or on the wall adjacent thereto. From time to time
during such assignment, subletting or occupancy, upon written request by LESSOR,
a duly authorized senior officer of LESSEE shall certify in writing to LESSOR,
and shall substantiate by reasonable evidence, that such assignee, subtenant or
occupant continues to be a related corporation of LESSEE. LESSEE hereby
acknowledges and agrees that an assignment of this Lease shall be deemed to have
occurred at such time as such assignee, subtenant or occupant ceases to be a
related corporation of LESSEE, and that such assignment shall be subject to all
the provisions of this Article 16 (including, without
45
limitation, the obligation to obtain LESSOR'S prior written consent). Any
assignment, subletting or occupancy by a related corporation of LESSEE shall not
be deemed to relieve, release, impair or discharge any of LESSEE'S obligations
hereunder. For the purposes hereof, "control" shall be deemed to mean
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such corporation or other business
entity, through the ownership of voting securities, by contract, or otherwise.
(ii) LESSEE may, without LESSOR'S prior consent, but upon
not less than fifteen (15) days' prior written notice to LESSOR, assign this
Lease and the leasehold estate hereby created to a successor corporation of
LESSEE (as hereinafter defined). A "successor corporation," as used in this
subsection, shall mean (x) a corporation or other business entity into which or
with which LESSEE, its successors or assigns, is merged or consolidated, in
accordance with applicable statutory provisions for the merger or consolidation
of corporations, provided that by operation of law or by effective provisions
contained in the instruments of merger or consolidation, the liabilities of the
corporations or other business entities participating in such merger or
consolidation are assumed by the corporation or other business entity surviving
such merger or consolidation, or (y) a corporation or other business entity
acquiring all or substantially all of the assets of LESSEE, its corporate
successors or assigns, including the leasehold estate created by this Lease, and
assuming the obligations of LESSEE under this Lease, or (z) any corporate
successor or other business entity successor to a successor corporation becoming
such by either of the methods described in subdivisions (x) and (y) above;
provided that (1) such merger or consolidation, or such acquisition and
assumption, as the case may be, is not principally for the purpose of
transferring the leasehold estate created hereby, and (2) immediately after
giving effect to any such merger or consolidation, or such acquisition and
assumption, as the case may be, the corporation surviving such merger or created
by such consolidation or acquiring such assets and assuming such liabilities as
the case may be, shall have a net worth, as determined in accordance with
generally accepted accounting principles, equal to or greater than the net worth
of LESSEE as of the effective date of such assignment.
(iii) Notwithstanding anything to the contrary contained in
this Lease, the transfer of the outstanding capital stock of any corporate
tenant shall not be deemed an assignment of
46
this Lease if such transfer shall be effected by the sale of stock through the
"over-the-counter-market" or through any recognized stock exchange
ARTICLE 17
----------
CASUALTY
--------
17.1 If there is any damage to or destruction of the Demised Premises,
LESSEE shall promptly give notice thereof to LESSOR, describing the nature and
extent thereof.
17.2 If the Demised Premises are damaged, but no portion thereof is
rendered untenantable, and this Lease is not terminated pursuant to Section
17.4, 17.5 or 17.6 hereof, LESSOR shall, at its own expense, cause Restoration
to be completed as soon as reasonably practicable but in no event later than
ninety (90) days from the occurrence, subject to any Excusable Delays, and the
Basic Rent and Additional Rent shall not xxxxx.
17.3 If the Demised Premises are damaged or destroyed and are rendered
partially or wholly untenantable, and this Lease is not terminated pursuant to
Section 17.4, 17.5 or 17.6 hereof, LESSOR shall, at its own expense, cause
Restoration to be completed as soon as reasonably practicable but in no event
later than one hundred eighty (180) days from the occurrence, subject to any
Excusable Delays, and the Basic Rent and Additional Rent shall be equitably
abated.
17.4 If, in the sole opinion of LESSOR, the Building is damaged or
destroyed and the total cost of Restoration shall amount to thirty percent (30%)
or more of the full insurable value of the Building, LESSOR, in lieu of
Restoration, may elect to terminate this Lease, provided that notice of such
termination shall be sent to LESSEE within sixty (60) days after the occurrence
of such casualty. If LESSOR exercises its right to terminate this Lease, this
Lease shall cease, terminate and expire, and all Basic Rent and Additional Rent
shall be prorated, as of the date of such damage or destruction.
17.5 If the Building is damaged or destroyed and, in the reasonable
opinion of LESSOR, more than one hundred eighty (180) days are necessary to
complete Restoration, or if during the final year of the Term the Demised
Premises are damaged or destroyed and rendered partially or wholly untenantable,
LESSOR may elect to terminate this Lease provided notice of such termination
shall be sent to LESSEE within sixty (60) days after
47
the occurrence of such casualty. If LESSOR exercises its right to terminate this
Lease, this Lease shall cease, terminate and expire, and all Basic Rent and
Additional Rent shall be prorated, as of the date of such damage or destruction.
17.6 LESSOR shall not be required to expend for Restoration an amount
in excess of (i) the Net Award received by it plus (ii) the amount of the
deductible. In the event such amount is not adequate or the holder of an
Underlying Encumbrance elects to retain the Net Award, LESSOR shall have the
right to terminate this Lease provided notice of such termination shall be sent
to LESSEE within sixty (60) days after the amount of such Net Award is
ascertained, or after the date on which the holder of the Underlying Encumbrance
notifies LESSOR that it has elected to retain the Net Award, whichever the case
may be. If LESSOR exercises its right to terminate this Lease, this Lease shall
cease, terminate and expire, and all Basic Rent and Additional Rent shall be
prorated, as of the date of such damage or destruction.
ARTICLE 18
----------
CONDEMNATION
------------
18.1 LESSEE hereby irrevocably assigns to LESSOR any award or payment
to which LESSEE becomes entitled by reason of any Taking of all or any part of
the Demised Premises, whether the same shall be paid or payable in respect of
LESSEE'S leasehold interest hereunder or otherwise, except that LESSEE shall be
entitled to any award or payment for the Taking of LESSEE'S trade fixtures or
personal property or for loss of business, relocation or moving expenses
provided the amount of the Net Award payable to LESSOR with respect to the fee
interest is not diminished. All amounts payable pursuant to any agreement with
any condemning authority which have been made in settlement of or under threat
of any condemnation or other eminent domain proceeding shall be deemed to be an
award made in such proceeding. LESSEE agrees that this Lease shall control the
rights of LESSOR and LESSEE in any Net Award and any contrary provision of any
present or future law is hereby waived.
18.2 In the event of a Taking of the whole of the Demised Premises,
then the Term shall cease and terminate as of the date when possession is taken
by the condemning authority and all Basic Rent and Additional Rent shall be paid
up to that date.
48
18.3 In the event of a Taking of thirty (30%) percent or more of the
Demised Premises, then, if LESSEE shall determine in good faith and certify to
LESSOR that because of such Taking, continuance of its business at the Demised
Premises would be uneconomical, LESSEE may, at any time either prior to or
within a period of sixty (60) days after the date when possession of such
Demised Premises shall be required by the condemning authority, elect to
terminate this Lease. In the event that LESSEE shall fail to exercise any such
option to terminate this Lease, or in the event of a Taking of the Demised
Premises under circumstances under which LESSEE will have no such option, then,
and in either of such events, LESSOR shall, subject to the provisions of Section
18.4, cause Restoration to be completed as soon as reasonably practicable, but
in no case later than ninety (90) days after the date the condemning authority
takes possession of such portion of the Demised Premises, subject to any
Excusable Delays, and the Basic Rent and Additional Rent thereafter payable
during the Term shall be equitably prorated based upon the square foot area of
the Building actually taken.
18.4 If (a) the Net Award is inadequate to complete Restoration of the
Demised Premises, or (b) in the case of a Taking of thirty (30%) percent or more
of the Demised Premises, LESSEE has not elected to terminate this Lease pursuant
to Section 18.3 hereof, then LESSOR may elect either to complete such
Restoration or terminate this Lease by giving notice to LESSEE within sixty (60)
days after (x) the amount of the Net Award is ascertained or (y) the expiration
of the sixty (60) day period within which LESSEE may terminate this Lease (as
described in Section 18.3 hereof), whichever the case may be. In such event, all
Basic Rent and Additional Rent shall be apportioned as of the date the
condemning authority actually takes possession of the Demised Premises.
ARTICLE 19
----------
EVENTS OF DEFAULT
-----------------
19.1 Any of the following occurrences, conditions or acts shall
constitute an "Event of Default" under this Lease:
(a) If LESSEE shall default in making payment when due of any
Basic Rent, Additional Rent or other amount payable by LESSEE hereunder, and
such default shall continue for five (5) days; or
49
(b) if LESSEE shall fail to take actual occupancy of the Demised
Premises within ninety (90) days after the Commencement Date or shall thereafter
vacate the Demised Premises for a period in excess of sixty (60) days; provided,
however, in the event LESSEE is required to vacate the entire Demised Premises
as a result of a casualty, an Event of Default shall not be deemed to have
occurred unless LESSEE fails to take actual occupancy of the Demised Premises
within ninety (90) days after the Restoration has been substantially completed;
or
(c) if the Demised Premises shall be abandoned by LESSEE for a
period of thirty (30) consecutive days; or
(d) if LESSEE or any Guarantor shall file a petition in
bankruptcy pursuant to the Bankruptcy Code or under any similar federal or state
law, or shall be adjudicated a bankrupt or become insolvent, or shall commit any
act of bankruptcy as defined in any such law, or shall take any action in
furtherance of any of the foregoing; or
(e) if a petition or answer shall be filed proposing the
adjudication of LESSEE or any Guarantor as a bankrupt pursuant to the Bankruptcy
Code or any similar federal or state law, and (i) LESSEE or such Guarantor shall
consent to the filing thereof, or (ii) such petition or answer shall not be
discharged or denied within sixty (60) days after the filing thereof; or
(f) if a receiver, trustee or liquidator (or other similar
official) of LESSEE or any Guarantor or of all or substantially all of its
business or assets or of the estate or interest of LESSEE in the Demised
Premises shall be appointed and shall not be discharged within sixty (60) days
thereafter or if LESSEE or such Guarantor shall consent to or acquiesce in such
appointment; or
(g) if the estate or interest of LESSEE in the Demised Premises
shall be levied upon or attached in any proceeding and such process shall not be
vacated or discharged within sixty (60) days after such levy or attachment; or
(h) if LESSEE shall use or suffer or permit the use of the
Demised Premises or any part thereof for any purpose other than expressly
specified in Section 8.1; or
(i) if LESSEE fails to comply with any of the provisions of
Article 11; or
50
(j) if LESSEE fails to discharge any Lien within the time period
set forth in Article 12; or
(k) if LESSEE fails to maintain the insurance required pursuant
to Article 14, or LESSEE fails to deliver to LESSOR the insurance certificates
required by Article 14 within the time periods set forth in Section 14.1(c); or
(l) if LESSEE fails to deliver to LESSOR the estoppel certificate
required by Article 15 within the time period set forth therein; or
(m) if LESSEE assigns this Lease or sublets all or any portion of
the Demised Premises without complying with all the provisions of Article 16; or
(n) if LESSEE fails to deliver to LESSOR the subordination
agreement required by Section 23.l within the time period set forth therein; or
(o) if LESSEE fails to comply with any Legal or Insurance
after LESSOR shall have given notice to LESSEE specifying such default and
demanding that the same be cured; or
(p) if LESSEE shall default in the observance or performance of
any provision of this Lease other than those provisions contemplated by clause
(a) through (o), inclusive, of this Section 19.1, and such default shall
continue for thirty (30) days after LESSOR shall have given notice to LESSEE
specifying such default and demanding that the same be cured (unless such
default cannot be cured by the payment of money and cannot with due diligence be
wholly cured within such period of thirty (30) days, in which case LESSEE shall
have such longer period as shall be necessary to cure the default, so long as
LESSEE proceeds promptly to cure the same within such thirty (30) day period,
prosecutes the cure to completion with due diligence and advises LESSOR from
time to time, upon LESSOR'S request, of the actions which LESSEE is taking and
the progress being made); or
(q) if any Guarantor defaults under the terms and conditions of
the guaranty delivered to LESSOR, and such default continues beyond any
applicable cure period contained therein, or if any of the representations
and/or warranties made by any Guarantor are untrue or materially misleading as
of the date of the guaranty delivered to LESSOR.
51
ARTICLE 20
----------
CONDITIONAL LIMITATIONS; REMEDIES
---------------------------------
20.1 This Lease and the Term and estate hereby granted are subject to
the limitation that whenever an Event of Default shall have happened and be
continuing, LESSOR shall have the right, at its election, then or thereafter
while any such Event of Default shall continue and notwithstanding the fact that
LESSOR may have some other remedy hereunder or at law or in equity, to give
LESSEE written notice of LESSOR'S intention to terminate this Lease on a date
specified in such notice, which date shall be not less than five (5) days after
the giving of such notice, and upon the date so specified, this Lease and the
estate hereby granted shall expire and terminate with the same force and effect
as if the date specified in such notice were the date hereinbefore fixed for the
expiration of this Lease, and all right of LESSEE hereunder shall expire and
terminate, and LESSEE shall be liable as hereinafter in this Article 20
provided. If any such notice is given, LESSOR shall have, on such date so
specified, the right of re-entry and possession of the Demised Premises and the
right to remove all persons and property therefrom and to store such property in
a warehouse or elsewhere at the risk and expense, and for the account, of
LESSEE. Should LESSOR elect to re-enter as herein provided or should LESSOR take
possession pursuant to legal proceedings or pursuant to any notice provided for
by law, LESSOR may from time to time re-let the Demised Premises or any part
thereof for such term or terms and at such rental or rentals and upon such terms
and conditions as LESSOR may deem advisable, with the right to make alterations
in and repairs to the Demised Premises.
20.2 In the event of any termination of this Lease as in this Article
20 provided or as required or permitted by law, LESSEE shall forthwith quit and
surrender the Demised Premises to LESSOR, and LESSOR may, without further
notice, enter upon, re-enter, possess and repossess the same by summary
proceedings, ejectment or otherwise, and again have, repossess and enjoy the
same as if this Lease had not been made, and in any such event LESSEE and no
person claiming through or under LESSEE by virtue of any law or an order of any
court shall be entitled to possession or to remain in possession of the Demised
Premises but shall forthwith quit and surrender the Demised Premises, and LESSOR
at its option shall forthwith, notwithstanding any other provision of this
Lease, be entitled to recover from LESSEE, as and for liquidated damages, the
sum of:
52
(a) all Basic Rent, Additional Rent and other amounts payable by
LESSEE hereunder then due or accrued and unpaid, and
(b) for loss of the bargain, an amount equal to the aggregate of
all unpaid Basic Rent and Additional Rent which would have been payable if this
Lease had not been terminated prior to the end of the Term then in effect,
discounted to its then present value in accordance with accepted financial
practice using a rate equal to six percent (6%) per annum; and
(c) all other damages and expenses (including attorneys' fees and
expenses), which LESSOR shall have sustained by reason of the breach of any
provision of this Lease.
20.3 Nothing herein contained shall limit or prejudice the right of
LESSOR, in any bankruptcy or insolvency proceeding, to prove for and obtain as
liquidated damages by reason of such termination an amount equal to the maximum
allowed by any bankruptcy or insolvency proceedings, or to prove for and obtain
as liquidated damages by reason of such termination, an amount equal to the
maximum allowed by any statute or rule of law whether such amount shall be
greater or less than the excess referred to above.
20.4 In the event that LESSEE should abandon the Demised Premises,
LESSOR may, at its option and for so long as LESSOR does not terminate LESSEE'S
right to possession of the Demised Premises, enforce all of its rights and
remedies under this Lease, including the right to recover all Basic Rent,
Additional Rent and other payments as they become due hereunder. Additionally,
LESSOR shall be entitled to recover from LESSEE all costs of maintenance and
preservation of the Demised Premises, and all costs, including attorneys' and
receiver's fees, incurred in connection with the appointment of or performance
by a receiver to protect the Demised Premises and LESSOR'S interest under this
Lease.
20.5 Nothing herein shall be deemed to affect the right of LESSOR to
indemnification pursuant to Section 14.4 of this Lease.
20.6 At the request of LESSOR upon the occurrence of an Event of
Default, LESSEE will quit and surrender the Demised Premises to LESSOR or its
agents, and LESSOR may without further notice enter upon, re-enter and repossess
the Demised Premises by summary proceedings, ejectment or otherwise. The words
"enter",
53
"re-enter", and "re-entry" are not restricted to their technical legal meanings.
20.7 If either LESSOR or LESSEE shall be in default in the observance
or performance of any provision of this Lease, and an action shall be brought
for the enforcement thereof in which it shall be determined that said party was
in default, the defaulting party shall pay to the non-defaulting party all
reasonable fees, costs and other expenses incurred by the non-defaulting party
in connection therewith, including reasonable attorneys' fees and expenses. In
the event it is determined that said party was not in default, then the party
alleging said default shall pay to the other party all the aforesaid reasonable
fees, costs and expenses incurred by said party.
20.8 If LESSEE shall default in the keeping, observance or performance
of any covenant, agreement, term, provision or condition herein contained,
LESSOR, without thereby waiving such default, may perform the same for the
account and at the expense of LESSEE (a) immediately or at any time thereafter
and without notice in the case of emergency or in case such default will result
in a violation of any Legal or Insurance Requirement, or in the imposition of
any Lien against all or any portion of the Premises and (b) in any other case if
such default continues after thirty (30) days from the date of the giving by
LESSOR to LESSEE of notice of LESSOR'S intention so to perform the same. All
costs and expenses incurred by LESSOR in connection with any such performance by
it for the account of LESSEE and also all costs and expenses, including
attorneys' fees and disbursements incurred by LESSOR in any action or proceeding
(including any summary dispossess proceeding) brought by LESSOR to enforce any
obligation of LESSEE under this Lease and/or right of LESSOR in or to the
Demised Premises, shall be paid by LESSEE to LESSOR upon demand.
20.9 Except as otherwise provided in this Article 20, no right or
remedy herein conferred upon or reserved to LESSOR or LESSEE is intended to be
exclusive of any other right or remedy, and every right and remedy shall be
cumulative and in addition to any other legal or equitable right or remedy given
hereunder, or now or hereafter existing. No waiver by LESSOR or by LESSEE of any
provision of this Lease shall be deemed to have been made unless expressly so
made in writing. LESSOR and LESSEE shall be entitled, to the extent permitted by
law, to injunctive relief in case of the violation, or attempted or threatened
violation, of any provision of this Lease, or to a decree compelling observance
54
or performance of any provision of this Lease, or to any other legal or
equitable remedy.
ARTICLE 21
----------
ACCESS; RESERVATION OF EASEMENTS
--------------------------------
21.1 LESSOR and LESSOR'S agents and representatives shall have the
right to enter into or upon the Demised Premises, or any part thereof, at all
reasonable hours for the following purposes: (1) examining the Demised Premises;
(2) making such repairs or alterations therein as may be necessary in LESSOR'S
sole judgment for the safety and preservation of the Demised Premises; (3)
erecting, maintaining, repairing or replacing wires, cables, ducts, pipes,
conduits, vents or plumbing equipment running in, to or through the Building;
(4) showing the Demised Premises to prospective new tenants during the last
twelve (12) months of the Term; or (5) showing the Demised Premises during the
Term to any mortgagees or prospective purchasers of the Premises. LESSOR shall
give LESSEE three (3) business days prior written notice before commencing any
non-emergency repair or alteration.
21.2 LESSOR may enter upon the Demised Premises at any time in case of
emergency without prior notice to LESSEE.
21.3 LESSOR, in exercising any of its rights under this Article 21,
shall not be deemed guilty of an eviction, partial eviction, constructive
eviction or disturbance of LESSEE'S use or possession of the Demised Premises
and shall not be liable to LESSEE for same.
21.4 All work performed by or on behalf of LESSOR in or on the Demised
Premises pursuant to this Article 21 shall be performed with as little
inconvenience to LESSEE'S business as is reasonably possible.
21.5 LESSEE shall not change any locks or install any additional locks
on doors entering into the Building without immediately giving to LESSOR a copy
of any such lock key. If in an emergency LESSOR is unable to gain entry to the
Building by unlocking entry doors thereto, LESSOR may force or otherwise enter
the Building, without liability to LESSEE for any damage resulting directly or
indirectly therefrom. LESSEE shall be responsible for all damages created or
caused by its failure to give LESSOR a copy of any key to any lock installed by
LESSEE controlling entry to the Building.
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21.6 LESSOR reserves the right, from time to time, to make changes,
alterations, additions, improvements, repairs or replacements in or to (i) those
portions of the Demised Premises which LESSOR is obligated to maintain and
repair pursuant to the provisions of Section 7.3 and (ii) to the other portions
of the Demised Premises and to the fixtures and equipment in the Building as
LESSOR may reasonably deem necessary to comply with any applicable Legal
Requirements and/or to correct any unsafe condition; provided, however, that
there be no unreasonable obstruction of the means of access to the Demised
Premises or unreasonable interference with LESSEE'S use of the Demised Premises
and the usable square foot area of the Building is not unreasonably affected
thereby. Nothing contained in this Article shall be deemed to relieve LESSEE of
any duty, obligation or liability of LESSEE with respect to making any repair,
replacement or improvement or complying with any applicable Legal Requirements.
ARTICLE 22
----------
ACCORD AND SATISFACTION
-----------------------
The receipt by LESSOR of any installment of Basic Rent or of any
Additional Rent with knowledge of a default by LESSEE under the terms and
conditions of this Lease shall not be deemed a waiver of such default. No
payment by LESSEE or receipt by LESSOR of a lesser amount than the rent herein
stipulated shall be deemed to be other than on account of the earliest
stipulated rent, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and LESSOR may accept such check or payment without prejudice to
LESSOR'S right to recover the balance of such rent or pursue any other remedy in
this Lease provided.
ARTICLE 23
----------
SUBORDINATION
-------------
23.1 This Lease and the term and estate hereby granted are and shall
be subject and subordinate to the lien of each mortgage which may now or at any
time hereafter affect all or any portion of the Premises or LESSOR'S interest
therein and to all ground leases which may now or at any time hereafter affect
all or any portion of the Premises (any such mortgage or ground lease being
herein called an "Underlying Encumbrance"). The foregoing provisions for the
subordination of this Lease and the term and estate hereby granted to an
Underlying Encumbrance shall be self-
56
operative and no further instrument shall be required to effect any such
subordination; provided, however, at any time and from time to time, upon not
less than ten (10) days' prior notice by LESSOR, LESSEE shall execute,
acknowledge and deliver to LESSOR any and all reasonable instruments that may be
necessary or proper to effect such subordination or to confirm or evidence the
same.
23.2 If all or any portion of LESSOR'S estate in the Premises shall be
sold or conveyed to any person, firm or corporation upon the exercise of any
remedy provided for in any mortgage or by law or equity, such person, firm or
corporation and each person, firm or corporation thereafter succeeding to its
interest in the Premises (a) shall not be liable for any act or omission of
LESSOR under this Lease occurring prior to such sale or conveyance, (b) shall
not be subject to any offset, defense or counterclaim accruing prior to such
sale or conveyance, (c) shall not be bound by any payment prior to such sale or
conveyance of Basic Rent, Additional Rent or other payments for more than one
month in advance (except prepayments in the nature of security for the
performance by LESSEE of its obligations hereunder), and (d) shall be liable for
the keeping, observance and performance of the other covenants, agreements,
terms, provisions and conditions to be kept, observed and performed by LESSOR
under this Lease only during the period such person, firm or corporation shall
hold such interest.
23.3 In the event of an act or omission by LESSOR which would give
LESSEE the right to terminate this Lease or to claim a partial or total
eviction, LESSEE will not exercise any such right until it has given written
notice of such act or omission, or, in the case of the Demised Premises or any
part thereof becoming untenantable as the result of damage from fire or other
casualty, written notice of the occurrence of such damage, to the holder of any
Underlying Encumbrance whose name and address shall previously have been
furnished to LESSEE in writing, by delivering such notice of such act, omission
or damage addressed to such holder at said address or if such holder hereafter
furnishes another address to LESSEE in writing at the last address of such
holder so furnished to LESSEE, and, unless otherwise provided herein, until a
reasonable period for remedying such act, omission or damage shall have elapsed
following such giving of such notice, provided any such holder, with reasonable
diligence, shall, following the giving of such notice, have commenced and
continued to remedy such act, omission or damage or to cause the same to be
remedied.
57
23.4 If, in connection with obtaining financing for the Premises or
refinancing any mortgage encumbering the Premises, the prospective lender
requests reasonable modifications to this Lease as a condition precedent to such
financing or refinancing, then LESSEE hereby covenants and agrees not to
unreasonably withhold, delay or condition its consent to such modifications,
provided such modifications do not materially increase LESSEE'S financial
obligations hereunder and do not materially reduce LESSEE'S rights hereunder.
ARTICLE 24
----------
LESSEE'S REMOVAL
----------------
24.1 Upon the expiration or earlier termination of this Lease, LESSEE
shall surrender the Demised Premises to LESSOR in the condition same is required
to be maintained under Article 7 of this Lease and broom clean. Any personal
property which shall remain in any part of the Demised Premises after the
expiration or earlier termination of this Lease shall be deemed to have been
abandoned, and either may be retained by LESSOR as its property or may be
disposed of in such manner as LESSOR may see fit; provided, however, that,
notwithstanding the foregoing, LESSEE will, upon request of LESSOR made not
later than thirty (30) days after the expiration or earlier termination of this
Lease, promptly remove from the Demised Premises any such personal property.
24.2 If, at any time during the last three (3) months of the Term,
LESSEE shall not occupy any part of the Demised Premises in connection with the
conduct of its business, LESSOR may elect, at its option, to enter such part of
the Demised Premises to alter and/or redecorate such part of the Demised
Premises, and LESSEE hereby irrevocably grants to LESSOR a license to enter such
part of the Demised Premises in connection with such alterations and/or
redecorations. LESSOR'S exercise of such right shall not relieve LESSEE from any
of its obligation under this Lease.
24.3 If LESSEE holds over possession of the Demised Premises beyond
the Termination Date, such holding over shall not be deemed to extend the Term
or renew this Lease but such holding over shall continue upon the terms,
covenants and conditions of this Lease except that LESSEE agrees that the charge
for use and occupancy of the Demised Premises for each calendar month or portion
thereof that LESSEE holds over (even if such part shall be one day) shall be a
liquidated sum equal to one-twelfth (1/12th) of two (2) times the Basic Rent and
Additional Rent required to be
58
paid by LESSEE during the calendar year preceding the Termination Date. The
parties recognize and agree that the damage to LESSOR resulting from any failure
by LESSEE to timely surrender possession of the Demised Premises will be
extremely substantial, will exceed the amount of the monthly Basic Rent and
Additional Rent payable hereunder and will be impossible to accurately measure.
If the Demised Premises are not surrendered upon the expiration of this Lease,
LESSEE shall indemnify, defend and hold harmless LESSOR against any and all
losses and liabilities resulting therefrom, including, without limitation, any
claims made by any succeeding tenant founded upon such delay, so long as LESSOR
has notified LESSEE that LESSOR has executed a lease or other occupancy
agreement for all or any portion of the Demised Premises. Nothing contained in
this Lease shall be construed as a consent by LESSOR to the occupancy or
possession by LESSEE of the Demised Premises beyond the Termination Date, and
LESSOR, upon said Termination Date, shall be entitled to the benefit of all
legal remedies that now may be in force or may be hereafter enacted relating to
the immediate repossession of the Demised Premises. The provisions of this
Article shall survive the expiration or sooner termination of this Lease.
ARTICLE 25
----------
BROKERS
-------
LESSEE represents to LESSOR that LESSEE has not dealt with any real
estate broker or sales representative in connection with this transaction other
than Xxxxxxxx, Xxxxxxxx & Xxxxxxx Company, LLC; the phrase "real estate broker
or sales representative" shall be deemed to include any finder/consultant
retained by LESSEE, but whose fees are to be paid by LESSOR. LESSEE agrees to
indemnify and hold harmless LESSOR, LESSOR'S managing agent, and the respective
directors, officers, employees and partners of the foregoing entities, or of any
partner of the foregoing entities, from and against any threatened or asserted
claims, liabilities, losses or judgments (including reasonable attorneys' fees
and disbursements) by any real estate broker or sales representative (other than
those set forth above) based on alleged contacts between such broker or sales
representative and LESSEE which have resulted in allegedly providing such broker
or sales representative with the right to claim a commission or finder's fee in
connection with this Lease. The provisions of this Article shall survive the
expiration or sooner termination of this Lease.
59
ARTICLE 26
----------
NOTICES
-------
All notices, demands, requests, consents, approvals, offers,
statements and other instruments or communications required or permitted to be
given hereunder (i) shall be in writing, (ii) shall be addressed as set forth in
the next succeeding sentence, or to such other address as either party shall
designate to the other in writing, (iii) shall be delivered personally, or shall
be sent by a nationally recognized overnight courier service, or shall be sent
by first class registered or certified mail, postage prepaid, and (iv) shall be
deemed given hereunder (x) on the delivery thereof if sent by personal delivery
or by a nationally recognized overnight courier service or (y) upon receipt or
non-acceptance by the addressee if sent by first class registered or certified
mail. All such notices, demands, requests, consents, approvals, offers,
statements and other instruments or communications shall be addressed to LESSEE
at the Demised Premises (Plaza I, 000 Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxx Xxxxxx
00000, to the attention of ________________), with a copy to Xxxxxx Xxxxxx,
Esq., Xxxx & Xxxx LLP, 000 Xxxxxxx Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, and
shall be addressed to LESSOR to the address for LESSOR set forth above.
ARTICLE 27
----------
NATURE OF LESSOR'S OBLIGATIONS
------------------------------
Anything in the Lease to the contrary notwithstanding, no recourse or
relief shall be had under any rule of law, statute or constitution or by any
enforcement of any assessments or penalties, or otherwise or based on or in
respect of this Lease (whether by breach of any obligation, monetary or
non-monetary), against LESSOR, it being expressly understood that all
obligations of LESSOR under or relating to this Lease are solely obligations
payable out of the Premises and are compensable solely therefrom. It is
expressly understood that all such liability is and is being expressly waived
and released as a condition of and as a condition for the execution of this
Lease, and LESSEE expressly waives and releases all such liability as a
condition of, and as a consideration for, the execution of this Lease by LESSOR.
60
ARTICLE 28
----------
SECURITY DEPOSIT
----------------
28.1. (a) Concurrently with the execution of this Lease, LESSEE shall
deposit with LESSOR the sum of $7,187.25, the same to be held by LESSOR as
security for the full and faithful performance by LESSEE of the terms and
conditions by it to be observed and performed hereunder. If any Basic Rent,
Additional Rent or other sum payable by LESSEE to LESSOR becomes overdue and
remains unpaid, or should LESSOR make any payments on behalf of LESSEE, or
should LESSEE fail to perform any of the terms and conditions of this Lease,
then LESSOR, at its option, and without prejudice to any other remedy which
LESSOR may have on account thereof, shall appropriate and apply said deposit, or
so much thereof as may be required to compensate or reimburse LESSOR, as the
case may be, toward the payment of Basic Rent, Additional Rent or other such sum
payable hereunder, or loss or damage sustained by LESSOR due to the breach or
failure to perform on the part of LESSEE, and upon demand, LESSEE shall restore
such security to the original sum deposited.
(b) LESSEE hereby agrees that the security deposit shall equal
three (3) month's Basic Rent at all times during the Term, and LESSEE agrees to
deposit with LESSOR such additional sum as may be required to satisfy such
requirement within thirty (30) days after any increase in the Basic Rent.
28.2 Conditioned upon the full compliance by LESSEE of all of the
terms of this Lease, and the prompt payment of all sums due hereunder, as and
when they fall due, said deposit shall be returned in full to LESSEE within
fifteen (15) days after the end of the Term.
28.3 In the event of bankruptcy or other debtor-creditor proceeding
against LESSEE, such security deposit shall be deemed to be applied first to the
payment of rent and other charges due LESSOR for all periods prior to filing of
such proceedings.
28.4 In the event of any transfer of title to the Premises, or any
assignment of LESSOR'S interest under this Lease, LESSOR shall have the right to
transfer the security deposit to said transferee or assignee, and LESSOR shall
thereupon be released by LESSEE from all liability for the return of such
security deposit. In such event, LESSEE agrees to look to the new lessor for the
return of the security deposit. It is hereby agreed that the provisions of this
Section shall apply to every
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transfer or assignment made of the security deposit to a new lessor.
ARTICLE 29
----------
MISCELLANEOUS
-------------
29.1 This Lease may not be amended, modified or nor may any obligation
hereunder be waived, orally, and no such amendment, modification, termination or
waiver, shall be effective unless in writing and signed by the party against
whom enforcement thereof is sought. No waiver by LESSOR of any obligation of
LESSEE hereunder shall be deemed to constitute a waiver of the future
performance of such obligation by LESSEE. If any provision of this Lease or any
application thereof shall be invalid or unenforceable, the remainder of this
Lease and any other application of such provision shall not be affected thereby.
This Lease shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto, except as
provided in Article 16. Upon due performance of the covenants and agreements to
be performed by LESSEE under this Lease, LESSOR covenants that LESSEE shall and
may at all times peaceably and quietly have, hold and enjoy the Demised Premises
during the Term. The table of contents and the article headings are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. Schedules A, B, C, D and E annexed hereto are incorporated into
this Lease. This Lease will be simultaneously executed in several counterparts,
each of which when so executed and delivered, shall constitute an original,
fully enforceable counterpart for all purposes. This Lease shall be governed by
and construed in accordance with the laws of the State of New Jersey.
29.2 No act or thing done by LESSOR or LESSOR'S agents during the Term
shall be deemed an acceptance of a surrender of the Demised Premises, and no
agreement to accept such surrender shall be valid unless in writing and signed
by LESSOR. No employee of LESSOR or LESSOR'S agents shall have any authority to
accept the keys to the Demised Premises prior to the Termination Date and the
delivery of keys to any employee of LESSOR or LESSOR'S agents shall not operate
as an acceptance of a termination of this Lease or an acceptance of a surrender
of the Demised Premises.
29.3 LESSOR'S failure during the Term to prepare and deliver any of
the statements, notices or bills set forth in this Lease shall not in any way
cause LESSOR to forfeit or surrender
62
its rights to collect any amount that may have become due and owing to it during
the Term.
29.4 (a) LESSOR hereby reserves the right, at its sole option, to
relocate LESSEE to other space within the Building (the "New Space") at any time
during the Term so long as the following preconditions are satisfied:
(i) The rentable square footage of the New Space is the same
as, or no more than 100 square feet of larger than, the rentable square footage
of the Demised Premises; and
(ii) LESSOR, at its sole cost and expense, has completed the
New Space and has prepared the same for LESSEE'S occupancy so that the level of
finish therein is reasonably comparable to the level of finish of the Demised
Premises.
If LESSOR elects to exercise its relocation right, LESSOR agrees to notify
LESSEE of said exercise and of the estimated date of the relocation, which date
shall not be less than sixty (60) days after the date of LESSOR'S notice.
(b) Within twenty (20) days following the giving by LESSOR of a
notice stating that the rentable square footage of the New Space satisfies that
requirement of clause (a)(i) above and that the New Space is substantially
completed in accordance with the requirements of clause (a)(ii) above, LESSEE
shall vacate the Demised Premises and move into the New Space. LESSOR agrees to
reimburse LESSEE for all reasonable costs and expenses incurred by LESSEE in
connection with (i) moving its equipment, furniture and other personal property
from the Demised Premises to the New Space, (ii) installing its telephone and
computer systems in the New Space and (iii) installing its identification sign
at the entrance to the New Space; said reimbursement shall be made within thirty
(30) days following LESSOR'S receipt of evidence reasonably satisfactory to it
setting forth in reasonable detail the costs and expenses incurred by LESSEE and
a description of services performed.
(c) In the event LESSOR exercises its right to relocate LESSEE,
LESSOR and LESSEE hereby agree, within twenty (20) days after LESSEE takes
possession of the New Space, to promptly amend those provisions of this Lease
which are affected by the relocation and the change, if any, in the rentable
square footage. If the amount of the Basic Rent and LESSEE'S
63
Proportionate Share are affected, the Basic Rent and Additional Rent payable or
paid for the calendar month in which the move to the New Space occurs shall be
equitably adjusted, and LESSEE shall pay to LESSOR any balance owing to LESSOR
within five (5) business days after the date LESSEE takes possession of the New
Space, or alternatively, LESSOR shall reimburse to LESSEE any monies owing to
LESSEE within five (5) business days after the date LESSEE takes possession of
the New Space.
(d) After LESSEE takes possession of the New Space, the term
"Demised Premises", as used in this Lease, shall be deemed to refer to and
include the New Space.
29.5 LESSOR shall have the right, at any time and from time to time,
to request financial information from LESSEE. LESSEE agrees to deliver such
financial information to LESSOR within fifteen (15) days after LESSEE'S receipt
of said request so long as such information is reasonable and is readily
available. LESSOR agrees not to request such financial information more than one
(1) time during each calendar year occurring during the Term; provided, however,
LESSOR may request such information in connection with (i) any sale, transfer or
other disposition of LESSOR'S interest in the Premises and/or the Building, (ii)
any financing or refinancing of the Premises and (iii) any assignment of this
Lease by LESSEE or any subletting of all or any portion of the Demised Premises
by LESSEE notwithstanding any prior request by LESSOR in said calendar year.
29.6 (a) LESSOR hereby advises LESSEE that the parking area servicing
the Building at present consists of an upper lot and a lower lot located in the
rear of the Building (the "Lots"). LESSEE acknowledges that the Lots are
currently open to the public and service all of the tenants of the Building, at
rates established from time to time by the operator of the Lots. LESSEE agrees
to observe, and to cause LESSEE'S employees to observe, reasonable safety
precautions in the use of the automobile parking spaces in the Lots, and to
comply with, and to cause LESSEE'S employees to comply with, all reasonable
rules and regulations promulgated from time to time by LESSOR or the operator of
the Lots, including, but not limited to, the prohibition of overnight parking.
(b) LESSEE acknowledges that if a tenant of the Building uses a
disproportionate number of spaces in the Lots, the other tenants of the Building
may not have sufficient parking for their employees and invitees. Accordingly,
LESSEE agrees that, upon the written request of LESSOR, it shall cause
64
its officers, employees, agents and invitees to park in no more than five (5)
spaces in the Lots, notwithstanding the fact that the Lots are open to the
general public. The failure of LESSEE to comply with the terms and provisions of
this Section 29.6 shall be deemed to be a default by LESSEE of its obligations
hereunder and, in such event, LESSOR shall have the right to exercise any rights
or remedies it may have under Article 19 above, including the termination of
this Lease.
(c) LESSOR does not assume any responsibility for, and shall not
be held liable for, any damage or loss to any automobiles parking in the Lots,
or to any personal property located therein.
(d) Nothing in this Lease shall be construed (i) to grant LESSEE
the right to use any parking spaces in the Lots or any other rights with respect
to the Lots, (ii) as a representation, warranty or agreement that the Lots will
continue to be operated as public parking facilities or (iii) to obligate LESSOR
to police or otherwise control the use of the Lots by other tenants of the
Building or third parties. If LESSEE desires to utilize any parking spaces in
the Lots, LESSEE shall enter into a separate agreement with LESSOR or the
operator of the Lots for such parking spaces; provided, however, that nothing
contained in this Lease shall be construed as an obligation on the part of
LESSOR or the operator of the Lots to enter into any such agreement with LESSEE.
29.7 LESSEE shall be entitled (i) to use LESSEE'S Proportionate Share
of the spaces available on the office building directory located on the main
floor of the Building and (ii) to use LESSEE'S pro rata share (determined by
dividing the rentable square footage of the Demised Premises by the aggregate
rentable square footage of the 0xx xxxxx) of the spaces available on the floor
directory located in the elevator lobby on the fourth (4th) floor of the
Building. LESSOR shall pay the cost of the initial listings on said directories,
but LESSEE shall pay the costs of any changes to the listings. LESSEE
acknowledges and agrees that the cost of maintaining the directories shall be
part of LESSOR'S Operating Expenses.
29.8 The submission of this Lease to LESSEE for examination does not
constitute an offer to lease the Demised Premises on the terms set forth herein,
and this Lease shall become effective as a lease agreement only upon the
execution and delivery of the Lease by LESSOR and LESSEE.
65
29.9 Subject to all applicable Legal Requirements and to LESSOR'S
rules and regulations, LESSEE shall be permitted keyed access to the Demised
Premises twenty-four (24) hours per day, seven (7) days per week.
29.10 The term "LESSOR", as used in this Lease, shall mean only the
owner of the title to the Premises as of the date in question. Upon the sale,
transfer or other conveyance by LESSOR of the Premises, LESSOR shall be released
from any and all liability under this Lease arising after the date of such sale,
transfer or other conveyance.
29.11 Notwithstanding anything to the contrary contained in this
Lease, LESSOR reserves the right, in its sole discretion, to modify or alter the
Premises from time to time, including, but not limited to, (i) expanding,
reducing and otherwise modifying or altering the buildings on the Land
(including the Building) located on the Land from time to time; (ii) relocating,
expanding, reducing and otherwise modifying or altering the parking areas,
sidewalks, landscaped areas and other common areas located on the Land from time
to time; (iii) constructing additional buildings and/or improvements on the
Land; and (iv) increasing or decreasing the size of the Land; provided, however,
if, as a result of LESSOR'S exercise of its rights hereunder, the acreage of the
Land is reduced or increased or the rentable square footage of the buildings
(including the Building) is reduced or increased, then, in either event, LESSOR
shall equitably adjust those expenses affected by such action.
29.12 If LESSEE desires to finance any of its inventory, trade
equipment, machinery or other personal property located at the Premises, LESSOR
agrees, upon request from LESSEE, to execute, deliver and acknowledge, a waiver,
in form and substance reasonably satisfactory to LESSOR of any statutory lien or
right of distraint in favor of LESSOR in such inventory, trade equipment,
machinery or personal property. LESSEE agrees to reimburse LESSOR for all
reasonable attorneys' fees and disbursements incurred in connection with the
preparation, negotiation and execution of such waiver.
66
IN WITNESS WHEREOF, the parties have executed this Lease as of the
date first above written.
WITNESS: LESSOR:
(SEAL) MATRIX/AEW NB, LLC
BY: Matrix/AEW, LLC, its Manager
BY: Matrix Real Estate
Services, LLC, its Agent
By: Xxxxxx/Xxxxxxx
Investment Fund, LLC,
its Manager
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Manager
WITNESS: LESSEE:
(SEAL) SENESCO TECHNOLOGIES, INC.
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxxx, CFO
-------------------------- ---------------------------
Secretary Name: Xxxx Xxxxxx
Title: CFO
67
SCHEDULE A
----------
DESCRIPTION OF LAND
-------------------
All that land and premises situate, lying and being in the City of New
Brunswick, County of Middlesex, and State of New Jersey, designated as Block
118, Lot 2.01 on the Official Tax Map of the City of New Brunswick.
SCHEDULE B
----------
BASIC RENT
----------
The Basic Rent (inclusive of electricity at $1.25 per rentable square
foot) shall be payable in equal monthly installments, in advance, on the Basic
Rent Payment Dates, commencing on the Commencement Date, except that LESSEE
shall pay the first (1st) installment of Basic Rent upon LESSEE'S execution and
delivery of this Lease.
Section I:
The Basic Rent for the initial five (5) year Term shall be as follows:
for the period from the Commencement Date to the Adjacent Space Commencement
Date, inclusive, the Basic Rent shall be $28,749.00 per annum, payable in equal
monthly installments of $2,395.75; for the period from the Adjacent Space
Commencement Date to the Termination Date, inclusive, the Basic Rent shall be
$34,062.00 per annum, payable in equal monthly installment of $2,838.50.
Section II:
(a) The Basic Rent for the Option Period shall be equal to the greater
of (i) the then fair market rental value of the Demised Premises as of the
commencement of the Option Period (as determined pursuant to the provisions set
forth below) or (ii) the annual Basic Rent payable during the last Lease Year of
the original five (5) year Term.
(b) On or before the first (1st) day of the eighth (8th) calendar
month preceding the then Termination Date, LESSOR shall notify LESSEE of its
determination of the fair market rental value of the Demised Premises for the
Option Period. If LESSOR'S determination is equal to or less than the annual
Basic Rent then payable by LESSEE, then the Basic Rent during the Option Period
shall be the annual Basic Rent then payable by LESSEE; and if LESSOR'S
determination is more than the annual Basic Rent then payable by LESSEE, then
the Basic Rent during the Option Period shall be equal to LESSOR'S
determination, subject, however, to LESSEE'S right to object to such
determination as provided in paragraph (c) below.
(c) LESSEE shall have the right to object to LESSOR'S determination of
the fair market rental value by notice given to
B-1
LESSOR within fifteen (15) days after receipt of LESSOR'S determination. If
LESSEE objects to such fair market rental value, and if the parties are unable
to resolve the dispute within thirty (30) days after LESSOR'S receipt of
LESSEE'S objection notice, then the fair market rental value of the Demised
Premises shall be determined pursuant to the provisions of the immediately
following paragraph.
(d) The phrase "fair market rental value" shall mean the rent
generally payable in the general area of New Brunswick, New Jersey for a
building of approximately the same size, level of tenant improvement and
condition as the Building for an equivalent term. On or before the ninetieth
(90th) day preceding the commencement of the Option Period in question, LESSOR
and LESSEE shall each appoint an appraiser who is a member of the Member
Appraisal Institute (MAI) of the American Institute of Real Estate Appraisers.
In the event either party fails to so appoint an appraiser on or before the day
specified in the preceding sentence, the person appointed as the appraiser may
appoint an appraiser to represent the party having failed to appoint an
appraiser within ten (10) days after the expiration of such period. The two
appraisers appointed in either manner shall then proceed to appraise the Demised
Premises and determine its fair market rental value. In the event of their
inability to reach a determination of the fair market rental value within thirty
(30) days after their appointment, then they shall select a third appraiser.
Said third appraiser shall appraise the Demised Premises within thirty (30) days
after his or her appointment to determine its fair market rental value. In such
event, for the purposes of clause (i) of Section II(a) above, the fair market
rental value of the Demised Premises shall be the average of the two (2) closest
appraisals. LESSOR and LESSEE agree to be bound by the determination of the fair
market rental value of the Demised Premises by the appraisers. Each party shall
be responsible for the fees and disbursements of its appraiser and attorneys,
and the parties shall share equally the fees and disbursements of the third
(3rd) appraiser.
(e) In the event a final determination of the annual Basic Rent for
the Option Period has not been made by the commencement date of the Option
Period, then LESSEE shall pay to LESSOR the Basic Rent at the same rate as most
recently paid by LESSEE. When the annual Basic Rent for the Option Period has
been determined, LESSEE shall pay to LESSOR, with the next monthly installment
of Basic Rent due after such determination, an amount equal to the difference
between the Basic Rent previously paid during the Option Period and the amount
which would have been
B-2
payable had the annual Basic Rent for the Option Period been made as of the
commencement of the Option Period.
B-3
SCHEDULE C
FLOOR PLAN
SCHEDULE C-1
ADJACENT SPACE
SCHEDULE D
FINISH WORK
1. LESSEE hereby advises LESSOR that LESSEE desires LESSOR to renovate
the Demised Premises in accordance with the schematic drawings and preliminary
outline specification annexed to this Lease as Schedule E (collectively, the
"Preliminary Drawings"). LESSOR hereby acknowledges that it has reviewed and
approved the Preliminary Drawings.
2. (a) As soon as reasonably practicable (but in no event later than
thirty (30) days after the execution and delivery of this Lease by LESSOR and
LESSEE), LESSOR shall submit to LESSEE, for LESSEE'S approval (which approval
shall not be unreasonably withheld), architectural and engineering working
drawings and specifications for the subdivision, layout and finish of the
Demised Premises. The scope of LESSEE'S review shall be limited to whether the
working drawings and specifications conform to the Preliminary Drawings. LESSEE
shall notify LESSOR, within five (5) business days after LESSEE'S receipt of the
working drawings and specifications, whether LESSEE disapproves of any work
shown thereon; said notice shall specify in reasonable detail why such
disapproved work does not conform to the Preliminary Drawings. If LESSEE fails
to notify LESSOR of any disapproved work within said five (5) business day
period, then LESSEE shall be deemed to have approved the working drawings and
specifications. If LESSEE notifies LESSOR of any disapproved work within said
five (5) business day period, and if LESSOR and LESSEE agree upon modifications
to said drawings and specifications, then the working drawings and
specifications, as modified, shall be deemed approved; however, if LESSOR and
LESSEE are unable to agree upon modifications to the working drawings and
specifications, then LESSOR shall have the right (i) to complete the work shown
on the working drawings and specifications approved by LESSEE and (ii) with
respect to those items of work disapproved by LESSEE, to complete such
disapproved items in the manner contemplated by the Preliminary Drawings. For
the purposes of this Lease, the term "Final Plans" shall mean the working
drawings and specifications (including any modifications thereto) approved by
LESSOR and LESSEE; provided, however, if LESSEE has disapproved any work shown
on the working drawings and specifications and LESSOR and LESSEE are unable to
resolve the dispute, then the term "Final Plans" shall mean the work shown on
the working drawings and specifications which has been approved by LESSOR and
LESSEE and,
D-1
with respect to the items of work disapproved by LESSEE, the work
contemplated by the Preliminary Drawings.
(b) LESSOR, as promptly as is practicable after receiving the
necessary governmental approvals required for the commencement of construction,
shall, through a contractor or contractors to be engaged by it for such purpose,
proceed with due dispatch, subject to any Excusable Delay, to do all the work
shown on the Final Plans (such work being herein called the "Finish Work").
(c) If, after the approval of the Final Plans, LESSEE desires to
amend, change or modify the Final Plans, then LESSEE shall submit to LESSOR for
its approval (which approval shall not be unreasonably withheld) a reasonably
detailed description of the proposed amendment, change or modification
(hereinafter referred to as a "Change"). Within five (5) business days after
receipt of the Change, LESSOR shall notify LESSEE whether the Change has been
approved or disapproved. If such Change is approved, then such Change shall be
deemed part of the Final Plans and the work shown thereon shall be deemed part
of the Finish Work (said approval notice being hereinafter referred to as a
"Change Order"); if such change is disapproved, LESSOR'S notice shall set forth
the reasons for such disapproval.
(d) LESSEE shall reimburse LESSOR, as Additional Rent, for all
architectural and engineering fees and disbursements incurred by LESSOR in
connection with any Change within fifteen (15) days after LESSEE'S receipt of a
statement itemizing such costs and expenses.
(e) After approval or deemed approval of the Final Plans, LESSOR
may, but shall not be obligated to, provided LESSEE with an estimate of the Cost
of the Finish Work (the "Statement"). If the Cost of the Finish Work exceeds the
Work Allowance (as defined in Paragraph 5) (the "Excess"), LESSEE shall pay to
LESSOR fifty percent (50%) of the Excess within ten (10) days after receipt of
the Statement. Notwithstanding anything to the contrary contained herein, LESSOR
shall have no obligation to commence the Finish Work until LESSEE has paid to
LESSOR fifty percent (50%) of the Excess.
(f) LESSOR shall pay the cost of all Finish Work to the extent
such Finish Work does not exceed $28,880.00.
(g) Upon substantial completion of the Finish Work, LESSOR shall
submit to LESSEE a statement setting forth the
D-2
total Cost of the Finish Work. In the event that the total Cost of the Finish
Work exceeds the Work Allowance, then LESSEE shall pay to LESSOR the amount of
such excess (after deducting therefrom any amounts previously paid by LESSEE on
account of such excess) within ten (10) days after LESSEE'S receipt of said
statement. In the event the total Cost of the Finish Work is less than the Work
Allowance (the "Excess Work Allowance"), then LESSEE shall be entitled to apply
such difference against the cost of the Adjacent Space Work pursuant to the
terms of Paragraph 3(h) of this Schedule D, but shall not be entitled to any
credit against the monthly installments of Basic Rent.
3. (a) LESSEE hereby advises LESSOR that LESSEE desires LESSOR to
renovate the Adjacent Space in accordance with the schematic drawings annexed to
this Lease as Schedule E-1 (collectively, the Adjacent Space Work Preliminary
Drawings"). LESSOR hereby acknowledges that it has reviewed and approved the
Adjacent Space Work Preliminary Drawings.
(b) As soon as reasonably practicable after the Adjacent Space
Termination Date, LESSOR shall submit to LESSEE, for LESSEE'S approval (which
approval shall not be unreasonably withheld), architectural and engineering
working drawings and specifications for the layout and finish of the Adjacent
Space. The scope of LESSEE'S review shall be limited to whether the working
drawings and specifications conform to the Adjacent Space Work Preliminary
Drawings. LESSEE shall notify LESSOR, within five (5) business days after
LESSEE'S receipt of the working drawings and specifications, whether LESSEE
disapproves of any work shown thereon; said notice shall specify in reasonable
detail why such disapproved work does not conform to the Adjacent Space Work
Preliminary Drawings. If LESSEE fails to notify LESSOR of any disapproved work
within said five (5) business day period, then LESSEE shall be deemed to have
approved the working drawings and specifications. If LESSEE notifies LESSOR of
any disapproved work within said five (5) business day period, and if LESSOR and
LESSEE agree upon modifications to said drawings and specifications, then the
working drawings and specifications, as modified, shall be deemed approved;
however, if LESSOR and LESSEE are unable to agree upon modifications to the
working drawings and specifications, then LESSOR shall have the right (i) to
complete the work shown on the working drawings and specifications approved by
LESSEE and (ii) with respect to those items of work disapproved by LESSEE, to
complete such disapproved items in the manner contemplated by the Adjacent Space
Work Preliminary Drawings. For the purposes of this Lease, the term "Adjacent
Space Work Plans" shall mean the working drawings and specifications (including
any
D-3
modifications thereto) approved by LESSOR and LESSEE; provided, however, if
LESSEE has disapproved any work shown on the working drawings and specifications
and LESSOR and LESSEE are unable to resolve the dispute, then the term "Adjacent
Space Work Plans" shall mean the work shown on the working drawings and
specifications which has been approved by LESSOR and LESSEE and, with respect to
the items of work disapproved by LESSEE, the work contemplated by the Adjacent
Space Work Preliminary Drawings.
(c) LESSOR, as promptly as is practicable after receiving the
necessary governmental approvals required for the commencement of construction,
shall, through a contractor or contractors to be engaged by it for such purpose,
proceed with due dispatch, subject to any Excusable Delay, to do all the work
shown on the Adjacent Space Work Plans (such work being herein called the
"Adjacent Space Work").
(d) If, after the approval of the Adjacent Space Work Plans,
LESSEE desires to amend, change or modify the Adjacent Space Work Plans, then
LESSEE shall submit to LESSOR for its approval (which approval shall not be
unreasonably withheld) a reasonably detailed description of the proposed
amendment, change or modification (hereinafter referred to as a "Change").
Within five (5) business days after receipt of the Change, LESSOR shall notify
LESSEE whether the Change has been approved or disapproved. If such Change is
approved, then such Change shall be deemed part of the Adjacent Space Work Plans
and the work shown thereon shall be deemed part of the Adjacent Space Work (said
approval notice being hereinafter referred to as a "Change Order"); if such
change is disapproved, LESSOR'S notice shall set forth the reasons for such
disapproval.
(e) LESSEE shall reimburse LESSOR, as Additional Rent, for all
architectural and engineering fees and disbursements incurred by LESSOR in
connection with any Change within fifteen (15) days after LESSEE'S receipt of a
statement itemizing such costs and expenses.
(f) After approval or deemed approval of the Adjacent Space Work
Plans, LESSOR may, but shall not be obligated to, provided LESSEE with an
estimate of the Cost of the Adjacent Space Work (the "Adjacent Space Work
Statement"). If the Cost of the Adjacent Space Work exceeds the Adjacent Space
Work Allowance (as defined in subsection (g)) (the "Adjacent Space Work
Excess"), LESSEE shall pay to LESSOR fifty percent (50%) of the Adjacent Space
Work Excess within ten (10) days after receipt of the Adjacent Space Work
Statement. Notwithstanding anything to the
D-4
contrary contained herein, LESSOR shall have no obligation to commence the
Adjacent Space Work until LESSEE has paid to LESSOR fifty percent (50%) of the
Adjacent Space Work Excess.
(g) LESSOR shall pay the cost of all Adjacent Space Work to the
extent such Adjacent Space Work does not exceed $4,048.00, plus the amount of
any Excess Work Allowance, if any (the "Adjacent Space Work Allowance").
(h) Upon substantial completion of the Adjacent Space Work,
LESSOR shall submit to LESSEE a statement setting forth the total Cost of the
Adjacent Space Work. In the event that the total Cost of the Adjacent Space Work
exceeds the Adjacent Space Work Allowance, then LESSEE shall pay to LESSOR the
amount of such excess (after deducting therefrom any amounts previously paid by
LESSEE on account of such excess) within ten (10) days after LESSEE'S receipt of
said statement. In the event the total Cost of the Adjacent Space Work is less
than the Adjacent Space Work Allowance, then LESSEE agrees that LESSEE shall not
be entitled to such difference nor to any credit against the monthly
installments of Basic Rent equal to such difference.
4. For the purposes of this Schedule D, the word "Cost", as used
in connection with the Finish Work, the Adjacent Space Work or any Change, shall
mean the cost of having such work done by a contractor or contractors under the
supervision of LESSOR, including the cost of materials and labor, overhead (the
cost of materials and labor plus ten percent(10%)) and profit (the cost of
materials and labor plus overhead plus ten percent (10%)), permit and inspection
fees, and reasonable fees of any architects, engineers and attorneys whose
services may be required by LESSOR.
D-5
SCHEDULE E
PRELIMINARY DRAWINGS
SCHEDULE E-1
ADJACENT SPACE WORK PRELIMINARY DRAWINGS
SCHEDULE F
RULES AND REGULATIONS
1. Obstruction of Passageways: The sidewalks, entrances, passages, courts,
--------------------------
elevators, vestibules, stairways, corridors and public parts of the
Building shall not be obstructed or encumbered by LESSEE or LESSEE'S
Visitors, or used by LESSEE or LESSEE'S Visitors for any purpose other than
ingress and egress to and from the Demised Premises.
2. Windows: Windows in the Demised Premises shall not be covered or obstructed
-------
by LESSEE. No bottles, parcels, or other articles shall be placed on the
windowsills, in the halls, or in any other part of the Building other than
the Demised Premises. No carpet, rug or other article shall be hung, shaken
or thrown out of the doors or windows of the Demised Premises and LESSEE
shall not sweep or throw or permit to be swept or thrown from the Demised
Premises any dirt or other substances into any of the corridors or halls,
elevators, or out of the doors or windows or stairways of the Building.
3. Projections from the Building: No awnings, air conditioning units, or other
-----------------------------
fixtures shall be attached to the outside walls or the windowsills of the
Building or otherwise affixed so as to project from the Building, without
the prior written consent of LESSOR.
4. Signs: No sign, notice or lettering shall be affixed, inscribed or
-----
exhibited by LESSEE to any part of the outside of the Demised Premises or
the Building, or any part of the inside of the Demised Premises so as to be
visible from the outside of the Building, without the prior written consent
of LESSOR. However, LESSEE shall have the right to place its name on any
door leading into the Demised Premises, the size, color and style thereof
to be subject to the LESSOR'S approval. In the event of the violation of
the foregoing by LESSEE, LESSOR may remove and dispose of same without any
liability, and may charge the expense incurred by such removal to LESSEE.
5. Floor Coverings: LESSEE shall not lay any hard surface flooring so that the
---------------
same shall come in direct contact with the floor of the Demised Premises.
If linoleum or other similar floor covering is desired to be used, an
F-1
interlining of builder's deadening felt first shall be fixed to the floor
by a water soluble paste; use of cement or other similar adhesive material
being expressly prohibited. LESSEE shall reimburse LESSOR for the cost of
any sound insulation required in the Demised Premises below the hard
surface flooring area.
6. Interference with Occupants of the Building: LESSEE shall not use, keep or
-------------------------------------------
permit to be used or kept, any foul or noxious gas or substance in the
Demised Premises. LESSEE shall not suffer the Demised Premises to be used
in an manner offensive or objectionable to LESSOR or other occupants of the
Building by reason of unseemly or disturbing noise, odor and/or vibrations
and shall not interfere in any way with other tenants or those having
business with them. LESSEE will keep all mechanical apparatus in the
Demised Premises free of vibration and noise which may be transmitted
beyond the limits of the Demised Premises.
7. Smoking: Smoking or carrying lighted cigars, pipes or cigarettes in the
-------
Building is prohibited.
8. Locks, Keys: LESSEE shall give to LESSOR a duplicate or master key or
------------
access card or code for each and every door in the Demised Premises.
LESSEE, shall, on the termination of LESSEE'S tenancy, deliver to LESSOR
all keys to any space within the Building, either furnished to or otherwise
procured by LESSEE, and in the event of the loss of any keys furnished,
LESSEE shall pay to LESSOR the cost thereof. LESSEE, before closing and
leaving the Demised Premises each day, shall ensure that all windows are
closed and entrance doors locked. LESSEE, at its expense, shall be
responsible for repair to all doors and locks which are in violation of
this Rule and shall pay any alarm fees resulting from LESSOR'S entrance
into the Demised Premises as permitted under the Lease.
9. Contractors/Janitors: LESSEE shall not enter into any contract whatsoever
--------------------
with any supplier of towels, water, toilet articles, or with any provider
of waxing, rug shampooing, venetian blind washing, furniture polishing,
lamp servicing, cleaning of electrical fixtures, or for removal of water,
paper, rubbish or garbage, or other like service without the prior written
consent of LESSOR. No vending machine of any kind shall be installed in the
Demised Premises without the prior written consent of LESSOR. LESSEE shall
not employ any person or persons other than LESSOR'S janitors for the
purpose of cleaning the Demised Premises, without prior written consent of
F-2
LESSOR. LESSOR shall not be responsible to LESSEE for any loss of property
from the Premises, however occurring, or for any damage done to the effects
of LESSEE by such janitors or any of its employees, or by any other person
or any other cause.
10. Mechanical, Plumbing, Electric, Life Safety or Telephone Work: LESSEE shall
-------------------------------------------------------------
at no time perform any alternation, additions or repairs to the air
conditioning, heating, ventilating, plumbing, fire protection, or
electrical systems servicing the Premises, without obtaining the prior
written consent of LESSOR. LESSOR reserves the right through the use of its
own contractors, to perform all work on these systems. All telephone work
shall be performed by LESSEE in accordance with the provisions of the Lease
and all Legal Requirements and shall be installed so as not to interfere
with the operation of any fire dampers, or fire separation systems. All
penetrations shall be sealed to maintain the integrity of the fire
separation walls. LESSEE shall reimburse LESSOR for all restoration work
required that is not performed by LESSEE as outlined above. The location of
all plumbing; electrical; heating, ventilation and air conditioning; and
telephone work which is to be installed in the Premises shall be subject to
LESSOR'S approval which shall include a review of the number of appliances
and their locations. Plumbing facilities shall not be used for any purpose
other than those for which they were constructed and no sweepings, rubbish,
rags, sanitary napkins, acids or other substances shall be deposited
therein, and the expense of any breakage, stoppage, or damage resulting
from the violation of this Rule shall be born by LESSEE. When electric
wiring of any kind is introduced, it must be connected as directed by
LESSOR and no stringing or cutting of wires will be allowed, except by
prior written consent of LESSOR and shall be done by contractors approved
by LESSOR.
11. Movement of Furniture, Freight or Bulky Matter: LESSEE shall not move any
-----------------------------------------------
safe, heavy machinery, heavy equipment or fixtures into or out of the
Building without LESSOR'S prior consent. If such matter requires special
handling, all work in connection therewith shall comply with all Legal
Requirements and shall be done during such hours as LESSOR may designate.
Freight, furniture and bulky matter
F-3
shall be delivered to and removed from the Demised Premises only on the
freight elevators, if provided, and through service entrances and corridors
during hours designated by LESSOR. No hand trucks may be used in the
movement of heavy equipment except those with rubber tires and sideguards.
LESSEE shall provide protection of all floor surfaces during the movement
of furniture or heavy equipment as may be reasonably required by LESSOR.
LESSEE shall be responsible for the cost of removal of all boxes, garbage
and debris caused by the movement of any heavy or bulky equipment or
fixtures. LESSOR reserves the right to prescribe the maximum weight and
position of all safes and other heavy equipment so as to distribute
properly the weight thereof and prevent any unsafe condition from arising.
The cost of any additional reinforcing required shall be the responsibility
of LESSEE. LESSOR reserves the right to inspect all freight to be brought
into the Building and to exclude from the Building all freight which
violates any of these Rules and Regulations or the Lease.
12. Advertising: LESSOR shall have the right to prohibit any advertising by
-----------
LESSEE which in LESSOR'S opinion, tends to impair the reputation of the
Building or its desirability as a Building for offices and upon written
notice from LESSOR, LESSEE shall refrain from or discontinue such
advertising.
13. Parking Areas: LESSEE and its employees shall park their cars only in those
-------------
portions of the parking area not designated for use by other tenants or
visitors. No part of the driveways or parking areas shall be used for
washing, maintaining, repairing or installing parts in any vehicle except
to the extent that repairs are reasonably necessary to fix a flat tire or
start an engine enabling the vehicle to be driven from the Premises. No
vehicle shall be towed from the Premises by LESSEE except after LESSEE
informs LESSOR of such removal. Overnight parking of vehicles is prohibited
without the prior written consent of LESSOR. Any vehicle parked at the
Premises for seven continuous days may be removed by LESSOR at LESSEE'S
expense if such vehicle is owned or used by LESSEE or LESSEE'S Visitors and
is not removed within five business days after notice to LESSEE to do so.
LESSEE shall take reasonable action to ensure that LESSEE'S Visitors do not
utilize any parking spaces designated for the use of others, nor park in
any driveways, fire lanes or other areas not striped for vehicular parking.
F-4
14. HVAC: If the Building contains central air conditioning and ventilation,
----
LESSEE agrees to keep all windows and exterior doors closed at all times
and to abide by all Rules and Regulations issued by LESSOR with respect to
such services.
15. Non-Observance or Violation of Rules by Other Tenants: LESSOR shall not be
-----------------------------------------------------
liable to LESSEE for any violation or non-observance of the Rules and
Regulations by any other tenant, its servants, employees, agents, visitors,
invitees, sublessees or licensees, nor is LESSOR obligated to enforce the
Rules and Regulations or the terms, covenants, or conditions in any other
lease against any other tenant.
16. After Hours Use: LESSOR reserves the right to exclude from the Premises
---------------
between the hours of 6:00 p.m. and 8:00 a.m. from Monday to Friday,
inclusive, and between the hours of 1:00 p.m. on Saturday and 8:00 a.m. on
the following Monday, as well as Building Holidays any visitor not
authorized by LESSEE to have access.
17. Rubbish: To the extent required by Legal Requirements, LESSEE shall
-------
separate its rubbish into separate categories. Any excess trash or garbage
which LESSEE generates beyond that generated by a normal office user and
all garbage from LESSEE'S food service operation, if any, shall be removed
by LESSOR upon notice from LESSEE, at LESSEE'S sole cost and expense.
LESSEE shall not dispose of any hazardous substance or waste in
wastebaskets, boxes, or in LESSOR'S dumpster or trash compactor.
18. Prohibited on Premises: LESSEE shall not conduct, or permit any other
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person to conduct, any auction upon the Demised Premises; manufacture or
store goods, wares or merchandise upon the Demised Premises, without the
prior written consent of LESSOR, except the storage of usual general office
type supplies to be used by LESSEE in conducting of its business; or permit
the Demised Premises to be used for gambling. LESSEE shall not permit any
portion of the Demised Premises to be used for the storage, manufacture or
sale of intoxicating beverages, narcotics, tobacco in any form, or as a
xxxxxx or manicure shop. Canvassing, soliciting, pamphleting and peddling
in the Building and about the sidewalks, driveways, and parking areas are
expressly prohibited and LESSEE shall cooperate
F-5
to prevent the same. LESSEE shall report all peddlers, solicitors and
beggars to LESSOR. No vehicles or animals of any kind shall be brought into
or kept in or about the Premises, except as used in accordance with the
Americans with Disabilities Act.
19. LESSOR hereby reserves to itself any and all rights not granted to LESSEE
under the Lease, including, but not limited to, the following rights which
are reserved to LESSOR for the purpose of operating the Building:
a) The exclusive right to use the name of the Building for all
purposes, except that LESSEE may use the name as its
business address and for no other purpose;
b) The right to change the name or address of the Building,
without incurring any liability to LESSEE for doing so;
c) The right to install and maintain a sign or signs on the
exterior of the Building;
d) The exclusive right to use or dispose of the use of the roof
of the Building;
e) The right to limit the space on any directory of the
Building and any floor directory allotted to LESSEE;
f) The right to grant to anyone the right to conduct any
particular business or undertaking in the Building.
20. In the event of any inconsistency between the terms of this Schedule F and
the text of the Lease, the terms of the text of the Lease shall control.
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