Exhibit 10.20
LEASE AGREEMENT
BETWEEN
000 XXXXXXXX XXXXXXX ASSOCIATES, L.P., LANDLORD
AND
TELLIUM, INC., TENANT
TABLE OF CONTENTS
Page
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1 GENERAL.............................................................. 1
2. LEASE PARTICULARS.................................................... 3
3. LEASE AND RENT....................................................... 6
4. USE.................................................................. 7
5. INTENTIONALLY OMITTED................................................ 7
6. ACCEPTANCE........................................................... 7
7. COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS...................... 7
8. PERSONAL PROPERTY TAXES.............................................. 9
9. COMMON CHARGES....................................................... 9
10. UTILITIES; TRASH REMOVAL; RECYCLING.................................. 11
11. TENANT ELECTRIC...................................................... 12
12. PARKING.............................................................. 13
13. ENTRY................................................................ 13
14. MAINTENANCE.......................................................... 14
15. ALTERATIONS.......................................................... 15
16. TRANSFERS OF TENANT'S INTEREST....................................... 16
17. SURRENDER............................................................ 18
18. HOLDING OVER......................................................... 18
19. SECURITY DEPOSIT..................................................... 19
20. QUIET ENJOYMENT...................................................... 19
21. AIR AND LIGHT........................................................ 20
22. DEFAULT.............................................................. 20
23. SUBORDINATION, ATTORNMENT AND ESTOPPEL CERTIFICATES.................. 23
24. CASUALTY AND CONDEMNATION............................................ 24
25. CHANGES SURROUNDING BUILDING......................................... 26
26. TENANT'S PROPERTY.................................................... 26
27. NOTICE............................................................... 26
28. DISCLAIMER BY AND INDEMNIFICATION OF LANDLORD........................ 27
29. TENANT'S INSURANCE................................................... 27
30. TENANT'S LIABILITY................................................... 28
31. RULES AND REGULATIONS................................................ 28
32. MISCELLANEOUS........................................................ 28
33. MANAGING AGENT....................................................... 31
34. LANDLORD'S RIGHT TO MODIFY........................................... 31
35. USE OF HELIPORT...................................................... 31
36. CORPORATE TENANTS.................................................... 31
37. INTENTIONALLY OMITTED................................................ 32
38. SUBMITTAL OF FINANCIAL STATEMENT..................................... 00
-x-
00. XX XXXXXXXXXXX....................................................... 00
00. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS........................ 32
41. COSTS OF SUIT........................................................ 32
42. SUBMISSION NOT AN OPTION............................................. 33
43. SUCCESSORS & ATTACHMENTS............................................. 33
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This LEASE is made this 3rd day of August, 2000 between 000 Xxxxxxxx
Xxxxxxx Associates, L.P., whose address is 00 Xxxx Xxxx Xxxxxx, P. O. Xxx 0000,
Xxxxxxxx, Xxx Xxxxxx 00000, hereinafter referred to as "Landlord" and Tellium,
Inc., whose address is 0 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxxxx, 00000
hereinafter referred to as "Tenant".
WITNESSETH:
For and in consideration of the covenants herein contained, and upon the
terms and conditions herein set forth, Landlord and Tenant agree as follows:
1. GENERAL.
1.1 Definitions: Except where the context otherwise connotes, for all
purposes of this Lease and all agreements supplemental thereto or modifying this
Lease, the following terms shall have the meanings specified:
(a) "Additional Rent" shall mean all sums payable by Tenant to Landlord
pursuant to the various Articles herein in which said term is used.
(b) "Basic Rent" shall mean the rent per annum so designated in Section 2.1
hereof, which may be payable in equal monthly installments on the first day of
each month during the Term, in advance, in the amount per month set forth in
Section 2.1 hereof, except that Tenant shall pay the first monthly installment
upon the signing of this Lease. The Basic Rent shall be paid at the office of
Landlord, or such other place as Landlord may designate, without any set-off or
deduction whatsoever.
(c) "Broker" shall mean the real estate broker, if any, named in Section
2.2 hereof.
(d) "Building" shall mean the building designated in Section 2.3 hereof.
(e) "Building Holiday" shall mean President's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, Christmas Day and New Year's Day
as each of said holidays are celebrated in the State in which the Real Property
is located.
(f) "Building Hours of Operation" shall mean weekdays between the hours of
8 a.m. through 6 p.m. excluding Building Holidays.
(g) "Commencement Date" shall mean the date so designated in Section 2.4
hereof.
(h) "Excusable Delay" shall mean a delay caused by strike, lockout, act of
God, inability to obtain labor, materials, governmental restrictions, enemy
action, civil
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commotion, fire, unavoidable casualty or any other cause similar or dissimilar,
beyond the reasonable control of either Landlord or Tenant, or due to the
passing of time while waiting for an adjustment of insurance proceeds.
(i) "Governmental Authority" shall mean the municipal, county, state or
federal government, or any agency or quasi-governmental agency, or any fire
insurance rating organization having jurisdiction over the Real Property.
(j) "Parking Spaces" shall mean the parking spaces made available for
Tenant's nonexclusive use on the Real Property.
(k) "Premises" shall mean the area cross-hatched on the floor plan of the
Building annexed hereto as Exhibit A and made a part hereof
(1) "Real Property" shall mean the land upon which the Building is located
and all of the Buildings collectively.
(m) "Rentable Area of Building" shall mean the number of square feet so
designated in Section 2.5 hereof.
(n) "Rentable Area of the Premises" shall mean the number of square feet so
designated in Section 2.7 hereof.
(o) "Security Deposit" shall mean the sum so designated in Section 2.10
hereof which is being deposited by Tenant with Landlord simultaneously herewith.
(p) "Structural Repairs" shall mean repairs to the roof, foundation and
permanent exterior walls and support columns of the Buildings.
(q) "Term" shall mean a period of time beginning on the Commencement Date
containing the number of consecutive months set forth in Section 2.11 hereof,
not including any portion of a month for which Rent is prorated as per Section
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1.2.
(r) "Termination Date" shall mean the last day of the Term.
(s) "Stage I" is the delivery of the 63,800 square feet in Buildings D and
B on August 1, 2000, as shown on the attached Exhibit B.
(t) "Stage II" is the delivery of the additional 4,487 square feet in
Building B on November 1, 2000.
1.2 Proration: In the event the Commencement Date shall fall on a day
other than the first day of the month, the Basic Rent and Additional Rent
payable hereunder for
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the balance of the calendar month in which the Commencement Date falls shall be
apportioned based on the number of days remaining in that month.
1.3 Entire Agreement: This Lease consists of this Lease Agreement and the
attachments listed in the last Section of this Lease Agreement.
2. LEASE PARTICULARS.
2.1 Basic Rent: The Basic Rent shall be as set forth on Exhibit E for
Stage I and II. All monthly rent payments shall be paid on the first day of
each month in advance, without offset or deduction. Base Rent and Additional
Rent for Stage I shall be paid as set forth on Exhibit E and shall commence on
August 1, 2000. Base Rent and Additional Rent for Stages I and 11 shall be paid
as set forth on Exhibit E and shall commence on November 1, 2000.
2.2 Broker: Each party shall pay their own broker if any.
2.3 Building: Building D and part of Building B, Monmouth Park Corporate
Center 1, 000 Xxxxx Xxxxxxx 00, Xxxx Xxxx Xxxxxx, Xxx Xxxxxx.
2.4 Commencement Date: August 1, 2000. The Stage I portion of the
Premises shall be available for occupancy on August 1, 2000. The Stage II
portion of the Premises shall be available for occupancy on November 1, 2000.
2.5 (a) Rentable Area of Building B: 87,772 Square Feet
(b) Rentable Area of Building D: 60,000 Square Feet
2.6 Rentable Area of all Buildings on Real Property: 330,000 Square Feet.
2.7 Rentable Area of Premises: 68,287 Square Feet measured outside wall
to outside wall, plus Tenant's share of the common areas. This is comprised of
60,000 square feet in Building D and 8,287 square feet in Building B.
2.8 (a) Tenant's Proportionate Share of Building B: 9.44%.(8,287 square
feet)
(b) Tenant's Proportionate Share of Building D: 100 %.(60,000 square
feet)
2.9 Tenant's Proportionate Share of Real Property: 20.70 %.
2.10 Security Deposit: $82,513.46 plus Letter of Credit as provided for in
Section 2.17.
2.11 Number of Consecutive Months in Term: Seventy-five (75) months.
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2.12 Uses: Office, production, assembly and/or warehouse for electronic
high technology uses. Attached hereto as Exhibit C is a copy of that portion of
the West Long Branch Zoning Ordinance that describes the permitted uses in the
I/C Industrial/ Commercial Zone. Landlord represents that the Real Property is
in the I/C Industrial/ Commercial Zone.
2.13 Initial Monthly Electric Service Contribution: $22,762.34 payable
upon signing, $11,381.17 of which shall be applied toward the first month's
electric service charges, and the other $11,381.17 shall be used as a reserve
fund for payment of future electric bills. At the expiration of the Term, or at
such time that the electric service to the Premises will be billed directly to
Tenant, this reserve fund shall be applied toward Tenant's final electric xxxx,
and then Tenant shall remit the difference if the final xxxx is higher, or
Landlord shall refund the difference if the final xxxx is less than $11,381.17.
2.14 Insurance: $2,000,000.00 combined single limit commercial general
liability coverage for personal injury and property damage arising out of a
single incident.
2.15 Preparation of Premises: Landlord makes no representation as to
condition of Premises and Tenant accepts the Premises "as is" except as follows:
Landlord will provide common area bathrooms in the Premises, which bathrooms
shall comply with the Americans with Disabilities Act and all regulations
promulgated thereunder, and they shall be situated at a convenient location
approximately equidistant from existing bathroom facilities in Buildings B, D
and the Annex, the existing mechanical apparatus for HVAC and other utility
services to the Premises, in their current configuration, shall be in good
working order, and the roof shall be leak free.
2.16 Access to Building: Notwithstanding the Building Hours defined
above, Landlord and Tenant acknowledge that Tenant may have access to the
Building at any time, 24 hours a day, 7 days a week.
2.17 Letter of Credit: As additional security to Landlord for the full
performance of all of Tenant's leasehold obligations, Tenant shall provide to
Landlord a letter of credit in accordance with the following terms and
conditions:
(a) Upon signing the Lease Tenant shall deliver to Landlord an
irrevocable and unconditional letter of credit naming the Landlord as
beneficiary, in the amount of $750,000, which will be automatically renewed and
extended without amendment for additional one (1) year periods beginning on the
expiration date of each letter of credit except that the letter of credit shall
not be required to be extended beyond the date which is thirty (30) days
following the Termination Date. The letter of credit shall provide that if the
bank elects not to renew the letter of credit, then the bank shall so notify the
Landlord by overnight courier service at the address provided in the Lease, not
later than thirty (30) days prior to the expiration date of the then expiring
letter of credit. Upon
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receipt of such notice, the Landlord may, at any time before the expiration
date, draw on the letter of credit for the full amount thereof, by submission to
the bank of the original letter of credit together with the Landlord's signed
statement that it received the bank's notice of non-renewal, and that such non-
renewal constitutes a default by Tenant under the Lease that is not subject to a
fourteen (14) day cure period. Upon Landlord's receipt of the $750,000.00, it
shall be placed in Landlord's account, to be disbursed in accordance with the
terms of this Section 2.17 of this Lease.
(b) Upon the Tenant's default in the performance of its obligations under
the Lease, Landlord shall have the right to draw on the letter of credit to cure
Tenant's defaults. In the event of a default other than a default arising out
of the non-renewal of the letter of credit, that has not been cured by Tenant
following notice to Tenant and expiration of the applicable cure period in the
Lease, Landlord shall submit a written certification to Tenant, demanding the
remittance of the $750,000.00 to Landlord, and stating the basis for same.
Tenant shall have fourteen (14) days from receipt of Landlord's certification
within which to cure the default. If Tenant cures the default within that time
period, the Landlord shall not draw on the letter of credit. Tenant's cure of a
default in order to avoid the Landlord's draw on the letter of credit shall not
be deemed an admission by Tenant that the default complained of by Landlord in
fact existed, nor shall such cure be deemed a waiver of Tenant's right to
thereafter contest same. If Tenant does not cure the default within the
fourteen (14) day period, Landlord shall be able to draw upon the letter of
credit by issuing a statement to the bank issuing the letter of credit which
provides that "Tellium, Inc. is in default of its obligations under the Lease
and has not cured this default in the last fourteen (14) days."
(c) If Tenant does not cure the default, as a result of which Landlord
proceeds with the draw on the letter of credit, and the amount needed to cure
the default is less than $750,000.00, Landlord shall place the balance in
Landlord's account. In the event of a subsequent default by Tenant, Landlord
shall submit a written certification directly to Tenant, before drawing upon
Landlord's account to cure same.
(d) If the Tenant wishes to assert that no default occurred in its
performance of its leasehold obligations, and it is unable or unwilling to cure
the alleged default within fourteen (14) days after receipt of the Landlord's
certification, the Tenant's only recourse to prevent Landlord from calling the
letter of credit or subsequently drawing upon the balance in the Landlord's
account shall be to obtain a restraining order in a court of competent
jurisdiction, which order must be obtained and served upon Landlord within the
fourteen (14) day period after Tenant's receipt of Landlord's certification.
(e) If Landlord has not theretofore drawn on the letter of credit, then
Landlord shall release the letter of credit at such time that either (i) Tenant
makes an initial public offering of its shares, and its initial public offering
or equity being infused into the
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company in a lump sum and such equity not used to retire debt or return equity,
provides it with a minimum of $75,000,000.00 net cash to the company, or (ii)
the Tenant can show a twelve-month audited net income from operations of the
company of $18,000,000.00 or more; or (iii) the Tenant is purchased and the new
owner assumes this Lease and has a net worth of not less than $500,000,000.00.
Upon the occurrence of either of these events, the Tenant may so notify the
Landlord and provide Landlord with proof thereof, and Landlord shall thereupon
release the letter of credit. If either of these events occur after Landlord has
drawn on the letter of credit, then following receipt of Tenant's notice and
proof thereof, any funds remaining from the letter of credit that Landlord is
holding in its account, shall be released to the Tenant provided Tenant is not
otherwise in default of its lease obligations.
(f) Tenant acknowledges and agrees that a failure to maintain in effect a
letter of credit that complies with all of the requirements of this Section
2.17, or the refusal by Tenant's bank to renew any letter of credit, shall each
constitute an event of default under the Lease.
3. LEASE AND RENT.
3.1 Duration: Landlord hereby leases to Tenant and Tenant hereby rents
from Landlord the Premises for the Term.
3.2 Rent: Tenant hereby covenants and agrees to pay, when due, the Basic
Rent and all Additional Rent as herein provided.
3.3 Late Payment:
(a) Should any installment or installments of Basic Rent or Additional Rent
not be paid and received at the Landlord's office on or before the 5th day of
the month (provided that Tenant has received written notice from Landlord by fax
or other accepted means of notification hereunder at least 24 hours ahead of
time), or on or before the 10th day of the month (if Landlord has not so
notified Tenant in writing that such installment is late), the Tenant agrees to
pay to the Landlord on demand a service charge equal to five (5%) of the overdue
amount. All unpaid rent plus service charges thereon shall accrue interest at
the rate of ten (10%) percent per annum until paid, starting from the eleventh
(11th) day after such payment was due. The service charge and any amounts due as
a result of applying the default interest rate shall be deemed to be Additional
Rent. Tenant acknowledges and agrees that such late payment by Tenant will cause
Landlord to incur costs and expenses not contemplated by this Lease, the exact
amounts of which will be extremely difficult to ascertain, and that such service
charge represents a fair estimate of the costs and expenses that Landlord would
incur by reason of Tenant's late payment. Tenant further agrees that such
service charge shall neither constitute a waiver of
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Tenant's default with respect to such overdue amount nor prevent Landlord from
exercising any other right or remedy available to Landlord.
(b) Following any three consecutive late payments of either Basic Rent
and/or Additional Rent (collectively, "Rent"), Landlord may, upon notice to
Tenant, require that, beginning with the first payment of Rent due following the
date the third late payment was due, Rent shall no longer be paid in monthly
installments when due but shall be payable three (3) months in advance, with
each subsequent month's payment being for such period as is then three (3)
months in advance.
4. USE.
The Premises shall be used only for those uses listed in Section 2.12
hereof and for no other purposes. Tenant shall not at any time use or occupy,
or do or permit anything to be done in the Premises, in violation of any law,
statutes or regulations of any Governmental Authority having jurisdiction over
the use and occupation of the Premises or the Building.
5. INTENTIONALLY OMITTED.
6. ACCEPTANCE.
When Tenant takes possession of each Stage of the Premises, Tenant shall be
deemed to have accepted that Stage of the Premises as being in satisfactory
condition as of the date of such possession, subject to Tenant notifying
Landlord within 30 days of the date of possession of each Stage, of any
deficiencies in the functioning of the mechanical apparatus or any leaks in the
roof in that area of the Premises. As to the bathrooms to be constructed by
Landlord as described in Section 2.15, Landlord and Tenant acknowledge and agree
that Landlord plans to complete the same when the Tenant has the Landlord do
their work in Building D, but in no event shall the bathrooms be completed later
than December 31, 2000, regardless of when Tenant's work in Building D is
undertaken.
7. COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS.
7.1 During the Term hereof, Tenant shall promptly comply with all laws,
ordinances, rules, regulations, requirements and directives of the federal,
state and municipal governments or public authorities and all of their
departments, bureaus and subdivisions, applicable to and affecting the Premises,
its use and occupancy, for the correction, prevention and abatement of nuisances
violations and other grievances in, upon or connected with the Premises.
7.2 Tenant shall not do, or permit anything to be done in or to the
Premises, or bring or keep anything therein which will, in any way, increase the
cost of fire or public
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liability insurance on the Real Property or invalidate or conflict with the fire
insurance or public liability insurance policies covering the Real Property, and
Building fixtures or any personal property kept therein, or obstruct or
interfere with the rights of Landlord or of other tenants, or in any other way
interfere with the other tenants' rights to quiet enjoyment, or subject Landlord
to any liability for injury to persons or damage to property, or interfere with
the good order of the Building, or conflict with the present or future laws,
rules or regulations of any Governmental Authority. Tenant agrees that any
increase in fire insurance premiums on the Building or contents caused by the
occupancy of Tenant and any expense or cost incurred in consequence of
negligence, carelessness or willful action of Tenant, Tenant's agents, servants,
employees, invitees, or licensees, shall be reimbursed to Landlord within ten
(10) days of demand therefor. Landlord shall have all the rights and remedies
for the collection of same as are conferred upon Landlord for the collection of
the Basic Rent provided to be paid pursuant to the terms hereof. Landlord will
maintain a generally accepted business policy.
7.3 Tenant shall indemnify, defend and save harmless the Landlord from all
fines, suits, proceedings, claims and actions of any kind arising out of or in
any way connected with any spills or discharges of hazardous substances or
wastes at the Real Property which are attributable to Tenant's acts or
negligence; and from all fines, suits, proceedings, claims and actions of any
kind arising out of Tenant's failure to provide all information, make all
submissions and take all actions required by the provisions of this Section. If
Tenant fails to comply in any respect with the provisions of this Section,
Tenant shall be responsible for any and all damages, costs of remediation and
other costs, penalties, fines, losses and/or expenses (including but not limited
to actual attorney's fees and other professional and consultants' fees) arising
from or attributable to Tenant's non-compliance. Tenant's obligations and
liabilities under this Section shall continue so long as Landlord remains
responsible for any spills or discharges of hazardous substances or wastes at
the Real Property. Tenant's failure to abide by the terms of this Section shall
be restrainable by injunction, as Tenant acknowledges and stipulates that
failure to comply herewith will cause irreparable harm to the Landlord.
7.4 Tenant shall, at Tenant's own expense, comply with the Industrial Site
Recovery Act ("ISRA"), N.J.S.A. 13:1K-6, et seq., and the regulations
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promulgated thereunder, or any successor statute, to the extent that any action
or responsibility is imposed on Landlord or Tenant by the application of such
laws to Tenant or its business operations, whether or not at the Premises. In
that event, Tenant shall make all submissions to, provide all information to,
and comply with all requirements of, the Bureau of Industrial Site Evaluation
(the "Bureau") of the New Jersey Department of Environmental Protection
("NJDEP"). Should the Bureau or any other division of NJDEP determine that a
cleanup plan must be prepared and that a cleanup must be undertaken because of
any spills or discharges of hazardous substances or wastes at the Real Property
which occur due to the act or omission of Tenant, Tenant's agents, invitees,
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licensees, or employees, then Tenant shall, at Tenant's own expense, prepare and
submit the required plans and financial assurances, and carry out the approved
plans. Tenant's obligations under this paragraph shall also arise if there is
any closing, terminating or transferring of operations of the Tenant's
industrial establishment at the Real Property which are subject to ISRA. Such
submissions to the Bureau shall be made no less than six (6) months before the
end of the Tenant's occupancy of the Premises. Landlord shall be kept advised
of each step in the ISRA submission process, and the Tenant shall diligently
pursue any cleanup plan required by the NJDEP either before or immediately after
the expiration of its lease term.
7.5 At no expense to Landlord, Tenant shall promptly provide all
information requested by Landlord for preparation of ISRA applicability or other
affidavits and shall promptly sign such affidavits when requested by Landlord.
At no expense to Landlord, Tenant agrees to promptly provide any information
requested by Landlord regarding Tenant's use and occupancy at the Leased
Premises, as may be needed to evidence compliance with the terms of applicable
laws and insurance policies; and Tenant agrees to promptly execute any
affidavits or other documents needed in confirmation of same.
8. PERSONAL PROPERTY TAXES.
Tenant agrees to pay all taxes imposed on the personal property of Tenant,
the conduct of its business and its use and occupancy of the Premises.
9. COMMON CHARGES.
9.1 Net Lease. This is an absolutely net Lease and it shall be the
Tenant's responsibility to pay for all charges and expenses attributable to the
Premises as set forth herein, and Tenant shall pay its proportionate share of
all Common Charges (herein so called) for the Building and the Real Property.
The Tenant's obligation to pay for Common Charges for the Building and the Real
Property shall be calculated in accordance with the Tenant's proportionate
shares, as set forth in Sections 2.8 and 2.9, except that prior to November 1,
2000, the Tenant's apportioned percentage share shall be 100% for the D
Building, 4.32% for the B building and 19.33% for the entire property.
9.2 Common Charges Defined. The Tenant hereby agrees to pay as Additional
Rent its proportionate shares of all Common Charges, including but not limited
to the following:
(a) "Real Estate Taxes" as set forth in this Section 9.2 shall mean those
taxes attributable to the Real Property, provided that, if because of any change
in the method of taxation of real estate, any other tax or assessment is imposed
upon Landlord or the owner of the land or the Building or both or upon or with
respect to the Landlord of the Building or of the rents or income therefrom in
substitution for or in lieu of any tax or assessment
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which would otherwise be a real estate tax, such other tax or assessment shall
be deemed real estate taxes for the purposes of this Section.
(b) "Landlord's Operating Expenses" as set forth in this Section 9.2 shall
mean all reasonable and necessary costs or expenses paid or incurred by Landlord
for operating, maintaining, and repairing the Real Property, including the cost
of water, sewer charges, window cleaning, janitorial service, insurance of all
kinds carried in good faith by Landlord and applicable to the Real Property,
snow removal, maintenance and cleaning of the parking lot, landscaping, repairs
of any kind for which Landlord is not reimbursed (except repairs made solely for
the benefit of other occupants of the Real Property, other than Tenant herein),
painting, replacement of worn out or damaged mechanical equipment, uniforms,
management fees, building and janitorial supplies, sundries, sales or use tax on
supplies or services, wages and salaries of all persons directly and to the
extent engaged by Landlord in the operation, maintenance, management and repair
of the Real Property, legal and accounting expenses, and any other expense or
cost, which in accordance with generally accepted accounting principles and the
standard management practices for office and commercial buildings comparable to
the Building would be considered as an expense of operating, maintaining,
managing or repairing the Real Property. Excluded from Landlord's operating
expense are capital improvement costs (provided that if such capital improvement
results in a decrease in Landlord's Operating Expenses, Landlord may to the
extent of such savings include the expense for such item in Landlord's Operating
Expenses), costs reimbursed by insurance, the cost of work performed
specifically for a tenant in any building on the Real Property for which such
Tenant has reimbursed Landlord, costs in connection with preparing space for a
new tenant, and real estate brokers' commissions. The term "capital
improvement" shall mean any item(s) which is new and added to the property or
the improvements thereon; the term "repair" shall mean the improvement or
replacement of any item which is no longer useful because of wear and tear,
damage or otherwise.
9.3 Monthly Contribution Payments. On the first day of each month
following the Commencement Date of this Lease, Tenant shall pay to Landlord on a
monthly basis an estimated amount toward its share of the Landlord's Common
Charges. The estimated monthly amount to be paid initially will be $19,917.04.
That estimated amount may change from time to time, based upon Landlord's
evaluation of anticipated or actual increases or decreases in Common Charges.
These payments of Additional Rent shall be due and payable with each monthly
installment of Basic Rent.
9.4 Year-End Reconciliation. Within ninety (90) days after the end of the
calendar year, Landlord shall submit to Tenant a statement showing Landlord's
Common Charges for the year. If Landlord's statement shows that Tenant's
proportionate share of Landlord's Common Charges is greater or less than the
amounts paid by Tenant during the year pursuant to Section 9.3 hereof, the
deficiency or excess, as the case may be, shall
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either be payable by Tenant to Landlord within thirty (30) days as Additional
Rent, or credited by Landlord to Tenant. Tenant or its representative shall have
the right to examine Landlord's books and records with respect to the items on
the foregoing Landlord's statement during normal business hours at any time
within sixty (60) days following the delivery by Landlord to Tenant of such
Landlord's statement. Unless Tenant shall take written exception to any item
contained therein within one hundred twenty (120) days after the delivery of
same, such Landlord's statement shall be considered as final and accepted by
Tenant.
9.5 Modification of Proportionate Share. Notwithstanding the foregoing,
in the event that Landlord undertakes certain repairs or replacements to the
common areas of the Real Property or of the Building, that benefit only this
Tenant, or this Tenant and some but not all other tenants at the Real Property,
then Landlord may, at its sole discretion, apportion the cost of such repairs or
replacements among only those tenants benefited thereby. This Tenant's share of
such costs shall be calculated by dividing the total square footage of the
Premises by the total rentable square footage of the Building or the Real
Property that is also benefited by the repair or replacement in question, and
multiplying the cost of said repair or replacement by that percentage. Amounts
due to the Landlord for such costs shall be payable at any time upon demand, or
may be included in the annual reconciliation provided for in Section 9.4 above.
9.6 Limitation and Survival: In no event shall any adjustment in Tenant's
obligation to pay Additional Rent under this Section 9 result in a decrease in
the Basic Rent payable hereunder. Tenant's obligation to pay Additional Rent
and Landlord's obligation to credit to Tenant any amount referred to in this
Section 9, for the final year of the Term, shall survive the Termination Date.
10. UTILITIES; TRASH REMOVAL; RECYCLING.
10.1 Tenant shall pay when due all charges for utilities supplied, i.e.,
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water, sewer, gas and electricity, including utilities for Tenant's heat,
ventilation and air conditioning requirements, to or for the benefit of the
Premises. If the Premises are separately metered, Tenant shall maintain its own
accounts with the suppliers of these utility services, and payment shall be made
directly to the supplier. If there is no separate metering, all applicable
charges will be paid to Landlord by Tenant, as Additional Rent, in accordance
with Tenant's usage. With respect to electric service, the provisions of
Section II shall apply if Tenant's Premises are not separately metered.
10.2 At Landlord's option, Landlord may arrange for the removal of trash
and/or materials to be recycled for all tenants, and Tenant's proportionate
share of the cost thereof shall be billed to the Tenant as Additional Rent. If
Landlord does not make such arrangements, Tenant shall arrange and pay for its
own refuse removal in accordance with
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any plan set by Landlord for this Real Property. In all events, Tenant shall
fully comply with all state, county and municipal laws regulating refuse
disposal and recycling.
11. TENANT ELECTRIC.
11.1 Unless and until the Premises are separately metered for electric
service, Landlord shall furnish the electric energy that Tenant shall require in
the Premises. Tenant shall pay to Landlord, as Additional Rent, for all
electric energy furnished to Tenant at the Premises. Additional Rent for such
electric energy shall be calculated and payable in the manner hereinafter set
forth.
11.2 The Landlord shall compute the Tenant's use of electricity to the
Premises via a computerized measuring system, and shall compute the cost thereof
for the quantity so determined at prevailing retail rates, taking into
consideration all factors, including but not limited to peak demand usages, but
without xxxx-up or surcharge by Landlord. Tenant shall pay Landlord the cost of
such electric energy, as so calculated, on a monthly basis, as Additional Rent,
together with its payment of Basic Rent.
(a) Until such time as Landlord shall complete the aforedescribed
computation, Tenant shall pay to Landlord, each and every month, as Additional
Rent, for and on account of Tenant's electrical consumption, the sum set forth
in Section 2.13 to be applied against Tenant's obligations hereunder. Upon
completion of the computation, there shall be an adjustment for the period from
the Commencement Date through the date that the results of the computation shall
be effectuated as shall be required.
(b) Landlord shall submit to Tenant the results of its electric measuring
computation on a periodic basis, and the same shall be deemed binding upon
Tenant unless Tenant shall object to same within thirty (30) days of the date
that Landlord shall furnish Tenant with the results of the computation.
11.3 Landlord shall not be liable in any way to Tenant for any failure or
defect in the supply or character of electric energy furnished to the Premises
by reason of any requirement, act or omission of the public utility serving the
Building with electricity, or for any other reason other than Landlord's fault,
negligence or failure to perform its obligations under this Lease.
11.4 Tenant's use of electric energy in the Premises shall not at any time
exceed the capacity of any of the electrical conductors and equipment in or
otherwise serving the Premises.
11.5 If the public utility rate schedule for the supply of electric
current to the Building shall change during the Term of this Lease, the
Additional Rent payable pursuant to Section 11.2 hereof shall be equitably
adjusted to reflect the resulting increase
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or decrease, as the case may be, in Landlord's cost of furnishing electric
service to the Premises effective as of the date of any change.
12. PARKING.
The Tenant shall be permitted to use the Parking Spaces in the parking area
in front of the "B" Building of which the Premises form a part, in common with
other tenants and occupants of the Real Property as well as exclusive use of
fifteen (15) parking spaces on the west side of the building as shown on Exhibit
F. There shall be no charge for the use of these Parking Spaces. The Landlord
reserves the right from time to time to make reasonable rules and regulations as
in its judgment may be desirable for the safety, care and cleanliness of the
parking lot and for the preservation of good order therein, including but not
limited to the allocation of Parking Spaces among the tenants from time to time
so that the distribution thereof is fair to all of the tenants. Upon the making
of such rules and regulations and when notice thereof has been given to the
Tenant, such rules and regulations shall have the same force and effect as if
originally made a part of this Lease.
13. ENTRY.
13.1 Landlord's Right of Entry: Landlord and Landlord's agents and
representatives shall have the right to enter into or upon the Premises, or any
part thereof, at all reasonable hours for the following purposes:
(a) Examining the Premises and making such repairs or alterations therein
as may be necessary in Landlord's sole judgment for the safety and preservation
thereof, there being no obligation, however, upon Landlord to make such
examination and repairs.
(b) Erecting, maintaining, repairing or replacing wires, cables,
conduits, vents or plumbing equipment running in, to or through the Premises.
(c) Showing the Premises to prospective new tenants during the last six
(6) months of the Term, or to any present or future mortgagees at any time.
13.2 Notices: Landlord shall give Tenant reasonable prior written notice
before commencing any non-emergency repair or alteration.
13.3 Emergencies: Landlord may enter upon the Premises at any time in
case of emergency, without prior notice to Tenant.
13.4 No Eviction: In exercising any of its rights under this Section 13,
the Landlord shall not be deemed guilty of an eviction, partial eviction or
disturbance of Tenant's use or possession of the Premises and shall not be
liable to Tenant for same.
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13.5 Interference: All work performed by or on behalf of Landlord in or
on the Premises pursuant to this Section 13 shall be performed with as little
inconvenience to Tenant's business as possible, and in such manner as not to
unreasonably interfere therewith.
13.6 Damages: The Landlord shall be responsible for any damages to the
Tenant's property or business incurred by the Tenant due to the negligence or
improper conduct of the Landlord or any of the Landlord's agents, servants,
employees, invites, etc. who have entered the Premises under this Section 13,
but nothing hereunder shall afford Tenant the right to withhold any payment of
Basic Rent or Additional Rent hereunder.
14. MAINTENANCE
14.1 Maintenance by Tenant:
(a) The Tenant shall take good care of the Premises and at the Tenant's
own cost and expense, make all repairs and replacements, including painting and
decorating, and shall maintain the Premises in good condition and state of
repair, and at the expiration of the Term hereof, shall deliver up the rented
Premises in good order and condition, wear and tear from a reasonable use
thereof, and damage by the elements not resulting from the neglect or fault of
the Tenant, excepted. The Tenant shall neither encumber nor obstruct the
sidewalks, driveways, yards, entrances, hallways, and stairs, but shall keep and
maintain the same in a clean condition, free from debris, trash and refuse.
(b) In case of the destruction of or damage of any kind whatsoever to the
said Premises, caused by the carelessness, negligence or improper conduct on the
part of the Tenant or the Tenant's agents, employees, guests, licensees,
invitees, subtenants, assignees or successors, the Tenant shall repair the said
damage or replace or restore any destroyed parts of the Premises, as speedily as
possible, at the Tenant's own cost and expense, provided, however, that to the
extent any such damage is covered by insurance maintained by either Landlord or
Tenant with respect to the Premises, the parties agree that they will exhaust
all insurance proceeds before any claim will be made against Tenant with respect
to such damage.
(c) Throughout the Term of this Lease, and any renewal or extension
thereof, Tenant shall maintain in effect a maintenance and service contract for
its HVAC equipment and system, with a reputable contractor having all necessary
licenses for the same.
14.2 Maintenance by Landlord:
(a) Landlord shall be responsible for all Structural Repairs when
required, and maintain and make repairs to the common areas, and the exterior of
the Building, all of
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which work shall be done by Landlord, the cost of which shall be included in
Landlord's Common Charges. Provided, however, that if the need for such repair
work arises out of the carelessness, negligence, or improper conduct of the
Tenant, its agents, employees, guests, licensees, invitees, subtenants,
assignees or successors, the Tenant shall be fully responsible for the necessary
repairs or restoration of any structural damage, damage to the common areas,
and/or damage to the exterior of the Building, and Tenant shall cause the same
to be repaired or restored as quickly as possible, at Tenant's own cost and
expense, and it being further agreed that to the extent any such damage is
covered by insurance maintained by either Landlord or Tenant with respect to the
Premises, the parties agree that they will exhaust all insurance proceeds before
any claim will be made against Tenant with respect to such damage. Tenant shall
be fully responsible for maintenance and replacement of HVAC systems.
(b) Landlord's obligation to keep the sidewalks and parking area free of
snow and ice shall be strictly limited to reasonable activity considering the
weather, the availability at such time and under then existing circumstances of
men and equipment, and other factors outside the control of Landlord. The
Tenant accepts all risk of use of such facilities, and any act or action by the
Landlord for its agents shall not be deemed to create any liability of any kind
whatsoever, the Tenant hereby releasing the Landlord for the same as a condition
hereof, except under court order or an arbitration award.
15. ALTERATIONS.
15.1 Changes and Additions. Tenant shall make no changes or additions in
or to the Premises of any nature without Landlord's prior written consent, which
consent shall not be unreasonably withheld. If Landlord consents to Tenant's
proposed alterations, installations, and/or additional improvements in or to the
Premises (collectively "Alterations"), then in that event Landlord shall cause
such Alterations to be completed in a good and workmanlike manner at Tenant's
sole cost and expense.
15.2 It is hereby agreed that painting, carpeting, wallpapering and other
cosmetic changes to the Premises are not considered "Alterations" and may be
performed by Tenant without any need for Landlord's consent. The cost of such
Alterations shall be at competitive market rates for both labor and materials,
and Landlord shall not make any profit thereon. Tenant acknowledges that
Landlord may use affiliated entities to perform all or a portion of any
Alterations requested by Tenant from time to time which affiliates make a
reasonable profit and overhead on both labor and material. Unless agreed by
Landlord and Tenant to the contrary at the time Landlord approves of the making
of an Alteration, all Alterations shall become the property of the Landlord and
shall be surrendered with the Premises as a part thereof upon the expiration or
sooner termination of this Lease. If Landlord and Tenant so agree at the time
of Landlord's approval of an
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Alteration, Tenant shall, at its sole cost and expense remove such Alteration
and repair any resulting damage, upon the expiration or sooner termination of
this Lease.
15.3 Trade Fixtures and Equipment. Nothing in this Section 15 shall be
construed to give Landlord title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment. On or before the Termination
Date, the Tenant shall remove its trade fixtures, furniture and equipment, at
Tenant's own expense, and Tenant shall repair any damage caused by such removal.
15.4 Abandoned Property. All property permitted or required to be removed
at the end of the Term and remaining on the Premises after the Termination Date
shall be deemed abandoned and may, at the election of Landlord, either be
retained as Landlord's property or may be removed from the Premises by Landlord
at Tenant's expense.
15.5 Permits: Prior to the commencement of any Alterations, Landlord
shall obtain at Tenant's cost all required permits, approvals and certificates
required by all governmental authorities and upon completion of the Alterations,
certificates of final approval thereof. Landlord shall deliver duplicates of
same to Tenant. Landlord shall carry and will cause its contractors and
subcontractors to carry sufficient workmen's compensation, general liability,
personal injury and property damage insurance.
16. TRANSFERS OF TENANT'S INTEREST.
16.1 Prohibition: Tenant shall not assign this Lease or sublet all or
part of the Premises, or permit all or part of said Premises to be used by
others, without first obtaining the prior written consent of the Landlord.
Except as otherwise permitted in this Section 16, Landlord shall not
unreasonably withhold its consent to a proposed assignment or subletting. In
addition, the Tenant shall not mortgage or otherwise encumber, or permit to be
encumbered, its right, title and interest under this Lease or in and to the
Premises or both.
16.2 Consent: Landlord shall not be required to consent to Tenant's
assigning this Lease or subletting all or a part of the Premises if:
(a) Tenant shall be in default under any of the terms, covenants,
conditions, provisions and agreements of this Lease at the time of any notice or
request for consent under the terms of this Section 16 or and on the effective
date of such subletting or assigning; or
(b) If the proposed tenant shall be or shall seek to use any portion of
the Premises for a use not consistent with other uses in the Building, or which
violates any exclusive use granted to any other tenant of the Real Property.
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16.3 Consent Procedure: If Tenant requests Landlord's consent to an
assignment of this Lease or a subletting of all or any part of the Premises,
Tenant shall submit to Landlord the name of the proposed assignee or subtenant,
the terms of the proposed assignment or subletting, the nature of the proposed
tenant's business, and such information as to the assignee's or subtenant's
financial responsibility and general reputation as Landlord may reasonably
require. Upon receipt of such request and information from Tenant, Landlord
shall have the option to be exercised in writing within thirty (30) days after
such receipt, to do one of the following:
(a) Cancel and terminate this Lease if the request is to assign this
Lease or to sublet all or part of the Premises; or
(b) If the request is to sublet a portion of the Premises only, to cancel
and terminate this Lease with respect to such portion; or
(c) To grant said request; or
(d) To deny the Tenant's request.
In the event Landlord shall cancel this Lease, Tenant shall surrender possession
of the Premises, or the portion of the Premises which is the subject of the
cancellation, as the case may be, on the date set forth in such notice in
accordance with the provisions of this Lease relating to surrender of the
Premises. If the Lease shall be canceled as to a portion of the Premises only,
the Basic Rent and Additional Rent payable by Tenant hereunder shall be reduced
proportionately according to the ratio that the number of square feet in the
portion of space surrendered bears to the square feet in the Rentable Area of
the Premises. In the event that Landlord shall consent to a sublease or
assignment pursuant to the request from Tenant, Tenant shall cause to be
executed by its assignee or subtenant an agreement to perform faithfully and to
assume and be bound by all of the terms, covenants, conditions, provisions, and
agreements of this Lease for the period covered by the assignment or sublease,
to the extent of the affected portion of the Premises. An executed copy of each
sublease or assignment and assumption of performance by the sublessee or
assignee, on Landlord's standard form, shall be delivered to Landlord not less
than five (5) days prior to the commencement of occupancy set forth in such
assignment or sublease. No such assignment or sublease shall be binding on
Landlord until Landlord has received such copies as required herein.
16.4 Corporate or Partnership Transfers. If the Tenant is a privately
held corporation, a limited liability company, an unincorporated association or
partnership, or any other entity formed, in part, for the limiting of potential
liability, the cumulative or aggregate transfer, assignment or hypothecation of
fifty percent (50%) or more of the total stock or interest in such entity shall
be deemed an assignment or transfer within the meaning and provisions of this
Section. This Article 16 shall not, however, apply to
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transactions with a corporation (i) into or with which Tenant is merged or
consolidated, (ii) to which substantially all of Tenant's assets are
transferred, or (iii) that controls, is controlled by, or is under common
control with Tenant, provided that, in any of such events:
(a) The successor of Tenant has a net worth, computed in accordance with
generally accepted accounting principles, at least equal to the greater of (a)
the net worth of Tenant immediately prior to such merger, consolidation or
transfer, or (b) the net worth of Tenant herein named on the Commencement Date;
(b) Proof satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least ten (10) days prior to the effective date of such
transaction;
(c) Any assignment, sublease or transfer shall be subject to all of the
terms and provisions of this Lease, and such assignee, sublessee or transferee
shall assume, in a written document reasonably satisfactory to Landlord and
delivered to Landlord promptly upon the assignment, sublease or transfer, all
the obligations of Tenant under this Lease.
16.5 Costs of Assignment: Tenant shall reimburse Landlord, promptly on
demand, for Landlord's reasonable out-of-pocket costs (including attorney's
fees) incurred in conjunction with the processing and documentation of any such
transfers of Tenant's interests pursuant to this Section.
16.6 Tenant not Released: In no event shall any assignment, subletting or
transfer to which Landlord may consent, release or relieve Tenant from its
obligations to fully perform all of the terms, covenants and conditions of this
Lease on its part to be performed for the balance of the Term.
17. SURRENDER.
On the Termination Date, or prior expiration of this Lease, Tenant shall
peaceably and quietly quit and surrender to Landlord the Premises, broom clean,
in as good condition as they were on the Commencement Date, ordinary wear and
tear, repairs and replacements by Landlord, loss by fire, casualty and other
causes beyond Tenant's control, and alterations, additions and improvements
permitted hereunder, excepted. Tenant's obligation to observe or perform this
covenant shall survive the Termination Date or prior expiration of the Term. If
the Termination Date falls on a Sunday or a legal holiday, this Lease shall
expire at 12 noon on the business day next preceding said date.
18. HOLDING OVER.
If Tenant holds possession of the Premises beyond the Termination Date or
prior expiration of the Term, Tenant shall become a tenant from month-to-month
at one and
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one-half (1 1/2) times the then current Basic Rent as is allowed by
N.J.S.A. 2A:42-6, AND upon all other terms and conditions of this Lease, and
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shall continue to be such month-to-month tenant until such tenancy shall be
terminated by Landlord and such possession shall cease. Nothing contained in
this Lease shall be construed as a consent by Landlord to the occupancy or
possession by Tenant of the Premises beyond the Termination Date or prior
expiration of the Term, and Landlord shall be entitled to the benefit of all
legal remedies that now may be in force or may be hereafter enacted relating to
the speedy repossession of the Premises.
19. SECURITY DEPOSIT.
19.1 Use and Disposition: If an event of default occurs, Landlord may
use, apply or retain the whole or any part of the Security Deposit to the extent
required for the payment of any Basic Rent, Additional Rent or any other sum as
to which Tenant is in default or for any sum which Landlord may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants or conditions of this Lease, including but not limited to any damages
or deficiency accruing before or after summary proceedings or other re-entry by
Landlord. In the event that Tenant shall fully and faithfully comply with all
of the terms, covenants and conditions of this Lease, the Security Deposit shall
be returned to Tenant without interest within thirty (30) days after the
Termination Date and after delivery of possession of the entire Premises to
Landlord.
19.2 Transfer of Deposit: In the event of a sale of the Real Property or
a leasing thereof, Landlord shall have the right to transfer the Security
Deposit to the vendee or lessee, as the case may be, and Landlord shall
thereupon be released by Tenant from all liability for the return of such
Security Deposit. Tenant agrees to look solely to the new Landlord for the
return of the Security Deposit; and it is agreed that the provisions hereof
shall apply to every transfer or assignment made of the Security Deposit to a
new owner or lessee. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the Security Deposit and that neither
Landlord nor its successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
20. QUIET ENJOYMENT.
Landlord covenants and agrees that, upon the performance by Tenant of all
of the covenants, agreements and provisions hereof on Tenant's part to be kept
and performed, Tenant shall have, hold and enjoy the Premises, subject and
subordinate to the rights set forth in Sections 13 and 23, free from any
interference whatsoever by, from or through the Landlord. Provided, however,
that under no circumstances does Landlord's violation of this Section 20 or any
other provision of this Lease, entitle or authorize the Tenant to withhold all
or any part of the Basic Rent or Additional Rent to which Landlord is
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otherwise entitled, nor shall any such violation entitle or authorize the Tenant
to any abatement or deduction in the said rent; but Tenant's sole remedy to
obtain compensation or relief in regard to any such violation shall be by the
institution of an appropriate civil action against the Landlord.
21. AIR AND LIGHT.
This Lease does not grant any right to air and light.
22. DEFAULT.
22.1 Events of Default: Each of the following shall constitute an event
of default hereunder:
(a) The filing of a petition by or against Tenant for adjudication as a
bankrupt, or for reorganization, or for an arrangement or for relief under any
bankruptcy or insolvency laws (provided, however, that in the case of any
involuntary bankruptcy petition filed against Tenant, and as long as Tenant is
not otherwise in default hereunder for non-payment or non-performance of its
leasehold obligations, Tenant shall have sixty (60) days from the date of filing
to obtain the dismissal of such petition before an event of default shall be
deemed to have occurred);
(b) The commencement of any action or proceeding for the dissolution or
liquidation of Tenant, whether instituted by or against Tenant, or for the
appointment of a receiver or trustee of the property of Tenant under any state
or federal law or statute for relief of debtors;
(c) The making by Tenant of an assignment for the benefit of creditors;
(d) The suspension of business by Tenant or any act by Tenant amounting
to a business failure;
(e) The filing of a tax lien or a mechanics' lien against any property of
Tenant in the Premises only and such lien shall not be discharged or bonded
within thirty (30) days following notice to Tenant of the filing thereof;
(f) Failure by Tenant to pay Landlord within ten (10) days after first
coming due the Basic Rent, the Additional Rent herein reserved, or any other sum
required to be paid by the terms of this Lease (provided, however, that in the
case of any Additional Rent other than Tenant's regular monthly payments on the
first of each month toward Common Charges and its electric usage, Tenant shall
not be in default unless more than ten (10) days has elapsed since Landlord gave
Tenant written notice of the amount of such Additional Rent and date upon which
such Additional Rent is due);
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(g) The creation or imposition of a lien or encumbrance on or against the
Tenant's interest under this Lease or in or to the Premises whether or not the
Tenant consents thereto;
(h) A failure by Tenant after notice from Landlord and a reasonable
opportunity to perform (which period of opportunity shall be not less than
thirty (30) days unless Tenant's non-performance is creating an emergent or
dangerous condition, in which case it can be shorter) any other term, covenant,
agreement or condition of this Lease on the part of Tenant to be performed.
22.2 Rights and Remedies Upon Default: If an event of default occurs,
Landlord shall be entitled to take such action as it deems advisable, from time
to time, under any one or more of the provisions of this Section 22.2.
(a) Landlord may proceed as it deems advisable, at law or in equity, to
enforce the provisions of this Lease or to collect damages for the breach
thereof, or both;
(b) Landlord may notify Tenant that this Lease shall terminate on a date
specified in the notice, and this Lease shall terminate on the date so
specified; notwithstanding such termination, Tenant's liability for its failure
to comply with any provision of this Lease shall continue;
(c) Landlord may re-enter the Premises and any improvements located
thereon, may repossess itself (by summary proceedings, ejectment or other legal
proceedings), may dispossess Tenant, and may remove Tenant from the Premises,
without further notice to Tenant; and Tenant waives any right to the service of
any notice of Landlord's intention to re-enter provided for by any present or
future law, and any right to re-enter the Premises or restore the operation of
this Lease;
(d) Landlord may relet the Premises, as a whole or in part, for such term
or terms (which may be greater or less than the period which would have
constituted the balance of the Term if the Lease had not been terminated) and on
such conditions (which may include concessions or free rent) as Landlord
determines; but Landlord shall be under no duty to relet the Premises or to
collect any rent in connection with any reletting. Any expenses of reletting
the Premises such as brokers' fees, advertising, decorating, repairs,
replacements and alterations shall be payable by Tenant as Additional Rent;
(e) The Landlord may remove any subtenant of the Tenant from the Premises,
or at Landlord's election, may take over any or all subleases and collect the
rent and other charges due under any subleases;
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(f) Landlord may take possession of any property, equipment or fixtures of
Tenant in or at the Premises and sell same at public or private sale and apply
the proceeds of such sale, less the expenses, to any amounts then or thereafter
due Landlord hereunder;
(g) Tenant shall pay Landlord as Additional Rent, all reasonable
attorney's fees and court costs incurred by the Landlord in enforcing its rights
hereunder.
22.3 Advances, Etc. by Landlord: If any event of default occurs, Landlord
may pay any amount payable by Tenant under any provision of this Lease or comply
with any provision of this Lease on the part of Tenant to be complied with, and
make such expenditures in connection therewith (including reasonable attorney's
fees incurred by Landlord in enforcing the provisions of this Lease) as Landlord
deems advisable; and Tenant shall pay Landlord on demand, in addition to Basic
Rent, each amount so paid or expended by Landlord, with interest calculated at
the prime rate plus 2% per annum of First Union National Bank, for the
applicable time period; but no such payment or compliance by Landlord shall
constitute a waiver of Tenant's failure to make such payment or to comply with
such provision, or affect any right or remedy of Landlord with respect thereto.
Each such payment by Landlord shall be deemed Additional Rent due from Tenant
under this Lease.
22.4 Additional Remedies, Waivers, Etc.: With respect to the rights and
remedies of, and waivers by, Landlord:
(a) The rights and remedies of Landlord under Sections 22.2 and 22.3 shall
be in addition to every other right and remedy now or hereafter provided by law,
and all such rights and remedies shall be cumulative and not exclusive one of
the other; and Landlord may exercise such rights and remedies at such times, to
such extent, and as often, as Landlord deems advisable, and without regard to
whether the exercise of one right or remedy precedes, concurs with or succeeds
the exercise of another;
(b) A single or partial exercise of a right or remedy shall not preclude a
further exercise thereof, or the exercise of another right or remedy from time
to time;
(c) No delay or omission by Landlord in exercising a right or remedy shall
exhaust or impair the same, or constitute a waiver of, or acquiescence in, a
default;
(d) No waiver of a default shall extend to or affect any other default or
impair any right or remedy with respect thereto;
(e) No action or inaction by Landlord, whether it be the acceptance of
Basic Rent or otherwise, shall constitute a waiver of a default; and
(f) No waiver of a default shall be effective, unless it be in writing.
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23. SUBORDINATION, ATTORNMENT AND ESTOPPEL CERTIFICATES.
23.1 Subordination and Attornment:
(a) Tenant agrees that this Lease is and shall be subject and subordinate
to the lien of any mortgages that may now or hereafter be placed upon the Real
Property, and to all present or future advances under the obligations secured
thereby, and all renewals, amendments, modifications, consolidations,
replacements and extensions thereof, to the full extent of all amounts secured
by such mortgages from time to time. Said subordination shall have the same
force and effect as if such mortgages and any such renewals, modifications,
consolidations, replacements and extensions thereof had been executed,
acknowledged, delivered and recorded prior to the execution of this Lease.
Notwithstanding the foregoing, Tenant's agreement to subordinate its leasehold
interest in the Premises to the interest of any mortgagee or deed of trust
holder (collectively, "mortgagee") is contingent upon such mortgagee, for itself
and its successors and assigns, entering into a nondisturbance agreement with
Tenant which will provide that, so long as no event of default by Tenant under
this Lease has occurred and is continuing: (i) Tenant shall not be joined as a
party defendant in any foreclosure or other action which may be instituted by
such mortgagee by reason of any default under the terms of its lending
arrangements; (ii) Tenant shall not be dispossessed of the Premises by such
mortgagee; (iii) Tenant's leasehold estate under the Lease shall not be
terminated or disturbed by such mortgagee; and (iv) Tenant's rights under the
Lease shall not be diminished, or Tenant's obligations increased, by reason of
any default under the mortgagee's lending arrangements or any foreclosure of any
mortgage or transfer of the Real Property to such mortgagee in lieu of
foreclosure. Landlord agrees to obtain for the benefit of Tenant a non-
disturbance agreement (consistent with the requirements set forth above) from
all existing mortgagees of the Real Property.
(b) Tenant agrees that in the event of a foreclosure of any mortgage by
the lender holding same, or the acceptance of a deed in lieu of foreclosure by
the lender, or any other succession of said lender to fee ownership, Tenant will
attorn to and recognize that lender as its landlord under this Lease for the
remainder of the term of this Lease (including all extension periods which have
been or are hereafter exercised) upon the same terms and conditions as are set
forth in this Lease, and Tenant hereby agrees to pay and perform all of the
obligations of Tenant pursuant to the Lease following any such foreclosure or
proceeding in lieu thereof. To the extent not prohibited by law, Tenant hereby
waives the provisions of any statute or rule of law, now or hereafter in effect,
which may give or purport to give Tenant any right or election to terminate or
otherwise adversely affect this Lease and the obligation of Tenant hereunder, in
the event any foreclosure proceeding is brought, prosecuted or completed.
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(c) The provisions of this Section 23.1 shall be self-operative and no
further instrument shall be required; provided, however, in confirmation thereof
Tenant shall execute such further assurances as may be required from time to
time. Refusal by the Tenant to execute such instruments within ten (10) days of
written request shall entitle the Landlord to the option of terminating this
Lease, declaring a default hereunder, and/or seeking monetary damages and/or
injunctive relief.
23.2 Estoppel Certificates: Within ten (10) days after either party shall
have requested the same, the other party shall deliver a certificate to it
certifying:
(a) The Tenant has accepted the Premises, has made no advancement for or
on behalf of the Landlord for which it has a right to deduct from or offset
against future rentals as of the date of certification and has not paid Basic
Rent or Common Charges for more than the current month in which the certificate
is made;
(b) The Lease is in full force and effect, free from any default by either
party, and has not been changed, modified or amended except as stated in the
certification of the Tenant;
(c) If a corporation, Tenant's Board of Directors has duly authorized
execution of the lease and other documents; and
(d) Any other provisions as may be requested by a mortgagee provided any
such additional provisions does not vary the substantial terms of this Lease.
24. CASUALTY AND CONDEMNATION.
24.1 Damage by Fire or other Casualty: If the Premises shall be damaged
by fire or other casualty not arising from the fault or negligence of Tenant, or
its servants, agents, employees, invitees or licensees the following shall
apply:
(a) Except as otherwise provided in subsection (c) hereof, the damage
shall be repaired by and at the expense of Landlord (which expense will not be
included as part of Landlord's Operating Expenses), and if any of the Premises
is unusable, the Basic Rent and Additional Rent shall be equitably apportioned
according to the part of the Premises which continues to be usable by Tenant
until such repairs shall be made. Notwithstanding anything below, Tenant shall
not pay Basic Rent or Common Charges if Tenant cannot use the space. Tenant
shall repair or replace its own furniture, furnishings and equipment.
(b) If the Premises are totally damaged, or are rendered wholly
untenantable, and if Landlord's architect certifies that the damage cannot be
repaired within one hundred eighty (180) days of the casualty (a "Total
Destruction"), then Landlord shall
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give Tenant notice of such Total Destruction within thirty (30) days following
the date of the casualty, and the Term shall expire ten (10) days after such
notice is given, and Tenant shall vacate the Premises and surrender the same to
Landlord.
(c) If any casualty causes less than a Total Destruction, then Landlord
shall complete the repair and restoration of the Premises within six (6) months
from the date of the casualty, subject, however, to Excusable Delays. If the
Premises are not repaired or restored within said period plus extensions for
Excusable Delays, Tenant shall have the right to cancel and terminate this Lease
upon the delivery of a notice to Landlord delivered within fifteen (15) days
after the expiration of the aforesaid six (6) month period, as extended.
Notwithstanding the foregoing provisions of this Section 24.1(c), however, if
less than two (2) years remain in the Term at the time of any casualty loss that
would cost more than $100,000.00 to repair, Landlord shall not be required to
repair and restore the Premises unless within thirty (30) days of the casualty,
the parties negotiate at least a five-year lease extension, before Landlord will
be obligated to proceed with repairs and restoration.
(d) Landlord agrees that it shall diligently pursue all repair and
restoration work required on its part to be completed at Landlord's expense.
(e) Nothing in this Section 24.1 shall require or obligate Landlord to
repair or replace any of Tenant's personal property, trade fixtures or
Alterations.
24.2 Condemnation: If the Premises shall be acquired by eminent domain
proceedings, or conveyance in lieu thereof (a "Taking"), the Term shall cease
and terminate from the date possession of the taken area is transferred to the
condemnor. If only a portion of the Premises or the Building shall be so
acquired or condemned and such taking materially interferes with Tenant's
ability to conduct its business, this Lease shall cease and terminate. If,
however, Tenant may continue to conduct its business in the remaining portion of
the Premises, then, at Tenant's option, this Lease shall not cease and an
equitable adjustment of the Basic Rent and Additional Rent payable by Tenant for
the remaining portion of the Premises shall be made. In the event of a Taking,
whether or not this Lease terminates, Tenant shall have no claim against
Landlord for the value of any unexpired Term or any other losses resulting from
the Taking (other than for the adjustment of the Basic Rent and Additional Rent
as herein before mentioned), nor shall Tenant be entitled to any portion of any
amount that may be awarded as damages to the Landlord by the condemning
authority. However, whether or not this Lease terminates, Tenant shall have the
right to make a separate claim against the condemning authority for the value of
Tenant's Alterations made after the Commencement Date, moving expenses, and any
other economic loss suffered by Tenant as a result of the taking.
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25. CHANGES SURROUNDING BUILDING.
This Lease shall not be affected or impaired by any change in any sidewalk,
alley or street, parking or common areas adjacent to or around the Building or
by changes to any other buildings on the Real Property, provided that Tenant
shall be reasonably able to continue to use the Premises for the uses set forth
in Section 2.12 hereof.
26. TENANT'S PROPERTY.
26.1 The Tenant hereby assumes the risk of loss or damage, including all
consequential losses and damage, to any real or personal property, constructed,
used, kept, placed, or stored by Tenant in or at the Premises, or real or
personal property used, kept, placed, or stored by Tenant in or at other
property of the Landlord of which the Premises form a part, including the Real
Property, caused by fire, water, theft, war, vermin, flood or any other casualty
or peril normally included in multi-peril all risk insurance with minimum
allowable specific peril or casualty exclusions, agrees not to look to the
Landlord or its allied or affiliated corporations, partnerships, or individuals
for indemnification for the same, and hereby releases the Landlord from any
liability for any such loss or damage. The Tenant agrees to look solely to
third parties, its insurer, if any, or itself for compensation for such loss or
damage.
26.2 Tenant may look to Landlord for indemnification for damages caused by
the gross negligence or willful misconduct of Landlord or its agents, servants,
employees, invitees, etc., if the resulting loss and damages are not covered by
Tenant's commercially acceptable business insurance policy.
27. NOTICE.
All notices required under the terms of this Lease shall be sent by
personal delivery, overnight courier (e.g., Federal Express), or by mailing such
notices by certified or registered mail, return receipt requested, to the
Landlord at the address shown at the head of this Lease, and to Tenant at the
Premises, or to such other address of the Landlord or Tenant as may be
designated by them in writing, which notice of change shall be given in the same
manner. Facsimile machine transmission of notices is not deemed adequate notice
---
or service. Notices sent by personal delivery shall be effective upon actual
receipt at the address of the addressee. Notices sent by overnight courier
shall be effective as of the date deposited with the courier service for next
day delivery. Notices sent by certified mail or registered mail shall be
effective as of the date deposited with and postmarked by the U.S. Postal
Service, properly addressed, with postage thereon prepaid.
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28. DISCLAIMER BY AND INDEMNIFICATION OF LANDLORD.
Subject to the provisions of Section 13.6, the Landlord shall not be
responsible for the loss of or damage to property, or injury to persons,
occurring in or about the Premises and Real Property, by reason of any existing
or future condition, defect, matter or thing in the Premises or Real Property,
or for the acts, omissions or negligence of other persons or tenants in and
about the Premises and the Real Property. The Tenant agrees to indemnify and
save the Landlord harmless from all claims and liability for losses of or damage
to property, or injuries to persons, occurring in or about the Premises and the
Real Property.
29. TENANT'S INSURANCE.
Tenant shall provide on or before the Commencement Date for the benefit of
Landlord and Tenant a policy of commercial general liability insurance insuring
against accident on or about the Premises and the Real Property or any
appurtenances thereto. Such policy is to be written by good and solvent
insurance companies reasonably satisfactory to Landlord, and the limits of
liability thereunder shall not be less than the amounts set forth in Section
2.14 hereof for personal injury, including death, in respect of any one person,
in respect of any one occurrence, and in respect of property damage. Such
insurance may be carried under a blanket policy covering other locations of
Tenant, if any. Landlord shall be named as an additional insured under such
policy. Prior to the time such insurance is first required by this Section 29
to be carried by Tenant, and thereafter, at least fifteen (15) days prior to the
expiration of any such policy, Tenant agrees to deliver to Landlord either a
duplicate original of the aforesaid policy or a certificate evidencing such
insurance, which policy or certificate shall provide that such insurance may not
be canceled except upon thirty (30) days' prior notice to Landlord. Upon
failure at any time on the part of Tenant to procure and deliver to Landlord the
policy or certificate of insurance, as hereinabove provided, stamped "Premium
Paid" by the issuing company at least fifteen (15) days before the expiration of
the prior insurance policy or certificate, if any, or to pay the premiums
therefor, Landlord shall be at liberty, from time to time, as often as such
failure shall occur, to procure such insurance and to pay the premium therefor,
and any sums paid for insurance by Landlord shall be and become, and are hereby
declared, to be Additional Rent hereunder for the collection of which Landlord
shall have all the remedies provided for in this Lease or by law for the
collection of rent. Payment by Landlord of such premium or the carrying by
Landlord of any such policy shall not be deemed to waive or release the default
of Tenant with respect thereto. Tenant's failure to provide and keep in force
the aforementioned insurance shall be regarded as an Event of Default hereunder
entitling Landlord to exercise any or all of the remedies as provided in this
Lease.
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30. TENANT'S LIABILITY.
In addition to the other obligations and liabilities of the Tenant set
forth herein, Tenant shall reimburse Landlord for all actual expenses, damages
or fines, incurred or suffered by Landlord by reason of any breach, violation or
nonperformance by Tenant, its agents, servants, employees, or licensees of any
covenant or provision of this Lease, or by reason of damage to persons or
property caused by moving property of or for Tenant in or out of the Building,
or by the installation or removal of furniture or other property of or for
Tenant or by reason of or arising out of the carelessness, negligence or
improper conduct of Tenant, or its agents, servants, employees, and licensees in
the use or occupancy of the Premises or the Common Areas. Any such expense, if
any, which Tenant is required to pay to Landlord shall be deemed Additional
Rent, due on the first day of the next calendar month after it is incurred.
31. RULES AND REGULATIONS.
The Tenant shall comply and cause its employees, agents, and invitees to
comply with all rules and regulations adopted by the Landlord in connection with
the use of the Premises and the common areas of the Real Property. A copy of
the Landlord's current rules and regulations are annexed hereto, and the Tenant
shall also comply with all reasonable, non-discriminatory supplements and
amendments thereto which are hereafter adopted by the Landlord. All rules and
regulations and supplements thereto which the Landlord may adopt shall be in
writing, and a copy thereof shall be delivered to the Tenant. If the Tenant
shall fail to cure any violation of these rules and regulations within five (5)
days of receipt of written notice of any such violation by the Tenant, its
employees, agents or invitees, such failure shall constitute a default under
this Lease.
32. MISCELLANEOUS.
32.1 Reservation of Rights: Landlord reserves the following rights:
(a) Intentionally omitted.
(b) To maintain pass keys to the Premises;
(c) To enter upon the Premises and exercise the foregoing rights hereby
reserved without being deemed to have caused an eviction or disturbance of
Tenant's use and possession of the Premises and without being liable in any
manner to Tenant;
(d) The Landlord shall not exercise its rights hereunder unless the
Landlord's activities will not interfere with the use and occupancy of the
Tenant and unless the Tenant has failed to object after reasonable notice in
writing by the Landlord.
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32.2 Mechanics' Liens: Any mechanics', materialmen's, or laborer's lien
filed against the Real Property for work claimed to have been done for, or
materials claimed to have been furnished to Tenant, shall be bonded or otherwise
removed by Tenant, at Tenant's expense, within thirty (30) days following notice
to Tenant of the filing thereof.
32.3 Notice of Fire and Accidents: Tenant shall give Landlord immediate
notice in case of fire or accident on the Premises or, if involving Tenant, its
servants, agents, employees, invitees, or licensees, in the Building or on the
Real Property.
32.4 Directory: Landlord shall furnish and service in the main lobby of
the Building a directory, listing a reasonable and customary number of names
that Tenant may from time to time request to be listed in such directory.
32.5 Force Majeure: If by reason of an Excusable Delay, including,
without limitation, a strike, labor troubles or other causes beyond Landlord's
control, or governmental preemption in connection with a national emergency or
any rule, order or regulation of any Governmental Authority, or conditions of
supply and demand which are affected by war or other emergency, Landlord shall
be unable to fulfill its obligations under this Lease or shall be unable to
supply any service which Landlord is obligated to supply, such failure shall be
excused on a day-for-day basis, and Tenant's obligation to pay Basic Rent and
Additional Rent hereunder shall xxxxx during that time period to the extent that
it cannot use the Premises.
32.6 Broker: Landlord and Tenant each represent and warrant to each other
that it has not dealt with any real estate broker in connection with this Lease.
Landlord and Tenant each agree to indemnify and hold the other harmless of and
from any and all claims, liabilities, costs or damages incurred as a result of a
breach of their respective representations.
32.7 Construction: The following rules shall be employed in interpreting
this Lease:
(a) Whenever in this Lease any words of obligation or duty are used, such
words or expressions shall have the same force and effect as though made in the
form of covenants;
(b) Words of any gender used in this Lease shall be held to include any
other gender, and words in the singular number shall be held to include the
plural, when the sense requires;
(c) All pronouns and any variations thereof shall be deemed to refer to
the neuter, masculine, feminine, singular or plural as the identity of the
Tenant requires;
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(d) No remedy or election given by any provision in this Lease shall be
deemed exclusive unless so indicated, but each shall, wherever possible, be
cumulative with all other remedies in law or equity except as otherwise
specifically provided;
(e) If, and to the extent that, any of the provisions of any Exhibits to
this Lease conflict or are otherwise inconsistent with any of the preceding
provisions of this Lease, or of the Rules and Regulations appended to this
Lease, whether or not such inconsistency is expressly noted in the Exhibits,
such conflict shall be resolved in favor of this Lease and with said Rules and
Regulations;
(f) The parties mutually agree that the headings and captions contained
in this Lease are inserted for convenience of reference only, and are not to be
deemed part of or to be used in construing this Lease;
(g) Each provision hereof on the Tenant's part to be performed shall be
deemed a covenant running with the land;
(h) This Lease has been executed and delivered in the State of New Jersey
and shall be construed in accordance with the laws of the State of New Jersey;
(i) Landlord has made no representations or promises with respect to the
Premises or the Real Property, except as expressly contained herein. Tenant has
inspected the Premises and agrees to take the same in an "As Is" condition
except as otherwise expressly set forth. Landlord shall have no obligation,
expressed or implied, except as herein set forth, to do any work in and to the
Premises to render them ready for occupancy and use by Tenant; and
(j) The terms, conditions, covenants and provisions of this Lease shall
be deemed to be severable. If any clause or provision herein contained shall be
adjudged to be invalid or unenforceable by a court of competent jurisdiction or
by operation of any applicable law, it shall not affect the validity of any
other clause or provision herein, but such other clauses or provisions shall
remain in full force and effect.
32.8 No Recordation: Tenant shall not record this Lease or a memorandum
hereof.
32.9 Building Maintenance: Landlord agrees to maintain the exterior of
the Building and the common areas of the Real Property in a neat, clean and
orderly condition.
32.10 Waiver of Jury Trial: Landlord and Tenant hereby mutually waive any
and all rights which either may have to request a jury trial in any proceeding
at law or in equity in any court of competent jurisdiction.
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33. MANAGING AGENT.
33.1 Designation of Managing Agent: The parties hereby acknowledge that
at this time and until further notice, G.B. Ltd. Oper. Co., Inc., shall be the
managing agent for the Landlord. All payments of rent and additional rent and
any other payments required under the terms of this Lease shall be made payable
to the Landlord, 000 Xxxxxxxx Xxxxxxx Associates, L.P., and shall be delivered
to the Landlord c/o G.B. Ltd. Oper. Co., Inc., 00 Xxxx Xxxx Xxxxxx, X.X. Xxx
0000, Xxxxxxxx, Xxx Xxxxxx 00000. Furthermore, the Tenant shall direct all
written communication with respect to this tenancy to G.B. Ltd. Oper. Co., Inc.,
at the aforementioned address, or otherwise by telephoning (000) 000-0000.
33.2 Change of Managing Agent: At any time and from time to time during
the term of this Lease, Landlord may designate a different firm or entity as
managing agent, and/or Landlord may change its directions to Tenant as to where
Basic Rent and Additional Rent payments shall be made. Landlord shall send
Tenant advance written notice, advising of any such changes in managing agent or
rent payment instructions.
34. LANDLORD'S RIGHT TO MODIFY.
Anything contained in the within Lease to the contrary notwithstanding, it
is specifically understood and agreed by and between the parties hereto that
Landlord retains the sole and uncontrolled right and discretion to vary, modify
or alter the size of the Property and/or the buildings, to add thereto or to
subtract therefrom, or to make any modifications thereto, additions thereto,
deletions therefrom or expansion thereof as Landlord may in its sole discretion
elect to do; provided always, however, that no such variation, modification, or
alteration shall operate so as to affect the Premises in such a way as would
vary, modify or alter the size thereof or as would materially and adversely
affect Tenant's use and enjoyment thereof or of the common areas associated
therewith. Landlord retains and shall retain in its sole discretion the right
to enlarge or diminish the common areas.
35. USE OF HELIPORT.
Landlord and Tenant acknowledge that situate on the Property is a
helipad/helistop. This Lease does not give Tenant any rights to use the
heliport. If Tenant so desires to utilize the heliport, Tenant must make
separate arrangements with Landlord which Landlord may without any reason deny.
36. CORPORATE TENANTS.
In the event Tenant is a corporation, the persons executing this Lease on
behalf of Tenant hereby covenant and warrant that: Tenant is a duly constituted
corporation
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qualified to do business in the State of New Jersey; all of Tenant's franchise
and corporate taxes have been paid to date; all future forms, reports, fees and
other documents necessary for Tenant to comply with applicable laws will be
filed by Tenant when due; and such persons are duly authorized by the board of
directors of such corporation to execute and deliver this Lease on behalf of the
corporation.
37. INTENTIONALLY OMITTED.
38. SUBMITTAL OF FINANCIAL STATEMENT.
At any time and from time to time during the term of this Lease, but not
more often than twice in any twelve (12) month period, Tenant shall supply to
Landlord and/or any mortgagee a current financial statement or such other
financial information as may be required by any such party, within thirty (30)
days after request therefor by Landlord.
39. NO PARTNERSHIP.
Nothing herein contained, either in the method of computing Rent or
otherwise, shall create between the parties hereto, or be relied upon by others
as creating, any relationship or partnership, association, joint venture, or
otherwise. The sole relationship of the parties hereto shall be that of
landlord and tenant.
40. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS.
This Lease contains all of the agreements of the parties hereto with
respect to any matter covered or mentioned in this Lease, and no prior
agreement, negotiations, brochures, arrangement or understanding pertaining to
any such matter shall be effective for any purpose unless expressed herein. No
provisions of this Lease may be amended or added to, except by an agreement in
writing signed by the parties hereto or their respective successors in interest.
41. COSTS OF SUIT.
If either party brings action for relief against the other, declaratory or
otherwise, arising out of this Lease, including any suit by Landlord for the
recovery of Rent or possession of the Premises, the unsuccessful party shall pay
the successful party its costs incurred in connection with and in preparation
for said action, including its attorneys' fees (which costs shall be deemed to
have accrued on the commencement of such action and shall be paid whether or not
such action is prosecuted to judgment, it being agreed that to be the successful
party a party need not necessarily have recovered a judgment, but shall be that
party which, in light of all the facts and circumstances of the case, shall be
deemed to be without fault or to have a lesser degree of fault than the other
party).
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42. SUBMISSION NOT AN OPTION.
The submission of this lease for examination does not constitute an option
or offer to lease the Premises described herein. This Lease shall have no
binding effect on the parties unless and until it is executed by both Landlord
and Tenant, and a fully executed copy is delivered to both parties.
43. SUCCESSORS & ATTACHMENTS.
43.1 The terms and conditions of this Lease and attachments shall inure to
and be binding upon the parties hereto and their respective heirs or successors
and assigns.
43.2 The exhibits and other attachments to this Lease are the following:
(a) Exhibit A - Floor plan of the building, showing the Premises area.
(b) Exhibit B - Diagram of Occupancy Staging.
(c) Exhibit C - Permitted Uses in the I/C Industrial Commercial Zone of
the Borough of West Long Branch.
(d) Exhibit D - Intentionally omitted.
(e) Exhibit E - Base Rent Calculation.
(f) Exhibit F - Parking Diagram.
(g) Exhibit G - Rules and Regulations.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the day
and year first above written.
WITNESS/ATTEST: 000 XXXXXXXX XXXXXXX ASSOCIATES,
L.P., Landlord
By: 185 M.P.A., Inc., General Partner
____________________ By: /s/
---------------------------
Tellium, Inc., Tenant
____________________ By: /s/ Xxxxxxx X. Xxxxx
---------------------------
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